Opinion
14-P-1850
03-08-2016
MERILYN G. BAMBAUER v. EDWARD E. BAMBAUER.
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 former husband, Edward E. Bambauer, appeals from a modification judgment in which his weekly alimony payment to his former wife, Merilyn G. Bambauer, was reduced from $600 to $200. On appeal his primary contention is that the amount of alimony should have been further reduced or terminated. We affirm.
Background. After twenty-eight years of marriage, the parties were divorced. Their divorce agreement was merged into the final judgment of divorce nisi dated April 11, 1997. The judgment provided that the husband would pay alimony until death of either party or remarriage of the wife. Thereafter, the amount of alimony was modified several times, ranging from a low of $500 per week to a high of slightly less than $1,500 per week, depending on the husband's income, and the husband also paid the wife $49.70 weekly in reimbursement for medical insurance. A 2001 modification proceeding resulted, in part, in an agreement that if the husband retired before 2008, he could not seek to modify the alimony obligation to an amount less than $500 weekly. In 2004 modification proceedings, the husband's alimony obligation was reduced to $1,000 per week.
The husband had a significant income from his work in financial, consulting, and accounting firms. The wife was a registered nurse and a social worker. At the time of the modification proceeding at issue, the husband was sixty-seven years old and the wife was sixty-five.
The husband filed the complaint for modification at issue in January of 2013, claiming that he had reached retirement age and that event terminated alimony in light of the Alimony Reform Act of 2011, St. 2011, c. 124 ("reform act" or "act"). See G. L. c. 208, §§ 48-55. The judge denied the husband's motion for summary judgement on the basis that the reform act was not retroactive in this respect, a ruling which proved prescient. See Chin v. Merriot, 470 Mass. 527, 535 (2015) ("[A]n order for alimony in a divorce judgment that entered prior to March 1, 2012, includes, as part of its terms, the standards for modification existing at the time the judgment entered, unless the parties explicitly agreed otherwise, or the alimony reform act itself unequivocally provides a specific exception that a provision governing modification is to have retroactive effect"). See also Rodman v. Rodman, 470 Mass. 539, 546 (2015); Doktor v. Doktor, 470 Mass. 547, 548 (2015).
In February, 2013, a temporary order reduced the husband's alimony payment to $600 per week. Trial was held on the issue of modification in June of 2013. Shortly thereafter, the husband was laid off. Upon the husband's motion, the record was reopened. The ruling challenged here was made based on the facts submitted and arguments made to the trial judge on the reopened record after further evidentiary hearing.
Discussion. On appeal the husband contends that the reform act should apply retroactively to proceedings to modify preenactment divorce judgments where the judge has found a material change of circumstances after the effective date of the act. This argument is foreclosed by Chin, supra, Rodman, supra, and Doktor, supra. A "modification based on the newly enacted durational limits in [the reform act] affords the sole exception to prospective application." Id. at 550. The husband does not argue that he is entitled to further modification based on durational limits; rather, he submits that his alimony obligation should not exceed thirty to thirty-five percent of the disparity in the parties' incomes, a concept imported from the reform act. See G. L. c. 208, § 53. This provision of the act is inapplicable to proceedings to modify a judgment that predates the act. Ibid.
The same result applies to the husband's argument that the retirement provisions of the act require automatic termination of alimony once the judge has found a change in circumstances after the effective date of the act. See Chin, supra.
We turn, as did the judge, to an examination of the complaint for modification under the applicable law at the time of the 1997 decree and the 2004 modification. "To be successful in an action to modify a judgment for alimony . . . the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment." Schuler v. Schuler, 382 Mass. 366, 368 (1981). See G. L. c. 208, § 37, as appearing in St. 1977, c. 495 (judge may modify alimony award and "make any judgment relative thereto which it might have made in the original action"). In reviewing a request to modify an alimony order, "a judge enjoys considerable discretion in fashioning an appropriate modification judgement, and . . . the judgment may not be reversed in the absence of an abuse of discretion." Pierce v. Pierce, 455 Mass. 286, 293 (2009). We examine whether "the judge made a clear error of judgment in weighing the factors relevant to the decisions, . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted). "The standard of review reflects substantial, but not unlimited, deference to the judge who saw the witnesses and heard the evidence." Pierce, supra.
