HOLLY MICHAELSON v. LORA TALBOT (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Lora G. Talbot, the former spouse of Holly K. Michaelson, appeals from a judgment of divorce nisi entered in the Probate and Family Court. She also appeals from the denial of a motion for new trial brought pursuant to Mass. R. Dom. Rel. P. 59 and 60. Talbot challenges the denial of two motions to continue and the alimony awarded within paragraph 14 of the judgment. We conclude that paragraph 14 of the judgment must be vacated and the case remanded for further proceedings. We otherwise affirm the judgment and the postjudgment order.

Background. We present the relevant procedure and facts, drawing on the judge's findings in support of the judgment of divorce, and supplementing them with undisputed evidence in the record. See Connor v. Benedict, 481 Mass. 567, 568 (2019).

1. Procedural history. After approximately six years and six months of marriage, Michaelson filed a complaint for divorce on January 21, 2022. In August 2022, the judge ordered Michaelson to pay Talbot $400 per week in temporary alimony. Trial was scheduled for May 24 and 26, 2023. Prior to the trial, the parties reported that they had reached agreement on all contested issues and filed a signed separation agreement with the court. On the trial date, Talbot refused to proceed with the divorce pursuant to the agreement. The trial did not proceed, and the judge scheduled the matter for a status conference on June 15, 2023. At the status conference, the judge allowed the motion to withdraw filed by Talbot's counsel. On June 20, 2023, the judge issued a trial order rescheduling the trial for August 16 and 18, 2023, with back-up trial dates of January 5 and 8, 2024. On June 29, 2023, Talbot, self-represented, filed a “Motion to Change Trial Date and Amend Further Pretrial Order” averring that she had consulted with an attorney who she wished to retain but that the attorney was only able to represent her if the trial date was continued to a date “no sooner than January 15, 2024.” The judge denied Talbot's motion.

Trial was held on August 16 and 18, 2023. On the first day of trial, Talbot made a further oral motion to continue the trial, which the judge denied. The judge issued the judgment and memorandum in support of judgment on October 12, 2023. On October 23, 2023, Talbot filed a motion for a new trial under rules 59 and 60 arguing “fraud, misrepresentation, and other misconduct by [Michaelson],” and, on November 3, 2023, filed a motion to stay the judgment. Both motions were denied on November 9, 2023, and this appeal ensued.¹

2. Factual background. Michaelson and Talbot were married on July 24, 2015. The parties have no children together, but Michaelson has four adult children and Talbot has one adult child. Michaelson is the chief of surgery at a local hospital. During the marriage, Talbot worked as an artist, and, after the parties’ separation, continued creating art and became employed as a teacher. The parties enjoyed a middle-class station, supported by Michaelson as the higher wage earner. With this income earned by Michaelson, the parties were able to meet their monthly expenses, support the needs and activities of their children, purchase numerous vehicles, and take vacations. The judge found that the high income was “often matched by equally large expenses,” but that expenses were paid in full monthly. Talbot contended that she was the primary caretaker of the marital home and the children, testimony that Michaelson disputed. The judge concluded that given Michaelson's full financial support of the household while also performing child care for her two children living at home, and given Talbot's contributions to “some of the household chores and some of the childcare,” Michaelson's contributions “outweigh[ed]” Talbot's contributions.

Relative to the marital estate, the judge found Talbot's “finished artwork as an asset,” and adopted the parties’ agreed value of “$250,000 if sold.” The judge found the fair market value of the marital home to be $830,000, with equity of $287,428.63 available for distribution. The judge excluded several of Michaelson's retirement and investment accounts from the marital estate because they were either opened and funded prior to the marriage or inherited. The judge included other accounts in the marital estate, including several types of individual retirement accounts, an investment account, and an account with the Massachusetts Teachers’ Retirement System, dividing the marital coverture values between the parties. The judge assigned the ten vehicles the parties owned between them. Further, the judge reduced Talbot's total equitable share of the marital estate by $43,000, representing advances for Talbot's legal fees during the litigation and monies that Talbot received from the sale of a group of her artworks immediately prior to the divorce filing.

The judge found that after paying expenses, Michaelson had available income of $367.35 per week, and after payments toward her debt, she had a net weekly income of negative $382.65. The judge found that after paying expenses, Talbot had available income of negative $347.15 per week, and after payments toward her debt, she had a net weekly income of negative $762.55. The judge found that Talbot had a need for alimony and that Michaelson had the ability to pay. The judge further concluded, however, that Michaelson's “ability to pay alimony warrant[ed] deviation” pursuant to G. L. c. 208, § 53 (e). In so ruling, the judge stated that “[Michaelson]’s ability to pay is tempered by large expenses that existed during the marriage as well as new expenses incurred more recently.” In paragraph 14 of the judgment, the judge ordered alimony from Michaelson to Talbot in the amount of $200 weekly for 204 weeks. She further ordered that Michaelson could elect to pay the alimony award in a lump sum of $40,800.

