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Smith v. Smith

Appeals Court of Massachusetts, Essex

June 7, 2018

AMANDA L. SMITH
v.
ROBERT SMITH.

          Heard: February 6, 2018.

         Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on May 1, 2009.

         A complaint for contempt, filed on March 10, 2016, was heard by Theresa A. Bisenius, J.

          Lisa Stern Taylor for the wife.

          Cheryl Garrity for the husband.

          Present: Wolohojian, Agnes, & Englander, JJ.

          ENGLANDER, J.

         In this case we consider the legal effect of a series of postdivorce agreements between former spouses which reduced court-ordered alimony, where those agreements were reached without court approval. After a trial on a complaint for contempt, a Probate and Family Court judge found that the former husband had "detrimentally relied" on the postdivorce agreements, and the judge gave effect to those agreements by "modifying" the alimony obligation retroactively (but not prospectively) such that the husband was relieved from paying alimony that had gone unpaid. The judge also found the husband "not guilty" of civil contempt as to the nonpayment of alimony. We affirm the judgment of no contempt. However, because the judge's order does not apply the correct legal standard and thus does not provide sufficient findings to support the retroactive modification of alimony, we reverse and remand as to that issue.

         Background.[1]

         The husband and the wife were married in 1983 and divorced in 2010. The parties entered into a divorce agreement on April 14, 2010, which set alimony at $650 per week. The agreement specifically provided that "matters concerning alimony" would merge into the divorce judgment, and would be "modifiable by the [c]ourt in the event of a material change in circumstances." The judgment of divorce entered April 26, 2010, and incorporated the divorce agreement with respect to alimony. Between August, 2011, and August, 2015, the husband paid alimony at a rate that was less than the rate set in the divorce agreement. The husband reduced the amount paid nine separate times, beginning at $2, 000 per month in August of 2011, and reducing to, at the end, $800 per month by September of 2014.

         The judge found that the husband and the wife agreed to these reduced rates. No complaint for modification was filed with the court in connection with any of the reductions. In August, 2015, after receiving a letter from the wife's lawyer, the husband resumed paying alimony equal to $650 per week, and thereafter continued to make those payments. In total, over a roughly four-year period from 2011 to 2015, the husband paid $87, 400 less alimony than the amounts called for by the divorce agreement.

         On March 10, 2016, the wife filed a complaint for contempt, the resolution of which leads to this appeal. As part of that complaint the wife sought the $87, 400 arrearage. The husband answered that the wife had agreed to the alimony reductions, and that as a result he had made payments to cover costs for their emancipated children that he otherwise would not have made. He argued that these facts gave rise to defenses of estoppel and laches. After trial, the judge found the husband "not guilty" of civil contempt; she also entered an order "retroactively modif[ying]" the husband's alimony obligation so that it matched the amounts he actually paid between 2011 and 2015. The judge found:

"that the parties made agreements with one another at numerous dates between June, 2011[, ] and December, 2015[, ] for defendant to pay and plaintiff to receive reduced amounts of alimony. Plaintiff testified that she agreed to those changes and further testified that the parties discussed each change either on the telephone or through [electronic mail]. In reliance upon the reductions in alimony, defendant assumed additional financial responsibilities with reference to the parties' children, albeit emancipated children. Defendant paid graduate school tuition for the parties' daughter; he paid monies toward the daughter's ...

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