The plaintiff, Rudolph F. Pierce, was married to the defendant, Carneice G. Pierce, for thirty-two years until their divorce on August 26, 1999. As part of their separation agreement, which was merged in relevant part with the judgment of divorce nisi (divorce judgment), Rudolph was required to pay Carneice $110,000 per year as alimony for her support and maintenance.
We granted Rudolph’s application for direct appellate review to consider whether a former spouse’s voluntary retirement from employment at or beyond the customary age of sixty-five should create a rebuttable presumption under the statutes governing the award of alimony (G. L. c. 208, §§ 34, 37) that any alimony obligation owed by the retiring spouse should be terminated. We conclude that the statutes and interpretative case law governing the determination of the amount of alimony do not reasonably permit such a presumption. Instead, we hold that voluntary retirement at a customary age is simply one factor, albeit an important one, to be considered by the judge in deciding whether to modify the alimony obligation set forth in a divorce judgment. We con-
We further hold that the judge erred in failing to make specific findings of fact to support her decision not to modify the divorce judgment retroactively with respect to alimony that she found was due in 2007 but had not yet been paid at the time Rudolph served his complaint for modification. We therefore remand this case to the judge for further proceedings consistent with our ruling.
Background. We summarize the relevant facts as found by the judge and as stipulated by the parties, supplemented where necessary by undisputed evidence in the record. Rudolph and Cameice were married in 1967 and divorced on August 26, 1999. At the time of the divorce, Rudolph was fifty-seven years of age and Cameice was age fifty-five. At the time of the judge’s ruling on the complaint seeking to terminate alimony, Rudolph was sixty-six years of age and Cameice, sixty-four. They have two children from their marriage, both of whom are emancipated. Both parties are in good health for their respective ages and physically able to work in their respective fields of employment.
Rudolph began practicing law in 1970. He became a United States Magistrate Judge in 1976 and an Associate Justice of the Massachusetts Superior Court in 1979. He returned to the private practice of law in 1985 and, in 1987, became a partner in a Boston-based law firm, where he remained until his voluntary retirement on March 31, 2008. During his years in private practice, Rudolph enjoyed a successful career as a trial lawyer, specializing in civil litigation and “white collar” criminal defense. Following the 1999 divorce, he remarried and moved with his wife in 2004 to the Washington, D.C., area, where he became the lone litigation attorney in his firm’s Washington, D.C., office.
During her marriage to Rudolph, Cameice was the primary caretaker for the parties’ two children and the marital home. For twenty-seven years of her marriage, Cameice was employed by an international computer corporation, but at the time of the divorce, she had left her position there and was working as a development officer for an international charitable organization. In August, 2007, when the complaint for modification was filed, she was employed as a fundraiser for a national nonprofit organization, where she earned $95,000 annually. In June, 2008, Carneice’s employer informed her that her position had been restructured and that she would be required to cover a larger territory, increase her travel, and assume more duties without any increase in salary. After explaining that she could not take on the increased travel and other responsibilities because of her age and physical condition, Cameice resigned her position. She received no severance payment. At the time of the judge’s ruling, she was
At the time of the 1999 divorce, the parties entered into a separation agreement, negotiated by experienced divorce counsel, which, with respect to all terms governing the payment of alimony, merged into the divorce judgment. The separation agreement made an equal division of marital property between the parties.
Neither party sought modification to the terms of the divorce
On March 17, 2008, the judge found that, under the terms of the separation agreement, Rudolph owed and was required to pay Cameice $41,107, which represented, in the judge’s calculation, the prorated portion of the annual $62,000 payment attributable to the period from January 1, 2007, to the date Rudolph served the complaint for modification on Cameice — August 31, 2007. The judge mled that, even if a modification of Rudolph’s alimony obligation were allowed, the modification would not apply to amounts due prior to the service of the complaint for modification.
In April, 2008, Rudolph moved to amend his complaint for modification, asserting that, because he had retired completely from the practice of law and therefore was without earned income, his alimony obligation should be terminated and his alimony obligation for 2007 retroactively should be reduced. On May 2, 2008, Carneice moved to amend her complaint for contempt, claiming that Rudolph had stopped making bimonthly alimony payments of $2,000 as required by the divorce judgment.
