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
24-P-1164
MELISSA STEINBERG
vs.
PAUL STEINBERG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The husband in the underlying divorce action appeals from a
modification judgment entered in the Probate and Family Court.1
At issue are the provisions of the modification judgment
relating to child support and alimony, which the husband
challenges on numerous grounds. We affirm.
Background. The parties divorced in April 2019 after
twenty-two years of marriage. Their separation agreement, which
was approved and incorporated into the judgment of divorce,
1The husband also appeals from the judge's orders denying his motions for relief from the modification judgment and to stay the judgment pending appeal. We need not address those orders separately, however, because the husband does not challenge them on any grounds that are distinct from his challenges to the judgment. required the husband to pay child support for the parties' three
children in an amount equal to 22.5% percent of his annual gross
income up to $290,000 and alimony to the wife in an amount equal
to twenty-four percent of his annual gross income between
$290,000 and $465,000. If the husband's annual gross income
exceeded $465,000, the agreement required that he contribute
thirty percent of the excess income to the children's college
savings accounts, capped at a specified amount per child. The
provisions of the agreement relating to child support and
alimony merged with the divorce judgment.
In or around July 2020, the husband filed a complaint for
modification. He did not pursue this complaint, however, and it
was later dismissed by agreement of the parties. Meanwhile, in
August 2021, the wife filed a counterclaim for modification
seeking an increase in the husband's child support and alimony
obligations, among other remedies. The wife alleged that
modification of the divorce judgment was warranted in light of
several changes in circumstances, including that the husband
permanently relocated to Florida ten days after entry of the
divorce judgment, did not visit the children regularly between
May 2019 and April 2021, and changed his employment.
In lieu of a formal trial, the parties agreed to submit the
wife's counterclaim to the judge for resolution based on a
2 stipulation of uncontested facts, uncontested exhibits, and the
parties' affidavits and financial statements. After considering
these documents, the judge found that the wife established a
material and substantial change of circumstances warranting
modification. In particular, the judge cited "a change in
employment and income for [the husband], employment for [the
wife], emancipation of [the oldest] child, discontinuation of
parenting time between [the middle] child and [the husband], and
discontinued college attendance . . . for [the middle] child."
The judge then proceeded to conduct the required analysis under
Cavanagh v. Cavanagh, 490 Mass. 398, 410 (2022), and concluded
that it would be equitable for the husband to pay (1) weekly
alimony in the amount of $1,210 (equal to twenty-four percent of
the difference between the parties' incomes), (2) weekly child
support in the amount of $1,030 (equal to the presumptive amount
owed under the child support guidelines plus a fifteen percent
upward deviation), (3) twenty-four percent of the husband's
bonuses and commissions and other income earned above $312,500
to a cap of $465,000, and (4) fifteen percent of his income
above $465,000 to a cap of $736,000, reflecting the highest
amount he earned during the marriage.
Additional facts are set out below as they become relevant
to our analysis.
3 Discussion. 1. Child support. The husband challenges the
child support order on the ground that the judge failed to make
the findings required by § IV(A) of the Child Support
Guidelines. That section allows a judge to deviate from the
presumptive amount of support owed under the guidelines,
provided that the judge makes findings identifying the
presumptive amount, explaining why it would be "unjust or
inappropriate," and explaining why an upward deviation is
justified on the facts and "consistent with the best interests
of the" children. Child Support Guidelines § IV(A) (July 2023).
According to the husband, the judge's findings were inadequate
to show why an upward deviation from the presumptive amount was
appropriate in this case. We are unpersuaded.
The guidelines set out grounds that can support deviation,
including where "a parent provides substantially less than one-
third of the parenting time for . . . [the] children." Child
Support Guidelines § IV(B)(8). Here, the separation agreement
anticipated that the husband would "have parenting time on
average of two . . . weekends per month," which is substantially
less than one-third. As the husband concedes, this disparity
supported a deviation at the time of the divorce, which was
reflected in the amount of child support imposed on him by the
agreement.
4 Because the agreement already included an upward deviation,
we agree with the wife that the judge's order was not a new
deviation, but a continuation of an existing one. See Katzman
v. Healy, 77 Mass. App. Ct. 589, 598 (2010), quoting Bercume v.
