Clement v. Owens-Clement

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19-P-1307 Appeals Court
JOHN NICHOLAS CLEMENT vs. LAURIE OWENS-CLEMENT.
No. 19-P-1307.
Middlesex. May 6, 2020. - October 16, 2020.
Present: Vuono, Milkey, & Desmond, JJ.
Divorce and Separation, Modification of judgment, Alimony.
Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on May 9, 2012.
A complaint for modification, filed on November 27, 2017,
was heard by Roxann C. Tetreau, J.
Julie R. Hess for the husband.
Joseph C. Clermont for the wife.
VUONO, J. After approximately six years of marriage, John
Nicholas Clement (husband) and Laurie Owens-Clement (wife) were
divorced on April 9, 2013. The divorce judgment incorporated
the portion of the parties' merged separation agreement in which
they waived past and present alimony. Approximately four and
one-half years (fifty-five months) after the divorce, the wife
2
filed a complaint for modification seeking alimony on the basis
of her complete disability and inability to work. A judge of
the Probate and Family Court concluded that deviation from the
Alimony Reform Act's (act) presumptive forty-two month
durational limit was "required in the interests of justice,"
G. L. c. 208, § 49 (b), and issued a modification judgment
requiring the husband to pay general term alimony of $200 per
week until either party's death, the wife's remarriage, or
further order of the court. On appeal, the husband primarily
argues that the judge abused her discretion by deviating from
the durational limits under § 49 (b) and failing to terminate
alimony upon his attainment of "full retirement age," G. L.
c. 208, § 49 (f). The husband also challenges the judge's
consideration of his income from a part-time job acquired after
the divorce in determining the amount of alimony. We agree with
the husband that alimony should terminate when he reaches full
retirement age and remand the case for further proceedings on
this aspect of the judgment.
Background. We summarize the relevant facts found by the
judge, supplementing them with undisputed evidence in the
record, and reserving certain facts for later discussion. See
Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties were
married on September 9, 2006, and divorced on April 9, 2013.
Their separation agreement, which was incorporated into the
3
divorce judgment, provided that "all provisions related to . . .
alimony [shall] merge" with the divorce judgment, rather than
survive and retain independent legal significance. The
separation agreement further provided that "[t]he parties have
been advised of their rights under the Alimony Reform Act . . .
and, based upon their present income and subject to the
[agreement's] merger provisions . . . , each party agrees to
waive any right to receive past or present alimony from the
other party." The separation agreement was silent as to future
alimony, but as we discuss below, the parties stipulated that
they did not waive future alimony.
In November 2017, the wife filed a complaint for
modification seeking alimony from the husband on the basis that
she was "now completely disabled and unable to work," and the
husband was thereafter ordered to pay temporary alimony of $200
per week during the pendency of modification proceedings. In
January 2019, the parties filed a stipulation of uncontested
facts providing, in relevant part, that (1) "[f]uture alimony
was not waived" in the separation agreement; (2) the parties
"enjoyed a middle-class standard of living" during the marriage;
(3) at the time of the divorce, the wife was employed part-time
and the husband was employed full-time; (4) since May 2016, the
wife "has been completely disabled and unable to work, due to
medical issues," (5) the wife underwent surgery for removal of a
4
large brain tumor in July 2016, and continues to suffer from a
seizure disorder, nerve damage to her face, and hearing loss;
(6) the wife requires "multiple medical appointments every
month," she has seen at least fourteen different medical
providers, her "medical issues are severe and on-going," and
"[h]er physicians have determined [that] she is and will be
permanently disabled"; (7) the wife has completely liquidated
her retirement and other financial assets to pay for living
expenses since becoming unable to work; (8) the wife's present
income consists solely of temporary alimony and food stamps ($45
per week), along with financial assistance from a friend who has
been paying her rent; (9) the wife was initially approved to
receive $490 per month in social security disability benefits,
but was later denied due to her receipt of temporary alimony;
and (10) the husband's income is $1,846 per week, the majority
of which is derived from a disability pension that statutorily
limits his ability to earn additional income.
