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16-P-752                                             Appeals Court

              JEFFREY W. FLOR    vs.   THERESA M. FLOR.


                             No. 16-P-752.

      Berkshire.         December 8, 2016. - October 4, 2017.

              Present:    Green, Agnes, & Desmond, JJ.


   Divorce and Separation, Modification of judgment, Alimony.


     Complaint for divorce filed in the Berkshire Division of
the Probate and Family Court Department on August 24, 2007.

     A complaint for modification, filed October 7, 2015, was
heard by Richard A. Simons, J., and a motion for reconsideration
was considered by him.


    Dennis M. LaRochelle for the husband.


    AGNES, J.   The parties, Theresa M. Flor (wife) and Jeffrey

W. Flor (husband), entered into a separation agreement

(agreement) that, as pertinent here, merged into the judgment of

divorce nisi prior to March 1, 2012, the effective date of the

Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform act

or act).   The divorce judgment includes an order requiring the

husband to pay child support until, at the latest, the child's
                                                                    2


twenty-third birthday,1 an express waiver of the wife's right to

seek past or present alimony, and an express reservation of the

wife's right to seek an award of alimony in the future.      Upon

the wife's complaint for modification, brought in anticipation

of the child's twenty-third birthday, a judge of the Probate and

Family Court ordered the husband to pay the wife general term

alimony.

     The husband appeals, raising two issues.   First, the

husband argues that there was no basis for the judge's

determination that the child's emancipation was a material

change in circumstances that authorized the judge to determine

whether it was appropriate to modify the judgment to provide for

alimony.   Second, the husband argues that the judge erred in not

applying G. L. c. 208, § 49(f), the provision of the alimony

reform act that creates a presumption that general term alimony

terminates when the payor reaches full retirement age, because

the initial order for alimony was entered in 2016, well after




     1
       The parties' separation agreement provided that "[t]he
[h]usband shall pay to the [w]ife weekly child support . . . in
the current amount of $443 per week, to be paid bi-weekly
commencing on [November 14, 2008], until the child is
emancipated." The judge made a finding that "[t]he parties
child[] attained age [twenty-three] on January 2, 2016. While
she attended college at the University of Massachusetts, she
left university in November[,] 2014. In July[,] 2015, the child
moved in with her boyfriend. She did not return to live at the
. . . [w]ife's home after that."
                                                                      3


the effective date of the act.    For the reasons that follow, we

affirm.

    Background.     The following facts are drawn from the judge's

findings, supplemented by uncontested facts from the record.

The husband and the wife were married in 1984.     They have one

child of the marriage, who was born on January 2, 1993.     During

the marriage, the husband was the primary wage earner and the

wife was responsible for the household and child care.     "From

1984 to 1998, she cared for children in her home.    In 2000, she

worked for Goodwill Industries as a sales associate for a period

of six months.    By the time the parties divorced in 2008, she

had not worked outside the home in eight years."     Otherwise, she

did not work outside the home between 2000 and 2008 due to

emotional problems.

    The marriage irretrievably broke down in 2008.      The judge

entered a judgment of divorce nisi on November 6, 2008, which

incorporated portions of the parties' agreement pertinent to

this appeal.    The judge found that the parties had made an equal

division of the marital estate.    As part of the agreement, the

wife waived any claims for past and present alimony, but

expressly reserved "her rights to future alimony and/or

support."   The agreement further required the husband to pay

child support to the wife of $442 per week until the child's

emancipation.    The agreement provided that emancipation could
                                                                     4


occur at various points in the child's life, but in no event

would emancipation occur later than her twenty-third birthday.

    In 2015, as the child's twenty-third birthday approached,

the wife filed a complaint for alimony, as well as a complaint

for modification.    The husband moved for summary judgment, which

was allowed as to the complaint for alimony, but with respect to

the complaint for modification, the judge found that a genuine

issue of material fact existed whether there had been a material

change in circumstances, and so denied the husband's motion as

to that complaint.

    The case proceeded to trial.     At the time of trial, the

wife was fifty-six years old and the husband was fifty-nine

years old.   The judge found that after the divorce, the wife

made a conscious decision to stay out of the work force.    She

did not want to work outside the home; she felt she needed to

heal after a difficult marriage, and she wanted to focus on

raising the parties' child.    By 2012, the wife's anxiety had all

but disappeared, although the only employment she took on

between 2012 and 2016 was a four-month job at a department store

during the holidays.    The judge also found that the wife made

only very minimal efforts to secure a job, that she was

ambivalent about finding employment, and that the only thing

preventing her from working in some capacity was her motivation

and drive.   Therefore, the judge attributed income to the wife
                                                                     5


based on a full-time minimum wage job, but found that she still

would be unable to meet her current needs without additional

support from the husband, whom the judge found able to pay

alimony.

