Bernadette D. Roop v. Richard Roop.

• Court: Massachusetts Appeals Court
• Decided: October 6, 2023
• Docket: 22-P-0703
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-703

BERNADETTE D. ROOP

vs.

RICHARD ROOP.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a twenty-five year marriage, the parties divorced in

2009. As part of a separation agreement that merged into the

judgment nisi, the husband agreed to pay alimony to the wife of

$300 per week on a continuing basis. It is undisputed that the

conditions under which alimony automatically was to terminate

have not occurred. It is also undisputed that the terms of the

Alimony Reform Act, G. L. c. 208, §§ 49-55, do not apply. See

Griffin v. Kay, 101 Mass. App. Ct. 241, 245 (2022).

Accordingly, the agreed-to alimony can be modified only if the

moving party demonstrates a material change in circumstances

warranting such a modification. See Dolan v. Dolan, 99 Mass.

App. Ct. 284, 289 (2021).

The husband had been employed as a contractor. Because of

declining health, he retired when he was sixty-seven or sixty- eight years old, an age at or after the customary retirement

age. His income therefore has suffered and, on that basis, he

filed a modification complaint seeking a termination or

reduction in his alimony obligations. After trial, a Probate

and Family Court judge ruled in the wife's favor and thereby

left the husband's alimony obligations unchanged. She set forth

her factual findings, legal conclusions, and rationale in a

thoughtful and comprehensive memorandum of decision. We affirm.

The husband does not challenge any of the judge's factual

findings, and the parties in fact stipulated to many of the

underlying facts. The essential question before us then is

whether the judge abused her discretion in concluding that the

husband had not met his burden of demonstrating a material

change of circumstances. See Flor v. Flor, 92 Mass. App. Ct.

360, 363 (2017). We discern no such abuse. While it is true

that the husband's income had declined due to his health-driven

retirement, his overall financial status had improved

significantly in other respects, at least compared to that of

the wife. See Dolan, 99 Mass. App. Ct. at 289 ("In determining

whether a payor has met his or her burden of demonstrating a

material change in circumstances warranting a downward

modification of alimony, it is well settled that a judge must

consider the totality of the payor's financial circumstances,

including his or her income and available assets"). The judge's

2 ultimate findings that the wife had a continued need for the

prescribed alimony and that the husband had continued ability to

pay it are amply supported by the record. To the extent that

the husband is correct that he will need to pay alimony by

liquidating assets that he obtained in the original division of

the marital estate, this does not amount to improper "double

dipping." See id. at 289-290.

We affirm the modification judgment that denied the

husband's request to terminate or reduce his alimony

obligations.1

So ordered.

By the Court (Milkey, Blake & Sacks, JJ.2),

Clerk

Entered: October 6, 2023.

1 We deny the wife's request for an award of appellate attorney's fees.

2 The panelists are listed in order of seniority.