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SJC-13473

AMY SUE OPENSHAW vs. GLEN ROMNEY OPENSHAW.

Plymouth. December 6, 2023. - March 7, 2024.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, 

& Georges, JJ.1

Divorce and Separation, Alimony, Division of property, Findings.

Statute, Construction. Words, "Marital lifestyle," "Need."

Complaint for divorce filed in the Plymouth Division of the 

Probate and Family Court Department on December 7, 2018.

The case was heard by Edward G. Boyle, III, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Jason V. Owens for the husband.

Shaun B. Spencer for the wife.

Andrea C. Kramer, Laura Gal, Kate Barry, Kimberly A. 

Bielan, & Jamie Ann Sabino, for Women's Bar Association of 

Massachusetts, Inc., amicus curiae, submitted a brief.

Margaret J. Palladino, for Mass Family Advocacy Coalition, 

amicus curiae, submitted a brief.

1 Justice Lowy participated in the deliberation on this case 

prior to his retirement.
2

WENDLANDT, J. Many married couples privileged to have 

sufficient income often, as the idiom counsels, "save something 

for a rainy day";2 they might, for example, regularly set aside a 

portion of their income to purchase stocks and bonds, rather 

than country club memberships and recreational boats. In this

case, we are asked to consider for the first time the question 

whether a judge may account for a divorcing couple's custom of 

making regular contributions to their savings plans in 

determining, under G. L. c. 208, § 53 (alimony statute or § 53), 

the amount of alimony needed to maintain the marital lifestyle. 

Where, as here, the record supports that ongoing, regular saving 

was part of the couple's standard of living during the long-term 

marriage and that the parties' combined postdissolution income 

is adequate to allow both spouses to maintain the standard of 

living enjoyed during the marriage, we conclude that such 

consideration is appropriate. 

We further conclude that the Probate and Family Court judge 

did not abuse his direction in determining the recipient 

spouse's need for support in view of her reported expenses at 

the time of the trial, but that the judge's unexplained 

allocation of over ninety-eight percent of the parties' marital 

2 The idiom may be traced back in English to the 1580s, 

appearing in the work "Bugbears": "Wold he haue me kepe nothyng 

agaynst a raynye day?" Oxford English Dictionary, https://www.

oed.com/dictionary/rainy-day_n?tab=meaning_and_use#121516965. 
3

liabilities to the payor spouse is unsupported by the judge's 

findings and at least arguably inconsistent with the judge's 

conclusion as to the equitable division of the marital estate

under G. L. c. 208, § 34. We therefore remand with instructions 

to reevaluate the portion of the judgment regarding the 

allocation of marital liabilities in light of our opinion and to 

enter a new judgment accordingly.3

1. Background.4 In August 1991, Amy Sue Openshaw (wife) 

and Glen Romney Openshaw (husband) were married in Salt Lake 

City, Utah. The couple eventually moved to Massachusetts. They 

had six children5 and enjoyed an upper middle class lifestyle; 

they funded their children's participation in extracurricular 

activities, contributed to their children's rent while the 

children attended college, sent some of their children to 

private high school, and accumulated personal property of 

significant value, such as jewelry, a collection of 

approximately twenty firearms, tools and equipment, home 

3 We acknowledge the briefs of amici curiae Mass Family 

Advocacy Coalition and Women's Bar Association of Massachusetts, 

Inc.

4 While the judge made numerous findings, we summarize only 

those findings and facts relevant to the issues on appeal. See 

Young v. Young, 478 Mass. 1, 3 (2017).

5 Three of the children remained unemancipated as of the 

date of the trial; one was enrolled in college, and the two

youngest were in high school. 
4

furnishings, fine art and antiques, and a grand piano. 

In addition, because of the couple's generous annual income 

of over $1.3 million,6 and their comparatively modest spending,7

they also routinely allocated significant portions of their 

income to investments and savings. The couple habitually 

transferred any funds not used to cover the family's immediate 

expenses to specific investment and retirement accounts on a 

monthly basis. They also consistently donated approximately ten 

percent of their income to their church in accordance with the 

tenets of their faith as members of the Church of Jesus Christ 

of Latter-day Saints.8

The parties' cumulative assets amounted to at least $4.5

million,9 several million of which was in the form of checking, 

savings, investment, and retirement accounts. The couple lived 

6 This figure represents the couple's approximate average 

annual reported gross income across 2016 and 2017, the two full 

years preceding their separation.

7 The husband asserted marital spending of $146,241 in 2016 

and $158,293 in 2017, excluding taxes and tithing. The wife's 

financial statement indicated substantially higher spending, but 

still just a fraction of marital income. 

8 The couple's joint tax returns for 2016 and 2017 show 

$131,039 and $172,167 in charitable giving, respectively. 

