Flor v. Flor

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16-P-752 Appeals Court
JEFFREY W. FLOR vs. THERESA M. FLOR.
No. 16-P-752.
Berkshire. December 8, 2016. - October 4, 2017.
Present: Green, Agnes, & Desmond, JJ.
Divorce and Separation, Modification of judgment, Alimony.
Complaint for divorce filed in the Berkshire Division of
the Probate and Family Court Department on August 24, 2007.
A complaint for modification, filed October 7, 2015, was
heard by Richard A. Simons, J., and a motion for reconsideration
was considered by him.
Dennis M. LaRochelle for the husband.
AGNES, J. The parties, Theresa M. Flor (wife) and Jeffrey
W. Flor (husband), entered into a separation agreement
(agreement) that, as pertinent here, merged into the judgment of
divorce nisi prior to March 1, 2012, the effective date of the
Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform act
or act). The divorce judgment includes an order requiring the
husband to pay child support until, at the latest, the child's
2
twenty-third birthday,1 an express waiver of the wife's right to
seek past or present alimony, and an express reservation of the
wife's right to seek an award of alimony in the future. Upon
the wife's complaint for modification, brought in anticipation
of the child's twenty-third birthday, a judge of the Probate and
Family Court ordered the husband to pay the wife general term
alimony.
The husband appeals, raising two issues. First, the
husband argues that there was no basis for the judge's
determination that the child's emancipation was a material
change in circumstances that authorized the judge to determine
whether it was appropriate to modify the judgment to provide for
alimony. Second, the husband argues that the judge erred in not
applying G. L. c. 208, § 49(f), the provision of the alimony
reform act that creates a presumption that general term alimony
terminates when the payor reaches full retirement age, because
the initial order for alimony was entered in 2016, well after
1
The parties' separation agreement provided that "[t]he
[h]usband shall pay to the [w]ife weekly child support . . . in
the current amount of $443 per week, to be paid bi-weekly
commencing on [November 14, 2008], until the child is
emancipated." The judge made a finding that "[t]he parties
child[] attained age [twenty-three] on January 2, 2016. While
she attended college at the University of Massachusetts, she
left university in November[,] 2014. In July[,] 2015, the child
moved in with her boyfriend. She did not return to live at the
. . . [w]ife's home after that."
3
the effective date of the act. For the reasons that follow, we
affirm.
Background. The following facts are drawn from the judge's
findings, supplemented by uncontested facts from the record.
The husband and the wife were married in 1984. They have one
child of the marriage, who was born on January 2, 1993. During
the marriage, the husband was the primary wage earner and the
wife was responsible for the household and child care. "From
1984 to 1998, she cared for children in her home. In 2000, she
worked for Goodwill Industries as a sales associate for a period
of six months. By the time the parties divorced in 2008, she
had not worked outside the home in eight years." Otherwise, she
did not work outside the home between 2000 and 2008 due to
emotional problems.
The marriage irretrievably broke down in 2008. The judge
entered a judgment of divorce nisi on November 6, 2008, which
incorporated portions of the parties' agreement pertinent to
this appeal. The judge found that the parties had made an equal
division of the marital estate. As part of the agreement, the
wife waived any claims for past and present alimony, but
expressly reserved "her rights to future alimony and/or
support." The agreement further required the husband to pay
child support to the wife of $442 per week until the child's
emancipation. The agreement provided that emancipation could
4
occur at various points in the child's life, but in no event
would emancipation occur later than her twenty-third birthday.
In 2015, as the child's twenty-third birthday approached,
the wife filed a complaint for alimony, as well as a complaint
for modification. The husband moved for summary judgment, which
was allowed as to the complaint for alimony, but with respect to
the complaint for modification, the judge found that a genuine
issue of material fact existed whether there had been a material
change in circumstances, and so denied the husband's motion as
to that complaint.
The case proceeded to trial. At the time of trial, the
wife was fifty-six years old and the husband was fifty-nine
years old. The judge found that after the divorce, the wife
made a conscious decision to stay out of the work force. She
did not want to work outside the home; she felt she needed to
heal after a difficult marriage, and she wanted to focus on
raising the parties' child. By 2012, the wife's anxiety had all
but disappeared, although the only employment she took on
between 2012 and 2016 was a four-month job at a department store
during the holidays. The judge also found that the wife made
only very minimal efforts to secure a job, that she was
ambivalent about finding employment, and that the only thing
preventing her from working in some capacity was her motivation
and drive. Therefore, the judge attributed income to the wife
5
based on a full-time minimum wage job, but found that she still
would be unable to meet her current needs without additional
support from the husband, whom the judge found able to pay
alimony.
