K.T. v. D.T.

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-796

K.T.

vs.

D.T.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After approximately twenty-nine years of marriage, D.T.

(husband) and K.T. (wife) were divorced pursuant to a judgment

of divorce nisi (divorce judgment) following a three-day trial

in the Probate and Family Court held between September and

November 2023. With respect to alimony, the divorce judgment

required the husband to pay "base alimony" of $4,000 per week,

and "additional alimony" equivalent to twenty percent of his

"[g]ross [s]upport [i]ncome" exceeding $977,885 in a given year.1

1The divorce judgment defined the husband's "[g]ross
[s]upport [i]ncome" as "Medicare wages as reflected on his
W2(s), plus any employer paid retirement match not reflected
within [his] Medicare wages, minus any portion of the Medicare
wages resulting from the proceeds of a stock sale or stock
option exercise/sale for options/shares divided between the
parties in this divorce." The divorce judgment further provided
With respect to the marital estate, the divorce judgment

provided for "an approximately equal division" of assets between

the parties, with the wife "being made whole" for her share of

marital funds that the husband unilaterally transferred to his

personal accounts and spent during the pendency of the divorce

proceedings.2 The husband appeals, challenging the amount of

alimony and the division of assets. We affirm.

Discussion. 1. Alimony. The husband contends that the

base alimony award of $4,000 per week is excessive, asserting

that the judge erroneously relied on his historical cash bonuses

and equity-based income (including "outlier" years of

"extraordinary" income tied to the COVID-19 pandemic) earned

prior to his employer's corporate restructuring and the

downsizing of his department in 2023. We disagree.

"A judge's determination of the 'amount to award [for]

alimony generally [is] reviewed for an abuse of discretion.'"

Smith v. Smith, 105 Mass. App. Ct. 505, 509 (2025), quoting

Cavanagh v. Cavanagh, 490 Mass. 398, 405 (2022). Although the

that the amount of "additional alimony" to be paid to the wife
would be capped at $125,000 per year.

2 The judge found that the husband "impermissibly spent"
marital funds totaling $312,596.81 during the pendency of the
divorce proceedings. The judge treated those funds as an
advance distribution of marital assets to the husband, which was
then factored into the distribution of remaining assets between
the parties.

2
judge's discretion is broad, see Young v. Young, 478 Mass. 1, 5

(2017), it is subject to the following "parameters" set forth in

the Alimony Reform Act (act): (1) the judge's findings must

reflect consideration of "all relevant factors set forth in

G. L. c. 208, § 53 (a)"; (2) the amount of alimony generally

must "'not exceed the recipient's need or 30 to 35 per cent of

the difference between the parties' gross incomes,' G. L.

c. 208, § 53 (b)"; and (3) in determining each party's income

for purposes of calculating alimony, "the judge should generally

consider all income sources except for those excluded by G. L.

c. 208, § 53 (c)." Smith, supra. "Moreover, the act did not

alter the longstanding principle that, 'where the supporting

spouse has the ability to pay, the recipient spouse's need for

support is generally the amount needed to allow that spouse to

maintain the lifestyle he or she enjoyed prior to termination of

the marriage'" (emphasis omitted). Id., quoting Cavanagh, supra

at 407-408.

Here, the judge made findings reflecting appropriate

consideration of all relevant § 53 (a) factors for which

evidence was presented. The judge considered, among other

things, the length of the marriage; the parties' economic and

noneconomic contributions during the marriage; the wife's lost

economic opportunity as a result of the marriage "by leaving the

3
workforce and becoming a stay-at-home parent in 2008";3 the

"upper-class and affluent" lifestyle enjoyed by the parties

during the last fifteen years of the marriage; the husband's

ability to "maintain the marital lifestyle from his employment

income," which "significantly exceed[ed]" his personal weekly

expenses of $8,722; and the wife's inability to maintain the

marital lifestyle as reflected by her weekly shortfall of

approximately $6,000 after deducting her credible weekly

expenses from her weekly net employment income.4

The judge also made extensive findings regarding the

husband's employment and income. She found that he has been

employed as the head of mergers and acquisitions for a publicly

traded company since 2014. The company underwent corporate

restructuring in early 2023: a portion was sold to a private

equity firm and the remaining portion (where the husband

continued to work at the time of trial) was renamed in May 2023.

Although the husband's department was downsized following the

corporate restructuring, he retained the same title, job duties,

3 The wife earned $99,711 in 2008 before leaving the
workforce to raise the parties' children. The wife was earning
approximately $26,500 annually at the time of trial in late
2023.

