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14-P-1601                                             Appeals Court

            MARCI ROSENWASSER    vs.   RONALD ROSENWASSER.


                                No. 14-P-1601.

       Middlesex.        January 25, 2016. - June 17, 2016.

              Present:   Cohen, Trainor, & Katzmann, JJ.


Divorce and Separation, Child custody, Child support, Alimony,
     Modification of judgment, Separation agreement. Minor,
     Custody. Parent and Child, Custody, Child support.



     Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on June 16, 2010.

     An amended complaint for modification, filed on August 28,
2012, was heard by Patricia A. Gorman, J.


     Susan E. Stenger for the father.
     Donald G. Tye (Michelle M. Rothman with him) for the
mother.


    KATZMANN, J.     Ronald Rosenwasser (father), the former

husband of Marci Rosenwasser (mother), appeals from a

modification judgment of the Probate and Family Court denying

his request to remove the parties' minor child to Boca Raton,

Florida.    As the father is the child's primary custodial parent,
                                                                     2


his removal request is governed by the two-prong "real

advantage" test set forth in Yannas v. Frondistou-Yannas, 395

Mass. 704 (1985) (Yannas).    Though we credit the judge's efforts

to deal with a complex situation involving two loving parents,

we conclude that the judge erred in her application of the

second prong of the Yannas test, by not adequately considering

the best interests of the child and the interests of the father,

while giving undue weight to the interests of the mother.    We

therefore vacate the portion of the modification judgment

denying the father's removal request and remand the matter to

the Probate and Family Court for further proceedings consistent

with this opinion.

    The mother also cross-appeals from the portion of the

modification judgment reducing the father's support obligation.

We vacate the portion of the modification judgment pertaining to

support and remand the matter for additional findings consistent

with this opinion.

    Background.      "We summarize the proceedings, setting forth

relevant background facts as determined by the judge,

supplemented by the record where necessary, and reserving other

facts for our later discussion of the issues."     Murray v. Super,

87 Mass. App. Ct. 146, 147 (2015) (Murray).     The parties married

in March, 1990, and lived together in Florida until 1997, when

they relocated to Massachusetts.    The father grew up in Florida,
                                                                    3


and much of his extended family still lives there.   The mother's

parents, who are Canadian citizens, also live in Florida

approximately five months out of the year.   The father is one of

three partners in a small law firm that has offices in Florida,

Massachusetts, and Kentucky.   Each partner operates primarily

out of one office and is responsible for bringing in his own

business and profits.   The father works primarily out of the

Newton, Massachusetts, office and also works out of the Boca

Raton, Florida, office approximately one week per month.     The

father employs one associate in the Newton office, as well as

two paralegals and a shared bookkeeper in the Boca Raton office.

     After nearly twenty years of marriage, the parties

separated in February, 2010.   Shortly thereafter, in May, 2010,

the mother gave birth to the parties' daughter (child).    In

October, 2011, the parties were divorced pursuant to a

separation agreement that was incorporated and merged into a

judgment of divorce.1   The separation agreement provided the

mother with primary physical custody of the child, and the

father with "liberal parenting time".   The separation agreement

required the father, as the family's sole wage earner, to pay

the mother "base unallocated family support" of $42,000 per year

     1
       The parties' separation agreement was merged with the
judgment of divorce and therefore did "not survive the judgment
as an independent contract." Huddleston v. Huddleston, 51 Mass.
App. Ct. 563, 564 n.2 (2001).
                                                                    4


and "additional support" equivalent to a percentage of his

earned income between $120,000 and $350,000.   He was not

required to pay such "additional support" on income earned in

excess of $350,000.

    It is undisputed that, almost immediately after the

divorce, the mother became unable to care for the child due to

her ongoing mental health issues, including depression and

anxiety.   The father quickly took over as the child's primary

caretaker, while continuing to operate his law practice.     The

child was enrolled in full-time daycare, and the father also

used paid babysitters to provide additional childcare coverage

during non-daycare hours.   Because the mother was unable to care

for the child for extended periods of time, the father took the

child with him on his monthly business trips to Florida.

