Kristian P. Talvitie v. Barbara Clark.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-856
KRISTIAN P. TALVITIE
vs.
BARBARA CLARK.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At issue is whether the former husband's (husband)
complaint for modification was properly dismissed for failure to
state a claim. See Mass. R. Dom. Rel. P. 12 (b) (6). Reviewing
the complaint de novo, see Curtis v. Herb Chambers I-95, Inc.,
458 Mass. 674, 676 (2011), we conclude that it states a claim
for modification such that the complaint should not have been
dismissed.
Where, as here, a defendant has moved to dismiss a
complaint for failure to state a claim, we review the adequacy
of the claims by taking the well-pleaded allegations of the
complaint as true, drawing all reasonable inferences in favor of
the nonmovant. See Bassichis v. Flores, 490 Mass. 143, 148
1 Formerly Barbara Talvitie. We take the parties names as they
appear in the modification complaint.
(2022). Here, the complaint for modification alleged the
following. On January 22, 2019, a judgment entered ordering the
husband to pay alimony to the former wife (wife) according to a
formula that had been agreed-upon by the parties in a separation
agreement. The formula calculated alimony on a graduated scale,
based on the differential between the parties' earned income (a
term defined in the separation agreement); in broad strokes, the
percentage decreased as the income differential increased.
Thus, for example, if the income differential was between one
dollar and $330,000, the wife would receive 32.5% of the
differential as alimony. If the income differential exceeded
$1,000,000, however, the wife would receive 10% of the portion
of the differential exceeding $1,000.00, in addition to the
amounts owed on the lower tiers of income differential. The
alimony and child support provisions of the separation agreement
merged into the divorce judgment.
The complaint alleged that several significant changes in
circumstances had occurred warranting modification of the amount
of alimony owed.2 First, the husband's income had increased
2 The complaint also sought modification of the child support
amount. However, at oral argument, counsel for the husband
appropriately acknowledged that any issue concerning child
support is premature because the husband's obligation to pay
child support has not yet come into play and, indeed, may never
come into play given how the parties structured their separation
agreement.
2
significantly such that it was now greater than at any time
during the parties' marriage, and, inferentially, beyond what
was anticipated when they entered into the separation agreement.
Second, given the significant increase in the husband's income,
the resulting alimony calculation resulted in an amount far
exceeding the wife's needs, and in a lifestyle exceeding what
the parties had enjoyed during the marriage.3 It was also
alleged, upon information and belief, that the wife had recently
received a significant financial inheritance, lessening her need
for alimony. Based on these changed circumstances, the husband
sought modification of the "alimony obligation so that the
amount of support does not exceed the [wife's] needs or the
lifestyle that the parties[] led during their marriage." After
a non-evidentiary hearing,4 the judge allowed the motion to
dismiss on the ground that the husband had agreed to pay alimony
"on his earned income on a sliding percentage arrangement with
no cap. The parties waived rights to inheritance."
3 The complaint also alleges that the judgment would unjustly
enrich the wife. The concept of unjust enrichment is not
ordinarily a basis for modification. However, in the context of
a motion to dismiss, we construe the phrase favorably to the
husband in a colloquial sense to mean that the alimony formula,
given the husband's unanticipated increase in income, results in
alimony exceeding the wife's needs.
4 At the hearing, the parties placed information outside the
complaint before the judge. But, on a rule 12 (b) (6) motion,
the judge is only to consider the allegations of the complaint,
and is not to take evidence or to engage in fact-finding. Nor
do we consider that information here.
3
At the stage of initial pleading, a party need not prove
that he or she is entitled to relief, but rather must merely
allege facts "'plausibly suggesting (not merely consistent
with)' an entitlement to relief." Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007). Where, as in this case, a
party seeks modification of an alimony obligation that has
merged into a divorce judgment, the party must allege facts
plausibly showing a material change in the parties'
circumstances. See Hassey v. Hassey, 85 Mass. App. Ct. 518,
527-528 (2014); G. L. c. 208, § 49 (e) ("Unless the payor and
recipient agree otherwise, general term alimony may be modified
in duration or amount upon a material change of circumstances
warranting modification"). The question at the pleading stage
is not whether the husband will ultimately prevail on his
complaint for modification, but only whether he has sufficiently
alleged facts plausibly suggesting a material change in
circumstances.