4 The judge found the wife to be appropriately employed,
earning a net weekly income of $403.68, with credible weekly
expenses of $6,399.46.

4
and compensation structure consisting of (1) a base salary of

$485,000 per year; (2) fluctuating annual cash bonus of up to

sixty percent of his base salary, with the maximum being

$291,000 per year, depending on "both personal and company

performance"; and (3) fluctuating equity based compensation

(comprised of stock options, restricted stock, and performance

restricted stock units).

The judge looked at the last seven years of the husband's

earnings (2017-2023), finding that he earned a cash bonus every

year since 2017 (with the lowest being $231,472 in 2020) and

equity-based compensation every year since 2018 (ranging from

$46,249 to $664,354). The judge credited the husband's

testimony that his stock options granted in 2021 and 2022 had a

negative value, and that his cash bonuses and equity-based

compensation had declined from the prior temporary surge

experienced during the COVID-19 pandemic. The judge

nevertheless found that the husband had "demonstrated an ability

to earn at least $997,885 per year" since 2017, and credited

documents in evidence from the husband's company showing that

his total target compensation for 2023 was over $1.5 million

($485,000 salary, $291,000 bonus, and $776,000 equity

compensation).5 The judge declined the husband's request to

5 This documentary evidence included a January 2023 letter
signed by the Chief Executive Officer (CEO) of the prior

5
calculate the base alimony award using only his base salary,

while reserving all other forms of income (including annual cash

bonuses and equity-based compensation) for calculating his

additional alimony obligation on an if, as, and when received

basis. Instead, the judge found that a "$4,000 weekly base

alimony order is appropriate and a fair balance of sacrifice

based upon [the] [h]usband's first $997,885 in gross income,"

noting that the base award was equivalent to 21.4 percent of the

parties' income differential.

The husband contends that the judge erred by considering

his historical earnings prior to the corporate restructuring

(including several outlier years of exceptionally high income

tied to the COVID-19 pandemic), while ignoring evidence of bleak

earning prospects with the "underperforming" new corporate

entity. We disagree.

Where, as here, the payor spouse's income has fluctuated

widely, the judge may consider the payor's earning history and

use "an average of the [payor's] past earnings as a basis for

corporate entity that employed the husband from 2014 to early
2023 -- which CEO continued to be the husband's "boss" following
the corporate restructuring that occurred in the first half of
2023. The husband acknowledged that the January 2023 letter
"codifie[d] [his] compensation" for 2023, and remained "in
effect for one year," including after the new corporate entity
became the husband's employer. The husband's own testimony
established that his compensation package was essentially
unchanged by the corporate restructuring.

6
determining the [payor's] present earning capacity." Davae v.

Davae, 100 Mass. App. Ct. 54, 59 (2021). The husband claims

that it was error to do so in this case because he was working

for a different corporate entity at the time of trial and he

would not be able to replicate his prior earnings. The

corporate restructuring did not, however, result in a change to

the husband's title or compensation package (indeed, he retained

the same base salary of $485,000, target cash bonus of $291,000,

and equity-based compensation structure).

The husband claims that the judge improperly "assumed" he

would receive his full cash bonus of $291,000 in 2024, despite

that "he had testified that he did not expect to receive a

bonus." Contrary to the husband's assertion, however, he did

not testify that he would receive no bonus. Rather, he

testified that he did not expect to receive a "full bonus" for

2024, and it was his understanding that he might only receive

sixty percent of his $291,000 target cash bonus because the new

company was allegedly underperforming. Although the judge

ultimately declined to credit this testimony, and we see nothing

in the record that would warrant disturbing that credibility

determination, see Johnston v. Johnston, 38 Mass. App. Ct. 531,

536 (1995), we nevertheless note that were the husband to only

receive sixty percent of his target cash bonus (i.e., $174,600),

his total gross income for 2024 would be at least $659,600.

7
This would result in an income differential of $633,100 per year

(or $12,175 per week) after deducting the wife's annual income

of $26,500. The amount of base alimony awarded by the judge of

$4,000 per week amounts to approximately thirty-three percent of

that income differential, placing it squarely within the act's

percentage cap. See G. L. c. 208, § 53 (b) (alimony shall not

exceed recipient's need or thirty to thirty-five percent of

parties' income differential). Thus, even if the husband earned

only sixty percent of his target bonus as he claimed to expect

for 2024, the base alimony award would exceed neither the wife's

need (approximately $6,000 per week) nor the percentage cap set

forth in § 53 (b).6 Indeed, he would only have to receive

approximately forty-seven percent of his target cash bonus for

the base alimony award to remain within the statutory parameters

(without taking into account any equity-based income that he

might receive).

