LAURA F. BRAUN vs. GEORGE H. BRAUN.

DREBEN, J. Before us are appeals by the wife from judgments of divorce on complaints filed by both parties and by the husband from a judgment of modification entered by a second judge. We ordered the appeals consolidated. In addition to numerous questions raised by the wife and the husband, each as to different provisions in the judgments, the husband raises the issue whether the second judge had jurisdiction to enter the modification during the pendency of the appeal of the divorce judgments. We hold that the second judge had such jurisdiction and affirm the modification judgment. We also affirm the judgments of divorce in so far as the issues have not become moot, with the exception of the matter of college expenses, and we remand to the Probate and Family Court for further consideration of the issue of life insurance.

1. The divorce actions. The judge's findings of fact reflect the following. The parties were married in May, 1990, and last lived together in January, 2002. Three children (ages eleven, ten, and six at the time of trial) were born of the union. [Note 1]

The husband, who was forty-nine years old at the time of trial, is a vice-president in the bond and corporate finance group of a major insurance company. His compensation from employment consists, inter alia, of base salary, cash bonuses, restricted stock, stock options, and income derived from other entities created by his employer. At the time of trial, the husband's base salary was $237,200, but during the five years prior to trial the husband earned from all sources an average of $879,846 per

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year. [Note 2] The marital assets were acquired through the husband's financial efforts, both before and during the marriage.

The wife was forty-one years of age at the time of trial and is in generally good health. She is a secretarial school graduate who has experience as an executive assistant. During the marriage the wife was the primary homemaker, not only for the parties' household and children, but for the husband's children from his first marriage when they were with him. The wife has been out of the workforce for twelve years, and unless she either receives some retraining or completes her college degree, she will be unable to obtain employment sufficient to support herself and the children. The judge also stated that it would not be unreasonable for the wife to remain at home until the children complete high school.

The primary asset owned by the parties at the time of trial was property in Sherborn purchased in 1998. In 2001, the parties decided to demolish the existing structure and build a new home. To finance the construction, the parties obtained a construction loan (the balance of which was $1.63 million at the time of trial), liquidated substantial marital assets, and used the husband's employment income. They agreed to market the property at a listing price of $3.7 million. [Note 3] The parties also owned a vacation home in Vermont that had an equity value of $154,000 and annual carrying costs of approximately $30,000. In addition, the husband had a 401K plan worth $526,959 and an interest in his employer's defined benefit plan of "undetermined value."

During the marriage the parties enjoyed a comfortable lifestyle, vacationing at all-inclusive resorts in Mexico and elsewhere. The wife has no expectation of future inheritance; the husband will receive $140,000 from the estate of his mother who died in January, 2003.

The judgments of divorce nisi dated September 15, 2003, awarded the wife primary physical custody of the children and

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ordered the husband to pay child support in the amount of $553 per week (calculated in accordance with the Child Support Guidelines as applied to the first $100,000 of the husband's base salary). Child support payments were to be reduced upon the emancipation of each child, and were to terminate upon the emancipation of the third child. Child support was to terminate upon the death of the husband so long as a life insurance policy called for by the judgment was in effect.

The judgments also provided that the husband pay alimony to the wife (terminable upon the earliest to occur of his death, the wife's death or remarriage, or December 31, 2014) from his "adjusted employment income," with the amount due the wife based upon a sliding percentage [Note 4] to be reduced by a percentage of her earnings. The parties were ordered to use the net proceeds of the sale of the Sherborn home to pay off the outstanding construction loan ($1.63 million), other debts (exceeding $242,000) as well as any additional amounts advanced by the husband to maintain the property until the sale, and to set aside $300,000 to fund "529 educational plans" for the children, $100,000 for each child. [Note 5] The balance was to be divided equally between the parties. [Note 6] In addition, the wife was assigned fifty percent of the marital coverture portion of (1) the net value of

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the husband's 401K account as of June 1, 2003, and (2) the husband's defined benefit plan as of the same date.