A one-day trial was held on January 16, 2019, at which both
parties (who were represented by counsel) testified. On April
16, 2019, the judge issued a modification judgment requiring the
husband to pay alimony to the wife of $200 per week "until the
death of either party, the remarriage of the [wife], or further
order of the [c]ourt." The modification judgment further
provided that the husband's "obligation to pay alimony shall not
5
be subject to durational limits as set forth in [G. L. c. 208,
§ 49 (b),] as deviation is required in the interests of
justice."
The judge largely adopted the parties' stipulation of
uncontested facts, and made the following additional relevant
findings in support of the modification judgment. The wife "is
unable to provide sufficient support for herself due to her
permanent disability" and because "she has very minimal assets."
Although the husband is also disabled, he retains the ability to
work and can earn up to approximately $40,000 annually without
any reduction in his disability pension income.1 The husband
currently receives nontaxable disability pension income of
$1,173 per week, and earns additional income of $673 per week
from his part-time job as a driving instructor. The judge
credited the wife's financial statement in its entirety, finding
the wife's reported expenses of $533 per week to reflect only
the "basic necessities" of "housing, food, clothing, utilities
and a minimal loan payment on a motor vehicle." In contrast,
the judge found that the husband's weekly expenses included
"entertainment, vacations, lottery tickets and an allowance for
his current spouse's adult child." The judge did not credit the
1 The husband, a former State trooper, was injured during
the course of his employment and receives a disability pension.
6
total amount of weekly expenses reported by the husband because
it included duplicate medical expenses and household expenses
paid by the husband's current spouse. The judge found that the
wife has a need for alimony to support her modest lifestyle and
the husband has the ability to pay alimony of $200 per week
while maintaining his current standard of living.2
The judge also found that, for purposes of calculating the
durational limits under the Act, the parties' marriage was
seventy-one months, thus the presumptive durational limit for
general term alimony was forty-two months (i.e., sixty percent
of the length of the marriage). See G. L. c. 208, § 49 (b) (2)
("Except upon a written finding by the court that deviation
beyond the time limits of this section are required in the
interests of justice, . . . [i]f the length of the marriage is
10 years or less, but more than 5 years, general term alimony
shall continue for not longer than 60 per cent of the number of
months of the marriage"). The judge ultimately concluded that
the wife had "met her burden" by "clearly demonstrat[ing] by a
preponderance of the evidence that . . . deviation beyond the
duration limits is required in the interests of justice."
2 The judge observed that the husband's savings account
balance had actually increased, and he had not incurred any
significant debt, while paying temporary alimony of $200 per
week.
7
Discussion.3 1. Deviation from durational limits. The
husband argues that the judge erred in deviating from the
presumptive forty-two month durational limit under G. L. c. 208,
§ 49 (b), for two reasons. First, he claims that the judge had
no authority to award alimony after the presumptive durational
period had already expired; and second, he argues that the wife
failed to meet her burden of proving that deviation was required
in the "interests of justice." G. L. c. 208, § 49 (b).
We address each argument in turn, but first we must
determine when the act's durational limit clock began to run.
3 As an initial matter, the husband contends that the judge
failed to make findings regarding the parties' intent to waive
future alimony, as required by McManus v. McManus, 87 Mass. App.
Ct. 864 (2015). However, nothing in the trial transcript or the
record appendix indicates that the husband raised this argument
below, and the parties agreed in their stipulation of
uncontested facts that "[f]uture alimony was not waived." See
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An
issue not raised or argued below may not be argued for the first
time on appeal" [citation omitted]). Even if this argument had
been properly raised below, which we do not suggest, the case
relied on by the husband is distinguishable. McManus involved a
surviving alimony provision that was silent as to future
alimony; thus, the trial court judge was required to ascertain
the parties' intent with respect to future alimony because
surviving provisions are generally not modifiable. See McManus,
supra at 864-865, 867, 870 n.8 (concluding that dispute of
material fact regarding parties' intent rendered summary
judgment inappropriate and remanding matter to trial court for
parol evidence). See also Lalchandani v. Roddy, 86 Mass. App.