Bercume, 428 Mass. 635, 644 (1999) ("To the extent possible, and
consistent with common sense and justice, the modified judgment
should take into account the earlier, expressed desires of the
parties"). The issue is thus controlled not by § IV(A) of the
guidelines, but by § III(B), which provides that, on a request
for modification, a judge "shall apply [an] existing deviation"
if "the facts that gave rise to deviation still exist,"
"deviation continues to be in the child[ren]'s best interest,"
and "the guidelines amount would be unjust or inappropriate
under the circumstances."
In this case the judge found not only that the facts
supporting deviation still existed, but that they were even more
pronounced than at the time of the divorce. Specifically, the
judge found that the husband "has no current relationship with
[the middle child]," who, when not at college, is wholly
dependent on the wife, and that the husband's parenting time
with the youngest child is "far less than one-third," i.e.,
twelve percent in 2021 and 2022 and eleven percent in 2023. The
judge further found that any application of the guidelines
5 without deviation would be "inequitable" and leave the wife
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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
24-P-1164
MELISSA STEINBERG
vs.
PAUL STEINBERG.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The husband in the underlying divorce action appeals from a
modification judgment entered in the Probate and Family Court.1
At issue are the provisions of the modification judgment
relating to child support and alimony, which the husband
challenges on numerous grounds. We affirm.
Background. The parties divorced in April 2019 after
twenty-two years of marriage. Their separation agreement, which
was approved and incorporated into the judgment of divorce,
1The husband also appeals from the judge's orders denying his motions for relief from the modification judgment and to stay the judgment pending appeal. We need not address those orders separately, however, because the husband does not challenge them on any grounds that are distinct from his challenges to the judgment. required the husband to pay child support for the parties' three
children in an amount equal to 22.5% percent of his annual gross
income up to $290,000 and alimony to the wife in an amount equal
to twenty-four percent of his annual gross income between
$290,000 and $465,000. If the husband's annual gross income
exceeded $465,000, the agreement required that he contribute
thirty percent of the excess income to the children's college
savings accounts, capped at a specified amount per child. The
provisions of the agreement relating to child support and
alimony merged with the divorce judgment.
In or around July 2020, the husband filed a complaint for
modification. He did not pursue this complaint, however, and it
was later dismissed by agreement of the parties. Meanwhile, in
August 2021, the wife filed a counterclaim for modification
seeking an increase in the husband's child support and alimony
obligations, among other remedies. The wife alleged that
modification of the divorce judgment was warranted in light of
several changes in circumstances, including that the husband
permanently relocated to Florida ten days after entry of the
divorce judgment, did not visit the children regularly between
May 2019 and April 2021, and changed his employment.
In lieu of a formal trial, the parties agreed to submit the
wife's counterclaim to the judge for resolution based on a
2 stipulation of uncontested facts, uncontested exhibits, and the
parties' affidavits and financial statements. After considering
these documents, the judge found that the wife established a
material and substantial change of circumstances warranting
modification. In particular, the judge cited "a change in
employment and income for [the husband], employment for [the
wife], emancipation of [the oldest] child, discontinuation of
parenting time between [the middle] child and [the husband], and
discontinued college attendance . . . for [the middle] child."
The judge then proceeded to conduct the required analysis under
Cavanagh v. Cavanagh, 490 Mass. 398, 410 (2022), and concluded
that it would be equitable for the husband to pay (1) weekly
alimony in the amount of $1,210 (equal to twenty-four percent of
the difference between the parties' incomes), (2) weekly child
support in the amount of $1,030 (equal to the presumptive amount
owed under the child support guidelines plus a fifteen percent
upward deviation), (3) twenty-four percent of the husband's
bonuses and commissions and other income earned above $312,500
to a cap of $465,000, and (4) fifteen percent of his income
above $465,000 to a cap of $736,000, reflecting the highest
amount he earned during the marriage.
Additional facts are set out below as they become relevant
to our analysis.
3 Discussion. 1. Child support. The husband challenges the
child support order on the ground that the judge failed to make
the findings required by § IV(A) of the Child Support
Guidelines. That section allows a judge to deviate from the
presumptive amount of support owed under the guidelines,
provided that the judge makes findings identifying the
presumptive amount, explaining why it would be "unjust or
inappropriate," and explaining why an upward deviation is
justified on the facts and "consistent with the best interests
of the" children. Child Support Guidelines § IV(A) (July 2023).
According to the husband, the judge's findings were inadequate
to show why an upward deviation from the presumptive amount was
appropriate in this case. We are unpersuaded.