9 The wife's March 2021 financial statement claims assets of 

$4,575,869.40. The husband's March 2021 financial statement 

claims assets of $4,717,579.18. Both figures include the value 

of the parties' marital home, which they owned free and clear.
5

together in the marital home in Hanover, which was valued at 

over $1.2 million, until November 2018.

2. Prior proceedings. In December 2018, after nearly 

thirty years of marriage, the wife filed a complaint for 

divorce.10 At trial, the parties contested custody of their 

youngest child, alimony, child support, and the division of the 

marital estate. At the time of the trial, the wife resided in

the marital home, and the husband lived in Florida; the husband 

maintained little to no contact with any of the unemancipated

children for the two years prior to trial.11 

In June 2021, the trial judge entered a judgment of divorce

nisi, supported by a written memorandum comprising seventy-three 

enumerated paragraphs setting forth the judge's findings of fact 

as well as the rationale for his decision on the disputed 

matters. The judge granted sole legal and primary physical 

custody of the couple's minor child to the wife. Pursuant to 

the Child Support Guidelines, the judge also ordered the husband 

to pay the wife $980 per week in child support. On appeal, the 

10 The wife had also filed a complaint for divorce in June 

2017, but the parties reconciled. 

11 On November 1, 2018, the wife obtained an abuse 

prevention order against the husband on behalf of herself and 

their two then-minor children. The order expired in September 

2019.
6

husband does not contest the custody award or the amount of 

child support. 

With respect to alimony, after weighing the factors 

prescribed under the alimony statute, see discussion infra, the 

judge ordered the husband to pay $5,020 per week to the wife 

This amount was derived from the wife's reported total weekly 

spending provided on her most current financial statement, which 

included $1,000 per week in savings and $730.64 per week in 

charitable giving.12 Together with child support, the judgment

required the husband to make total weekly payments of $6,000 to 

the wife.

With respect to the division of the marital estate, the 

judge stated:

"In light of all the factors set forth in G. L. c. 208, 

§ 34, especially the disparity in the parties'

employability and opportunity to acquire future assets and 

income, the [c]ourt finds that a division of the marital 

estate with [the w]ife receiving approximately [fifty-five 

percent] and [the h]usband receiving approximately [fortyfive percent] is most equitable."

Consistent with this desired distribution of the marital estate, 

the judge divided the marital assets between the parties fiftyfive percent to forty-five percent, in favor of the wife. 

Stating that "the [c]ourt finds it equitable to order the 

parties to be responsible for the payment of the liabilities 

12 The judge excluded some of the wife's claimed expenses 

from his calculation. See infra, note 21.
7

listed in his or her individual name," the judge assigned to the

husband liabilities of approximately $343,280 and consisting 

almost entirely of the family's income taxes incurred in tax 

years 2020 and 2021. The wife was assigned liabilities of 

$5,032.91. This distribution of the parties' liabilities left 

the wife with approximately fifty-nine percent of the parties'

marital estate, and the husband with forty-one percent.13 The 

judge did not address the resulting deviation from the division 

of the marital estate that he had found to be "most equitable."

After the judgment entered, the husband timely appealed, 

and we transferred the case to this court on our own motion. 

3. Discussion. a. Alimony. "Alimony" is defined in the 

Alimony Reform Act of 2011, St. 2011, c. 124 (act), as "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, 

under a court order." G. L. c. 208, § 48. The power to award 

alimony is governed by the alimony statute. See G. L. c. 208, 

§ 53. See also Zaleski v. Zaleski, 469 Mass. 230, 233 (2014), 

quoting Gottsegen v. Gottsegen, 397 Mass. 617, 621-624 (1986)

(power to award alimony is "wholly statutory"). The statute 

provides:

13 Applying the figures supplied by the wife in her 

financial statement, the division skews slightly more in favor 

of the wife.
8

"In determining the appropriate form of alimony and in 

setting the amount and duration of support, a court shall 

consider: the length of the marriage; age of the parties; 

health of the parties; income, employment and employability 

of both parties, including employability through reasonable 

diligence and additional training, if necessary; economic 

and non-economic contribution of both parties to the 

marriage; marital lifestyle; ability of each party to 

maintain the marital lifestyle; lost economic opportunity 

as a result of the marriage; and such other factors as the 

court considers relevant and material" (emphases added).

G. L. c. 208, § 53 (a).

i. Saving. The husband first contends that the judge 

improperly considered the parties' custom of allocating a 

significant portion of income as savings in setting the amount 

of spousal support payable to the wife.14 The husband's 

challenge to the spousal support order raises a question of 

statutory construction, which we review de novo. See Cavanagh

v. Cavanagh, 490 Mass. 398, 405 (2022). 

14 We have not had occasion previously to address the 

question whether saving, when it is a regular practice during 

the marriage, may be considered in determining the amount of 

spousal support. Contrary to the husband's contention, the 

Appeals Court did not address the issue in Cooper v. Cooper, 62 

Mass. App. Ct. 130 (2004). Cooper concerned the propriety of an 

order modifying alimony based on the wife's postdivorce 

lifestyle rather than on the need to maintain the marital 

lifestyle. Id. at 140. Because the judge did not apply the 

appropriate material change in circumstances standard for 

revising alimony awards, among other errors, the Appeals Court 

remanded the matter. See id. The husband's reliance on A.M. v. 

