Opinion
19-P-1642
07-13-2020
KAREN A. FRITZMAN v. MICHAEL S. FRITZMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0.
Following a trial on the husband's complaint for modification of a divorce judgment, a Probate and Family Court judge modified the judgment by reducing the husband's alimony obligation from $1,100 per week to $330 per week. The modification was based on the judge's finding that the husband's income had been significantly reduced due to loss of employment. On appeal the wife claims, among other things, that the judge abused his discretion when he denied the wife's motion to amend so much of the judgment as ordered that the modification apply retroactively to the date of service of the modification complaint. We affirm.
Background. We summarize the relevant facts. The parties were married in 1991 and have two children together. When they divorced in 2010, the wife obtained primary physical custody of the children. At the time, the husband was employed by Maxim Integrated as a sales executive and earned $259,322 annually. Pursuant to the divorce judgment, the husband was ordered to pay the wife alimony in the amount of $1,100 per week plus thirty percent of any performance bonus. The parties remained joint owners of the marital home, but the wife lived there and paid the associated expenses including the mortgage.
Following argument, we remanded the case to the Probate and Family Court judge for supplemental findings of fact regarding the retroactive application of the reduction in alimony. Our factual summary includes these supplemental findings.
In November of 2015, Maxim Integrated terminated the husband's employment. The husband received a severance payment of $106,401.14, the equivalent of approximately five months' salary. In December of 2015, the husband filed a complaint for modification of the divorce judgment seeking to terminate his alimony obligation based on his loss of employment. The husband twice moved to reduce his alimony obligation pending trial. The judge denied the motions, and the husband continued to pay alimony pursuant to the divorce judgment.
The trial on the complaint for modification proceeded over three days beginning on March 27, 2017, and ending on June 5, 2017. The judge found that, at the time of trial, the husband was working at Home Depot, earning $12.50 per hour. The judge did not credit the husband's testimony that he could not find employment in his field. Rather, the judge found that the husband had failed to make diligent efforts to find comparable work and imputed income to the husband in the amount of $100,000.
The judge determined that the wife's need for alimony continued despite the increase in her post-divorce income. She was employed as a full-time school nurse at the time the complaint was filed. Although the wife was unemployed at the time of trial, the judge found that she was capable of obtaining gainful employment as a nurse and attributed income to her in the amount of $50,000. The judge further found that the husband benefited from the wife's maintenance of the marital home. However, when the home was sold, the husband received approximately $40,000 less than the wife from the net proceeds.
Based on these findings, the judge reduced the husband's alimony obligation to $330 per week and ordered that the modification apply retroactively to the date the complaint for modification was filed. The wife filed a motion to amend the modification judgment pursuant to Mass. R. Dom. Rel. P. 59 or, in the alternative, Mass. R. Dom. Rel. P. 60, claiming that retroactive application of the modification would require her to pay an arrearage of more than $90,000 and that the judge must have made a clerical error or mistake when he ordered that the judgment "shall be retroactive to the date of service." The judge denied the wife's motion by margin endorsement. This appeal followed.
We are not persuaded by the husband's argument that the appeal is time barred. The wife's motion to amend the modification judgment was denied on April 13, 2018. That order was entered on the docket on April 26, 2018. Because the date of entry controls the appellate timeline, the wife's notice of appeal filed on May 15, 2018 was within the thirty days permitted. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).
Discussion. We consider the wife's motion to amend as one filed pursuant to Mass. R. Dom. Rel. P. 60 (a) because she claims that retroactive application of the modification judgment was the result of a "typographical error." Rule 60 (a) allows a court to correct "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission." Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974). A judge presented with such a motion must consider "whether the judgment reflects the intent of the court at the time it was entered; and . . . whether the relief requested is essentially 'clerical' in nature rather than 'substantive' in nature." Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 396 (1994).
The provisions of Mass. R. Dom. Rel. P. 60 are identical to Mass. R. Civ. P. 60.
We review the denial of a motion to amend a judgment for an abuse of discretion, and where, as here, "the judge who originally ordered the judgment" denies a motion to amend that judgment, we grant deference to his recollection of his own "contemporaneous intent in framing the judgment." Gagnon, 36 Mass. App. Ct. at 400 n.7, citing DeLuca v. DeLuca, 26 Mass. App. Ct. 191, 194 (1988). The decision whether to make an alimony modification retroactive is made on a case-by-case basis and is left to the sound discretion of the trial judge. Boulter-Hedley v. Boulter, 429 Mass. 808, 809-810 (1999). Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004).
Here, the judge found that, at the time the complaint for modification was filed, the husband was unemployed and the wife was earning approximately $56,000 annually as a school nurse. The husband continued to pay alimony pursuant to the original divorce judgment when he was earning little or no income and the wife was earning significantly more than she was at the time the parties entered into a separation agreement. The judge further found that the husband drew down his savings in order to meet his alimony obligation and the costs of health insurance for the children. It was within the judge's discretion to determine how much the husband should be required to draw on his assets to meet these obligations. See Schuler v. Schuler, 382 Mass. 366, 375 (1981).
The judge also found that the husband curtailed his discretionary spending after he lost his full-time job. The wife, however, did not. From September of 2016 through the conclusion of trial, the husband was earning between $10 and $12 per hour, and his alimony payments during this period exceeded 200% of his gross income. The judge found that, even using the imputed income figure, requiring the husband to pay alimony in the amount of $1,100 per week would be "patently unfair" and leave the husband with "insufficient funds to sustain even a meager lifestyle." The judge concluded that under all of the circumstances, it would be inequitable not to make the modification of alimony retroactive.
The record shows that the judge had presided over the parties' divorce since 2010. He was in the best position to review the judgment and decide what result he intended. Gagnon, 36 Mass. App. Ct. at 400 n.7 (relevant inquiry under rule 60 [a] is what the judge intended to include in the judgment). See Sanborn v. Johns, 19 Mass. App. Ct. 721, 725 n.4 (1985). In light of his factual findings after trial and on remand, we discern no abuse of discretion in the retroactive application of the modification judgment. Accordingly, the order denying the wife's motion to amend the modification judgment was also within the judge's discretion.
We decline to address the wife's arguments related to the underlying modification judgment. The wife's notice of appeal refers only to the order denying the motion to amend the modification judgment. Therefore, the underlying modification is not properly before us. See Mass. R. A. P. 3 (c) (1), as appearing in 430 Mass. 1602 (1999) (notice of appeal shall designate the judgment or order appealed from). See also Siles v. Travenol Lab., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982).
The parties' requests for appellate attorneys' fees are denied.
Order denying motion to amend modification judgment or for relief from judgment affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 13, 2020.