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17-P-765                                                Appeals Court

                AMANDA L. SMITH   vs.   ROBERT SMITH.


                            No. 17-P-765.

           Essex.      February 6, 2018. - June 7, 2018.

           Present:   Wolohojian, Agnes, & Englander, JJ.


Divorce and Separation, Alimony, Modification of
     judgment. Contempt. Laches. Estoppel.



     Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on May 1, 2009.

     A complaint for contempt, filed on March 10, 2016, was
heard by Theresa A. Bisenius, J.


     Lisa Stern Taylor for the wife.
     Cheryl Garrity for the husband.


     ENGLANDER, J.    In this case we consider the legal effect of

a series of postdivorce agreements between former spouses which

reduced court-ordered alimony, where those agreements were

reached without court approval.    After a trial on a complaint

for contempt, a Probate and Family Court judge found that the

former husband had "detrimentally relied" on the postdivorce
                                                                       2


agreements, and the judge gave effect to those agreements by

"modifying" the alimony obligation retroactively (but not

prospectively) such that the husband was relieved from paying

alimony that had gone unpaid.     The judge also found the husband

"not guilty" of civil contempt as to the nonpayment of alimony.

We affirm the judgment of no contempt.     However, because the

judge's order does not apply the correct legal standard and thus

does not provide sufficient findings to support the retroactive

modification of alimony, we reverse and remand as to that issue.

     Background. 1    The husband and the wife were married in 1983

and divorced in 2010.     The parties entered into a divorce

agreement on April 14, 2010, which set alimony at $650 per week.

The agreement specifically provided that "matters concerning

alimony" would merge into the divorce judgment, and would be

"modifiable by the [c]ourt in the event of a material change in

circumstances."      The judgment of divorce entered April 26, 2010,

and incorporated the divorce agreement with respect to alimony.

Between August, 2011, and August, 2015, the husband paid alimony

at a rate that was less than the rate set in the divorce

agreement.   The husband reduced the amount paid nine separate

times, beginning at $2,000 per month in August of 2011, and

reducing to, at the end, $800 per month by September of 2014.

     1 We set forth those facts that are undisputed, as well as
the facts found by the trial judge. The wife does not challenge
any of the court's subsidiary findings as clearly erroneous.
                                                                      3


     The judge found that the husband and the wife agreed to

these reduced rates.   No complaint for modification was filed

with the court in connection with any of the reductions.    In

August, 2015, after receiving a letter from the wife's lawyer,

the husband resumed paying alimony equal to $650 per week, and

thereafter continued to make those payments.    In total, over a

roughly four-year period from 2011 to 2015, the husband paid

$87,400 less alimony than the amounts called for by the divorce

agreement.

     On March 10, 2016, the wife filed a complaint for contempt,

the resolution of which leads to this appeal.    As part of that

complaint the wife sought the $87,400 arrearage.    The husband

answered that the wife had agreed to the alimony reductions, and

that as a result he had made payments to cover costs for their

emancipated children that he otherwise would not have made.      He

argued that these facts gave rise to defenses of estoppel and

laches.   After trial, the judge found the husband "not guilty"

of civil contempt; she also entered an order "retroactively

modif[ying]" the husband's alimony obligation so that it matched

the amounts he actually paid between 2011 and 2015.    The judge

found:

     "that the parties made agreements with one another at
     numerous dates between June, 2011[,] and December, 2015[,]
     for defendant to pay and plaintiff to receive reduced
     amounts of alimony. Plaintiff testified that she agreed to
     those changes and further testified that the parties
                                                                      4


     discussed each change either on the telephone or through
     [electronic mail]. In reliance upon the reductions in
     alimony, defendant assumed additional financial
     responsibilities with reference to the parties' children,
     albeit emancipated children. Defendant paid graduate
     school tuition for the parties' daughter; he paid monies
     toward the daughter's wedding; he gave both the daughter
     and one son money toward a down-payment on their first
     home; [and] he assisted one son in the payment of
     liabilities."

The wife appeals.

     Discussion.    1.   Contempt.   We first address the charge of

contempt.   To prove civil contempt a plaintiff must show two

elements:   there must be (1) clear disobedience of (2) a clear

and unequivocal command.    See Birchall, petitioner, 454 Mass.

