Opinion
16-P-657
03-13-2017
Jeffrey D. REDIGER v. Mary P. WHITE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mary P. White (wife) appeals from a judgment of divorce nisi, challenging the amount and duration of the general alimony award that the Probate and Family Court judge ordered Jeffrey D. Rediger (husband) to pay. The husband, in turn, appeals from the judge's determination of his income for the purposes of awarding alimony. The wife also contends that the judge abused his discretion in dividing the marital estate. We affirm.
The Rules of Domestic Relations Procedure and the Rules of Civil Procedure are identical in all respects material to this appeal.
1. Timeliness of appeal . The judgment entered on June 18, 2015, and the wife filed a notice of appeal on July 1, 2015. On July 1, 2015, the husband filed two motions to alter or amend the judgment under Mass.R.Dom.Rel.P. 59(e). While the motions were pending, on July 13, 2015, the husband filed a notice of appeal from the judgment. The trial judge denied the husband's rule 59(e) motions on July 17, 2015, and the husband filed a new notice of appeal from the judgment and from the orders denying his rule 59(e) motions on August 7, 2015. The wife did not file a new notice of appeal.
The husband served those motions by mail on June 29, 2015; they were docketed on July 1, 2015. One motion contested the judge's calculation of the husband's income, and the other sought the addition of attorney's fees.
On October 28, 2015, the wife filed a motion for clarification or, in the alternative, a motion to file a late appeal. In an order entered on October 30, 2015, the trial judge found that the wife's July 1 notice of appeal "was timely and still current."
The husband argues that the wife failed to perfect her appeal because the filing of his motions to alter or amend rendered her notice of appeal a nullity. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). He is correct. "It is well settled that a timely filed motion to amend the judgment operates to toll the appeal period, and a notice of appeal filed between the entry of the judgment and the disposition of the motion to amend is a nullity." Eyster v. Pechenik , 71 Mass. App. Ct. 773, 779 (2008). See Mass.R.A.P. 4(a) ; Anthony v. Anthony , 21 Mass. App. Ct. 299, 300-302 (1985) ; Sawyer v. Sawyer , 66 Mass. App. Ct. 906, 906-907 (2006).
To be timely, "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment" (emphasis added). Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974). See Mass.R.A.P. 4(a)(3) ( rule 59 or rule 60 motion "served within ten days after entry of judgment" resets time for appeal for all parties [emphasis added] ). The husband served his rule 59 motions on Monday, June 29, 2015, which, under Mass.R.Civ.P. 6(a), 365 Mass. 747 (1974), was the tenth day after the entry of judgment (June 28, 2015, being a Sunday). The result of the husband having timely served his motions was that the wife's July 1 notice of appeal, as well as the husband's July 13 notice, "have no effect." Mass.R.A.P. 4(a).
The time for filing a notice of appeal thus began to run on July 17, 2015, the day the judge denied the husband's postjudgment motions, and expired on August 17, 2015 (August 16 being a Sunday). The husband's August 7 notice of appeal was thus timely. Under Mass.R.A.P. 4(c), as amended, 378 Mass. 929 (1979), the judge had the authority to extend the appeal period for another thirty days, that is, until September 16, 2015. See Mass.R.A.P. 4(c) ("Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal ... for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this rule"). However, at the point that the wife filed her October 28 motion, asking the judge either to deem her July 1 notice timely or to consider the October 28 motion as a new notice of appeal, "the probate judge lacked the authority under Mass.R.A.P. 4(c) to enlarge the appeal period to encompass the [October 28] notice of appeal." Eyster , supra at 780.
Accordingly, the wife's appeal should be dismissed. Nonetheless, we will address the wife's appeal because she may have relied on the trial judge's erroneously having deemed her notice of appeal "timely and still current," the husband has not moved to dismiss the appeal, both parties have thoroughly briefed the issues, and the husband has not been prejudiced. See id . at 781-782.
2. Alimony . a. The wife's claims of error . We begin by listing the wife's claims of error pertaining to alimony that we will not consider. The wife claims that the judge erred by attributing to her an annual income of $60,000, by subtracting from the duration of the husband's alimony obligation the prejudgment period during which she received temporary alimony, by failing to include the parties' premarital period of cohabitation in the length of the marriage, and by failing to consider her "advanced age" in determining the duration of the alimony. The wife did not raise any of those claims at trial. Indeed, with respect to all of those determinations, the judge followed the recommendations set forth in the wife's proposed judgment of divorce submitted after trial. Having asked the judge to make those findings and determinations, the wife is foreclosed from attacking them on appeal. See Box Pond Assn . v. Energy Facilities Siting Bd ., 435 Mass. 408, 422 n.14 (2001) ; Larson v. Larson , 28 Mass. App. Ct. 338, 341 (1990) ; Freedman v. Freedman , 29 Mass. App. Ct. 154, 155-156 (1990).
