Opinion
15-P-1479 16-P-713
08-03-2017
George R. COOPER v. Karen COOPER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
George R. Cooper (husband), the former husband of Karen Cooper (wife), appeals from a "bifurcated modification judgment," which (1) denied his request to terminate his weekly alimony obligation of $900, and (2) increased his weekly child support obligation from $300 to $600. The wife appeals from the order denying her motion pursuant to Mass.R.Dom.Rel.P. 60 for relief from that judgment and two related judgments. We affirm.
The husband also appeals from the order denying his "motion to alter and amend bifurcated judgment of modification," essentially duplicating certain arguments raised in connection with his appeal from the underlying bifurcated modification judgment.
Background. After a marriage of nearly twenty-eight years, the parties were divorced on January 22, 2007, pursuant to an amended judgment of divorce nisi incorporating the parties' separation agreement of the same date. Under the separation agreement, the wife received physical custody of the parties' three youngest unemancipated children, while the husband received physical custody of the remaining three unemancipated children. At the time of the divorce, the husband was the family's sole wage earner, working at Kronos, Inc. (Kronos), and earning an annual base salary of $200,000, along with fluctuating income from bonuses and stock options. The separation agreement required the husband to pay support to the wife of $1,200 per week, $900 of which was designated as alimony and $300 of which was designated as child support. The husband also agreed to pay additional alimony equivalent to twenty percent of his gross bonus income, if and when received.
The parties have seven children together, but the eldest was already emancipated by the time of the divorce.
With respect to the property division, the separation agreement provided, as relevant here, that the wife would receive a one-half interest in certain Kronos stock options acquired by the husband during the marriage; however, the wife waived "any ownership right she may have in and to any [stock] options granted to and/or acquired by the [husband] after the date of approval of [the separation] agreement by the court." The separation agreement further provided that the provisions concerning alimony and child support would merge with the judgment of divorce and would therefore be modifiable through an "appropriate legal proceeding."
Following the divorce, the husband left Kronos to work for Mercury Computer Systems, Inc. (Mercury), where he earned an annual base salary of $215,000, along with additional income from bonuses and stock awards. In 2011 the husband earned a total of $479,383.55 from Mercury, $153,912.50 of which was derived from stock. In August of 2012, the husband was laid off from Mercury, and he received a severance package entitling him to one year of his base salary. Despite the layoff, the husband earned a total of $401,646 in 2012, including stock income. In February of 2013, the husband was hired by Philips Electronics (Philips), initially earning an annual base salary of $175,000, which was increased to $200,000 in March of 2014. Accordingly, during 2013, the husband received income from both Mercury and Philips, earning a total gross income of $290,634 in that year.
In September of 2011, the wife filed a complaint for modification seeking an increase in both alimony and child support on the basis that only one unemancipated child continued to reside in the husband's home. In August of 2013, the husband filed his own complaint for modification seeking the termination of his alimony obligation and an "adjust[ment]" of his child support obligation "in accordance with the new child support guidelines," on the basis that his income from Philips was "substantially less" than his previous earnings at the time of the divorce. The wife then filed a second complaint for modification (styled as a counterclaim to the husband's complaint for modification) in January of 2014, again seeking an increase in child support and alimony, partly on the basis that now all three children previously in the husband's custody had become emancipated. The wife also requested that the modified support order be calculated using "all compensation" received by the husband, including any income from stock options.
In May of 2014, a trial was held before a judge of the Probate and Family Court regarding the financial and support-related issues raised in the parties' consolidated complaints for modification. On November 3, 2014, the judge entered the bifurcated modification judgment, denying the husband's request to terminate alimony and increasing his weekly child support obligation from $300 to $600. The same day, the judge entered a separate modification judgment, denying the wife's request for an increase in alimony, expressly referencing the findings in the bifurcated modification judgment. On November 14, 2014, the husband filed a motion to amend and alter the bifurcated modification judgment, which the judge denied on November 18, 2014. The husband timely appealed from both the bifurcated modification judgment and the order denying his motion to amend and alter.
The nonfinancial issues were set aside for hearing at a later date and are not relevant on appeal.
The bifurcated modification judgment resolved the modification complaints of August of 2013 (husband's) and February of 2014 (wife's). The separate modification judgment resolved the wife's modification complaint filed in September of 2011. This latter judgment was not the subject of a notice of appeal and is not before us.
Almost one year later, on October 29, 2015, the wife filed a motion for relief from judgments pursuant to rule 60, which was denied on November 13, 2015. The wife timely appealed from that order.
