Marc Magerman v. Anne Marie Magerman.

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

22-P-135

MARC MAGERMAN

vs.

ANNE MARIE MAGERMAN.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Anne Marie Magerman (wife) appeals from a Probate and

Family Court modification judgment that, as relevant here,

reduced Marc Magerman's (husband's) monthly alimony payment.

The wife argues that the judge abused her discretion in

modifying the alimony obligation without making the threshold

finding that a material change in circumstances rendered the

husband unable to continue making the required payments from his

income and assets.2 We affirm.

1 As is our custom, we take the defendant's name from the
underlying complaint, even though subsequent pleadings refer to
the defendant as Anne Marie Mitchell.
2 In her notice of appeal, the wife also purports to appeal from

the Probate and Family Court judge's order denying her request
for attorney's fees. Where she does not argue this issue in her
brief, the claim is waived. See Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019). In any event, on the
record before us we discern no abuse of discretion in the
Background. We summarize the relevant facts as found by

the trial judge, supplemented by undisputed evidence in the

record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). After

a marriage of approximately twenty-seven years, during which two

children were born,3 the parties were divorced by a judgment

entered on February 12, 2018. At the time of the divorce, the

husband was both a 26.5564 percent coowner and the chief

operating officer (COO) of Massachusetts Burgers Enterprises,

LLC (MBE), earning an annual salary of $236,383 in addition to

partner distributions resulting in a total taxable income of

$451,592. The wife was employed by Gatehouse Media at the time,

earning approximately $70,000 annually. The divorce judgment

incorporated the parties' separation agreement which required,

inter alia, that the husband pay the wife $4,506.21 per month in

alimony, which represented 32.5 percent of the difference in

their base salaries at the time of the divorce.4

In June of 2018, the MBE partners executed a nonbinding

letter of intent for the sale of MBE that subsequently occurred

on January 25, 2019.5 The husband received a sum of

judge's denial of the wife's request for attorney's fees. See
Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 (2005).
3 Both children of the marriage were emancipated at the time of

the parties' divorce.
4 The husband's "base salary" as defined by the separation

agreement was $236,383 annually, while the wife's was $70,000.
5 While the parties anticipated the future sale of MBE at the

time of the divorce, the separation agreement was silent as to

2
$1,941,275.80 from the sale in addition to two escrow payments

of $131,395.61 and $83,850.26. The husband had previously

bought the wife out of her one-half interest in MBE by making a

lump sum payment in the amount of $708,583.50 in December of

2018 pursuant to provisions in the separation agreement.

Following the sale, the husband received $130,000 in "severance"

pay in February of 2019 as compensation for winding down MBE's

operations.

On July 25, 2019, the husband filed a complaint for

modification of his alimony obligations alleging that MBE had

been sold, he was no longer employed, and his "severance" pay

had been exhausted. A modification trial was held on May 17,

2021. The trial evidence included the testimony of both parties

and the admission of thirty-eight uncontested exhibits including

the parties' financial statements dating back to the time of the

divorce. The judge found that the husband's only source of

income at the time of trial was $567 in weekly unemployment

benefits due to the sale of MBE and the exhaustion of his

severance pay which had "allowed him to continue to meet all of

his expenses, including his alimony obligation," for seven

months postsale. The judge credited the husband's testimony

"that he began looking for new employment opportunities even

what effect, if any, the sale would have on the husband's
alimony obligation.

3
prior to the sale of MBE;" that the business venture he and his

partner pursued two weeks after the sale of MBE fell through

despite eleven months of negotiations; that he anticipated that

he would receive a starting annual salary of $125,000 as a fifty

percent owner in a new franchise venture upon execution of the

first lease;6 and that although he was not yet earning a salary,

he was willing to attribute this anticipated annual salary as

income for purposes of recalculating alimony.

With respect to the husband's total assets, the judge found

that they had decreased in value from $2,757,106 at the time of

the divorce to $1,059,277.877 at the time of trial. After noting

that the husband withdrew $100,000 from a Schwab retirement

account in December of 2020 to meet his ongoing living expenses,

the judge found that he "will continue to draw down his

retirement assets unless and until he begins drawing a salary."

