Opinion
18-P-678
03-20-2019
RICHARD H. KROCK v. BARBARA J. KROCK.
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 husband, Richard Krock, and the wife, Barbara Krock, were divorced after nearly thirty years of marriage on April 10, 1990 (nunc pro tunc to December 8, 1989). The judgment of divorce nisi required the husband, among other things, to pay to the wife general term alimony in the amount of $6,250 per month; to maintain for the wife existing or equivalent health and hospital insurance coverage; and to maintain a $1 million life insurance policy for the wife's benefit. Following a trial after remand on cross complaints for modification, a Probate and Family Court judge issued a modification judgment that terminated alimony and the life insurance obligation of the husband and also dismissed the wife's complaint for contempt. On appeal, the wife claims that the judge erred in terminating the husband's alimony obligation, refusing to increase the husband's alimony obligation, and in dismissing her contempt complaint against the husband. We affirm.
In 2014, following a trial, judgment entered in the Probate and Family Court terminating the husband's alimony obligation and dismissing the wife's contempt complaint. The wife appealed and a different panel of this court vacated the judgment and remanded the case to afford the wife an opportunity to conduct discovery pertaining to the husband's finances. See Krock v. Krock, 89 Mass. App. Ct. 1102 (2016).
1. Termination of alimony. The wife claims that the husband's alimony obligation should not have been terminated because the husband failed to prove a material change in circumstances, there was a significant disparity between the parties' finances, and the terms of the separation agreement modified by the judge disregarded those negotiated by the parties. The wife further claims that the husband's alimony obligation should have been increased due to the significant differences in the parties' lifestyles. We disagree with both claims.
"In reviewing a modification judgment, we examine whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused [her] discretion." Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017), citing Pierce v. Pierce, 455 Mass. 286, 293 (2009). "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). In "determining whether the amount of alimony should be modified based on a change of circumstances," the judge "must weigh all the statutory factors [under G. L. c. 208, § 34,] in light of the facts of the particular case," while "keep[ing] in mind that 'the 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.'" Pierce, supra at 295-296, quoting Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986).
As the divorce judgment establishing the husband's alimony obligation entered prior to the effective date of the Alimony Reform Act of 2011, see St. 2011, c. 124, and the length of the marriage makes this alimony award not subject to durational limits, we apply "the standards for modification existing at the time the judgment entered." Chin v. Merriot, 470 Mass. 527, 535 (2015).
In deciding whether there was a material change in circumstances, the judge carefully weighed the G. L. c. 208, § 34, factors and considered not only the husband's decrease in income and assets, but also the wife's decrease in living expenses and need for support. The wife claims that the husband's assets were undervalued and that they were not decreasing in value. We will not disturb a trial judge's factual determinations on appeal unless it is demonstrated that they are "plainly wrong." Clark v. Clark, 47 Mass. App. Ct. 737, 739 (1999), citing Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223 (1986) ("the weight and credibility of the evidence lie within the province of the trial judge," and "[o]ur task on appeal is limited solely to determining whether the judge's findings were plainly wrong"). The wife has not demonstrated that any of the judge's findings were plainly wrong.
The wife claims that the husband's burden was to show a material change of circumstances since the 2014 trial, not since the time of divorce. However, a different panel of this court, on the wife's appeal, vacated the earlier judgment from the 2014 trial and we do not have to solely look at changes from 2014 forward. See note 1, supra.
Here, at the time of trial, the husband was seventy-nine years old and had been retired for more than ten years. At the time of the divorce, the husband's weekly income was $51,217, while at the time of trial the husband received weekly income totaling $4,675.24, which was derived from dividend and interest income, annuity income, and Social Security income. The husband's total weekly expenses at the time of trial were $12,026.29. The judge also credited the husband's testimony that his assets, though significant, were decreasing in value and that he was selling stocks to pay his living expenses. The judge found that the husband's assets totaled $6,237,745.50 and that he had total liabilities of $5,8 65,963.02. On the other hand, the judge found that the wife's expenses had significantly decreased since the divorce, from $9,477 weekly to $1,965.33 weekly, and that she had assets totaling $1,669,083.90 and liabilities totaling $116,451. Additionally, the judge found that the wife was choosing not to take steps to sell property awarded to her in the divorce more than twenty-five years prior, with a current estimated value of $1 million, and that the wife also failed to provide credible evidence for her need of the Brewster property, as she was living with her daughter and son-in-law in New York at no cost.