After a trial at which the husband, the wife, and one other witness testified, the judge found the husband's total weekly income to be $5,459. The wife argues that the judge erred because the husband "always earned substantially more income" during the marriage and the timing of his voluntary reduction in income was "too coincidental."
When a party in a divorce case "is earning less than he could with reasonable effort, the trial judge may consider potential earning capacity rather than actual earnings." Schuler v. Schuler , 382 Mass. 366, 374 (1981). "A judge, however, is not obligated to use a party's potential earning capacity as the measure of the party's ability to pay." Pierce v. Pierce , 455 Mass. 286, 297 (2009). "[A]n involuntary, or a good faith voluntary, career change" may warrant a reduction of alimony. Schuler , supra at 373.
The trial judge squarely addressed the wife's claim that the husband's reduction in income was "suspicious." The judge found that the reduction was in part involuntary, based on the husband's second employer's implementation of a longstanding plan to convert his consultant position—compensated based on the number of patients treated—with a more limited, salaried position. The reduction was partly voluntary too: "[T]he Husband worked extremely long hours during the marriage, and ... a reduction in his hours was totally warranted." The judge "found the Husband to be credible in his explanation of his current, albeit reduced, earnings." The wife has not shown the judge's decision, based on his credibility determinations, was clearly erroneous as a matter of fact, erroneous as a matter of law, or an abuse of discretion. See Pierce , supra at 293.
We also disagree with the wife's claim that the judge failed to take her "need"—that is, her ability to maintain the marital lifestyle—into account in fashioning the alimony award. The judge specifically stated that his award was designed to enable the wife "to live a lifestyle that somewhat approaches the lifestyle she enjoyed with the Husband during the marriage," and awarded her an amount equal to thirty percent of the difference between the parties' gross incomes under G. L. c. 208, § 53(b ). In general, such an award "will be deemed reasonable and lawful." Hassey v. Hassey , 85 Mass. App. Ct. 518, 525 (2014). Nothing about the parties' circumstances in this case warrants an exception from the general rule.
Likewise, in rejecting the husband's argument that the income used to calculate child support in his first divorce should be excluded from his income for determining his second wife's alimony, the judge noted that the result would be unfair to the wife, who was "entitled to live a post-divorce lifestyle similar to the lifestyle the parties enjoyed during the marriage."
b. The husband's appeal . The husband claims that in determining the alimony payments owed to the wife in this case, the judge erred by including the income used to calculate the husband's child support obligation owed to his first wife in the husband's prior divorce. General Laws c. 208, § 53(c )(2), inserted by St. 2011, c. 124, § 3, provides that in setting the amount of alimony, "the court shall exclude from its income calculation ... gross income which the court has already considered for setting a child support order." Because his child support order after his first divorce was based on $3,008 of the husband's weekly salary, the husband contends that the judge should have subtracted that amount from his weekly income of $5,459. (Instead, the judge subtracted $848 per week, the actual amount of the husband's weekly child support payments.)
Nothing in § 53(c ) requires the judge in a subsequent divorce case to exclude gross income that another judge "has already considered for setting a child support order" in a prior divorce case. Section 53 concerns the factors that "a court" must consider in determining alimony between "the parties." See G. L. c. 208, § 53(a ) ("a court shall consider ... age of the parties ; health of the parties ; ... employment and employability of both parties ...; economic and non-economic contribution of both parties to the marriage; ... ability of each party to maintain the marital lifestyle" [emphasis supplied] ); G. L. c. 208, § 53(b ) (alimony based on "difference between the parties ' gross incomes" [emphasis supplied] ). Indeed, § 53(c ) itself, which dictates the sources of income that "the court shall exclude from its income calculation," also excludes income derived "from assets equitably divided between the parties under section 34" (emphasis supplied). G. L. c. 208, § 53(c )(1). In short, nothing in § 53 directs the court in the divorce action before it to consider calculations made or factors considered in other cases. Contrary to the husband's argument, the trial judge did not read the words "in the action in which alimony is ordered" into § 53 ; those words are implied. Rather, it is the husband who substitutes the words "any" for "the," and adds the words "in any action" into § 53(c )(2) (i.e., "gross income which the any court has already considered for setting a child support order in any action ").