R.M., 95 Mass. App. Ct. 1120 (2019), similarly is misplaced. 
9

Our analysis begins with the alimony statute's plain 

language. See Metcalf v. BSC Group, Inc., 492 Mass. 676, 681 

(2023). 

"[A] statute must be interpreted according to the intent of 

the Legislature ascertained from all its words construed by 

the ordinary and approved usage of the language, considered 

in connection with the cause of its enactment, the mischief 

or imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers 

may be effectuated" (citation omitted).

Harvard Crimson, Inc. v. President & Fellows of Harvard College, 

445 Mass. 745, 749 (2006). "Ordinarily, where the language of a 

statute is plain and unambiguous, it is conclusive as to 

legislative intent." Sharris v. Commonwealth, 480 Mass. 586, 

594 (2018), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 

444 (2008).15 We "look to the statutory scheme as a whole, so as 

to produce an internal consistency within the statute"

(quotations and citations omitted). Plymouth Retirement Bd. v. 

Contributory Retirement Appeal Bd., 483 Mass. 600, 605 (2019).

A. Marital lifestyle. As set forth supra, the alimony 

statute enumerates certain factors, including the parties'

"marital lifestyle" and the "ability of each party to maintain 

the marital lifestyle," that the judge must consider in 

15 "Where the statutory language is not conclusive, we may 

'turn to extrinsic sources, including the legislative history 

and other statutes, for assistance in our interpretation.'" 

HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 332-333 (2022), 

quoting Chandler v. County Comm'rs of Nantucket County, 437 

Mass. 430, 435 (2002). 
10

determining alimony. G. L. c. 208, § 53 (a). The wife 

maintains that, because the parties' custom of saving underlay 

the parties' standard of living, the judge appropriately 

considered saving in connection with his mandatory consideration 

of the parties' "marital lifestyle." We agree.

The plain meaning of "marital lifestyle" is the 

characteristic manner in which the couple chose to live their 

life during the marriage. See Young v. Young, 478 Mass. 1, 6 

(2017), quoting Inker, Alimony and Assignment of Property: The 

New Statutory Scheme in Massachusetts, 10 Suffolk U. L. Rev. 1, 

8 (1975) (marital lifestyle pertains to "the manner of living to 

which [the spouses have] been accustomed," and term "focus[es] 

on the spouses' lifestyle during the marriage"); Oxford English 

Dictionary, https://www.oed.com/dictionary/lifestyle_n?tab

=meaning_and_use#39115718 (defining "lifestyle" as "[a] style or 

way of living"; "characteristic manner in which a person lives 

[or chooses to live] [one's] life"); Oxford English Dictionary, 

https://www.oed.com/dictionary/marital_adj?tab=meaning_and_use#3

8088113 (defining "marital" as "[o]f or relating to marriage, or 

the relations between [spouses]"). 

As it regards the couple's financial decisions, "marital 

lifestyle" includes the typical way the parties regularly 

allocated their income during the marriage; to be considered the 

marital lifestyle, such allocations must be so customary as to 
11

identify the parties' financial decision-making during the 

marriage. See Oxford English Dictionary, https://www.oed.com/

dictionary/characteristic_n?tab=meaning_and_use#9590365

(defining "characteristic" as something "[t]hat serves to 

identify or to indicate the essential quality or nature of a 

person or thing; distinctive; typical"). Accord Rhew v. Rhew, 

138 N.C. App. 467, 473 (2000) ("the trial court can properly 

consider the parties' custom of making regular additions to 

savings plans as a part of their standard of living in 

determining the amount and duration of an alimony award" where 

"[e]vidence was presented that established an historical pattern 

of such contributions" [citation omitted]); Bakanowski v. 

Bakanowski, 2003 UT App 357, ¶ 16 (inclusion of saving as part 

of needs analysis permissible where contribution to savings 

accounts "was standard practice during the marriage and helped 

to form the couple's marital standard of living"). 

Thus, the plain meaning of the alimony statute's directive 

that the judge must consider the "marital lifestyle" and the 

"ability of each party to maintain the marital lifestyle" 

requires consideration of saving where the evidentiary record 

shows it was a regular practice during the marriage. G. L. 

c. 208, § 53 (a). These statutory terms encompass not just 

consumption spending on goods and services, but also the 
12

deliberate choice during the marriage to devote income to 

savings regularly. 