The judge did not credit the wife's testimony regarding alleged loans she owed to her son-in-law because the judge found that they were not valid liabilities. The wife paid $350,000 to her daughter and son-in-law from the sale of her Dover home. The judge found that the wife "paid the monies . . . in order to reduce her assets and that the monies that she received were intended as yearly gifts."
In 2015 the wife sold the Dover home where she had lived for fifteen years, for $1,285,000, and she then purchased a house in Brewster. The Brewster house had a fair market value of $590,000 and a mortgage of $472,000; the wife has spent $70,000 on renovations to the house. The wife does not currently reside in the Brewster house and the judge found that the wife was unsure when she would move into it.
The judge also properly weighed the economic circumstances of the parties and found that the fair balance of sacrifice in this case did not require the husband to invade his assets to pay alimony to the wife where she has sufficient assets to meet her living expenses and she has substantially less debt than the husband. See Pierce, 455 Mass. at 296 ("The judge must consider all the statutory factors and reach a fair balance of sacrifice between the former spouses when financial resources are inadequate to maintain the marital standard of living"). The wife also claims that the judge improperly remarked that the husband's income derives from assets that were divided at divorce. However, this was a proper consideration where the income source alludes to the potential for "double dipping" and as such, "the judge must look to the equities of the situation." Croak v. Bergeron, 67 Mass. App. Ct. 750, 759 (2006). The judge did not abuse her discretion by considering the origins of the husband's assets, which consisted of assets that were previously divided in the divorce and those that he acquired after the divorce, in determining whether it would be a fair balance of sacrifice for the husband to deplete those assets to pay alimony. The wife claims, without citation to the record, that she made certain concessions at the time of the divorce in anticipation of lifetime alimony. Not only are these claims unsupported, the judgment of divorce was not the product of a separation agreement where the terms are bargained for between the parties. Rather, the judgment issued by decision of the divorce trial judge and therefore any negotiations are irrelevant.
Double dipping is a term used "to describe the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing [or not imposing] support obligations." Champion v. Champion, 54 Mass. App. Ct. 215, 219 (2002).
As to the wife's counterclaim for an increase in alimony, there was no evidence that she demonstrated a material change in circumstances to warrant an increase in alimony based on either disparity in maintaining the marital lifestyle or on any expenses that she would be unable to meet. See Heins v. Ledis, 422 Mass. 477, 485 (1996) (recipient spouse's need of alimony must be apparent from record). See also Chin v. Merriot, 470 Mass. 527, 538 (2015) ("A judge has considerable discretion in fashioning an appropriate modification judgment, and we will not disturb her judgment in the absence of an abuse of discretion").
2. Complaint for contempt. The wife's complaint for contempt alleged that the husband failed to maintain health insurance coverage for her that was equivalent to what was required under the divorce judgment. However, as the judge found, the wife failed to show by clear and convincing evidence that the husband disobeyed a clear and unequivocal command. Birchall, petitioner, 454 Mass. 837, 839 (2009). As the judge found, the obligation to maintain equivalent health insurance was not a clear and unequivocal command as the term equivalent was not defined in the judgment of divorce. Moreover, the husband made a good faith attempt to fulfill his obligations under the divorce agreement pertaining to health insurance coverage through reimbursement to the wife of costs and provision of supplemental coverage for her. There was no error.,
The wife's notice of appeal included an appeal from the order allowing the husband's motion to amend his modification complaint, and from evidentiary rulings at trial. The wife does not argue any of these issues in her brief, so we treat them as waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
We deny the husband's request for appellate attorney's fees.
Modification judgment affirmed.
By the Court (Meade, Blake & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 20, 2019.