Unsuccessful in a motion to amend the judgment, the wife filed a notice of appeal from the divorce judgments on November 10, 2003 (docketed January 7, 2004). [Note 7] The wife's appeal was entered in this court on December 6, 2004.

2. The modification action. On October 29, 2004, some five weeks prior to the entry in this court of the wife's appeal from the divorce judgments, the wife filed a complaint for modification (docketed November 29, 2004) in which she sought, among other things, permission to remove the children to Vermont and an increase in alimony and child support. The husband filed a complaint for contempt alleging that the wife had interfered with his visitation rights. After an evidentiary hearing held on two days in June, 2005 (and while the appeal from the divorce judgments was pending in this court), [Note 8] the second judge, concluding that there was a material change in circumstances, [Note 9]

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entered a modification judgment, [Note 10] and a judgment for the wife on the complaint for contempt. Among other things, the second judge denied the wife's request to remove the children to Vermont; ordered the husband to pay the wife $90,142.35, her share as determined by the second judge of the stock options exercised by the husband in 2004, and, in addition, to pay the wife thirty-three percent of the proceeds of any future stock options exercised by the husband; increased the husband's child support obligation to $1,000 per week (to terminate upon the emancipation of the last child); and ordered the husband to pay the wife alimony in the amount of $1,000 per week (to terminate upon the first to occur of the following: the wife's death, the husband's death, or the wife's remarriage) plus thirty-three percent of any bonus or incentive payments he may receive as compensation from his employment. After the entry of an order denying the husband's motion to amend the modification judgment and denying a portion of a motion he filed for clarification, the husband filed his notice of appeal from the modification judgment and the order on his motion for clarification.

3. Entry of modification judgment during pendency of appeal from divorce judgments. In a letter to this court submitted pursuant to Mass.R.A.P. 16, as amended, 428 Mass. 1603 (1999), the husband, reiterating a position advanced by him at the modification proceeding, but not raised in any of his briefs on appeal,

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asserts that because the wife did not seek leave from this court to proceed with her modification complaint in the Probate and Family Court during the pendency of her appeal from the underlying judgments, [Note 11] the second judge was without authority to exercise jurisdiction over the modification action and to enter a judgment thereon. In support of his position, the husband cites cases indicating that in the absence of leave from an appellate court, a trial judge lacks jurisdiction to entertain a motion pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), or Mass.R.Dom.Rel.P. 60(b) (1975), while the judgment is pending on appeal. [Note 12] Since the husband's claim is a challenge to the subject matter jurisdiction of the Probate and Family Court, a matter that cannot be waived, see Farnum v. Mesiti Dev., 68 Mass. App. Ct. 419 , 422 (2007), it may be raised at any time. See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619 , 622 (1981); Karbowski v. Bradgate Assocs., Inc., 25 Mass. App. Ct. 526 , 527 (1988).

The rule relied on by the husband, however, relates only to motions to rehear or vacate the judgment, and does not apply to collateral or new proceedings which are separate, but not entirely divorced, from the underlying judgment. Farnum v. Mesiti Dev., 68 Mass. App. Ct. at 423. Even though a modification action may impact upon a divorce judgment, it may be characterized as a new proceeding, cf. Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814 , 816 (1977), generally arising out of new facts materially and substantially different from those found in the divorce proceeding. See Brooks v. Piela, 61 Mass. App. Ct. 731 , 734 (2004); Kelley v. Kelley, 64 Mass. App. Ct. 733 , 739

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(2005). Modification is sanctioned by statute, see G. L. c. 208, §§ 37 (alimony), 28 (child support and custody), [Note 13] and its timing is not limited -- indeed, there may be emergency or other situations when modification may be necessary without time for obtaining approval from an appellate court.

