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15-P-100                                             Appeals Court

           MARGOT E. FROST-STUART   vs.   CHARLES F. STUART.


                             No. 15-P-100.

      Middlesex.         April 15, 2016. - September 27, 2016.

              Present:    Cypher, Agnes, & Massing, JJ.


Divorce and Separation, Alimony, Child support, Modification of
     judgment. Parent and Child, Child support. Contempt.
     Practice, Civil, Contempt.



     Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on March 4, 2010.

     A complaint for modification and complaints for contempt
were heard by George F. Phelan, J., and a motion for
reconsideration was considered by him.


     Kelly L. Petrakis (Karen W. Stuntz with her) for the
mother.
     Alexander D. Jones for the father.


    CYPHER, J.     Margot E. Frost-Stuart (mother) appeals from a

modification judgment, as amended, of the Probate and Family

Court terminating alimony and increasing child support paid by

her former husband, Charles F. Stuart (father), and also
                                                                   2


disposing of several complaints for contempt.1   We affirm in part

and vacate in part.

     Background.   After fifteen years of marriage, the parties

divorced in July, 2010, pursuant to a judgment of divorce nisi.

The separation agreement (agreement), which was incorporated

into the judgment, required the father to pay to the mother a

minimum amount of $63,000 each year as alimony2 and $4,750 each

month as child support.3   The agreement further provided that the

father's "support obligation may be reviewed and adjusted upon a

change in circumstances, including but not limited to . . . his

loss or change of employment, [or] the [mother's] cohabitation

with a dating partner."

     The parties share legal custody of their three children,

aged ten, seven, and four years at the time of the modification

judgment.   The father remarried and has two children with his

new wife.   The mother has cohabited with her boy friend since


     1
       The mother also appeals from the order denying her motion
for reconsideration.
     2
       Under the terms of the agreement, the father's alimony
obligation was on a sliding scale correlating to the amount of
his annual bonus income, with a minimum payment of $63,000 each
year regardless of his receipt of bonus income. By agreement of
the parties, most of the alimony provisions merged into the
divorce judgment.
     3
       At the time of the parties' divorce, the father was
earning $519,201 per year; at the time that the modification
judgment entered in 2014, the father's annual income had
increased to $633,984.
                                                                     3


September, 2010.     The father has been employed as a portfolio

manager at two successive investment management companies, and

the mother has been out of the workforce for many years.

     In March, 2013, the father filed a complaint for

modification,4 primarily seeking termination of alimony on the

basis that the mother had been cohabitating with a dating

partner for more than three months, and that the father had a

new job with fee-based income and no longer received an annual

bonus.   The mother counterclaimed, requesting that the father's

child support payments be increased if alimony payments are

reduced or terminated.    Between May 24, 2013, and February 14,

2014, the parties filed seven complaints for contempt -- six

filed by the mother against the father and one filed by the

father against the mother.     In a decision dated April 29, 2014,

after trial on the consolidated complaints and counterclaims, a

judge of the Probate and Family Court terminated the father's

alimony obligation and increased his child support payments from

$4,750 to $5,529 per month.     Thereafter, the judge ruled on a

motion for relief from judgment based on clerical errors, filed

by the mother.     In a margin notation, the judge effectively

amended the modification judgment to reflect that the father did

not make alimony payments of $49,975 in 2013 and that the father

     4
       There is no dispute on appeal regarding the judge's
disposition of the mother's earlier complaint for modification
regarding the parenting coordinator.
                                                                     4


owes the mother an additional $33,000 in the form of retirement

assets.5   The judge did not write further findings of fact or

conclusions of law, nor did he order the entry of a corrected or

amended judgment.   This appeal followed.

     Termination of alimony.   In terminating alimony, the judge

expressly relied on the Alimony Reform Act, G. L. c. 208, §§ 48-

55 (act), citing the mother's cohabitation.6   In January, 2015,

the Supreme Judicial Court held that the act's cohabitation

provision applies only prospectively to support obligations

established after the act's effective date of March 1, 2012.

Chin v. Merriot, 470 Mass. 527, 529 (2015).    Without the benefit

of Chin, the judge applied an improper standard.

     Because the divorce judgment that established the alimony

obligation entered prior to the effective date of the act, we

apply "the standards for modification existing at the time the

     5
       It appears that neither the mother's motion nor the
judge's action on it was entered on the trial court docket. The
judge's action on the motion constitutes an amendment to the
judgment, which also never was entered on the docket. Although
procedural requirements were not observed, the parties do not
challenge either the procedure or the substance of the
amendment.
     6
       The judge held that "[a]s for alimony, Alimony Reform Law
mandates the termination of alimony upon the cohabitation of the
alimony recipient." The act's cohabitation provision states
that "[g]eneral term alimony shall be suspended, reduced or
terminated upon the cohabitation of the recipient spouse when
the payor shows that the recipient spouse has maintained a
common household . . . with another person for a continuous
period of at least [three] months." G. L. c. 208, § 49(d),
inserted by St. 2011, c. 124, § 3.
                                                                     5


judgment entered."   Id. at 535.   Where, as here, "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."   Id. at 534-535 (citation omitted).    Under that

familiar standard, if, "as a result of cohabitation, the

recipient spouse's economic circumstances have materially

changed, then the court may alter or eliminate alimony."