The wife suggests, and the judge apparently ruled, that an
increase in income is not a material change in circumstances in
the context of a "self-modifying" alimony formula. This ruling
is not invariably correct, and cannot be determined on the
complaint before us. A significant upward change in income can
serve as the basis for modifying alimony even where -- as
4
here -- the underlying alimony order is "self-modifying." See
Hassey, 85 Mass. App. Ct. at 527-528. Thus, the fact that the
alimony formula here was "self-modifying" in the sense that it
used different percentages to calculate alimony at different
income levels does not, standing alone, insulate the alimony
award from modification. In fact, the parties have not cited --
nor have we found -- any case dismissing a complaint for
modification based on a significant increase in income simply
because the underlying alimony calculation derives from a "self-
modifying" formula. And, indeed, all of the cases relied upon
by the wife involve appeals after a modification trial; they do
not arise from motions to dismiss. See Bercume v. Bercume, 428
Mass. 635 (1999); Schuler v. Schuler, 382 Mass. 366 (1981);
Downey v. Downey, 55 Mass. App. Ct. 812 (2002); Huddleston v.
Huddleston, 51 Mass. App. Ct. 563 (2001); Fugere v. Fugere, 24
Mass. App. Ct. 758 (1987).
Here, the complaint alleges not only a significant increase
in income but also that the resulting alimony payment exceeds
the wife's needs and marital lifestyle. "An alimony award that
exceeds current need, so as to permit accumulation of assets or
savings for the future, may be appropriate only when that award
is made pursuant to G. L. c. 208, § 34" (which is not here the
case). Cooper v. Cooper, 62 Mass. App. Ct. 130, 140 (2004). "A
dependent spouse's support needs, whether at the point of
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initial determination or later, when a modification is sought,
are to be 'measured by the station of the parties -- by what is
required to maintain a standard of living comparable to the one
enjoyed during the marriage.'" Greenberg v. Greenberg, 68 Mass.
App. Ct. 344, 347 (2007), quoting Grubert v. Grubert, 20 Mass.
App. Ct. 811, 819 (1985). For this reason, the allegation of a
significant increase in the husband's income resulting in
alimony exceeding the wife's needs was sufficient to state a
material change in circumstances at the pleading stage.
Moreover, the allegation concerning the wife's recent
inheritance bears on the allegation that the wife's needs had
changed since the divorce judgment. Although the wife points to
the fact that, as part of the division of assets, the husband
waived any entitlement to any future inheritance she might
receive, the concepts of alimony and property division are
“separate and distinct.” Heins v. Ledis, 422 Mass. 477, 482
(1996). The wife's receipt of a post-divorce inheritance is one
factor the judge may consider in assessing whether her needs
have changed such that a modification of alimony is warranted.
See Winternitz v. Winternitz, 19 Mass. App. Ct. 228, 232-233
(1985). See also Frederick v. Frederick, 29 Mass. App. Ct. 329,
334 (1990); Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375
(1985).
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For these reasons, the modification complaint should not
have been dismissed. Our decision should not be read to suggest
that we have a view on the merits of the husband's claim for
modification. We simply rule that he has sufficiently stated a
material change in circumstances such that his claim for
modification should be considered on its merits.
The order dismissing the complaint for modification is
vacated, the judgment on the complaint for modification is
reversed, and the case is remanded for further proceedings
consistent with the memorandum and order of the Appeals Court.
So ordered.
By the Court (Wolohojian,
Neyman & Smyth, JJ.5),
Clerk
Entered: February 28, 2023.
5 The panelists are listed in order of seniority.
7