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
23-P-1116
CHAD L. OAKES
vs.
SHELLY L. BILDEN-OAKES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a two-day trial, a judgment of divorce nisi (divorce
judgment) entered. This appeal stems from the denial of Shelly
Bilden-Oakes's (wife) request for alimony. She argues that the
judge incorrectly found that Chad Oakes (husband) was unable to
pay alimony and incorrectly found that, even if the husband
could pay alimony, there was insufficient evidence of the
parties' marital lifestyle to determine what amount of alimony
would enable her to maintain a lifestyle comparable to that the
parties enjoyed during the marriage. We agree. We vacate so
much of the divorce judgment as pertains to alimony and remand
for further proceedings consistent with this memorandum and
order. Background. The parties were married in 2001 and separated
in Fall 2017. In 2018, the husband filed a complaint for
divorce and both parties filed financial statements prior to
trial. Relevant to this appeal, the husband reported on his
financial statement a gross weekly income of $3,206.29, total
gross weekly deductions from his paycheck of $1,438.76, and
weekly expenses of $1,538. To calculate his net weekly income,
the husband subtracted his total gross weekly paycheck
deductions from his gross weekly income, arriving at a net
weekly income of $1,767.53 (before deducting his reported weekly
expenses of $1,538). The parties also filed a statement of
uncontested facts which described the timeline of their
marriage, their employment qualifications and history, and a
detailed summation of many of their assets including the value
of their marital home when it was sold and their various bank
accounts.
At trial, the only witnesses were the husband and the wife.
Both the husband and wife provided a significant amount of
evidence regarding their lifestyle after their separation. As
to the parties' marital lifestyle prior to their separation,
there was evidence that the parties lived in a four-bedroom,
single-family home in Braintree which they purchased in 2008 for
$375,000, they had their house professionally cleaned every
2 couple of weeks, the wife and husband were able to regularly
contribute to their retirement accounts, and they had $5,000 per
month of disposable income between them. The husband testified
that his credit cards were paid in full each month, but that a
source of contention in the marriage was the wife's spending
habits. According to the testimony of the husband, the wife
spent a considerable amount of money purchasing items using
their credit cards and would spend money on shoes and clothes.
The wife testified that she often had to buy clothes because of
a medical condition that causes her weight to fluctuate.
In her detailed findings, the judge credited the husband's
reported gross weekly income of $3,206.29. The judge credited
"most" of the husband's weekly expenses, determining his weekly
expenses to be $1,464.08 (after recalculating the amount of his
weekly rent and discrediting his claim regarding weekly "motor
vehicle expenses"). The judge also credited various paycheck
deductions reported by the husband totaling $610.45. The judge
added those paycheck deductions to the weekly expenses that she
found credible, concluding that the husband's combined weekly
expenses and paycheck deductions totaled $2,074.53. The judge
then deducted that $2,074.53 figure from the husband's reported
net weekly income of $1,767.53, ultimately concluding that the
husband's total weekly expenses exceeded his net weekly income
3 by more than $300. This finding was, however, based on a
miscalculation by the judge: she double counted a portion of
the husband's paycheck deductions, by adding $610.45 in paycheck
deductions to his weekly expenses and then subtracting that
total from his net weekly income, despite that his net weekly
income already reflected those paycheck deductions. Had the
judge not double counted those paycheck deductions, her findings
would have shown that the husband's net weekly income
($1,767.53, which reflected all reported paycheck deductions)
actually exceeded his credible weekly expenses ($1,464.08) by
more than $300.
The judge ultimately declined to enter an alimony order.
She found that while the wife was in need of alimony, the
husband was unable to pay alimony because his weekly expenses,
which the judge did not find excessive, exceeded his net income.
As previously noted, this finding was error. The judge did not
end the inquiry there, however, but added that even if the
husband could pay alimony, "[t]here was insufficient evidence at
trial for the Court to make finding[s] as to the parties'
marital lifestyle" such that the judge could not "determine what
amount of alimony would enable Wife to maintain a lifestyle
comparable to that the parties enjoyed during the marriage."
4 Discussion. The wife makes three arguments as to why the
judge's determination that she was not entitled to alimony was
error. Before addressing her arguments, we note that "[a] judge
has broad discretion when awarding alimony under the statute,"
and an appellate court will not disturb an alimony judgment
unless it is plainly wrong. See Zaleski v. Zaleski, 469 Mass.
230, 235-236 (2014). An abuse of discretion occurs "where we
conclude the judge made a clear error of judgment in weighing
the factors relevant to the decision such that the decision
falls outside the range of reasonable alternatives" (quotation
and citations omitted). L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
First, the wife argues that in determining that the husband
could not afford to pay alimony, the judge subtracted his weekly
deductions from his net weekly income, which already accounted
for his weekly deductions. We review this factual determination
for clear error, see Murray v. Super, 87 Mass. App. Ct. 146, 148
(2015), and note that the husband concedes that the judge's
calculation was based on double counting his weekly deductions.