The judge determined that the husband "had the ability to

continue to pay his current alimony obligation from February of

2019 through August 2019" when his "severance" pay exhausted,

but that "since August 2019, other than unemployment, Husband

6 At the time of trial, the husband had signed a multiunit
operating agreement, invested $125,000 into the franchise
venture with an anticipated $300,000 total contribution, and
hoped that the lease for the first location would be signed
within thirty days from the trial.
7 The husband's total assets were listed at $916,026.25 on his

most recent financial statement, but this amount reflected only
half of the equity in the home he owns with his new wife.

4
has had no additional income and has been forced to use savings

and retirement to meet his expenses."8

In contrast, the judge found that the wife's total assets

had increased significantly to $1,635,082.20 due in large part

to the $708,583 payment that the husband made to buy out her

one-half interest in MBE. The judge further found that the

wife's employment income had "remained substantially the same

since the time of the divorce." Noting the increase in the

wife's weekly expenses from $2181.02 at the time of the divorce

to $3068.32 at the time of trial9 and her reliance on alimony

payments, the judge determined that the wife had a continued

need for support "to meet her reasonable needs and maintain a

modified semblance of the parties' marital lifestyle." Having

"considered all factors under G. L. c. 208, [§ 53 (a)] on which

evidence was presented at trial," the "Wife's need for support,

and Husband's ability to pay support, including the totality of

Husband's financial circumstances," the judge concluded that the

8 While the husband's nonsupport weekly expenses had increased
from $1,948.47 at the time of the divorce to $2,440.39 at trial,
the judge did not afford much weight to this increase because
the husband anticipated that his current wife would begin
contributing to these expenses upon her return to work earning a
$100,000 salary after two recent back surgeries.
9 The judge found that this increase was "due in large part to

[the wife's] voluntary contributions toward the parties' adult
daughter's expenses and the cost of her health insurance."

5
husband "met his burden of establishing a material change in

circumstances."

The modification judgment entered on October 20, 2021,

reducing the husband's monthly alimony payment from $4,506.21 to

$1,393.36, retroactive to September 1, 2019. The judge arrived

at this figure by attributing $125,000 in annual income to the

husband, using the wife's 2020 income of $73,552.75, and

applying the alimony formula in the separation agreement: 32.5

percent of the difference in the parties' income. Given the

retroactivity of the reduction, the wife was ordered to

reimburse the husband $80,934.10 in one lump sum within forty-

five days of the judgment. The judge further ordered that for

the duration of the husband's alimony obligation, the parties

must annually exchange copies of all financial documentation

demonstrating their income from the prior year. This appeal

followed.10

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." Schuler v. Schuler, 382 Mass. 366, 368 (1981). See

G. L. c. 208, § 49. "In determining whether to modify a support

10The wife filed a motion to stay pending appeal that was denied
by a single justice of this court who determined that the wife
had "failed to demonstrate the likelihood of success on the
merits and substantial risk of irreparable harm."

6
or alimony order, a probate judge must weigh all relevant

circumstances" including, inter alia, "the financial status of

the support provider," "the station in life of the respective

parties," "as well as whether, on all of the economic

circumstances, the obligor spouse has the 'present ability to

pay the amounts required by the agreement and judgment.'"

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

quoting Schuler, supra at 370, 375-376. The judge "must

consider the totality of the payor's financial circumstances,

including his or her income and available assets." Dolan v.

Dolan, 99 Mass. App. Ct. 284, 289 (2021).

"[W]e recognize that a judge enjoys considerable discretion

in fashioning an appropriate modification judgment, and . . .

the judgment may not be reversed in the absence of an abuse of

discretion." Pierce, 455 Mass. at 293. An abuse of discretion

exists where the judge's "findings of fact were not supported by

the record or conclusions failed to reflect consideration of

applicable legal principles." Greenberg, 68 Mass. App. Ct. at

348. "[A] judge's discretionary decision constitutes an abuse

of discretion where we conclude the judge made a clear error of

judgment in weighing the factors relevant to the decision such

that the decision falls outside the range of reasonable

alternatives" (quotation and citations omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

7
On the record before us, we discern no abuse of discretion

in the judge's decision to reduce the husband's alimony payment.

The judge considered all required factors pursuant to G. L.

c. 208, § 53, in her comprehensive findings of fact and rulings

of law in which she analyzed the totality of the parties'

financial circumstances. See Pierce, 455 Mass. at 295.