In denying the husband's motion to alter or amend, the judge listed several practical and logistical problems that the husband's approach would create by requiring different judges and parties in separate divorce proceedings to coordinate their actions. For example, if child support in the first case is modified, the judge asked rhetorically, "Does that mean the alimony in the second case must also be modified? Is this recalculation automatic or must the recipient spouse keep tabs on the child support paid in the first case and file his or her own modification accordingly?"
Unlike § 53(c )(3), the child support guidelines, which also apply to the calculation of income for alimony purposes, do address prior child support orders in other cases. Specifically, with respect to "amounts actually paid to support a former spouse or a child," the guidelines direct the court to deduct "from gross income ... the amount of prior orders for spousal and child support." Massachusetts Child Support Guidelines II-H (2013). See Department of Rev. v. Mason M ., 439 Mass. 665, 670-671 (2003). The judge followed the guidelines approach and subtracted $848 per week from the husband's income before calculating the alimony award. The judge correctly accounted for the husband's preexisting child support obligations.
3. Asset division . The wife argues that the judge generally abused his discretion by ordering an inequitable division of the assets, particularly by awarding the marital home to the husband.
The wife also claims that the judge erred by failing to divide the retirement accounts equally, citing a $142,600.53 discrepancy between a prior and superseding financial statement. As with several of the wife's arguments regarding the alimony calculation, she did not raise that issue at trial, but rather proposed the very order that she now challenges ("Each party shall retain the retirement funds in their individual names as listed on their respective financial statements"). The claim is waived.
We review the judge's findings to determine whether he considered all the relevant factors under G. L. c. 208, § 34, and did not rely on any irrelevant factors. See Redding v. Redding , 398 Mass. 102, 107 (1986) ; Zaleski v. Zaleski , 469 Mass. 230, 245 (2014). "We then determine whether the reasons for his conclusions are ‘apparent and flow rationally’ from his findings and rulings." Baccanti v. Morton , 434 Mass. 787, 790 (2001), quoting from Williams v. Massa , 431 Mass. 619, 631 (2000). "We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ " Zaleski , supra , quoting from Mahoney v. Mahoney , 425 Mass. 441, 447 (1997).
The parties were married to each other for eight years and one month—it was the second marriage for both of them. The judge considered the § 34 factors and decided that the husband should retain the marital home, which he brought into the marriage, and that the remaining assets should be divided "more or less equally"—allowing the parties to keep their own bank and retirement accounts, which they maintained separately during the marriage.
The judge did not err by failing to "mention" the "interconnection of alimony to the property division." Under § 34, as amended through St. 1977, c. 467, "[i]n addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any party of the estate of the other." Here, the judge ordered alimony consistent with § 53(b ), specifically finding that the amount of alimony, coupled with the wife's own earnings, would allow her to live in a manner approaching her marital lifestyle. The judge implicitly determined that it was unnecessary to award the wife additional assets to supplement the alimony award.
The judge found that the husband "deserved to receive all the equity in the former marital home, as he brought the property into the marriage and paid off the prior mortgages from his income during the marriage" and "subsequently bore a minimum of $519,000 in renovation expenses." The judge acknowledged that the wife was actively involved in renovating the marital home. Those are, of course, proper factors for consideration. See G. L. c. 208, § 34, inserted by St. 1974, c. 565 ("The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit"); Richman v. Richman , 28 Mass. App. Ct. 655, 663 (1990) (judge appropriately emphasized that marriage "was a childless, ‘short term’ marriage" and "that the husband owned the great bulk of his assets before the marriage").
However, the judge disbelieved the wife's testimony that she spent $200,000 of her own money on the renovations, and further found "that any amounts she may have contributed to renovating the home ... was greatly outweighed by the excessive compensation she received [from the husband] as manager of [the husband's] LLC." Giving due regard to the judge's credibility determinations, as we must, see Serino v. Serino , 6 Mass. App. Ct. 926, 926, 926 (1978), we are not persuaded that the judge's findings were clearly erroneous or that his disposition of the home—or the approximately equal distribution of the remaining assets—was an abuse of discretion. See Gaw v. Sappett , 62 Mass. App. Ct. 405, 409 (2004) ("[A]n appellate court will not reverse the judge's decision to believe one witness rather than another unless that choice is convincingly shown to have been plainly wrong").
We deny both parties' requests for awards of attorney's fees associated with the appeal.
Judgment affirmed.
Orders entered July 17, 2015, denying motions to alter or amend judgment affirmed.