Xiaopeng Zhang v. Yaoqiong Hao.

• Court: Massachusetts Appeals Court
• Decided: April 2, 2025
• Docket: 24-P-0209
• Status: Unpublished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

24-P-209

XIAOPENG ZHANG

vs.

YAOQIONG HAO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Probate and Family Court issued a

modification judgment in which she deviated from the presumptive

durational limit on alimony set out in G. L. c. 208, § 49 (b),

and ordered Xiaopeng Zhang (husband), the former spouse of

Yaoqiong Hao (wife), to pay the wife alimony beyond the Alimony

Reform Act's (act) presumptive duration. The husband appeals,

contending that the evidence did not support the judge's

decision to deviate. We agree that the wife failed to meet her

burden of showing that the "interests of justice" required

continuation of alimony under G. L. c. 208, § 49 (b).

Accordingly, we vacate the modification judgment and remand with

instructions. However, nothing herein precludes the wife from filing a subsequent complaint for modification in accordance

with the act.

1. Background. The parties married on December 18, 1990,

and commenced divorce proceedings on May 30, 2008. A judgment

of divorce nisi entered on September 30, 2009, which

incorporated the parties' separation agreement requiring, as

relevant here, the husband to pay the wife $4,833.35 in monthly

alimony concluding in October 2023.1

On October 9, 2020, the husband filed a complaint for

modification in which he requested termination of alimony,

alleging that the wife no longer needed alimony. On December

20, 2021, after a trial, another judge entered a modification

judgment denying the husband's request to terminate alimony.

On March 31, 2023, the husband filed another complaint for

modification seeking to terminate his alimony obligation to the

wife. He alleged that there was a material change in

circumstances warranting termination of his alimony obligation

caused by his ongoing medical treatment and resulting inability

to work full time.

At issue here, following a second trial, the judge found

that the husband failed to meet his burden as he remained able

The parties stipulated that the length of the marriage was 1

168 months for the purposes of G. L. c. 208, § 49.

2 to pay alimony and continued his obligation to the wife beyond

the act's presumptive durational limit. The husband appealed.

2. Discussion. We review the judge's decision for abuse

of discretion. See Van Arsdale v. Van Arsdale, 477 Mass. 218,

223 (2017).

The act provides presumptive termination dates for general

term alimony obligations for marriages lasting fewer than twenty

years. See G. L. c. 208, § 49 (b). A judge may deviate from

the durational limit upon a finding that the recipient spouse

proved by a preponderance of the evidence that a deviation is

"required in the interests of justice." G. L. c. 208, § 49 (b).

See George v. George, 476 Mass. 65, 70 (2016).

The act lists several factors a judge may consider when

evaluating the necessity of a proposed deviation, including a

recipient spouse's "chronic illness," "unusual health

circumstances," "inability to provide for [her] own support by

reason of [her] deficiency of property, maintenance or

employment opportunity," and "any other factor that the court

deems relevant and material." G. L. c. 208, § 53 (e). A judge

"must consider all relevant, statutorily specified factors,"

George, 476 Mass. at 70, quoting Duff-Kareores v. Kareores, 474

Mass. 528, 535 (2016), and "should evaluate the circumstances of

the parties in the here and now; that is, as they exist at the

time the deviation is sought, rather than the situation as it

3 existed at the time of divorce." George, supra. In seeking a

deviation beyond the presumptive duration, "[t]he recipient

spouse bears the burden of proving by a preponderance of the

evidence that deviation beyond the presumptive termination date

is 'required in the interests of justice.'" Id., quoting G. L.

c. 208 § 49 (b).

Here, the wife failed to meet her burden of production to

show that her circumstances in the "here and now" warranted a

deviation. See George, 476 Mass. at 70. At trial, she

testified to three medical conditions: pancreatic cancer,

breast cancer, and acute thyroiditis. Though such conditions

are facially significant, the wife testified that these ailments

affected her ability to work until 2007, the most recent year

she worked full time. The wife did not present evidence from

which the judge could draw a conclusion about her ability to

work at the time of the trial. The totality of the wife's

evidence therefore fails to demonstrate that her circumstances

in the "here and now" support a deviation from the presumptive

termination date. See S.S. v. S.S., 104 Mass. App. Ct. 633, 638

(2024) (vacating so much of judgment as granted deviation due to

lack of evidence that recipient wife's mental health condition

would affect ability to work after running of presumptive

duration).

4 Consequently, the judge had no evidence upon which to make

findings regarding how the wife's ailments and resulting

inability to work would continue beyond the presumptive

termination date. Though the act sets forth a nonexhaustive

list of "[g]rounds for deviation," the trial judge cited neither

those grounds nor "relevant and material" factors outside the

act. G. L. c. 208, § 53 (e). Instead, the judge focused

primarily on evidence relating to the husband's income and

ability to pay alimony. Because it was unrelated to the wife's

circumstances in the "here and now," this evidence failed to

demonstrate that deviation was required "in the interests of

justice." G. L. c. 208, § 49 (b). See George, 476 Mass. at 70.

The judge therefore erred by deviating from the presumptive

durational limit. See S.S., 104 Mass. App. Ct. at 638 ("To the

extent such findings are implicit in the judge's decision, they

are clearly erroneous because there is no record evidence to

support them"). See also Van Arsdale, 477 Mass. at 223.

This outcome does not leave the wife without recourse. She

may file a subsequent complaint for modification consistent with

the requirements of the act and our cases interpreting it. The

modification judgment entered December 12, 2023, is

vacated. The matter is remanded for the limited purpose of

(1) entering a new judgment terminating the husband's alimony

obligation as of October 1, 2023, and ordering the husband to

5 pay any arrears owed through that date; and (2) determining

what, if any, alimony overpayments have been made by the husband

beyond October 1, 2023, and ordering reimbursement of such

overpayments as the judge deems appropriate.

So ordered.

By the Court (Blake, C.J., Hershfang & Tan, JJ.2),

Clerk

Entered: April 2, 2025.

2 The panelists are listed in order of seniority.