    In February, 2012, the father filed a modification

complaint seeking primary physical custody and a reduction in

his support payments to reflect "the reality" of the changed

parenting arrangement.   In August, 2012, the father was

permitted to amend his complaint to include a request to remove

the child to Florida, on the basis that he "has no support

system in Massachusetts to assist him with the child[,]" his

"family (including the child's grandparents) and friends live in

Florida," his law firm's "main office, partners and staff" are

in Florida, and he would "have more income available for the
                                                                   5


child if he were to move to Florida" and operate solely out of

the Boca Raton office, as there is a "considerable cost in

maintaining offices in both states."   In August, 2013, the

parties entered into a partial modification agreement, which was

incorporated into a judgment, transferring primary physical

custody of the child to the father and providing the mother with

parenting time on Thursday afternoons and overnight visits on

alternating weekends.   The remaining issues, including the

father's requests for removal and reduced support payments, went

to trial.

     During the five-day trial, which began in August, 2013, and

concluded in January, 2014, the judge heard testimony from the

father, the mother's parents, and the mother's court-appointed

guardian ad litem (GAL).2   The mother did not testify.   It is

undisputed that, from the time of the divorce in October, 2011,

until the start of the modification trial in August, 2013, the

mother missed the majority of her parenting time.   However,

during the five-month period in which the trial was pending, the




     2
       We note that the GAL in this case was a category D GAL or
"next friend" appointed to represent the mother's interests.
This is distinct from a GAL appointed to evaluate (category E)
or investigate (category F) custody-related issues in a domestic
relations case. See Annual Report of Fee-Generating
Appointments Pursuant to Supreme Judicial Court Rule 1:07 for
Fiscal Year 2016 at 25-27.
                                                                    6


mother "was able to exercise all of her scheduled parenting

time."

    On July 22, 2014, the Probate and Family Court entered a

modification judgment which, among other things, denied the

father's removal request and substantially reduced his support

obligation to the mother.   In denying the removal request, the

judge concluded that while the move to Florida would provide the

father with a "real advantage," it was not in the child's best

interests.   The instant appeal followed.

    Discussion.    "We review the judgment and the subsidiary

findings of fact for abuse of discretion or other error of law."

Murray, 87 Mass. App. Ct. at 148.     "'[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made a clear error of judgment in weighing the factors

relevant to the decision, such that the decision falls outside

the range of reasonable alternatives.'"     Hoegen v. Hoegen, 89

Mass. App. Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014).     "Although we will not

substitute our judgment for that of the probate judge, we will

'scrutinize without deference the propriety of the legal

criteria employed by the trial judge and the manner in which

those criteria were applied to the facts.'"     Whelan v. Whelan,

74 Mass. App. Ct. 616, 620 (2009), quoting from Kelley v.
                                                                     7


Kelley, 64 Mass. App. Ct. 733, 739 (2005) (additional citation

omitted).

    1.   Removal.    A parent, against the objection of the other

parent, may remove a minor child from the Commonwealth "upon

cause shown."   G. L. c. 208, § 30.3   "In determining whether

cause for removal by the parent with primary physical custody

has been shown under the statute, the judge must consider the

custodial parent's request under the familiar two-prong 'real

advantage' test" articulated in Yannas, 395 Mass. at 710-712.

Murray, supra at 149.    The judge must first consider whether the

move provides a "real advantage" to the custodial parent.

Yannas, supra at 711.    If that threshold prong is met, the judge

must then determine whether the move is in the child's best

interests.   Ibid.   We address each of the Yannas prongs in turn.

    A.   Real advantage.    "To satisfy the real advantage test,

the custodial parent must demonstrate 'the soundness of the

reason for moving, and the . . . absence of a motive to deprive

the noncustodial parent of reasonable visitation.'"    Murray,

supra, quoting from Yannas, supra.

    3
       "A minor child of divorced parents who is a native of or
has resided five years within this [C]ommonwealth and over whose
custody and maintenance a [P]robate [C]ourt has jurisdiction
shall not, if of suitable age to signify his consent, be removed
out of this [C]ommonwealth without such consent, or, if under
that age, without the consent of both parents, unless the court
upon cause shown otherwise orders. . . ." G. L. c. 208, § 30,
as amended through St. 1986, c. 462, § 9.
                                                                    8


     Here, the judge concluded that the move to Florida would

provide a real advantage to the father as his "income would

improve or stay the same, his business overhead costs would

diminish, and his emotional support system would be stronger."

