Opinion
No. 15–P–294.
06-28-2016
Patricia M. BRUMLEVE v. Daniel OUELLETTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Patricia M. Brumleve (wife) appeals from a modification judgment entered by the Probate and Family Court reducing the weekly alimony paid by her former husband, Daniel Ouellette (husband), from $1,000 to $550. We vacate the modification judgment and remand for further proceedings.
Background. After a twenty-one year marriage, the parties divorced in June, 2007, pursuant to a judgment of divorce, which incorporated the parties' separation agreement (agreement). The agreement required the husband to pay $500 per week as child support and $1,000 per week as alimony to the wife. The agreement further provided that the wife waived any interest in the husband's dental practice in consideration of the payment of alimony.
The provisions of the agreement pertaining to child support and alimony were merged with the divorce judgment and therefore did not survive and have independent legal significance. See Huddleston v. Huddleston, 51 Mass.App.Ct. 563, 564 n. 2 (2001).
At the time of the parties' 2007 divorce, the husband was earning $5,457.40 per week and had weekly expenses of $2,259.53 (not including child support and alimony), while the wife was earning $495 per week working as a clerk in the husband's dental office and had weekly expenses of $2,789.89. The wife stopped working for the husband after the divorce and did not obtain new employment.
In November, 2011, the husband filed a complaint for modification, seeking termination of child support and a reduction in alimony. On August 22, 2012, a judge of the Probate and Family Court entered a modification judgment (2012 modification judgment) that terminated the husband's child support obligation, but declined to reduce his alimony payments on the basis that there had not been a material change in the parties' financial circumstances.
The judge specifically found in 2012 that:
“[s]ince the time of the divorce, the [husband's] income has increased by approximately $800[ ] per week and the [wife] is not presently employed. Although her unemployment is by choice, and even if the [c]ourt attributed $500[ ] per week to the [wife] as income, the [husband] has not established a material change of circumstances warranting a [downward] modification .... More importantly, the parties' agreement, in establishing the alimony payment of $1,000[ ] per week, was based at least in part on the [wife]'s agreement to waive any interest in the [husband']s dental practice .... The parties' agreement appears to be in the nature of a property settlement, even though it is characterized as alimony .... The [husband] also raises the issue that the [wife] has been cohabitating with another individual for the past two (2) years. The fact that the [wife] is cohabitating does not require the [c]ourt to suspend, reduce, or terminate the alimony as provided in [G.L. c.] 208, § 49 [,] since that section of the law is to be applied prospectively only for judgments entered after March 1,2012 .... The [c]ourt, however, can consider the cohabitation as it relates to financial contribution as a factor [in] determining whether or not to modify the pre-March 1, 2012 judgment. The person with whom the [wife] is cohabitating pays her $100[ ] per week towards expenses. I find that this financial contribution is not a significant factor which would warrant modification of the alimony, particularly in light of the factors previously discussed.”
In April, 2013, the wife filed a complaint for modification, seeking an increase in alimony largely on the basis that her income had decreased due to the termination of child support. The husband counterclaimed, seeking to reduce or terminate his alimony payments on the basis that the wife had been cohabiting with another person for more than three months. On June 19, 2014, a different judge of the Probate and Family Court entered a modification judgment (2014 modification judgment) reducing the husband's alimony payments to $550 per week. In arriving at the reduced alimony figure, the judge attributed an earning capacity to the wife of $495 per week and attributed $524 per week in contribution from the wife's boyfriend and the parties' son, both of whom were living with her at the time. This appeal followed.
Discussion. On March 1, 2012, the Alimony Reform Act of 2011, St.2011, c. 124(act), went into effect. The act's cohabitation provision states that “[g]eneral term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household ... with another person for a continuous period of at least [three] months.” G.L. c. 208, § 49(d). In January, 2015, the Supreme Judicial Court ruled that the Act's cohabitation provision applies prospectively, and “therefore afford[s] no basis” for modifying an alimony obligation established prior to the act's effective date. Chin v. Merriot, 470 Mass. 527, 528–529 (2015). Accordingly, alimony obligations established prior to March 1, 2012, continue to be governed by the familiar “material change in circumstances” test. See id. at 531–535. As such, if, “as a result of cohabitation, the recipient spouse's economic circumstances have materially changed, then the court may alter or eliminate alimony. However, a judge may not modify a judgment solely on the basis of a finding of cohabitation.” Gottsegen v. Gottsegen, 397 Mass. 617, 625 (1986).
The judge found that the husband was “entitled to a modification of his alimony obligation as Wife has cohabited continuously for over three (3) years.”
Here, because the judge in this case did not have the benefit of Chin, the correct standard was not applied. The judge expressly relied on the act's “cohabitation” provision in reducing the husband's alimony obligation in the 2014 modification judgment. Moreover, as the wife's cohabitation began prior to 2012, that was not a material change in her living situation as of 2014. See Gottsegen, supra. There is no indication that the wife's earning capacity or expenses had materially changed between 2012 and 2014. In both 2012 and 2014, the wife reported a weekly contribution from household members of $100. To the extent that the judge chose to attribute a greater weekly contribution of $524 from the wife's household members , that additional amount was offset by the wife's loss of $500 per week in income following the termination of child support in 2012. Additionally, the husband's income had not “significantly changed,” and his expenses had actually decreased since 2012. It is therefore apparent that the reduction in alimony was not based upon a material change in the parties' financial circumstances. See Gottsegen, supra.
The judge who entered the 2014 modification judgment attributed an earning capacity of $495 per week to the wife. However, the wife's earning capacity (of approximately $500 per week) had already been considered by the judge who entered the 2012 modification judgment, and it was not deemed in 2012 a material change in circumstances warranting a reduction in alimony. See note 3, supra .
The wife's reported expenses had actually increased from $1,418 in 2012, to $1,894 in 2014. However, the judge disregarded $320 of the wife's expenses as reflective of her “discretionary ... lifestyle choices.” It is nevertheless worth noting that the husband's own reported expenses were roughly equal to those reported by the wife and there is no indication that the judge found the husband's expenses to be unreasonable. See Goldman v. Goldman, 28 Mass.App.Ct. 603, 611 (1990) (“Absent good reason, in a long-term marriage, there is no justification for the lifestyle of one spouse to go down while the other remains high”).
We do not reach the question of whether that finding was clearly erroneous, as we reverse on the basis of the judge's error of law.
See Downey v. Downey, 55 Mass.App.Ct. 812, 817 (2002) (“In all events, we perceive no sound reason why a child's emancipation, and the resulting loss of child support to a party, may not, in circumstances such as those presented here, be considered by a judge in determining whether there has been a material change in circumstances that would warrant the imposition of (or increase in) an order for alimony”).
At the time of the 2012 modification, the husband was earning $6,259.75 per week and had weekly expenses of $2,614.93 (excluding child support and alimony). At the time of the 2014 modification, the judge found that the husband was earning gross weekly self-employment income of $5,863 (although the husband acknowledged on his financial statement that his “total gross income per Sch[edule] C is approx[imately] $6,632[per week]”). In 2014, the husband had weekly expenses of $1,883 (excluding alimony).
Conclusion. The 2014 modification judgment is vacated and the matter is remanded for further proceedings. Pending final disposition, the judge shall make a temporary order for the payment of alimony as the judge may deem appropriate.
So ordered.