Victoria Elizabeth Lascom v. Matthew William Lascom.

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-678

VICTORIA ELIZABETH LASCOM

vs.

MATTHEW WILLIAM LASCOM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The husband appeals from an amended judgment of

modification (amended modification judgment) issued by a judge

of the Probate and Family Court, which increased the husband's

child support and alimony payments previously negotiated by the

parties in their separation agreement entered into at the time

of the divorce four years earlier. The husband contends that

the judge erred in (1) concluding there was a material change in

circumstances warranting an upward modification of alimony;

(2) calculating an alimony amount that exceeded the wife's need

and failed to consider the parties' intent to downwardly depart

from the presumptive maximum amount under the Alimony Reform Act

(act), G. L. c. 208, § 53 (b); (3) determining that the husband
had the ability to pay increased support, particularly

retroactively; and (4) adopting the wife's proposed judgment

wholesale. Discerning no error or abuse of discretion, we

affirm.

Background. During most of the parties' marriage of nearly

twenty-five years, the wife cared for their four children while

the husband financially supported the family through his

employment. The parties divorced in 2018 with a separation

agreement, which was incorporated into and merged with the

divorce judgment, providing that the husband would pay the wife

$300 in weekly child support and $600 in weekly alimony.

Approximately three years later, the husband filed a complaint

for modification, seeking to reduce child support. The wife

counterclaimed for an increase in child support. The husband

then amended his complaint to request a decrease in alimony, and

the wife amended her counterclaim to request an increase in

alimony. After trial, the judge issued the amended modification

judgment retroactively increasing the husband's support

obligations, 1 which resulted in a total arrearage of $29,244.

The judge ordered the husband to pay the wife $492 in weekly

1 Child support was retroactively increased to the date of
service of the husband's complaint for modification; alimony was
retroactively increased to the date of service of the wife's
amended counterclaim.

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child support and $1,000 in weekly alimony prospectively, along

with $250 per week toward the arrearage.

Discussion. "To be successful in an action to modify a

judgment for alimony . . . the petitioner must demonstrate a

material change of circumstances since the entry of the earlier

judgment." Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting

Schuler v. Schuler, 382 Mass. 366, 368 (1981). A judge's

discretion in fashioning an appropriate modification judgment

may not be reversed in the absence of abuse. Pierce, supra,

citing Ross v. Ross, 385 Mass. 30, 37 (1982); Greenberg v.

Greenberg, 68 Mass. App. Ct. 344, 347-348 (2007).

1. Modification of alimony. On appeal, the husband

contends that the judge abused her discretion in increasing the

alimony amount he was required to pay to the wife because the

wife failed to show a material change of circumstances in her

need for support. Although he recognizes that the judge

addressed each of the required statutory factors, see G. L.

c. 208, § 53 (a), and he takes no issue with the related factual

findings, the husband contends that the judge's "ultimate

conclusions do not flow rationally from those findings."

The husband argues that the judge's conclusion that the

wife's need for support significantly increased since the last

alimony order at the time of divorce is unwarranted because the

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wife's expenses did not materially increase. 2 The judge,

however, specifically noted the wife's increased expense from

having to carry her own health insurance. Although the parties

contemplated that the wife would likely have this eventual

increased expense, as the husband points out, there is nothing

in the separation agreement precluding the wife from seeking

modification on this basis. The husband also notes that the

wife's assets, like her home, increased in value; however, those

assets were not necessarily available for the payment of

expenses. See Downey v. Downey, 55 Mass. App. Ct. 812, 818

(2002) (wife should not be required to deplete assets to

maintain herself).

The husband argues that the wife was able to maintain the

marital lifestyle on the existing support, however there was

evidence that the wife was depleting her savings and was unable

to make home and car repairs. The husband also suggests that

2 The husband argues that the wife's most significant
increased expense was a $200 weekly payment to a credit card
used to pay for household expenses. The wife testified that she
tried to make payments as she incurred the debt but if she could
not, she would pay it off once she got her paycheck. Based on
this testimony, the husband suggests that the wife may have been
duplicating household expenses by also listing them as a credit
card liability expense. It appears, however, that he did not
argue this to the judge at trial, in his proposed findings or in
his motion to alter and amend the findings. In any event,
although the wife's testimony on this point is less than clear,
the judge could have relied on the financial statement which
clearly listed an outstanding balance on the credit card.

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the wife was underemployed. Although the wife worked part-time,

she did so in order to be available for the children, two of

whom were still unemancipated. Additionally, the judge found

that the wife had a high school education and limited work

history and that there was no credible evidence regarding the

availability of any other or additional work for the wife. See

Greenberg, 68 Mass. App. Ct. at 353.