Ct. 819, 822 (2015) ("surviving, nonmerged alimony provisions
are not modifiable"). Here, in contrast, the alimony provision
did not survive; instead, it merged with the divorce judgment
and was judicially modifiable upon a material change in
circumstances. See McManus, supra at 865 n.1.
8
The presumptive durational period under § 49 (b) commences on
the date of the initial general term alimony award, which is
usually the date of the divorce judgment, see Holmes v. Holmes,
467 Mass. 653, 659 (2014), or a later date if alimony is not
contemplated in the divorce judgment. See Snow v. Snow, 476
Mass. 425, 425, 428-430 (2017).4 Thus we must decide whether the
April 9, 2013 divorce judgment or the April 16, 2019
modification judgment was the initial alimony award. The
husband contends that the divorce judgment, although not
requiring him to pay alimony, was the initial award for purposes
of starting the durational limit clock. We agree.
We have held that in cases where the divorce judgment
"incorporated and merged with a stipulation of the parties which
expressly addressed the issue of alimony" by waiving past and
present alimony and reserving the right to seek future alimony,
the divorce judgment is the initial alimony award, and any
subsequent request for alimony should be treated as a complaint
for modification. Buckley v. Buckley, 42 Mass. App. Ct. 716,
722 (1997). See Flor v. Flor, 92 Mass. App. Ct. 360, 365-366
4 In Snow, the wife's postdivorce complaint for alimony was
treated as an initial complaint, rather than a complaint for
modification, because she "did not pursue her request for
maintenance [in the divorce] and the judge . . . made no
findings based on the statutory factors in awarding no
maintenance" in the divorce judgment. 476 Mass. at 429.
9
(2017). Here, as in Buckley, the parties contemplated but
expressly waived past and present alimony in their separation
agreement, essentially providing for a "zero dollar alimony
'award,'" Buckley, supra at 721 n.5,5 and they clearly "intended
and reached a full and final settlement of their financial
affairs."6 Id. at 720. See Flor, supra. "By incorporating and
merging into the court's divorce [judgment] the agreement
containing this alimony provision, the trial judge passed on and
approved the parties' disposition of the issue." Buckley,
supra. Cf. Snow, supra at 429 n.5 (divorce judgment ordering no
alimony would have constituted initial alimony award "if the
[divorce] judge had considered each of the statutory factors and
determined based on the circumstances that no maintenance award
was appropriate," because "the spouse who sought alimony would
have had a full and fair adjudication on the merits of the claim
5 We "construe[d] the subject language in the Buckleys'
stipulation as being a 'provision' for alimony which allocates a
zero dollar alimony 'award.'" Buckley, 42 Mass. App. Ct. at 721
n.5. "This distinguishes the matter at hand from [other cases],
where there is neither 'provision' for, 'award' of, nor
'mention' of alimony in the divorce decree." Id.
6 The separation agreement provided that "[t]he purpose of
this [a]greement [is] . . . [t]o determine what should be paid
to the husband or the wife for his or her support and
maintenance in consideration of the provisions of [G. L. c. 208,
§ 34] . . . . The parties desire by this [a]greement to confirm
their separation and to settle between them[] all questions
pertaining to . . . the support and maintenance of the parties."
10
for alimony"). We therefore conclude that the April 9, 2013
divorce judgment incorporating and merging the parties' alimony
provision within their separation agreement was the initial
alimony award for purposes of starting the durational limit
clock under § 49 (b).
We now return to the husband's argument that the judge
lacked statutory authority to grant deviation on a complaint for
modification filed thirteen months after the presumptive forty-
two month durational period had already expired. According to
the husband, the act permits a judge to deviate from the
presumptive durational limits only when establishing an initial
award or modifying an "existing" award. See G. L. c. 208,
§§ 49 (f), 53 (e). Therefore, the husband argues that, unless
an alimony award is extended before its presumptive termination
date under § 49 (b), it terminates by operation of law and there
is no longer an "existing" alimony award for the judge to
extend. We conclude otherwise.