The judge concluded that the prospect of the child's
emancipation and the concomitant termination of child support
payments constituted a material change in circumstances that
authorized him to consider whether an order for general term
alimony was appropriate. Based primarily on his findings that
the husband's expenses had decreased, the wife's expenses had
increased, and the husband's total financial circumstances were
far superior to the wife's, the judge concluded that an alimony
award was appropriate. As a result, the judge entered judgment
for the wife, ordering the husband to pay $145 per week in
general term alimony, and further determined that the duration
would be indefinite.2
Discussion. 1. Material change in circumstances. In
reviewing a modification judgment, we examine whether the
factual and legal bases for the decision are in error, or
whether the judge otherwise abused his discretion. Pierce v.
Pierce, 455 Mass. 286, 293 (2009). The husband makes two
2
The original judgment of modification provided that the
alimony payments would continue until the death of either party,
or until the court ordered otherwise. Upon the husband's motion
for reconsideration, the modification judgment was amended to
provide that alimony also would cease should the wife remarry.
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arguments for why there was no material change in circumstances
in this case, (1) that any material changes in circumstances are
wholly attributable to the wife's own neglect, and (2) that the
loss of child support cannot be viewed as a material change.
The husband argues that any change in the wife's financial
position is due to her own conscious decision to remain
unemployed, and her lack of motivation and drive. The husband
relies heavily on dicta from Pagar v. Pagar, 9 Mass. App. Ct. 1,
4 (1980) ("A party has no right to waste an asset deliberately
or ignore a feasible source of income and then request an
increase in support"). However, in Pagar we explained that the
financial impact of the wife's wasted asset (personal use of a
seasonal rental property) was "too speculative to constitute a
determinative factor in assessing the resources of the wife."
Ibid. We similarly conclude in the case at bar that the impact
of the wife's failure to work on the relative financial
positions of the parties is too speculative to require that the
judge attribute such lost income to the wife. Had she been
working since 2012, the wife's income might be higher than the
income attributed to her by the judge, or it might not; her
assets might be higher than those revealed by her current
financial statements, or not.3
3
To the extent the husband believed the wife should have
been working earlier to help provide for the financial needs of
7
Furthermore, the judge took the wife's failure to work into
account by attributing income to her in the form of a minimum
wage job. Taking into account such attributed income, the judge
nevertheless found that the wife still would be unable to meet
her expenses without spousal support. Having considered the
wife's education, training, and employment history, the judge
acted within his discretion in finding that her experience is
sufficient for an entry level clerical position, and not more
lucrative employment. See Emery v. Sturtevant, 91 Mass. App.
Ct. 502, 509 (2017). Compare Zaleski v. Zaleski, 469 Mass. 230,
241 (2014) ("[T]he prospect of future employment, when based on
a past history of commensurate employment followed by a brief
hiatus, may be sufficiently predictable, even in the absence of
an available, specifically identifiable job").
In reaching his ultimate finding, the judge properly
applied G. L. c. 208, § 37, governing a modification prior to
the enactment of the alimony reform act. See Chin v. Merriot,
470 Mass. 527, 534-536 (2015). He considered the current
income, expenses, and assets of the parties, and compared their
positions at the time of trial relative to their positions at
the time of the judgment of divorce. The judge found that the
wife's expenses had increased, and that she was unable to cover
the child, the husband had an opportunity to seek a modification
from the court, but neglected to do so.
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those expenses, even with a minimum wage job, whereas the
husband enjoyed increased assets, decreased expenses, and had
the ability to support the wife. The judge thus concluded that
the wife had carried her burden of demonstrating that a material
change in circumstances existed. Compare Pagar, 9 Mass. App.
Ct. at 6. Other than the argument discussed above, the husband
does not challenge the judge's subsidiary or general findings of
facts or conclusions, and we find nothing clearly erroneous
there.
The husband's remaining argument is that the emancipation
of the couple's only child could not serve as the basis for a
determination that there had been a material change in
circumstances because that event was anticipated by the parties
when they entered their separation agreement. In particular,
the husband maintains that Downey v. Downey, 55 Mass. App. Ct.