The judge specifically found that the father's family members

living in Florida, including his "mother, brother, sister-in-

law, as well as many cousins and nieces and nephews, give him

emotional and physical support in the care of [the child]" and

assist him with "daily chores, such as shopping and cleaning, so

that he may balance work and childcare."   While not addressed in

the judge's findings, it appears from the record that the father

has only one relative, a cousin, living in Massachusetts.     The

judge also found that the father's income has "decreased each

year since he gained sole physical custody" of the child,4 thus



     4
       The judge found that the father earned $200,360 in 2011,
$147,000 in 2012, and $70,000 from January to October, 2013.
The mother contends that the judge mistakenly found a "pattern
of decrease" in the father's income, as there was only a "small
decrease" in his income from 2011 to 2012, and his 2013 income
did not include his annual K-1 distribution typically received
the following calendar year. We do not agree that the nearly
twenty-seven percent decrease in the father's income from 2011
to 2012 is "small," nor do we find error in the judge's
determination of the father's 2013 income. The judge apparently
credited the father's testimony that he had earned a total of
$70,000 as of October, 2013. There is no indication that the
mother sought supplemental evidence of the father's income
earned after that date. The judge was therefore within her
discretion to determine the father's income based on the
available evidence and on her assessment of the father's
credibility. See Johnston v. Johnston, 38 Mass. App. Ct. 531,
                                                                    9


he would benefit financially from Florida's lower cost of living

and from the reduction in his business expenses by operating out

of a single office.5

     "Relocating in order to . . . develop emotional support is

a sincere reason," Altomare v. Altomare, 77 Mass. App. Ct. 601,

607-608 (2010) (Altomare), as is the opportunity to improve

one's financial circumstances.   See Williams v. Pitney, 409

Mass. 449, 455-456 (1991) (Williams); Cartledge v. Evans, 67

Mass. App. Ct. 577, 580 (2006) (Cartledge); Wakefield v.

Hegarty, 67 Mass. App. Ct. 772, 777 (2006) (Wakefield); Woodside

v. Woodside, 79 Mass. App. Ct. 713, 718 (2011).   As reflected in

the judge's findings, the father stood to benefit both

emotionally and economically from the proposed move, and there

was no indication that he sought to deprive the mother of access

to the child.   The mother nevertheless contends that the

father's purchase of a home in Auburndale, Massachusetts,

shortly before seeking removal demonstrates his lack of



536 (1995) (credibility assessments are "close to immune from
reversal on appeal except on the most compelling of showings").
     5
       The judge declined to credit the father's testimony that
the presence of his family in Florida would reduce his childcare
costs because he spent roughly the same amount on babysitting
(approximately $350 per week) in both Florida and Massachusetts.
However, the child was enrolled in daycare in Massachusetts, but
not in Florida. The findings do not address whether the father
was able to avoid incurring daycare expenses in Florida by
relying on his family members for childcare.
                                                                      10


sincerity with respect to the proposed move.       The judge noted,

in both the findings and the rationale, that the father closed

on his Auburndale home in July of 2012, approximately one month

before he amended his modification complaint to include the

removal request.       However, there is no indication that the judge

viewed the timing of these events as reflective of an ulterior

motive on the part of the father when seeking removal.6      We

therefore conclude that the judge did not err in finding a real

advantage to the father, and we continue our inquiry to the

second Yannas prong.

       B.    Best interests of the child.   Once the custodial parent

has "establishe[d] a good, sincere reason for wanting to remove

to another jurisdiction," the judge must then consider whether

the move is in the child's best interests.       Yannas, supra at

711.       This involves the weighing of several factors, including

"(1) whether the quality of the [child's] li[fe] will be

improved, including any improvement that 'may flow from an

improvement in the quality of the custodial parent's life'; (2)

       6
       The mother further argues that the father was seeking to
deprive her of contact with the child, as demonstrated by the
judge's conclusion that the father has not "shown an interest in
fostering" the mother's relationship with the child. We note
that the judge also concluded that the father "has not shown an
active interest in interfering with" the relationship between
the mother and the child. Indeed, if the judge believed the
father had an improper motive for seeking removal, she would
have made an express finding to that effect. We are therefore
unpersuaded by the mother's argument.
                                                                    11


any possible 'adverse effect of the elimination or curtailment

of the [child's] association with the noncustodial parent'; (3)

'the extent to which moving or not moving will affect the

[child's] emotional, physical, or developmental needs'; (4) the

interests of both parents; and (5) the possibility of an

alternative visitation schedule for the noncustodial parent."

Murray, 87 Mass. App. Ct. at 150, quoting from Dickenson v.