At the August 13, 2008, hearing on the consolidated complaints for modification and contempt, the judge heard the testimony of both Rudolph and Cameice. On September 16, 2008, in her twenty-four page decision, the judge considered, among other factors, the current income, assets, and liabilities of the parties, their financial needs, Rudolph’s financial support of his mother and his wife’s financial support of their household, and the opportunities available to each of the parties to acquire future income and assets. The judge concluded that it was appropriate to reduce Rudolph’s obligation to pay alimony under the divorce judgment from $110,000 per year to $42,000 per year, retroactive to April 1, 2008, but not appropriate to terminate that obligation altogether. That same date, the judge entered judgment on Cameice’s complaint for contempt by finding Rudolph not
The judge recognized that “there may be insufficient income” for each party to enjoy the standard of living they had enjoyed during their marriage, “particularly as they now approach their retirement years.” However, the judge found that Rudolph had not reduced his standard of living after his retirement and, “based on his significant assets, it appears he will continue to have a similar lifestyle to that when he was employed.” In contrast, the judge found that Cameice had insufficient income to meet her financial needs and could not do so without continued financial support from Rudolph. In summary, the judge acknowledged that “retirement is something due every individual at some point in life,” but found that “the facts and circumstances presented in this matter demonstrate an ongoing need for support on behalf of Cameice in addition to what she can continue to earn until her own retirement.”
The judge found that Rudolph had the present financial ability to pay the reduced amount of alimony, despite his diminished income. The judge noted that Rudolph was receiving Social Security benefits of approximately $24,000 per year, that his retirement assets, assuming a rate of return of five per cent, should provide him with an unearned income of approximately $40,000 per year, and that Rudolph’s wife was paying many of the couple’s bills from her annual salary of $125,000. The judge also found that, despite his retirement, Rudolph continued to have “significant earning power.” As “of counsel” to his law firm, Rudolph had a continuing ability to earn income through part time, hourly legal work that would pay him $250 per hour. She also found that his extensive judicial and legal experience allowed him to obtain employment at one of the Washington, D.C., law schools.
The judge noted that, even though Rudolph was fifty-seven years of age when he entered into the separation agreement with Carneice and “must certainly have been aware that his retirement was on the horizon,” the agreement provided that alimony would continue until Cameice’s remarriage or the death
Discussion. “To be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.” Schuler v. Schuler, 382 Mass. 366, 368 (1981). Here, Rudolph was successful in modifying the divorce judgment with respect to his alimony obligation, but he did not succeed in terminating that obligation. In considering Rudolph’s appeal from the modification judgment, we recognize that a judge enjoys considerable discretion in fashioning an appropriate modification judgment, and that the judgment may not be reversed in the absence of an abuse of discretion. See Ross v. Ross, 385 Mass. 30, 37 (1982); Greenberg v. Greenberg, 68 Mass. App. Ct. 344, 347-348 (2007). Because every modification judgment requires findings of fact, conclusions of law, and the exercise of discretion, our inquiry on review requires careful consideration of the facts and circumstances of an individual case. We examine (1) whether the factual findings are “clearly erroneous,” giving “due regard . . . to the opportunity of the trial court to judge of the credibility of the witnesses,” Mass. R. Dom. Rel. P. 52 (a) (2008); (2) whether there were errors of law; and (3) whether the judge appears to have based her decision not on sound discretion, but “on whimsy, caprice, or arbitrary or idiosyncratic notions.” Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). The standard of review reflects substantial, but not unlimited, deference to the judge who saw the witnesses and heard the evidence. See Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999).
1. Before considering whether the judge abused her discretion by failing to terminate Rudolph’s alimony obligation, we first briefly review the law of divorce and alimony as it has evolved in the Commonwealth. There is no common-law authority in Massachusetts for a court to grant a divorce or award alimony. “The court’s power to award alimony and make an equit
The contemporary statutory provisions governing property division and alimony on divorce in Massachusetts date from 1974, when the Legislature dramatically revised the law by granting courts the ability to award alimony to either a husband
“In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court . . . shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.”
A court must consider these same factors in determining whether the amount of alimony should be modified based on a change of circumstances following entry of an earlier judgment for alimony. See G. L. c. 208, § 37 (allowing court to modify alimony judgment and “make any judgment relative thereto which it might have made in the original action”).