The resolution of this issue "involves a question of
statutory interpretation, which we review de novo." Duff–
Kareores v. Kareores, 474 Mass. 528, 533 (2016). "Although we
look first to the plain language of the provision at issue to
ascertain the intent [of] the Legislature, we consider also
other sections of the statute, and examine the pertinent
language in the context of the entire statute." Id., quoting
11
Chin v. Merriot, 470 Mass. 527, 532 (2015). Section 49 (b)
provides that, "[e]xcept upon a written finding by the court
that deviation beyond the time limits of this section are
required in the interests of justice, if the length of the
marriage is 20 years or less, general term alimony shall
terminate no later than a date certain under the [act's]
durational limits." G. L. c. 208, § 49 (b). With respect to
modification, § 49 (e) provides that "general term alimony may
be modified in duration or amount upon a material change of
circumstances warranting modification. Modification may be
permanent, indefinite or for a finite duration, as may be
appropriate." G. L. c. 208, § 49 (e). Section 53 (e) further
provides that "in modifying an existing order, the court may
deviate from duration and amount limits for general term alimony
. . . upon written findings that deviation is necessary"
(emphasis added). G. L. c. 208, § 53 (e).
Another statutory provision relating to a judge's authority
to modify a prior alimony award is set forth in G. L. c. 208,
§ 37, which was left unchanged by the act and provides, in
relevant part, that "[a]fter a judgment for alimony . . . the
court may, from time to time, upon the action for modification
of either party, revise and alter its judgment relative to the
amount of such alimony . . . and the payment thereof, and may
make any judgment relative thereto which it might have made in
12
the original action." See Balistreri v. Balistreri, 93 Mass.
App. Ct. 515, 519 n.14 (2018) ("Even within the field of
alimony, the act did not result in a wholesale displacement of
our existing law"). Neither § 49 (e), nor § 37, impose a time
limit on a judge's authority to modify the duration of a prior
alimony award. Had the legislature intended to impose such a
time limit, it would have included express language to that
effect. See Chin, 470 Mass. at 537, quoting Commissioner of
Correction v. Superior Court Dep't of the Trial Court for the
County of Worcester, 446 Mass. 123, 126 (2006) (court will not
"read into the statute a provision which the Legislature did not
see fit to put there").
The husband urges us to construe the act as implicitly
prohibiting the extension of alimony orders that have terminated
by operation of law under § 49 (b), claiming that such a
construction is consistent with the Legislature's intent to
provide parties with "a clear expectation of a finite period of
time alimony will be paid and/or received." Letter of December
28, 2010, from Chairs of the Alimony Task Force to Chairs of the
Joint Committee on the Judiciary. The Legislature has, however,
elsewhere expressed its "intent that the durational limits apply
to preexisting alimony awards" established prior to the act.
George v. George, 476 Mass. 65, 70-71 (2016), citing St. 2011,
c. 124, § 4 (b) (uncodified section). In uncodified § 5 of St.
13
2011, c. 124, the Legislature created a "phase in" structure for
modification complaints seeking termination of preexisting
alimony awards solely on the basis of the new durational limits.
See letter of December 28, 2010, from Chairs of the Alimony Task
Force to Chairs of the Joint Committee on the Judiciary ("'phase
in' structure" intended to "prevent an additional burden on the
courts"). The Legislature thus anticipated that many
preexisting alimony awards already exceeded the act's durational
limits. However, there is no indication in either the codified
or uncodified sections of the act that the Legislature intended
for such preexisting awards to automatically terminate by
operation of law simply because they already exceeded the
presumptive durational limits.7 Had the Legislature so intended,
there would have been no need to create a "phase in" schedule to
prevent the courts from being overwhelmed with modification
complaints, as all preexisting awards that already exceeded the
durational limits would have automatically terminated on the
act's effective date. See Duff–Kareores, 474 Mass. at 538
(appellate court should construe statute in manner that avoids
7 Uncodified § 4 (b) of St. 2011, c. 124, provides that
"[e]xisting alimony awards which exceed the durational limits
established in [G. L. c. 208, § 49,] shall be modified upon a
complaint for modification without additional material change of
circumstance, unless the court finds that deviation from the
durational limits is warranted."
14
illogical result). See also Voorhis v. Relle, 97 Mass. App. Ct.