B. Need. This construction of "marital lifestyle" as 

permitting the consideration of the couple's pattern of 

contributions toward savings is buttressed by G. L. c. 208, 

§ 53 (b), which provides in relevant part: "the amount of 

alimony should generally not exceed the recipient's need."16 The 

term "need" is not defined; however, in view of the alimony 

statute's enumerated factors, we have stated that

"the need for support of the recipient spouse (here, the 

wife) under general term alimony[17] is the amount required 

to enable her to maintain the standard of living she had at 

the time of the separation leading to the divorce"

(emphasis added).

16 General Laws c. 208, § 53 (b), provides in full:

"Except for reimbursement alimony or circumstances 

warranting deviation for other forms of alimony, the amount 

of alimony should generally not exceed the recipient's need 

or 30 to 35 per cent of the difference between the parties'

gross incomes established at the time of the order being 

issued. Subject to subsection (c), income shall be defined 

as set forth in the Massachusetts child support 

guidelines."

The husband does not challenge the spousal support order on the 

ground that it exceeds the "presumptive parameters" that the 

amount should not exceed from thirty to thirty-five per cent of 

the parties' income differential. See Young, 478 Mass. at 6. 

17 The present case concerns general term alimony, in light 

of the length of the marriage. See G. L. c. 208, § 48.
13

Young, 478 Mass. at 2-3. Where the parties' combined income is 

adequate to allow both spouses to maintain the standard of 

living enjoyed during marriage, "the recipient spouse's need for 

support is generally the amount needed to allow that spouse to 

maintain the [marital] lifestyle he or she enjoyed prior to 

termination of the marriage."18 Id. at 6, quoting Pierce v. 

Pierce, 455 Mass. 286, 296 (2009). See 1 Lindey and Parley on 

Separation Agreements and Antenuptial Contracts § 22.63[2][e] 

(2d ed. 2023) ("standard of living experienced during the 

several years before the divorce" relevant for alimony 

determination is preseparation standard of living); L.D. Wardle 

& L.C. Nolan, Fundamental Principles of Family Law 715 (2d ed. 

2006) ("the historic base line for measuring need has been the 

standard of living the parties enjoyed during the marriage"). 

Thus, where the parties have a combined income sufficient 

to permit both spouses to maintain the marital standard of 

living, the statute's limitation that the amount of alimony 

generally should not exceed the recipient spouse's need for 

support depends on the parties' marital lifestyle. In other 

18 By contrast, "[w]here, as so often happens, the couple's 

collective income is inadequate to allow both spouses to 

maintain the lifestyle they enjoyed during the marriage after 

their household is divided in two through divorce, '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."'" Young, 478 Mass. at 

7, quoting Pierce v. Pierce, 455 Mass. 286, 296 (2009). 
14

words, "'need' is a relative term for purposes of the act, [and] 

it must be measured in light of mandatory considerations that 

include the parties' marital lifestyle." Zaleski, 469 Mass. at 

243. See Young, 478 Mass. at 7 ("the parties' needs expanded in 

accordance with the increasingly available income during the 

marriage" [quotation omitted]). 

For example, where the parties' marital lifestyle at the 

time of their separation included lavish spending on luxuries, 

such as expensive vacations, high-end vehicles, art collections, 

and recreational boats, such discretionary spending is material 

to determining the amount of spousal support. See, e.g., Young, 

478 Mass. at 4 (considering spousal support judgment in view of 

parties' lavish lifestyle during marriage, which included owning 

extravagant principal residence, maintaining Nantucket summer 

home, driving luxury vehicles, regularly dining out, enjoying 

expensive vacations, and purchasing luxury goods); D.L. v. G.L., 

61 Mass. App. Ct. 488, 490 (2004) (factoring in spending on "the 

finest furniture, rugs, china, and jewelry," extensive travel, 

frequent entertaining, and membership in private social clubs, 

among other luxuries). Thus, the couple's customary financial 

decisions during the marriage regularly to allocate income for 

savings, no less than their consumption spending, must be 

considered where it characterized the parties' marital lifestyle 

and defined their standard of living. 
15

Where the family budget during the marriage is 

characterized by regular saving, fewer resources necessarily are 

available for pure consumption spending. If, as the husband 

maintains, alimony strictly is measured by the marital level of 

consumption on goods and services, then the recipient spouse 

either must reduce that level of consumption in order to 

continue the pattern of saving that characterized the marital 

lifestyle or must abandon the practice altogether. See, e.g., 

In re Marriage of Drapeau, 93 Cal. App. 4th 1086, 1096 (2001)

(Drapeau) (purpose of couple's saving was to retire early, goal 

which payor spouse could achieve but payee spouse could not 

without savings alimony); Vadala v. Vadala, 145 N.C. App. 478,

479 (2001) (without savings alimony spouse "will be forced to 

work much longer than she would have, had she continued to enjoy 

the standard of living to which she had become accustomed during 

her marriage, since she is unable to accumulate savings of an 

amount that would allow her to retire"). Such a construction 

would frustrate the alimony statute's purpose of maintaining 

each spouse's marital lifestyle where the parties' 

postdissolution income makes that outcome possible.

