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19-P-139                                           Appeals Court

             ALISON J. VOORHIS   vs.   PAUL B. RELLE.


                           No. 19-P-139.

      Suffolk.       November 1, 2019. - February 10, 2020.

            Present:    Agnes, Sullivan, & Blake, JJ.


Probate Court, Divorce. Divorce and Separation, Alimony,
     Findings, Modification of judgment. Contempt. Practice,
     Civil, Contempt.



     Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on September 25, 2000.

     Complaints for modification, filed on September 6, 2016 and
November 7, 2016, and a complaint for contempt, filed on October
16, 2017, were heard by Patricia A. Gorman, J.


    Janice Bassil for the wife.
    Maureen McBrien for the husband.


    BLAKE, J.    In this divorce modification case, a judge of

the Probate and Family Court was asked, but declined, to deviate

from the durational limits imposed by the Alimony Reform Act of

2011 (act), "in the interests of justice."   See St. 2011,

c. 124, §§ 4, 5.   We conclude that the judge did not abuse her
                                                                      2


discretion as, here, the facts do not warrant deviation from the

durational limits.    We therefore affirm the modification

judgment, with one exception.

     1.    Background.   We summarize the judge's findings of fact,

supplemented by undisputed facts in the record and reserving

certain facts for later discussion.     See Pierce v. Pierce, 455

Mass. 286, 288 (2009).    The parties were married on February 20,

1982, and had four children.1    They divorced on January 22, 2002.

The judgment of divorce nisi incorporated the parties'

separation agreement that provided, in pertinent part, that the

husband pay $4,020 per month in alimony to the wife, plus

thirty-five percent of any gross cash bonuses he received.     The

wife was awarded physical custody of the parties' four children.

The husband was required to pay $2,650 per month in child

support.   The marital estate was valued at approximately $1

million and was equally divided between the parties, as was the

husband's pension.    At that time, the parties were debt free.

     In September 2006, the wife was arrested, and in December

2007, she pleaded guilty to vehicular manslaughter and was

sentenced to from eight to twelve years in prison; she served in

excess of eight years and was released in October 2016.2     In a




     1 At the time of this trial, three of the children were
emancipated. The youngest was a college freshman.
                                                                     3


modification judgment entered in September 2006, the husband was

awarded custody of the unemancipated children and his child

support obligation was terminated; the husband was also ordered

to maintain a life insurance policy naming the wife as

beneficiary for so long as he was required to pay her alimony.

In a modification judgment entered in December 2007, his alimony

obligation was reduced from $4,020 per month to $1,500 per month

and his obligation to pay additional alimony from cash bonuses

was terminated.   This modification judgment also provided that

the husband would resume paying alimony in the amount of $4,020

plus thirty-five percent of his gross cash bonuses "following

the date [the wife] is released."

     2.   Modification and contempt proceedings.   On September 6,

2016, approximately one month before the wife's release from

prison, the husband filed a complaint for modification seeking a

termination of his alimony and the life insurance obligations

pursuant to G. L. c. 208, § 49 (b) (4).3   Here, the parties were

married for 226 months.   By the terms of the act, the duration


     2 The wife is a defendant in a wrongful death case filed by
the family of the man she killed. At the time of this trial,
the wrongful death suit was still pending. The judge did not
factor this lawsuit when considering the wife's financial
condition.

     3 The act provides that general term alimony shall continue
for no longer than eighty percent of the number of months of the
marriage, if the length of the marriage is twenty years or less,
but more than fifteen years.
                                                                     4


of the husband's alimony obligation was to be eighty percent of

226 months or 180 months.   Thus, as of January 22, 2017, the

husband's alimony obligation should have ended.   Instead, he

made payments for longer than the maximum durational limit.     On

December 21, 2016, the judge denied, in part, the husband's

motion for temporary orders.   She ordered him to continue to pay

alimony to the wife, but ordered the husband to pay thirty-five

percent of his gross cash bonuses into an escrow account.     At

the time of trial, the husband had paid $63,000 into the escrow

account.