46, 48, 52-53 (2020) (no indication that wife's counterclaim
seeking deviation was denied on basis that it was filed after
presumptive durational period had already expired).
Moreover, the durational limits of § 49 (b) "merely create
a presumption of termination that a recipient spouse . . . can
rebut." Van Arsdale v. Van Arsdale, 477 Mass. 218, 222 (2017).
This presumption is in contrast to § 49 (a), which strictly
requires alimony to "terminate upon the remarriage of the
recipient or the death of either spouse," with no opportunity
for rebuttal by the recipient spouse. G. L. c. 208, § 49 (a).
Accordingly, viewing the act as a whole (including its
uncodified provisions), see Duff–Kareores, 474 Mass. at 534, it
is reasonable to infer that the Legislature did not intend to
prohibit a judge from deviating from the act's presumptive
durational limits simply because the modification complaint was
filed after the presumptive durational period had expired.
Thus, we conclude that the term "existing order" as it is used
in § 53 (e) merely refers to a prior alimony award. See Rodman
v. Rodman, 470 Mass. 539, 541 (2015), quoting Mailhot v.
Travelers Ins. Co., 375 Mass. 342, 348 (1978) ("Where a literal
reading would 'lead to an awkward and even intolerable result,'
we will eschew it 'for a more liberal or more encompassing
approach'"). Insofar as the husband argues that our reading
15
unfairly permits a dependent spouse of a short-term marriage to
seek alimony indefinitely, we note that the recipient still
bears the burden of establishing that deviation is required in
"the interests of justice." George, 476 Mass. at 70, quoting
G. L. c. 208, § 49 (b). This is not a hollow test, nor is it an
easy burden to meet, see, e.g., Van Arsdale, 477 Mass. at 223
(affirming judge's decision to decline to deviate from
durational limits); Voorhis, 97 Mass. App. Ct. at 53 (same), and
it requires the judge to consider both parties' circumstances at
the time that deviation is sought. See George, supra.
Moreover, in determining whether the deviation is warranted, a
judge may consider "any . . . factor that the court deems
relevant and material." G. L. c. 208, § 53 (e) (9).
Accordingly, there is nothing prohibiting a judge from
considering the amount of time that has elapsed between the
presumptive durational limit termination date and the date the
recipient filed the complaint, the reason (if any) for the
recipient's delay in filing, and whether the delay has
prejudiced the payor spouse. Cf. Talbot v. Talbot, 13 Mass. App
Ct. 456, 459-460 (1982) ("We recognize that it is most
troublesome to impose additional burdens on a husband long after
he reasonably believed he was free of obligation to his former
wife . . . . [T]he judge may consider the consequences, if any,
of the delay in the wife's claim, such as the obligations, if
16
any, incurred by the husband prior to the wife's complaint, in
the reasonable belief that because of the passage of time he
would not be further obligated on her account"). Here, the
amount of time that elapsed between the presumptive termination
date and the wife's complaint for modification was minimal, the
wife sought alimony as a last resort after depleting her modest
assets, and there is no indication that the husband was
prejudiced by the delay -- especially in light of the fact that
he paid no alimony to the wife during the entire presumptive
durational period.
The husband next contends that the wife failed to meet her
burden of showing, by a preponderance of the evidence, that
deviation from the presumptive durational limit was required in
the "interests of justice." George, 476 Mass. at 70, quoting
G. L. c. 208, § 49 (b).
We review the modification of alimony, and a judge's
decision to deviate from the act's presumptive durational
limits, for abuse of discretion. See Van Arsdale, 477 Mass. at
223.8 "[W]hen disputes of fact arise the judge must make written
"[A] judge's discretionary decision constitutes an abuse
8
of discretion where we conclude the judge made 'a clear error of
judgment in weighing' the factors relevant to the decision such
that the decision falls outside the range of reasonable
alternatives" (citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
17
findings based on evidence to determine whether the 'interests
of justice' require alimony payments to continue beyond the
durational limits of the act. The recipient spouse bears the
burden of proving by a preponderance of the evidence that
deviation beyond the presumptive termination date is 'required
in the interests of justice.'" George, 476 Mass. at 70, quoting
G. L. c. 208, § 49 (b). "Further, a judge should evaluate the
circumstances of the parties in the here and now; that is, as
they exist at the time the deviation is sought, rather than the
situation as it existed at the time of divorce." George, supra.
