Domestic relations – Alimony – Reduction

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Where a judge reduced a divorced plaintiff’s monthly alimony payments, a remand is necessary for a determination of whether the plaintiff’s reduced working hours following a heart attack constituted a material change in circumstances.

“In June 2016 the husband suffered a serious heart attack, of the type sometimes referred to as a ‘widow maker.’ The husband received prompt medical care; he recovered quickly and with only relatively minor organ damage. Nonetheless, the husband’s treating physicians recommended that he reduce his work hours. Acting on his physicians’ advice, the husband negotiated a new employment and compensation plan that shifted certain of his responsibilities to other employees and significantly reduced the husband’s work hours and income.

“In July 2016 the husband moved for a modification, requesting, as relevant here, that his monthly alimony payments be reduced. …

“The judge’s decision, as the wife points out, did not address the husband’s ability to pay the agreed-upon amount, found no material change in the wife’s circumstances, and assumed that the new amount would not be sufficient to meet the wife’s needs. …

“The wife, appearing here pro se, argues that the judge should not have ‘reduc[ed] Husband’s alimony payments based solely on his reduced income without considering the other factors that make up his ability to pay and Wife’s need.’ She argues that the judge made no findings of fact or conclusions of law that the husband’s ability to pay was reduced. In fact, she claims that there was no testimony presented by the husband that he had needed to reduce his spending or his lifestyle based on the reduction of his work hours.

“We agree. Although there was no error in the judge’s conclusion that the husband’s reduction in income was, to the extent she found, bona fide and not temporary, when a separation agreement, approved by a judge, is incorporated and merged into a judgment, as is the case with respect to the alimony provision at issue here, the agreement may be modified only on ‘a material change in circumstances.’ … Reduced income may well amount to such a change. But ‘while a substantial decrease in income or financial status may warrant a modification, such a decrease does not alone compel a modification.’ … A reduction in a payor’s income alone can amount to a material change of circumstances with respect to alimony and support obligations only if, as a result, the payor does not ‘retain[] the ability to continue to make the payments required by the judgment.’ …

“Because ability to pay is an essential component in a determination of a material change in circumstances, and because it was not addressed by the judge, the judgment must be vacated and the case remanded for further proceedings consistent with this memorandum and order. …”

V.W. v. V.E. (Lawyers Weekly No. 81-098-19) (7 pages) (Docket No. 17-P-1405) (May 23, 2019).

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