Chryseis O. Fox v. Peter D. Clift.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-519

CHRYSEIS O. FOX

vs.

PETER D. CLIFT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Peter D. Clift (husband), the former spouse of Chryseis O.

Fox (wife), initiated divorce proceedings in Louisiana shortly

before the wife filed a complaint for divorce in Massachusetts.

The husband did not object to the Massachusetts proceedings;

instead, he chose to not file an appearance and refused to

participate. 1 The Louisiana court issued a judgment that

dissolved the parties' marriage but did not address property

division or alimony. Thereafter, the wife's amended complaint

seeking property division and alimony proceeded to a one-day

1The husband did not participate in the proceedings below
until February 2023, when his counsel filed a limited notice of
appearance and a notice of appeal from the judgment at issue in
this case.
trial in Massachusetts, which neither the husband nor his

counsel attended. A judge of the Probate and Family Court

issued a judgment in January 2023, awarding the wife

approximately sixty-four percent of the marital estate, alimony

equivalent to thirty-five percent of the difference between the

parties' incomes, and $76,318.95 in attorney's fees. The

husband appeals from the January 2023 judgment, claiming error

in (1) the judge's failure to stay the Massachusetts proceedings

sua sponte where the husband filed the Louisiana divorce action

first; and (2) the overall financial award to the wife (property

division, alimony, and attorney's fees), which he claims was

inequitable, plainly wrong, and excessive. We affirm.

Background. We summarize the trial judge's relevant

findings, supplementing them with undisputed facts in the record

and reserving other facts for later discussion. See Pierce v.

Pierce, 455 Mass. 286, 288 (2009). The parties were married in

Texas in September 1994. In May 1995, they moved to

Massachusetts after the husband, a "renowned geologist,"

accepted a job offer on Cape Cod. The parties purchased the

marital home located in Falmouth in December 1995, which

remained their primary marital residence until their separation

2
in 2021. 2 In 2012, the husband accepted a teaching position at

Louisiana State University (LSU). 3 The parties purchased a

second home in Louisiana where the husband resided while

teaching; he returned to the Falmouth marital home to live with

the wife during holidays, school breaks, and long weekends every

four to six weeks. While the husband was in Louisiana, he would

send the wife "affectionate" correspondence, including as

recently as February 2021.

In May 2021, the husband filed a petition for divorce in

Louisiana (which was served on the wife on June 2, 2021). On

June 17, 2021, the wife filed a complaint for divorce in

Massachusetts. The wife disclosed the pending Louisiana divorce

action in her complaint. The husband was served with the wife's

complaint in hand and apparently began the process of retaining

an attorney in Massachusetts; however, he ultimately chose not

to participate in the Massachusetts proceedings on the advice of

his Louisiana divorce counsel. On January 5, 2022, the

2 They also purchased a second home in Cambridge in 1999;
however, they sold it approximately five or six years later. In
2004 or 2005, the parties temporarily lived together in Scotland
while the husband worked in a research position at the
University of Aberdeen.

3 After the husband began teaching at LSU, he continued to
receive mail at the Falmouth marital home and listed the
Falmouth marital home as his address on credit applications. He
filed joint tax returns with the wife in Massachusetts, as a
"part-year resident."

3
Louisiana Family Court issued a judgment of divorce (Louisiana

divorce judgment) dissolving the parties' marriage. The

Louisiana divorce judgment contained no provisions for property

division or alimony.

On January 31, 2022, the wife filed an amended complaint in

Massachusetts requesting alimony and equitable division of

assets pursuant to G. L. c. 208, §§ 34, 48-55. Following a one-

day trial in October 2022, the judge issued the January 2023

judgment providing, in relevant part, that (1) the husband shall

pay alimony of $4,695 per month (which obligation shall not

terminate on his attainment of full retirement age, instead

continuing until either party's death or the wife's remarriage);

(2) the wife shall receive approximately sixty-four percent of

the marital estate assets, including the Falmouth property and

between sixty to seventy percent of the husband's various

retirement accounts; and (5) the husband shall pay the wife

$76,318.95 as partial reimbursement for her attorney's fees and

costs. The present appeal by the husband followed.