"The statutory factors to be considered in connection with
deviation beyond the durational limits are set forth in G. L.
c. 208, § 53 (e)." Voorhis, 97 Mass. App. Ct. at 50.
The judge in this case, properly focusing on the "here and
now," George, 476 Mass. at 70, found that deviation beyond the
presumptive forty-two month durational limit was required in the
"interests of justice," G. L. c. 208, § 49 (b), due to the
wife's total disability caused by her severe, ongoing health
issues, and her present inability provide for her own support
resulting from her inability to work and lack of assets. See
G. L. c. 208, § 53 (e) ("Grounds for deviation may include: (1)
advanced age; chronic illness; or unusual health circumstances
of either party; . . . (8) a party's inability to provide for
that party's own support by reason of that party's deficiency of
18
property, maintenance or employment opportunity; and (9) upon
written findings, any other factor that the court deems relevant
and material"). As we have noted, the facts upon which the
judge relied were largely undisputed. Given the ample evidence
supporting the judge's determination that the wife is unable to
provide for her own support, and the modest amount of alimony
awarded (covering only the wife's "basic necessities"9), we
discern no abuse of discretion in the judge's decision to
deviate from the presumptive durational limits of § 49 (b). Cf.
Van Arsdale, 477 Mass. at 223 (deviation not warranted where
judge found that wife's "health did not preclude her from
employment; that she had two residences, one of which could be
rented out; that she had over $170,000 in cash and more than $1
million in assets; and that her lifestyle had not been
negatively impacted since the 2006 modification"); Voorhis, 97
Mass. App. Ct. at 52 (deviation not warranted where judge found
that wife "was working full time, derived income from the rental
of a parking space, and was the beneficiary of a trust").10
9 The judge awarded alimony consistent with the wife's
current "modest" lifestyle, rather than with the middle-class
lifestyle enjoyed by the parties during the marriage. See
Voorhis, 97 Mass. App. Ct. at 53, quoting George, 476 Mass. at
70 ("When considering a deviation from the durational limits of
alimony, the analysis is in the 'here and now,' not the marital
lifestyle at the time of the divorce").
10To the extent the husband argues that the judge should
have considered the wife's eligibility for government benefits
19
Moreover, if there is a material change in circumstance in the
future, either party may file a complaint for modification to
modify or terminate the alimony award.
2. Full retirement age.11 The husband next argues that the
judge erred in failing to terminate alimony upon the husband's
attainment of "full retirement age," under G. L. c. 208,
§ 49 (f). We agree.
Section 49 (f) provides that, "[o]nce issued, general term
alimony orders shall terminate upon the payor attaining the full
retirement age." G. L. c. 208, § 49 (f). A judge "may grant a
recipient an extension of an existing alimony order" beyond the
payor's full retirement age "for good cause shown; provided,
however, that in granting an extension, the court shall enter
when determining whether deviation was required in the
"interests of justice," we note that public policy favors
ordering alimony to prevent the recipient spouse from becoming a
public charge. See, e.g., Knox v. Remick, 371 Mass. 433, 437
(1976) ("Where . . . the Probate Court judge determines that one
spouse is or will become a public charge, the judge may order
support pursuant to his statutory authority, not specifically
enforcing the [surviving] separation agreement to the point
where the separation agreement would be used to impose support
obligations on the taxpayers of the Commonwealth").
11 "Full retirement age," is defined as "the payor's normal
retirement age to be eligible to receive full retirement
benefits under the United States Old Age, Survivors, and
Disability Insurance program; but shall not mean 'early
retirement age,' as defined under 42 U.S.C. 416, if early
retirement is available to the payor or maximum benefit age if
additional benefits are available as a result of delayed
retirement." G. L. c. 208, § 48.