The judge found that the husband's income was reduced and concluded that the reduction in income constituted a material change of circumstances. The judge further found that the husband's annual income was $42,224 and the wife's annual income was $32,136. The husband's weekly expenses, including the $500 alimony payment, were approximately $1,800, and his income of $812 left him with a weekly deficit of approximately $480, excluding payment of alimony. Comparatively, the wife's weekly expenses were approximately $760 and her income of $494.21, excluding receipt of alimony, resulted in a weekly deficit of $265.
The husband's income included unemployment benefits. The wife had continued to work on a part-time basis. The husband argued to the trial judge and on appeal that the wife had not used her share of the marital assets divided at the time of the divorce wisely. The wife contested this assertion, pointing to her use of cash assets and alimony payments to purchase a condominium, and her materially reduced standard of living. The judge made no explicit findings on these subsidiary factual questions, but implicit in his finding and conclusion that the wife was in need of continuous support is the conclusion that the wife's income and expenses were legitimate, and that the equities favored a continued award of alimony to the wife.
To arrive at the figure of $480, it appears that the judge used the $500 floor in the previous modification judgment, rather than the $600 per month award of temporary alimony in effect at the time of trial. The deficit would be $380 rather than $480 weekly if the $600 weekly amount in the temporary order were used.
The judge then considered the parties' assets. The husband had a total of $967,364.46 in assets, including a retirement account valued at $337,456 and a brokerage account valued at $137,388. The wife had $229,450 in total assets, including her condominium, two retirement accounts, and an investment account. The accounts were valued at approximately $160,000. The judge considered the factors enumerated in G. L. c. 208, § 34, and concluded that a reduction in the husband's alimony obligation from $600 to $200 was warranted "[i]n light of the length of the marriage, the incomes of the parties, their respective assets, and what is required to maintain a standard of living comparable to the one enjoyed during the marriage."
The husband maintains that the judge abused his discretion because the payment of alimony would involve a depletion of his retirement and investment assets. When determining whether to modify an alimony order, a probate judge must "evaluate and balance, fairly and equitably . . . all of the circumstances relevant to the totality of the parties' situations." Katz v. Katz, 55 Mass. App. Ct. 472, 478 (2002). "Capital assets should be used to evaluate a supporting spouse's ability to pay alimony in a modification proceeding." Id. at 481. The trial judge appropriately recognized that the value of the husband's assets was four times that of the wife, and the award of $200 per week in alimony fell well within the range of reasonable alternatives.
The judge made no findings regarding whether the $200 per month could be paid from the income stream, from retirement and investment accounts, or out of assets. We assume without deciding that it would be paid out of assets.
While, "a support provider does not 'have to deplete his total liquid or other assets in an effort to meet his support obligations,'" Katz, supra at 483, quoting from Schuler, supra at 375, there is no suggestion on this record that the order would require actual depletion of the husband's total assets.
Finally, the husband contends that the judge erred in concluding that the previous alimony order could not be terminated. At trial and on appeal the husband has argued only that the judge was required to terminate alimony under the act. As discussed above, the judge correctly rejected this argument.
"We are not inclined to disregard the theory of law on which the case was tried." Bercume v. Bercume, 428 Mass. 635, 642 (1999). The husband has not made any arguments based on the law as it existed at the time of the judgment either at trial or on appeal. Even if we were to consider such an argument, we think it clear from the judge's disposition that he found the wife in need of continuous support, did not consider termination of alimony to be an appropriate result, and that a reduction to $200 weekly struck the "fair balance of sacrifice." Pierce, 455 Mass. at 298. Having concluded that the award of alimony should be affirmed, we also affirm the award of reimbursement for medical expenses.
Under the law applicable at the time of the divorce judgment, termination of alimony was permitted. See Pierce, 455 Mass. at 287-288.
Modification judgment dated April 24, 2014, affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.