Opinion
16-P-104
03-01-2017
Brian J. PICKERING v. Cheryl MENDES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties were divorced on October 28, 2010. In their separation agreement, they agreed that the husband would pay child support of $300 per week and alimony of $200 per week and that all issues related to the children and to alimony would be merged in the divorce judgment.
The children were fifteen and seventeen years old at that time.
On November 17, 2011, the wife filed a complaint for modification seeking an increase in the husband's alimony obligation. On December 21, 2012, the judge allowed the parties' stipulation that children no longer resided with the wife, and child support was terminated. The modification trial took place over three days in June of 2014. The judgment of modification entered on September 24, 2014, increasing the husband's alimony obligation to $719 per week. It was supported by the judge's findings of fact and a rationale.
Facts . The judge found the following facts. At the time of the 2010 divorce, the wife was not employed and was living in the marital home. Once the child support payments ceased in December of 2012, the wife's income consisted of a $200 a week alimony payment.
The wife suffers from fibromyalgia, Crohn's disease, chronic obstructive pulmonary disorder and chronic back pain. She had a stroke and several mini-strokes. The wife's health has deteriorated since the divorce. She was hospitalized three times in the year prior to the modification trial. She suffers from severe head pain and sensitivity to light. Her food expenses have grown because of her health needs. Her housing situation became unstable. She went from living in the marital home to living in a rental unit, a camper, a hotel, and then an apartment. The wife has relied on the financial assistance of her father, who has helped her pay for rent, prescription medications, heat, groceries, general living expenses, and a storage unit. She also borrowed money from a friend.
The husband has been employed as a heavy equipment operator with the same employer. His income has increased. In 2010, his gross weekly earnings were $1,575.74 a week, and his previous year's income was $72,006. In 2014, his gross weekly earnings were $3,265, and his previous year's income was $109,000.00. His expenses decreased. His 2010 weekly expenses were $2,179.84. His listed 2014 expenses were $1,963, but the judge found that they were inflated by $400, with $200 claimed for child support that was no longer due or paid and another $200 claimed for an allowance for the emancipated children. The judge noted that the husband listed no contribution to his household from his live-in girl friend.
The judge concluded: "Based on the credible testimony at trial, the Court finds that Plaintiff has met her burden of demonstrating a substantial and material change of circumstance since the entry of divorce. Plaintiff's testimony concerning her health and the dire financial circumstances in which she has found herself was credible." The judge declined to attribute income to the wife and concluded that she was in need of alimony to meet her basic expenses of shelter, food, and medical costs.
Crediting the husband's testimony that he is laid off for three months every winter, the judge calculated the alimony order based on his income during the remaining nine months. She concluded that he has the ability to pay the alimony without any sacrifice on his part.
Discussion . Because the divorce judgment entered prior to the effective date of the Alimony Reform Act of 2011, see St. 2011, c. 124, inserting G. L. c. 208, §§ 48 - 55, we apply the material change in circumstances standard in effect at the time the divorce judgment entered. Chin v. Merriot , 470 Mass. 527, 534-535 (2015). "[A] judge enjoys considerable discretion in fashioning an appropriate modification judgment, and ... that judgment may not be reversed in the absence of an abuse of discretion." Pierce v. Pierce , 455 Mass. 286, 293 (2009).
1. The husband argues on appeal that "[t]he trial court erred in allowing the wife to proffer medical testimony about her purported condition despite her failure to provide any corroborating documentation or proffer testimony from medical witnesses." First, the husband's counsel, who represented him below and now represents him on appeal, did not object to the wife's testimony about her health on direct examination except for an objection to one answer which was sustained and one question which was stricken. Secondly, he elicited much of the wife's testimony about her health during his cross-examination of her.
One of the pages of the wife's testimony about her health is not included in the record appendix.
The husband's reliance on tort cases in which the court ruled that the plaintiffs had to submit medical evidence to support their claims that the defendants had caused their medical injuries is misplaced. This is not a tort case; the wife is not claiming that the husband caused her health conditions; and, at any rate, the husband himself does not dispute their existence, asserting in his brief that "most, if not all, of the claimed medical conditions Wife suffers from existed at the time that the original amount of alimony was established."
As to the wife's testimony that her medical conditions had worsened since the time of the divorce and that she was hospitalized on three different occasions in the previous year, it was up to the judge to consider the wife's credibility and to decide how much weight to give to her testimony. Goodman v. Atwood , 78 Mass. App. Ct. 655, 657-658 (2011). Having noted that the wife did not proffer medical documentation, the judge went on to credit her testimony that her health has deteriorated since the 2010 divorce.
In her findings and rationale, the judge discussed the deterioration in the wife's health in the context of her inability to work. The husband does not argue on appeal that the judge erred in not attributing income to the wife.
2. Next, the husband argues that the judge erred in increasing his alimony obligation because the wife failed to show a material change in circumstances, pointing out that the loss of child support was not unexpected. However, the loss of child support may be considered in an action to modify the amount of alimony. Downey v. Downey , 55 Mass. App. Ct. 812, 817-818 (2002). The fact that the separation agreement provided that child support and alimony provisions would merge into the divorce judgment shows that the parties saw them as interrelated.
Furthermore, the loss of child support was not the only factor considered by the judge. The judge also considered the wife's deteriorating health, her additional expenses, her inability to work, her housing instability, the impossibility of living on $200 a week, the husband's increased income and decreased expenses, and the change in the wife's life-style from the one the parties maintained during the marriage. See Greenberg v. Greenberg , 68 Mass. App. Ct. 344, 347 (2007).
3. The husband also claims that the judge erred in failing to consider the wife's additional sources of income in the form of gifts from her father and her boy friend. The judge, who heard from the wife, her father, and the husband did not have to find that the father, who had helped his daughter in dire circumstances in the past, had an obligation to support her financially in the future and was going to do so. Similarly, the judge did not have to find that occasional loans from the wife's friend were gifts from a boy friend and that they would continue into the future and be part of her income.
"[T]he statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay." Pierce v. Pierce , 455 Mass. at 296, quoting from Gottsegen v. Gottsegen , 397 Mass. 617, 624 (1986). Here, the judge found that the wife's need for support had increased since the divorce and that the husband, whose income increased and expenses decreased, had the ability to provide that support.
4. Lastly, the husband argues that the judge twice improperly overruled his objection to her consideration of any evidence prior to the October 28, 2010, divorce. In the first cited instance, the wife testified that the family regularly went to their vacation home in New Hampshire. There was nothing improper about this testimony. Greenberg v. Greenberg , 68 Mass. App. Ct. at 347.
In the second instance, the husband's counsel did not object when the wife's counsel asked the husband a question about his income in 2008 and 2009. It was only after the wife's counsel asked the husband about his 2010 income listed on his financial report that husband's counsel objected to the question about the earlier years. The judge noted that the information about these years appeared on the same tax history report page that was part of the husband's 2012 tax return which was in evidence, stating that the information appeared in the same document and that the document spoke for itself. There were no further questions on that subject.
In his subsequent examination of the husband, his counsel questioned him about his overtime work before and after the divorce, the wife's work history prior to the divorce, her health prior to the divorce, and one of the reasons for the divorce.
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Based on the record before us, we cannot conclude that the judge abused her discretion.
Judgment of modification affirmed.