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Flor v. Flor, 92 Mass.App.Ct. 360 (2017)

In Flor, the Massachusetts Appeals Court upheld the trial court’s findings that a material change in circumstances existed to warrant an award of general term alimony. The Appeals Court also found that the trial court did not err in declining to apply M.G.L. c. 208, §49(f) of the Alimony Reform Act, which creates a presumption that any order for support be terminated upon the payor’s reaching retirement age.

The parties were married in 1984 and had one child born of the marriage. At the time of the marriage, the husband was the primary wage earner and the wife acted as the family homemaker, responsible for household and child care between 1984 and 1998. In 2000, the wife worked as a sales associate for approximately six months. Between 2000 and 2008, however, the wife did not work outside of the home due to emotional problems. After the marriage irretrievably broke down in 2008, the parties entered into a separation agreement that merged into the judgment of divorce nisi prior to March 1, 2012, the date that the Alimony Reform Act of 2011 went into effect. The divorce judgment required the husband to pay child support until, at the latest, emancipation upon the child’s 23rd birthday. While the Wife expressly waived the right to seek past or present alimony, the divorce judgment included an express reservation of the wife’s right to seek future alimony.

In anticipation of the child’s 23rd birthday, the wife filed a complaint for modification seeking alimony. At the time of trial, the husband was fifty-nine years old and the wife was 56 years old. The trial judge found that the husband’s expenses had decreased since the date of divorce, and that his overall financial circumstances were far superior to the wife’s. The judge found that the wife’s expenses had increased, that she had only worked for four months between 2012 and 2016, that she made minimal efforts to secure employment, and that it was only due to a lack of motivation and drive that prevented her from obtaining employment. Although the judge attributed income to the wife based on a full-time minimum wage job, he found that that she would not be able to meet her needs and expenses without additional support from the husband, who was found to have the ability to pay. The trial judge entered a modification judgment for the wife, ordering the husband to pay $145 per week in general term alimony, the duration of which would be indefinite.

The Appeals Court noted that, consistent with Pagar v. Pagar, 9 Mass.App.Ct. 1 (1990), the “impact of the wife’s failure to work on the relative financial positions of the parties is too speculative to require that the judge attribute such lost income to the wife.” The Appeals Court found that the trial judge properly considered the parties’ income, expenses, and assets as well as the wife’s education, training, and work history. The Appeals Court also found that the trial judge took the wife’s failure to obtain employment into account by attributing full-time, minimum wage income to her. The Appeals Court found that the parties’ disparate financial circumstances constituted a material change in circumstances, and that emancipation of the parties’ child did not preclude modification as the wife’s reservation to revisit alimony constituted an acknowledgement by the parties at the time of divorce that the financial circumstances of the wife could change upon the child’s emancipation.

The Appeals Court further held that §49(f) of the Alimony Reform Act, which creates a presumption that orders for support be terminated upon the payor reaching retirement age, did not apply because the parties’ divorce judgment entered prior to the act becoming effective. The Appeals Court distinguished the case from Snow v. Snow, 476 Mass. 425 (2017), which held that, in cases where alimony was not contemplated in the judgment of divorce, but awarded afterwards, alimony is treated as an initial award of alimony and does not relate back in time to the date of divorce. The Appeals Court found that the wife’s complaint was not an initial complaint for alimony, but rather a complaint for modification of a divorce judgment that expressly addressed the issue of alimony. The Appeals Court found that the judge’s award of alimony for an indefinite term was an exercise of sound judicial discretion and affirmed the amended judgment.

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