Opinion
18-P-797
01-09-2020
Marjorie EIREF v. Daniel EIREF.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Daniel Eiref (father) appeals from an amended judgment of the Probate and Family Court, dated December 1, 2017, nunc pro tunc to October 18, 2017, ordering the father to pay $79,390 to Marjorie Eiref (mother), based on the judge's recalculation of the father's alimony obligation from 2009 through 2015. The sole issue before us is whether the judge, in recalculating the father's alimony obligation for the years 2009, 2010, and 2011, correctly applied a formula in the parties' separation agreement, which was incorporated and merged into the judgment of divorce. We conclude that the judge did not correctly apply the formula, and thus we vacate paragraph IX of the amended judgment and remand the matter.
The father also appeals from the original judgment dated October 18, 2017, the order denying his motion to alter or amend that judgment, and the order allowing the mother's motion for relief from that judgment, all of which preceded the December 1, 2017 amended judgment.
Background. Following a trial on multiple consolidated complaints for modification and contempt, the judge entered the amended judgment adjudicating the rights of the parties with respect to several matters, including alimony and child support. Among other issues at trial, the parties disputed whether the father had paid the proper amount of alimony required by the separation agreement during the years 2009 through 2015. As a result, the judge recalculated the father's alimony obligation for those years using the formula in the parties' separation agreement, compared that figure to the amount of alimony the father had actually paid, and determined that the father had underpaid the mother $79,390. Although this determination was in the judge's findings of fact dated October 18, 2017, the original judgment issued on the same day was silent as to this obligation. Both parties filed postjudgment motions to amend the original judgment. The judge allowed the mother's motion, denied the father's motion, and issued the amended judgment on December 1, 2017, ordering the father to pay the mother $79,390 as provided in the findings of fact dated October 18, 2017.
On appeal, the father argues that the judge miscalculated the father's alimony obligation for the years 2009, 2010, and 2011, using the parties' separation agreement. In support of this argument, the father relies on a clause in the parties' separation agreement that effectively limited his alimony obligation to no more than $99,000 in any given year. Thus, he argues that the judge erred by finding the father's alimony obligation to be $124,657 in 2009, $133,000 in 2010, and $133,000 in 2011. The mother argues that, notwithstanding the clause in the separation agreement, the judge had the discretion to determine the amount of alimony owed and that the amount ordered in the amended judgment was supported by the testimony and documentary evidence presented at the trial.
The clause states, in part:
"2. Alimony
From the first day of the month after this Agreement is approved by the Middlesex Probate and Family Court, the [father] shall pay the [mother] 34.5 [percent] (on an annualized basis) of his salary and bonus between $100,000.00 and $300,000.00 per year and 30 [percent] (on an annualized basis) of any salary and bonus he receives between $300,000 and $400,000 per year."
The clause further provides that the father's alimony obligation would be reduced in the event that the mother's income is in excess of $100,000.
On September 12, 2019, following oral argument in the present appeal, this panel remanded the matter to the judge, while retaining jurisdiction, "to further explain how [the] Father's alimony obligation for the years in question was recalculated." More particularly, we asked the judge to inform us whether, "in recalculating the Father's alimony obligation for the years 2009, 2010, and 2011, she intended to follow the formula set forth in the parties separation agreement, or ... to exercise her discretion based on the evidence and deviate from the formula." We also stated that "[t]he judge is not required to conduct a hearing or take evidence."
In response to our remand order, the judge submitted a written memorandum in which she stated that "the Court now realizes that although the formula set out in the Parties' separation agreement incorporated into the Judgment of Divorce was followed, there was a miscalculation of the alimony owed from [the] Father to [the] Mother for the three years in question, i.e., 2009, 2010[,] and 2011." The judge explained that the father's alimony obligation should have been $90,157.14 for 2009, $99,000 for 2010, and $99,000 for 2011. The judge concluded that, "based on the mathematical error ..., the ultimate [j]udgment should be amended."
Discussion. We review a judge's decision to deny a motion to amend judgment pursuant to Mass. R. Dom. Rel. P. 59 (e) for abuse of discretion. See R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 79 (2001). Moreover, we review a judge's interpretation of a separation agreement de novo, see Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008), and a judge's ultimate decision pertaining to alimony for an abuse of discretion. See, e.g., Pierce v. Pierce, 455 Mass. 286, 293 (2009) ; Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). Having considered the parties' arguments and the judge's response to this panel's remand order, we agree with the father that the parties' separation agreement effectively limited the father's alimony obligation to no more than $99,000 in any given year. We also agree with the judge that, pursuant to the separation agreement, the father's alimony obligation was $90,157.14 for 2009, $99,000 for 2010, and $99,000 for 2011, and that the amended judgment should be corrected to be consistent with these figures. See Page v. New England Tel. & Tel. Co., 383 Mass. 250, 252 (1981).
Mass. R. Dom. Rel. P. 59 (e) is identical to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974).
Whether this amendment is considered "clerical" or otherwise "substantive" is of no consequence because the father timely moved to alter or amend the judgment. See Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 399-401 (1994).
Conclusion. Paragraph IX of the amended judgment is vacated. On remand, the judge shall issue a further amended judgment and amended findings regarding the father's alimony obligation consistent with this memorandum and order. In all other respects the amended judgment is affirmed.
On remand the judge shall consider any sums already paid by the father pursuant to the amended judgment, and may conduct any necessary further proceedings not inconsistent with this memorandum and order. In his brief, the father represents that he paid the $79,390 ordered in the amended judgment and thus is entitled to a refund.
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So ordered.
vacated in part; affirmed in part