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Frost-Stuart v. Stuart

Appeals Court of Massachusetts, Middlesex

September 27, 2016

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

          Heard: April 15, 2016.

         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.

          Present: Cypher, Agnes, & Massing, JJ.

          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 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 alimony[2] 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 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 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. Chinv. ...


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