     The judge concluded that the prospect of the child's

emancipation and the concomitant termination of child support

payments constituted a material change in circumstances that

authorized him to consider whether an order for general term

alimony was appropriate.    Based primarily on his findings that

the husband's expenses had decreased, the wife's expenses had

increased, and the husband's total financial circumstances were

far superior to the wife's, the judge concluded that an alimony

award was appropriate.     As a result, the judge entered judgment

for the wife, ordering the husband to pay $145 per week in

general term alimony, and further determined that the duration

would be indefinite.2

     Discussion.   1.    Material change in circumstances.     In

reviewing a modification judgment, we examine whether the

factual and legal bases for the decision are in error, or

whether the judge otherwise abused his discretion.     Pierce v.

Pierce, 455 Mass. 286, 293 (2009).     The husband makes two

     2
       The original judgment of modification provided that the
alimony payments would continue until the death of either party,
or until the court ordered otherwise. Upon the husband's motion
for reconsideration, the modification judgment was amended to
provide that alimony also would cease should the wife remarry.
                                                                    6


arguments for why there was no material change in circumstances

in this case, (1) that any material changes in circumstances are

wholly attributable to the wife's own neglect, and (2) that the

loss of child support cannot be viewed as a material change.

     The husband argues that any change in the wife's financial

position is due to her own conscious decision to remain

unemployed, and her lack of motivation and drive.    The husband

relies heavily on dicta from Pagar v. Pagar, 9 Mass. App. Ct. 1,

4 (1980) ("A party has no right to waste an asset deliberately

or ignore a feasible source of income and then request an

increase in support").    However, in Pagar we explained that the

financial impact of the wife's wasted asset (personal use of a

seasonal rental property) was "too speculative to constitute a

determinative factor in assessing the resources of the wife."

Ibid.    We similarly conclude in the case at bar that the impact

of the wife's failure to work on the relative financial

positions of the parties is too speculative to require that the

judge attribute such lost income to the wife.    Had she been

working since 2012, the wife's income might be higher than the

income attributed to her by the judge, or it might not; her

assets might be higher than those revealed by her current

financial statements, or not.3


     3
       To the extent the husband believed the wife should have
been working earlier to help provide for the financial needs of
                                                                    7


    Furthermore, the judge took the wife's failure to work into

account by attributing income to her in the form of a minimum

wage job.   Taking into account such attributed income, the judge

nevertheless found that the wife still would be unable to meet

her expenses without spousal support.   Having considered the

wife's education, training, and employment history, the judge

acted within his discretion in finding that her experience is

sufficient for an entry level clerical position, and not more

lucrative employment.   See Emery v. Sturtevant, 91 Mass. App.

Ct. 502, 509 (2017).    Compare Zaleski v. Zaleski, 469 Mass. 230,

241 (2014) ("[T]he prospect of future employment, when based on

a past history of commensurate employment followed by a brief

hiatus, may be sufficiently predictable, even in the absence of

an available, specifically identifiable job").

    In reaching his ultimate finding, the judge properly

applied G. L. c. 208, § 37, governing a modification prior to

the enactment of the alimony reform act.   See Chin v. Merriot,

470 Mass. 527, 534-536 (2015).   He considered the current

income, expenses, and assets of the parties, and compared their

positions at the time of trial relative to their positions at

the time of the judgment of divorce.    The judge found that the

wife's expenses had increased, and that she was unable to cover



the child, the husband had an opportunity to seek a modification
from the court, but neglected to do so.
                                                                   8


those expenses, even with a minimum wage job, whereas the

husband enjoyed increased assets, decreased expenses, and had

the ability to support the wife.   The judge thus concluded that

the wife had carried her burden of demonstrating that a material

change in circumstances existed.   Compare Pagar, 9 Mass. App.

Ct. at 6.   Other than the argument discussed above, the husband

does not challenge the judge's subsidiary or general findings of

facts or conclusions, and we find nothing clearly erroneous

there.

    The husband's remaining argument is that the emancipation

of the couple's only child could not serve as the basis for a

determination that there had been a material change in

circumstances because that event was anticipated by the parties

when they entered their separation agreement.   In particular,

the husband maintains that Downey v. Downey, 55 Mass. App. Ct.

