Melissa Steinberg v. Paul Steinberg.

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

24-P-1164

MELISSA STEINBERG

vs.

PAUL STEINBERG.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The husband in the underlying divorce action appeals from a

modification judgment entered in the Probate and Family Court.1

At issue are the provisions of the modification judgment

relating to child support and alimony, which the husband

challenges on numerous grounds. We affirm.

Background. The parties divorced in April 2019 after

twenty-two years of marriage. Their separation agreement, which

was approved and incorporated into the judgment of divorce,

1The husband also appeals from the judge's orders denying
his motions for relief from the modification judgment and to
stay the judgment pending appeal. We need not address those
orders separately, however, because the husband does not
challenge them on any grounds that are distinct from his
challenges to the judgment.
required the husband to pay child support for the parties' three

children in an amount equal to 22.5% percent of his annual gross

income up to $290,000 and alimony to the wife in an amount equal

to twenty-four percent of his annual gross income between

$290,000 and $465,000. If the husband's annual gross income

exceeded $465,000, the agreement required that he contribute

thirty percent of the excess income to the children's college

savings accounts, capped at a specified amount per child. The

provisions of the agreement relating to child support and

alimony merged with the divorce judgment.

In or around July 2020, the husband filed a complaint for

modification. He did not pursue this complaint, however, and it

was later dismissed by agreement of the parties. Meanwhile, in

August 2021, the wife filed a counterclaim for modification

seeking an increase in the husband's child support and alimony

obligations, among other remedies. The wife alleged that

modification of the divorce judgment was warranted in light of

several changes in circumstances, including that the husband

permanently relocated to Florida ten days after entry of the

divorce judgment, did not visit the children regularly between

May 2019 and April 2021, and changed his employment.

In lieu of a formal trial, the parties agreed to submit the

wife's counterclaim to the judge for resolution based on a

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stipulation of uncontested facts, uncontested exhibits, and the

parties' affidavits and financial statements. After considering

these documents, the judge found that the wife established a

material and substantial change of circumstances warranting

modification. In particular, the judge cited "a change in

employment and income for [the husband], employment for [the

wife], emancipation of [the oldest] child, discontinuation of

parenting time between [the middle] child and [the husband], and

discontinued college attendance . . . for [the middle] child."

The judge then proceeded to conduct the required analysis under

Cavanagh v. Cavanagh, 490 Mass. 398, 410 (2022), and concluded

that it would be equitable for the husband to pay (1) weekly

alimony in the amount of $1,210 (equal to twenty-four percent of

the difference between the parties' incomes), (2) weekly child

support in the amount of $1,030 (equal to the presumptive amount

owed under the child support guidelines plus a fifteen percent

upward deviation), (3) twenty-four percent of the husband's

bonuses and commissions and other income earned above $312,500

to a cap of $465,000, and (4) fifteen percent of his income

above $465,000 to a cap of $736,000, reflecting the highest

amount he earned during the marriage.

Additional facts are set out below as they become relevant

to our analysis.

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Discussion. 1. Child support. The husband challenges the

child support order on the ground that the judge failed to make

the findings required by § IV(A) of the Child Support

Guidelines. That section allows a judge to deviate from the

presumptive amount of support owed under the guidelines,

provided that the judge makes findings identifying the

presumptive amount, explaining why it would be "unjust or

inappropriate," and explaining why an upward deviation is

justified on the facts and "consistent with the best interests

of the" children. Child Support Guidelines § IV(A) (July 2023).

According to the husband, the judge's findings were inadequate

to show why an upward deviation from the presumptive amount was

appropriate in this case. We are unpersuaded.

The guidelines set out grounds that can support deviation,

including where "a parent provides substantially less than one-

third of the parenting time for . . . [the] children." Child

Support Guidelines § IV(B)(8). Here, the separation agreement

anticipated that the husband would "have parenting time on

average of two . . . weekends per month," which is substantially

less than one-third. As the husband concedes, this disparity

supported a deviation at the time of the divorce, which was

reflected in the amount of child support imposed on him by the

agreement.

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Because the agreement already included an upward deviation,

we agree with the wife that the judge's order was not a new

deviation, but a continuation of an existing one. See Katzman

v. Healy, 77 Mass. App. Ct. 589, 598 (2010), quoting Bercume v.