837, 852 (2009).    The contempt must be proved by clear and

convincing evidence, and the court is to consider "the totality

of the circumstances."     Wooters v. Wooters, 74 Mass. App. Ct.

839, 844 (2009).    Here, the judge found the husband not in

contempt, citing the agreements between the husband and the wife

that specifically contemplated that the husband would pay the

reduced alimony that he actually paid.

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

contempt for abuse of discretion, see L.F. v. L.J., 71 Mass.

App. Ct. 813, 821 (2008), and here the ruling must be affirmed.

The wife's position is that because the divorce agreement and

judgment was clear as to the husband's alimony obligations and

also clear that those obligations could only be modified by
                                                                   5


court order, a contempt finding must follow essentially as a

matter of law, because the husband admittedly did not pay the

amount required or obtain modification by the court.     That

position cannot be accepted, however, as it would require a

finding of contempt based only upon violation of a "clear and

unequivocal command"; the contention ignores the additional

requirement that the plaintiff show "clear and undoubted

disobedience."

     The case law demonstrates that not every violation of a

clear order will constitute contempt, and thus that the

requirement to prove "clear disobedience" has teeth.     For

example, a person cannot be found in contempt of an order to pay

money that he or she is unable to pay.   See Birchall,

petitioner, 454 Mass. at 852.   And in Wooters, 74 Mass. App. Ct.

at 844, this court ruled that a supporting spouse had failed to

pay the alimony required by a court order, but nevertheless

ruled that there was no contempt:   "In our view, the husband's

disagreement or misunderstanding of the issue does not

constitute clear and undoubted disobedience of a clear and

unequivocal command."   While the decision in Wooters could be

found to rest on either prong of the contempt standard, it

plainly stands for the proposition that the violation of an

order to pay alimony does not necessarily require a finding of

contempt.
                                                                    6


     The husband's actions must be judged in the totality of the

circumstances, and here the judge found (1) that the wife had

agreed, in advance, to the reductions in alimony, and (2) that

in reliance thereon, the husband had made the payments agreed

upon and also had changed his behavior, to his detriment, by

assuming "additional financial responsibilities" with respect to

the parties' emancipated children.    It was within the judge's

discretion to conclude there was no "clear and undoubted

disobedience" on these facts. 2

     2.   The retroactive alimony modification.   The judge also

ordered that "[t]he defendant's alimony obligation is

retroactively modified to the amounts paid through June 14,

2016."    This modification was based on the same findings that

supported the decision that the husband was not in contempt. 3     As

noted above, however, the two issues are distinct; a party may

     2 The wife states, in her brief, that she only agreed to the
alimony reductions because the husband called her on the
telephone and "yelled at her." To the extent the wife is
arguing that the judge's finding that she agreed to the alimony
reductions is clearly erroneous (no such argument is expressly
made), we reject the contention. Both the wife and the husband
testified at trial, and it was for the judge to resolve any
conflicts in the testimony. Here, there was sufficient evidence
for the judge to find that the wife agreed to the alimony
reductions; implicit in that finding is that the agreements were
not coerced.

     3 The husband did not file a separate complaint for
modification, but none was required. The judge could properly
modify the alimony provision as part of her ruling on the
contempt complaint. See Emery v. Sturtevant, 91 Mass. App. Ct.
502, 513 (2017).
                                                                    7


not be in contempt, yet still owe alimony under the existing

court order.   See Wooters, 74 Mass. App. Ct. at 841-844.    See

also Poras v. Pauling, 70 Mass. App. Ct. 535, 541-543 (2007).

The issue here is whether the judge's retroactive modification

is properly supported by the judge's findings.

     The judge's analysis and findings in this case were not

sufficient to justify the retroactive modification of alimony.

The relevant analytical framework begins with the Supreme

Judicial Court's decision in Pierce v. Pierce, 455 Mass. 286,

305 (2009), in which the court confirmed that a Probate and

Family Court judge has the authority to reduce or eliminate an

alimony obligation, even as to alimony payable in arrears.    The

court in Pierce was confronted with a request to retroactively

modify alimony because the supporting spouse had retired, and in

that context the 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.   By citing § 34,

the Pierce court invoked the established framework for setting

alimony, which includes a number of considerations such as the

length and history of the marriage, the ages of the parties, and
                                                                    8


the parties' respective financial situations, needs, and earning

capabilities. 4   See id. at 295.