Because it is the manner in which a couple consistently 

allocated marital income -- not just how they spent it on dayto-day expenses and luxuries -- that determines their standard 

of living during the marriage, nothing in the limitation that 
16

the alimony award generally must not exceed the recipient 

spouse's "need," see G. L. c. 208, § 53 (b), precludes a judge 

from considering the parties' regular practices of saving.

"[T]here is no demonstrable difference between one family's 

habitual use of its income to fund savings and another family's 

use of its income to regularly purchase luxury cars or enjoy 

extravagant vacations." Lombardi v. Lombardi, 447 N.J. Super. 

26, 39 (App. Div. 2016). "[I]t would be a perverse state of the 

law if we, as a rule, always included in an alimony calculation 

all sums parties spent, even imprudently, but excluded sums 

wisely saved." Mintz v. Mintz, 2023 UT App. 17, ¶ 26. It would 

in effect "penalize those who are prudent enough to save during 

marriage." Drapeau, 93 Cal. App. 4th at 1096. 

C. Division of marital estate. The husband contends that

a couple's habit of saving cannot be considered in setting the 

amount of alimony because it is already subsumed in the marital

estate in the form of assets; as such, the husband argues,

saving already is considered in connection with the division of 

the marital estate under G. L. c. 208, § 34.19 That provision 

19 General Laws c. 208, § 34, provides in part:

"In addition to or in lieu of a judgment to pay alimony, 

the court may assign to either husband or wife all or any 

part of the estate of the other, including but not limited 

to, . . . funds accrued during the marriage and which shall 

include, but not be limited to, retirement benefits, 

military retirement benefits if qualified under and to the 
17

enumerates "the opportunity of each [party] for future 

acquisition of capital assets and income" as one factor that the 

judge must weigh in equitably distributing the parties' marital 

property. The husband argues that this factor therefore 

precludes the judge from considering the parties' habit of 

saving portions of their income during the marriage as an 

element of the parties' "marital lifestyle" under the alimony 

statute. 

Of course, the division of marital property pursuant to 

G. L. c. 208, § 34, and the provision of alimony pursuant to 

§ 53, are to be considered in relation to each other. See D.L., 

61 Mass. App. Ct. at 508 ("alimony and property division . . . 

are interrelated remedies that cannot be viewed apart"). Both 

alimony, under § 53, and the division of the marital estate, 

under § 34, are committed to the sound discretion of the trial 

judge to balance equitably, and the judge may adjust the award 

of each in relation to the other. See id. 

extent provided by [F]ederal law, pension, profit-sharing, 

annuity, deferred compensation and insurance. 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, the 

opportunity of each for future acquisition of capital 

assets and income, and the amount and duration of alimony, 

if any, awarded under [G. L. c. 208, §§] 48 to 55, 

inclusive" (emphasis added).
18

While the husband is correct that the judge must ensure 

that the financial arrangement is fair "as a whole," Hassey v. 

Hassey, 85 Mass. App. Ct. 518, 523 n.12 (2014), quoting Grubert

v. Grubert, 20 Mass. App. Ct. 811, 822 (1985), nothing in § 34 

precludes consideration of the parties' custom of allocating 

substantial portions of their income to savings as part of the 

"marital lifestyle" under § 53. To be sure, an equitable 

distribution of the marital estate ensures that both parties 

reap the benefits of regular saving during the marriage in the 

form of the marital assets. However, where, as here, the 

parties' postdissolution income is sufficient for each party to 

continue to live the marital lifestyle, if routine saving is not 

considered in connection with the determination of alimony, the 

recipient spouse will be forced to rely on the appreciation of 

current assets while the payor spouse will be able to continue 

the full extent of the marital lifestyle, including regular 

saving. See Lombardi, 447 N.J. Super. at 40 ("it is not 

equitable to require [the wife] to rely solely on the assets she 

received through equitable distribution to support the standard 

of living while [the husband] is not confronted with the same 

burden"). 

Accordingly, we conclude that where, as here, a married 

couple has an established practice of saving during the 

marriage, a judge properly may consider such saving as a 
19

component of the couple's marital lifestyle in awarding alimony. 

In doing so, we join the vast majority of jurisdictions to have

considered the issue.20 We realize that not everyone's resources 

20 See In re Marriage of Weibel, 965 P.2d 126, 129-130 

(Colo. App. 1998) ("an appropriate rate of savings . . . can, 

and in an appropriate case should, be considered as a living 

expense when considering an award of, or reduction in, 

maintenance"); In re Marriage of Stenzel, 908 N.W.2d 524, 536 

(Iowa Ct. App. 2018) ("retirement savings in a reasonable sum 

may be a part of the needs analysis in fixing spousal support"); 

Lombardi, 447 N.J. Super. at 29-30 ("regular savings must be 

considered in a determination of alimony"); Rhew, 138 N.C. App. 