Because the judge did not credit the husband's testimony

regarding his bonus for 2024, and the judge was entitled to rely

on evidence of the husband's past earnings (including his

6 Only if the husband earned less than $620,786 per year (or
$11,938 per week) would the $4,000 weekly base alimony award
exceed the percentage cap set forth in § 53 (b). Thus, after
deducting his base salary of $485,000, he needs to earn
additional income of at least $135,786 (which is roughly 46.7
percent of his target cash bonus).

8
consistent receipt of cash bonuses of at least $231,472 since

2017, see Davae, 100 Mass. App. Ct. at 59, the husband's

argument essentially boils down to a challenge of the weight of

the evidence -- a matter left to the judge's sound discretion.

See J.M. v. C.G., 492 Mass. 459, 467 (2023) ("[a]bsent clear

error, we will not substitute our weighing of the evidence for

that of a trial judge who had the opportunity to observe the

witnesses and form conclusions about their credibility"

[quotation omitted]). It was appropriate for the judge to rely

on the evidence before her at the time of trial, and if the

husband experiences a material postdivorce decline in his

income, as he predicted, he is free to file a complaint for

modification seeking a reduction in alimony. See Emery v.

Sturtevant, 91 Mass. App. Ct. 502, 507-508 (2017) (alimony may

be modified upon material change in circumstances, such as

decline in payor's income).

We accordingly discern no abuse of discretion in the

alimony award where, as here, the judge's findings reflect

appropriate consideration of the relevant § 53 (a) factors, and

the amount exceeds neither the wife's need nor the percentage

cap in § 53 (b). See Smith, 105 Mass. App. Ct. at 511. See

also Clair v. Clair, 464 Mass. 205, 214 (2013), quoting Gabbidon

v. King, 414 Mass. 685, 686 (1993) (appellate court "may

9
consider any ground apparent on the record that supports the

result reached in the lower court").7

2. Property division. The husband next contends that the

judge, despite intending to effectuate an "approximately equal

division" of assets, ultimately divided the marital estate

inequitably by (1) reimbursing the wife for expenditures made by

the husband that the judge erroneously found were

"unauthorized"; and (2) failing to require the wife to be

7 We are likewise unpersuaded by the husband's contention
that the judge engaged in "impermissible 'double-dipping'" by
treating his equity-based compensation "both as a substantial
component of his expected annual income [for purposes of
alimony] and as a divisible asset of the marital estate." There
is no double-dipping where, as here, "it is possible . . . to
identify . . . separate bases of the property assignment and any
alimony or support obligations (thus avoiding redistribution by
an alimony . . . order of specific assets that already have been
equitably assigned)." Ferhm-Cappuccino v. Cappuccino, 90 Mass.
App. Ct. 525, 528 n.5 (2016). The judge permissibly considered
the husband's historical earnings (including his past receipt of
equity-based compensation) when determining his present earning
capacity for purposes of alimony. See Davae, 100 Mass. App. Ct.
at 59. The judge did not, however, order the husband to pay
future alimony from equity-based compensation that he received
prior to the divorce. To the contrary, the judge specifically
excluded from the husband's "[g]ross [s]upport [i]ncome" any
"proceeds of a stock sale or stock option exercise/sale for
options/shares divided between the parties in th[e] divorce."
See G. L. c. 208, § 53 (c) (1). The judge's findings and the
divorce judgment clearly reflect that the husband's alimony
obligation is to be satisfied with his prospective, postdivorce
income (including equity-based compensation received in the
future).

10
equally responsible for any shared tax liabilities due on the

husband's 2023 tax returns if she elected to file separately.8

When reviewing the division of marital assets pursuant to

G. L. c. 208, § 34, "[a]s long as the judge's findings show that

all relevant factors in § 34 were considered, and the reasons

for the judge's conclusion are apparent and flow rationally from

the findings and rulings, a judge's determination on the

equitable division of marital property will not be disturbed."

Warnajtys v. Warnajtys, 97 Mass. App. Ct. 690, 692-693 (2020),

quoting Williams v. Massa, 431 Mass. 619, 631 (2000). Here, the

judge made findings addressing all of the relevant § 34 factors,

and the distribution of assets resulted in an "approximately"

equal division as intended by the judge. See Warnajtys, supra

8 We decline to reach the merits of the following additional
arguments raised by the husband. With respect to his contention
that the judge "adopted extensive portions" of the wife's
proposed findings "verbatim" (many of which the husband claims
were "erroneous"), thereby failing to demonstrate the requisite
badge of personal analysis, see Cormier v. Carty, 381 Mass. 234,
236-237 (1980), our review is hampered by the husband's failure
to provide a copy of the wife's proposed findings. See Chokel
v. Genzyme Corp., 449 Mass. 272, 279 (2007). Finally, the
husband's argument that allocating seventy-five percent of the
children's college expenses to him was an abuse of discretion is
"too undeveloped to rise to the level of adequate appellate
argument." S.S. v. S.S., 104 Mass. App. Ct. 633, 641 (2024).
To the extent that we have not specifically addressed other
subsidiary arguments in the husband's brief, they likewise were
too undeveloped to garner this court's review.