Discussion. 1. "First-filed" rule. The husband first

contends that because he filed and served his Louisiana petition

for divorce before the wife filed her complaint in

Massachusetts, the judge erred in failing to stay, sua sponte,

4
the Massachusetts action. 4 The husband asserts that by allowing

the two actions to proceed simultaneously, rather than staying

the Massachusetts action until the conclusion of the Louisiana

action, the judge erroneously failed to adhere to the "first-

filed rule." We are not persuaded.

We agree with the wife that the husband has waived this

argument by failing to raise it in the trial court below. By

his own admission, the husband made a tactical decision to

abstain from participating in the Massachusetts proceedings.

There was nothing preventing the husband from filing a limited

appearance for the purpose of requesting a stay; however, he did

not do so. As the husband acknowledged in his brief and at oral

argument, the decision whether to grant a stay on the basis of

the first-filed rule is discretionary. 5 See Exxon Mobil Corp. v.

Attorney Gen., 479 Mass. 312, 329 (2018), cert. denied, 139 S.

Ct. 794 (2019). It is difficult to conceive how the judge here

4 The husband has not challenged, either below or on appeal,
the Probate and Family Court's personal jurisdiction or subject
matter jurisdiction. While the latter cannot be waived, see
Commonwealth v. Nick N., 486 Mass. 696, 702 (2021), there is no
question that the Probate and Family Court judge had subject
matter jurisdiction to adjudicate the wife's requests for
property division and alimony. See G. L. c. 208, § 34; G. L.
c. 215, §§ 3, 6.

5 The similar doctrine of forum non conveniens also involves
a discretionary decision whether to allow another forum to
proceed. See Joly v. Albert Larocque Lumber Ltd., 397 Mass. 43,
44 (1986).

5
could have abused discretion that she was never asked to

exercise. Cf. Commonwealth v. Giontzis, 47 Mass. App. Ct. 450,

460 (1999) (failure to grant continuance sua sponte not abuse of

discretion "particularly since the defendant did not request

such relief"). We do not ordinarily consider issues that have

been raised for the first time on appeal, see Carey v. New

England Organ Bank, 446 Mass. 270, 285 (2006), and the husband

has not demonstrated any reason why we should depart from that

rule in this case. 6 Accordingly, we discern no error in the

6 Although we need not decide the issue, we note that even
if the husband had requested a stay of the proceedings below on
the basis of the first-filed rule, there is nothing in the
record that would have compelled the judge to grant such a
request. Indeed, the wife contends that the record contained
support for application of "two widely recognized exceptions to
the first-filed rule." EMC Corp. v. Parallel Iron, LLC, 914
F.Supp.2d 125, 127 (D. Mass. 2012) (exceptions include [1]
"special circumstances," such as first filer's misleading
conduct to win race to courthouse, or [2] where "balance of
convenience substantially favors" second-filed action [citation
omitted]). As found by the judge, the wife was "shocked" when
she learned that the husband was seeking a divorce, as mere
months earlier he had sent her flowers and a note for
Valentine's Day stating that he looked forward to being
"together again." Approximately one week before she was served
with his complaint, he sent an e-mail message informing her that
he had withdrawn one-half of the balance in their joint checking
account and asking her to perform a list of tasks to separate
their finances. The wife contends that those (and other)
actions by the husband reflected his intent to engage in secret
divorce planning while "string[ing] [her] along." The wife also
asserts that the balance of convenience mitigated in favor of
continuing the Massachusetts action because she suffers from
serious, debilitating medical issues; the husband is in a far
superior financial position; and both parties have substantial
contacts with Massachusetts.

6
judge's failure to stay, sua sponte, the Massachusetts

proceeding. 7

2. Financial award. The husband next contends that the

overall financial award to the wife (property division, alimony,

and attorney's fees) was inequitable. We disagree.

a. Property division. The husband claims error in the

judge's decision to award the wife nearly two-thirds of the

marital estate, asserting that the disparate property division

was inequitable in light of the parties' long-term, twenty-seven

year marriage and the husband's equal (if not greater)

contribution to the marital estate through his income and

inheritances. We disagree.

