NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-877

DEBRA J. WALSH

vs.

FRANK R. WALSH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The wife appeals from a judgment of contempt against her

former husband, a judgment of modification of child support and 

alimony, and an order denying her motion to reconsider or amend 

or alter judgment and findings, which were issued by a judge of 

the Probate and Family Court. On appeal, the wife challenges:

(1) the judge's decision not to order a remedy despite finding 

the husband in contempt; (2) the judge's credibility 

determinations and weighing of the evidence; (3) the judge's 

supposed failure to consider the wife's ability to support 

herself; (4) the judge's decision not to order the husband to 

transfer college funds to the parties' two children; (5) the 

judge's oversight of the wife's presentation of evidence; and 
2

(6) the judge's statement that thirteen exhibits were entered 

into evidence at trial.1 We affirm.

The husband and the wife married in 1994, had two sons, and 

were divorced in 2009; the husband was obligated as part of the

divorce judgment to pay the wife child support and alimony. The 

husband filed an amended complaint for modification on February 

6, 2020,2 alleging that a decrease in his income (causing him to

incur significant debt) was a material change in circumstance 

warranting elimination of his child support obligation for the 

parties' older son (then aged twenty-three); reduction (or 

elimination) of his child support obligation for the parties'

younger son (then aged twenty-one); elimination of his alimony

obligation; and elimination of the requirement that he maintain 

life insurance. The wife filed an amended counterclaim for 

modification, requesting an increase in the husband's child 

support and alimony obligations, a declaration that the parties' 

1 The wife's brief often falls short of the level of appellate 

argument required by Mass. R. A. P. 16 (a) (9), as appearing in 

481 Mass. 1628 (2019). It contains little citation to relevant 

legal authorities, does not argue within, or with regard to, the 

relevant standard of review, and cites inaccurately to the 

record. Nevertheless, recognizing that she is self-represented, 

we have reviewed her arguments and the appellate record, such as 

it is, to reach the merits of her argument where possible.

2 The husband's initial complaint was filed on July 29, 2019, and 

the wife's initial counterclaim was filed on August 14, 2019. 

The parties assented to allow for refiling of amended pleadings, 

both of which were filed on February 6, 2020.
3

younger son was unemancipated, and an order for the husband to 

maintain life insurance. In addition, the wife filed a 

complaint for contempt on June 22, 2020, alleging that the 

husband was in arrears on his child support and alimony

obligations.

The judge conducted a consolidated one-day trial on May 5, 

2021, at which the parties were the only witnesses.3 After 

considering the evidence, the judge issued judgments resolving 

the modification and contempt matters, along with comprehensive 

findings of fact and a rationale. The judge found that the 

husband had overpaid child support for about seven months after

filing his complaint for modification, but did not require the 

wife to reimburse the husband for the overpayment. The judge 

found the husband in contempt for terminating his child support 

and alimony payments on March 6, 2020, without first obtaining 

court approval, but declined to require the husband to reimburse 

the wife for those missed payments. The judge terminated the 

husband's child support and alimony obligations, and terminated 

the requirement that the husband maintain a life insurance 

policy for the wife's benefit.4

3 The husband was represented by counsel; the wife represented 

herself, as she does here.

4 The wife raises no claims on appeal regarding the elimination 

of the husband's life insurance obligation.
4

On appeal, the first set of issues raised by the wife

relate to the judge's decision not to order a remedy for the 

husband's contempt. The wife specifically questions why the 

judge "did not follow through and enforce her findings" by 

ordering the husband to repay the missed support payments, and 

why the judge found she owed the husband money in the absence of 

a request for reimbursement from the husband. "'The purpose of 

civil contempt proceedings is remedial,' and the formulation of 

the remedy is within the judge's discretion." Eldim, Inc. v. 

Mullen, 47 Mass. App. Ct. 125, 129 (1999), quoting Demoulas v. 

Demoulas Super Mkts., Inc., 424 Mass. 501, 571 (1997). "[A] 

judge's discretionary decision constitutes an abuse of 

discretion where we conclude the judge made a clear error of 

judgment in weighing the factors relevant to the decision, such 

that the decision falls outside the range of reasonable 

alternatives" (quotation and citation omitted). L.L. v. 

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The husband was found in contempt for terminating support 

payments between March 6, 2020, and June 25, 2020, without first 

obtaining court approval. A common remedy for failure to pay 

child support or alimony is to order the payor to make 

additional payments until the payee has received the arrearage

due. See, e.g., Poras v. Pauling, 70 Mass. App. Ct. 535, 537

(2007). To decide the parties' modification claims, however,
5

the judge determined the amounts owed by the husband under the 

Massachusetts Child Support Guidelines and compared them to what 

the husband actually paid the wife during the relevant 

timeframe. Despite the missed payments, the husband was not in 

arrears; he overpaid his support obligations by $9,479 between

August 13, 2019 (when he filed his complaint) and July 13, 2020 

(when the younger son turned twenty-two). In these 

circumstances, the judge reasonably declined to order the 

husband to reimburse the wife.

The wife next raises concerns about the judge's credibility 

determinations and the weight she gave to the parties' financial 

statements, specifically that the judge credited the husband's 

financial statement while discrediting portions of the wife's

financial statement. In declining to credit portions of the 

wife's financial statement, notably her self-employment income, 

the judge relied on the wife's testimony that she "was a little 

confused on a couple of things" while filling out her financial 

statements, and that she was "not good at doing financial 

statements." Determinations of credibility and evidentiary 

weight are matters for the fact finder (here, the trial judge),

"not an appellate court." Patriot Power, LLC v. New Rounder, 

LLC, 91 Mass. App. Ct. 175, 181 (2017). See Commonwealth v. 