20
written findings of: (i) a material change of circumstance that
occurred after entry of the alimony judgment; and (ii) reasons
for the extension that are supported by clear and convincing
evidence." G. L. c. 208, § 49 (f) (2). By the plain language
of the act, a judge modifying a prior alimony order is not
permitted to extend alimony beyond the payor's attainment of
full retirement age unless the judge has made specific findings
pursuant to § 49 (f) (2). See Holmes, 467 Mass. at 658, quoting
G. L. c. 208, § 49 (f) ("under the reform act, even where a
judge orders that alimony be paid for the presumptive maximum
duration, the actual duration of alimony may be less, because
[g]eneral term alimony shall . . . presumptively terminate when
the payor spouse attains the 'full retirement age'" [quotation
omitted]).
Here, the judge did not make any express findings pursuant
to § 49 (f) (2), there is no indication that the issue of
extending alimony beyond the husband's full retirement age was
addressed at trial, and the modification judgment was silent as
to retirement. Accordingly, to the extent that the judge did
not order alimony to terminate once the husband reaches full
retirement age, this was error. The modification judgment must
therefore be amended to include the husband's attainment of full
retirement age as an event triggering the termination of
alimony. Should the wife seek an extension of alimony beyond
21
that date, she will be required to file a complaint for
modification and make the requisite showing under § 49 (f) (2).
3. Consideration of income from part-time job acquired
after divorce. Lastly, the husband contends the judge
improperly considered, for purposes of calculating alimony, the
income that he earns from his current part-time job, which he
acquired after the divorce. See G. L. c. 208, § 54 (b) ("Income
from a second job or overtime work shall be presumed immaterial
to alimony modification if: (1) a party works more than a
single full-time equivalent position; and (2) the second job or
overtime began after entry of the initial order"). However, the
husband's current part-time job is his only job; he does not
have another "single full-time equivalent position." Id.
Moreover, at the time of the divorce, the husband worked full-
time as a Massachusetts State trooper (earning $1,450 per week)
and earned regular overtime (earning an additional $1,000 per
week). Section 54 (b)'s exclusion of income from a second job
acquired post-divorce is clearly intended to avoid penalizing a
payor who obtains a second job to meet his existing alimony
obligation, and such circumstances are not present here.
Moreover, § 54 (b) merely creates a rebuttable presumption that
income from a second or part-time job is irrelevant to alimony.
Accordingly, we discern no abuse of discretion or other error in
22
the judge's consideration of the husband's income from his part-
time employment.12
Conclusion. Paragraph numbered one of the judgment dated
April 16, 2019, is vacated, and shall be replaced by a new
paragraph numbered one as follows: The Defendant shall pay
alimony to the Plaintiff in the amount of $200.00 per week until
the death of either party, the remarriage of the Plaintiff, the
Defendant's attainment of "full retirement age" as defined in
G. L. c. 208, § 48, whichever occurs first, unless otherwise
12The husband also argues that the judge engaged in
inequitable double dipping by considering his disability pension
as a stream of income for purposes of calculating alimony. See
Croak v. Bergeron, 67 Mass. App. Ct. 750, 758-759 (2006)
("'double dipping' [is used] to describe the seeming injustice
that occurs when property is awarded to one spouse in an
equitable distribution of marital assets and is then also
considered as a source of income for purposes of imposing
support obligations" [citation omitted]). However, we need not
resolve the double-dipping issue, as the husband earns $673 per
week exclusive of his disability pension and the $200 alimony
award is still within the act's amount guidelines (as it neither
exceeds the wife's needs nor thirty to thirty-five percent of
the difference between the husband's income of $673 and the
wife's income of $45). See G. L. c. 208, § 53 (b). We are
likewise unpersuaded by the husband's contention that the judge
improperly considered his new wife's income when calculating
alimony, in contravention of G. L. c. 208, § 54 (a). Although
the judge found that the husband's new wife earns approximately
$60,000 to $65,000 annually, and the new wife pays for some of
the household expenses reported on the husband's financial
statement, the judge used only the husband's income to calculate
alimony. To the extent that we do not address the husband's
other contentions, they "have not been overlooked. We find
nothing in them that requires discussion." Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
23
ordered by the court. As so modified, the judgment is
affirmed.13
So ordered.
13 The wife's request for appellate attorney's fees is
denied.