Raymond L. THACHER, Jr. v. Laura J. THACHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Raymond L. Thacher and Laura J. Thacher married in 1982 and divorced in 2002.2 The second amended judgment of divorce nisi that followed provided that Raymond would pay Laura alimony in the amount of $375 per week.3 In 2019, Raymond filed a complaint for modification that sought, among other things, to terminate or reduce his alimony obligation based on the Alimony Reform Act, G. L. c. 208, § 49 (b) (act), which became effective on March 1, 2012, nearly a decade after the parties’ divorce. See St. 2011, c. 124, § 7. Section 49 (b) (4) provides that general term alimony for marriages lasting twenty “years or less, but more than [fifteen] years” “shall continue for not longer than [eighty] per cent of the number of months of the marriage,” and sets forth a process by which a judge can deviate from the durational limits if “required in the interests of justice.” G. L. c. 208, § 49 (b). Following trial, Raymond's complaint for modification was denied.4 The judge determined that although Raymond was presumptively entitled to the termination of his alimony obligation, he had the ability to pay and Laura had a need for alimony in order to prevent her from becoming a public charge. This appeal ensued.
Background. In his complaint for modification, Raymond, who works as a cranberry grower on bogs that he owns or leases, alleged that his income had decreased and that the alimony award he was required to pay exceeds the durational limits of the Alimony Reform Act, G. L. c. 208, § 49. The judge found that the presumptive durational limit for alimony in this case was fifteen years and that the period had been exceeded. Accordingly, as the judge correctly observed, the burden was on Laura to “prov[e] by a preponderance of the evidence that deviation beyond the presumptive termination date is ‘required in the interests of justice.’ ” George v. George, 476 Mass. 65, 70 (2016), quoting G. L. c. 208, § 49 (b).
At the time of the original divorce, the trial judge found that Laura suffered from a number of psychological disorders and a physical disorder of spinal spondylosis. The modification judge found that: (1) Laura continued to be unemployed and was unemployable; (2) she receives Mass Health benefits; (3) she has had no permanent housing since 2015; and (4) she currently sleeps in her truck. The judge concluded that Laura's mental and physical health had worsened since the divorce and that granting the request to terminate alimony would render her a charge of the Commonwealth. She also concluded that Raymond continues to have the ability to pay $375 in weekly alimony.
On appeal, Raymond argues that Laura failed to meet her evidentiary burden that continuation of his alimony obligation beyond the durational limits was required in the “interest of justice.” George, 476 Mass. at 70. Specifically, he claims that Laura failed to submit sufficient evidence as to her medical condition and continuing disability as her claims were not supported by medical evidence or expert testimony. He also argues that Laura's submission established at most a need for alimony in the amount of $160 per week. Finally, Raymond argues that even were he not entitled to termination of alimony, substantial evidence supported his contention that his income had declined and he was entitled to a reduction in alimony.
The trial judge was required to make “written findings based on evidence to determine whether the ‘interests of justice’ require[d] alimony payments to continue beyond the durational limits of the act” (citation omitted). George, 476 Mass. at 70. This determination must be made based on the parties’ circumstances “as they exist at the time the deviation is sought.” Id. “If relevant factors that existed at the time of the divorce persist when the complaint for modification is filed [e.g., an ongoing disability], a judge may properly consider them.” Id. “Although a ‘judge has broad discretion when awarding alimony under the [act],’ ․ the judge must consider all relevant, statutorily specified factors” set out in G. L. c. 208, § 53 (e).5 Id. at 71, quoting Duff-Kareores v. Kareores, 474 Mass. 528, 535 (2016).
First, the modification judge based her findings regarding Laura's medical conditions and continuing disability on Laura's testimony at trial, which the judge credited. The judge also properly considered the fact that her disabilities had existed at the time of the divorce and persisted into the present. This evidence sufficed to support the judge's findings that Laura continues to suffer from a number of psychological disorders and medical issues that render her unemployable and in need of alimony. Laura was not required to present medical records or expert testimony regarding her conditions.
Second, Raymond's contention that Laura only presented evidence of $160 per week in living expenses is based on Laura's testimony and financial statement listing expenses related to the monthly cost of a storage unit and the weekly cost of gas for her truck and medical marijuana. Laura, however, also referred to additional expenses for food and drink and repairs to her truck, although she did not provide an exact figure, and testified that she was engaged in ongoing efforts to obtain low income housing or other housing that would require her to pay rent. The judge's findings took into account all of this evidence, which is sufficient to establish Laura's financial need.
Third, while Raymond presented evidence of a decrease in his income, the judge based her finding of his continued ability to pay $375 per week in alimony on a comprehensive examination of the evidence regarding his financial condition. While Raymond argued in part that a recent decrease in the cost per barrel of cranberries warranted a reduction in the amount of his alimony obligation, the judge noted that the overall price since the time of the divorce actually had increased. Moreover, although Raymond argued that his expenses outpaced his income from the cranberry bogs, the judge noted that he recently had acquired additional acreage from his father that would increase his production of cranberries. In addition, the judge observed that Raymond had paid off his mortgage and that he was no longer financially responsible for his and Laura's children, as he was at the time of the divorce. Finally, in implicitly concluding that Raymond had failed to meet his burden of demonstrating a material change in his ability to pay the existing alimony award, the judge did not err in considering all of Raymond's assets, including gifts and income from selling his boat. See Greenberg v. Greenberg, 68 Mass. App. Ct. 344, 350-351 (2007); Katz v. Katz, 55 Mass. App. Ct. 472, 481 (2002) (“Capital assets should be used to evaluate a supporting spouse's ability to pay alimony in a modification proceeding”).
We are satisfied that the judge's findings were based on sufficient evidence and that she considered all of the statutorily mandated factors. We cannot say that she abused her discretion in denying Raymond's request to terminate or modify his obligation to pay alimony.
Judgment affirmed.
FOOTNOTES
2. Because they share a last name, we refer to the parties by their first names.
3. The original judgment of divorce fixed the amount of alimony at $325 per week and was subsequently amended. Portions of the amended judgment, including the alimony award, were vacated on appeal by this court in an unpublished memorandum and order, Thacher v. Thacher, 59 Mass. App. Ct. 1106 (2003), and the case was remanded for further proceedings. The second amended judgment of divorce nisi later entered on April 9, 2004.
4. Laura also brought a counterclaim requesting a one hundred percent increase in the amount of alimony, which the trial judge also denied. The denial of Laura's counterclaim is not an issue in this appeal.
5. General Laws c. 208, § 53 (e), states:“Grounds for deviation may include: (1) advanced age; chronic illness; or unusual health circumstances of either party; (2) tax considerations applicable to the parties; (3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse; (4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance; (5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce; (6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage; (7) a party's inability to provide for that party's own support by reason of physical or mental abuse by the payor; (8) a party's inability to provide for that party's own support by reason of that party's deficiency of property, maintenance or employment opportunity; and (9) upon written findings, any other factor that the court deems relevant and material.”
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