812 (2002), holds that a party in the position of the wife has

the right to raise the issue of alimony at the time of a child's

emancipation only when that party explicitly reserved such a

right in the separation agreement.   However, in Downey, we

recognized that a general reservation of the right to revisit

alimony, as in this case, "constitutes a tacit acknowledgement

that the real financial circumstances of the wife could well

change upon the child's emancipation."   Id. at 817.   This view

is in keeping with the general rule that "[c]hanged
                                                                     9


circumstances are those that occur subsequent to the judgment of

divorce or subsequent to a prior modification."    Pizzino v.

Miller, 67 Mass. App. Ct. 865, 872 (2006).4

     2.   The alimony reform act.   The husband also contends that

the judge erred by awarding the wife spousal support

indefinitely because the alimony reform act, G. L. c. 208,

§ 49(f), creates a presumption that any order for support be

terminated upon the husband's reaching retirement age.     The

husband correctly acknowledges that Chin, 470 Mass. at 529,

precludes retroactive application of § 49(f) of the act.     See

Rodman v. Rodman, 470 Mass. 539, 542-546 (2015); Doktor v.

Doktor, 470 Mass. 547, 549-550 (2015).    Instead, the husband

argues that because he was under no obligation to pay spousal

support as a result of the original judgment of divorce nisi in

2008, and such an order did not come into existence until the

modified judgment of modification entered in 2016, the award of

alimony is governed by § 49(f) of the act.



     4
       Contrary to the husband's claim, this is not a case in
which the judge made an order for alimony based simply on the
fact that there was a cessation of child support. Here, the
judge's subsidiary findings that led to his conclusion that a
material change in circumstances had occurred do not even
mention the cessation of child support. Instead, they describe
the changes in income, expenses, assets, and liabilities of each
of the parties. The decision is not based solely on the
emancipation of the child, but also on the factors that are
appropriate to consider in making an award of general term
alimony.
                                                                    10


     In cases where alimony was not contemplated in the judgment

of divorce, an award of alimony thereafter is treated as an

initial award of alimony commencing on that date, not an award

that relates back in time to the date of the divorce.       See Snow

v. Snow, 476 Mass. 425, 428-429 (2017) (treating complaints for

modification in such cases as initial complaints for alimony).

However, the controlling precedent here derives instead from

Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997).     In Buckley,

as in this case, and unlike in Snow, the parties entered into a

separation agreement, which was incorporated and merged into the

judgment of divorce.   In addition, in Buckley, as in this case,

the parties' agreement included a waiver by the wife of any

claims to present and past alimony, but a reservation of the

right to make a claim for alimony in the future.     Id. at 720.

We reasoned there that in such circumstances, the parties had

"expressly addressed the issue of alimony" in their separation

agreement (emphasis omitted).   Id. at 722.    Thus, we concluded

that it was proper to treat the complaint as one for

modification, rather than as an initial complaint for alimony.

Ibid.   The same reasoning obtains here.    Reserving a right to

seek future alimony implies that alimony will "only be sought if

the parties' circumstances were significantly different from

those extant at the time of the divorce."     Id. at 720.   It

follows, then, that the alimony award here is a modification of
                                                                    11


the November, 2008, divorce judgment pursuant to G. L. c. 208,

§ 17, and, thus, § 49(f) of the alimony reform act does not

apply.

       The husband further argues that he had a reasonable

expectation, based on the separation agreement, that his support

obligations would end upon the emancipation of the parties'

daughter.    However, the express reservation of the wife's right

to seek alimony in the future renders any such expectation

unreasonable on its face.    The agreement reflects a mutual

understanding that should circumstances change, the wife would

be able to seek spousal support.     Had the wife known, at the

time of the separation agreement, that future spousal support

would terminate upon the husband's retirement, she might have

insisted on spousal support initially.     This is why the Chin

court held that "an order for alimony in a divorce judgment that

entered prior to [the act becoming effective on] March 1, 2012,

includes, as part of its terms, the standards for modification

existing at the time the judgment entered."     Chin, 470 Mass. at

535.    The husband's argument would require us to retroactively

apply the act's presumption in favor of a general term alimony

order terminating upon the payor's retirement in violation of

the rule in Chin, supra.

       Conclusion.   The judge's thoughtful findings of fact and

rationale reflects that he correctly applied the law at every
                                                                    12


stage of this case.   His dismissal of the complaint for alimony,

while allowing the complaint for modification to proceed, was

entirely appropriate.   His determination that a material change

of circumstances existed was wholly within his discretion.     In

sum, the judge's award of alimony for an indefinite term was

grounded in his consideration of the relevant factors based on

the statutory scheme in place at the time of the judgment of

divorce, was amply supported by his detailed findings of fact,

and was an exercise of sound judicial discretion.

                                    Amended judgment affirmed.
