Opinion
13-P-1603
06-23-2015
BLAISE PETER POIRIER v. KIMBERLY M. WOODWARD.
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 plaintiff husband appeals from judgments of the Probate and Family Court entered on March 25, 2013, that granted in part and denied in part the husband's complaint to modify alimony, and found the husband in contempt for failure to pay alimony. For the reasons that follow, we affirm both judgments.
Background. The parties were married in 1988 and entered into a separation agreement ending their marriage on March 9, 2007. The judgment of divorce, dated March 9, 2007, incorporated and merged the provisions of the separation agreement relating to the couple's children, alimony, and insurance. In the separation agreement, the parties agreed that the husband must pay alimony in the amount of $945 per week, and that "there shall be no order for child support at this time as . . . the [husband's] alimony obligation is taking support into consideration." The parties testified at trial that the alimony obligation in the separation agreement of $945 per week was based on the husband's then gross yearly income of between $140,000 and $145,000.
The husband filed his first complaint for modification on September 10, 2007. The Probate Court judge dismissed the complaint on November 16, 2010, finding that the husband failed to prove a significant change in circumstances that would warrant a modification of the divorce judgment. The 2010 dismissal also found that the husband owed a support arrearage of $16,415, and awarded the wife $7,500 in attorney's fees. On July 12, 2011, the probate judge found the husband in contempt for failing to pay his support obligation and for failing to pay the attorney's fees awarded in the 2010 judgment of dismissal.
The modification judgment, dated March 25, 2013, ordered the husband to pay child support in the amount of $424 per week until the emancipation of the parties' youngest daughter; upon her graduation from college. The judge reached that number by considering the financial circumstances of the parties and applying the parties' gross weekly income to the child support guidelines (guidelines). In modifying the weekly amount the husband owed to the wife from $945 to $424, the only matter that the judge considered as a "material change in circumstance" was the graduation from college of the parties' eldest daughter. The probate judge concluded that the Alimony Reform Act of 2011, St. 2011, c. 124, § 4 (act) "applies prospectively to alimony judgments entered before March 1, 2012," and therefore declined to consider the wife's cohabitation with another individual as a material change in circumstances. The judge also held that upon the graduation from college of the parties' youngest daughter, the child support obligation shall be converted to an alimony obligation in the same amount, $424 per week.
The probate judge also dismissed a second complaint for modification, dated October 10, 2012, because it was duplicative. The judge applied retroactively $424 to June 1, 2012, the estimated date the parties' eldest daughter had graduated from college. The parties' eldest daughter actually graduated from college in December, 2012.
In addition to the gross income and financial circumstances of each party, the judge also considered the shared physical custody language in the parties' separation agreement. In deducing the gross income of each party, the judge considered their respective financial statements, which were introduced as exhibits at trial. There was also testimony that the husband's gross income as of November 25, 2012, was $128,530, and his pay stub indicated that he was on pace to earn over $140,000 in 2012. The judge determined the husband's gross weekly income was $2,671, and based on her testimony and financial statements, the wife's gross weekly income was $788.
The judgment of contempt, dated March 25, 2013, applied the retroactive relief awarded in the modification proceedings and the probate judge concluded that the total amount the husband owed the wife as of December 19, 2012 was $98,061. The judge also ordered the husband to pay the wife attorney's fees in the amount of $4,310.80, to be paid on or before May 1, 2013.
The husband's complaint for modification and the wife's complaint for contempt were consolidated for hearing purposes at the December 19, 2012, trial. The probate judge reached $98,061 by adding the amount of support arrearage owed from July 12, 2011, to December 19, 2012, ($56,711) to the amount the husband owed, plus interest, as a result of a separate July 12, 2011, judgment of contempt, ($41,350: $35,050 plus 12 percent interest). At trial, both parties testified that from July 18, 2011, through the date of trial, December 19, 2012, the husband only had paid the wife $2,500 towards his support obligation.
Discussion. 1. Modification judgment. a. Effect of cohabitation. The husband argues that the probate judge misread the language of § 4 of the act in finding that the cohabitation provision of the act "shall apply prospectively," and that the court should have considered the wife's cohabitation as a material change in circumstance warranting additional modification of the husband's alimony obligation. We disagree.
"We review questions of statutory interpretation de novo." Chin v. Merriot, 470 Mass. 527, 531 (2015). In Chin, the Supreme Judicial Court held that, but for a single exception, the act applies prospectively. The court concluded that a party's cohabitation was not a relevant factor. Id. at 529, 536. Here, where the relevant provisions of the separation agreement were incorporated and merged into the divorce judgment, which predated the act by almost four years, the probate judge did not have to consider as a factor in determining the parties' change in circumstances the fact that the wife had been cohabitating with another person and maintaining a common household for more than three months. See ibid.