Bercume, 428 Mass. 635, 644 (1999) ("To the extent possible, and

consistent with common sense and justice, the modified judgment

should take into account the earlier, expressed desires of the

parties"). The issue is thus controlled not by § IV(A) of the

guidelines, but by § III(B), which provides that, on a request

for modification, a judge "shall apply [an] existing deviation"

if "the facts that gave rise to deviation still exist,"

"deviation continues to be in the child[ren]'s best interest,"

and "the guidelines amount would be unjust or inappropriate

under the circumstances."

In this case the judge found not only that the facts

supporting deviation still existed, but that they were even more

pronounced than at the time of the divorce. Specifically, the

judge found that the husband "has no current relationship with

[the middle child]," who, when not at college, is wholly

dependent on the wife, and that the husband's parenting time

with the youngest child is "far less than one-third," i.e.,

twelve percent in 2021 and 2022 and eleven percent in 2023. The

judge further found that any application of the guidelines

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without deviation would be "inequitable" and leave the wife

"woefully under supported given the children's needs and her

needs." These findings were adequate to establish a basis for

the continued deviation. Cf. Smith v. Smith, 105 Mass. App. Ct.

505, 517 (2025) ("judge made findings sufficient to support an

upward deviation based on the wife being responsible for

substantially more than two-thirds of the children's care").

2. Alimony. The husband challenges the alimony order on

the following grounds: the judge exceeded her authority by

fundamentally rewriting the separation agreement; the wife

failed to prove a material change in circumstances to justify a

modification; the award exceeds the wife's needs; the combined

amount of child support and alimony exceeds the husband's

ability to pay; the percentage-based provisions of the award are

impermissible; and the judge erred by finding that the husband

has the financial support of his new girlfriend. We address

these arguments in turn.

The husband's first argument is based on the premise that,

even where a separation agreement is merged with the divorce

judgment, a judge may only make "minor changes" to the agreement

in a later modification action. The husband cites no authority

that supports this proposition. His reliance on Bercume, 428

Mass. 635, is misplaced. There, the court held that, if a

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separation agreement is merged with the divorce judgment, the

judge should "take heed" of the terms negotiated by the parties

but can still modify the judgment if "consistent with common

sense and justice." Id. at 644. Nowhere did the court say or

suggest that a judge is limited to "minor changes." In fact,

although the separation agreement in Bercume provided that all

rights to alimony were waived, id. at 642-643, the court did not

hold that the judge was without authority to modify the judgment

to include an award of alimony; instead, the court remanded the

matter for the judge to consider whether an award of alimony

would be consistent with common sense and justice. See id. at

645. If the judge in Bercume could have awarded alimony despite

the existence of a separation agreement waiving alimony

altogether, the judge here certainly did not exceed her

authority by modifying the existing alimony obligations that the

husband had under the parties' agreement. See Smith, 105 Mass.

App. Ct. at 513-514 (judge was within discretion to modify

alimony structure set out in separation agreement).

Next, we see no merit to the husband's contention that the

wife failed to show a material change in circumstances to

justify a modification. As mentioned, the judge found several

material changes warranting modification of both the child

support and alimony provisions of the agreement, including the

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husband's change in employment, increase in income, and the

discontinuation of his parenting time with one child. The

husband does not claim that these findings are clearly

erroneous. Rather, it appears he is arguing that the judge did

not have the power to modify his alimony obligations to the

extent that she did, i.e., that the award was excessive. To the

extent that is his argument, we disagree.

In particular, we disagree with both the husband's argument

that the award exceeds the wife's needs and his argument that

the combined amount of child support and alimony exceeds his

ability to pay. With respect to the former, the husband

calculates the wife's needs based on her most recent financial

statement dated November 2023, which coincides with when the

case was submitted to the judge for resolution. The correct

measure of a recipient spouse's needs, however, is the amount

necessary to allow the recipient spouse to maintain the marital

lifestyle. See Smith, 105 Mass. App. Ct. at 509. Here, the

wife's affidavit and exhibits, which the judge credited, show

that the parties enjoyed an upper middle-class lifestyle during

the marriage and that the wife's weekly expenses were $5,316.93

at the time of the divorce, substantially greater than the

expenses reflected in her November 2023 financial statement.

