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Flor v. Flor

Appeals Court of Massachusetts, Berkshire

October 4, 2017


          Heard: December 8, 2016.

         Complaint for divorce filed in the Berkshire Division of the Probate and Family Court Department on August 24, 2007.

         A complaint for modification, filed October 7, 2015, was heard by Richard A. Simons, J., and a motion for reconsideration was considered by him.

          Dennis M. LaRochelle for the husband.

          Present: Green, Agnes, & Desmond, JJ.

          AGNES, J.

         The 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, [1] 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 alimony.

         The 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.


         The 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.

         The 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.

         In 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.

         The 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.

         The 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 ...

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