"Our review of a judgment pursuant to the equitable

distribution statute, G. L. c. 208, § 34, proceeds under a two-

step analysis. 'First, we examine the judge's findings to

determine whether all relevant factors in § 34 were

7 Although the initial Louisiana divorce judgment dissolving
the parties' marriage did not address the issues of property
division and alimony, a subsequent Louisiana judgment did
address those issues, conflicting with the January 2023 Probate
and Family Court judgment. Following an appeal, the Louisiana
appellate court ultimately ordered the lower court to give full
faith and credit to the nonmodifiable aspects of the January
2023 judgment. Accordingly, we are not aware of any Louisiana
judgment that presently conflicts with the January 2023
judgment.

7
considered.'" 8 Adams v. Adams, 459 Mass. 361, 371 (2011), S.C.,

466 Mass. 1015 (2013), quoting Bowring v. Reid, 399 Mass. 265,

267 (1987). "The second tier of our review requires us to

determine whether the reasons for the judge's conclusions are

'apparent in [the judge's] findings and rulings.'" Adams,

supra, quoting Redding v. Redding, 398 Mass. 102, 108 (1986).

"A judge's determinations as to equitable distribution will not

be reversed unless 'plainly wrong and excessive.'" Adams,

supra, quoting Redding, supra at 107.

Here, the judge made thoughtful, detailed findings as to

all relevant § 34 factors. The judge's decision to assign a

larger portion of the marital estate to the wife was based

largely on her findings regarding the wife's "plethora of

serious medical issues" 9 that "profoundly impair her activities

of daily living," leaving her permanently disabled and unable to

8 The judge is required to consider "the length of the
marriage, the conduct of the parties during the marriage, the
age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities and needs
of each of the parties, [and] the opportunity of each for future
acquisition of capital assets and income." G. L. c. 208, § 34.
The judge may also "consider the contribution of each of the
parties in the acquisition, preservation or appreciation in
value of their respective estates and the contribution of each
of the parties as a homemaker to the family unit." Id.

9 The judge found that the wife's primary medical diagnosis
is Ehlers-Danlos Syndrome, which is a genetic connective tissue
disorder that affects every part of her body. She has over
forty medical providers and attends between 100 to 300 medical
appointments per year.

8
work; the husband's "robust financial prospects"; the husband's

undisclosed assets outside of the United States; and the

husband's harmful conduct during the marriage (including

engaging in extramarital affairs and physically abusing the

wife).

The husband acknowledges that the judge considered these

factors but contends that she gave them too much weight while

giving "minimal weight" to the length of the marriage and his

contributions to the marital estate. The husband is, in

essence, quarreling with the weight afforded to each of the

G. L. c. 208, § 34 factors, which is a matter within the judge's

sound discretion. Pierce, 455 Mass. at 296. We discern no

abuse of discretion in the judge's weighing of the relevant § 34

factors here. See Thompson v. Thompson, 11 Mass. App. Ct. 911,

911 (1981) (affirming award to wife of two-thirds of parties'

"only valuable asset" where wife's "employability [was]

limited").

b. Alimony. The husband asserts that the judge erred in

ordering him to pay alimony equivalent to thirty-five percent of

the difference between the parties' incomes where alimony is no

longer tax deductible as a result of the Federal Tax Cuts and

9
Jobs Act of 2017. 10 He acknowledges that the percentage is

within the guidelines set forth in the Alimony Reform Act (act),

G. L. c. 208, § 53 (b) ("alimony should generally not exceed the

recipient's need or 30 to 35 per cent of the difference between

the parties' gross incomes"). However, he contends that the

judge should have taken judicial notice of the fact that the

act's percentage guidelines went into effect in 2012, when

alimony was still tax deductible to the payor (and treated as

taxable income to the recipient) for Federal tax purposes.