After detailing the parties' financial positions, the judge

determined that the wife had a weekly deficit of $1,316.35 at

the time of trial, as opposed to the weekly deficit of $1,137.02

at the time of divorce. Although the difference of $179.33 may

not seem significant to some, the judge was well within her

discretion in determining that this amount, on a weekly basis,

constituted a material change of circumstances justifying

modification. See Heistand v. Heistand, 384 Mass. 20, 26 (1981)

(determination of "extent and palpability" of change in

circumstances within judge's discretion). Moreover, the judge

found that, since the divorce, the husband's weekly surplus, and

thus his ability to pay alimony, had increased by $460.45 per

week (as a result of his increased income and decreased

expenses). 3 Accordingly, where the judge's findings, supported

3 The judge found that the husband's weekly surplus (i.e.,
the amount remaining after subtracting his credible expenses and
paycheck deductions from his gross income) had increased from

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by the evidence at trial, reflected that both the wife's need

and the husband's ability to pay had increased since the time of

the divorce, we discern no error in the judge's determination of

a material change in the parties' overall financial

circumstances warranting an upward modification of alimony.

2. Alimony amount. The husband next challenges the

judge's determination of the alimony amount. Although he

acknowledges that the judge properly undertook the three-step

analysis articulated in Cavanagh v. Cavanagh, 490 Mass. 398,

410-411 (2022), the husband argues that the judge erred in using

the maximum presumptive amount under the act (i.e., thirty-five

percent of the difference between the parties' gross incomes),

instead of the wife's actual need for support. See G. L.

c. 208, § 53 (b) (alimony should generally not exceed

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

parties' gross incomes). Referring to the $400 weekly increase

in alimony, the husband contends that the wife's actual need for

support could not have increased in that amount since the time

of divorce. The husband's argument is premised on the

assumption that the alimony amount at the time of divorce

reflected the wife's actual need. In fact, the judge's factual

findings reflect that the wife's actual need at the time of

$1,033.79 at the time of the divorce to $1,494.24 at the time of
the modification trial.

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divorce was significantly greater than the amount that she

accepted in the negotiated separation agreement. On

modification, the judge was entitled to look at the parties'

actual positions at the time of divorce, in addition to the

terms of their agreement. See G. L. c. 208, § 37 (when

modifying divorce judgment, judge may "make any judgment

relative thereto which [the judge] might have made in the

original action").

The husband argues that the support award, setting alimony

at the highest presumptive amount, failed to take into

consideration the intent of the parties as expressed in the

separation agreement. See Jones v. Jones, 101 Mass. App. Ct.

673, 683 (2022) (judge modifying "an alimony award under a

separation agreement that has been merged into the [divorce]

judgment . . . must interpret the separation agreement according

to the intent of the parties in a manner consistent with the

over-all purposes of G. L. c. 208"). He acknowledges that there

was no testimony at trial regarding how or why the parties

arrived at the child support and alimony figures in the

separation agreement, but argues that the documentary evidence

shows that the parties agreed on a total support payment

(combined alimony and child support) of $900 per week, even

though the presumptive amounts under the act and the Child

Support Guidelines (guidelines) would have resulted in a total

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payment of approximately $1,300. Beyond establishing that the

parties agreed on a lower total figure than the combined

presumptive amounts under the act and the guidelines, there was

little to indicate a rationale for the arrangement.

The judge specifically considered the parties' separation

agreement and found that it contained no express provision about

future modification of child support and alimony but rather

contemplated ongoing support. Contrast Bercume v. Bercume, 428

Mass. 635, 644-645 (1999) (parties' agreement indicated intent

to sever all financial obligations to one another once children

emancipated). Given the parties' long-term marriage, the wife's

contribution to the marriage in maintaining a home life with

four children, and the wife's sacrifices to allow the husband to

advance his education and career to the detriment of the wife's

earning capacity, we discern no abuse of discretion in the

judge's decision to set alimony at the presumptive maximum.

3. Husband's ability to pay. The husband also argues that

his increase in income of approximately $271 per week did not

warrant a total increase in alimony and child support of $592

per week. 4 However, the relevant inquiry for purposes of

4 Although the judge did find that the husband's income had
increased by approximately $271 weekly, she also found that the
husband's current spouse was making contributions to his
expenses but could not quantify them based on the credible
evidence. The judge made several other findings concerning the

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determining the husband's present ability to pay is not the

amount that his income has increased since the prior judgment,

but rather the amount of income presently available to meet his

support obligations. Here, the judge found that the husband had

a weekly surplus of approximately $1,495 at the time of the

modification trial, 5 and increased the husband's total weekly

support obligation (combined alimony and child support) to

$1,492 (not including the arrearage payments). Accordingly, we

discern no error in the judge's finding that the husband has the

ability to pay the increased support amounts, especially where

approximately two-thirds of his total support obligation is

comprised of tax deductible alimony.

