Greenberg v. Greenberg

861 N.E.2d 801, 68 Mass. App. Ct. 344, 2007 Mass. App. LEXIS 207
CourtMassachusetts Appeals Court
DecidedFebruary 28, 2007
DocketNo. 05-P-1742
StatusPublished
Cited by10 cases

This text of 861 N.E.2d 801 (Greenberg v. Greenberg) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenberg v. Greenberg, 861 N.E.2d 801, 68 Mass. App. Ct. 344, 2007 Mass. App. LEXIS 207 (Mass. Ct. App. 2007).

Opinion

Duffly, J.

Anticipating his retirement, Frederic H. Greenberg (Frederic) filed a modification complaint seeking to terminate alimony payments to Suzanne Greenberg (Suzanne), his former wife. A judge of the Probate and Family Court reduced Frederic’s alimony payments from $1,050 to $400 per week. We conclude that, in the circumstances of this case, Frederic’s retirement was not a sufficient change in circumstances to warrant modification, and we reverse the judgment.

Procedural background. After a marriage of twenty-four [345]*345years, during which three children were born, Suzanne and Frederic were divorced by a judgment nisi that entered following trial, on December 14, 1994.1 Among other things, the divorce judgment ordered Frederic to pay to Suzanne (eight years his junior and a full-time homemaker throughout most of the marriage) alimony and child support totaling $2,200 per week. Alimony in the amount of $1,500 per week was to continue “for so long as both [Frederic] and [Suzanne] are alive .... The alimony payments shall terminate upon the death or remarriage of [Suzanne], or the death of [Frederic].” The judgment makes no provision for cost of living increases. Child support was subject to specified downward adjustments as each child became emancipated. See note 1, supra. The parties were to share equally the cost of the children’s private school and college costs not covered by other sources, and the children’s uninsured medical expenses (after the first $100 per year, for which Suzanne would be responsible).

Four years later, in February, 1999, Frederic sought a modification of his support obligations, alleging that his “earned income and rental income ha[d] decreased by approximately $80,000.00 per year.”2 By agreement of the parties, in September, 2000, the divorce judgment was modified and alimony reduced to $1,050 per week.

The modification action that is the subject of this appeal was [346]*346commenced by Frederic in April, 2004. He sought by this complaint to terminate his alimony obligation and alleged, as a material change in circumstances, that he would soon be retiring from his medical practice. After a trial, the probate judge made the following findings of fact. Frederic, who had been a physician with a specialty in ophthalmology, retired on August 31, 2004; his retirement “was a result of a confluence of health problems and certain practice problems.” Since retiring, “Frederic’s income as proffered by his financial statement. . . shows [weekly] income from the following sources: a. Dividends and interest $322.00[;] b. Social security $416.00[;] c. Rental income $580.00[;] d. Miscellaneous $29.00[;] TOTAL $1,347.00.” The parties’ three children are now emancipated, the youngest graduated from college in May, 2005 (during the trial), and “certain costs for Suzanne have been reduced or eliminated.” Suzanne is currently employed as an administrative assistant at Newton Wellesley Hospital, earning $830 per week; she has investment income in the amount of $206 per week.3 The judge found that Suzanne could not presently access her retirement funds but that Frederic could access his retirement funds.4

The judge concluded that Frederic had failed to “demonstrate[] a material change of circumstances sufficient to justify a full termination of alimony” but that his retirement from full-time employment did “constitute a material change in circumstances sufficient to allow for a reduction of his obligation.” A modification judgment entered reducing alimony from $1,050 to $400 per week, and Suzanne appealed.

Because we conclude that the modification judgment will not permit Suzanne to meet her needs (as measured by the parties’ marital standard of living), and because Frederic is able to meet [347]*347his support obligations (established at the time of the last modification judgment) without diminishing his capital assets or affecting his ability to maintain his standard of living, we reverse.

Discussion. “To be successful in an action to modify a judgment for alimony . . . , the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.” Schuler v. Schuler, 382 Mass. 366, 368 (1981). “In determining whether to modify a support or alimony order, a probate judge must weigh all relevant circumstances.” Id. at 370. Where a reduction in the alimony is sought, this includes consideration of “the financial status of the support provider, and the station in life of the respective parties,” ibid., as well as whether, on all of the economic circumstances, the obligor spouse has “the present ability to pay the amounts required by the agreement and judgment.” Id. at 375-376. “A substantial and permanent decrease in the income of the support provider is one of the material circumstances to be considered in a request for reduction of a support reward. . . . However, while a substantial decrease in income or financial status may warrant a modification, such a decrease does not alone compel a modification.” Id. at 370-371. The judge must “keep in mind ‘the fundamental purpose of alimony: to provide economic support to the dependent spouse.’ ” Katz v. Katz, 55 Mass. App. Ct. 472, 478 (2002), quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).

A dependent spouse’s support needs, whether at the point of initial determination or later, when a modification is sought, are to be “measured by the ‘station’' of the parties — by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.” Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985), and cases cited. See Cooper v. Cooper, 62 Mass. App. Ct. 130, 138 (2004) (in modification action, judge properly focused on parties’ marital lifestyle in assessing wife’s current needs). Cf. G. L. c. 208, § 34 (enumerating factors affecting equitable distribution of property and award of alimony on divorce).

We undertake our review in light of the foregoing principles, recognizing that “in fashioning an appropriate modification judgment, the probate judge enjoys considerable discretion, and [348]*348the judgment will not be reversed unless it is ‘plainly wrong.’ . . . This standard is deferential to a judge’s decision, but that deference is not without limit.” Cooper, supra at 134, quoting from Schuler, supra at 368. It would constitute an abuse of discretion if findings of fact were not supported by the record or conclusions failed to reflect consideration of applicable legal principles. See Rosenberg v. Merida, 428 Mass. 182, 189 (1998) (reversal in absence of findings concerning support amount in modification action, “[bjecause ... we cannot determine if the judge followed the approach that we have prescribed here”); Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000) (“[e]rror of law apparent on the record, such as the failure of a judge’s findings to support the judge’s action,” constitutes an abuse of discretion). The “¡judge’s] reasoning and the basis of his decision[s]” must be apparent in his findings and rulings. See Trenz v. Norwell, ante 271, 277-278 (2007).

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Bluebook (online)
861 N.E.2d 801, 68 Mass. App. Ct. 344, 2007 Mass. App. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenberg-v-greenberg-massappct-2007.