Contrast Greenberg, 68 Mass. App. Ct. at 348 (trial judge failed

to determine value of husband's assets or potential income

derived from substantial retirement funds). At the time of

trial, the wife had $575,804.33 more in assets than the husband,

and he had withdrawn $100,000 from a Schwab retirement account

in December 2020 to meet his living expenses. In finding that

the husband "had the ability to continue to pay his current

alimony obligation from February of 2019 through August 2019,"

the judge implicitly concluded, and the record supports, that

the husband did not have the ability to pay the original alimony

amount after August of 2019 without further depleting his

assets. See Dolan, 99 Mass. App. Ct. at 291. Contrast

Greenberg, 68 Mass. App. Ct. at 346-347 (reversing modification

judgment where husband's retirement assets had appreciated and

he was "able to meet his support obligations . . . without

diminishing his capital assets or affecting his ability to

maintain his standard of living").

8
While the wife contends that the husband did have the

ability to pay because he admitted that he could make the

alimony payments for two more years before exhausting his total

assets, "a support provider does not 'have to deplete his total

liquid or other assets in an effort to meet his support

obligations.'" Katz v. Katz, 55 Mass. App. Ct. 472, 483 (2002),

quoting Schuler, 382 Mass. at 375. See Schuler, supra ("We do

not attempt to detail how substantial the assets possessed by a

support provider must be to justify the dismissal of a

modification complaint where the provider's income has

decreased . . . [t]hat question is left to the sound discretion

of the judge"). The judge considered "all the statutory factors

and reach[ed] a fair balance of sacrifice between the former

spouses." Pierce, 455 Mass. at 296. Accordingly, we conclude

that the judge's decision to reduce the husband's alimony

obligation did not fall "outside the range of reasonable

alternatives." L.L., 470 Mass. at 185 n.27.11

11We reject the wife's related argument that the husband had the
ability to pay the original alimony amount based on his
expenditures including, inter alia, his new wife's engagement
ring while he was still earning a salary, home improvements, a
gift of $253,150 to his new wife -- $130,000 of which came from
the sale of the husband's condominium after the divorce -- to
purchase a home, and travel. The judge considered the husband's
spending in her analysis and found that these were nonrecurring
expenses, which is supported by the record.

9
The wife's argument that the judge erroneously deemed the

husband's American Express account valued at $341,651.33 a

retirement asset and failed to account for it in determining his

ability to pay is unavailing. We note that there is an

ambiguity with respect to whether the American Express account

was properly classified as a retirement asset or a savings

account.12 However, the judge included the value of the American

Express account in her determination of the husband's total

assets at the time of trial and found that he "has been forced

to use savings and retirement to meet his expenses" and "will

continue to draw down his retirement assets unless and until he

begins drawing a salary." It is thus evident that the judge

considered the husband's American Express account when

determining his ability to pay. Where the record supports the

judge's findings, we cannot conclude that they were clearly

erroneous.

Likewise, the wife's contention that the judge erred by

attributing a "completely fictional" income to the husband and

reducing the husband's alimony payment based on a temporary, as

opposed to permanent, reduction in income lacks merit. The

judge, though not required to attribute income to the husband,

12On the husband's financial statements submitted in March,
April, and May 2021, the American Express account is listed as a
retirement asset while in February, July, and October 2020 it is
listed as a savings account.

10
did so at his request based on his testimony that he and his

business partner agreed to his future salary of $125,000 in

their new franchise venture upon execution of the first

location's lease. The record supports the judge's attribution

of income, and "we will not reverse findings made by the judge

on the basis of oral testimony unless we are convinced they are

plainly wrong." Schuler, 382 Mass. at 368. Furthermore, the

judge acknowledged that $125,000 represents the husband's

"beginning salary" that may increase in the future if the

franchise venture is successful. Finally, by ordering the

parties to exchange financial documentation each year, the judge

invited annual review to account for future changes in the

parties' incomes.13,14

Judgment affirmed.

By the Court (Wolohojian,
Neyman & Smyth, JJ.15),

Clerk

Entered: May 4, 2023.

13 We decline both parties' requests for attorney's fees. With
respect to the husband's request pursuant to G. L. c. 231, § 6F,
we reject his argument that the wife's appeal is frivolous or
brought in bad faith.
14 To the extent that we have not specifically addressed

subsidiary arguments in the parties' briefs, they have been
considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
15 The panelists are listed in order of seniority.

11