We have recognized that a complaint for modification differs from a rule 60(b) motion, and have not treated the need for approval as a jurisdictional requirement but rather a suggested practice. Thus in Doe v. Roe, 32 Mass. App. Ct. 63 , 71 (1992), we stated that "the serious possibility that a modification might render at least a portion of the appeal moot" indicates that the suggested procedure -- that the party seeking modification should ask "this court for leave for the trial judge to enter a modification order," see Wilkinson v. Guarino, 19 Mass. App. Ct. 1021 , 1023-1024 n.6 (1985); Grubert v. Grubert, 20 Mass. App. Ct. 811 , 817 n.12 (1985) -- should be followed. [Note 14] See Hayes v. Lichtenberg, 422 Mass. 1005 , 1006 (1996), in which the court noted, without discussion, that the husband, by supplemental memorandum, had brought to the court's attention that a modification judgment had been entered after further appellate review had been granted. Because a modified judgment may render moot or may result in inconsistencies and, in addition,

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render nugatory our own, perhaps substantial, work in a case, we reiterate the need, albeit not jurisdictional, for a party seeking modification of a divorce judgment to obtain leave from this court for the Probate Court to enter a modified judgment. Moreover, as pointed out in Custody of Deborah, 33 Mass. App. Ct. 913 , 914 (1992)-- and equally important in all cases, even where leave of an appellate court is not needed (e.g., G. L. c. 119, § 26), nor obtained -- "it is incumbent upon all counsel (or pro se parties), where an appeal from an earlier decision is pending, to inform the appellate court of such further orders and memoranda as are entered in subsequent proceedings" that bear on the earlier decision. [Note 15]

4. The wife's appeal from the divorce judgments. The modification judgment, which we affirm in section 5, infra, renders moot the wife's claims as to alimony and child support. [Note 16] We therefore turn to the other issues raised by the wife in her appeal.

a. The property division. The wife argues that the judge erred by "disproportionately" dividing between the parties the projected proceeds from the sale of the Sherborn property. [Note 17] She challenges particularly the orders reimbursing the husband prior

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to the division of the proceeds for expenses he incurred in connection with the property. The judge was warranted in finding that the husband had incurred substantial debt to finance the construction and other costs of the Sherborn property, and in her discretion, could consider the parties' respective contributions to the acquisition, preservation, and appreciation in value of the marital estate. See G. L. c. 208, § 34; Moriarty v. Stone, 41 Mass. App. Ct. 151 , 157 (1996). The order that the husband be reimbursed for these costs was not an abuse of discretion. Similarly, the order that the wife was responsible retroactively for a portion of the Vermont expenses was proper.

b. Additional college costs. [Note 18] The wife is correct that the judge erred in ordering the parties to share equally all undergraduate educational expenses for the children's college educations in excess of the educational trusts. The order for the future payment of college expenses is premature, given the relatively young age of the parties' children and the lack of special circumstances, and is to be vacated. See Passemato v. Passemato, 427 Mass. 52 , 54-55 (1998); Lang v. Koon, 61 Mass. App. Ct. 22 , 25-26 (2004); Ketterle v. Ketterle, 61 Mass. App. Ct. 758 , 765 (2004).

c. Life insurance. Although couching her order as applying "[s]o long as he has any child support or alimony obligations hereunder Husband shall maintain" a life insurance policy with death benefits of at least $500,000, the policy was to be only for the benefit of the children. The husband was given the right to reduce the death benefits upon the emancipation of each of the children, and his obligation to maintain life insurance for the children was to be in lieu of any ongoing child support obligations after his death. The order as to the amount of life insurance for the children was well within the judge's discretion.

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The judge made no provision for life insurance to secure the wife's alimony award. The wife claims this was error, leaving her "completely exposed" in the event of the husband's death. The husband asserts that because his alimony obligation ends with his death by the express terms of the divorce judgments, the judge properly refrained from obligating him to maintain life insurance.