The wife asserts, and we agree, that this argument is

waived because the husband failed to raise the issue of tax

consequences below. See Fechtor v. Fechtor, 26 Mass. App. Ct.

859, 866 (1989) (judge not required to "grapple" with tax

consequences where parties do not request it). However, even if

the husband had properly raised it below (which we do not

suggest), we would discern no error, as § 53 (b) of the act

expressly provides that alimony should not exceed the

recipient's need or thirty-five percent of the difference

between the parties' incomes. Here, the judge found that the

10The husband also takes issue with the fact that the
alimony award does not terminate on his attainment of full
retirement age; however, the assertions in his brief regarding
that issue are conclusory and do not rise to the level of
reasoned appellate argument contemplated by Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Accordingly, we do not consider them. See K.A. v. T.R., 86
Mass. App. Ct. 554, 567 (2014).

10
wife has a shortfall of at least $2,126.80 per week (after

deducting her expenses from her gross weekly income of $633.61).

The amount of alimony awarded -- $1,083.46 per week ($4,695 per

month) -- does not cover that shortfall, let alone enable the

wife to maintain the upper middle-class lifestyle enjoyed by the

parties during the marriage. 11 See Young v. Young, 478 Mass. 1,

6 (2017) ("the recipient spouse's need for support is generally

the amount needed to allow that spouse to maintain the lifestyle

. . . she enjoyed prior to termination of the marriage"

[citation omitted]). As the alimony award exceeds neither the

wife's need, nor the percentage guidelines set forth in

§ 53 (b), we discern no error in the amount of the award.

c. Attorney's fees. Finally, the husband claims that the

judge abused her discretion in ordering him to reimburse the

wife for a portion of her attorney's fees because he did not

participate in the Massachusetts action, as the wife would have

incurred attorney's fees regardless of where the action was

litigated and the amount was excessive given that the case was

11The judge found that the husband's lifestyle has not
diminished since the parties' divorce, and it can therefore be
inferred that he has the ability to pay the amount of alimony
awarded based on his ability to maintain the marital lifestyle
and his income of at least $192,000 per year. Because the
husband did not file a financial statement, it is unclear what
his weekly expenses were at the time of trial.

11
resolved with a one-day trial in which the husband did not

participate. We disagree.

Here, the judge found that the husband's "egregious

conduct" -- which included, among other things, refusing to pay

temporary alimony ordered by the judge during the pendency of

the Massachusetts proceedings, and failing to file mandatory

financial statements -- caused the wife to unnecessarily incur

"substantial attorney's fees and litigation expense[s]." The

judge was permitted to award fees based on the husband's

conduct. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 260

(2015). The judge was also permitted to, and did, award fees

pursuant to G. L. c. 208, § 38, which authorizes judges to award

fees irrespective of the payor's behavior. See Hager v. Hager,

12 Mass. App. Ct. 887, 888 (1981). Where, as here, "the judge

was intimately familiar with the parties, the [husband's]

superior financial position, the nature of the case, and the

submissions of the parties"; the judge "made specific findings

that the [husband] needlessly complicated the [wife's] efforts

to discover the facts and severely and unnecessarily increased

the amount of work performed by the [wife]'s attorney"; and

"[a]t no time throughout the course of the proceedings below did

the [husband] request a hearing on the matter of attorney's

12
fees," we conclude the judge properly exercised her discretion

to award fees to the wife. Schechter, supra. 12

Judgment dated January 3,
2023, affirmed.

By the Court (Green, C.J. 13,
Walsh & Smyth, JJ. 14),

Clerk

Entered: September 30, 2024.

12The wife's request for appellate fees and costs pursuant
to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), is
allowed. The wife shall file a verified and itemized
application for such fees and costs within fourteen days of the
date of this decision, and the husband will have fourteen days
thereafter in which to file any opposition to the amounts
requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The
husband's request for appellate fees is denied.

13Chief Justice Green participated in the deliberation on
this case prior to his retirement.

14 The panelists are listed in order of seniority.

13