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19-P-139 Appeals Court

ALISON J. VOORHIS vs. PAUL B. RELLE.

No. 19-P-139.

Suffolk. November 1, 2019. - February 10, 2020.

Present: Agnes, Sullivan, & Blake, JJ.

Probate Court, Divorce. Divorce and Separation, Alimony, 

Findings, Modification of judgment. Contempt. Practice, 

Civil, Contempt.

Complaint for divorce filed in the Middlesex Division of 

the Probate and Family Court Department on September 25, 2000. 

Complaints for modification, filed on September 6, 2016 and 

November 7, 2016, and a complaint for contempt, filed on October 

16, 2017, were heard by Patricia A. Gorman, J.

Janice Bassil for the wife.

Maureen McBrien for the husband.

BLAKE, J. In this divorce modification case, a judge of 

the Probate and Family Court was asked, but declined, to deviate 

from the durational limits imposed by the Alimony Reform Act of 

2011 (act), "in the interests of justice." See St. 2011, 

c. 124, §§ 4, 5. We conclude that the judge did not abuse her 
2

discretion as, here, the facts do not warrant deviation from the 

durational limits. We therefore affirm the modification 

judgment, with one exception.

1. Background. We summarize the judge's findings of fact, 

supplemented by undisputed facts in the record and reserving 

certain facts for later discussion. See Pierce v. Pierce, 455 

Mass. 286, 288 (2009). The parties were married on February 20, 

1982, and had four children.1 They divorced on January 22, 2002.

The judgment of divorce nisi incorporated the parties' 

separation agreement that provided, in pertinent part, that the 

husband pay $4,020 per month in alimony to the wife, plus 

thirty-five percent of any gross cash bonuses he received. The 

wife was awarded physical custody of the parties' four children. 

The husband was required to pay $2,650 per month in child 

support. The marital estate was valued at approximately $1 

million and was equally divided between the parties, as was the 

husband's pension. At that time, the parties were debt free.

In September 2006, the wife was arrested, and in December 

2007, she pleaded guilty to vehicular manslaughter and was 

sentenced to from eight to twelve years in prison; she served in 

excess of eight years and was released in October 2016.2 In a 

 

1 At the time of this trial, three of the children were 

emancipated. The youngest was a college freshman.
3

modification judgment entered in September 2006, the husband was

awarded custody of the unemancipated children and his child 

support obligation was terminated; the husband was also ordered 

to maintain a life insurance policy naming the wife as 

beneficiary for so long as he was required to pay her alimony. 

In a modification judgment entered in December 2007, his alimony 

obligation was reduced from $4,020 per month to $1,500 per month 

and his obligation to pay additional alimony from cash bonuses 

was terminated. This modification judgment also provided that 

the husband would resume paying alimony in the amount of $4,020 

plus thirty-five percent of his gross cash bonuses "following 

the date [the wife] is released."

2. Modification and contempt proceedings. On September 6, 

2016, approximately one month before the wife's release from 

prison, the husband filed a complaint for modification seeking a 

termination of his alimony and the life insurance obligations

pursuant to G. L. c. 208, § 49 (b) (4).3 Here, the parties were 

married for 226 months. By the terms of the act, the duration 

 

2 The wife is a defendant in a wrongful death case filed by 

the family of the man she killed. At the time of this trial, 

the wrongful death suit was still pending. The judge did not 

factor this lawsuit when considering the wife's financial 

condition.

3 The act provides that general term alimony shall continue 

for no longer than eighty percent of the number of months of the 

marriage, if the length of the marriage is twenty years or less, 

but more than fifteen years.
4

of the husband's alimony obligation was to be eighty percent of 

226 months or 180 months. Thus, as of January 22, 2017, the 

husband's alimony obligation should have ended. Instead, he 

made payments for longer than the maximum durational limit. On 

December 21, 2016, the judge denied, in part, the husband's 

motion for temporary orders. She ordered him to continue to pay 

alimony to the wife, but ordered the husband to pay thirty-five 

percent of his gross cash bonuses into an escrow account. At 

the time of trial, the husband had paid $63,000 into the escrow 

account.

