Opinion
11-P-345
03-14-2012
PAUL M. VARANDAS v. IRENE M. VARANDAS.
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 husband appeals from the February 5, 2010, modification judgment increasing his weekly alimony payment from $400 to $500 a week. We affirm.
On April 14, 2005, after twenty-three years of marriage, the parties entered into a separation agreement, which was incorporated and merged into the divorce judgment of the same date. It provided for alimony of $400 a week and child support of $200 a week for two children. On August 23, 2007, the husband filed a complaint for modification. It resulted in the April 11, 2008, judgment, which incorporated and merged the parties' stipulation reducing the child support for the remaining unemancipated child to $150 a week.
Approximately two weeks later, on April 29, 2008, the husband filed another complaint for modification, seeking to terminate child support. The wife answered and counterclaimed, seeking an increase in her weekly alimony. Trial was held on January 14, 2010, and various exhibits were introduced in evidence. A modification judgment, supported by findings of fact, issued on February 5, 2010. The husband's child support obligation was reduced to $100 a week and his alimony obligation was increased to $500 a week. The husband appeals only from that part of the judgment which increases his alimony obligation.
The husband did not appeal from the judgment of contempt issued on the same day for his failure to pay the proper amount of alimony.
We note that there are procedural obstacles to our consideration of the husband's appeal on its merits. First, he failed to include in the record appendix his complaint for modification and the wife's counterclaim for modification, the disposition of which is the subject of his appeal. Secondly, the husband did not include any of the trial exhibits and financial statements (the judge had before him the financial statements from the time of the divorce and those prepared at the time of the modification trial). We need not reach the merits of the husband's appeal in the absence of these materials. See Mass.R.A.P. 18(a), as amended, 425 1602 (1997); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). See also Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (appellate court not required to look beyond appendix to consider missing documents).
In any event, even if we consider the husband's appeal on the limited record before us, we discern nothing that would cause us to reverse the judgment. The husband challenges the judge's finding that the husband's 'representation that the income had declined to the extent listed is not credible.' An examination of the judge's findings of fact demonstrates that this sentence refers only to the husband's representation that the income from his landscaping business had declined from $279.10 per week at the time of the divorce, to $31 per week. The husband testified that the $31 figure was one he obtained by dividing his annual income from the landscaping business by fifty-two. The judge was entitled to conclude that that testimony was not credible. The determination of the witnesses' credibility and the weight to be given to their testimony is peculiarly within the province of the trial judge. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004). As to the judge's other findings regarding the husband, he has failed to show that any of them are clearly erroneous. Goodman v. Atwood, 78 Mass. App. Ct. 655, 657 (2011).
Where the judge wrote that he considered the husband's claims of lack of substantial overtime and a reduction in his earnings from his second job as a landscaper (a claim not made in his complaint), and the judge did in fact consider them, the husband's claim to the contrary is without merit. To the extent the husband challenges the judge's finding that he supports his new wife and her twenty year old daughter, the challenge is without merit as it is based on the husband's own trial testimony, which the judge was free to credit.
His challenge to the judge's finding that he traveled to Portugal after the divorce is without merit in light of the evidence of the husband's December 3, 2005, affidavit that he purchased the tickets for the trip and the wife's testimony that he took the trip. Even if this finding were erroneous, it would not affect the result.
The husband's claim that the judge erred in noting that his company pension is estimated to be $1,045 a month is without merit as the husband testified both to the amount and the fact that the pension had vested.
Next, the husband has not demonstrated that the only means by which he would be able to make the increased alimony payments would be through liquidation of his retirement assets. The husband's claim that the excessive alimony award constituted an impermissible redistribution of assets fails not only because the award was not excessive, but also because on the record before us there is nothing to indicate that the husband would be unable to comply without liquidating all of his assets.
The husband argues finally that the judge erred in failing to consider his trial request to reduce the alimony to $100 per week. In his findings, the judge wrote that the husband did not seek a reduction in alimony in his complaint for modification. However, the judge's decision on the proper amount of alimony for the wife was based not just on the husband's failure to seek a decrease in his complaint for modification, but also on his failure to support such a decrease, and the wife's showing that an increase was in order. The judge did not abuse his discretion in modifying the alimony amount in light of the wife's material change of circumstances. Pierce v. Pierce, 455 Mass. 286, 293 (2009).
The February 5, 2010, modification judgment is affirmed.
Should circumstances change, each party of course retains the right to return to court to seek further modification.
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So ordered.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),