Opinion
10-P-1972
11-29-2011
DEBORAH A. SCACCIA v. LIBORIO W. SCACCIA.
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
The wife appeals from a modification judgment issued by a judge of the Probate and Family Court reducing the husband's alimony obligation from a prior modification judgment. She also appeals from orders on complaints for contempt regarding the husband's obligation to provide health insurance and reimburse certain health-related expenses.
Background. The following undisputed facts are taken from the record and the judge's findings. The parties were divorced by judgment of divorce nisi dated March 25, 1999. The judgment provided for alimony, as well as child support for the parties' three children, Allen, Catherine, and Matthew. A modification judgment entered on January 3, 2005, whereby the husband was to pay the wife $75 per week in child support, and $450 per week in alimony. At the time of the modification judgment, Allen was emancipated, and Catherine and Matthew resided with the wife.
A few years later, on October 4, 2007, the wife filed a second complaint for modification seeking an increase in alimony and that the husband provide a health insurance policy equivalent to one that was in place prior to May, 2007, and that he pay for all unreimbursed medical expenses that were previously covered by insurance. She also sought to eliminate her obligation to pay one-half of the children's uninsured medical expenses. As a change in circumstance, the wife alleged that the current health insurance policy did not provide the same coverage as the previous policy, resulting in additional out- of-pocket costs to treat the wife's preexisting medical conditions. The same day, the wife also filed a complaint for civil contempt against the husband, alleging essentially that due to the less comprehensive health care coverage, he had failed to abide by the terms of the divorce judgment. The wife's preexisting medical conditions require continuing and costly treatments.
In response to the wife's complaint, the husband filed an amended counterclaim, seeking a reduction in alimony and the elimination of child support due to a reduction in his income and the fact that all three children now resided with him. A temporary order entered on August 28, 2008, eliminating the husband's child support obligation and reducing his alimony payments to $350 per week. The husband also filed a complaint for civil contempt against the wife, alleging that she had failed to pay her share of the children's uninsured medical expenses. A trial was held over three days on the complaints for modification and contempt, at which the husband and the wife testified regarding their financial practices and the issues related to the health insurance policy procured by the husband. The husband is the sole owner of a Subchapter S corporation; he also owns a two-family rental property in addition to his own home. The husband's lengthy testimony was devoted, in large part, to describing his business accounting practices and related expenditures from his business income and business line of credit, and how much of those funds were used to pay for his personal expenses, including alimony. On each day of trial, the husband also submitted updated financial statements reflecting an increased income from the prior judgment, and increasing income on each subsequent day of trial. The wife testified that she is currently pursuing a master's degree in social work, is unemployed, and has no income apart from alimony.
Thereafter, the wife filed multiple complaints for civil contempt alleging that the husband had failed to pay alimony.
On January 3, 2005, the husband's reported weekly income was $900 per week. His financial statements submitted at trial on December 21 and 22, 2009, and February 10, 2010, reflect weekly incomes of $2,531.44, $3,110.25, and $3,159.44, respectively.
As to the health insurance issue, the testimony of the husband's former insurance broker reflects that the husband attempted to obtain an equivalent insurance policy. The policy he purchased, however, had lapsed at the time the wife incurred bills for the treatment of a preexisting condition on August 3, 2007. The parties also testified regarding other bills the wife asserted were refused for payment by that insurer. At trial, the parties' attorneys agreed to jointly resubmit the bills to the insurer for payment.
In May, 2007, the husband obtained a health insurance policy from Mid-West National Life Insurance Company of Tennessee (Mid-West). In brief, due to a lawsuit against Mid-West filed by the Massachusetts Attorney General, the husband obtained a new health insurance policy with Fallon Community Health in 2009. As part of an agreement reached with Mid-West by the Attorney General, outstanding claims could be resubmitted to Mid-West for payment.
In a decision dated May 20, 2010, the judge found the wife in need of spousal support, but capable of minimum wage work, and accordingly attributed an income to her of $320 per week. As to the husband, the judge found that his financial testimony was evasive and that he was not credible regarding his personal and business expenditures. The judge further found that the husband's business pays the 'overwhelming majority' of his personal expenses, including his alimony, mortgages, and property tax obligations, as well as his attorney's fees and household expenses. Based on the financial information provided about the business's income and debt load, and the percentages spent by the husband for his personal expenses, the judge concluded that the husband's income was $2,011.58 per week, which constituted a material change in circumstances warranting an increase in alimony to $400 per week.
Largely based on these same findings, the judge found in favor of the wife on the husband's counterclaim for decreased alimony. As the children all continued to reside apart from the wife, the judge also terminated any obligation on the part of the father to pay child support. Those judgments are not at issue on appeal.
Regarding the complaints for contempt, the judge found that the husband put forth a good faith effort to obtain an equivalent health insurance policy and therefore was not in contempt. Nevertheless, the husband was ordered to pay for any medical expenses that would have been covered under the prior policy. On the husband's complaint for contempt as to the children's uninsured medical costs, the wife was found in contempt and ordered to pay the outstanding balance owed.
Discussion. On appeal, the wife primarily claims that when the judge ordered 'increased' alimony of $400 per week, he mistakenly compared that figure to the 2008 temporary order, rather than the prior 2005 modification judgment. She further challenges the judge's calculation of the husband's weekly income and the income attributed to her by the judge.
The wife's argument regarding the judge's denial of her request for fees and costs is not properly before us, as the judge's order on the wife's motion postdates the notice of appeal.
'A party seeking to modify a judgment for alimony or child support 'must demonstrate a material change in circumstances since the entry of the earlier judgment. . . . In determining whether to modify a support or alimony order, a probate judge must weigh all relevant circumstances." Bercume v. Bercume, 428 Mass. 635, 643 (1999), quoting from Schuler v. Schuler, 382 Mass. 366, 368, 370 (1981). '[T]he probate judge enjoys considerable discretion' in fashioning an appropriate modification judgment, and 'the judgment will not be reversed unless it is 'plainly wrong." Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Schuler v. Schuler, supra at 368.
We agree with the wife that the judge's finding that an increase in alimony was warranted appears to be inconsistent with his judgment effectively decreasing the amount of alimony by $50 per week from the prior modification judgment. More specifically, the $400 per week ordered represents an increase from the 2008 temporary order of $350 per week, but a decrease from the prior modification judgment ordering $450 per week. As noted, the judge clearly found the husband to be not credible regarding his finances, implicitly calling into question the basis of the temporary order. As for the prior modification judgment, the judge calculated the husband's weekly income at the time of trial to be more than twice that of the earlier reported income ($2,011.58 versus $900). Without some explanation to support the effective decrease in the award from the prior judgment, the ruling as it stands is at odds with the judge's findings.
Conclusion. Typically, we would remand the matter to the probate judge with directions that he provide support for his conclusion, making further findings if necessary. However, as the probate judge in this case has retired, we vacate the provisions relating to alimony set forth in the judgment dated May 20, 2010, on the wife's complaint for modification and remand the matter to the Probate and Family Court for a new trial on that issue, taking into account the current circumstances of the parties. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 88 (1991). , In all other respects, the judgments dated May 20, 2010, are affirmed. Each party's request for appellate attorney's fees is denied.
Due to our conclusion that the alimony provisions must be vacated and remanded for a new trial, we need not address the wife's further arguments related to the judge's calculation of the husband's weekly income and the income imputed to her.
We have carefully reviewed the wife's remaining arguments arising from the complaints for contempt and deem them to be without merit.
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So ordered.
By the Court (Rapoza, C.J., Smith, & Vuono, JJ.),