Keohane v. Whalen, 050721 MACA, 20-P-123

Docket Nº20-P-123
Judge PanelWolohojian, Englander & Hand, JJ.
Case DateMay 07, 2021
CourtAppeals Court of Massachusetts




No. 20-P-123

Appeals Court of Massachusetts

May 7, 2021

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).


The question before us is whether a judgment in this divorce matter was properly amended, some nine months after it entered, pursuant to Mass. R. Dom. Rel. P. 60 (a) (which is identical to Mass. R. Civ. P. 60 [a]). On February 28, 2019, a Probate and Family Court judge issued a modification to the parties' divorce judgment which provided, among other things, that John Whalen, the former husband, should have paid Kerry Keohane, the former wife, $97, 184 in alimony for the year ending April 30, 2018 (2019 judgment). The husband did not move to amend the 2019 judgment within ten days, nor did he notice an appeal. Nine months later, on December 6, 2019, the judge amended the 2019 judgment by reducing the amount of alimony for 2018 to $92, 684 (December 6 amendment) -- a difference of approximately $4, 500. The wife appeals from the December 6 amendment, arguing that there is no basis under the Rules of Civil Procedure for the judge to have amended the judgment as she did. The husband argues that the amendment was proper pursuant to rule 60 (a). We affirm.


The genesis of the dispute here is the language in the parties' separation agreement (agreement) that governs the calculation of alimony. The parties were married in 1992, and a judgment of divorce nisi entered on December 1, 2010. The 2010 judgment incorporated the agreement, which included a formula for calculating adjustments to alimony. That provision provided in full: "b. The new alimony amount shall be determined by calculating the difference in the Parties' earned incomes and applying the percentage set forth below to that difference, and then calculating the monthly payment amount:

Difference in the Parties' Earned Incomes %
Up to $200, 000 37%
$200, 000-250, 000 36%
$250, 000-300, 000 35%
$300, 000-350, 000 33%
Over $350, 000 33% of $350, 000
"For example, and solely for purposes of illustration, (a) if [Father] earns $325, 000, and [Mother] has no earned income, the alimony would be $325, 000 times 33% = $107, 250 in monthly installments of $8, 937.50; and (b) if [Father] earns $375, 000 and [Mother] has no earned income, the alimony would be $350, 000 times 33% = $115, 000 in monthly installments of $9, 625." In 2016, the husband's income was $264, 812, and the wife's income was below $40, 000 and thus treated as zero. Pursuant to the agreement, 2016 income is used to calculate alimony due from May 2017 through April 2018. Under the above formula, the amount owed should have been calculated as $92, 684, which is thirty-five percent of $264, 812. This calculation is clear from the agreement's example, which simply applies the applicable percentage to the entirety of the income differential. In this instance the income difference fell between $250, 000 and $300, 000, so the applicable percentage was thirty-five percent. The judge's order, however, awarded $97, 184, rather than $92, 684. The judge's rationale, which accompanied the 2019 judgment, stated as follows: "153. Beginning May 1, 2017, per the calculation in the Agreement, and using Father's 2016 income of $264, 812, Father should have paid Mother $97, 184 for the year" (emphasis added). As noted, the husband neither appealed nor sought to amend the 2019 judgment within ten days. Nor did he pay the alimony set in the 2019 judgment. The wife accordingly filed a complaint for contempt. The judge held a hearing in May of 2019, at...

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