Gottsegen v. Gottsegen, 397 Mass. 617, 625 (1986).     "However, a

judge may not modify a judgment solely on the basis of a finding

of cohabitation."    Ibid.

    Even if the judge had applied the standard of a material

change of circumstances, we have not been directed to anything

in the record that would support his decision to terminate

alimony.   The first inquiry is whether the mother's cohabitation

gave rise to a material change in circumstances.     This must be

determined, in pertinent part, on the basis of a change in her

need of financial support.   Although the mother's cohabitation

may serve to reduce her household expenses or slightly increase

her income, further fact finding is necessary to determine

whether this is likely to eliminate her need for alimony
                                                                     6


altogether.7    Moreover, the father's change of employment has

resulted in a higher annual income and a greater ability to pay

alimony.8    The parties anticipated such a change by including in

the agreement an annual review and a potential adjustment if the

father's income changed.    Traditional concepts of alimony remain

unchanged.     That is, "[i]f 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 maintain the lifestyle he

or she enjoyed prior to termination of the marriage."       Pierce v.

Pierce, 455 Mass. 286, 296 (2009).

     We therefore hold that the judge erred in terminating

alimony.    On remand, the judge must determine whether a

modification of the father's alimony obligation is warranted by

considering such factors as the father's increased income

resulting from a change in employment; the parties' expenses;

the parties' marital lifestyle as compared to their current

lifestyles; and the agreed-upon alimony obligation, as set forth

in the agreement.



     7
       The judge attributed an annual household contribution of
$27,000 from the mother's cohabiting boy friend, and an annual
income of $16,628 (minimum wage) to the mother.
     8
       As we stated in note   3, supra, the father was earning
$519,201 at the time of the   divorce, and $633,984 at the time of
the modification judgment.    In the same period, the father's
reported expenses decreased   from $6,867 per week to $5,684 per
week.
                                                                      7


    Modification of child support.      Having concluded that

termination of alimony was error, there also must be a

recalculation of child support because the judge increased the

child support order based, in part, on the termination of the

father's alimony obligation.

    We address an issue that might arise again on remand.        In

calculating the modified child support order, the judge

attributed an annual earning capacity of $16,628 (minimum wage)

to the mother, who is unemployed.    He also attributed to the

mother an annual contribution of $27,000, representing the

entirety of the cohabitating boy friend's annual Social Security

disability income benefits.    The mother argues that the judge

erred in attributing income to her and to her boy friend for the

purpose of calculating child support.

    "Public policy dictates that children be supported by the

financial resources of their parents insofar as is possible."

M.C. v. T.K., 463 Mass. 226, 231 (2012).     In determining child

support, the definition of income is flexible and the discretion

afforded judges is broad.     Murray v. Super, 87 Mass. App. Ct.

146, 155 (2015).   "Nevertheless, that discretion is not without

bounds."   Ibid.

    The Massachusetts Child Support Guidelines permit

attribution of income to either party upon a finding that a

party is earning less than he or she could through reasonable
                                                                      8


effort.     See Massachusetts Child Support Guidelines § I-E

(2013).     Here, the judge found that the mother's efforts to

organize her art supplies and to find employment online did not

constitute a diligent search for employment in graphic design,

and accordingly attributed a minimum wage income to her.

    By contrast, in attributing income in the form of

contributions from the cohabiting boy friend, the judge did not

make the findings necessary for a determination that those

contributions constitute the mother's income for purposes of

child support.     "Additional findings that would aid our analysis

include, but are not limited to, . . . the lack of an obligation

of the mother's [boy friend] to support the children, the manner

in which the mother's and the children's lifestyles are altered

by these funds, the discretion that the mother's [boy friend]

maintains in payment of these funds, and the manner in which the

mother would support her household absent these funds."     Murray,

supra.

    Accordingly, the portion of the judgment increasing child

support likewise must be vacated.

    Disposition of contempt complaints.      We briefly address the

judge's disposition of two complaints for contempt alleging

first, the father's failure to pay $63,000 in alimony, and

second, the failure to pay $33,000 from the father's retirement

accounts.     In light of the modification judgment, as amended, in
                                                                    9


which the judge found that the father made no alimony payment in

2013, and that the father owes the mother an additional $33,000

in retirement assets, and in light of our conclusion that the

father's alimony obligation was terminated in error, on remand

the judge also must reconsider these two complaints and

determine whether the father's financial obligations constitute

a clear and unequivocal command, and whether the record contains

clear and convincing evidence of the father's failure to pay.

See Birchall, petitioner, 454 Mass. 837, 851 (2009).

    Conclusion.   For the reasons stated, so much of the

modification judgment, as amended, as terminates alimony,

modifies the child support obligation, and disposes of the

contempt complaints regarding the failure to pay alimony and the

failure to pay retirement assets, is vacated and the matter is

remanded for further proceedings consistent with this opinion.

In all other respects, the modification judgment, as amended, is

affirmed.   Pending final disposition, the child support and the

alimony obligations set forth in the parties' judgment of

divorce shall remain in effect without prejudice.    The parties'

requests for appellate attorney's fees are denied.

                                   So ordered.