    On March 20, 2017, the wife filed an amended answer and

counterclaim, asking that the court deviate from the durational

limits and order a continuation of the husband's alimony,

including the thirty-five percent of cash bonuses, and life

insurance obligations.   She also asked to be relieved from

contributing to certain expenses of the children.   Following a

trial, the judge issued, on March 30, 2018, a modification

judgment that terminated the husband's alimony obligation,

retroactive to the presumptive termination date of January 22,

2017; terminated the husband's obligation to provide the wife

life insurance; and relieved the wife of her obligation to pay

for two of the children's cellular telephones and to pay twenty

percent of the college expenses of the four children.   The judge

denied the wife's counterclaim for modification where she sought
                                                                         5


alimony payments and an extension of those payment beyond the

durational term limits.        On that same date, the judge issued a

separate judgment on the wife's October 2017 complaint for

contempt that found the husband not guilty of civil contempt.

The wife appeals from both judgments.

    3.      Discussion.   a.   Durational limits on alimony.   Alimony

is "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."   G. L. c. 208, § 48.      "The purpose of alimony is to

provide adequate support for a spouse who needs it."        Williams

v. Massa, 431 Mass. 619, 634 (2000).        General term alimony, in

particular, aims to support one spouse who has become

"economically dependent" on the other.        G. L. c. 208, § 48.

Connor v. Benedict, 481 Mass. 567, 572 (2019).        "A judge has

broad discretion when awarding alimony under the statute."

Zaleski v. Zaleski, 469 Mass. 230, 235 (2014).        Nonetheless, the

"reasonable length of time" for which alimony payments may be

ordered is constrained by the act, which sets presumptive

durational limits on general term alimony.        See G. L. c. 208,

§ 49 (b).    The limits are premised on the length of the parties'

marriage; the longer the marriage, the longer the maximum

permissible duration of alimony.       In order to determine the

duration of an award of general term alimony, therefore, a judge

first must calculate the length of the parties' marriage.          See
                                                                      6


G. L. c. 208, § 49 (b) (1)-(4); Duff-Kareores v. Kareores, 474

Mass. 528, 535 & n.10 (2016).

    b.   Termination of alimony.   An existing alimony award that

exceeds the durational limits established by the act can be

modified upon a complaint for modification without requiring a

showing of a material change of circumstances.    See St. 2011,

c. 124, § 4 (b); Chin v. Merriot, 470 Mass. 527, 532-533, 536

(2015) ("uncodified provisions of an act express the

Legislature's view on some aspect of its operation").     A judge

may order alimony to continue beyond the durational limits if

written findings based on the evidence establish that deviation

is "required in the interests of justice."    George v. George,

476 Mass. 65, 70 (2016), quoting G. L. c. 208, § 49 (b).       "The

recipient spouse bears the burden of proving by a preponderance

of the evidence" that the deviation is required in the interests

of justice.   George, supra.   "Further, a judge 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 existed at the time of divorce."     Id.   While

"a 'judge has broad discretion when awarding alimony under the

[act],' the judge must consider all relevant, statutorily

specified factors, such as those set forth in G. L. c. 208,

§§ 49 (d) and 53 (a)" (footnote and citation omitted).     Duff-

Kareores, 474 Mass. at 535-536.    The statutory factors to be
                                                                     7


considered in connection with deviation beyond the durational

limits are set forth in G. L. c. 208, § 53 (e).4

     c.    The wife's financial situation.   At the time of trial,

the wife was fifty-eight years of age and worked fulltime at

Home Depot.    She earned $15.75 per hour and had the opportunity


     4   The factors are as follows:

     "(1) advanced age; chronic illness; or unusual health
     circumstances of either party;

     "(2) tax considerations applicable to the parties;

     "(3) whether the payor spouse is providing health insurance
     and the cost of health insurance for the recipient spouse;

     "(4) whether the payor spouse has been ordered to secure
     life insurance for the benefit of the recipient spouse and
     the cost of such insurance;

     "(5) sources and amounts of unearned income, including
     capital gains, interest and dividends, annuity and
     investment income from assets that were not allocated in
     the parties['] divorce;

     "(6) significant premarital cohabitation that included
     economic partnership or marital separation of significant
     duration, each of which the court may consider in
     determining the length of the marriage;

     "(7) a party's inability to provide for that party's own
     support by reason of physical or mental abuse by the payor;

     "(8) a party's inability to provide for that party's own
     support by reason of that party's deficiency of property,
     maintenance or employment opportunity; and

     "(9) upon written findings, any other factor that the court
     deems relevant and material."