The court held that the single exception to the prospective application of the act is "the new durational limits of the act," which are based on the length of the parties' marriage. Id. at 536. See G. L. c. 208, § 49(b). The husband does not dispute that the cohabitation provisions of the act are not durational limits.
b. Change in circumstances. Based on Chin, the material change of circumstances standard that was in effect at the time the judgment was entered also applies in this case, and we review for an abuse of discretion. See id. at 538. The probate judge did not abuse discretion in only considering as a material change in circumstance the graduation from college of the parties' eldest daughter, which resulted in a reduction of the husband's support obligation to $424 per week. See id. at 537-538. The husband's alimony obligation in the separation agreement was based on the husband's income, the parties' shared physical custody of the children, and the fact that the husband's alimony obligation "is taking [child] support into consideration." The separation agreement states that, should the parties' children attend college, the children shall be emancipated when they graduate from college.
With regard to any change in the parties' economic circumstances since the parties entered into the separation agreement, the judge considered the wife's financial statements to determine her gross income and living expenses. There was evidence that, though the wife lives with a cohabitant, she pays for the majority of her living expenses; in addition, the wife testified that her need for alimony is the same as it was when the parties entered into the separation agreement. The judge also considered evidence regarding the husband's economic circumstances, including evidence that the alimony award in the separation agreement was based on the husband's three-year average income of between $140,000 and $145,000, that the husband's income in the year of the trial, 2012, was projected to be $141,097, and that the husband's income in 2010 was $183,000.
The wife testified that she does not receive any money from her cohabitant for her mortgage, food, electric, heating, and Internet and cable bills. She did note that her cohabitant pays for items related to the maintenance of their yard and pool, as well as for repairs to the outside of their house.
The judge heard evidence that the husband received tax refunds in the amount of $13,500 in 2012.
Since the parties' eldest daughter graduated from college, the wife's duty to support that child ceased, and the probate judge appropriately considered the eldest daughter's graduation as the only material change in circumstance that warranted a reduction of the husband's alimony obligation. See Eccleston v. Bankosky, 438 Mass. 428, 434 n.13 (2003). There was no abuse of discretion in this determination. Under the material change of circumstances standard in effect at the time the parties' entered into the separation agreement, a judge may only consider a recipient spouse's cohabitation if the supporting spouse demonstrates that the recipient spouse's economic circumstances have changed as a result of the cohabitation. See Bush v. Bush, 402 Mass. 406, 412 n.9 (1988); Chin, 470 Mass. 534-535. Here, where the probate judge heard evidence that the wife's cohabitant did not contribute in a materially significant way to the wife's living expenses, nor supplement her income, the judge did not abuse discretion in finding that the cohabitant did not have a material impact on the wife's economic circumstances. See Bush, supra. Further, after hearing thorough evidence concerning "[t]he needs of the children, the financial status of the support provider, and the station in life of the respective parties," the judge did not abuse discretion in reducing the husband's alimony obligation from $945 per week to $424 per week. Schuler v. Schuler, 382 Mass. 366, 370-371 (1981).
c. The alimony and child support obligation conversion. The husband further argues that, because the parties had agreed there would be no order for child support, the judge erred by ordering the husband's alimony obligation be modified and allocated partly as alimony and partly as child support. Once again, we review the judge's modification judgment for abuse of discretion. See Chin, supra at 538. Further, "[w]hen the judgment to be modified incorporates an agreement of the parties . . . [the appellate court will] 'review the findings to determine whether the judge gave appropriate consideration to the parties' intentions as expressed in their written agreement, . . . and to any changes in their circumstances since the last modification judgment.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 568 (2001).
