V.W. v. V.E. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

V.E. (wife) appeals from an amended judgment that, as relevant here, reduced V.W.'s (husband's) monthly alimony payments and denied the wife's attorney's fees request.¹ The parties were married in 1998. In May 2014 the parties entered into a separation agreement (agreement) that, as relevant here, obliged the husband to pay $ 12,487 each month in general term alimony.² The agreement also provided that the alimony provision would be subject to modification “under applicable law regarding merged agreements in the event of a material change in circumstances.” A judge approved the parties' agreement and the alimony provision merged into the judgment of divorce nisi, which entered on May 21, 2016.

In June 2016 the husband suffered a serious heart attack, of the type sometimes referred to as a “widow maker.” The husband received prompt medical care; he recovered quickly and with only relatively minor organ damage. Nonetheless, the husband's treating physicians recommended that he reduce his work hours. Acting on his physicians' advice, the husband negotiated a new employment and compensation plan that shifted certain of his responsibilities to other employees and significantly reduced the husband's work hours and income.

In July 2016 the husband moved for a modification, requesting, as relevant here, that his monthly alimony payments be reduced.³ The wife countered that because the husband had recovered from his heart attack, his choice to cut back on work duties and income was voluntary and therefore did not support the requested modification. The wife also claimed that the husband remained able to make the existing alimony payments and that he was hiding assets and income. At trial, the wife produced a board certified cardiologist, Michael Remetz, who testified that “[m]ost cardiac rehab groups” recommend that patients recovering from a heart attack make efforts to reduce their stress levels. But Remetz continued that there was no well-documented scientific evidence that doing so reduced the risk of a subsequent heart attack and that Remetz, had he treated the husband, would not have recommended that he cut back on work hours or responsibilities. The modification judge, noting that Remetz had not examined the husband, did not know what his employment responsibilities had been before the heart attack, and could not explain why the husband suffered a heart attack notwithstanding that he exhibited none of the usual risk factors, disregarded Remetz's opinion and concluded that the husband's choice to reduce his work hours and responsibilities reasonably was based on his treating physicians' advice.

After so finding, the judge went on to rule that the husband's heart attack and reduced income constituted a material change of circumstances. The judge also considered the husband's spending patterns, his employer loans and gifts, his new domestic relationship, and the recent substantial transfers from the husband to his new domestic partner, in the process attributing to the husband additional income beyond his new base earnings. The judge then reduced the husband's monthly alimony payments to $ 9,585, which amounted to thirty-five percent of the husband's actual and attributed income at the time of trial.

The judge's decision, as the wife points out, did not address the husband's ability to pay the agreed-upon amount, found no material change in the wife's circumstances, and assumed that the new amount would not be sufficient to meet the wife's needs. The wife has a bachelor's degree in psychology and has since 2015 been working toward a master's degree in clinical mental health counselling from William James College with the intent of becoming licensed and opening a practice. There is no other information in the record with respect to the wife's employability. The judge concluded that she “could earn income through employment with reasonable effort that would compensate for any difference between” her needs and those lesser payments. “The wife could utilize at least part of the time spent on practicum and volunteer work that she has engaged in for the past four (4) years toward employment for compensation to assist with payment toward her household expenses.”

The wife, appearing here pro se, argues that the judge should not have “reduc[ed] Husband's alimony payments based solely on his reduced income without considering the other factors that make up his ability to pay and Wife's need.” She argues that the judge made no findings of fact or conclusions of law that the husband's ability to pay was reduced. In fact, she claims that there was no testimony presented by the husband that he had needed to reduce his spending or his lifestyle based on the reduction of his work hours.

We agree. Although there was no error in the judge's conclusion that the husband's reduction in income was, to the extent she found, bona fide and not temporary, when a separation agreement, approved by a judge, is incorporated and merged into a judgment, as is the case with respect to the alimony provision at issue here, the agreement may be modified only on “a material change in circumstances.” Chin v. Merriot, 470 Mass. 527, 534 (2015). See Schuler v. Schuler, 382 Mass. 366, 368 (1981). Reduced income may well amount to such a change. But “while a substantial decrease in income or financial status may warrant a modification, such a decrease does not alone compel a modification.” Id. at 371. A reduction in a payor's income alone can amount to a material change of circumstances with respect to alimony and support obligations only if, as a result, the payor does not “retain[ ] the ability to continue to make the payments required by the judgment.” Id. at 373.

The husband does not disagree with this statement of the law. Indeed, his brief is worth quoting:

“Generally when the Payor spouse has the ability to pay, the amount of the alimony is limited to the amount necessary to maintain the lifestyle enjoyed by the recipient spouse during the marriage. Where, as here, there has been a decrease in the amount of support that the Payor spouse can afford to pay, the judge must consider all the statutory factors and reach a fair ‘balance of sacrifice’ between the former spouses. [Pierce v. Pierce, 455 Mass. 286, 296 (2009)]. The recipient spouse does not have an absolute right to receive a sufficient amount to maintain her former lifestyle to the detriment of her former spouse. Heins v. Ledis, 422 Mass. 477, 484 (1996). The Judge must make a ‘fair balance of sacrifice between the parties.’ [Pierce, supra].”

This passage contains an accurate statement of the law. Its premise, however, that the judge found that the decrease in income led to a decreased ability to pay, is in error.

Because ability to pay is an essential component in a determination of a material change in circumstances, and because it was not addressed by the judge, the judgment must be vacated and the case remanded for further proceedings consistent with this memorandum and order.⁴ See id., quoting Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986) (in considering complaint to modify alimony, judge “must keep in mind 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’ ”).

The wife also claims error in the judge's failure to award attorney's fees. She correctly notes, however, that a judge has discretion to award attorney's fees to a party defending a complaint for modification. G. L. c. 208, § 38. Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 (2005). Given the outcome below, on the record before us we see no abuse of discretion in the denial of the wife's request for attorney's fees.

Accordingly, the amended judgment dated November 17, 2017, is vacated and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

vacated and remanded.

FOOTNOTES

1.   The wife timely filed a notice of appeal from the September 5, 2017 judgment. We granted leave for the husband to file in the trial court a motion under Mass. R. Dom. Rel. P. 60. The trial court judge ultimately amended his order, dating the amended order “November 17, 2017, as of September 5, 2017.” A review of the trial court docket indicates that the amended judgment was not entered on the docket, nor was a new notice of appeal filed from the amended judgment. No party raises any issue concerning the propriety of this appeal, which we construe to be from the amended judgment.

2.   The agreement also provides that, “Due to the provisions made for Wife [with respect to alimony], there will be no child support paid to Wife at this time. The parties agree that the alimony payment ․ [is] sufficient at this time to support Wife and the parties' children. In the event that alimony terminates, and any children remain unemancipated, the court shall address the issue of child support at that time.”

3.   The husband also asked that he be allowed to contribute less toward the children's education expenses. The judge denied this request. Neither party challenges that ruling.

4.   We are not persuaded by the wife's argument that the judge failed adequately to consider the parties' agreement in reaching her decision.