Keller v. O'Brien

Decision Date24 July 1995
Citation420 Mass. 820,652 N.E.2d 589
Parties, 47 A.L.R.5th 855 Anthony J. KELLER v. Helen M. O'BRIEN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Seymour Weinstein (Barbara S. Liftman with him), Worcester, for plaintiff.

James F. Connors (Teresa Scibelli with him), Worcester, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

This case involves the modification of an alimony judgment pursuant to G.L. c. 208, § 37 (1992 ed.). The parties were divorced on November 5, 1990. The judgment of divorce nisi required the plaintiff to pay the defendant $500 a week in alimony and $300 a week in child support. 1 The judgment did not address whether alimony would terminate on the defendant's remarriage, nor was there any surviving agreement between the parties that addressed this issue.

On May 17, 1992, the defendant remarried. One month later, the plaintiff filed a complaint for modification seeking to terminate his alimony obligation because the defendant's remarriage constituted a material change of circumstances. An evidentiary hearing on the plaintiff's complaint was held in the Probate and Family Court on December 29, 1993. On February 15, 1994, the judge issued a judgment denying the plaintiff relief by dismissing his complaint. The plaintiff filed a timely appeal. 2 We granted his application for direct appellate review.

Facts. We recite the relevant facts found by the probate judge, as well as certain additional facts found by the judge who granted the judgment of divorce; these earlier findings were incorporated into the probate judge's findings of fact. The parties were married for twenty-six years prior to their divorce. During the marriage, the defendant stayed at home to raise their children. The plaintiff was a successful bank executive whose income in 1990, at the time of the divorce, was $158,327.12. In contrast, the defendant, who had completed only two years of college prior to the marriage, had limited employability and was qualified for only unskilled, entry level positions at minimum wage.

After the divorce, the defendant found parttime employment as a medical assistant, with earnings of $90 a week. At the time of the modification hearing, her present spouse earned $28,000 per year, $7,800 of which he paid to a former wife as child support. The defendant's present spouse had a net take-home pay of $184.43 a week. He contributed $300 a month to the defendant's income tax expenses. The defendant had expenses of $588.81 per week, excluding income tax expenses on alimony payments received from the plaintiff. At the time of the modification hearing, the plaintiff's income had increased to more than $180,000. The value of his assets had increased substantially. He had weekly expenses of $1,527, including the $500 weekly alimony obligation.

The judge found that the defendant was still in need of support and that the plaintiff was still able to pay support. Further, the judge concluded that the defendant's remarriage did not amount to a sufficient change in her economic circumstances as would warrant a modification of the divorce judgment. Accordingly, the judge dismissed the plaintiff's complaint for modification. On appeal, the principal issues raised by the plaintiff are whether this court should adopt a rule automatically terminating alimony on the remarriage of the recipient spouse (in the absence of an agreement to the contrary), and whether the probate judge's finding that the defendant's remarriage and other factors did not constitute a material change of circumstances is clearly erroneous.

Discussion. General Laws c. 208, § 37, provides for modification of alimony awards, but does not specifically address whether remarriage requires the termination of alimony payments. 3 Although the statute does not make clear provision for the termination of the obligation to pay alimony on the recipient spouse's remarriage, this court has held that remarriage is prima facie evidence of a material change of circumstance which would warrant termination. See Southworth v. Treadwell, 168 Mass. 511, 513, 47 N.E. 93 (1897) (absent proof that support by new spouse was not adequate to all wife's needs, court could reduce alimony to nominal sum, effectively eliminating it). 4 We decide today whether, where not otherwise provided in the judgment of divorce or in an agreement between the parties, the obligation to pay alimony should terminate automatically on the recipient spouse's remarriage. 5

Many jurisdictions have legislation addressing the effect of a recipient spouse's remarriage on his or her right to alimony. The majority of States have statutes providing that alimony payments automatically terminate on the recipient spouse's remarriage. 6 In those States that do not have statutes that specifically address whether alimony payments should terminate on remarriage of the recipient spouse, statutes generally allow for modification of alimony obligations when changed circumstances warrant. 7 A small number of States have statutes that, like G.L. c. 208, § 37, merely allow for modification and leave to the courts the determination as to when modification is appropriate. 8

