Kristian P. Talvitie v. Barbara Clark.

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-856

KRISTIAN P. TALVITIE

vs.

BARBARA CLARK.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At issue is whether the former husband's (husband)

complaint for modification was properly dismissed for failure to

state a claim. See Mass. R. Dom. Rel. P. 12 (b) (6). Reviewing

the complaint de novo, see Curtis v. Herb Chambers I-95, Inc.,

458 Mass. 674, 676 (2011), we conclude that it states a claim

for modification such that the complaint should not have been

dismissed.

Where, as here, a defendant has moved to dismiss a

complaint for failure to state a claim, we review the adequacy

of the claims by taking the well-pleaded allegations of the

complaint as true, drawing all reasonable inferences in favor of

the nonmovant. See Bassichis v. Flores, 490 Mass. 143, 148

1 Formerly Barbara Talvitie. We take the parties names as they
appear in the modification complaint.
(2022). Here, the complaint for modification alleged the

following. On January 22, 2019, a judgment entered ordering the

husband to pay alimony to the former wife (wife) according to a

formula that had been agreed-upon by the parties in a separation

agreement. The formula calculated alimony on a graduated scale,

based on the differential between the parties' earned income (a

term defined in the separation agreement); in broad strokes, the

percentage decreased as the income differential increased.

Thus, for example, if the income differential was between one

dollar and $330,000, the wife would receive 32.5% of the

differential as alimony. If the income differential exceeded

$1,000,000, however, the wife would receive 10% of the portion

of the differential exceeding $1,000.00, in addition to the

amounts owed on the lower tiers of income differential. The

alimony and child support provisions of the separation agreement

merged into the divorce judgment.

The complaint alleged that several significant changes in

circumstances had occurred warranting modification of the amount

of alimony owed.2 First, the husband's income had increased

2 The complaint also sought modification of the child support
amount. However, at oral argument, counsel for the husband
appropriately acknowledged that any issue concerning child
support is premature because the husband's obligation to pay
child support has not yet come into play and, indeed, may never
come into play given how the parties structured their separation
agreement.

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significantly such that it was now greater than at any time

during the parties' marriage, and, inferentially, beyond what

was anticipated when they entered into the separation agreement.

Second, given the significant increase in the husband's income,

the resulting alimony calculation resulted in an amount far

exceeding the wife's needs, and in a lifestyle exceeding what

the parties had enjoyed during the marriage.3 It was also

alleged, upon information and belief, that the wife had recently

received a significant financial inheritance, lessening her need

for alimony. Based on these changed circumstances, the husband

sought modification of the "alimony obligation so that the

amount of support does not exceed the [wife's] needs or the

lifestyle that the parties[] led during their marriage." After

a non-evidentiary hearing,4 the judge allowed the motion to

dismiss on the ground that the husband had agreed to pay alimony

"on his earned income on a sliding percentage arrangement with

no cap. The parties waived rights to inheritance."

3 The complaint also alleges that the judgment would unjustly
enrich the wife. The concept of unjust enrichment is not
ordinarily a basis for modification. However, in the context of
a motion to dismiss, we construe the phrase favorably to the
husband in a colloquial sense to mean that the alimony formula,
given the husband's unanticipated increase in income, results in
alimony exceeding the wife's needs.
4 At the hearing, the parties placed information outside the

complaint before the judge. But, on a rule 12 (b) (6) motion,
the judge is only to consider the allegations of the complaint,
and is not to take evidence or to engage in fact-finding. Nor
do we consider that information here.

3
At the stage of initial pleading, a party need not prove

that he or she is entitled to relief, but rather must merely

allege facts "'plausibly suggesting (not merely consistent

with)' an entitlement to relief." Iannacchino v. Ford Motor

Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007). Where, as in this case, a

party seeks modification of an alimony obligation that has

merged into a divorce judgment, the party must allege facts

plausibly showing a material change in the parties'

circumstances. See Hassey v. Hassey, 85 Mass. App. Ct. 518,

527-528 (2014); G. L. c. 208, § 49 (e) ("Unless the payor and

recipient agree otherwise, general term alimony may be modified

in duration or amount upon a material change of circumstances

warranting modification"). The question at the pleading stage

is not whether the husband will ultimately prevail on his

complaint for modification, but only whether he has sufficiently

alleged facts plausibly suggesting a material change in

circumstances.