at 473 (trial judge should have considered "savings made in 

accordance with a pre-existing pattern in determining 

defendant's accustomed standard of living"); LaVoi v. LaVoi, 

505 N.W.2d 384, 387 (N.D. 1993) (upholding lower court's spousal 

support award, which afforded wife "a modest opportunity to plan 

some retirement savings"); Bakanowski, 2003 UT App 357, ¶ 16

("The critical question is whether funds for post-divorce 

savings, investment, and retirement accounts are necessary 

because contributing to such accounts was standard practice 

during the marriage and helped to form the couple's marital 

standard of living"); Miller v. Cox, 44 Va. App. 674, 686 (2005) 

(consideration of savings during marriage allows payee spouse to 

"continue to save money and invest it in a manner to which she 

was accustomed during the marriage"); Hubert v. Hubert, 159 

Wis. 2d 803, 820 (Ct. App. 1990) (trial judge erred by not 

"set[ting] maintenance at a level that would permit [the wife] 

to continue saving and investing," thereby failing "to maintain 

a standard of living reasonably comparable to that which she 

enjoyed before the divorce"). See also Rainwater v. Rainwater, 

177 Ariz. 500, 505 (Ct. App. 1993) ("[H]usband objects that 

wife's expenses were overstated by the amount of $337.60 for 

monthly savings and retirement contributions. Husband, however, 

has cited no authority for the proposition that this is an 

illegitimate expense item"); Drapeau, 93 Cal. App. 4th at 1098 

("trial court should have considered the parties' practice of 

savings as an element in their [marital standard of living]").

But see Mallard v. Mallard, 771 So. 2d 1138, 1140-1141 (Fla. 

2000) (rejecting savings alimony); Kuroda v. Kuroda, 87 Haw.

419, 429-430 (Ct. App. 1998) (same). 
20

permit such saving during the marriage, and that in many cases 

the parties' financial circumstances after dissolution may 

require that the standard of living enjoyed during the marriage 

be curtailed. In the circumstances presented here, however, as

the couple's combined postdissolution income is adequate to 

allow both spouses to maintain the marital standard of living,

the judge properly considered the parties' practice of saving as 

an element of their marital lifestyle. 

ii. Financial support for wife's expenses. The husband 

also challenges the judge's decision to credit the wife's 

financial statement disclosing her expenses at the time of trial 

and to base the alimony award on her current reported spending 

rather than on the husband's accounting of the household's 

spending in the three years prior to the couple's separation.

In determining whether to award spousal support, and the 

amount thereof, under G. L. c. 208, § 53, a trial judge enjoys

"broad discretion." Young, 478 Mass. at 5-6, quoting Zaleski, 

469 Mass. at 235. Such an award "will not be disturbed on 

appeal unless plainly wrong and excessive" (quotation omitted).

Zaleski, supra at 236, quoting Heins v. Ledis, 422 Mass. 477, 

481 (1996). See Cavanagh, 490 Mass. at 405 (on appeal, our 

review is only for abuse of discretion). Instead, we confine 

our review to determining whether the judge's factual findings

that the parties challenge on appeal are clearly erroneous, 
21

whether the judge considered the required statutory factors, 

whether the judge relied on any irrelevant factors, and whether 

the reasons for the judge's conclusions are "apparent" from the 

judge's findings. Zaleski, supra at 235-236. 

The husband is correct that the proper measure of the 

recipient's need for support is "the marital lifestyle the 

parties enjoyed during the marriage, as established by the judge 

at the time of the order being issued." Young, 478 Mass. at 7. 

However, the crux of the husband's claim is not that the judge 

neglected this instruction; instead, his argument is that the 

judge credited the wrong evidence in determining the wife's 

need. Such determinations fall squarely within the judge's 

broad discretion. See id. at 5.

In financial filings, the husband represented that, 

excluding taxes and tithing, the family spent $193,203 in 2015, 

$146,241 in 2016, and $158,293 in 2017 (the three full years 

preceding separation).21 The judge found, however, that the 

husband's accounting failed "to recognize that a significant 

aspect of the parties' marital lifestyle was saving." 

21 As the wife aptly notes, the husband failed to include 

the bases for these calculations in the record on appeal. "The 

burden is on the appellant to ensure that an adequate record 

exists for an appellate court to evaluate." Commonwealth v. 

Woods, 419 Mass. 366, 371 (1995). Accordingly, there is no 

record basis to assess the husband's assertions as to the 

household's expenses for these years.
22

Accordingly, the judge did not use the husband's reported 

figures to determine the amount of alimony. 

The judge further considered the husband's report of the 

wife's spending following their separation. Specifically, the 

husband calculated that the wife spent $79,704.09 in 2018, 

$92,623.78 in 2019, and $224,144.64 in 2020. The judge found, 

however, that the wife's spending in these years was limited by 

the amount of support she received. Accordingly, he also 

declined to use these figures in calculating the alimony award. 

