Rhonda L. Renaud v. Roger J. Renaud.

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-370

RHONDA L. RENAUD

vs.

ROGER J. RENAUD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Roger J. Renaud, the husband, appeals from a judgment of

divorce nisi entered by a judge of the Probate and Family Court

awarding alimony, dividing the marital estate, and ordering the

husband to pay the attorney's fees of the wife, Rhonda L.

Renaud.1 On appeal, the husband claims that the alimony amount

was excessive and the award of attorney's fees unreasonable. He

also asserts that the judge improperly overlooked the wife's

residence and the husband's credit card debts when dividing the

marital estate. We vacate so much of the corrected judgment as

it relates to the duration of the alimony award and remand the

1 After the husband filed a timely notice of appeal from the
judgment, a corrected judgment entered, nunc pro tunc to the
original judgment date. The corrected portion of the judgment
does not pertain to the issues raised on appeal. Accordingly,
we treat this appeal as one from the corrected judgment.
case for recalculation on that issue consistent with this

memorandum and order. We otherwise affirm.

Discussion. 1. Alimony. We review the amount of an

alimony award for an abuse of discretion. See Cavanagh v.

Cavanagh, 490 Mass. 398, 405 (2022). "[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." See Dolan

v. Dolan, 99 Mass. App. Ct. 284, 290 n.6 (2021), quoting L.L. v.

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

The husband claims that the alimony award exceeded the

statutory durational limit for general term alimony. We agree.

Under the Alimony Reform Act of 2011 (act), "general term

alimony shall terminate no later than a date certain," with the

termination date determined by the length of the marriage.

G. L. c. 208, § 49 (b). The act defines the length of the

marriage as "the number of months from the date of legal

marriage to the date of service of a complaint or petition for

divorce or separate support." G. L. c. 208, § 48. Here, the

judge found that the length of the marriage was 110 months, or

nine years and two months.2 Since the marriage lasted more than

2 The date of the parties' marriage was October 10, 2010. The
wife filed the complaint for divorce on November 13, 2019, and

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five years and less than ten, the act required alimony to

continue for "not longer than [sixty percent] of the number of

months of the marriage." See G. L. c. 208, § 49 (b) (2). Sixty

percent here was sixty-six months. The judge ordered the

husband to pay alimony from November 26, 2021, to April 26,

2028, a period of seventy-seven months. The alimony order

therefore exceeded the durational limit by eleven months.

The wife claims that the judge properly extended the

duration of alimony because the parties began cohabiting in

August 2007, more than three years prior to their marriage. The

act provides that "the court may deviate from duration and

amount limits for general term alimony . . . upon written

findings that deviation is necessary." G. L. c. 208, § 53 (e).

The act lists nine potential grounds for deviation, including

"significant premarital cohabitation that included economic

partnership . . . which the court may consider in determining

the length of the marriage." G. L. c. 208, § 53 (e) (6). The

act's definition of the length of the marriage also permits the

court to consider evidence that the parties began an economic

marital partnership during a period of cohabitation prior to

the husband filed an answer and counterclaim on December 6,
2019. The judge apparently used December 6 as the end date of
the marriage instead of November 13, the date that the complaint
was filed. But even if the judge had used November 13, the
length of the marriage would still have been in the five-to-ten-
year bracket for purposes of the act (nine years and one month).

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marriage. G. L. c. 208, § 48. In relation to the durational

limit, the act allows for a deviation that prolongs the

presumptive period of alimony only "upon a written finding by

the court that [the deviation is] required in the interests of

justice." G. L. c. 208, § 49 (b). See Duff-Kareores v.

Kareores, 474 Mass. 528, 540 (2016). Judges may therefore

increase the length of a marriage to include a prior period of

economic marital partnership, but the judge must consider the

relevant statutory factors and make written findings. See Duff-

Kareores, supra. To determine whether the parties were in an

economic marital partnership, the judge must consider the

factors set out in G. L. c. 208, § 49 (d) (1). See Duff-

Kareores, supra at 535. And to determine whether a deviation is

necessary, the judge must consider the factors set out in G. L.

c. 208, § 53 (e). See Duff-Kareores, supra at 540.

Here, the judge's findings stated only that the parties'

marriage was 110 months long and that alimony would "terminate

consistent with the statute." The judge did not make a written

finding that the parties cohabited or engaged in an economic

marital partnership prior to their marriage. See G. L. c. 208,

§ 49 (d) (1); Duff-Kareores, 474 Mass. at 535. And the judge

did not state in writing that a deviation from the statutory

durational limit was necessary. G. L. c. 208, § 49 (b).

Without the required written findings to support a deviation,

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the durational limit of the alimony award was outside the

judge's discretion. See L.L., 470 Mass. at 185 n.27; Dolan, 99

Mass. App. Ct. at 290 n.6. The alimony award must end sixty-six

months from November 26, 2021, unless modified in the future.

The husband also claims that the amount of the alimony

award exceeded the wife's financial needs and the husband's

ability to pay. The act defines alimony as "the payment of

support from a spouse, who has the ability to pay, to a spouse

in need of support for a reasonable length of time, under a

court order." G. L. c. 208, § 48. The act does not define

"need of support" or "ability to pay" but instead "identifies a

number of factors that a judge must consider in 'determining the

appropriate form of alimony and in setting the amount and

duration of support,' and gives the judge the discretion to

consider other factors that the judge deems 'relevant and

material.'" See Young v. Young, 478 Mass. 1, 5 (2017), quoting

G. L. c. 208, § 53 (a). The act further provides that "the

amount of alimony should generally not exceed the recipient's

need or [thirty to thirty-five percent] of the difference

between the parties' gross incomes." G. L. c. 208, § 53 (b).