Cogswell, 66 Mass. App. Ct. 442, 447 (2006) (Dickenson).     As

Yannas teaches, "none of the relevant factors" are "controlling"

and the "judicial safeguard" of each person's interest "lies in

careful and clear fact-finding."   Yannas, supra at 711-712.      We

therefore examine the judge's findings as they pertain to each

of the aforementioned relevant factors.

    i.   The child's quality of life.    With respect to the

child's quality of life in Massachusetts, the judge found that

the child was attending a "prestigious" daycare program at the

time of the trial.   However, there is no indication as to

whether the child had developed any friendships or was involved

in any activities in Massachusetts.     Compare Altomare, supra at

608 ("Here, the judge found that the children had many friends

. . . and were engaged in a variety of activities, and that a

relocation would negatively affect those relationships and

activities")   Moreover, it appears from the record that the

child has little, if any, extended family in Massachusetts.
                                                                    12


    In contrast, the judge found that the child "is close with

her paternal family in Florida" and she has "already spent

significant time in Boca Raton . . . ."    The judge also found

that the child's maternal grandparents live in Boca Raton

approximately five months per year.     The judge concluded that

the move to Florida "would have advantages for [the child], such

as living closer to her paternal family, seeing her maternal

grandparents when they are in the area, and a decrease in [the

father's] travel for work."    While the judge identified some

advantages resulting from the move, the findings do not address

the benefits to the child "'flow[ing] from an improvement in the

quality of the [father's] life[.]'"     Murray, supra at 150,

quoting from Dickenson, supra at 447.     There are no findings

regarding the extent to which the father's improved financial

circumstances in Florida could also improve the child's quality

of life.   See, e.g., Williams, 409 Mass. at 455 ("financial

stress on the mother . . . if not allowed to move would

adversely affect the children"); Wakefield, supra at 777 ("the

move would result in an improvement in the life of the mother

that would inure to the child's benefit").     This is especially

important where, as in this case, the father is the child's sole

source of economic support.   Moreover, there is no discussion of

the potential benefits to the child resulting from the father's

increased happiness living in Florida.    See Pizzino v. Miller,
                                                                     13


67 Mass. App. Ct. 865, 870 (2006) (Pizzino) ("Common sense

demonstrates that there is a benefit to a child in being cared

for by a custodial parent who is fulfilled and happy rather than

by one who is frustrated and angry"); Altomare, supra at 608

("It is undisputed that a parent's happiness can affect the

quality of parenting").

    ii.   The child's relationship with the mother.     Of the 185

findings of fact, only one squarely addresses the nature of the

child's relationship with the mother.     The judge found that the

mother and the child "have a very close bond and do many

activities together."     However, the nature of those activities

are not specified, nor are there any subsidiary findings to

support the conclusion regarding their "close" bond.     Likewise,

while the judge concluded that the child's "routine" with the

mother "would be greatly disturbed" if removal were allowed,

there are no specific findings regarding their routine which

would support such a conclusion.

    It is undisputed that, during the two years leading up to

the modification trial, the mother missed the majority of her

parenting time.   It was not until the commencement of trial that

the mother began exercising her parenting time on a regular

basis.   Moreover, the longest period that the mother has ever

cared for the child was three consecutive nights.     Although the

mother's exercise of her parenting time was historically
                                                                   14


inconsistent, the judge concluded that her relationship with the

child "would suffer the most" if the father were permitted to

remove the child to Florida.   Such a conclusion "must be

grounded in specific subsidiary fact-finding to support it[,]"

Katzman v. Healy, 77 Mass. App. Ct. 589, 597 (2010) (Katzman),

which did not occur here.   Compare Dickenson, supra at 446, 450

(the judge concluded that the noncustodial father enjoyed "a

very close" relationship with the child, as he had "been a

regular part of the child's everyday life in Massachusetts,

coaching the child's athletic teams, picking him up from school

or daycare," and taking the child on "numerous skiing, hiking,

and camping vacations"); Murray, supra at 152 ("The judge found

that the [noncustodial] father ha[d] a strong bond with the

children, [wa]s an active and involved parent, coache[ed] them

in their athletic activities, attend[ed] church regularly with

them, and ha[d] never missed parenting time with them").

    iii.   The child's emotional, physical, and developmental

needs.   Apart from noting that the child "has a nut allergy and

asthma" requiring "nebulizer treatments and an epipen at all

times," the judge did not find the child to have any unique

needs.   Though not addressed in the findings, it appears from

the record that the child is generally well-adjusted, and was

thriving in her daycare program at the time of the trial.
                                                                   15


