Stanton-Abbott v. Stanton-Abbott, STANTON-ABBOTT

• Decision Date: 21 June 1977
• Docket Number: STANTON-ABBOTT
• Citation: 363 N.E.2d 1311,372 Mass. 814
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1311

363 N.E.2d 1311

372 Mass. 814

Susan J. STANTON-ABBOTT v. James STANTON-ABBOTT Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1977.

Decided June 21, 1977.

Paul P. Perocchi, Boston, for James Stanton-Abbott.

Frank J. Teague, Wellesley (Richard G. Pichette, Boston, with him), for Susan J. Stanton-Abbott.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN, and LIACOS, JJ.

KAPLAN, Justice.

Judgment of divorce became effective between the parties in June, 1969. Both were then residents of the Commonwealth but were--and they still are--British citizens. The judgment, referring to and incorporating the terms of a separation agreement, provided for the wife a weekly alimony of $50 and other benefits.

By amended petition of October 25, 1974, the wife applied in the Probate Court for Suffolk County, pursuant to G.L. c. 208, § 37 ¹, for a modification of the judgment, among other things to increase the alimony. According to the judge's findings of fact, conditions had changed very materially since the divorce. The wife, who now resided in England, had been severely injured in a car accident in December, 1967, in consequence of which she was now paralyzed from the waist down. Thereby her expenses were increased and she was disabled from securing employment in her former occupation as a secretary. When, in addition, inflation and other factors were considered, her weekly alimony was shown to be grossly inadequate. On the other hand, the husband, still residing in the Commonwealth, had substantial assets in this country and in England, the latter enhanced by a large bequest from his great aunt who died in 1971. He had been enabled to give up working full time in his profession as an architect. His present wife evidently did not require support from him, there were no children of either marriage, and he had no other dependents.

The judgment appealed from, modifying the earlier judgment, increases weekly alimony to an amount which, after deduction of taxes payable by the husband to the United States and the United Kingdom, equals $130 or the equivalent in pounds 'at the conversion rate prevailing according to the Bank of England at the date each said payment is due.' And, commencing with the year 1976, the weekly amount is to be increased semiannually by 50% of any percentage increase in the retail price index, as determined according to the index published by the statistical office of Her Majesty's government, for the six-month period ending on June 30 and December 31 of each successive year. (We omit certain administrative details regarding this adjustment.)

The husband, as appellant, makes no argument in this court that the modified disposition as to alimony is excessive or otherwise improvident. Rather he presses the contention that the judge was without authority to include in the modified judgment the provision regarding adjustment by the retail price index; and he takes similar exception, although with perhaps less ardor, to the provision for converting dollars into pounds. The contention is formal in character. According to the husband, any change in the amount of alimony, whether paid in dollars or pounds (the husband has the election), which results from the application of either formula, would itself constitute a modification of the judgment (as modified), and this, he argues, would be unlawful: It would come about without the usually required demonstration by the party favorably affected that conditions had changed justifying the modification, and without procedural due process for the party adversely affected, who would not have been accorded an opportunity to be heard in opposition. Cf. Coughlin v. Coughlin, 312 Mass. 452, 456--457, 45 N.E.2d 388 (1942).

This argument confuses the application of a contingent or variable clause of a judgment to events as they occur, with the modification of a judgment. Judgments for alimony, child support, and so forth, are typically prospective in their operation. They are often written to accommodate to, and make provision for, future changes in the situation of the parties, such as the attainment by children of college age, or the remarriage of a spouse. So also such judgments may contain clauses relating alimony or other payments, in various ways, to the future earnings or profits or means of the obligated (or benefited) spouse. When time brings about the change of situation of the parties, or trips the contingency, or alters the basis of the calculation, as provided in the judgment, we should not regard the corresponding shift in the rate of payment as a modification of the judgment which requires new justification in another court proceeding. The judgment has remained the same although its variable terms, which were presumably argued and deliberated before they were approved, have produced results which in some sense are new. ² A like analysis applies to the provisions of the judgment that are questioned in the present case, and we conclude that they were not beyond the powers of the probate judge. We add that if, through change of circumstances, these provisions should be thought to have become inappropriate or oppressive, it would be open to the party holding that opinion to apply to the lower court for a further modification of...