This determination that the wife's artificially constrained 

spending from 2018 through 2020 was not a reliable proxy for the 

marital lifestyle is well founded.

The judge instead credited portions of the wife's current 

financial statement as the best available record of the amount 

needed to maintain her marital lifestyle. He did not accept the 

wife's report blindly; he scrutinized the financial statement, 

crediting some expenses but excluding others to determine the 

wife's need for support.22 The judge's decision to credit this 

evidence followed a four-day trial, which included oral 

testimony and exhibits setting forth both parties' financial 

22 Specifically, the wife reported a combined child support 

and alimony need of $7,754.97 per week. The judge subtracted

the wife's "anticipated expenses and accountant fees" and added

a weekly housing expense (because of the expected sale of the 

marital home), as well as a weekly medical insurance expense.
23

submissions. On this record, we cannot say that the judge erred 

in relying on financial statements filed shortly before trial to 

evaluate need based on the parties' lifestyle during the 

marriage.23 See generally Massachusetts Divorce Law Practice 

Manual § 6.4 (Mass. Cont. Legal Educ. 4th ed. 2019 & Supp. 2021)

("The financial statement . . . provides information relevant to 

the factors that must be considered when determining the 

appropriate form, amount, and duration of alimony. . . . As an 

exhibit, the statement can take the place of the attorney orally 

asking all the questions on the statement and receiving oral 

answers").24

23 Notably, the wife's financial statements showed expenses 

far below the husband's own average weekly spending of 

approximately $14,000 during the period between separation and 

trial, even though the wife lived with and cared for their minor 

child while the husband lived alone in an undisclosed location 

in Florida for much of the separation period.

24 See also Young, 478 Mass. at 3-5 (in divorce action 

initiated in January 2013, trial judge evaluated, but ultimately 

did not credit fully, financial statements filed in October 2013 

and September 2014 in assessing alimony amount for judgment 

issued in September 2015); C.D.L. v. M.M.L., 72 Mass. App. Ct. 

146, 152 (2008) (trial judge determined wife's needs by 

beginning with wife's "most recent financial statement"); Rule 

401 of the Supplemental Rules of the Probate and Family Court 

(2012) (parties are required to submit financial statements 

showing, inter alia, "current income and expenses" within fortyfive days of service of summons, and judge "may require . . . 

during the pendency of a . . . divorce action . . . a new 

financial statement containing current information"); Uniform

Probate Court Practice XXX (1982) ("No complaint for divorce 

. . . shall be marked for a hearing unless a financial statement 

of each party is on file with the court"). Cf. D.B. v. J.B., 97 

Mass. App. Ct. 170, 177 (2020) ("although the judge was unable 
24

Moreover, where the family earned approximately $1.3 

million per year in 2016 and 2017, and the husband's 

postseparation expenses exceeded what he claimed the entire 

family spent preseparation -- despite the wife retaining primary 

responsibility for the unemancipated children -- we see no error 

in the judge's decision to discredit the husband's assertion 

that the needs of the marital lifestyle required only ten to 

fifteen percent of the household income. The judge acted within 

his discretion in determining that the evidence submitted by the 

wife reflected a valid assessment of the marital lifestyle. 

The husband's challenge to the evidentiary basis for the 

wife's saving also fails. Evidence elicited at trial supports a

conclusion that the parties' marital lifestyle included a 

pattern and practice of saving.25 Because we conclude that a 

to determine the wife's 'true need' based on her financial 

statement, given the discretion afforded by the act, it was 

permissible for her instead [or in addition] to consider the 

various mandatory and discretionary factors as prescribed by 

[G. L. c. 208, § 53 (a),] to fashion an alimony award that would 

be appropriate in providing the wife the means to maintain the 

marital lifestyle").

25 The couple's income in 2016 and 2017, the two full years 

preceding the parties' separation, exceeded $1.3 million per 

year. According to the husband's figures, the couple spent only 

$146,241 in 2016 and $158,293 in 2017 (and donated an additional 

$131,039 and $172,167 in each year, respectively). The husband 

testified that he tried to "keep as little amount of cash as 

possible in cash accounts"; he would "look out over the next 

month or two or three and try to estimate what those expenses 

are going to be and . . . try to budget for those with cash,"

and when he had additional cash he would "try to get that into 
25

judge may consider a marital practice of saving in determining a 

recipient spouse's need, and the record supports such a routine 

practice here, the judge did not abuse his discretion by 

factoring the parties' marital practice of saving into the 

alimony award.26

Finally, the judgment, findings, and rationale of the judge 

reflect that he considered and weighed each of the mandatory 

factors required by G. L. c. 208, § 53 (a). Therefore, we 

conclude that the trial judge did not abuse his discretion in 

connection with the amount of weekly spousal support. 

b. Division of liabilities. The husband also challenges 

the judge's division of the parties' liabilities. The power to 

make an equitable division of the marital estate is entrusted to 

the judge's discretion, and we review the decision to ensure the 

judge properly relied on the statutory factors enumerated in

G. L. c. 208, § 34. Adams v. Adams, 459 Mass. 361, 371 (2011), 

S.C., 466 Mass. 1015 (2013). We must determine "whether the

reasons for the judge's conclusions are apparent in his findings 

one of the securities investment accounts." The wife identified 

particular accounts that were used for savings, investments, and 

retirement funds. Financial statements identifying these 

accounts, along with their values, were included in the record. 