The husband makes no argument that the award exceeds what the

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wife needs to resume this former lifestyle. Although he

suggests that the judge did not adequately explain why she

picked the number she did, judges "have broad discretion to

determine the appropriate amount of alimony" and need not follow

"any specific formula," provided they abide by "the limits set

forth in G. L. c. 208, § 53 (b), i.e., that alimony should

generally not exceed the recipient's need or thirty to thirty-

five percent of the difference in the parties' incomes." Smith,

supra at 511. The fixed portion of the award here -- equal to

twenty-four percent of the difference between the parties'

incomes -- falls well below the statutory cap, and the husband

does not argue that the award otherwise exceeds the cap.

The judge also expressly found that the husband "has [the]

ability to pay." In arguing that this was error, the husband

suggests that only his base salary ($312,500 annually) should be

considered in determining his ability to pay. During the

marriage, however, the husband earned substantial additional

income from bonuses, commissions, and stock options, which he

will continue to earn at the job he started in May 2023. As the

husband's own affidavit states, in addition to his base salary

of $312,500, his compensation at his new job includes the

"[o]pportunity for variable/commission pay up to $125,000,"

"140,000 shares of [i]ncentive stock options that vest over a

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[four]-year period," and "unspecified discretionary bonuses,

which depend on company performance and [his] individual

performance." The judge did not err in considering this income,

which the husband has historically earned, when determining his

ability to pay. See Zaleski v. Zaleski, 469 Mass. 230, 243

(2014).

Nor did the judge err by using percentage-based formulas to

determine alimony on the husband's income between $312,500 and

$736,000. We are unpersuaded by the husband's contention that

the judge's order ran afoul of Young v. Young, 478 Mass. 1

(2017). That case holds that "variable or contingent" alimony

awards "are the exception rather than the rule, and must be

justified by the special circumstances of the case." Id. at 9.

One such circumstance might be "where the supporting spouse's

income is highly variable from year to year, sometimes severely

limiting his or her ability to pay, and where a percentage

formula, averaged over time, is likely not to exceed the needs

of the recipient spouse." Id. at 10. Here, the judge found

that the husband's income before and after the divorce was

variable and "included periods of unemployment and a variety of

types of compensation" and that "[t]he parties acknowledged this

[variability] per their separation agreement" by including "a

percentage-based alimony award." Based on these findings, the

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judge expressly concluded that "special circumstances" existed

as required by Young to justify also incorporating a percentage-

based award in the modification judgment. This was not an abuse

of discretion. See Rosenwasser v. Rosenwasser, 89 Mass. App.

Ct. 577, 591 n.12 (2016) (judge could properly "fashion[] a

modified alimony award that incorporate[d] a 'self-modifying

feature' previously agreed upon by the parties" in separation

agreement that was merged with divorce judgment); Wooters v.

Wooters, 42 Mass. App. Ct. 929, 931 (1997) (judge properly made

percentage award where husband's compensation had considerable

fluctuations and his health could affect ability to work).

Finally, the husband claims that the judge clearly erred by

finding that he "has the financial support of his new

relationship to meet all of his housing and other needs." Even

assuming this finding (which comprised one passing sentence in

the judge's rationale) was error, the husband has not explained

how he was prejudiced in light of the judge's other uncontested

findings. For this reason alone, he has failed to demonstrate

that he is entitled to relief. See DeJesus v. Yogel, 404 Mass.

44, 47-48 (1989) (to be entitled to new trial in civil case,

appealing party must show that error "injuriously affected [his]

substantial rights" [citations omitted]).

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Conclusion. The judgment of modification dated August 2,

2024, is affirmed. The orders dated September 5, 2024, denying

the husband's motion for a new trial or to alter or amend

judgment and his motion to stay enforcement of judgment pending

appeal are affirmed.2

So ordered.

By the Court (Desmond, Shin &
Walsh, JJ.3),

Clerk

Entered: February 4, 2026.

2 The wife's request for appellate attorney's fees is
denied. The wife is entitled to her costs in the ordinary
course. See Mass. R. A. P. 26 (a), as appearing in 481 Mass.
1655 (2019).

3 The panelists are listed in order of seniority.

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