Rivera, 482 Mass. 259, 269 (2019) ("fact finder must determine 

weight and credibility of testimony"). The judge, having heard 
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the parties' testimony and reviewed the documentation they 

provided was in the best position to determine the parties' 

credibility and to weigh the evidence. We do not disturb her 

findings or determinations of credibility.

We reach the same conclusion with respect to the wife's 

argument that the judge failed to consider the wife's ability to 

support herself before terminating the husband's alimony

obligation. The judge found, and the wife does not contest, 

that the parties had been married for 152 months (twelve years 

and eight months). The presumptive maximum alimony duration 

under the Alimony Reform Act (act) is set at seventy percent of 

the number of months of the marriage, see G. L. c. 208, § 49 (b)

(3), meaning that the presumptive durational limit for the 

husband's alimony payments was 106 months (eight years and ten

months). At the time the husband ceased making alimony payments

in February 2020, he had already paid for more than ten years,

longer than the presumptive maximum duration under the act.

In determining whether a deviation beyond the presumptive 

durational limit is "required in the interests of justice," 

George v. George, 476 Mass. 65, 70 (2016), quoting G. L. c. 208, 

§ 49 (b), the judge must evaluate the circumstances at the time 

the deviation is sought, including "a party's inability to 

provide for that party's own support by reason of that party's 

deficiency of property, maintenance or employment opportunity." 
7

G. L. c. 208, § 53 (e) (8). The burden was on the wife, as the 

recipient spouse, to prove by a preponderance of the evidence

that she had an inability to provide for herself; she did not 

carry that burden. See George, supra. As we have already 

noted, the judge discredited the wife's financial statement as 

it related to her income and found that the wife was "capable of 

earning income to provide for her own support." The judge also 

found that the value of the wife's assets (three retirement 

accounts and a condominium free from any mortgage) had increased 

since the previous modification judgment and, based on the 

evidence before her, permissibly concluded that the wife was 

"not unable to provide for her own support by reason of 

deficiency of property." Viewing the judge's findings and 

rationale as a whole, it is clear that the judge considered the 

wife's ability to support herself as required by G. L. c. 208, 

§ 53 (e) (8), and, based on her weighing of evidence she found 

credible, determined that the wife could do so.

The wife also argues that the judge erred by not ordering 

the husband to transfer college funds to the children (or to the 

wife as guardian of the younger child). However, the judge 

cannot be faulted for failing to address an issue that was not 

raised in the husband's amended complaint for modification, the 

wife's counterclaim for modification, or the wife's complaint 

for contempt. Although the wife conducted some examination on 
8

the issue, this was not a case where an issue "not raised by the 

pleadings [was] tried by express or implied consent of the 

parties." Mass. R. Dom. Rel. P. 15 (b). Nor can the wife raise 

the issue for the first time here.5 See Boss v. Leverett, 484 

Mass. 553, 562 (2020).

The wife next raises concerns about how the judge conducted 

the trial, and specifically contends that she (the wife) was 

rushed during (and unable to complete) her cross-examination of 

the husband, which she alleges could "possibly [be] considered a 

violation of the [First] Amendment." "[J]udges are afforded 

substantial latitude in pretrial and trial management." 

Esteraz, petitioner, 90 Mass. App. Ct. 330, 335 (2016). "We do 

not consider that discretion abused unless its exercise has been 

characterized by arbitrary determination, capricious 

disposition, whimsical thinking, or idiosyncratic choice." 

Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 

426, 429 (1986).

The wife's contentions are not supported by the record, and 

we see no abuse of discretion in the judge's trial management. 

The judge stated (once the wife's cross-examination of the 

husband had taken approximately the same amount of time as his 

5 Our conclusion with respect to the educational funds does not 

foreclose the wife from seeking, if appropriate, relief in the 

trial court.
9

direct testimony) that she would give the wife "until 12:15, 

because I really do want to hear your testimony. I think I 

would learn a lot if I could hear you testify." The judge's 

remark was entirely appropriate; it expressed the judge's desire 

to hear all of the relevant information necessary to make an 

informed decision. The judge's additional comments were merely 

designed to prevent the wife from asking questions that had 

already been answered, or from getting into irrelevant material, 

or from discussing matters better suited to the wife's direct 

testimony. Finally, the wife's cross-examination concluded only 

when she stated "I'm all done," without any prompting by the 

judge -- a remark that contradicts the wife's claim that she was 

"unable to complete" her questioning.

The wife's final contention is that the judge erred by 

stating thirteen exhibits were entered into evidence at trial. 

It is unclear how many (and which) documents were exhibits,

because the wife has not provided us with the uncontested 

documents as marked and submitted by the parties at trial. 

Therefore, we cannot review this argument on the record provided 

to us. See Hasouris v. Sorour, 92 Mass. App. Ct. 607, 610 n.4 

(2018) ("[t]he burden is on the appellant . . . to furnish a 

record that supports [her] claims on appeal" [citation 

omitted]). Moreover, the wife has not articulated what
10

prejudice she suffered from the judge's supposed misstatement 

regarding the number of exhibits.

Judgments dated July 20, 

2021, affirmed.

Order denying motion to

reconsider dated November 

17, 2021, affirmed.

By the Court (Green, C.J., 

Wolohojian & 

Sullivan, JJ.6),

Clerk

Entered: June 13, 2023.

6 The panelists are listed in order of seniority.