The evidence more than supported the wife's reported amount of 

weekly saving.

26 The husband misstates that the wife conceded that the 

husband's calculations were accurate. 
26

and rulings" (quotation and citation omitted). Id. The judge's 

decision as to equitable distribution is subject to reversal 

only if the division was "plainly wrong and excessive." 

Zaleski, 469 Mass. at 245, quoting Baccanti v. Morton, 434 Mass. 

787, 793 (2001). 

In dividing the marital estate, exact "[m]athematical 

precision is not required." Ross v. Ross, 50 Mass. App. Ct. 77, 

81 (2000), quoting Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 

861 (1989) (accepting trial judge's approximate valuation of 

marital estate). However, "[i]t is the duty of the reviewing 

court to consider whether the apportionment of assets flows 

rationally from the judge's findings under § 34." Calvin C. v. 

Amelia A., 99 Mass. App. Ct. 714, 727 (2021), quoting Casey v. 

Casey, 79 Mass. App. Ct. 623, 629 (2011) (reversing judgment 

where judge ordered equal division of marital estate equity but 

assigned obligation to repay one shared liability solely to 

husband, substantially reducing his share of estate equity). 

See Martin v. Martin, 29 Mass. App. Ct. 921, 921 (1990) 

(findings must "lead logically to" result).

Here, the judge concluded that "a division of the marital 

estate with [the w]ife receiving approximately [fifty-five 

percent] and [the h]usband receiving approximately [forty-five 

percent] is most equitable." Accordingly, the judge awarded 
27

fifty-five percent of the marital assets to the wife and fortyfive percent to the husband. 

With regard to marital liabilities, however, the judge 

assigned to each spouse the liabilities listed in his and her

own name, resulting in the wife being responsible for just 

$5,032 in liabilities, and the husband $343,280, or 98.6 percent

of the total marital debts. While the liabilities assigned to 

the wife consisted solely of credit card bills, all but $280 of 

the liabilities assigned to the husband were for the family's 

unpaid tax debt incurred in 2020 and 2021. This assignment of 

liabilities skewed the net division of the marital estate to a

split of approximately fifty-nine percent to forty-one percent.27 

The record does not reveal the rationale for this deviation of 

over $300,000 from the judge's stated intent to divide the 

marital estate with fifty-five percent to the wife and fortyfive percent to the husband. See Calvin C., 99 Mass. App. Ct. 

at 727; Martin, 29 Mass. App. Ct. at 921. Moreover, the judge 

did not articulate any reason why these liabilities, which 

consisted primarily of the family's tax debt, should be assigned 

27 The wife notes that the judge's stated goal was to divide 

the marital estate between the parties "approximately" fiftyfive percent to forty-five percent, rather than to divide the 

estate "exactly" in that manner, and that therefore the 

assignment of liabilities was not inconsistent with the judge's 

determination. But, here, the extent of the deviation is 

substantial and unexplained. 
28

solely to the husband, aside from noting that the wife "acted 

within her right to file [taxes] separately." While the wife 

very well may have been entitled to file separately, that right 

does not bear on the equitable division of the tax debt, the

primary marital liability. Accordingly, we conclude that the 

division of liabilities was erroneous.28

4. Conclusion. So much of the judgment of the Probate and 

Family Court as addressed the division of liabilities is 

vacated; the judgment is otherwise affirmed, and the matter is 

remanded for further proceedings consistent with this opinion.

So ordered.

28 As discussed supra, the judge addressed not only the 

financial obligations of the parties going forward, but also the 

contested legal and physical custody of their youngest child. 

In determining custody, parental conduct may be an appropriate 

consideration. See, e.g., Hunter v. Rose, 463 Mass. 488, 494-

495 (2012) ("Factors a judge may weigh are whether one parent's 

home is more stable in terms of a parent's work schedule, 

whether siblings are being raised together, and whether one 

parent seeks to undermine the relationship a child has with the 

other parent"). Moreover, "conduct having an adverse impact on 

the marriage or the marital estate" is, in limited 

circumstances, a valid consideration in determining the 

equitable division of property. Kittredge v. Kittredge, 441 

Mass. 28, 38 (2004). Contrary to the husband's contention, 

nothing in the judgment indicates that the judge improperly 

relied on the husband's "blameworthy conduct" in dividing the 

marital estate. Putnam v. Putnam, 5 Mass. App. Ct. 10, 15-16 

(1977).