13 Mass. App. Ct. 1021 | Mass. App. Ct. | 1982
In Meghreblian v. Meghreblian, 9 Mass. App. Ct. 889 (1980), we vacated those portions of the judgments of divorce which awarded the wife alimony because “the judge abused his discretion ... in awarding the wife less (by some $4,500.00 a year) than the difference between the amount the wife can reasonably expect to earn from her employment and what the judge found to be the sum of her needs and those of the minor child.” By a subsequent order by the panel who heard the appeal, docketed in this court on June 25, 1980, and transmitted on the same day to the Probate Court, we directed the judge designated to hear the cases to discharge the order of remand by “conducting a new trial on
1. The husband’s initial arguments are based on the notions that this court could not properly order determination of alimony based on the “present needs and circumstances of the parties,” and that the judge, in making the new award, was bound by the original findings as to the needs and lifestyles of the parties. The fact that the only available evidence on the question of alimony was eighteen months old at the time of remand (and approximately twenty-five months old at the time of the further hearings) created an obvious need for evidence to update the parties’ situations so that a reasoned and fair determination of the issue could be made. Upon retrial, the judge was not confined solely to the findings made by the first judge, especially those contained in original finding no. 5. The judge’s statements that the alimony issue was not “back to square one” and that he would redetermine alimony on the “data . . . previously heard . . . with a reasonable update under all the [G. L. c.] 208, § 34 criteria” correctly reflected the nature of the hearing. It is also significant that the husband’s counsel expressed the view several times during the hearing that the proceedings in fact resembled a modification. We conclude that the husband’s present arguments about the scope of the rehearing are without merit. See Milo v. Milo, 3 Mass. App. Ct. 732 (1975); Roberts v. Roberts, 3 Mass. App. Ct. 789, 789-790 (1975). See also Moran v. Moran, 5 Mass. App. Ct. 787, 787-788 (1977); Foster v. Foster, 10 Mass. App. Ct. 829, 829-830 (1980).
2. The husband contends that the amount of alimony is excessive because it provides the wife with a higher standard of living than she had at the time of the dissolution of the marriage, and furnishes her with income greatly in excess of her needs. The judge’s detailed findings of fact reflect appropriate consideration of all the mandatory and discretionary factors enumerated in G. L. c. 208, § 34, in light of the findings made by the judge who initially heard the cases, the evidence at the rehearing, and relevant case law. See Bianco v. Bianco, 371 Mass. 420, 423 (1976); Rice v. Rice, 372 Mass. 398, 401 (1977); Putnam v. Putnam, 5 Mass. App. Ct. 10, 16-17 (1977); Newman v. Newman, 11 Mass. App. Ct. 903 (1981); Mancuso v. Mancuso, 12 Mass. App. Ct. 973, 974 (1981). In making the
3. The foregoing discussion answers the bulk of the husband’s contentions as to the wife’s testimony about her current needs. The remaining arguments addressed to that testimony and her statement of needs are without merit and need not be separately discussed.
4. The judge appears to have applied the correct criteria with respect to the motion for counsel fees and expenses, and he was able to observe at first hand the efforts of counsel. Awards in these cases require scrutiny of a considerable number of variables. See Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 16-17 (1980). The amount of the award generally rests in sound judicial discretion, may be presumed to be right and ordinarily
The order entered on February 20,1981, awarding counsel fees and expenses, is affirmed. The judgments entered on the same date are affirmed.
So ordered.