812 (2002), holds that a party in the position of the wife has
the right to raise the issue of alimony at the time of a child's
emancipation only when that party explicitly reserved such a
right in the separation agreement. However, in Downey, we
recognized that a general reservation of the right to revisit
alimony, as in this case, "constitutes a tacit acknowledgement
that the real financial circumstances of the wife could well
change upon the child's emancipation." Id. at 817. This view
is in keeping with the general rule that "[c]hanged
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circumstances are those that occur subsequent to the judgment of
divorce or subsequent to a prior modification." Pizzino v.
Miller, 67 Mass. App. Ct. 865, 872 (2006).4
2. The alimony reform act. The husband also contends that
the judge erred by awarding the wife spousal support
indefinitely because the alimony reform act, G. L. c. 208,
§ 49(f), creates a presumption that any order for support be
terminated upon the husband's reaching retirement age. The
husband correctly acknowledges that Chin, 470 Mass. at 529,
precludes retroactive application of § 49(f) of the act. See
Rodman v. Rodman, 470 Mass. 539, 542-546 (2015); Doktor v.
Doktor, 470 Mass. 547, 549-550 (2015). Instead, the husband
argues that because he was under no obligation to pay spousal
support as a result of the original judgment of divorce nisi in
2008, and such an order did not come into existence until the
modified judgment of modification entered in 2016, the award of
alimony is governed by § 49(f) of the act.
4
Contrary to the husband's claim, this is not a case in
which the judge made an order for alimony based simply on the
fact that there was a cessation of child support. Here, the
judge's subsidiary findings that led to his conclusion that a
material change in circumstances had occurred do not even
mention the cessation of child support. Instead, they describe
the changes in income, expenses, assets, and liabilities of each
of the parties. The decision is not based solely on the
emancipation of the child, but also on the factors that are
appropriate to consider in making an award of general term
alimony.
10
In cases where alimony was not contemplated in the judgment
of divorce, an award of alimony thereafter is treated as an
initial award of alimony commencing on that date, not an award
that relates back in time to the date of the divorce. See Snow
v. Snow, 476 Mass. 425, 428-429 (2017) (treating complaints for
modification in such cases as initial complaints for alimony).
However, the controlling precedent here derives instead from
Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997). In Buckley,
as in this case, and unlike in Snow, the parties entered into a
separation agreement, which was incorporated and merged into the
judgment of divorce. In addition, in Buckley, as in this case,
the parties' agreement included a waiver by the wife of any
claims to present and past alimony, but a reservation of the
right to make a claim for alimony in the future. Id. at 720.
We reasoned there that in such circumstances, the parties had
"expressly addressed the issue of alimony" in their separation
agreement (emphasis omitted). Id. at 722. Thus, we concluded
that it was proper to treat the complaint as one for
modification, rather than as an initial complaint for alimony.
Ibid. The same reasoning obtains here. Reserving a right to
seek future alimony implies that alimony will "only be sought if
the parties' circumstances were significantly different from
those extant at the time of the divorce." Id. at 720. It
follows, then, that the alimony award here is a modification of
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the November, 2008, divorce judgment pursuant to G. L. c. 208,
§ 17, and, thus, § 49(f) of the alimony reform act does not
apply.
The husband further argues that he had a reasonable
expectation, based on the separation agreement, that his support
obligations would end upon the emancipation of the parties'
daughter. However, the express reservation of the wife's right
to seek alimony in the future renders any such expectation
unreasonable on its face. The agreement reflects a mutual
understanding that should circumstances change, the wife would
be able to seek spousal support. Had the wife known, at the
time of the separation agreement, that future spousal support
would terminate upon the husband's retirement, she might have
insisted on spousal support initially. This is why the Chin
court held that "an order for alimony in a divorce judgment that
entered prior to [the act becoming effective on] March 1, 2012,
includes, as part of its terms, the standards for modification
existing at the time the judgment entered." Chin, 470 Mass. at
535. The husband's argument would require us to retroactively
apply the act's presumption in favor of a general term alimony
order terminating upon the payor's retirement in violation of
the rule in Chin, supra.
Conclusion. The judge's thoughtful findings of fact and
rationale reflects that he correctly applied the law at every
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stage of this case. His dismissal of the complaint for alimony,
while allowing the complaint for modification to proceed, was
entirely appropriate. His determination that a material change
of circumstances existed was wholly within his discretion. In
sum, the judge's award of alimony for an indefinite term was
grounded in his consideration of the relevant factors based on
the statutory scheme in place at the time of the judgment of
divorce, was amply supported by his detailed findings of fact,
and was an exercise of sound judicial discretion.
Amended judgment affirmed.