G. L. c. 208, § 53 (e).
                                                                     8


to work overtime.     Her average gross weekly earnings were $699

or approximately $36,000 per year.    The wife paid for employer-

provided health insurance.     She had additional income of

approximately $4,000 per year from renting a parking space, and

she received mandatory IRA distributions of $15,570 per year

from an account that she inherited after the divorce.     The wife

deferred receipt of distributions from the portion of the

husband's pension awarded to her in the divorce.5

     Following the divorce, the wife's parents established the

Alison J. Voorhis Trust (trust), payable to the wife as sole

beneficiary upon the last to die of the wife's parents.       The

wife's sisters were the trustees.    The trust provided that the

trustee "shall distribute to the [wife] as much of the income

and principal of the [wife's] trust as our Trustee determines is

necessary or advisable for the health, maintenance and support

of the [wife]."     The trust contained an IRA valued at $414,000

and accounts at Vanguard and TD Bank.    The Vanguard account was

valued at $1,248,270.87 and the TD Bank account was valued at

$26,558.23.   Following the death of the wife's parents and after

the wife's release from prison, the trustees paid a number of

expenses on behalf of the wife, including:     rent, a security


     5 At the time of trial, the distributions would have been
nearly $17,000 per year. If she waited until the year 2024, the
distributions were estimated to be approximately $20,000 per
year.
                                                                     9


deposit and broker fee, a computer and software, health

insurance premiums, moving expenses, and legal fees totaling

$96,123.91 for one year.   This amount included $27,000 that the

trust loaned to the wife for State taxes.6   The trustees declined

the wife's request for payment of a new mattress and the monthly

probation fee associated with her criminal conviction.7

     The judge did not credit portions of the financial

statement filed by the wife.   The wife listed the value of the

trust at zero dollars and the totality of her assets at $40,131.

The judge, however, found the wife had assets, including the

value of the trust, of $1,314,460.   The wife called an expert

witness, Susan Miller, who testified to financial projections

that she ran based on the wife's financial statement.

Notwithstanding that Miller testified that the wife would not

run out of money until age seventy-eight, the judge did not

credit her testimony, as she found that it was based on

inaccurate financial information.    After finding certain claimed

expenses anticipatory, the judge determined the wife's weekly

expenses were $1,244.


     6 The wife also owed $167,000 for unpaid Federal taxes. She
entered into a payment plan to pay $322 per month towards that
debt.

     7 The wife claims that it was error for the judge to
consider the assets of the trust in her analysis; however,
neither trustee testified and no evidence was presented to
support her contention.
                                                                    10


     Since the divorce, the wife has spent in excess of $100,000

in legal fees in connection with the criminal case and a

wrongful death suit filed by the family of the man she killed.

     d.   The husband's financial situation.   At the time of the

trial, the husband was fifty-eight years of age and he had

remarried.   He remained employed with the company that he worked

for over the past twenty-nine years, earning a base salary of

$273,000 per year.8   In addition to his base salary, the husband

received bonuses based on his and the company's performance.     At

the time of the trial, his most recent bonus was $180,000, and

he deposited thirty-five percent or $63,000 into the escrow

account, pursuant to the temporary order of the court.     At the

time of the trial, the husband had assets of approximately

$4,100,000, including $900,000 that he inherited in 2014.

Following the divorce and the wife's incarceration, the husband

paid $600,000 in college expenses for the three eldest children

and anticipated paying an additional $260,000 for the youngest

child's college expenses.

     e.   Findings of fact and rationale.   Here, it is clear from

the judge's written findings that she properly considered the

factors of G. L. c. 208, § 53, and made the necessary finding

that deviation from the durational limits was not required "in


     8 The husband's income for 2016, totaling approximately
$866,000, included stock that had vested in 2015.
                                                                  11


the interests of justice."   Among other things, the judge took

into account the parties' ages, health, tax considerations,

availability and cost of health and life insurance, the

approximate nine-month premarital cohabitation,9 the wife's

allegations of physical abuse during the marriage,10 and the

wife's ability to support herself, including sources of unearned

income.   She also considered that the husband had custody of the

children since the wife's incarceration, and that the husband

had paid all of the four children's expenses, without

contribution from the wife, including college expenses.   The

judge considered the wife's postdivorce struggle with alcohol,

but found, in the absence of any evidence to the contrary, that

the wife had not proved that this was a chronic illness or

unusual health circumstance that prevented her from working.

