Opinion
10-P-1770
02-24-2012
DEBORAH L. NUTTING v. LEE W. WERLING.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Deborah Nutting (wife) and Lee Werling (husband) were divorced by judgment nisi entered on July 28, 2006. Following the divorce, the husband filed motions to modify his alimony obligation and to revoke a qualified domestic relations order (QDRO) entered after the judgment nisi. Citing the parties' changed financial circumstances and inconsistencies between the QDRO and the separation agreement, a judge of the Probate and Family Court allowed both motions and a modification judgment entered accordingly. The wife appeals that portion of the judgment revoking and amending the QDRO is vacated and the original QDRO is reinstated. We also vacate the other portions of the judgment related to alimony and remand the matter on the issue of modification of alimony for further consideration of the statutory factors enumerated in G. L. c. 208, § 34.
Background. The judgment of divorce incorporated and merged the parties separation agreement. The agreement provided that the wife would receive $125 per week in alimony until the death of either party or until she remarried. At the time of the divorce, the husband was receiving workers' compensation benefits as a result of a 2005 shoulder injury. The agreement provided that those benefits were to be considered as income and a basis on which either party could seek modification of the husband's alimony obligation.
In August of 2008, approximately two years after entry of the judgment nisi, the husband's workers' compensation benefits terminated. Thereafter, his sole remaining income came from Veteran's Administration (VA) benefits of $243 per month. Accordingly, on December 24, 2008, he filed a complaint for modification seeking termination of his alimony obligation.
Later, on April 21, 2009, the State Board of Retirement (board) determined that the husband was permanently disabled as a result of the injury underlying the workers' compensation benefits he had been receiving and awarded him accidental disability retirement benefits retroactive to February 11, 2008. As a result, in May, 2009, the husband received a lump sum payment totaling $33,121.85. Under the QDRO, the wife is entitled to a portion of the husband's retirement benefits. Accordingly, the husband received $30,816.04 of the lump sum, the board paid the wife $2,305.81 directly, and the husband paid her an additional $5,354.53. Arguing that the QDRO was inconsistent with the parties' separation agreement and that he had not had an opportunity to contest it before its entry, the husband moved to revoke the QDRO on February 17, 2010.
After a trial in which both the alimony and the QDRO issues were explored, a judgment entered on February 22, 2010, terminating the husband's alimony obligation effective February 11, 2008, revoking the QDRO, and substituting an amended QDRO in its place.
The qualified domestic relations order. At trial, the husband challenged two aspects of the QDRO. First, he argued that the separation agreement contemplated division only of regular retirement benefits that had accrued at the time of the divorce, not disability retirement benefits awarded thereafter. Second, he argued that, even if the QDRO applied to disability retirement benefits, the spousal share of those benefits is normally calculated pursuant to a formula under which the spouse receives the amount he or she would have received from a superannuation pension, and the enhanced benefits flowing from the disability are paid to the retiree alone.
The judge credited the testimony of the husband's expert to the effect that if the QDRO included the superannuation formula, the wife would receive $517.20 per month, not the $1,518 for which the QDRO provides.
An action to modify a QDRO on grounds of 'mistake, inadvertence, surprise, or excusable neglect' may be brought under Mass.R.Dom.P. 60(b)(1) for postjudgment relief. Claims under rule 60(b)(1) must be made within one year of the judgment. Mass.R.Dom.P. Rule 60(b). Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 492-493 (2006). The QDRO here was approved in February, 2007, but the husband waited until February 22, 2010, to contest it, long after the one-year limit.
Mass.R.Dom.P. 60 is identical to Mass.R.Civ.P. 60, 365 Mass. 828 (1974), and as such analysis by courts regarding the latter applies equally to the former. See Tompkins, 65 Mass. App. Ct. at 492 n.8.
To circumvent the time limit, the husband claims that his motion to modify the QDRO was brought pursuant to rule 60(b)(6), a catch-all provision that allows a party to contest a judgment for 'any . . . reason [other than one specified in other subparagraphs of rule 60] justifying relief from the operation of the judgment.' Motions under rule 60(b)(6) may be brought 'within a reasonable time.' However, 'if a party moves for relief from judgment under rule 60(b) for reasons of mistake, inadvertence, or excusable neglect, the one-year limitation period that applies to such motions cannot be extended by categorizing the motion as one brought under subparagraph (6) of the rule . . . .' Keenan v. Maybrook, Inc., 40 Mass. App. Ct. 144, 144-145 (1996). See Sahin v. Sahin, 435 Mass. 396, 406-407 (2001), quoting from Parrell v. Keenan, 389 Mass. 809, 814-815 (1983) ('[T]o prevail under rule 60 [b][6], a party must show that there is a reason to justify the relief, and also that the reason is not within the grounds set forth in rule 60[b][1]-[5]').
Though neither the husband's motion to revoke the QDRO nor the judge's decision allowing that motion specifies the subparagraph under which the motion was brought, both clearly refer to mistakes in the QDRO as the basis for revocation, as does the husband's argument on appeal. The substantive basis for seeking relief from judgment, not the presence or absence of labels in the motion or decision, determines the applicable subparagraph of rule 60. Because the husband's rule 60(b) motion was based on mistakes in the QDRO and was filed well after the one-year limit in rule 60(b)(1), the motion was time barred.