The husband further argues that the judge erred in ordering

that the modified alimony and child support amounts be made

retroactive because the arrearage payments put him into deficit.

However, "a party is entitled to retroactive modification of a

child support order where a judge finds that the parties'

husband's lack of forthrightness in his financials, justifying
her conclusion that he was likely underreporting his income.

5 The judge arrived at this figure by disallowing the
husband's contribution to his retirement as a reasonable
expense. The judge found that retirement savings was part of
the marital lifestyle, such that it would be unfair to reduce
the husband's available income for support by allowing him to
save for retirement when the wife could not do the same. We
discern no abuse of discretion. See Openshaw v. Openshaw, 493
Mass. 599, 606-608 (2024) (parties' habit of saving important
part of marital lifestyle).

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circumstances have materially changed and that such modification

is in the best interests of the children." Whelan v. Whelan, 74

Mass. App. Ct. 616, 627 (2009), citing G. L. c. 119A, § 13 (a);

G. L. c. 208, § 28. "If the [husband] has been paying less than

would otherwise have been required under the [g]uidelines, this

'necessarily implies that the child has been receiving

insufficient support during the pendency of the complaint.'"

Whelan, supra, quoting Boulter-Hedley v. Boulter, 429 Mass. 808,

812 (1999). Similarly, a judge has the discretion to

retroactively modify an alimony award. See Smith v. Smith, 93

Mass. App. Ct. 361, 365-366 (2018).

Here, the judge acknowledged that the retroactive payments

would (temporarily, until the arrearage was paid off) result in

an approximately $250 weekly deficit "on paper," but reasoned

that, in consideration of the tax benefits to the husband (from

his alimony payments being tax deductible) and the savings he

accrued as a result of his prior underpayment, the order overall

would remain fair and reasonable. The judge's reasoning was

sound and we discern no abuse of discretion. See Drapek v.

Drapek, 399 Mass. 240, 247 (1987) (determinations as to whether

and in what form and amount to award alimony reviewed for abuse

of discretion).

4. Adoption of wife's proposed judgment. The husband

argues that the judge erred by adopting the wife's position in

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its entirety. After the trial, each party submitted a proposed

final judgment. The judge initially issued a modification

judgment that nearly mirrored the wife's proposed judgment,

including a replicated miscalculation. In his motion to alter

or amend the judgment, the husband brought the miscalculation to

the judge's attention. In response, the judge allowed the

motion in part and issued the amended modification judgment,

accompanied by twenty-two pages of findings, conclusions of law,

and a rationale.

While the husband does not contest the bulk of the judge's

findings, he asserts that the judge's decision to amend the

judgment and explain her decision-making is not adequate to cure

the initial error of relegating her independent judgment to the

wife. We disagree. "Ordinarily, even where findings are

recited verbatim from a party's proposal, we do not reject them

out-of-hand if they are supported by the evidence." Michelon v.

Deschler, 96 Mass. App. Ct. 815, 816 (2020), citing Care &

Protection of Olga, 57 Mass. App. Ct. 821, 823-824 (2003).

However, a judge's "findings should show that the judge

personally prepared them or 'so reworked a submission by counsel

that it is clear that the findings are the product of [her]

independent judgment.'" Michelon, supra at 817, quoting Cormier

v. Carty, 381 Mass. 234, 238 (1980). Even a largely verbatim

adoption of one party's submission may bear the "badge of

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personal analysis" that the cases require (citation omitted).

Cormier, supra at 237. See Roche v. Boston Safe Deposit & Trust

Co., 391 Mass. 785, 792 (1984) ("Although many of the findings

are verbatim recitations of Mr. Roche's requests, the judge

omitted many portions of his requests and in many instances

added and condensed sentences").

Here, the judge's original modification judgment did bear

the "badge of personal analysis" (citation omitted). Cormier,

381 Mass. at 237. The submission, like the one in Roche, 391

Mass. at 792, was substantially similar but had been edited and

rephrased so as clearly not to have been duplicated from the

wife's filing without personal attention from the judge.

Moreover, the judge reached a slightly different guidelines

figure for the weekly child support obligation from December 8,

2021, and prospectively, showing that the judge recalculated the

figures herself. Moreover, the comprehensive amended

modification judgment and findings show that the judge

painstakingly retraced every step of the case and applied

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copious personal attention toward the matter. There was no

error.

Amended judgment of
modification dated December
7, 2022, affirmed.

By the Court (Ditkoff,
Singh & Hodgens, JJ. 6),

Clerk

Entered: October 16, 2024.

6 The panelists are listed in order of seniority.

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