11
at 693 (mathematical precision not required when dividing

marital estate).

The husband, however, contends that the division was

inequitable because he was improperly ordered to reimburse the

wife approximately $174,163 for certain expenditures that the

judge erroneously found were "unauthorized." We are

unpersuaded. First, we note that the $174,163 payment was

intended to effectuate the entire asset division (rather than

merely serve as a reimbursement for the wife's share of the

dissipated marital funds). Second, to the extent that the

husband asserts that many of the so-called "unauthorized"

expenditures were actually made on behalf of the parties'

children or the wife, the husband failed to provide adequate

record citations in his brief pointing to evidence supporting

these claims, and we cannot otherwise ascertain whether these

claims have merit based on the record before us. See Mass.

R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019);

S.S. v. S.S., 104 Mass. App. Ct. 633, 639 n.5 (2024). Third, we

do not agree with husband's contention that the judge deprived

him of an adequate opportunity to explain the expenditures by

denying his request to file an updated financial statement on

the last day of trial, given that the husband was allowed to

testify on redirect regarding any changes to his financial

12
statement.9 We accordingly discern no error where, as here, it

was the husband's responsibility to explain the expenditures

from the account over which he exercised sole control, he was

given an opportunity to explain such expenditures, and the judge

ultimately found that he failed to provide sufficient credible

evidence explaining the expenditures. See Grubert v. Grubert,

20 Mass. App. Ct. 811, 821 (1985) (judge permissibly drew

adverse inferences against husband where "the uncertainty

surrounding [his] income and assets [wa]s his own doing; the

production of records [wa]s a matter entirely within his

control").

We likewise discern no error in the judge's handling of the

parties' potential tax liabilities for 2023. The husband claims

that the judge improperly left him to shoulder the burden of

paying the parties' shared 2023 tax liability by permitting the

wife to unilaterally choose to file separately. He asserts that

the divorce judgment "should have said, one way or another, how

the parties should handle their substantial 2023 tax

liabilities," and that it was an abuse of discretion for the

judge to not address it. Contrary to the husband's contention,

9 The judge also appropriately denied the husband's request
to file an updated financial statement on the third day of trial
where the wife was in the midst of cross-examining the husband
and had not been provided with a copy of the updated financial
statement.

13
however, the divorce judgment did address the parties' potential

tax liabilities: if the parties elected to file joint tax

returns for 2023, they would be equally responsible for any

liability owed and, regardless of their filing status, the wife

would be solely responsible for any tax liability incurred in

connection with the husband's liquidation of her various stock

shares assigned in the divorce. We are unpersuaded by the

husband's contention that the judge erred by not reallocating a

portion of the husband's 2023 tax liability to the wife if the

parties chose to file separately, given that he failed to

present evidence to the judge comparing the tax consequences of

filing jointly versus separately.10 See Smith, 105 Mass. App.

Ct. at 512 ("[i]f parties do not request the judge to consider

particular tax consequences and do not introduce reasonably

instructive evidence bearing on those tax issues, the probate

judge is not bound to grapple with the tax issues" [quotation

omitted]). Cf. Openshaw v. Openshaw, 493 Mass. 599, 614-615

(2024) (where evidence of parties' outstanding tax debt was

10The only evidence in the record before us pertaining to
the husband's potential 2023 tax liabilities was his vague
testimony that he expected to have a Federal liability in
connection with the sale of securities and a State liability
resulting from insufficient paycheck withholding.

14
presented below, judge's failure to explain reasoning for

assigning entire debt to husband was error).11

Judgment of divorce nisi,
dated March 13, 2024,
affirmed.

By the Court (Singh,
D'Angelo & Hodgens, JJ.12),

Clerk

Entered: August 1, 2025.

11 The husband's request for appellate fees and costs is
denied. The wife's request for appellate fees is denied; costs
shall be taxed to the husband pursuant to Mass. R. A. P. 26 (a),
as appearing in 481 Mass. 1655 (2019).

12 The panelists are listed in order of seniority.

15