Opinion
10-P-2144
11-22-2011
WALTER ALTHERR v. CHIEKO ALTHERR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Walter Altherr (husband) appeals from a judgment of divorce that, among other things not relevant here, required him to pay Chieko Altherr (wife) alimony of approximately $1,187.10 per week. He contends that the alimony award constituted an abuse of discretion insofar as the judge failed adequately to consider the wife's actual need, and instead, simply made an award equal to one-third of the husband's adjusted gross weekly income. In addition, he argues that certain of the judge's findings are not supported by the evidence, and that the judge's rationale is insufficient to justify the alimony award. We affirm.
1. Alimony award. A judge has broad discretion in awarding alimony. Heins v. Ledis, 422 Mass. 477, 480-481 (1996). '[T]he statutory authority of a [judge] to award alimony [is] grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.' Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). The recipient spouse's need for support 'is measured by the ' station' of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.' Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). In making alimony determinations, G. L. c. 208, § 34, requires a judge to consider 'the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, and the opportunity of each for future acquisition of capital assets and income.' Heins, 422 Mass. at 481, quoting from § 34. The judge must make express findings indicating that each of the factors was weighed and that no irrelevant factors were considered.
'If a judge has made findings consistent with his obligations under G. L. c. 208, § 34 . . . his determinations as to alimony . . . may not be reversed unless 'plainly wrong and excessive." Adlakha v. Adlakha, 65 Mass. App. Ct. 860, 864 (2006), quoting from Redding v. Redding, 398 Mass. 102, 107-108 (1986).
Here, the husband's argument, essentially, is that the judge failed to consider and determine the wife's reasonable expenses or income required to maintain an appropriate living standard comparable to the husband and, instead, issued an order that was one-third of the husband's adjusted gross weekly income. We disagree. The judge's order clearly reflects an intention to provide the wife with a standard of living comparable to what she enjoyed during the marriage, Pierce v. Pierce, 455 Mass. 286, 296 (2009), and the award, which in fact is less than one-third of the husband's weekly adjusted income of $3,957, represents a reasonable means of accomplishing this goal. We discern no error.
One-third of the husband's weekly adjusted income of $3,957 would be $1,319.
2. Findings. The husband also claims that the judge's findings are not adequately supported in the record, especially the findings that, in Japan, the parties enjoyed an upper income lifestyle, and that they traveled abroad during the marriage. We have independently reviewed the judge's findings, which are well supported in the record. The husband testified at trial that while working in Japan he was living in a $9,000 per month apartment, and paid $40,000 to $50,000 per year for his son's schooling once the boy was out of preschool. These facts alone would substantiate the finding that the family enjoyed an upper income lifestyle. In addition, the husband testified that when the parties lived in Japan, he and the wife went abroad regularly. He testified, in part, that '[e]arlier in the marriage, we probably traveled internationally maybe twice a year.' The trips included a trip to Bali during the Christmas holiday.
3. Rationale. Finally, we find no merit in the husband's argument that the judge's rationale and considerations are not apparent in her decision.
Judgment affirmed.
By the Court (Graham, Rubin & Wolohojian, JJ.),