Downey v. Downey, 00-P-138.

• Decision Date: 12 September 2002
• Docket Number: No. 00-P-138.,00-P-138.
• Citation: 774 N.E.2d 1149,55 Mass. App. Ct. 812
• Parties: Carol A. DOWNEY v. Gerald F. DOWNEY.
• Court: Appeals Court of Massachusetts

774 N.E.2d 1149

55 Mass. App. Ct. 812

Carol A. DOWNEY v. Gerald F. DOWNEY.

No. 00-P-138.

Appeals Court of Massachusetts, Middlesex.

Argued March 19, 2002.

Decided September 12, 2002.

Janet H. Pumphrey, Lenox (Russell R. Kadl with her) for Gerald F. Downey.

Richard D. Packenham for Carol A. Downey.

Present: BROWN, RAPOZA, & DOERFER, JJ.

DOERFER, J.

The former husband appeals from a modification judgment of the Probate and Family Court which, among other things, orders him to pay to the former wife alimony in the amount of $275 a week. The husband also appeals from an order of the court directing him to pay to the wife attorney's fees in the amount of $25,000. We affirm the judgment and order.

1. Background. By a judgment of divorce nisi that was entered on September 23, 1982, the parties were ordered to comply with the terms of an agreement that was incorporated and merged in the judgment. The agreement provided, among other things, that the wife would have physical custody of the three minor children of the marriage and that the husband would "pay to the [w]ife the sum of $225 per week for alimony and support." The agreement made no specific provision for the termination of the alimony and child support obligation.¹

The wife filed a first complaint for modification on June 25, 1990, alleging that the husband was making substantially more money than he had been earning at the time of the entry of the divorce judgment, and that the parties' youngest minor child was a full time student. The parties entered into a written agreement, which was incorporated in a temporary order of the court on February 26, 1991, providing that "[c]hild support shall be payable to the plaintiff in the amount of $275 per week," and that the wife "clearly does not waive any claim to alimony and retains the right to raise the issue upon the emancipation of the remaining child...." No judgment was entered on the first complaint for modification.

The present complaint for modification was filed by the wife in November, 1996, and was amended in December, 1997. The amended complaint alleged that the wife "retained the right to raise the issue of alimony upon the emancipation of the remaining child," which would occur in May, 1998, and that the wife "is in need of support for herself." By a temporary order that was issued on August 28, 1998, the husband's child and college support obligations were terminated, but the husband was ordered to pay $300 a week "to meet the present financial needs of the wife." After a trial on the wife's amended complaint for modification, the judge made extensive findings, which we summarize below.

The husband, a college professor, is sixty-two years of age. The wife, a legal secretary, is fifty-eight. In 1982, the husband earned $34,000 and listed his interest in the former marital home as his only major asset. (Although the husband also had a Commonwealth of Massachusetts pension/retirement plan, the parties' agreement made no provision for the division of that asset.) The wife, who returned to work shortly before the divorce, earned $5,340 in 1982. It appears that the wife's primary asset at that time was her interest in the former marital home.

As of February 26, 1991, the husband's gross weekly income from employment was $1,187.50 ($61,750 a year). The husband's financial statement reflected assets worth $164,200, including his one-half interest in the former marital residence (which the husband valued at $87,350) and his contributions to an IRA and the Commonwealth of Massachusetts retirement plan. In February, 1991, the wife's gross weekly income from earnings was $586.54 ($30,500 a year). The value of the wife's assets was $124,000, including her one-half interest in the former marital home (which she valued at $100,000).

At the time of the modification trial, the husband earned $1,584 a week ($82,368 a year) in addition to weekly interest income of $22. His net weekly income amounted to $1,045. The husband's expenses, exclusive of mortgage and property tax payments² and alimony, amounted to $752 a week. The husband's expenses included those of his current wife. The husband valued his assets, including his contributions to the Commonwealth of Massachusetts retirement system,³ at $267,506. At the time of trial, the wife earned $644.24 a week ($33,500 a year), plus $70.92 in weekly interest and dividend income. Her net income, exclusive of alimony, was $764.78 a week. Her weekly expenses, exclusive of attorney's fees and income taxes, amounted to $950. The wife's assets consisted of the balance of the proceeds from the sale of the marital home ($89,006), an IRA ($12,000), and an automobile.