Indeed, the judge found, with ample record support, that the

wife was working full time, derived income from the rental of a

parking space, and was the beneficiary of a trust.   The judge

further properly relied on other relevant factors, including the




     9 The judge found that there was no evidence of an economic
partnership during these approximate nine months and accordingly
did not add additional time to the length of the parties'
marriage.

     10The judge found that allegations of domestic violence
were troubling, but that the wife did not produce credible
evidence that these allegations prevented her from working.
                                                                   12


wife's inaccurate financial statement that misled the court as

to her income and assets.

    The wife focuses her claim of error on the failure of the

judge to consider the marital lifestyle and the wife's ability

to maintain that lifestyle.   While these are appropriate

considerations in many issues that arise in the nature, amount,

and duration of alimony pursuant to G. L. c. 208, § 53 (a), they

do not apply to cases involving deviation from the durational

limits.   See G. L. c. 208, § 53 (e).   Marital lifestyle is not

listed as a factor in § 53 (e).   Moreover, although the

recipient's inability to provide for her own support is a factor

to be considered in deviating from the durational limits, see

G. L. c. 208, § 53 (e) (8), the inability to be self-supporting

is not the same as the recipient's inability to maintain the

marital lifestyle.   When considering a deviation from the

durational limits of alimony, the analysis is in the "here and

now," not the marital lifestyle at the time of the divorce.

George, 476 Mass. at 70.    These are highly intensive factual

inquiries to be made on a case-by-case basis.    Accordingly, we

discern no abuse of discretion in the judge's decision to

decline to deviate from the presumptive duration of alimony.

    f.    Retroactive modification.   The judge ordered the

termination of the husband's alimony obligation retroactive to

January 22, 2017, and ordered the wife to repay $56,608 in
                                                                     13


overpayments of alimony in a monthly amount of $500.   While

there is no statutory requirement that such orders be given

retroactive effect, a judge has the discretion to do so.

Boulter-Hedley v. Boulter, 429 Mass. 808, 809-810 (1999).

Indeed, in Pierce, 455 Mass. at 305-306, the Supreme Judicial

Court held that retroactive modification was within the judge's

discretion, but that the judge must first make findings

"reflecting her consideration of all the factors mandated by

G. L. c. 208, § 34."   Id. at 306.   Here, there are no findings

nor a § 34 analysis to explain the retroactive modification

requiring the wife to repay the husband $56,508 and to do so in

a monthly amount of $500.   Accordingly, that portion of the

modification judgment is vacated and the matter is remanded.

See Smith v. Smith, 93 Mass. App. Ct. 361, 364-366 (2018).      On

remand, the judge should consider the enforceability of the

retroactive award, including the wife's ability to pay a sum

certain in a specified time frame.   See Poras v. Pauling, 70

Mass. App. Ct. 535, 540 (2007), quoting Larson v. Larson, 28

Mass. App. Ct. 338, 340 (1990) ("defendant must be found to have

the ability to pay at the time the contempt judgment enters").

    g.   Contempt.   Additionally, the wife contends that the

husband should be held in contempt for failing to pay thirty-

five percent of his cash bonuses as additional alimony as

required by the separation agreement.    "To constitute civil
                                                                        14


contempt there must be a clear and undoubted disobedience of a

clear and unequivocal command" (citation omitted).     Birchall,

petitioner, 454 Mass. 837, 851 (2009).     The contempt must be

proved by clear and convincing evidence, and the judge is to

consider "the totality of the circumstances."      Wooters v.

Wooters, 74 Mass. App. Ct. 839, 844 (2009).

     We review the judge's ruling that the husband was not

guilty of contempt for abuse of discretion.    See L.F. v. L.J.,

71 Mass. App. Ct. 813, 821 (2008).   Here, the wife failed to

meet her burden.   The judge found that there was a clear and

unequivocal order, but not an undoubted disobedience.      The judge

credited the testimony of the husband, and relied on documents

that described the mandatory deferments that vested pursuant to

a schedule, in finding that the disputed sums were not cash

bonuses subject to the additional alimony provision of the

separation agreement.

     4.   Conclusion.   The contempt judgment is affirmed.      As to

the modification judgment, the last two sentences of paragraph

numbered one are vacated, and the matter is remanded for further

findings consistent with this opinion.11    In all other respects

the modification judgment is affirmed.

                                     So ordered.

     11We express no view whether further hearings are
necessary; it is within the judge's discretion whether to
conduct additional hearings on remand.