The recipient's need is generally the amount required to

continue the marital lifestyle. See Young, supra at 6.

In this case, the judge awarded alimony of $150 per week,

less than twenty-five percent of the difference between the

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parties' gross incomes. The judge's written findings considered

the required factors, including, among other considerations, the

parties' modest marital lifestyle and their age, health,

employment, income, assets, and contributions to the marriage.

See G. L. c. 208, § 53 (a). The evidence before the judge also

supported the conclusion that $150 per week would allow the wife

to meet her needs and was within the husband's ability to pay.

Because the judge considered the proper factors, including the

wife's need and the husband's ability to pay, the award was not

erroneous.3 See Zaleski v. Zaleski, 469 Mass. 230, 243 (2014)

(need must be measured in light of mandatory considerations

including marital lifestyle).

2. Division of marital property. The husband claims the

judge improperly excluded the wife's residence and the husband's

credit card debt when dividing the marital estate. Our review

3 The husband further asserts that the alimony award did not
account for the wife's earning potential. There was no expert
testimony regarding the wife's earning potential, but the judge
credited the wife's testimony that she suffered from
posttraumatic stress disorder, anxiety, and pain in her knees
when she worked long hours. The judge also found that the wife
had no education or training since high school and had never
held a full-time job. These findings indicate the judge
considered the wife's "employability through reasonable
diligence and additional training" and concluded that the wife
was capable of working a twenty-five-hour week. G. L. c. 208,
§ 53 (a). The wife also testified that her job is seasonal, so
she sometimes works fewer than twenty hours per week. Based on
these findings, the decision to calculate alimony based on the
wife's current income, not her earning potential, was within the
judge's discretion.

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of a property division upon divorce is a two-step analysis. See

Connor v. Benedict, 481 Mass. 567, 578 (2019). "First, we

review the judge's findings to determine whether [she]

considered all the relevant factors under G. L. c. 208, § 34,

and no irrelevant factors. Second, if the judge has done so, we

will not reverse a judgment unless it is plainly wrong and

excessive" (quotations and citations omitted). Id. The marital

estate is defined as "all property to which [a spouse] holds

title . . . whenever and however acquired." Lauricella v.

Lauricella, 409 Mass. 211, 214 (1991), quoting Rice v. Rice, 372

Mass. 398, 400 (1977). Judges have broad discretion to arrive

at a fair and equitable division of the marital estate incident

upon divorce. See Lauricella, supra at 213-214.

Here, the judge found that the wife's cousin transferred to

the wife a fifty percent interest in her residence after the

wife moved out of the marital home. The judge stated in her

rationale that the wife's interest in the residence was excluded

in calculating the division of the marital estate, but the judge

included the wife's residence as part of the division of assets

and liabilities in the judgment. The judge also considered the

proper factors relevant to the wife's residence in her

rationale. See G. L. c. 208, § 34 (factors to be considered

include parties' estates and their contributions to acquisition

of their estates). Regarding the husband's credit card debts,

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the judge included liabilities in the judgment even though she

did not discuss them in her rationale. See G. L. c. 208, § 34.

The judgment stated that each party was responsible for the

debts on their respective financial statements. The judge

therefore considered the factors set out in G. L. c. 208, § 34,

and no irrelevant ones. The assignment of the wife's residence

exclusively to her, and the parties' credit card debts

exclusively to each of them, was not plainly wrong or excessive.

See Connor, 481 Mass. at 578; Davae v. Davae, 100 Mass. App. Ct.

54, 62 (2021) ("goal of G. L. c. 208, § 34, is an equitable,

rather than an equal distribution of the marital estate"

[citation and quotation omitted]).

3. Attorney's fees. The husband's final claim is that the

judge unreasonably ordered him to pay $6,000 toward the wife's

attorney's fees. "An award of attorney's fees . . . will not be

disturbed unless there is an abuse of discretion." Hunter v.

Rose, 463 Mass. 488, 499 (2012). See G. L. c. 208, § 38. Here,

the judge ordered the husband to pay $3,200 toward the wife's

attorney's fees in a January 2021 temporary order and a further

$2,800 in the judgment of divorce. The judge explained that the

wife incurred additional expenses during the trial because the

husband did not disclose several vehicles registered in his name

but owned by his brother. This explanation, as well as the

judge's firsthand observations of the parties and of the wife's

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counsel, convinces us that the award of fees was reasonable.

See Murphy v. Murphy, 82 Mass. App. Ct. 186, 187 n.1, 195 (2012)

(order to pay $9,000 in attorney's fees was reasonable where

there was substantial income disparity between parties and judge

had ample opportunity during trial to observe wife's counsel).

Conclusion. We vacate subsection e of paragraph 3 of the

corrected judgment and remand the case for the limited purpose

of recalculating the duration of alimony consistent with this

memorandum and order. In all other respects the corrected

judgment is affirmed.

So ordered.

By the Court (Meade,
Desmond & Hand, JJ.4),

Clerk

Entered: March 31, 2023.

4 The panelists are listed in order of seniority.

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