    The judge noted that the child was slated to enter

kindergarten in the Fall of 2015.   While the judge credited the

father's testimony that "the school district in Boca Raton" is

"very good," she nevertheless concluded that the move would

disadvantage the child insofar as "Massachusetts offers better

schools and cultural opportunities in general."    However, the

judge did not make any subsidiary findings demonstrating that

Massachusetts has "better" schools.    Even if she had made such

findings, they would "not compel the conclusion" that Boca

Raton's school system is "not appropriate to the [child's]

needs."   Abbott v. Virusso, 68 Mass. App. Ct. 326, 333 n.12

(2007) (Abbott).

    iv.   Interests of both parents.    With respect to the

mother, the judge found that she has been receiving mental

health treatment for more than a decade, and has been

"suffer[ing] from anxiety and depression since at least the end

of the marriage."   The judge found that the mother's "mental

health issues have interfered with her ability and confidence

with respect to parenting [the child]."    The judge further found

that, "[w]hether or not he does so knowingly," the father's

"aggressive pursuit of 'fairness' often triggers [the mother's]

anxiety and undermines her confidence."    However, the judge

determined that the mother's "mental health status has been

improving" since she switched doctors and medications in May,
                                                                   16


2013, causing her to become "more comfortable" with the child.

The judge found that the mother has "worked hard to reestablish

a relationship" with the child, has had "a near perfect record

of parenting time since the beginning of trial[,]" and "hopes to

expand her parenting time in the future."

    In contrast, there were few findings regarding the father's

interests and his relationship with the child.   While the judge

concluded that the father would benefit financially and

emotionally from the move to Florida, the findings do not

address the hardship that the father would experience by

remaining in Massachusetts.   At trial, the father testified that

he had been "under tremendous pressure" since becoming the

child's primary caretaker, and as a result, "everything else

[wa]s suffering," including his "work, . . . personal life,

[and] . . . health."   While the judge found that the father had

recently started receiving treatment for depression and anxiety,

the findings do not reflect consideration of the stress

experienced by the father as a full-time working parent without

a support system in Massachusetts.   This "less than full

appreciation of" the obvious challenges facing the father as the

child's primary caretaker and the family's sole wage-earner

effectively minimized his interest in obtaining a support system

and greater financial security in Florida.   Cartledge, 67 Mass.

App. Ct. at 580 n.3.   Insofar as the father's interests were
                                                                  17


not adequately considered, the "direct and immediate impact[s of

those interests] on the welfare of the [child]," Pizzino, 67

Mass. App. Ct. at 875, were not given their due.

    v.   Reasonable alternative parenting plan.    The father

proposed two different alternative parenting plans, both of

which the judge rejected.   The father suggested either that the

current parenting plan remain intact, with the mother exercising

her regularly-scheduled parenting time in Florida, or that the

mother could exercise longer blocks of parenting time during the

child's school breaks.   The judge made no detailed findings

regarding the practical repercussions of implementing the

father's proposed alternative parenting plans.    Instead, the

judge concluded that neither plan was a "reasonable

accommodation" in light of the mother's mental health issues.

The judge determined that the mother would "be unlikely to

exercise her parenting time" under either plan, which would

"damage" both the mother and the child.   The judge found that a

schedule placing the child in the mother's care for more than

three consecutive nights during school breaks was not

"workable," and the mother could not handle "frequent plane

trips" to Florida, which would be "expensive and anxiety-

producing."   However, the judge made no specific findings, nor

does there appear to have been any evidence, demonstrating that

the mother's mental health status renders her unable to travel
                                                                   18


to Florida.7    Nor are there any findings regarding the impacts of

the mother's flexible schedule, the fact that her parents own a

vacation home in Boca Raton, and the possibility of offsetting

her travel expenses by increasing the father's support payments.

See Hale v. Hale, 12 Mass. App. Ct. 812, 820 (1981) (Hale) (the

judge "did not consider whether support payments could be"

adjusted "to cover visitation expenses"); Yannas, 395 Mass. at

712 (alternative visitation in Greece reasonable where the

father was retired and had "large blocks of free time" during

which to travel); Wakefield, 67 Mass. App. Ct. at 778 (father's

support payments reduced "in anticipation of [his] costs of

travel to and from St. Croix").

     C.   Balancing real advantage with the child's best

interests.     The judge found that the move was not in the child's

best interests, as the "[t]he inability to provide suitable,

workable alternative parenting time" for the mother "outweighs"

the father's real advantage in moving to Florida.     The father

argues that the judge gave "undue -- in effect, dispositive --


     7
       To the contrary, the judge found that the mother's mental
health has been improving since May, 2013, and she has "showed
great improvement" in her ability to adhere to a regular
parenting schedule. Moreover, while the judge found that the
mother "would be unlikely to feel that she could handle long
periods of time" with the child, the judge also found that the
mother is "in reality" more capable of caring for the child than
she feels and she "hopes to expand her parenting time in the
future."
                                                                    19


weight" to the disruption of the mother's parenting time.