The general rule in Massachusetts is that an order for the payment of alimony ceases with the death of the party obligated to pay it unless the decree or judgment provides otherwise. See Barron v. Puzo, 415 Mass. 54 , 56 (1993); Cohan v. Feuer, 442 Mass. 151 , 154 (2004). As explained in Cohan, the reasoning behind this presumption is straightforward:

"It is because 'the marital living standard assumes the obligor's continued survival. To continue the award after the obligor's death would give the obligee a claim on the obligor's accumulated assets rather than on his post-marital earnings. Any claims on these assets will already have been satisfied by the property division made at divorce.' American Law Institute's (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations § 5.07 comment b (2002). Second, the Commonwealth and the decedent's creditors and survivors, have a strong interest in the finality of estates." [Note 19]

Cohan v. Feuer, 442 Mass. at 154-155.

The general rule, however, does not answer the question whether life insurance is appropriate in any given case. First, our statute authorizes such insurance. General Laws c. 208, § 36, provides, in part: "When alimony or support is adjudged for the spouse or children, the court may require sufficient

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security for its payment according to the judgment." [Note 20] Moreover, an order requiring the securing of insurance is consistent with the general rule. See ALI Principles of the Law of Family Dissolution: Analysis and Recommendations § 5.07 comment b, which follows the general rule but notes that "[p]rotection against the obligor's premature death could be obtained through insurance on the obligor's life. The dissolution court could order the obligor to maintain such insurance, designating the obligee as beneficiary." In rejecting the position of some courts that "life insurance cannot be ordered because the maintenance award does not continue after the obligor's death, [see, e.g., Waller v. Waller, 163 Ohio App. 3d 303, 323 (2005)]," the Reporter's Notes to § 5.07 comment b, state, "This argument proves too much. Life insurance always protects the beneficiary from the loss of a benefit that otherwise ends at the insured's death. That is its point. The alimony obligee is in precisely the same position as the financially dependent spouse in a marriage that has continued intact -- both want life insurance to protect them against the financial loss resulting from the insured's premature death" (emphasis supplied). ALI Principles of the Law of Family Dissolution: Analysis and Recommendations § 5.07, Reporter's Notes to comment b, at 863.

Moreover, an order for life insurance, and the payment of premiums thereon, "may be seen as a component of alimony and other payment requirements." Freedman v. Freedman, 49 Mass. App. Ct. 519 , 524 (2000). Premiums are paid by the support obligor during his lifetime and, upon his death, payments under the policy flow from the insurer, not the obligor's estate, to the beneficiary. There is no claim of continued payment of periodic alimony from the estate of the deceased ex-spouse. Gallo v. Gallo, 184 Conn. 36, 47 (1981). Sobelman v. Sobelman, 541 So. 2d 1153, 1153-1154 (Fla. 1989).

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Our cases recognize implicitly that a judge, in his or her discretion, may order that a party maintain life insurance as security for alimony even where the order for alimony does not continue after the support obligor's death. Cf. Ross v. Ross, 50 Mass. App. Ct. 77 , 79, 83 (2000), where, although alimony was to terminate at either party's death, we upheld an order requiring the husband to provide security for child support and alimony payments by designating the wife and children as beneficiaries either of a life insurance policy or death benefits from his retirement funds. [Note 21]

In the circumstances presented here, where the disparity in income is so marked, and the wife was only forty-one years old at the time of the trial and is unlikely ever to earn enough to maintain herself adequately, we consider it appropriate for the judge, who may have accepted the husband's reasoning that insurance is not to be ordered, to revisit the question and if she denies the wife any security, to explain her decision. [Note 22]

In recognition of the changes in the financial landscape brought about by the modification judgment, the judge, in exercising her discretion whether to order security for the payment of alimony, may take into account the revised support orders and the current circumstances of the parties. See Adlakha v. Adlakha, 65 Mass. App. Ct. 860 , 872 (2006). The judge may also hold such additional hearing(s) as she deems appropriate.