In conducting this multifactor analysis, whether in fashioning the original alimony judgment or in modifying that judgment, the judge must weigh all the statutory factors in light of the facts of
If a supporting spouse has the ability to pay, the recipient spouse’s need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage. “The standard of need is measured by the ‘station’ of the parties — by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.” Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985), citing Rice v. Rice, 372 Mass. 398, 402 (1977). See also Kittridge v. Kittridge, 441 Mass. 28, 44 (2004); Greenberg v. Greenberg, 68 Mass. App. Ct. 344, 346-347 (2007). When, however, the supporting spouse does not have the ability to pay, the recipient spouse “does not have an absolute right to live a lifestyle to which he or she has been accustomed in a marriage to the detriment of the provider spouse.” Heins v. Ledis, 422 Mass. 477, 484 (1996). The judge must consider all the statutory factors and reach a fair balance of sacrifice between the former spouses when financial resources are inadequate to maintain the marital standard of living. See id.; Greenberg v. Greenberg, supra.
The judge’s task in arriving at a fair balance, a complex calculus in any circumstance, becomes more complicated when a party’s actual earnings are substantially less than the party’s potential earning capacity. This can occur when a party who can work full time works part time or chooses employment that is more satisfying, but less lucrative, than the party’s skills and education may permit. The provider spouse’s payment obligation depends on both parties’ incomes, so the cost of either party’s choice of less lucrative work — or no work at all — is always, in part, shifted to the other. See American Law Institute’s Principles of the Law of Family Dissolution: Analysis and Recommendations § 5.03(c)
In determining a fair balance of sacrifice between the parties, the judge may credit that the support provider has good faith, persuasive reasons for selecting employment paying less than his or her potential earning capacity. People often prefer careers that may not maximize their lifetime income, and divorce should not entirely deprive an individual of this freedom. But these considerations must be balanced against a provider’s obligation to support the former spouse. Id. at 372. Thus, in Schuler v. Schuler, supra at 371-372 & n.6, we found that it was within the probate judge’s discretion to conclude that it was unreasonable for a former spouse charged with the financial support of his former wife and children to continue indefinitely to earn a negligible income through consulting work in the hope of becoming president of a small corporation when a substantially higher-paying salaried position was reasonably available to him. At the same time, we also recognized in that opinion that, in appropriate circumstances, “a good faith career change resulting in lowered income may warrant a reduction of alimony.” Id. at 373.
A support provider’s retirement from employment is a career change that, depending on the support provider’s age, health, and occupation, may constitute a voluntary, good faith career change that will justify a probate judge’s decision to rely on the support provider’s actual, rather than potential, income in decid
2. Here, the judge was required to grapple with this dilemma in arriving at her judgment. At age sixty-five, Rudolph had retired
The judge was also warranted in finding that Rudolph maintained an “of counsel” relationship to his law firm, was physically able to work part time as an attorney, and would be paid $250 per hour for such work. While the record does not identify any clients who would continue to retain him or any significant cases that required his involvement, the judge, in view of Rudolph’s education and extensive experience as a civil trial lawyer,
The judge did not abuse her discretion in ruling that the fair balance of sacrifice in this case meant that Cameice, in view of Rudolph’s wish to retire at the age of sixty-five, must adapt her life style to cope with a sixty-two per cent reduction in alimony (from $110,000 per year to $42,000 per year), and that Rudolph must continue to pay this reduced amount, even if that requires him to find part-time legal work at his law firm, withdraw retirement income earlier than he had hoped, or modify his life style. We note that, if Rudolph billed only 200 hours per year on case work at his law firm, he could earn $50,000, more than enough to pay all his alimony.
Rudolph asks this court to tilt the balance of sacrifice in his favor by declaring a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement. Rudolph contends that this presumption should be rebuttable only on a showing of extraordinary circumstances compelling continued payment of alimony.