The language of the separation agreement explicitly states: "There shall be no order for child support at this time as . . . the [husband's] alimony obligation is taking support into consideration." "[W]e must construe the [separation] agreement in a manner that 'appears to be in accord with justice and common sense and the probable intention of the parties . . . [in order to] accomplish an honest and straightforward end [and to avoid], if possible, any construction of a contract that is unreasonable or inequitable.'" Krapf v. Krapf, 439 Mass. 97, 105 (2003), quoting from Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930). The parties clearly intended, at the time they entered into the separation agreement, to have the husband's alimony obligations encompass his child support obligations. The language of the separation agreement also evidences the parties' intent to leave open the option to modify the husband's child support obligation in the future. See Fabrizio v. Fabrizio, 316 Mass. 343, 345-346 (1944). Additionally, the probate judge used the entirety of the parties' gross income in calculating child support for one child with the shared physical custody formula described in the guidelines. As a result, the husband had no remaining income that could be considered for a potential alimony award until the parties' youngest daughter graduates from college. See G. L. c. 208, § 53(c)(2). Given the judge's considerable discretion to modify a divorce judgment, the clear language of the separation agreement and the statutory limits on imposing child support and alimony obligations, the trial judge did not abuse discretion in ordering the husband's alimony obligation to be converted to a child support obligation, and then back to an alimony obligation in the same amount upon the youngest daughter's graduation from college. See Fabrizio, supra.
The terms of the separation agreement were incorporated by reference and made a part of the judgment of divorce. As such, the words of the separation agreement were "made a part of the decree entered by the judge." Fabrizio v. Fabrizio, 316 Mass. 343, 346 (1944).
2. Judgment of contempt. Finally, the husband argues that because a substantial change in his financial situation has left him unable to pay the judgments of contempt against him, the judge should not have held him in contempt for failure to pay alimony. The husband contends that the judge committed reversible error in relation to the judgment of contempt by limiting his counsel's ability to introduce evidence at trial. We disagree.
We consider the judge's findings of fact regarding the husband's financial circumstances to determine whether the judge committed an abuse of discretion. A judge's factual findings will not be disturbed unless clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993). It is clearly erroneous where there is no evidence in the record to support it, or where, even if there is some evidence to support a given finding, this court "on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998). Where the record does not support the essential findings, a ruling or order based on those findings constitutes an abuse of discretion. See Cooper, 62 Mass. App. Ct. at 134.
The probate judge did not abuse discretion in finding that the husband has the ability to pay the judgment, and thereby finding him in contempt for failing to pay his support obligation. The judge reviewed the husband's year to date pay statement, his financial statement dated December 19, 2012, his 2012 bank statements, his year-end pay statement for 2011, and his 2011 and 2010 W-2 forms. The judge also heard testimony that that the alimony award in the separation agreement was based on the husband's three-year average income of between $140,000 and $145,000, that the husband's income in the year of the trial, 2012, was projected to be $141,097, and that the husband's income in 2010 was $183,000. In addition, the judge reviewed two prior contempt judgments against the husband that he had yet to purge, and heard testimony that, in the period between the last, uncontested contempt judgment and the trial -- July 12, 2011, to December 19, 2012, -- the husband had paid only $2,500 towards his support obligation. The financial statements submitted, the testimony of the parties, and the past contempt judgments that the judge reviewed provide a sufficient factual basis for the judge's conclusion that the defendant was able to pay his support obligation. See In re Birchall, 454 Mass. 837, 852 (2009). Therefore, the judge did not abuse discretion in finding the defendant in contempt for willfully failing to pay support in the amount of $98,061 plus attorney's fees of $4,310.80.
The husband does not argue that he is not in contempt; he only alleges that he is not able to pay the support arrearage.
Further, the record does not support the husband's contention that he was denied a fair trial because the probate judge imposed a time limit on his presentation of evidence. Before husband's counsel began his direct examination of the husband, the judge notified counsel that he would have forty minutes to conduct his examination; counsel acknowledged the time constraint, and proceeded with his examination. "The direct and cross-examination of witnesses is in general and within reasonable limits subject to the power of the trial judge as to length." Goldman v. Ashkins, 266 Mass. 374, 379-380 (1929) (collecting cases). Here, where the probate judge made clear the time constraints before direct examination, and the time allotted to husband's counsel provided sufficient evidence to understand the husband's financial circumstances, the judge did not err in reasonably limiting counsel's time. See ibid.; Tufts Univ. Cummings Sch. of Veterinary Med. v. Saffran, 2011 Mass. App. Div. 111, 114. For the reasons stated above, we affirm the judgments.
At the end of the allotted time, the judge attempted to move on to cross-examination, but husband's counsel impeded both the judge's and opposing counsel's efforts to proceed to such a degree that the judge held the husband's counsel in contempt for not following court orders. The judge noted, "That's the first time I've ever [held counsel in contempt of the court] since I sat on the bench."
The wife's request for appellate attorney fees and costs is allowed. In accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the wife may, within 14 days of issuance of this memorandum and order, submit an application for attorney's fees and costs with the appropriate supporting materials.
So ordered.
By the Court (Trainor, Agnes, & Maldonado JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 23, 2015.