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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.