This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff husband appeals from judgments of the Probate and Family Court entered on March 25, 2013, that granted in part and denied in part the husband's complaint to modify alimony, and found the husband in contempt for failure to pay alimony. For the reasons that follow, we affirm both judgments.
The parties were married in 1988 and entered into a separation agreement ending their marriage on March 9, 2007. The judgment of divorce, dated March 9, 2007, incorporated and merged the provisions of the separation agreement relating to the couple's children, alimony, and insurance. In the separation agreement, the parties agreed that the husband must pay alimony in the amount of $945 per week, and that " there shall be no order for child support at this time as . . . the [husband's] alimony obligation is taking support into consideration." The parties testified at trial that the alimony obligation in the separation agreement of $945 per week was based on the husband's then gross yearly income of between $140,000 and $145,000.
The husband filed his first complaint for modification on September 10, 2007. The Probate Court judge dismissed the complaint on November 16, 2010, finding that the husband failed to prove a significant change in circumstances that would warrant a modification of the divorce judgment. The 2010 dismissal also found that the husband owed a support arrearage of $16,415, and awarded the wife $7,500 in attorney's fees. On July 12, 2011, the probate judge found the husband in contempt for failing to pay his support obligation and for failing to pay the attorney's fees awarded in the 2010 judgment of dismissal.
The modification judgment, dated March 25, 2013, ordered the husband to pay child support in the amount of $424 per week until the emancipation of the parties' youngest daughter; upon her graduation from college. The judge reached that number by considering the financial circumstances of the parties and applying the parties' gross weekly income to the child support guidelines (guidelines). In modifying the weekly amount the husband owed to the wife from $945 to $424, the only matter that the judge considered as a " material change in circumstance" was the graduation from college of the parties' eldest daughter. The probate judge concluded that the Alimony Reform Act of 2011, St. 2011, c. 124, § 4 (act) " applies prospectively to alimony judgments entered before March 1, 2012," and therefore declined to consider the wife's cohabitation with another individual as a material change in circumstances. The judge also held that upon the graduation from college of the parties' youngest daughter, the child support obligation shall be converted to an alimony obligation in the same amount, $424 per week.
The judgment of contempt, dated March 25, 2013, applied the retroactive relief awarded in the modification proceedings and the probate judge concluded that the total amount the husband owed the wife as of December 19, 2012 was $98,061. The judge also ordered the husband to pay the wife attorney's fees in the amount of $4,310.80, to be paid on or before May 1, 2013.
1. Modification judgment.
a. Effect of cohabitation.
The husband argues that the probate judge misread the language of § 4 of the act in finding that the cohabitation provision of the act " shall apply prospectively," and that the court should have considered the wife's cohabitation as a material change in circumstance warranting additional modification of the husband's alimony obligation. We disagree.
" We review questions of statutory interpretation de novo." Chin v.Merriot, 470 Mass. 527, 531, 23 N.E.3d 929 (2015). In Chin, the Supreme Judicial Court held that, but for a single exception, the act applies prospectively. The court concluded that a party's cohabitation was not a relevant factor. Id. at 529, 536. Here, where the relevant provisions of the separation agreement were incorporated and merged into the divorce judgment, which predated the act by almost four years, the probate judge did not have to consider as a factor in determining the parties' change in ...