On March 20, 2017, the wife filed an amended answer and 

counterclaim, asking that the court deviate from the durational 

limits and order a continuation of the husband's alimony, 

including the thirty-five percent of cash bonuses, and life 

insurance obligations. She also asked to be relieved from 

contributing to certain expenses of the children. Following a 

trial, the judge issued, on March 30, 2018, a modification 

judgment that terminated the husband's alimony obligation,

retroactive to the presumptive termination date of January 22, 

2017; terminated the husband's obligation to provide the wife 

life insurance; and relieved the wife of her obligation to pay 

for two of the children's cellular telephones and to pay twenty 

percent of the college expenses of the four children. The judge 

denied the wife's counterclaim for modification where she sought
5

alimony payments and an extension of those payment beyond the 

durational term limits. On that same date, the judge issued a

separate judgment on the wife's October 2017 complaint for 

contempt that found the husband not guilty of civil contempt. 

The wife appeals from both judgments.

3. Discussion. a. Durational limits on alimony. Alimony 

is "the payment of support from a spouse, who has the ability to 

pay, to a spouse in need of support for a reasonable length of 

time." G. L. c. 208, § 48. "The purpose of alimony is to 

provide adequate support for a spouse who needs it." Williams

v. Massa, 431 Mass. 619, 634 (2000). General term alimony, in 

particular, aims to support one spouse who has become 

"economically dependent" on the other. G. L. c. 208, § 48. 

Connor v. Benedict, 481 Mass. 567, 572 (2019). "A judge has 

broad discretion when awarding alimony under the statute." 

Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). Nonetheless, the 

"reasonable length of time" for which alimony payments may be 

ordered is constrained by the act, which sets presumptive 

durational limits on general term alimony. See G. L. c. 208, 

§ 49 (b). The limits are premised on the length of the parties' 

marriage; the longer the marriage, the longer the maximum 

permissible duration of alimony. In order to determine the 

duration of an award of general term alimony, therefore, a judge 

first must calculate the length of the parties' marriage. See 
6

G. L. c. 208, § 49 (b) (1)-(4); Duff-Kareores v. Kareores, 474 

Mass. 528, 535 & n.10 (2016).

b. Termination of alimony. An existing alimony award that 

exceeds the durational limits established by the act can be 

modified upon a complaint for modification without requiring a 

showing of a material change of circumstances. See St. 2011, 

c. 124, § 4 (b); Chin v. Merriot, 470 Mass. 527, 532-533, 536 

(2015) ("uncodified provisions of an act express the 

Legislature's view on some aspect of its operation"). A judge 

may order alimony to continue beyond the durational limits if 

written findings based on the evidence establish that deviation 

is "required in the interests of justice." George v. George, 

476 Mass. 65, 70 (2016), quoting G. L. c. 208, § 49 (b). "The 

recipient spouse bears the burden of proving by a preponderance 

of the evidence" that the deviation is required in the interests 

of justice. George, supra. "Further, a judge should evaluate 

the circumstances of the parties in the here and now, that is, 

as they exist at the time the deviation is sought, rather than 

the situation as it existed at the time of divorce." Id. While 

"a 'judge has broad discretion when awarding alimony under the 

[act],' the judge must consider all relevant, statutorily 

specified factors, such as those set forth in G. L. c. 208, 

§§ 49 (d) and 53 (a)" (footnote and citation omitted). DuffKareores, 474 Mass. at 535-536. The statutory factors to be 
7

considered in connection with deviation beyond the durational 

limits are set forth in G. L. c. 208, § 53 (e).4

c. The wife's financial situation. At the time of trial, 

the wife was fifty-eight years of age and worked fulltime at 

Home Depot. She earned $15.75 per hour and had the opportunity 

 

4 The factors are as follows:

"(1) advanced age; chronic illness; or unusual health 

circumstances of either party;

"(2) tax considerations applicable to the parties;

"(3) whether the payor spouse is providing health insurance 

and the cost of health insurance for the recipient spouse;

"(4) whether the payor spouse has been ordered to secure 

life insurance for the benefit of the recipient spouse and 

the cost of such insurance;

"(5) sources and amounts of unearned income, including 

capital gains, interest and dividends, annuity and 

investment income from assets that were not allocated in 

the parties['] divorce;

"(6) significant premarital cohabitation that included 

economic partnership or marital separation of significant 

duration, each of which the court may consider in 

determining the length of the marriage;

"(7) a party's inability to provide for that party's own 

support by reason of physical or mental abuse by the payor;

"(8) 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; and

"(9) upon written findings, any other factor that the court 

deems relevant and material."