After reviewing the financial evidence, we agree that the
judge's determination that the husband could not afford alimony
payments was erroneous as the deductions were in fact double
5 counted and remand so that the judge can make new factual
findings regarding the husband's ability to pay alimony.1
The wife's second argument is that there was enough
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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
23-P-1116
CHAD L. OAKES
vs.
SHELLY L. BILDEN-OAKES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a two-day trial, a judgment of divorce nisi (divorce
judgment) entered. This appeal stems from the denial of Shelly
Bilden-Oakes's (wife) request for alimony. She argues that the
judge incorrectly found that Chad Oakes (husband) was unable to
pay alimony and incorrectly found that, even if the husband
could pay alimony, there was insufficient evidence of the
parties' marital lifestyle to determine what amount of alimony
would enable her to maintain a lifestyle comparable to that the
parties enjoyed during the marriage. We agree. We vacate so
much of the divorce judgment as pertains to alimony and remand
for further proceedings consistent with this memorandum and
order. Background. The parties were married in 2001 and separated
in Fall 2017. In 2018, the husband filed a complaint for
divorce and both parties filed financial statements prior to
trial. Relevant to this appeal, the husband reported on his
financial statement a gross weekly income of $3,206.29, total
gross weekly deductions from his paycheck of $1,438.76, and
weekly expenses of $1,538. To calculate his net weekly income,
the husband subtracted his total gross weekly paycheck
deductions from his gross weekly income, arriving at a net
weekly income of $1,767.53 (before deducting his reported weekly
expenses of $1,538). The parties also filed a statement of
uncontested facts which described the timeline of their
marriage, their employment qualifications and history, and a
detailed summation of many of their assets including the value
of their marital home when it was sold and their various bank
accounts.
At trial, the only witnesses were the husband and the wife.
Both the husband and wife provided a significant amount of
evidence regarding their lifestyle after their separation. As
to the parties' marital lifestyle prior to their separation,
there was evidence that the parties lived in a four-bedroom,
single-family home in Braintree which they purchased in 2008 for
$375,000, they had their house professionally cleaned every
2 couple of weeks, the wife and husband were able to regularly
contribute to their retirement accounts, and they had $5,000 per
month of disposable income between them. The husband testified
that his credit cards were paid in full each month, but that a
source of contention in the marriage was the wife's spending
habits. According to the testimony of the husband, the wife
spent a considerable amount of money purchasing items using
their credit cards and would spend money on shoes and clothes.
The wife testified that she often had to buy clothes because of
a medical condition that causes her weight to fluctuate.
In her detailed findings, the judge credited the husband's
reported gross weekly income of $3,206.29. The judge credited
"most" of the husband's weekly expenses, determining his weekly
expenses to be $1,464.08 (after recalculating the amount of his
weekly rent and discrediting his claim regarding weekly "motor
vehicle expenses"). The judge also credited various paycheck
deductions reported by the husband totaling $610.45. The judge
added those paycheck deductions to the weekly expenses that she
found credible, concluding that the husband's combined weekly
expenses and paycheck deductions totaled $2,074.53. The judge
then deducted that $2,074.53 figure from the husband's reported
net weekly income of $1,767.53, ultimately concluding that the
husband's total weekly expenses exceeded his net weekly income
3 by more than $300. This finding was, however, based on a
miscalculation by the judge: she double counted a portion of
the husband's paycheck deductions, by adding $610.45 in paycheck
deductions to his weekly expenses and then subtracting that
total from his net weekly income, despite that his net weekly
income already reflected those paycheck deductions. Had the
judge not double counted those paycheck deductions, her findings
would have shown that the husband's net weekly income
($1,767.53, which reflected all reported paycheck deductions)
actually exceeded his credible weekly expenses ($1,464.08) by
more than $300.
The judge ultimately declined to enter an alimony order.
She found that while the wife was in need of alimony, the
husband was unable to pay alimony because his weekly expenses,
which the judge did not find excessive, exceeded his net income.
As previously noted, this finding was error. The judge did not
end the inquiry there, however, but added that even if the
husband could pay alimony, "[t]here was insufficient evidence at
trial for the Court to make finding[s] as to the parties'
marital lifestyle" such that the judge could not "determine what
amount of alimony would enable Wife to maintain a lifestyle
comparable to that the parties enjoyed during the marriage."