We agree that, generally, a supporting spouse’s wish to retire at a customary retirement age will justify a reduction of the alimony award, even if the consequence is that the recipient spouse may be unable to sustain a lifestyle equal to that enjoyed during the marriage. See Schuler v. Schuler, 382 Mass. 366, 370-371 (1981)
We decline, however, to create the rebuttable presumption proposed by Rudolph, which would discard the multi-factor analysis required under G. L. c. 208, § 34, and embodied in our case law and replace it with a rule that, in the absence of extraordinary circumstances, would prohibit a judge from considering the continued earning capacity of a supporting spouse who retires at a customary retirement age. The multiple factors set forth in G. L. c. 208, § 34, and the obligation of a judge deciding an alimony judgment to consider all the factors, including “the opportunity of each [party] for future acquisition of . . . income,” reflect the complexity of the alimony decision, the unique set of circumstances posed by every case, and the need to fashion an alimony judgment that imposes a fair balance of sacrifice in each case. Section 34 does not place any one of its mandatory considerations above any other; constrained by its directives, we have declined to do so on our own. G. L. c. 208, § 34. See Gottsegen v. Gottsegen, 397 Mass. 617, 623-624 (1986).
By seeking this rebuttable presumption, Rudolph essentially aims to ensure through a rule of law that his alimony obligation will terminate when he retires, even though no such provision was included within the separation agreement, which declares that alimony terminates only on Rudolph’s death, or the death or remarriage of Cameice. Even where, as here, the separation agreement’s provisions regarding alimony are merged into and do not survive the divorce judgment, “it is nevertheless appropriate for a judge to take heed of the parties’ own attempts to negotiate terms mutually acceptable to them.” Bercume v. Bercume, 428 Mass. 635, 644 (1999). See Greenberg v. Greenberg, 68 Mass. App. Ct. 344, 353 (2007) (declining to terminate alimony obligation on husband’s retirement where separation agreement had provided for continuation until husband’s death); Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 567-568 (2001) (reversing termination of alimony obligations on supporting spouse’s attainment of age of sixty-five when merged separation agreement between parties expressed contrary intent). If Rudolph had wanted
We are confirmed in our unwillingness to adopt the rebuttable presumption proposed by Rudolph by the absence of case authority for such a rule in other jurisdictions. Even the cases relied on by Rudolph and the amicus brief filed by the Massachusetts Chapter of the American Academy of Matrimonial Lawyers do not declare any such presumption. See In re Marriage of Reynolds, 63 Cal. App. 4th 1373 (1998); In re Marriage of Swing, 194 P.3d 498 (Colo. Ct. App. 2008); Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). In In re Marriage of Reynolds, supra at 1379, the California court declared, “Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires.” Consequently, the court held that “no one may be compelled to work after the usual retirement age of [sixty-five] in order to pay the same level of spousal support as when he was employed.” Id. at 1378.
Finally, Rudolph argues that, unless we create a rebuttable presumption to benefit the supporting spouse, the recipient spouse will hold effective veto power over the provider spouse’s retirement decision, potentially denying the provider spouse the opportunity ever to retire. Our decision grants the recipient spouse no such veto. Every supporting spouse is permitted to retire, and an alimony judgment based on the supporting spouse’s earned income eventually will need to be reduced or terminated to reflect the supporting spouse’s diminished actual income after retirement. The supporting spouse, however, is not entitled unilaterally to retire regardless of the financial hardship such retirement may cause the recipient spouse. In appropriate circumstances, as here, the supporting spouse, even after reaching a customary retirement age, in the sound discretion of the probate judge, may be expected temporarily to postpone retirement or to find part-time work to help the recipient spouse weather difficult financial circumstances.
3. Beyond his challenge to the judge’s award of continuing alimony in her ruling on his complaint for modification, Rudolph appeals from the judge’s March 17, 2008, order directing him to make payment of $41,107 to Cameice. This sum represents the judge’s calculation of the pro rata share of the $62,000 component of his 2007 alimony obligation for the period from January 1, 2007, to August 31, 2007, the date Rudolph served on Cameice his initial complaint for modification.
The judge’s order rests on two conclusions, one express and the other implicit. The express conclusion followed from the judge’s interpretation of a term of the parties’ 1999 separation agreement, which was merged with the divorce judgment, that required Rudolph, in addition to making bi-monthly alimony payments of $2,000, to pay Cameice each year:
*305 “The sum of Sixty-Two Thousand ($62,000.00) Dollars in approximately four yearly installments to be paid at a time and in an amount to coincide with cash payments the Husband receives from his employer, [the law firm]. In any event, the entire sum of Sixty-Two Thousand ($62,000.00) Dollars is to be paid in full no later than December 31st of each year.”
The judge found that this language clearly means that the $62,000 component of alimony became progressively due over the course of the year, and therefore was properly allocable on a pro rata basis to a period of less than twelve months. The judge then found that the sum of $41,107 had been due and payable as of August 31,2007.