The wife's motion sought relief from the 2014 bifurcated modification judgment, the 2014 separate modification judgment, and a supplemental judgment dated June 15, 2015, which is not before us on appeal.
The parties' respective appeals were not consolidated but were heard together at oral argument.
Discussion. The husband's appeals. The husband argues that the upward modification of his child support obligation without a corresponding termination of alimony was an abuse of discretion because (1) there was no evidence that the parties' financial circumstances, or the children's needs, had changed in a manner that would warrant an increase in support, and (2) due to the enactment of the Alimony Reform Act, G. L. c. 208, §§ 48 - 55 (act), inserted by St. 2011, c. 124, § 3, the judge was no longer permitted to make an alimony order based on income that had already been considered for purposes of calculating child support. We address the husband's arguments in turn.
We review a judge's decision on a request for modification of alimony or child support for abuse of discretion. See Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017). An abuse of discretion occurs where "the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
1. Child support. "The method for calculating and modifying child support" is governed both by statute, see G. L. c. 208, § 28, and by the Massachusetts Child Support Guidelines (guidelines). Morales v. Morales, 464 Mass. 507, 509-510 (2013). The guidelines "have presumptive application to actions to modify existing [child support] orders." Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 526 (2016), quoting from Croak v. Bergeron, 67 Mass. App. Ct. 750, 754 (2006). The guidelines permit a judge to modify a child support order in certain circumstances, including if "there is an inconsistency between the amount of the existing order and the amount that would result from the application of the ... guidelines" or if "any other material and substantial change in circumstances has occurred." Child Support Guidelines § III-A (2013) (Guidelines).
The husband argues that the upward modification of child support was inappropriate in this case, given that the judge found the husband's "financial picture" to be "largely ... unchanged since 2007" and did not find that the children had any specific increased needs. But while a change in a support payor's financial resources, or in the needs of the children, may indeed justify a modification of child support, see Brooks v. Piela, 61 Mass. App. Ct. 731, 734-735 (2004), the judge here did not rely on those grounds. Rather, the judge found that modification was warranted in light of the emancipation of all three children formerly in the husband's custody. It is apparent that the judge viewed the emancipation of the three older children as akin to a custody change, as the prior "split" custody arrangement established at the time of the divorce no longer existed, essentially having been replaced with a sole physical custody arrangement. The calculation of child support under the guidelines varies, in turn, on the custody arrangement between the parties. See Guidelines § II-D. Thus, it was not an abuse of discretion for the judge to conclude that the wife's new status as the "sole" custodial parent warranted an upward modification of child support. See G. L. c. 208, § 28, as amended by St. 1993, c. 460, § 62 (in setting child support order, court shall consider "whether the obligor ... is responsible for the maintenance or support of any other children").
"These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.... Where there is more than one child covered by this order and each parent provides a primary residence for one or more of these children, child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient using the number of children in his or her care, and second with the other parent as the Recipient using the number of children in his or her care. The difference in the calculations shall be paid to the parent with the lower weekly support amount." Guidelines § II-D.
We reject the husband's various contentions that the judge erred in determining the parties' respective financial circumstances, which he says led to an excessive support award. He first argues that the wife's "financial status has improved ... to a greater degree than the trial judge found," claiming that her financial statement failed to disclose certain assets and financial assistance from her father. But although the wife testified that she received monetary gifts from her father in the past, we see nothing in the record that would require the judge to treat such gifts as a regular stream of income for purposes of calculating child support. See Fehrm-Cappuccino, 90 Mass. App. Ct. at 529 ("[T]he judge must make detailed findings to justify including [financial] contributions from [a third party] in a child support recipient's income"). And with respect to the husband's claim that the wife failed to disclose assets on her financial statement, he has neglected to provide appropriate record references in support, as required by Mass.R.A.P. 16(e), as amended, 378 Mass. 940 (1979). The only assets he even identifies are certain trust accounts, but the evidence showed that the money in those accounts belonged to the wife's father and was not accessible to her. We are unable to discern what other missing assets the husband is referring to in his brief.
The husband also contends that the judge erred in determining his financial status. The judge's "material error," he asserts, "was in finding that a portion of [his] 2013 gross income was from stock awards because the entire basis for the increase in child support ... was due to stock award income the [judge] mistakenly believed that [he] had and continued to have." As previously discussed, however, the basis for the increase in child support was the change in custody triggered by the emancipation of the three eldest children. Furthermore, while the judge may have incorrectly characterized the nature of the husband's income in 2013 (which was derived from a combination of Mercury severance pay and Philips salary), we do not read the judge's findings to rest on an assumption that the husband would continue to have stock award income after leaving Mercury. To the contrary, the judge acknowledged that the husband's income in 2012 was "unusually high" because of the stock awards.