G. L. c. 208, § 53 (e).
8

to work overtime. Her average gross weekly earnings were $699 

or approximately $36,000 per year. The wife paid for employerprovided health insurance. She had additional income of 

approximately $4,000 per year from renting a parking space, and 

she received mandatory IRA distributions of $15,570 per year 

from an account that she inherited after the divorce. The wife 

deferred receipt of distributions from the portion of the 

husband's pension awarded to her in the divorce.5

Following the divorce, the wife's parents established the 

Alison J. Voorhis Trust (trust), payable to the wife as sole 

beneficiary upon the last to die of the wife's parents. The 

wife's sisters were the trustees. The trust provided that the 

trustee "shall distribute to the [wife] as much of the income 

and principal of the [wife's] trust as our Trustee determines is 

necessary or advisable for the health, maintenance and support 

of the [wife]." The trust contained an IRA valued at $414,000 

and accounts at Vanguard and TD Bank. The Vanguard account was 

valued at $1,248,270.87 and the TD Bank account was valued at 

$26,558.23. Following the death of the wife's parents and after 

the wife's release from prison, the trustees paid a number of 

expenses on behalf of the wife, including: rent, a security 

 

5 At the time of trial, the distributions would have been 

nearly $17,000 per year. If she waited until the year 2024, the 

distributions were estimated to be approximately $20,000 per 

year.
9

deposit and broker fee, a computer and software, health 

insurance premiums, moving expenses, and legal fees totaling 

$96,123.91 for one year. This amount included $27,000 that the 

trust loaned to the wife for State taxes.6 The trustees declined 

the wife's request for payment of a new mattress and the monthly 

probation fee associated with her criminal conviction.7

The judge did not credit portions of the financial 

statement filed by the wife. The wife listed the value of the 

trust at zero dollars and the totality of her assets at $40,131. 

The judge, however, found the wife had assets, including the 

value of the trust, of $1,314,460. The wife called an expert 

witness, Susan Miller, who testified to financial projections 

that she ran based on the wife's financial statement. 

Notwithstanding that Miller testified that the wife would not 

run out of money until age seventy-eight, the judge did not 

credit her testimony, as she found that it was based on 

inaccurate financial information. After finding certain claimed 

expenses anticipatory, the judge determined the wife's weekly 

expenses were $1,244.

 

6 The wife also owed $167,000 for unpaid Federal taxes. She 

entered into a payment plan to pay $322 per month towards that 

debt.

7 The wife claims that it was error for the judge to 

consider the assets of the trust in her analysis; however, 

neither trustee testified and no evidence was presented to 

support her contention.
10

Since the divorce, the wife has spent in excess of $100,000 

in legal fees in connection with the criminal case and a 

wrongful death suit filed by the family of the man she killed.

d. The husband's financial situation. At the time of the 

trial, the husband was fifty-eight years of age and he had 

remarried. He remained employed with the company that he worked 

for over the past twenty-nine years, earning a base salary of 

$273,000 per year.8 In addition to his base salary, the husband 

received bonuses based on his and the company's performance. At 

the time of the trial, his most recent bonus was $180,000, and

he deposited thirty-five percent or $63,000 into the escrow 

account, pursuant to the temporary order of the court. At the 

time of the trial, the husband had assets of approximately 

$4,100,000, including $900,000 that he inherited in 2014.

Following the divorce and the wife's incarceration, the husband 

paid $600,000 in college expenses for the three eldest children 

and anticipated paying an additional $260,000 for the youngest 

child's college expenses.

e. Findings of fact and rationale. Here, it is clear from 

the judge's written findings that she properly considered the 

factors of G. L. c. 208, § 53, and made the necessary finding 

that deviation from the durational limits was not required "in 

 

8 The husband's income for 2016, totaling approximately 

$866,000, included stock that had vested in 2015.
11

the interests of justice." Among other things, the judge took 

into account the parties' ages, health, tax considerations, 

availability and cost of health and life insurance, the 

approximate nine-month premarital cohabitation,9 the wife's 

allegations of physical abuse during the marriage,10 and the 

wife's ability to support herself, including sources of unearned 

income. She also considered that the husband had custody of the 

children since the wife's incarceration, and that the husband 

had paid all of the four children's expenses, without 

contribution from the wife, including college expenses. The 

judge considered the wife's postdivorce struggle with alcohol, 

but found, in the absence of any evidence to the contrary, that 

the wife had not proved that this was a chronic illness or 

unusual health circumstance that prevented her from working.