In reaching her express conclusion, the judge relied solely on what she found was the “clear and unequivocal” language of the agreement to reject Rudolph’s argument that, because the anticipated quarterly payments from his employer ceased when his employment status changed in 2006 from an equity partner to a salaried employee, no part of the $62,000 annual obligation could be due and payable under the agreement until December 31, 2007. We conclude that the language of the separation agreement is not so clear and unequivocal as to permit the judge to reach this conclusion without considering paroi evidence as to the purpose and intent of the parties in adopting this provision. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 753-754 (1973).
We also conclude that the judge erred in her implicit conclusion that a judge may not reduce or eliminate an alimony obligation that is due and payable, but in arrears, in a judgment of modification. Probate judges “have full power and authority under [G. L. c. 208, § 37,] to modify [judgments] for alimony entered in divorce proceedings not only as to the future, but also as to arrears.” Watts v. Watts, 314 Mass. 129, 133 (1943). See Binder v. Binder, 7 Mass. App. Ct. 751, 760 (1979) (“A Probate
For these reasons, we vacate that part of the judge’s March 17, 2008, order directing Rudolph to make payment of $41,107 to Carneice and remand this case so that the judge (1) may consider paroi evidence and make findings as to the interpretation of the payment provisions in the separation agreement, and (2) may exercise her sound discretion, supported by findings of fact and a statement of reasons, as to whether Rudolph is entitled to retrospective relief regarding his alimony obligation for the period from January 1, 2007, to August 31, 2007.
Conclusion. We affirm the judgment on Rudolph’s complaint for modification, dated September 16, 2008. We vacate that part of the order dated March 17, 2008, that directed Rudolph to pay Carneice the amount of $41,107, which the judge found was due and payable for the period from January 1, 2007, through August 31, 2007, and remand the case to the Probate and Family Court for further proceedings consistent with this opinion.
So ordered.
In the interest of clarity, we use the first names of the parties. See Bercume v. Bercume, 428 Mass. 635, 636 n.1 (1999).
We acknowledge the amicus briefs filed by the American Academy of Matrimonial Lawyers, Massachusetts Chapter; the Legal Assistance Corporation of Central Massachusetts; and the Women’s Bar Association of Massachusetts and the Women’s Bar Foundation of Massachusetts.
In 2006, Rudolph changed his employment status with the law firm, converting from an equity partner who received a share of the firm’s net profits to a salaried contract employee.
Under the division of marital assets reached in the separation agreement, Cameice received ownership of the marital home, certain small retirement accounts held in her own name, and a portion of the substantial retirement assets held in Rudolph’s name. The retirement assets transferred from Rudolph to Cameice totaled approximately $409,000 at the time of transfer. At the time of the August 13, 2008, modification hearing, the total value of Cameice’s retirement assets had declined to $296,600. Cameice testified that this decline was attributable to poor investment decisions by a professional advisor.
Rudolph moved for reconsideration of this order on April 10, 2008; the motion was denied on April 22, 2008.
Rudolph testified that he was unsuccessful in his application to teach at one Washington, D.C., law school.
In England, judicial authority over matrimonial matters was vested exclusively in the ecclesiastical courts, applying canon law. While these courts would, in certain circumstances, recognize legal separation and award alimony as a form of economic support, they refused as a rule to recognize the formal dissolution of a marriage. Beginning in the late Seventeenth Century, a narrow, alternative route to divorce developed for well-situated litigants able to secure formal divorce by way of a special act of Parliament. This remained the governing scheme under English law until 1857, when jurisdiction for divorce was transferred to the civil court system and divorce was formally authorized in circumstances of adultery. See H.H. Clark, Jr., Domestic Relations in the United States § 13.1, at 696 (2d ed. 1987). See also Gottsegen v. Gottsegen, 397 Mass. 617, 621 (1986).
Prior to the 1974 legislative revision, G. L. (Ter. Ed.) c. 208, § 34, had provided simply: “Upon a divorce, or upon petition at any time after a divorce, the court may decree alimony to the wife, or a part of her estate, in the nature of alimony, to the husband.”
