Openshaw v. Openshaw

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

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

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

2017, but the parties reconciled.

11On 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 [forty-

five percent] is most equitable."

Consistent with this desired distribution of the marital estate,

the judge divided the marital assets between the parties fifty-

five 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

12The 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:

13Applying 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).

14We 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.

17The 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

18By 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 day-

to-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

20See 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."

21As 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

22Specifically, 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

23Notably, 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.

24See 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 forty-

five 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").

25The 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.

26The 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 forty-

five 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 forty-

five 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

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

the marital estate between the parties "approximately" fifty-

five 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).