In issuing the modification judgment, the judge set forth a rationale which, in summary form, indicated (a) that she had given due consideration to the parties' agreements (and the wife's retention of the right to seek alimony upon emancipation of the youngest child); (b) that even in the absence of the 1991 agreement, the loss of child support income to the wife in the amount of $14,300 a year constituted a change in circumstances sufficient to warrant consideration of her claim;⁴ (c) that although the wife's income had increased since the divorce, it had never been sufficient to allow her to provide adequately for her own needs; (d) that the wife should not be required to deplete her own assets in order to maintain herself; and (e) that the wife required alimony in the amount of $275 a week to meet her needs and the husband had the ability to make that payment.

On the wife's motion for attorney's fees, costs, and expenses, the judge, after a hearing, ordered the husband to pay the wife $25,000.

2. Modification of alimony. "To be successful in an action to modify a judgment for alimony ..., the [plaintiff] must demonstrate a material change of circumstances since the entry of the earlier judgment." Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). See Bush v. Bush, 402 Mass. 406, 411, 523 N.E.2d 259 (1988).⁵ "The change may be in the needs or the resources of the parties ... or in their respective incomes." Fugere v. Fugere, 24 Mass.App.Ct. 758, 760, 513 N.E.2d 226 (1987). "The determination of the extent and palpability of such change, however, lies in large measure within the discretion of the trial judge." Heistand v. Heistand, 384 Mass. 20, 26, 423 N.E.2d 313 (1981). Fugere v. Fugere, 24 Mass.App.Ct. at 760, 513 N.E.2d 226. Champion v. Champion, 54 Mass.App.Ct. 215, 223, 764 N.E.2d 898 (2002). In acting on a request for modification, the judge, of course, must weigh all relevant circumstances. See Parrish v. Parrish, 30 Mass. App.Ct. 78, 89, 566 N.E.2d 103 (1991). "Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial." Bush v. Bush, 402 Mass. at 411, 523 N.E.2d 259.

The husband argues that the judge erred in awarding alimony to the wife "where the only material change of circumstances was [the loss of child support income upon the] emancipation of the youngest child and where the wife's resources were sufficient for her support." We think the husband reads too narrowly the judge's findings and conclusions. While the judge makes specific reference in her findings to the emancipation of the youngest child and the wife's loss of child support, it is apparent that the judge, in reaching her decision, also had in mind the history of the proceedings and other relevant circumstances of the parties. Indeed, the judge considered the wife's request for alimony against the backdrop of the original judgment and the 1991 stipulation and temporary order. See Huddleston v. Huddleston, 51 Mass.App.Ct. 563, 568, 747 N.E.2d 195 (2001) ("We review the findings to determine whether the judge gave appropriate consideration to the parties' intentions as expressed in their [merged] written agreement ... and to any changes in their circumstances since the last modification"); Dwight v. Dwight, 52 Mass.App. Ct. 739, 744 n. 6, 756 N.E.2d 17 (2001).⁶ The judge also compared carefully the parties' past and present financial positions, which showed that the husband's income (and the value of his assets) had increased since 1982 and 1991 and that the wife was unable to meet her needs despite the increase in her own income.

To the extent the husband argues that the youngest child's emancipation was not unexpected and that a modification cannot be based on an anticipated event, it is enough to say that the parties agreed expressly in 1991 that the wife retained the right to raise the issue of alimony upon the emancipation of the youngest child. See Bercume v. Bercume, 428 Mass. 635, 643-644, 704 N.E.2d 177 (1999) ("A judge who modifies a divorce judgment does not write on a tabula rasa. To the extent possible, and consistent with common sense and justice, the modified judgment should take into account the earlier, expressed desires of the parties"); Huddleston v. Huddleston, 51 Mass.App.Ct. at 567-568, 747 N.E.2d 195. Moreover, we think it is apparent that the parties' reservation of the wife's right to revisit the question of alimony constitutes a tacit acknowledgment that the real financial circumstances of the wife could well change upon the child's emancipation.⁷

Finally, notwithstanding the husband's assertion in his brief that the emancipation of a child "by its very nature implies a decrease of household expenses" (emphasis supplied), the husband, through counsel, acknowledged at oral argument that the emancipation of a child would not automatically compel a reduction in support. In all events, we perceive no sound reason why a child's emancipation, and the resulting loss of child support to a party, may not, in circumstances such as those presented here, be considered by a judge in determining whether there has been a material change in circumstances that would warrant the imposition of (or increase in) an order for...