d. Visitation. The judge's orders establishing weeknight overnight visitation between the husband and the children are consistent with the recommendations of the guardian ad litem and are not an abuse of discretion. We have not been informed of any modification of the visits despite the wife's seeking leave to file a complaint for modification for sole custody of the eldest child. See note 11, supra. As indicated in part 3 of this

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opinion, it was incumbent upon her to inform this court of any such order.

e. Tax allocation. Contrary to the wife's assertion, we do not view the court's order as to allocation between child support and alimony as a "recasting" of the temporary order, but rather as a determination of the ultimate tax allocation of the payments pursuant to the reservation set out in the temporary order.

5. The husband's appeal from the modification judgment.

a. Exercise of stock options. The husband argues that because he was awarded his stock options as part of the property division in the divorce action, see Baccanti v. Morton, 434 Mass. 787 , 794-795 (2001) (both vested and unvested stock options are marital property subject to division), the second judge erred in ordering him to pay to the wife the sum of $90,142.35 as her share of the stock option proceeds exercised by him in 2004, and further obligating him to pay thirty-three percent of the proceeds received from the exercise of future stock options. In the husband's view, the second judge's orders constitute an improper reallocation of assets previously divided. [Note 23]

In awarding the husband his stock options in the divorce judgments, the judge granted the wife a share of the proceeds from the husband's exercise of his stock options by including those proceeds in calculating his income for purposes of the alimony award (see note 4, supra). [Note 24] Since the husband did not challenge by appeal the court's decision to treat as income the proceeds when exercised, and indeed does not argue in his supplemental brief in any meaningful way, see Mass.R.A.P. 16(a), 428 Mass. 1603 (1999), that they should not be so treated, or that a judge is precluded from treating stock options as income in appropriate circumstances, we decline to address the

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issue. [Note 25] We also decline to address arguments made at oral argument but not made in the husband's briefs. As to the percentage awarded to the wife, we consider the second judge's findings on the change in circumstances to justify the increased amount.

b. Excessive amount of support. The husband urges that the second judge erred in awarding the wife as alimony and child support forty-three percent of his base salary plus thirty-three percent of all bonus and incentive income without consideration of his first family expenses of approximately $120,000 per annum. In fashioning the modified support orders, the second judge considered the parties respective financial positions, including the fact that the husband's total income from employment increased from $521,911.20 in 2003, the year of the divorce, to $831,443.67 in 2004 and that the husband had received income from employment of $481,366.61 through the first five months of 2005. Contrary to the husband's assertion, the second judge considered both in her findings and rationale the husband's payment of the college expenses of two children of his first marriage. She also noted that the husband intended to pay for his daughter from his first marriage to spend time in London and to assist his older son from the prior marriage in attending graduate school. Although the second judge did not refer specifically in her findings to the husband's payment of support to his first wife, she made reference to the husband's "expenses," which, on his financial statement, include his weekly support payment to his first wife. The second judge was clearly aware of the husband's obligation to his first wife.

c. Erroneous findings. Upon review of the record, we are satisfied that the findings of fact challenged by the husband are supported by the evidence and are not clearly erroneous. To the extent there was disputed evidence, the judge was entitled to make determinations of credibility. See Mass.R.Dom.Rel.P. 52(a).

6. Summary. The wife's appeal from the judgments of divorce

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nisi in so far as they relate to alimony and child support have become moot through the modification judgment and the wife's responses to our request. See note 16, supra. The provisions of the judgments ordering the parties to share equally expenses for the children's future college educations are vacated. The matter is remanded to the Probate and Family Court for consideration whether life insurance (or other form of security) is appropriate to secure the husband's alimony obligation to the wife and, if appropriate, the entry of an order thereon. In all other respects, the judgments of divorce nisi are affirmed.

The "modification judgment and judgment on complaint for contempt" is affirmed. The order on the motion for clarification and to amend the modification judgment is affirmed.

So ordered.