JEFFREY W. FLOR
THERESA M. FLOR.
Heard: December 8, 2016.
for divorce filed in the Berkshire Division of the Probate
and Family Court Department on August 24, 2007.
complaint for modification, filed October 7, 2015, was heard
by Richard A. Simons, J., and a motion for reconsideration
was considered by him.
M. LaRochelle for the husband.
Present: Green, Agnes, & Desmond, JJ.
parties, Theresa M. Flor (wife) and Jeffrey W. Flor
(husband), entered into a separation agreement (agreement)
that, as pertinent here, merged into the judgment of divorce
nisi prior to March 1, 2012, the effective date of the
Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform
act or act). The divorce judgment includes an order requiring
the husband to pay child support until, at the latest, the
child's twenty-third birthday,  an express waiver of the
wife's right to seek past or present alimony, and an
express reservation of the wife's right to seek an award
of alimony in the future. Upon the wife's complaint for
modification, brought in anticipation of the child's
twenty-third birthday, a judge of the Probate and Family
Court ordered the husband to pay the wife general term
husband appeals, raising two issues. First, the husband
argues that there was no basis for the judge's
determination that the child's emancipation was a
material change in circumstances that authorized the judge to
determine whether it was appropriate to modify the judgment
to provide for alimony. Second, the husband argues that the
judge erred in not applying G. L. c. 208, § 49 (f), the
provision of the alimony reform act that creates a
presumption that general term alimony terminates when the
payor reaches full retirement age, because the initial order
for alimony was entered in 2016, well after the effective
date of the act. For the reasons that follow, we affirm.
following facts are drawn from the judge's findings,
supplemented by uncontested facts from the record. The
husband and the wife were married in 1984. They have one
child of the marriage, who was born on January 2, 1993.
During the marriage, the husband was the primary wage earner
and the wife was responsible for the household and child
care. "From 1984 to 1998, she cared for children in her
home. In 2000, she worked for Goodwill Industries as a sales
associate for a period of six months. By the time the parties
divorced in 2008, she had not worked outside the home in
eight years." Otherwise, she did not work outside the
home between 2000 and 2008 due to emotional problems.
marriage irretrievably broke down in 2008. The judge entered
a judgment of divorce nisi on November 6, 2008, which
incorporated portions of the parties' agreement pertinent
to this appeal. The judge found that the parties had made an
equal division of the marital estate. As part of the
agreement, the wife waived any claims for past and present
alimony, but expressly reserved "her rights to future
alimony and/or support." The agreement further required
the husband to pay child support to the wife of $442 per week
until the child's emancipation. The agreement provided
that emancipation could occur at various points in the
child's life, but in no event would emancipation occur
later than her twenty-third birthday.
2015, as the child's twenty-third birthday approached,
the wife filed a complaint for alimony, as well as a
complaint for modification. The husband moved for summary
judgment, which was allowed as to the complaint for alimony,
but with respect to the complaint for modification, the judge
found that a genuine issue of material fact existed whether
there had been a material change in circumstances, and so
denied the husband's motion as to that complaint.
case proceeded to trial. At the time of trial, the wife was
fifty-six years old and the husband was fifty-nine years old.
The judge found that after the divorce, the wife made a
conscious decision to stay out of the work force. She did not
want to work outside the home; she felt she needed to heal
after a difficult marriage, and she wanted to focus on
raising the parties' child. By 2012, the wife's
anxiety had all but disappeared, although the only employment
she took on between 2012 and 2016 was a four-month job at a
department store during the holidays. The judge also found
that the wife made only very minimal efforts to secure a job,
that she was ambivalent about finding employment, and that
the only thing preventing her from working in some capacity
was her motivation and drive. Therefore, the judge attributed
income to the wife based on a full-time minimum wage job, but
found that she still would be unable to meet her current
needs without additional support from the husband, whom the
judge found able to pay alimony.
judge concluded that the prospect of the child's
emancipation and the concomitant termination of child support
payments constituted a material change in circumstances that
authorized him to consider whether an order for general term
alimony was appropriate. Based primarily on his findings that
the husband's expenses had decreased, the wife's
expenses had increased, and the husband's total financial
circumstances were far superior to the wife's, the judge
concluded that an alimony award was appropriate. As a result,
the judge entered ...