Although the husband argues that the wife waived her right to share in any stock award income he received after the divorce, the bifurcated modification judgment does not expressly require the husband to pay support to the wife from such income. Moreover, while it is true that the wife waived any ownership interest in the husband's future stock awards for purposes of the property division, there is no indication in the separation agreement that the wife waived her right to seek child support based on any future stock income. Indeed, "even if the [wife] did waive her right to any interest in the income at issue, that waiver could not operate to waive her children's right to child support from that income." Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 11 (2016).
In the end, although the judge's calculations may not have been a model of clarity, we conclude that any errors she may have made were harmless. Applying the guidelines using the husband's current annual base salary of $200,000 results in a presumptive child support order of $779 per week for two children. We therefore cannot say, and the husband has not shown, that the amount ultimately ordered by the judge—$600 per week for three children—is excessive.
Because one of the three children in the wife's custody was nearly eighteen when the bifurcated modification judgment entered in November of 2014, any support ordered for her was arguably discretionary, rather than presumptive. See Guidelines § II-F ("In establishing support orders for children over age [eighteen] ... the Court shall exercise its discretion").
2. Alimony. The husband next argues that the judge was required, under § 53(c ) (2) of the act, to terminate his alimony obligation as she had already considered all of his income when calculating child support. See G. L. c. 208, § 53(c )(2) ("When issuing an order for alimony, the court shall exclude from its income calculation: ... gross income which the court has already considered for setting a child support order"). Based on our review of the record, however, it is apparent that the husband did not adequately raise this argument below. We therefore deem it waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Moreover, even if there were no waiver, the husband's argument would be unavailing given that the original alimony judgment predated the act, thus requiring the judge to apply "the terms and standards of modification existing at the time the judgment entered." Chin v. Merriot, 470 Mass. 527, 535 (2015). With one exception not pertinent here, "[a]limony judgments entered prior to the ... act may be modified only under the existing material change of circumstances standard." Id. at 536. In this case the judge found there to be no material change in either the wife's need for alimony or in the husband's ability to pay. See Pierce v. Pierce, 455 Mass. 286, 296 (2009), quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986) ("[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"). Specifically, the judge found that, while the wife "failed to show that she has an increased need" for alimony, she "has no reasonable opportunity to earn income ... [and] remains financially dependent upon [the] [h]usband," who "has the ability to continue to support the [w]ife." In addition, the judge properly considered "the parties' intentions as expressed in their [separation] agreement," Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 568 (2001), when finding there to be "no basis in the credible evidence submitted to modify the over-all structure of the support arrangements except to increase the child support component to reflect the [husband's] greater ability to contribute to the financial needs and betterment of those children." We see no basis to disturb these findings and thus conclude that the judge did not abuse her discretion in declining to terminate the alimony previously agreed to by the parties. ,
The husband's request in his reply brief to strike the statement of facts in the wife's brief is allowed. We have not considered the statement in reaching our decision.
To the extent that we do not address the husband's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
The wife's appeal. The wife appeals from the order denying her motion for relief from judgments pursuant to Mass.R.Dom.Rel.P. 60(b). Rule 60(b) authorizes relief from a final judgment on a variety of grounds, including "mistake," "fraud," and other extraordinary circumstances. Mass.R.Dom.Rel.P. 60(b). Rule 60(b) cannot be used as a substitute for a normal appeal, however. See, e.g., Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 156 (1993) ; Jones v. Boykan, 464 Mass. 285, 291 (2013). As the wife conceded at oral argument, the issues raised in her rule 60(b) motion could have been raised through appealing from the underlying judgments. She appealed from none of them. Thus, the judge did not abuse her discretion in denying the motion. See Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998) (judge's ruling on rule 60 [b] motion will not be reversed "except upon a showing of a clear abuse of discretion" [quotation omitted] ).
Although the wife's motion also sought relief under rule 60(a) ("[c]lerical [m]istakes"), that part of the rule is not at issue on appeal.
This rule is identical to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).
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Bifurcated modification judgment dated November 3, 2014, affirmed.
Order dated November 18, 2014, denying motion to alter and amend bifurcated modification judgment, affirmed.
Order dated November 13, 2015, denying rule 60 relief, affirmed.