Discussion. 1. Motions to continue. First, we turn to Talbot's two requests to continue the trial. She claims that the judge's denials of her motion to change the trial date, filed on June 29, 2023, and of her oral motion “for adjournment ․ [and] continu[ance]” on the first day of trial, both of which were based on the unavailability of the counsel she wished to retain, were an abuse of discretion.² We disagree. “Whether a case shall be continued or proceed to trial is within the sound discretion of the judge,” Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984), and “[c]ontinuances shall be granted only for good cause[.]” Mass. R. Dom. Rel. P. 40(b). Here, Talbot sought to change the trial date because her prospective counsel was unavailable until a date more than six months in the future, rendering all four trial dates scheduled by the judge unworkable. Talbot made the same argument on the first day of trial, relying only on her preferred counsel's unavailability until January of 2024 in support of her oral motion. However, the judge had already reasonably granted the parties additional time to prepare for trial by continuing the matter from May 24, 2023, to June 15, 2023, for a status conference, and by scheduling the trial two months later in August of 2023. Moreover, the judge had presided over the parties’ motion practice and pretrial conferences under the individual calendar and was therefore in the best position to consider the litigation thus far, the complexities and facts of the case, and Talbot's demeanor in the court room when arguing for the continuances. Because “[t]he orderly management of the trial list is a legitimate concern of a judge ․,“ Beninati, supra at 535, we cannot say that the judge abused her discretion in denying both motions.

2. Motion for new trial. After the judgment entered, Talbot advanced a motion for a new trial under Mass. R. Dom. Rel. P. 59(a) and 60(b)(3). Rule 59(a) allows a judge to order a new trial “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the Commonwealth.” Rule 60(b)(3) permits relief from a judgment of divorce for “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Disposition of a motion under either rule rests in the discretion of the judge, and we reverse a denial only for an abuse of discretion. See Wojcicki v. Caragher, 447 Mass. 200, 209 (2006); Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 515 (2018). “[A] judge's discretionary decision constitutes an abuse of discretion where [the reviewing court] conclude[s] the judge made a clear error of judgment in weighing the factors relevant to the decision, ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Talbot argues that Michaelson testified falsely at trial about the parties’ economic and domestic contributions to the marriage and the length of their cohabitation. Talbot contends that the false testimony amounted to fraud on the court, warranting a new trial. We disagree.

“A ‘fraud on the court’ occurs where ‘․ a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’ ” Paternity of Cheryl, 434 Mass. 23, 35 (2001), quoting Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). “Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself” (citation omitted). MacDonald v. MacDonald, 407 Mass. 196, 202 (1990). This high burden has not been met here. The judge managed the divorce case for over one year, presided over two days of trial, and was in the best position to observe not only the witnesses to determine their credibility, but also the efforts of Talbot as a self-represented litigant. The judge gave both parties over three months to prepare for trial and there was no curtailment of their ability to call witnesses, offer exhibits, and conduct cross-examinations. Moreover, the possibility that a party may perjure himself is a “common hazard of the adversary process with which litigants are equipped to deal through discovery and cross-examination” (citations omitted), Sahin v. Sahin, 435 Mass. 396, 402 (2001), and “even [p]erjury does not constitute fraud upon the court when there is no evidence that the judicial process itself was corrupted” (quotation and citation omitted). Wojcicki, 447 Mass. at 210. There was no error.

3. Alimony. The objective of “alimony is to provide adequate support for a spouse who needs it.” Williams v. Massa, 431 Mass. 619, 634 (2000). Put differently, the purpose of alimony is to support a spouse who has become “economically dependent” on the other spouse. G. L. c. 208, § 48 (defining general term alimony). See Connor, 481 Mass. at 572. We review both property division under G. L. c. 208, § 34,³ and alimony awards under G. L. c. 208, §§ 48-55, pursuant to a two-step analysis. Hassey v. Hassey, 85 Mass. App. Ct. 518, 523 (2014). “First, we examine the trial judge's findings to determine whether all relevant factors were considered (and whether irrelevant factors were disregarded). Next, we decide whether the rationale underlying the judge's conclusions is apparent and whether these flow rationally from the findings and rulings” (quotation and citations omitted). Id. at 524. “[B]ecause the judge has considerable discretion, determinations as to alimony and property division will not be reversed unless plainly wrong and excessive.” Id.

In making an alimony order,

“a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.”

G. L. c. 208, § 53 (a). “A judge must consider and weigh all the relevant factors, but where the supporting spouse has the ability to pay, ‘the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage.’ ” Young v. Young, 478 Mass. 1, 6 (2017), quoting Pierce v. Pierce, 455 Mass. 286, 296 (2009).