The guidelines set out grounds that can support deviation,
including where "a parent provides substantially less than one-
third of the parenting time for . . . [the] children." Child
Support Guidelines § IV(B)(8). Here, the separation agreement
anticipated that the husband would "have parenting time on
average of two . . . weekends per month," which is substantially
less than one-third. As the husband concedes, this disparity
supported a deviation at the time of the divorce, which was
reflected in the amount of child support imposed on him by the
agreement.
4 Because the agreement already included an upward deviation,
we agree with the wife that the judge's order was not a new
deviation, but a continuation of an existing one. See Katzman
v. Healy, 77 Mass. App. Ct. 589, 598 (2010), quoting Bercume v.
Bercume, 428 Mass. 635, 644 (1999) ("To the extent possible, and
consistent with common sense and justice, the modified judgment
should take into account the earlier, expressed desires of the
parties"). The issue is thus controlled not by § IV(A) of the
guidelines, but by § III(B), which provides that, on a request
for modification, a judge "shall apply [an] existing deviation"
if "the facts that gave rise to deviation still exist,"
"deviation continues to be in the child[ren]'s best interest,"
and "the guidelines amount would be unjust or inappropriate
under the circumstances."
In this case the judge found not only that the facts
supporting deviation still existed, but that they were even more
pronounced than at the time of the divorce. Specifically, the
judge found that the husband "has no current relationship with
[the middle child]," who, when not at college, is wholly
dependent on the wife, and that the husband's parenting time
with the youngest child is "far less than one-third," i.e.,
twelve percent in 2021 and 2022 and eleven percent in 2023. The
judge further found that any application of the guidelines
5 without deviation would be "inequitable" and leave the wife
"woefully under supported given the children's needs and her
needs." These findings were adequate to establish a basis for
the continued deviation. Cf. Smith v. Smith, 105 Mass. App. Ct.
505, 517 (2025) ("judge made findings sufficient to support an
upward deviation based on the wife being responsible for
substantially more than two-thirds of the children's care").
2. Alimony. The husband challenges the alimony order on
the following grounds: the judge exceeded her authority by
fundamentally rewriting the separation agreement; the wife
failed to prove a material change in circumstances to justify a
modification; the award exceeds the wife's needs; the combined
amount of child support and alimony exceeds the husband's
ability to pay; the percentage-based provisions of the award are
impermissible; and the judge erred by finding that the husband
has the financial support of his new girlfriend. We address
these arguments in turn.
The husband's first argument is based on the premise that,
even where a separation agreement is merged with the divorce
judgment, a judge may only make "minor changes" to the agreement
in a later modification action. The husband cites no authority
that supports this proposition. His reliance on Bercume, 428
Mass. 635, is misplaced. There, the court held that, if a
6 separation agreement is merged with the divorce judgment, the
judge should "take heed" of the terms negotiated by the parties
but can still modify the judgment if "consistent with common
sense and justice." Id. at 644. Nowhere did the court say or
suggest that a judge is limited to "minor changes." In fact,
although the separation agreement in Bercume provided that all
rights to alimony were waived, id. at 642-643, the court did not
hold that the judge was without authority to modify the judgment
to include an award of alimony; instead, the court remanded the
matter for the judge to consider whether an award of alimony
would be consistent with common sense and justice. See id. at
645. If the judge in Bercume could have awarded alimony despite
the existence of a separation agreement waiving alimony
altogether, the judge here certainly did not exceed her
authority by modifying the existing alimony obligations that the
husband had under the parties' agreement. See Smith, 105 Mass.
App. Ct. at 513-514 (judge was within discretion to modify
alimony structure set out in separation agreement).
Next, we see no merit to the husband's contention that the
wife failed to show a material change in circumstances to
justify a modification. As mentioned, the judge found several
material changes warranting modification of both the child
support and alimony provisions of the agreement, including the
7 husband's change in employment, increase in income, and the
discontinuation of his parenting time with one child. The
husband does not claim that these findings are clearly
erroneous. Rather, it appears he is arguing that the judge did
not have the power to modify his alimony obligations to the
extent that she did, i.e., that the award was excessive. To the
extent that is his argument, we disagree.
In particular, we disagree with both the husband's argument
that the award exceeds the wife's needs and his argument that
the combined amount of child support and alimony exceeds his
ability to pay. With respect to the former, the husband
calculates the wife's needs based on her most recent financial
statement dated November 2023, which coincides with when the
case was submitted to the judge for resolution. The correct
measure of a recipient spouse's needs, however, is the amount
necessary to allow the recipient spouse to maintain the marital
lifestyle. See Smith, 105 Mass. App. Ct. at 509. Here, the
wife's affidavit and exhibits, which the judge credited, show
that the parties enjoyed an upper middle-class lifestyle during
the marriage and that the wife's weekly expenses were $5,316.93
at the time of the divorce, substantially greater than the
expenses reflected in her November 2023 financial statement.