A complaint for modification must be based on a change of circumstances occurring after the earlier alimony judgment, because “the issue ought not be relitigated unless there has been a change of circumstances” (emphasis in original). Cherrington v. Cherrington, 404 Mass. 267, 270 (1989). See Schuler v. Schuler, 382 Mass. 366, 368 (1981).
In the clear-eyed observation of one court, a former spouse’s ongoing need for financial support is a continuing limitation on a supporting spouse’s freedom to retire, write poetry, or take a vow of poverty: “The reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed.” Deegan v. Deegan, 254 N.J. Super. 350, 358-359 (App. Div. 1992). See Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736 (1995).
When balancing a support provider’s wish to retire against a recipient spouse’s continuing financial need, the judge must consider all the statutory criteria in G. L. c. 208, § 34, as they relate to both parties, not simply the party seeking a reduction in the alimony judgment. See Heins v. Ledis, 422 Mass. 477, 485 (1996) (judge must consider recipient spouse’s potential earning power when determining appropriateness of alimony); Talbot v. Talbot, 13 Mass. App. Ct. 456, 456-458 (1982) (reversing dismissal of complaint for alimony brought by former spouse in part for failure to consider effect of chronic mental illness on that spouse’s employability and opportunity for acquisition of assets in future).
The judge found that Cameice’s territory had spanned from Maine to Delaware but that her employer wanted her to add the Plains and Mountain States. She testified that she was already traveling two weeks of every month; the additional territory would have necessitated even more travel, at greater distances.
We acknowledge that the record did not support the judge’s finding that Rudolph’s retirement assets conservatively would yield a rate of return of five per cent, and note that the judge did not impute income to Cameice based on a comparable rate of return from either her retirement assets ($292,000) or her liquid savings ($597,000). We conclude, however, that even if the judge had assumed a more modest rate of return and imputed income from Cameice’s retirement and liquid savings based on that same rate of return, Cameice would still not be able to meet her financial needs without alimony. Because the judge did not articulate any formula that she used to determine the modified amount of alimony, and because we conclude that the modified amount was within the range that was reasonable under the circumstances, we do not conclude that the judge abused her discretion despite these unsupported factual findings.
The judge also found that Rudolph “should be a highly desirable candidate to teach full or part-time at any of the greater Washington, D.C. law schools.” While the record supports her finding that he “should be a desirable candidate,” it does not support the conclusion that he had any reasonable prospect of obtaining full or part-time employment as a law professor, or that he would earn a substantial salary if he worked part time as an adjunct professor.
The amount in alimony paid by a provider spouse is deducted from gross income under Federal and Massachusetts tax law, so income taxes on such income are paid by the recipient spouse, not the provider spouse. See I.R.C. §§ 71, 215 (2006); C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 38:13 (3d ed. 2002) (G. L. c. 62, § 2, adopts Federal definition of gross income, so alimony may also be deducted from gross income on Massachusetts tax return).
We have created only one presumption as to alimony: unless otherwise
The California court also held that the trial court could not properly attribute to the retired husband a monthly income based on his earning capacity rather than his actual earnings, thereby requiring him to work well past the age of sixty-five. In re Marriage of Reynolds, 63 Cal. App. 4th 1373, 1377 (1998). The significance of this holding, however, is limited by the fact that the court found that there was no evidence in the record that the husband had any actual ability to work or that he had refused any actual jobs. Id. at 1378.
Rudolph focuses on the Florida court’s acknowledgment that age sixty-five is the conventionally accepted age for retirement, but the court acknowledged this convention only for the purpose of concluding that a party wishing to retire before the age of sixty-five would have a heavy burden to show his or her retirement is reasonable. See Pimm v. Pimm, 601 So. 2d 534, 537 (Fla. 1992).
The September 16, 2008, judgments on Rudolph’s complaint for modification and Cameice’s complaint for contempt did not modify this order.
The judge calculated the amount due as follows: $62,000 divided by 365 days multiplied by 242 days (period from January 1, 2007, to August 31, 2007) equals $41,107.
A judgment for alimony differs in this regard from a judgment for child support. Under G. L. c. 119A, § 13 (a), an order for child support is not subject to modification for any period prior to the date that notice of a complaint for modification has been served. Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 405-406 (1998).
Because the judge may issue retrospective relief as to alimony payments, she has the authority to provide such relief even if, on remand, she were again to find that $41,107 had been due and payable as of August 31, 2007.