Talbot argues, and we agree, that the $200 per week alimony award places the parties in disparate financial circumstances, and is not consistent with the judge's findings that Talbot has a need for support and Michaelson has an ability to pay. See Sampson v. Sampson, 62 Mass. App. Ct. 366, 369-370 (2004) (“The judge's own findings cast doubt on the wife's present ability to meet her ordinary needs”). The judge found that Talbot had expenses, including her liabilities, of $1,820.24 per week, and her gross income was $1,057.69 per week. This established Talbot's financial deficit at $762.55 each week. The judge further found that Michaelson earned gross income of $8,670.70 per week, and credited that Michaelson paid, as of the time of trial, $750 per week in debts attributable to legal fees, veterinary bills, credit cards and student loans for her children, which expenses had not accrued at the time of the parties’ separation and were in addition to her weekly expenses of $4,660.46. After carefully reviewing the findings and the record, we cannot conclude that the judge properly applied the factors for deviation pursuant to G. L. c. 208, § 53 (e), or had a reasonable basis for awarding alimony that is less than three percent of the difference between the parties’ gross incomes.⁴ See G. L. c. 208, § 53 (a), (b) (while the act does not define “need” or “ability to pay,” it provides that “the amount of alimony should generally not exceed the recipient's need or [thirty to thirty-five percent] of the difference between the parties’ gross incomes”). We discern no reasonable basis for the judge's prioritization of all of Michaelson's expenses, which permits her to maintain the marital lifestyle, over the payment of alimony to her dependent spouse. Indeed, the judge found that Michaelson's “available weekly income ha[d] improved during litigation” and that because of her high income, Michaelson's lifestyle “is essentially unchanged,” including continuing to pay for nonessential expenses such as “a housekeeper, lawn maintenance person and person to take care of the pool and expenses related to multiple cars and horses.” Even though the judge found that both parties “are living above their means” and couched the alimony award in “a fair balance of sacrifice,” Pierce, 455 Mass. at 296, there is little evidence of sacrifice by Michaelson. Rather, the award impermissibly maintained Michaelson in “the lifestyle the parties accepted and enjoyed” but permitted Talbot to fall far below that lifestyle, “sharing expenses with a roommate and [engaging] in minimal spending.” This was error and the award cannot stand. To the extent that the judge reasoned that Talbot “knew” about Michaelson's expenses, including child-related obligations ordered in her first divorce, this knowledge is insufficient to justify a downward deviation in the amount of the award. See Zaleski v. Zaleski, 469 Mass. 230, 243 (2014) (“[N]eed ․ must be measured in light of mandatory considerations that include the parties’ marital lifestyle”).

We also conclude that the judge erred in ruling that Talbot's “work as an artist generates a lucrative source of revenue,” as this finding lacks evidentiary support in the record. Specifically, the findings that Talbot made a “one time sale” of a group of paintings in 2021 generating $21,000, just prior to the filing of the divorce, and two subsequent $1,000 sales, do not establish an ongoing revenue source. Neither party introduced evidence supporting an attribution of income to Talbot in her role as an artist, and the judge did not make the necessary findings to support such an attribution pursuant to G. L. c. 208, § 53 (f). To the extent that the judge relied on the unsupported finding to structure the alimony award, it constitutes error.

Further, the judge erred to the extent that she relied on the valuation of Talbot's artwork of “$250,000, if sold,” as the basis for finding that the art would generate future income. Pursuant to G. L. c. 208, § 34, the judge “considered [the] value [of the art] in distributing the parties’ property,” assigned the artwork to Talbot as “a marital asset,” and credited the $21,000 received by Talbot from the one-time sale of her art pieces to her in the property division, considering it “a pretrial distribution of marital assets.” See G. L. c. 208, § 34. Because the judge assigned these assets as part of the division of the marital estate but did not establish a “separate portion” of the asset as the basis of the support order, the valuation cannot support a finding that it generates income for alimony purposes. See Adams v. Adams, 459 Mass. 361, 394 (2011), S.C., 466 Mass. 1015 (2013).

Conclusion. Paragraph 14 of the judgment of divorce nisi, pertaining to alimony, is vacated. The case is remanded for further proceedings consistent with this memorandum and order. The judgment is otherwise affirmed, as is the order denying the motion for new trial. During the pendency of the remand, Michaelson shall continue to pay $400 per week as set forth in the temporary order as temporary alimony to Talbot, unless otherwise ordered by the judge or agreed to by the parties. The order denying the motion for new trial is affirmed.

So ordered.

FOOTNOTES

1.   Talbot appeals from the denial of her motion for a new trial as well as from the judgment, but not from the denial of a stay.

2.   Our review of Talbot's motion to change the trial date is hampered by her failure to include the transcript of the motion hearing in the record. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (it is party's “obligation to include in the record appendix any documents on which he relies ․ When a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document”).

3.   Talbot purports to contest the judge's division of the marital estate but raises no specific challenge to any findings related to the award or the legal conclusions supporting those portions of the divorce judgment. Where an argument merely asserts error without sufficient legal argument, the standard of Mass. R. A. P. 16 (a) (9) (a), as appearing in 481 Mass. 1628 (2019), is not met. Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011).

4.   The difference between $8,670.70 and $1,057.69 is $7,613.01, and 200 divided by 7,613.01 equals 0.026.