Opinion
15-P-146
11-25-2015
MICHAEL J. NORRIS v. PATRICIA M. NORRIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Patricia M. Norris (wife), appeals from a modification judgment entered in the Probate and Family Court terminating the alimony obligations of the plaintiff, Michael J. Norris (husband). We affirm.
1. Background. The parties were married in 1965 and divorced in 1987. As part of the judgment of divorce nisi, the husband was required to pay the wife $486 per week in alimony, continuing until the death of either party or the wife's remarriage, and to maintain his then current health and life insurance coverage for her benefit.
In 2008, the husband filed a complaint for modification asking to eliminate his alimony and health insurance obligations. Finding that the husband's reduced financial resources amounted to a material change in circumstance such that he could no longer pay the original alimony order, a probate judge ordered the entry of a modification judgment that reduced the husband's alimony obligation to $200 per week plus $60.50 per week to pay for the wife's health insurance.
In May, 2013, the husband filed another complaint for modification, seeking termination of his alimony obligation under the Alimony Reform Act (act), G. L. c. 208, § 49(f), inserted by St. 2011, c. 124, § 3, which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age." The sole basis for modification asserted in the husband's complaint was that he had reached full retirement age as of 2008 and therefore his alimony obligations had ceased pursuant to the act. The wife filed an answer and counterclaim. In her answer, the wife argued that § 49(f) does not apply retroactively and instead she called upon the judge "to make a traditional weighing of [the husband's] ability to pay as balanced against [the wife's] need." The wife's counterclaim sought modification of the husband's alimony obligation in an amount that would meet her needs and reflect the husband's ability to pay.
Following a trial, the same probate judge concluded that G. L. c. 208, § 49(f), did apply; that pursuant to the act, the husband's alimony obligations were terminated; and that the wife had failed to show good cause to extend the obligation. In addition, and in the alternative, as requested in the wife's answer, the judge weighed the relevant circumstances of both parties and determined that the husband had presented sufficient evidence to warrant a modification of his obligation.
2. Discussion. On appeal, the wife contends that the probate judge erred when he retroactively applied the act to the husband's complaint for modification. The husband concedes that this was error. At the time of the trial, neither the parties nor the judge had the benefit of the Supreme Judicial Court rulings in Chin v. Merriot, 470 Mass. 527 (2015), and two related cases in which the court concluded that the retirement provision of the act applied prospectively. See id. at 529; Rodman v. Rodman, 470 Mass. 539, 545-546 (2015); Doktor v. Doktor, 470 Mass. 547, 551 (2015).
The wife also argues that the judge erroneously placed the burden on her to prove good cause, by clear and convincing evidence, to grant an extension of the alimony obligation rather than placing the burden on the husband to prove that there had been a material change in circumstance. We do not discern such error. In concluding that the retirement provision of the act did apply in the instant case, the judge proceeded to assess whether, pursuant to § 49(f)(2), the wife had provided clear and convincing evidence that the obligation should be extended. As noted, this was error. However, this standard did not, as the wife asserts, bleed into the judge's alternative analysis of a material change in circumstance. Rather, the judge properly looked to the statutory factors governing modification that were in effect prior to the act, Doktor, supra at 551-552, and determined that the husband had demonstrated a material change in circumstance since the 2009 modification judgment. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).
The factors to consider in a complaint for modification include: length of the marriage, conduct of the parties during the marriage, age, health, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party, and opportunity for future acquisition of capital assets and income. G. L. c. 208, §§ 34, 37.
In his detailed findings of fact, the judge noted that the husband's income had increased since the 2009 modification. However, the husband had recently suffered from heart-related health issues and as a result could not maintain his law practice at its current level. The judge also noted that since the 2009 modification, the husband had lost his boat, boat slip, and secondary residence due to failure to meet his payments, resulting in his owning minimal assets. Given that his only source of income was his Social Security and his self-employment, and finding that the husband's liabilities had doubled since 2009, the judge concluded that the husband was unable to meet his expenses. In contrast, while acknowledging the wife's continued poor health, the judge found that the wife had substantial assets, including three income-producing properties, bank accounts, a certificate of deposit, a retirement account, and a vehicle, and had zero liabilities. The judge concluded that by using her Social Security benefits and rental income, the wife could cover most of her expenses.
Our review requires substantial deference to the trial judge; a modification judgment will not be reversed absent clearly erroneous findings of fact, errors of law, or an abuse of discretion. See Pierce, supra. Here, the erroneous retroactive application of the act does not require reversal because the judge also conducted a proper weighing of the parties' circumstances. Nothing in the record suggests that the judge's findings were clearly erroneous or that he abused his discretion in terminating the husband's alimony obligations.
Judgment affirmed.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 25, 2015.