     Additionally, prior to the decision in Pierce, the case law

had also established that an alimony order could only be

modified upon a showing of a "material change of

circumstances."    Schuler v. Schuler, 382 Mass. 366, 368 (1981).

See Binder v. Binder, 7 Mass. App. Ct. 751, 754 (1979); Kelley

v. Kelley, 64 Mass. App. Ct. 733, 739-740 (2005).    In general,

courts considering modification under this test have looked to

the § 34 factors when evaluating the relevant "circumstances."

See, e.g., Griffith v. Griffith, 24 Mass. App. Ct. 943, 945

(1987); Kelley, supra at 739 & n.6.

     Because the judge in this case did not address the § 34

factors, the judge's ruling cannot be squared with the Pierce

case, and the retroactive modification portion of the judgment

must be reversed and the matter remanded for additional

consideration and findings.    On remand, the judge should


     4 After Pierce was decided and after the divorce judgment in
this case, the Legislature enacted the Alimony Reform Act of
2011 (Act). That Act included a new section, G. L. c. 208,
§ 53, which made explicit the considerations for setting
alimony. The new § 53 does not apply retroactively to a
modification of the 2010 divorce judgment at issue. See Chin v.
Merriot, 470 Mass. 527, 531 (2015) ("These provisions reflect
the Legislature's intent that the act apply prospectively except
as to 'durational limits'"); Rosenwasser v. Rosenwasser, 89
Mass. App. Ct. 577, 590 n.11 (2016). See also Hassey v. Hassey,
85 Mass. App. Ct. 518, 524 (2014) ("The Act makes no change in
the fundamental purpose of alimony . . .").
                                                                      9


consider and evaluate the factors enumerated in § 34, including

whether there has been a "material change in circumstances" with

respect to those factors since the divorce judgment entered.     In

this connection the appropriate circumstances for consideration

may include postdivorce conduct of the parties such as are

present here, where a former spouse made certain statements and

the other spouse detrimentally changed position in reliance

thereon. 5   Those facts, however, should be considered in the

broader context of all the relevant § 34 factors, and any other

material postdivorce changes to same. 6   In so ruling, we do not

mean to suggest, or to foreclose, any particular outcome after

further consideration. 7

     We have considered whether the equitable defenses of

estoppel and laches, raised by the husband, can provide an

independent basis for avoiding a claim for alimony owed in


     5 A further consideration is whether such reliance was
reasonable under the circumstances. See, e.g., Turnpike Motors,
Inc. v. Newbury Group, Inc., 413 Mass. 119, 125 (1992).

     6 We note that the new G. L. c. 208, § 53(e), which does not
apply in this case, but which sets forth the alimony factors to
be applied in the future under the Act, expressly invites
consideration of "any other factor that the court deems relevant
and material." Id. at § 53(e)(9).

     7 Although a judge may, in appropriate circumstances,
retroactively modify alimony, it does not follow that such
relief will always be afforded simply because the parties have
reached an agreement -- without court involvement -- to reduce
the payor's alimony obligation. Indeed, where no court approval
has been obtained, the parties proceed at their own risk.
                                                                  10


arrears, or whether an analysis of the § 34 factors will always

be required.   In this context we believe that those equitable

defenses are not independently available.    The case law

indicates that laches is not a defense to such claims.

See Brash v. Brash, 407 Mass. 101, 104-105 (1990) (laches not a

defense to an action for the division of property under § 34).

See also Bullock v. Zeiders, 12 Mass. App. Ct. 634, 636-637

(1981).   As to estoppel, we think the better rule is that any

facts which might give rise to an estoppel should be considered

in the context of the § 34 factors.    Accordingly, even where all

the elements of estoppel are shown, the judge must still

evaluate the remaining § 34 factors, so that the relevant

context is known before determining whether a defendant should

be relieved from an unpaid alimony obligation.

     The judgment finding the husband not guilty of civil

contempt is affirmed.   That portion of the judgment

retroactively modifying the husband's alimony obligations is

vacated, and the case is remanded for further proceedings

consistent with this opinion.

                                      So ordered.