In his brief, the husband claims that he did not receive notice of the hearing on the original QDRO and therefore 'never had the opportunity to review the [QDRO] or appear before the Court to argue its inconsistencies with the Divorce Agreement' before the QDRO was entered. Relying on Chavoor v. Lewis, 383 Mass. 801, 806 (1981), and Ward v. Marcella, 74 Mass. App. Ct. 1109, 1109 (2009), he argues that lack of notice removes the case from rule 60(b)(1) and deposits it in subparagraph (b)(6). The record, however, does not support the argument. It does contain two instances in which he argued that he 'did not become aware of the mistake in the terms [of the QDRO] until he went on disability in May 2009,' but none in which he argued lack of notice. Significantly, the judge's rationale for the judgment, does not indicate that the notice issue was raised. Moreover, despite the husband's claim that 'neither [he] nor a representative on his behalf appeared on the date of the hearing' on the QDRO, RA 19, the docket reflects a notice of appearance of the husband as well as a submission of his financial statement on February 20, 2007, the date the judge approved the QDRO. Because the husband did not raise this argument below, we do not reach it here. See, e.g., Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 70 (1994) ('Ordinarily, a party is not entitled to present an argument on appeal on an issue not presented in the court below '); White v. White, 40 Mass. App. Ct. 132, 133 (1996).
Alimony termination. '[A] judge enjoys considerable discretion in fashioning an appropriate modification judgment, and . . . the judgment may not be reversed in the absence of an abuse of discretion.' Pierce v. Pierce, 455 Mass. 286, 293 (2009). 'To be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.' Ibid., quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). The husband demonstrated such a change here. The judge found that since February 11, 2008, the husband has received approximately $1,997.48 per month as his portion of the accidental disability retirement benefits and $243 per month in VA disability benefits. The wife has received $1,514.86 per month from the husband's retirement benefits. Since May, 2008, she has also received Social Security benefits of $797 per month. 'Consequently,' the judge found, 'the Wife has effectively had more income on a monthly basis than the husband since February 11, 2008,' and thus 'the Husband's alimony obligation to the Wife should be terminated retroactive to February 11, 2008.' On those facts, the judge concluded that continuing the husband's alimony obligation would be 'clearly inequitable.'
The judge found that the total benefit was $3,512.34 monthly and that the wife received $1,514.86 of that sum. That left $1,997.48 for the husband.
With alimony, the wife was receiving total income of $2,876.50 monthly, far greater than the husband's net of $1,702.97. Even after termination of alimony, the wife will receive $2,339 per month, more than the husband's $2,240.47.
However, in determining whether to modify alimony based on a change of circumstances, the court must consider the same factors used in an initial award of alimony under G. L. c. 208, § 34. Pierce, 455 Mass. at 295, citing G. L. c. 208, § 37. Section 34 G. L. c. 208 calls for consideration of 'the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.' Utilizing these factors, the wife contends that because she is unemployed and totally disabled, the husband, who is only partially disabled, should supplement his income with non-physical work and that her alimony should not be terminated. She also points to the provision in the separation agreement awarding her only twenty percent of the husband's military pension if and when it is ultimately granted.
In addition, the wife relies on C.D.L. v. M.M.L., 72 Mass. App. Ct. 146 (2008), to argue that the husband should diminish his lifestyle or pursue additional employment before alimony is reduced. In C.D.L. v. M.M.L., however, the alimony determination served to equalize the respective parties' lifestyles where the husband had a profitable legal career. Id. There is no evidence here of a disparity in the parties' lifestyles or dramatic untapped income potential on the part of the husband. Compare id. at 154-157. In addition, the wife cites Huddleston v. Huddleston, 51 Mass. App. Ct. 563 (2001), in arguing that the husband should have anticipated in the separation agreement the effect of his preexisting disability on his finances and he should be precluded from obtaining termination of alimony on any basis other than those enumerated in the agreement: the death of either party or the wife's remarriage. However, Huddleston holds that the intent of the parties evinced in a merged separation agreement should govern '[t]o the extent possible, and consistent with common sense and justice . . . .' Id. at 570, quoting from Bercume v. Bercume, 42 Mass. 635, 644 (1999). Here the judge found, in effect, that common sense and justice required the adjustments he made to the parties' financial relations.
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Although the judge's order reveals a clear understanding that 'the statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay,' Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986), we cannot determine whether the judge considered each of the G. L. c. 208, 34, factors in reaching his ultimate conclusion. Even if it appears equitable in a general sense, 'the apportionment of assets [must] flow[] rationally from the judge's findings under § 34.' Denninger v. Denninger, 34 Mass. App. Ct. 429, 431 (1993). We therefore remand the matter for additional findings consistent with G. L. c. 208, §§ 34, 37.
On remand, we also draw attention to one aspect of the judgment which, if left in place after consideration of the statutory factors, will require clarification. As noted, the judgment terminated the husband's alimony obligation effective February 11, 2008. The wife did not begin receiving Social Security benefits until May, 2008, and it was only at that point that her monthly income, alimony excluded, began to exceed the husband's. Because the wife's receipt of greater income than the husband is the basis for the judgment, it is unclear why the husband's alimony obligation should terminate on February 11, 2008, rather than on the date in May when the Social Security benefits began.
Paragraph 5 of the judgment of modification dated February 22, 2010, is vacated and the original QDRO is reinstated. In addition, paragraphs 1, 4, and 7 of the judgment of modification, and the judgment of dismissal on the complaint for contempt filed on July 28, 2009, are vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. The remainder of the judgment of modification, and the judgment of dismissal on the complaint for contempt filed March 10, 2009, are affirmed. In all other respects the case is remanded for further consideration and findings in light of the principles set forth in this opinion. The parties are to bear their own costs of appeal.
So ordered.
By the Court (Cypher, McHugh & Kafker, JJ.),