Cartledge, supra at 581, citing Yannas, supra at 711; Hale,

supra at 815.   We agree.

     The judge concluded that while "[m]oving to Florida would

provide an advantage" to the father, "remaining in Massachusetts

would not be a crushing blow."     As we have noted, the findings

do not address the father's interest in moving to Florida and

the extent to which his increased happiness and improved

financial circumstances would also benefit the child.      However,

"[u]nder Yannas, the advantages and disadvantages of moving or

not moving to the parent who has sole physical custody are a

significant factor in the [best interests of the child]

equation."   Katzman, 77 Mass. App. Ct. at 595-596 (internal

citation omitted).   See also Abbott, 68 Mass. App. Ct. at 333

(judgment vacated where the findings contained "no mention of

the [custodial parent's] interests").      This is because the "best

interests of a child are so interwoven with the well-being of

the custodial parent."      Altomare, 77 Mass. App. Ct. at 603-604,

quoting from Yannas, supra at 710 (additional citation omitted).

    Instead, the judge emphasized the mother's recent efforts

to "reestablish" a relationship with the child.      At the start of

the modification trial, the child was three years old and the

mother had missed the majority of her parenting time for nearly

two years.   This is not insignificant.    While the mother's "near
                                                                  20


perfect" adherence to the parenting schedule during the five

months in which the trial was pending is commendable, it does

not erase the substantial time that she already missed.   By

minimizing the consequences of the mother's missed parenting

time, the father's overwhelming contributions to the child's

upbringing during that period (reflected in the totality of the

findings) were also effectively minimized.   Indeed, if the

noncustodial parent "has not exercised [her] rights of

visitation," the resolution of the removal question "is less

difficult than in the case of a diligent noncustodial parent."

Yannas, supra at 711.

    We recognize the inherent difficulty in deciding a removal

case where there is no question that both parties are loving

parents.   We also appreciate, as we noted at the outset, the

judge's efforts to sort out the complex concerns.   We

nevertheless conclude that the judge abused her discretion by

placing disproportionate emphasis on the effect of the move on

the mother's relationship with the child, while failing to

adequately weigh the interests of the father and the child.

"[D]isruption in visitation with the noncustodial parent cannot

be controlling or no removal petition would ever be allowed."

Cartledge, 67 Mass. App. Ct. at 581.   Accordingly, we vacate the

portion of the modification judgment denying the father's

removal request.
                                                                  21


     The decision of whether to reverse, rather than to remand

for further findings, presents a close question, as we conclude

with the benefit of distance not available to the trial judge

that this record arguably establishes that the father's removal

request should have been allowed.8   See Rosenthal v. Maney, 51

Mass. App. Ct. 257, 272 (2001).   However, out of an abundance of

caution, we remand the matter for a redetermination of the best

interests of the child.   On remand, the judge should make

detailed findings regarding the father's interests, including

the extent to which the father's unhappiness in Massachusetts

affects the child's well-being, and the impact of economic and

emotional benefits resulting from the move on the child's

quality of life.   In addition, the judge should make detailed

findings regarding the child's needs, and her relationship and

routine with both parents.   Furthermore, the judge should assess

the reasonableness of the father's alternative parenting plans

     8
       Indeed, at one point during the modification trial, the
judge indicated to counsel that the evidence appeared to support
allowing removal. The judge specifically stated that, "in this
case, what I have is a mother who . . . cannot for reasons
beyond her control spend time with her child. Her support
system is in Canada . . . . [The father] could make his life
and his child's life easier going to Florida, [and] he could
probably be more productive in Florida . . . . When he started
his office here 15 years ago, he didn't know he would have a
three-year-old daughter which shifts everything as far as trying
to run a law practice and trying to produce money . . . . [A]t
this point, I'm starting to see evidence that would support a
removal. . . . I'm not prejudging, but I'm just saying that
right now it's just kind of weighing to one side."
                                                                  22


(including any new, or more detailed, proposals that he seeks to

submit), and any parenting plans proposed by the mother if

removal is allowed and if removal is denied.    Given the passage

of time, the judge may consider supplemental evidence, including

relevant evidence of events which have transpired since the end

of the modification trial.

