AMANDA L. SMITH
Heard: February 6, 2018.
for divorce filed in the Essex Division of the Probate and
Family Court Department on May 1, 2009.
complaint for contempt, filed on March 10, 2016, was heard by
Theresa A. Bisenius, J.
Stern Taylor for the wife.
Garrity for the husband.
Present: Wolohojian, Agnes, & Englander, JJ.
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.
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.
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.
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 ...