Opinion
No. 12–P–375.
2013-01-18
Elizabeth MOORE v. James MOORE.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Elizabeth Moore, appeals from a judgment entered by a Probate and Family Court judge awarding her $250 per week in alimony from her former husband, defendant James Moore. The plaintiff argues that the judge abused her discretion in setting the amount of alimony because $250 per week is insufficient to meet her needs and is incommensurate with the defendant's ability to pay. We affirm.
Background. The parties were married on June 14, 1980, when the plaintiff was nineteen and the defendant was twenty-three. They have one child together, born August 8, 1986. They were divorced on June 9, 2003. The plaintiff has a high school education and the defendant has a college education. The plaintiff worked a few part-time jobs during the marriage, but mostly stayed home to maintain the household and raise the parties' daughter. The defendant earns approximately $120,000 annually, while the plaintiff works thirty-seven and one-half hours per week, earning $18.50 per hour. Both parties have had issues with their health, but are currently healthy. Pursuant to their separation agreement, the defendant paid child support to the plaintiff in the amount of $483 per week until the parties' daughter became emancipated on January 30, 2009. The plaintiff brought a complaint for modification seeking an award of alimony in September of 2008. A temporary order for alimony was granted in the amount of $350 per week. After a trial on November 3, 2009, final judgment was entered awarding the plaintiff $250 per week in alimony. The amount of alimony. The plaintiff challenges the amount of alimony awarded, arguing that the trial judge abused her discretion by awarding only $250 per week. The plaintiff asserts that the trial judge's decision must be reversed because it fails to set forth any rationale to explain how her findings of fact were weighed or considered in arriving at the alimony award.
There is no dispute that the judge considered the statutory factors in making her decision. As the plaintiff concedes, the trial judge “issued detailed Findings of Fact which addressed the various factors to be considered in setting an award of alimony set forth in G.L. c. 208, § 34.” “If the judge has made the obligatory findings under § 34 and ‘has not considered any irrelevant matter, [her] determinations as to alimony and property division may not be reversed unless “plainly wrong and excessive.” ... What weight any of the § 34 factors shall receive “rests within the broad discretion of the judge.” ‘ “ Denninger v. Denninger, 34 Mass.App.Ct. 429, 430 (1993) (citations omitted). Of course, the trial judge's discretion is not unlimited. Pare v.. Pare, 409 Mass. 292, 296 (1991). The “reasons for the judge's conclusions must be apparent from the judge's findings and rulings.” Bowring v. Reid, 399 Mass. 265, 267 (1987), citing Redding v. Redding, 398 Mass. 102, 108 (1986). Failure by the judge “to consider and explain the effect of an important fact may require reversal of the judgment in order to permit consideration and explanation of the omitted subject.” Ibid., quoting from Redding, supra.
The trial judge found that the plaintiff is fully employed and has good prospects for continued employment. Neither party had significant debts at the time of trial and the plaintiff had savings of at least $35,000. Moreover, the plaintiff's testimony during trial indicated that her financial statements were inflated because they included expenses for the parties' emancipated daughter. Although the trial judge did not provide an explanation for the amount of alimony awarded, she did state that the “totality of the parties' circumstances warrants a modest award of alimony to Wife,” suggesting that all of the factors were relevant to her decision. On this record we are unable to conclude that $250 per week in alimony is “plainly wrong.” Denninger, supra (citation omitted).
The plaintiff also faults the trial judge for failing to employ a formula to calculate the amount of alimony awarded. The alimony award in this case was made prior to the passage of Massachusetts's Alimony Reform Act (Act), St.2011, c. 124. That Act became effective March 1, 2012, and applies only prospectively. See St.2011, c. 124, §§ 4( a ), 7. We are aware of no authorities requiring the trial judge to use or to consider a particular formula in setting an award of alimony at the time this decision was made.
While better practice would have resulted in a more explicit calculation of the alimony award, either through use of a formula or a more specific explanation, there is no basis on this record to characterize the result as plainly wrong.
We acknowledge receipt of a letter from the defendant representing that he has been informed that the plaintiff had the intention to remarry in September of 2012. Although the letter indicates a copy was sent to the plaintiff's counsel, no response was received. Our decision is without prejudice to the effect of the plaintiff's remarriage, assuming it occurred.
Modification judgment affirmed.