     2.   Alimony.   At the time of the divorce, the father agreed

to pay the mother "base unallocated family support" (combined

child support and alimony) of $807.69 per week ($42,000 per

year).    The "base" support amount represented thirty-five

percent of the father's $120,000 annual "base" income at that

time.    The father also agreed to pay the mother "additional

support" equivalent to thirty-five percent of any income that he

earned between $120,000 and $250,000, and twenty-eight percent

of any income that he earned between $250,000 and $350,000.9     Any

"additional support" was to be paid by the father in one annual

"true up" payment no later than April 15.

     In the modification judgment, the judge reduced the

father's "base support" obligation to $433 per week.    In her

findings, the judge characterized the reduced support award as

"pure alimony[,]" concluding that unallocated support was "no

longer appropriate" as the father was now the child's primary

     9
       The father was not obligated to pay such "additional
support" on income earned in excess of $350,000.
                                                                   23


custodial parent.   In arriving at the $433 base support figure,

the judge found the father's gross alimony obligation to be $528

per week, representing 32.5 percent of his "base" income of

$1,625 per week ($84,500 per year).   The judge then deducted the

mother's new child support obligation of $95 per week from the

father's gross alimony obligation, resulting in a net alimony

payment of $433 per week.   The judge also ordered the father to

"continue his annual 'true up'" by paying the mother "additional

support" equivalent to twenty-seven percent of his income

between $120,000 and $250,000, and twenty percent of his income

between $250,000 and $350,000.

     The mother challenges the modification judgment insofar as

it does not award any alimony on the father's earned income

between $84,500 and $120,000.    The mother asserts that because

there is nothing in the judge's "findings or rationale

justifying this gap[,]" the judge should have lowered the "true

up" threshold to $84,500 to remain consistent with the

separation agreement.10




     10
       The mother also attacks the alimony award by reasserting
her argument that the judge erred in her calculation of the
father's income at the time of the modification trial. See n.4,
supra. As we previously discussed in connection with the removal
issue, we discern no error in the judge's determination of the
father's income. We thus reject this argument as it relates to
alimony, as well.
                                                                    24


     "When parties to a divorce negotiate an agreement for

alimony that is incorporated and merged into" a judgment of

divorce, "the judgment . . . is subject to modification based on

a material change in circumstances."    Chin v. Merriot, 470 Mass.

527, 534-535 (2015) (Chin).11   However, "[e]ven where provisions

regarding alimony in a separation agreement are merged and do

not survive the divorce judgment, 'it is nevertheless

appropriate for a judge to take heed of the parties' own

attempts to negotiate terms mutually acceptable to them' when

determining whether to modify . . . alimony."    Id. at 535

(2015), quoting from Pierce v. Pierce, 455 Mass. 286, 302,

(2009) (Pierce), quoting from Bercume v. Bercume, 428 Mass. 635,

644 (1999) (Bercume).    Accordingly, we "'review the findings to

determine whether the judge gave appropriate consideration to

the parties' intentions as expressed in their written agreement,

. . . and to any changes in their circumstances since the last

modification judgment[,]'" Cooper v. Cooper, 62 Mass. App. Ct.

130, 134 (2004), quoting from Huddleston v. Huddleston, 51 Mass.

App. Ct. 563, 568 (2001), while also "keep[ing] in mind that

'the statutory authority of a court to award alimony continues


     11
       As the   divorce judgment that established the original
support order   entered prior to the effective date of the Alimony
Reform Act of   2011, G. L. c. 208, §§ 48-55, we apply "the
standards for   modification existing at the time the judgment
entered . . .   ." Chin, supra at 535.
                                                                    25


to be grounded in the recipient spouse's need for support and

the supporting spouse's ability to pay.'"    Pierce, supra at 295-

296, quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624

(1986).

    In the present case, it appears that the judge attempted to

take "into account the earlier, expressed desires of the

parties[,]" Katzman, 77 Mass. App. Ct. at 598, quoting from

Bercume, supra, by maintaining the "base support" and "true up"

paradigm established in the separation agreement.    Moreover, it

is apparent from the judge's findings that she deemed the change

in custody and the resulting decrease in the father's "base"

annual income, from $120,000 to $84,500, to constitute a

material change in circumstances warranting a reduction in the

father's support payments.    However, while the judge used the

father's reduced income of $84,500 to calculate his "base"

support obligation, she did not lower the "true up" threshold to

reflect his reduced income.

    As the mother correctly asserts, this results in no alimony

being paid on the father's income between $84,500 and $120,000.

