Opinion
14-P-226
05-22-2015
DOMINGAS PENFIELD v. GARY PENFIELD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former husband, Gary Penfield (defendant), and the former wife, Domingas Penfield (plaintiff), obtained a judgment of divorce nisi on January 3, 2012, which imposed certain alimony obligations on the defendant. On January 24, 2013, the defendant filed a complaint for modification of alimony seeking the termination of his obligations in accordance with the Alimony Reform Act (Act). St. 2011, c. 124, amending G. L. c. 208. A judge of the Probate and Family Court dismissed the complaint, and this appeal ensued.
We stayed the appeal to permit the parties to supplement their briefs in light of the Supreme Judicial Court's decisions in Rodman v. Rodman, 470 Mass. 539 (2015), and Doktor v. Doktor, 470 Mass. 547 (2015). Neither party has filed a supplemental brief. We therefore vacate the stay and proceed to the merits.
Background. Several weeks after the entry of the judgment of divorce nisi, the Act took effect. The Act was signed into law on September 26, 2011, but did not take effect until March 1, 2012, which was after the divorce proceedings in this case. As we have noted, the defendant subsequently filed a complaint on the grounds that (1) his alimony obligations must be terminated because under the new guidelines for determining alimony set forth in the Act, general term alimony obligations are to terminate when the payor reaches full retirement age and, in the alternative, (2) the amendments to the alimony statute constitutes a "material change in circumstances" warranting modification.
Neither the complaint for modification nor the transcript of the hearing are included in the appellate record.
Following a hearing, a judge of the Probate and Family Court found that prior to their divorce, the parties had been married for nearly twenty-five years. The divorce judgment required the defendant to make alimony payments to the plaintiff in the amount of $200 per week. The judgment also provided that the alimony payments were to continue until the occurrence of one of the following: (i) the death of either party or (ii) the plaintiff's remarriage. At the time of the divorce the defendant was sixty-seven years of age, the plaintiff was fifty-three years of age, and both parties were earning a weekly income. The judge observed that the defendant's "attaining full retirement age was not a terminating event as such an event was typically only included if the parties had contracted for such a termination date" and also noted that the defendant had the ability to fulfill the alimony obligations and that there had been no material and substantial change in the parties' circumstances other than the enactment of the Act. Accordingly, the complaint for modification was dismissed.
Discussion. On appeal, the defendant principally contends that he is entitled to have his alimony obligations terminated because the Act provides, in pertinent part, that "general term alimony orders shall terminate upon the payor attaining the full retirement age." G. L. c. 208, § 49(f). Second, the Act allows that "any payor who has reached full retirement age, as defined in section 48 of chapter 208 of the General Laws, or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013." St. 2011, c. 124, § 6 (uncodified). Based on his position that his obligations are presumptively terminated under the Act, the defendant maintains that the judgment of dismissal was improper because the judge failed to make sufficiently specific findings of fact and that the evidence at the hearing did not support the judge's decision to depart from the presumptive outcome.
We begin by noting that the Supreme Judicial Court recently addressed the question at the heart of this case: whether a payor with alimony obligations imposed by a judgment prior to the effective date of the Act on March 1, 2012, may seek modification under the provisions as amended by the Act for the sole reason that he has reached retirement age. In companion cases published on January 30, 2015, Chin v. Merriot, 470 Mass. 527 (2015), Rodman v. Rodman, 470 Mass. 539 (2015), and Doktor v. Doktor, 170 Mass. 547 (2015), the court answered this question in the negative. First, following its decisions in Chin and Rodman the court observed in Doktor that "modification based on the newly enacted durational limits in G. L. c. 208, § 49, affords the sole exception to prospective application." Doktor v. Doktor, supra at 550. Contrary to the defendant's claim, the durational limits have no bearing on his alimony obligations. The court has explicitly stated that the retirement provision does not constitute a durational limit and therefore does not have retroactive application. See Chin v. Merriot, supra at 531. See also Doktor v. Doktor, supra. Accordingly, the defendant is not entitled to seek relief under the amended statute.
The defendant's claim that the enactment of the Act constitutes a material change in circumstances warranting modification is similarly unavailing. See Chin v. Merriot, supra at 537 ("G. L. c. 208, § 37, governs alimony judgments entered prior to the act's effective date, under the material change in circumstances standard then in effect"). In Doktor, the court specifically observed that the Act does not alone constitute "a material change of circumstance that warrants modification of the amount of existing alimony judgments." Doktor v. Doktor, supra, quoting from St. 2011, c. 124, § 4(b) (uncodified). Based on our review of the defendant's appellate brief and the limited record before us, we see no alternative basis for concluding that modification was warranted. See Chin v. Merriot, supra at 537-538.
Judgment dismissing complaint for modification of alimony affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 22, 2015.