Indeed, the judge found, with ample record support, that the 

wife was working full time, derived income from the rental of a 

parking space, and was the beneficiary of a trust. The judge 

further properly relied on other relevant factors, including the 

 

9 The judge found that there was no evidence of an economic 

partnership during these approximate nine months and accordingly 

did not add additional time to the length of the parties' 

marriage.

10 The judge found that allegations of domestic violence 

were troubling, but that the wife did not produce credible 

evidence that these allegations prevented her from working.
12

wife's inaccurate financial statement that misled the court as 

to her income and assets.

The wife focuses her claim of error on the failure of the 

judge to consider the marital lifestyle and the wife's ability 

to maintain that lifestyle. While these are appropriate 

considerations in many issues that arise in the nature, amount,

and duration of alimony pursuant to G. L. c. 208, § 53 (a), they 

do not apply to cases involving deviation from the durational 

limits. See G. L. c. 208, § 53 (e). Marital lifestyle is not 

listed as a factor in § 53 (e). Moreover, although the 

recipient's inability to provide for her own support is a factor 

to be considered in deviating from the durational limits, see 

G. L. c. 208, § 53 (e) (8), the inability to be self-supporting 

is not the same as the recipient's inability to maintain the 

marital lifestyle. When considering a deviation from the 

durational limits of alimony, the analysis is in the "here and 

now," not the marital lifestyle at the time of the divorce. 

George, 476 Mass. at 70. These are highly intensive factual 

inquiries to be made on a case-by-case basis. Accordingly, we 

discern no abuse of discretion in the judge's decision to 

decline to deviate from the presumptive duration of alimony.

f. Retroactive modification. The judge ordered the 

termination of the husband's alimony obligation retroactive to 

January 22, 2017, and ordered the wife to repay $56,608 in 
13

overpayments of alimony in a monthly amount of $500. While 

there is no statutory requirement that such orders be given 

retroactive effect, a judge has the discretion to do so. 

Boulter-Hedley v. Boulter, 429 Mass. 808, 809-810 (1999). 

Indeed, in Pierce, 455 Mass. at 305-306, the Supreme Judicial 

Court held that retroactive modification was within the judge's 

discretion, but that the judge must first make findings 

"reflecting her consideration of all the factors mandated by 

G. L. c. 208, § 34." Id. at 306. Here, there are no findings 

nor a § 34 analysis to explain the retroactive modification

requiring the wife to repay the husband $56,508 and to do so in 

a monthly amount of $500. Accordingly, that portion of the 

modification judgment is vacated and the matter is remanded. 

See Smith v. Smith, 93 Mass. App. Ct. 361, 364-366 (2018). On 

remand, the judge should consider the enforceability of the 

retroactive award, including the wife's ability to pay a sum 

certain in a specified time frame. See Poras v. Pauling, 70 

Mass. App. Ct. 535, 540 (2007), quoting Larson v. Larson, 28 

Mass. App. Ct. 338, 340 (1990) ("defendant must be found to have 

the ability to pay at the time the contempt judgment enters").

g. Contempt. Additionally, the wife contends that the 

husband should be held in contempt for failing to pay thirtyfive percent of his cash bonuses as additional alimony as 

required by the separation agreement. "To constitute civil 
14

contempt there must be a clear and undoubted disobedience of a 

clear and unequivocal command" (citation omitted). Birchall, 

petitioner, 454 Mass. 837, 851 (2009). The contempt must be 

proved by clear and convincing evidence, and the judge is to 

consider "the totality of the circumstances." Wooters v.

Wooters, 74 Mass. App. Ct. 839, 844 (2009).

We review the judge's ruling that the husband was not 

guilty of contempt for abuse of discretion. See L.F. v. L.J., 

71 Mass. App. Ct. 813, 821 (2008). Here, the wife failed to 

meet her burden. The judge found that there was a clear and 

unequivocal order, but not an undoubted disobedience. The judge 

credited the testimony of the husband, and relied on documents 

that described the mandatory deferments that vested pursuant to 

a schedule, in finding that the disputed sums were not cash 

bonuses subject to the additional alimony provision of the 

separation agreement.

4. Conclusion. The contempt judgment is affirmed. As to 

the modification judgment, the last two sentences of paragraph 

numbered one are vacated, and the matter is remanded for further 

findings consistent with this opinion.11 In all other respects 

the modification judgment is affirmed.

So ordered.

 

11 We express no view whether further hearings are 

necessary; it is within the judge's discretion whether to 

conduct additional hearings on remand.