In States where legislation does not specifically address the issue, the courts have had to determine by judicial decision whether the recipient spouse's remarriage should terminate the payor spouse's obligation to pay alimony. The majority of those courts have held that the recipient spouse's remarriage does not automatically terminate alimony, but that it creates a strong presumption or a prima facie case that alimony will cease in the absence of extraordinary circumstances. 9 In a few States, the courts have adopted an automatic termination rule. 10

We believe the preferable rule is that, where not otherwise provided in the judgment of divorce or in an agreement between the parties, a recipient spouse's remarriage does not of itself automatically terminate alimony. Instead, the recipient spouse's remarriage makes a prima facie case which requires the court to end alimony, absent proof of some extraordinary circumstances, established by the recipient spouse, warranting its continuation. 11 This approach affirms the general principle that alimony should terminate on the recipient spouse's remarriage, but also allows courts to override this principle on evidence produced showing certain rare and exceptional circumstances. Under this prima facie approach, alimony would survive remarriage only in those rare situations which involve an on-going and legitimate need for continuation of alimony payments. 12 For example, if a remarried recipient spouse becomes a public charge, a judge may order the former spouse to continue making alimony payments. See O'Brien v. O'Brien, 416 Mass. 477, 480, 623 N.E.2d 485 (1993) (court may override separation agreement providing for termination of alimony "only to the extent necessary to prevent a former spouse from becoming a public charge"). Although this may burden the payor spouse, we believe that he or she should not be relieved of the obligation to pay alimony if the result would be to burden the taxpayers of this Commonwealth with support of the remarried recipient spouse. 13

In so holding, we recognize that, except in extraordinary circumstances, it is "illogical and unreasonable" that a spouse should receive support from a current spouse and a former spouse at the same time. See Marquardt v. Marquardt, 396 N.W.2d 753, 754 (S.D.1986); Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985); Bubar v. Plant, 141 Me. 407, 410, 44 A.2d 732 (1945), quoting Cary v. Cary, 112 Conn. 256, 261, 152 A. 302 (1930). See also Glazer v. Silverman, 354 Mass. 177, 180, 236 N.E.2d 199 (1968) (court deemed it inequitable to allow wife to receive support from two former husbands). The new spouse does, after all, assume a duty to support on marriage. See Bushnell v. Bushnell, 393 Mass. 462, 467, 472 N.E.2d 240 (1984) ("duty of support arises out of the existence of a valid marriage"). See also French v. McAnarney, 290 Mass. 544, 546, 195 N.E. 714 (1935). We believe that "the remarriage should serve as an election between the support provided by the alimony award and the legal obligation of support embodied in the new marital relationship." Voyles v. Voyles, 644 P.2d 847, 849 (Alaska 1982). Absent extraordinary circumstances, the former spouse should not be required to pay alimony when another person has assumed the support obligation.

We generally defer to the probate judge's sound discretion in determining whether modification of an alimony judgment is appropriate. Bush v. Bush, 402 Mass. 406, 411, 523 N.E.2d 259 (1988). In this case, the judge found that the defendant's remarriage was not "a sufficient change in her economic circumstances to warrant a modification of the divorce judgment." However, it is not apparent from the record that the defendant satisfied her burden of showing that extraordinary circumstances warranted requiring her former husband to continue paying alimony. The mere fact that, without alimony, the defendant would not be able to live with her second husband in the way in which she lived prior to her marriage to him is not a valid reason to continue alimony. Because we hold that a recipient spouse's remarriage makes a prima facie case which requires the court to terminate alimony unless some extraordinary circumstances are shown to warrant its continuation, we vacate the judgment of dismissal, discharge the report, and remand this case for further proceedings consistent with this opinion.

So ordered.

1 At the time of the decree, a minor child of the parties resided with the defendant. On November 2, 1992, the plaintiff filed a complaint for modification seeking relief from his obligation to pay child support because the child had resided with the plaintiff since November 1, 1992. On December...

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  • Pierce v. Pierce
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 9, 2009
    ...absent "some extraordinary circumstances, established by the recipient spouse, warranting its continuation." Keller v. O'Brien, 420 Mass. 820, 826-827, 652 N.E.2d 589 (1995). In creating this presumption, we reasoned that, on the recipient spouse's remarriage, the new spouse assumes a duty ......
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    ...disposition of this matter, we do not address the constitutional issue that Mr. Mahlowitz asserts. 11. In Keller v. O'Brien, 420 Mass. 820, 821, 652 N.E.2d 589 (1995) (Keller I), the court vacated the Probate Court's dismissal of the husband's complaint for modification, holding for the fir......
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