Alimony and Recent Judgments in the Probate Court limiting post-retirement enforceability of awards only to judgments finalized after the 2011 law when into effect.

For those getting close to retirement, expecting a modification or discontinuance of their duty to continue with alimony payments to a former spouse pursuant to the new alimony reform act, beware:  As with the decisions coming down by the Supreme Judicial Court in Massachusetts, such as Chin V. Merriot, Rodman V. Rodman and Doktor v. Doktor, which limit post-retirement awards of enforceability to judgments finalized after the enactment of the 2011 law, we now have Cole. V. Cole, which held in a similar vein that the provisions of the alimony reform act do not apply retroactively to modifications filed before the Acts effective date.









By the Court (Vuono, Milkey & Blake, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran71 Mass. App. Ct. 258, 260 n.4 (2008).MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Carolyn A. Cole, appeals from a modification judgment entered by a judge of the Probate and Family Court both reducing the amount of alimony she currently receives, and terminating alimony upon the plaintiff, Lawrence S. Cole’s, sixty-fifth birthday.We vacate the judgment and remand to the Probate and Family Court.


Because they share a last name, we refer to the parties by their first names.

  1. Background. The parties were married in 1969 and divorced in 2003. The judgment of divorce incorporates a separation agreement, which, among other things, obligates Lawrence to pay alimony to Carolyn in the weekly amount of $450, reviewable upon certain triggering events. Specifically, alimony was to be reviewed upon Carolyn’s receipt of Social Security Disability Income (SSDI); the remarriage of either*22party; or payoff of the first mortgage by means other than refinance, but no later than August 31, 2008.The agreement does not include an automatic alimony termination date or an event that would trigger alimony termination. The alimony provisions merged with the judgment.


The separation agreement further provides that the parties are to take “affirmative steps” with respect to the triggering events set forth, supra. The agreement defines “affirmative steps” as “notice to the other party within thirty (30) days of any of the above events.”

In November, 2010, Lawrence filed a complaint for modification seeking termination of his alimony obligation and his obligation to maintain life insurance. As a ground for modification, Lawrence asserted that Carolyn is receiving SSDI benefits and that she did not take affirmative steps to provide notice to him within thirty days of receipt of those benefits. Carolyn filed an answer denying that a material change in circumstance had occurred and requesting dismissal of Lawrence’s complaint.

Following a trial, as is relevant here, the judge reduced Lawrence’s alimony obligation to $220 per week payable until February 24, 2015. In his detailed findings of fact and rationale, the judge relied on a multitude of facts supporting his ultimate conclusion that there has been a material and substantial change in circumstances. Specifically, the judge*33cited: Carolyn’s receipt of SSDI;her long-term cohabitation;the refinancing of the mortgage on the former marital home; the prohibitive cost of Lawrence’s health insurance; Lawrence’s ill health; Carolyn’s inability to earn future assets or income; contributions Carolyn receives from her live-in partner; the differential between the parties’ respective incomes; Carolyn’s needs; and Lawrence’s ability to pay the reduced order. This appeal followed.


At the time of the divorce, Carolyn had applied for SSDI benefits. The judge did not resolve conflicting testimony as to whether she provided notice to Lawrence of her receipt of these benefits, as set forth in the separation agreement.


Neither party contests that Carolyn has been in a long-term relationship and that she lives with her partner.

  1. Discussion. After Lawrence filed his complaint for modification, but before the trial in this matter, the Alimony Reform Act of 2011, St. 2011, c. 124 (act), was enacted. See G. L. c. 208, § 34, §§ 48-55. In reducing and then terminating Lawrence’s alimony obligation, the judge applied his understanding of the act as well as the long-standing principles governing modification. See G. L. c. 208, § 37; Schulerv. Schuler382 Mass. 366, 370-371 (1981). In particular, the judge cited both the cohabitation and retirement provisions of the act in reaching his decision.See G. L. c. 208, § 49.


The judge also relied on the act in setting alimony at thirty percent of the differential between the parties’ incomes.


The Supreme Judicial Court resolved the question of retroactive application of the act in Chin v. Merriot, 470 Mass. 527 (2015), and two related cases, concluding that the act applies prospectively, with one exception, not relevant here. See id. at 529; Rodman v. Rodman, 470 Mass. 539, 545-546 (2015); Doktor v. Doktor, 470 Mass. 547, 551 (2015).6Neither the parties nor the judge had the benefit of these decisions at the time of the trial. Nor did the judge have the benefit of Chin when he entered his judgment, findings of fact, and rationale. The cohabitation and retirement provisions of the act, upon which the judge relied, in significant part, in reducing and then terminating alimony, were made effective as of March 1, 2012, approximately nine months before entry of the modification judgment. As Chin resolved, it was error to apply those provisions of the act retrospectively.


The sole exception to the prospective application of the act concerns the durational limits of alimony as set forth in G. L. c. 208, § 49. Rodman v. Rodmansupra at 545. The durational limits are not at issue here as the parties were married in excess of twenty years.

Accordingly, the question remains as to whether the findings of fact and rational were so interwoven with the judge’s application of the act that the judgment must be vacated and remanded. Carolyn argues this is the only logical result. She contends that the underpinnings of the judgment were so interwoven with the application of the act that there is no*55basis upon which to affirm the judgment. By contrast, Lawrence argues that the judgment is supported by the finding that Carolyn’s receipt of SSDI constitutes a material change of circumstance and therefore is a sufficient basis upon which to affirm the judgment.

The judge’s findings of fact and rationale represent an integrated determination that a reduction in alimony is warranted. We are unable to parse out those aspects of his reasoning which were not affected or influenced by his application of the act.

Conclusion. For the foregoing reasons, the modification judgment is vacated and the matter is remanded to the Probate and Family Court for a redetermination as to whether there is a material or substantial change of circumstance without consideration of the act. The judge may, in his discretion, take additional evidence as he deems appropriate. Lawrence’s request for appellate attorney’s fees and costs is denied.

So ordered.

About Christine Nicastro

I have been working in the legal field for more than 25 years. My law practice is in Roslindale, Suffolk County, which is part of Boston, Massachusetts. I take cases from all over the state. Many of my clients find us on the internet from our website. I also have clients from the local community. We have been in the same business location for the past 20 years. I am a graduate of the New England School of Law where I earned my doctorate degree in Juris Prudence and prior to that a graduate of the University of Massachusetts with a bachelor's degree in law. Though having worked in many areas of law both in large and small business as well as the corporate environment, I truly enjoy the small business practice the best because I am able to be on a more personal one on one basis with the client. My clients are regular average people. The salt of the earth. I enjoy them not just as clients but as people.
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