4 Discussion. The wife makes three arguments as to why the
judge's determination that she was not entitled to alimony was
error. Before addressing her arguments, we note that "[a] judge
has broad discretion when awarding alimony under the statute,"
and an appellate court will not disturb an alimony judgment
unless it is plainly wrong. See Zaleski v. Zaleski, 469 Mass.
230, 235-236 (2014). An abuse of discretion occurs "where we
conclude the judge made a clear error of judgment in weighing
the factors relevant to the decision such that the decision
falls outside the range of reasonable alternatives" (quotation
and citations omitted). L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
First, the wife argues that in determining that the husband
could not afford to pay alimony, the judge subtracted his weekly
deductions from his net weekly income, which already accounted
for his weekly deductions. We review this factual determination
for clear error, see Murray v. Super, 87 Mass. App. Ct. 146, 148
(2015), and note that the husband concedes that the judge's
calculation was based on double counting his weekly deductions.
After reviewing the financial evidence, we agree that the
judge's determination that the husband could not afford alimony
payments was erroneous as the deductions were in fact double
5 counted and remand so that the judge can make new factual
findings regarding the husband's ability to pay alimony.1
The wife's second argument is that there was enough
evidence for the judge to make a factual finding regarding the
parties' standard of living prior to their separation.
"'Alimony' is defined . . . as 'the payment of support from a
spouse, who has the ability to pay, to a spouse in need of
support for a reasonable length of time, under a court order.'"
Young v. Young, 478 Mass. 1, 5 (2017), quoting G. L. c. 208,
§ 48. "A judge must consider and weigh all the relevant factors
[under G. L. c. 208, § 53 (a)], but where the supporting spouse
has the ability to pay, 'the recipient spouse's need for support
is generally the amount needed to allow that spouse to maintain
the lifestyle he or she enjoyed prior to termination of the
marriage.'" Young, supra at 6, quoting Pierce v. Pierce, 455
Mass. 286, 296 (2009). The husband is correct that need is
measured, in part, by evidence of the parties' lifestyle prior
to their separation. See Zaleski, 469 Mass. at 243 ("Because
'need' is a relative term for purposes of the act, it must be
1 The wife also argues that the judge did not include all of the husband's income when calculating the husband's total gross income. We need not rule on this because we have already ruled the judge's math regarding the husband's ability to pay is fundamentally flawed and remand so that it can be recalculated based on the reasoning above.
6 measured in light of mandatory considerations that include the
parties' marital lifestyle").
Based on the financial summaries submitted by the parties,
statement of uncontested facts, and the trial testimony of both
the husband and the wife about their lifestyle prior to
separation, we determine that there was enough evidence for the
judge to make the necessary considerations under G. L. c. 208,
§ 53 (a). While the evidence of the monetary value of the
wife's marital lifestyle was certainly not overwhelming, there
was evidence of the wife's spending habits and the lifestyle the
couple enjoyed. See M.C. v. T.K., 463 Mass. 226, 234 n.11
(2012) ("standard of living . . . may be closely linked to
household spending"). For example, testimony established that
their home was worth $375,000 when they purchased it in 2008.
The judge also acknowledged that "there were several months in
which wife spent all $5,000.00 of the parties' monthly
disposable income." The judge also was provided with evidence
that, while married, the parties were each able to regularly
contribute to their retirement accounts. Lastly, the judge
heard testimony from the husband that he routinely paid the full
amount on his credit card debt every payday. Although a
difficult task, we often ask fact finders to assign monetary
value to extremely abstract concepts. See Aleo v. SLB Toys USA,
7 Inc., 466 Mass. 398, 412 (2013), quoting Clifton v.
Massachusetts Bay Transp. Auth., 445 Mass. 611, 624 (2005) ("a
'proper punitive damage award"' is one that is 'sufficient . . .
to send a clear message to the [defendant] of condemnation for
its reprehensible behavior"). Where some evidence was presented
of the parties' marital lifestyle, this case is no different.
Where the judge has already determined that the wife had a need
for alimony, we remand for the judge to redetermine the
husband's ability to pay (after correcting the double counting
error), consider all relevant factors under G. L. c. 208,
§ 53 (a), and make an appropriate award for alimony.
Lastly, the wife argues that the judge arbitrarily found
the wife to be underemployed. It is unclear how this factored
into the judge's decision-making when the judge had already
found the husband unable to pay alimony. In this instance,
where we are remanding so that alimony can be redetermined, the
wife's employment status will be revisited by the judge.
8 Conclusion. So much of the divorce judgment as it relates
to alimony is vacated, and the case is remanded for further
proceedings consistent with this memorandum and order.
So ordered.
By the Court (Meade, Walsh & D'Angelo, JJ.2),
Clerk
Entered: September 16, 2024.
2 The panelists are listed in order of seniority.