Clement v. Owens-Clement

• Decision Date: 16 October 2020
• Docket Number: No. 19-P-1307,19-P-1307
• Citation: 159 N.E.3d 164,98 Mass.App.Ct. 632
• Parties: John Nicholas CLEMENT v. Laurie OWENS-CLEMENT.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 632

159 N.E.3d 164

John Nicholas CLEMENT

v.Laurie OWENS-CLEMENT.

No. 19-P-1307

Appeals Court of Massachusetts, Middlesex..

Argued May 6, 2020.

Decided October 16, 2020.

Julie R. Hess, Lexington, for the husband.

Joseph C. Clermont, Dracut, for the wife.

Present: Vuono, Milkey, & Desmond, JJ.

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 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, 916 N.E.2d 330 (2009). The parties were married on September 9, 2006, and divorced on April 9, 2013. Their separation agreement, which was incorporated into the 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 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 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 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."

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. 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, 6 N.E.3d 1062 (2014), or a later date if alimony is not contemplated in the divorce judgment. See Snow v. Snow, 476 Mass. 425, 425, 428-430, 68 N.E.3d 1138 (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, 679 N.E.2d 596 (1997). See Flor v. Flor, 92 Mass. App. Ct. 360, 365-366, 84 N.E.3d 877 (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, 679 N.E.2d 596,⁵ and they clearly "intended and reached a full and final settlement of their financial affairs."⁶ Id. at 720, 679 N.E.2d 596. 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, 68 N.E.3d 1138 (divorce judgment ordering no alimony would have...