There is no explanation in the judge's findings or rationale

regarding the basis for this $35,500 gap.    The father now

contends (for the first time on appeal) that the judge was

unable to apply the "true up" formula to the gap without

creating a "self-modifying" order in violation of Hassey v.
                                                                  26


Hassey, 85 Mass. App. Ct. 518, 528 (2014) (Hassey).    However,

this line of reasoning "does not appear either explicitly or by

clear implication" in the judge's findings or rationale.    Putnam

v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).    We are therefore

left to speculate as to the judge's rationale for failing to

award alimony on the father's income between $84,500 and

$120,000.12

     We are similarly unable to discern whether the judge

considered the father's ability to pay and the mother's need for

alimony when modifying the support award.    "If a supporting

spouse has the ability to pay, the recipient spouse's need for

support is generally the amount needed to allow that spouse to


     12
       While we need not reach the question of whether Hassey
would preclude the judge from applying the "true up" formula to
father's income between $84,500 and $120,000, we note that
Hassey appears to be distinguishable from the case at bar. In
Hassey, an appeal from a divorce judgment, the judge fashioned
an alimony award containing a "self-modifying feature" that
required the husband to pay thirty percent of his income over
$250,000. This court vacated the self-modifying award as it was
"not based on a judicial determination, supported by subsidiary
findings of fact, of an increase in the wife's need accompanied
by the husband's ability to provide for the same." Hassey,
supra at 528, citing Pierce, supra at 293. Here, the judge was
faced with the task of modifying a self-executing alimony
formula contained in the parties' separation agreement. A judge
is expected to take into account the terms negotiated by the
parties at the time of the divorce when modifying the divorce
judgment. See Katzman, supra at 598. Accordingly, on the
record before us, we see nothing in Hassey that would prevent a
judge from fashioning a modified alimony award that incorporates
a "self-modifying feature" previously agreed-upon by the
parties.
                                                                   27


maintain the lifestyle he or she enjoyed prior to termination of

the marriage."   Pierce, supra at 296.   Here, while the judge

indicated in her rationale that she had "adjusted" support "to

fit the reality of the custody schedule and financial situations

of the parties[,]" her findings regarding the parties'

respective financial positions are extremely limited.    The judge

found the mother's sole source of income to be the support that

she receives from the father.   Both parties submitted detailed

financial statements at trial indicating weekly expenses that

substantially exceeded their respective incomes.    However, the

judge made virtually no findings as to whether those reported

expenses were reasonable or even credible.13   Likewise, there was

no mention in the judge's findings as to the parties' lifestyle

during the marriage.   On this record, it is impossible to

determine whether the judge considered all of the relevant

factors necessary to properly assess the mother's need for

alimony and the father's ability to pay.   See Greenberg v.

Greenberg, 68 Mass. App. Ct. 344, 347 (2007), quoting from


     13
       Nearly all of the judge's findings regarding the parties'
financial circumstances pertained to the father. The judge
found that, at the time of the modification trial, the father
paid $1,030 per week toward the mortgage on his home in
Auburndale, Massachusetts. The judge found that the mother
lived in a rented home in Auburndale and that her parents had
paid her rent through July, 2014. The judge further found that
the father spent approximately $350 per week on babysitters and
$338 per week on health insurance coverage for himself, the
mother, and the child.
                                                                  28


Schuler v. Schuler, 382 Mass. 366, 375-376 (1981) (these factors

include "'the financial status of the support provider, and the

station in life of the respective parties,' as well as whether,

on all of the economic circumstances, the obligor spouse has

'the present ability to pay the amounts required by the

agreement and judgment'").     See also Adlakha v. Adlakha, 65

Mass. App. Ct. 860, 869 (2006) ("Without the benefit of the

judge's fact finding regarding the [mother's] reasonable needs,

we must speculate to discern the basis" for the alimony award).

Accordingly, "the gaps in the judge's fact finding and analysis

require a remand to resolve the questions concerning alimony

. . . ."   Id. at 871.

    III.   Conclusion.   The portions of the July 22, 2014,

modification judgment denying the father's removal request and

reducing the father's support obligation are vacated, and the

matter is remanded to the Probate and Family Court for further

proceedings consistent with this opinion.    In view of the length

of time that has transpired since the trial, the judge may

choose to consider taking additional evidence as to the parties'

current circumstances.   The judge should resolve the remanded

issues as expeditiously as possible to avoid further delay in

the conclusion of this case.
                                                                  29


    In all other respects, the judgment is affirmed. Pending

final disposition, the judge may make such temporary orders for

the payment of alimony as she may deem appropriate.

                                   So ordered.
