Opinion
11-P-885
04-02-2012
GEORGE J. LADEAU v. MARIA ILONA MONSBERGER-LADEAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Maria Ilona Monsberger-Ladeau (wife) appeals from a judgment on a complaint for modification of alimony by her former husband George J. Ladeau (husband). On appeal, the wife contends that the judge erred in reducing alimony by (1) misinterpreting the parties' separation agreement to preclude consideration of the husband's net worth and retained earnings in a Subchapter S corporation, (2) disregarding the husband's failure to timely provide accurate financial information, and (3) not considering the income and assets of the husband's present wife. We affirm.
1. Background. The parties divorced in June, 2005, after thirty-nine years of marriage. Their separation agreement memorialized their property division (which survived the judgment of divorce as an independent contract) and set the terms of alimony (which merged with the judgment). The wife received $1,111,171 as her share of the marital estate. Included in the wife's marital share was $696,628 that represented fifty percent of the husband's one-half interest in Winchendon Furniture Company, a Subchapter S corporation he owns jointly with his brother.
Regarding alimony, the agreement provides that the husband is to pay the wife $1,000 in weekly alimony, and further:
'In any future proceeding regarding alimony, the Wife's and Husband's award of her share of the marital estate as identified in Exhibit C herein shall not be considered in principle [sic] and/or in interest as a stream of income source to either the Husband or the Wife' (emphasis added).
At the hearing, the wife contended that because the alimony provision referred only to 'her' share of the marital estate, the judge should include the marital assets that the husband received in the property division as part of the income stream available to him for alimony purposes. Observing the unfairness and grammatical inconsistency inherent in the wife's interpretation, the judge offered to hear testimony on the parties' intent. The parties did not present such testimony.
In setting forth the rationale for modification, the judge interpreted the agreement to exclude each party's respective share of the previously divided marital property as an income stream and determined that she 'should look to [the parties'] respective income and earning capacity, not net worth, when determining need and ability to pay.' The judge found that the husband's earnings through self-employment had decreased as 'the furniture business, and specifically Winchendon Furniture's business, ha[d] declined significantly since 2005.' Meanwhile, the wife had increased her standard of living and cited expenses that appeared to be 'an attempt to justify a $1000 per week alimony order.' The judge concluded that the husband had demonstrated a material change in circumstances since the divorce judgment, that he was no longer able to pay alimony of $1,000 per week, and that the wife's needs could be met with a reduced alimony award of $400 per week. We discern no abuse of discretion or other error of law.
2. The separation agreement. In fashioning the modification, the judge appropriately looked to the separation agreement for guidance even though the agreement merged in relevant part with the divorce judgment. See Pierce v. Pierce, 455 Mass. 286, 302 (2009). Interpreting the pertinent language of the separation agreement, the judge did not err in concluding that neither party's share of the marital estate should be considered as a source of income for purposes of the alimony determination. Rather than focusing myopically on the single misplaced word 'her,' the judge viewed the relevant language regarding modification in context and as a whole and reasonably interpreted the provision as applying to the wife's and the husband's award of their respective shares of the marital estate. See USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989). The judge was not required to consider extrinsic evidence to clarify the ambiguous language when the parties failed to present such evidence. See ibid.
Because the parties agreed to exclude their respective shares of the marital estate from the alimony calculation, the judge correctly declined to include the husband's share of the marital asset (the S corporation and its retained earnings) as an available income stream. See Adams v. Adams, 459 Mass. 361, 394 (2011) (Massachusetts disfavors 'double-dipping,' awarding property to one spouse in equitable distribution and then also considering it as income source for support obligations); Katz v. Katz, 55 Mass. App. Ct. 472, 481 (2002); Sampson v. Sampson, 62 Mass. App. Ct. 366, 373-374 (2004).
In the division of marital property the wife received her share of the S corporation's value in cash, and the husband received his share of that asset by retaining his interest in the S corporation itself, including its retained earnings.
Even were that not so, on the record before us, the judge did not err in concluding that the retained earnings of the S corporation had steadily declined since 2005 and the company was losing money.
Nor did the judge err in finding that the wife's needs could reasonably be met by a reduced alimony award. See G. L. c. 208, § 34; Schuler v. Schuler, 382 Mass. 366, 370-371 (1981). After considering the statutory factors and weighing all relevant circumstances, the judge found that the wife's needs are closer to $550 per week than the $1,401 she claimed, and that her needs could reasonably be met using her weekly social security income of $195 and alimony of $400 (a total weekly income of $595). These findings are not clearly erroneous.
The record does not make plain whether the wife's $225 weekly interest income derives from her share of the marital estate, a source excluded under the agreement for purposes of determining a modification of alimony. In any event, the decision to modify is supported by the judge's findings that the wife's other income sources suffice to meet her roughly $550 weekly needs.
3. Husband's provision of financial information. We reject the contention that the judge erred by overlooking the husband's failure to timely provide accurate financial information. The judge acted within her discretion in dealing with discovery matters. See Grubert v. Grubert, 20 Mass. App. Ct. 811, 822 (1985).
Indeed, the judge awarded the wife a portion of her legal fees 'to compensate her for the husband at times being unresponsive to her discovery requests.'
4. Income and assets of present wife. The claim that the judge erred in failing to consider assets and income of the husband's present wife lacks merit. Whether to include the present wife's child support payments and income from the furniture business as income available to the husband for alimony purposes is a matter of discretion. Given the modest amount involved and the judge's finding that the new wife's employment was a cost-saving measure rather than an attempt to hide funds, we discern no abuse of discretion. Compare Cooper v. Cooper, 43 Mass. App. Ct. 51, 55-56 (1997).
She earned $18,129 in 2008, and $12,823 in 2009.
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Judgment affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),