The wife suggests, and the judge apparently ruled, that an

increase in income is not a material change in circumstances in

the context of a "self-modifying" alimony formula. This ruling

is not invariably correct, and cannot be determined on the

complaint before us. A significant upward change in income can

serve as the basis for modifying alimony even where -- as

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here -- the underlying alimony order is "self-modifying." See

Hassey, 85 Mass. App. Ct. at 527-528. Thus, the fact that the

alimony formula here was "self-modifying" in the sense that it

used different percentages to calculate alimony at different

income levels does not, standing alone, insulate the alimony

award from modification. In fact, the parties have not cited --

nor have we found -- any case dismissing a complaint for

modification based on a significant increase in income simply

because the underlying alimony calculation derives from a "self-

modifying" formula. And, indeed, all of the cases relied upon

by the wife involve appeals after a modification trial; they do

not arise from motions to dismiss. See Bercume v. Bercume, 428

Mass. 635 (1999); Schuler v. Schuler, 382 Mass. 366 (1981);

Downey v. Downey, 55 Mass. App. Ct. 812 (2002); Huddleston v.

Huddleston, 51 Mass. App. Ct. 563 (2001); Fugere v. Fugere, 24

Mass. App. Ct. 758 (1987).

Here, the complaint alleges not only a significant increase

in income but also that the resulting alimony payment exceeds

the wife's needs and marital lifestyle. "An alimony award that

exceeds current need, so as to permit accumulation of assets or

savings for the future, may be appropriate only when that award

is made pursuant to G. L. c. 208, § 34" (which is not here the

case). Cooper v. Cooper, 62 Mass. App. Ct. 130, 140 (2004). "A

dependent spouse's support needs, whether at the point of

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initial determination or later, when a modification is sought,

are to be 'measured by the station of the parties -- by what is

required to maintain a standard of living comparable to the one

enjoyed during the marriage.'" Greenberg v. Greenberg, 68 Mass.

App. Ct. 344, 347 (2007), quoting Grubert v. Grubert, 20 Mass.

App. Ct. 811, 819 (1985). For this reason, the allegation of a

significant increase in the husband's income resulting in

alimony exceeding the wife's needs was sufficient to state a

material change in circumstances at the pleading stage.

Moreover, the allegation concerning the wife's recent

inheritance bears on the allegation that the wife's needs had

changed since the divorce judgment. Although the wife points to

the fact that, as part of the division of assets, the husband

waived any entitlement to any future inheritance she might

receive, the concepts of alimony and property division are

“separate and distinct.” Heins v. Ledis, 422 Mass. 477, 482

(1996). The wife's receipt of a post-divorce inheritance is one

factor the judge may consider in assessing whether her needs

have changed such that a modification of alimony is warranted.

See Winternitz v. Winternitz, 19 Mass. App. Ct. 228, 232-233

(1985). See also Frederick v. Frederick, 29 Mass. App. Ct. 329,

334 (1990); Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375

(1985).

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For these reasons, the modification complaint should not

have been dismissed. Our decision should not be read to suggest

that we have a view on the merits of the husband's claim for

modification. We simply rule that he has sufficiently stated a

material change in circumstances such that his claim for

modification should be considered on its merits.

The order dismissing the complaint for modification is

vacated, the judgment on the complaint for modification is

reversed, and the case is remanded for further proceedings

consistent with the memorandum and order of the Appeals Court.

So ordered.

By the Court (Wolohojian,
Neyman & Smyth, JJ.5),

Clerk

Entered: February 28, 2023.

5 The panelists are listed in order of seniority.

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