The husband makes no argument that the award exceeds what the
8 wife needs to resume this former lifestyle. Although he
suggests that the judge did not adequately explain why she
picked the number she did, judges "have broad discretion to
determine the appropriate amount of alimony" and need not follow
"any specific formula," provided they abide by "the limits set
forth in G. L. c. 208, § 53 (b), i.e., that alimony should
generally not exceed the recipient's need or thirty to thirty-
five percent of the difference in the parties' incomes." Smith,
supra at 511. The fixed portion of the award here -- equal to
twenty-four percent of the difference between the parties'
incomes -- falls well below the statutory cap, and the husband
does not argue that the award otherwise exceeds the cap.
The judge also expressly found that the husband "has [the]
ability to pay." In arguing that this was error, the husband
suggests that only his base salary ($312,500 annually) should be
considered in determining his ability to pay. During the
marriage, however, the husband earned substantial additional
income from bonuses, commissions, and stock options, which he
will continue to earn at the job he started in May 2023. As the
husband's own affidavit states, in addition to his base salary
of $312,500, his compensation at his new job includes the
"[o]pportunity for variable/commission pay up to $125,000,"
"140,000 shares of [i]ncentive stock options that vest over a
9 [four]-year period," and "unspecified discretionary bonuses,
which depend on company performance and [his] individual
performance." The judge did not err in considering this income,
which the husband has historically earned, when determining his
ability to pay. See Zaleski v. Zaleski, 469 Mass. 230, 243
(2014).
Nor did the judge err by using percentage-based formulas to
determine alimony on the husband's income between $312,500 and
$736,000. We are unpersuaded by the husband's contention that
the judge's order ran afoul of Young v. Young, 478 Mass. 1
(2017). That case holds that "variable or contingent" alimony
awards "are the exception rather than the rule, and must be
justified by the special circumstances of the case." Id. at 9.
One such circumstance might be "where the supporting spouse's
income is highly variable from year to year, sometimes severely
limiting his or her ability to pay, and where a percentage
formula, averaged over time, is likely not to exceed the needs
of the recipient spouse." Id. at 10. Here, the judge found
that the husband's income before and after the divorce was
variable and "included periods of unemployment and a variety of
types of compensation" and that "[t]he parties acknowledged this
[variability] per their separation agreement" by including "a
percentage-based alimony award." Based on these findings, the
10 judge expressly concluded that "special circumstances" existed
as required by Young to justify also incorporating a percentage-
based award in the modification judgment. This was not an abuse
of discretion. See Rosenwasser v. Rosenwasser, 89 Mass. App.
Ct. 577, 591 n.12 (2016) (judge could properly "fashion[] a
modified alimony award that incorporate[d] a 'self-modifying
feature' previously agreed upon by the parties" in separation
agreement that was merged with divorce judgment); Wooters v.
Wooters, 42 Mass. App. Ct. 929, 931 (1997) (judge properly made
percentage award where husband's compensation had considerable
fluctuations and his health could affect ability to work).
Finally, the husband claims that the judge clearly erred by
finding that he "has the financial support of his new
relationship to meet all of his housing and other needs." Even
assuming this finding (which comprised one passing sentence in
the judge's rationale) was error, the husband has not explained
how he was prejudiced in light of the judge's other uncontested
findings. For this reason alone, he has failed to demonstrate
that he is entitled to relief. See DeJesus v. Yogel, 404 Mass.
44, 47-48 (1989) (to be entitled to new trial in civil case,
appealing party must show that error "injuriously affected [his]
substantial rights" [citations omitted]).
11 Conclusion. The judgment of modification dated August 2,
2024, is affirmed. The orders dated September 5, 2024, denying
the husband's motion for a new trial or to alter or amend
judgment and his motion to stay enforcement of judgment pending
appeal are affirmed.2
So ordered.
By the Court (Desmond, Shin & Walsh, JJ.3),
Clerk
Entered: February 4, 2026.
2 The wife's request for appellate attorney's fees is denied. The wife is entitled to her costs in the ordinary course. See Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019).
3 The panelists are listed in order of seniority.