FABIEN v. SHENKER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal and a purported cross appeal in a divorce action. The former wife (wife) appeals from the judgment of modification retroactively modifying the former husband's (husband) alimony to November 3, 2017, the amended judgment of contempt ordering that she owes the husband $7,246.28 in college expenses, and the amended judgment of contempt reducing the amount that the husband owed to her to $32,753.72. The husband purports to cross-appeal from the judgment of modification, arguing that his alimony obligation should have been reduced retroactively to when he filed his initial complaint for modification.²

First, the wife appeals from a judgment for modification which reduced the husband's alimony from $2,500 per week to $1,400 per week. We see no error of law or abuse of discretion in the judge's decision to adopt the husband's expert's conclusion with respect to the husband's full earning capacity. Certainly the finding is not clearly erroneous. In particular the reduction is supported by the judge's finding in his amended memorandum of decision that the husband had assumed caretaking responsibilities for the parties' youngest child, and that, as a consequence, the husband could no longer travel out of State for days at a time as he had been doing to earn additional income.

There was also no abuse of discretion in the judge's finding the husband's weekly income to be $4,225. In his March 22, 2018, financial statement and in his testimony at trial, the husband reported that his income fluctuated between $4,850 and $3,600 based on the availability of hospital shifts. The judge did not abuse his discretion, then, by crediting the husband's representations and averaging the upward bound of the husband's weekly income with the lower bound. The use of averaging in order to come up with a specific number to be used in the calculation was within the range of reasonableness; this method gave appropriate consideration to the material changes in the husband's financial circumstances since the judgment of divorce. See Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting Mass. R. Dom. Rel. P. 52 (a) (2008) (“a judge enjoys considerable discretion in fashioning an appropriate modification judgment” and his factual findings must be given “due regard ․ to the opportunity of the trial court to judge of the credibility of the witnesses”).

“When parties to a divorce negotiate an agreement for alimony that is incorporated and merged into a judgment of divorce, ‘the judgment ․ is subject to modification based on a material change in circumstances.’ ” Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 590 (2016), quoting Chin v. Merriot, 470 Mass. 527, 534-535 (2015). The judge found, and we see no abuse of discretion or other error of law in the finding, that these facts amounted to a material change in circumstances that affected the husband's ability to pay his prior alimony obligation. Therefore, we see no error in the judge's decision to reduce the husband's alimony obligation.

The wife also argues that it was an abuse of discretion to make the reduction in alimony retroactive to the date of November 3, 2017. Given the financial statement of March 22, 2018, submitted by the husband, and his testimony concerning the timing of and reasons for his cessation of out-of-State shift-work, we also see no abuse of discretion in the judge making the adjustment in alimony retroactive to November 3, 2017, the date of the husband's last payment.

Likewise, with respect to the wife's complaint about the judge's conclusion concerning her responsibility for college expenses for one of the children, we see no abuse of discretion or error of law. The judge applied the terms of the separation agreement, incorporated into the 2008 judgment of divorce, and concluded that agreement did not require a specific form of documentation as a condition of the wife's obligation to contribute to the child's reasonable college expenses. The agreement does not provide for a particular mechanism for presenting receipts for college expenses and the judge found that the husband's testimony and submitted documentation of his payment of college expenses were credible. There was no abuse of discretion or other error of law in the judge's conclusion that documentation of these expenses need not be presented more clearly than that already provided by the husband.

The judge also carefully calculated the percentage of costs owed by the wife as a proportion of her income relative to the husband's income, as required by the parties' separation agreement. Contrary to the wife's argument, we do not read the court's order of September 29, 2014, to mean that the method that had previously been applied to calculate the parties' obligation and that was in fact applied in the 2014 order, was somehow replaced going forward by a judicially imposed rule giving the wife responsibility for a flat thirty percent of the relevant expenses.

Finally, with respect to the wife's appeal, we are not persuaded by the wife's assertion that it was an abuse of discretion to deny the wife's request for attorney's fees. The wife does not specify any legal basis for that assertion, either with respect to the judge's determination to deny the request for attorney's fees on the modification, or on her contention that the $5,000 in attorney's fees awarded on her successful contempt complaint was inadequate. To the extent the wife asserts that she was without income during the period when the husband failed to pay alimony, the judge's order has already provided redress for that in requiring the husband to pay the modified arrearage. To the extent she suggests that there was an abuse of legal process, the judge, although at one point critical of counsel for the husband's persistence in arguing on the basis of “an incorrect assertion,” did not find any such abuse.

The husband, now pro se, filed a notice of a cross appeal, but it has not been docketed in this court. See Ingersoll Grove Nursing Home, Inc. v. Springfield Gas Light Co., 7 Mass. App. Ct. 864, 864 (1979). Were we to reach the merits, we would conclude the cross appeal has no merit. The husband argues that the reduction in alimony should have been retroactive to the date of his initial complaint for modification of his alimony obligation. In his original complaint, filed on January 26, 2017, the husband alleged only that his financial circumstances changed due to the parties' changes in custody. He had not yet been involuntarily terminated from his position in New York. The husband offers no argument in support of his position that his alimony obligation should have been reduced as of March 2017, a date that corresponds with his filing a motion for temporary orders reducing his alimony obligation during the pendency of the action. In any event, even the one relevant fact the husband recites on appeal, that he stopped working in Ithaca, New York, in October, 2017, demonstrates there was no abuse of discretion in the judge's determination that the reduction in alimony should be retroactive only to November 3, 2017, immediately after the husband filed his amended complaint for modification notifying the court for the first time of his involuntary termination.

Judgment of modification affirmed.

Amended judgments of contempt affirmed.

FOOTNOTES

2.   The husband argues that this date was March of 2017, which is when he filed a motion for temporary orders reducing his alimony obligation during the pendency of the action. However, the husband's original complaint for modification was filed on January 26, 2017, and amended on October 27, 2017. We address below whether alimony should have been reduced retroactively either to the January or March filing dates.