AMY SUE OPENSHAW vs. GLEN ROMNEY OPENSHAW.

WENDLANDT, J. Many married couples privileged to have sufficient income often, as the idiom counsels, "save something for a rainy day"; [Note 2] they might, for example, regularly set aside a portion of their income to purchase stocks and bonds, rather than country club memberships and recreational boats. In this case, we are asked to consider for the first time the question whether a judge may account for a divorcing couple's custom of making regular contributions to their savings plans in determining, under G. L. c. 208, § 53 (alimony statute or § 53), the amount of alimony needed to maintain the marital lifestyle. Where, as here, the record supports that ongoing, regular saving was part of the couple's standard of living during the long-term marriage and that the parties' combined postdissolution income is adequate to allow both spouses to maintain the standard of living enjoyed during the marriage, we conclude that such consideration is appropriate.

We further conclude that the Probate and Family Court judge did not abuse his direction in determining the recipient spouse's need for support in view of her reported expenses at the time of the trial, but that the judge's unexplained allocation of over ninety-eight percent of the parties' marital liabilities to the payor spouse is unsupported by the judge's findings and at least arguably inconsistent with the judge's conclusion as to the equitable division of the marital estate under G. L. c. 208, § 34. We therefore remand with instructions to reevaluate the portion of the judgment regarding the allocation of marital liabilities in light of our opinion and to enter a new judgment accordingly. [Note 3]

1. Background. [Note 4] In August 1991, Amy Sue Openshaw (wife) and Glen Romney Openshaw (husband) were married in Salt Lake City, Utah. The couple eventually moved to Massachusetts. They had six children [Note 5] and enjoyed an upper middle class lifestyle; they funded their children's participation in extracurricular activities, contributed to their children's rent while the children attended college, sent some of their children to private high school,

Page 601

and accumulated personal property of significant value, such as jewelry, a collection of approximately twenty firearms, tools and equipment, home furnishings, fine art and antiques, and a grand piano.

In addition, because of the couple's generous annual income of over $1.3 million, [Note 6] and their comparatively modest spending, [Note 7] they also routinely allocated significant portions of their income to investments and savings. The couple habitually transferred any funds not used to cover the family's immediate expenses to specific investment and retirement accounts on a monthly basis. They also consistently donated approximately ten percent of their income to their church in accordance with the tenets of their faith as members of the Church of Jesus Christ of Latter-day Saints. [Note 8]

The parties' cumulative assets amounted to at least $4.5 million, [Note 9] several million of which was in the form of checking, savings, investment, and retirement accounts. The couple lived together in the marital home in Hanover, which was valued at over $1.2 million, until November 2018.

2. Prior proceedings. In December 2018, after nearly thirty years of marriage, the wife filed a complaint for divorce. [Note 10] At trial, the parties contested custody of their youngest child, alimony, child support, and the division of the marital estate. At the time of the trial, the wife resided in the marital home, and the husband lived in Florida; the husband maintained little to no contact with any of the unemancipated children for the two years prior to trial. [Note 11]

In June 2021, the trial judge entered a judgment of divorce nisi, supported by a written memorandum comprising seventy-three

Page 602

enumerated paragraphs setting forth the judge's findings of fact as well as the rationale for his decision on the disputed matters. The judge granted sole legal and primary physical custody of the couple's minor child to the wife. Pursuant to the Child Support Guidelines, the judge also ordered the husband to pay the wife $980 per week in child support. On appeal, the husband does not contest the custody award or the amount of child support.

With respect to alimony, after weighing the factors prescribed under the alimony statute, see discussion infra, the judge ordered the husband to pay $5,020 per week to the wife. This amount was derived from the wife's reported total weekly spending provided on her most current financial statement, which included $1,000 per week in savings and $730.64 per week in charitable giving. [Note 12] Together with child support, the judgment required the husband to make total weekly payments of $6,000 to the wife.

With respect to the division of the marital estate, the judge stated:

"In light of all the factors set forth in G. L. c. 208, § 34, especially the disparity in the parties' employability and opportunity to acquire future assets and income, the [c]ourt finds that a division of the marital estate with [the w]ife receiving approximately [fifty-five percent] and [the h]usband receiving approximately [forty-five percent] is most equitable."

Consistent with this desired distribution of the marital estate, the judge divided the marital assets between the parties fifty-five percent to forty-five percent, in favor of the wife.

Stating that "the [c]ourt finds it equitable to order the parties to be responsible for the payment of the liabilities listed in his or her individual name," the judge assigned to the husband liabilities of approximately $343,280 and consisting almost entirely of the family's income taxes incurred in tax years 2020 and 2021. The wife was assigned liabilities of $5,032.91. This distribution of the parties' liabilities left the wife with approximately fifty-nine percent of the parties' marital estate, and the husband with forty-one percent. [Note 13] The judge did not address the resulting deviation from the division of the marital estate that he had found

Page 603

to be "most equitable."

After the judgment entered, the husband timely appealed, and we transferred the case to this court on our own motion.

3. Discussion. a. Alimony. "Alimony" is defined in the Alimony Reform Act of 2011, St. 2011, c. 124 (act), 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 power to award alimony is governed by the alimony statute. See G. L. c. 208, § 53. See also Zaleski v. Zaleski, 469 Mass. 230, 233 (2014), quoting Gottsegen v. Gottsegen, 397 Mass. 617, 621-624 (1986) (power to award alimony is "wholly statutory"). The statute provides:

"In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material" (emphases added).

G. L. c. 208, § 53 (a).

i. Saving. The husband first contends that the judge improperly considered the parties' custom of allocating a significant portion of income as savings in setting the amount of spousal support payable to the wife. [Note 14] The husband's challenge to the spousal support order raises a question of statutory construction, which we review de novo. See Cavanagh v. Cavanagh, 490 Mass. 398, 405 (2022).

Page 604

Our analysis begins with the alimony statute's plain language. See Metcalf v. BSC Group, Inc., 492 Mass. 676, 681 (2023).

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (citation omitted).

Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Sharris v. Commonwealth, 480 Mass. 586, 594 (2018), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). [Note 15] We "look to the statutory scheme as a whole, so as to produce an internal consistency within the statute" (quotations and citations omitted). Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd., 483 Mass. 600, 605 (2019).

A. Marital lifestyle. As set forth supra, the alimony statute enumerates certain factors, including the parties' "marital lifestyle" and the "ability of each party to maintain the marital lifestyle," that the judge must consider in determining alimony. G. L. c. 208, § 53 (a). The wife maintains that, because the parties' custom of saving underlay the parties' standard of living, the judge appropriately considered saving in connection with his mandatory consideration of the parties' "marital lifestyle." We agree.

The plain meaning of "marital lifestyle" is the characteristic manner in which the couple chose to live their life during the marriage. See Young v. Young, 478 Mass. 1, 6 (2017), quoting Inker, Alimony and Assignment of Property: The New Statutory Scheme in Massachusetts, 10 Suffolk U. L. Rev. 1, 8 (1975) (marital lifestyle pertains to "the manner of living to which [the spouses have] been accustomed," and term "focus[es] on the spouses' lifestyle during the marriage"); Oxford English Dictionary Online, "Marital," https://www.oed.com/search/dictionary/?scope=Entries&q=marital

Page 605

[https://perma.cc/5GSY-CND2] (defining "marital" as "[o]f or relating to marriage, or the relations between [spouses]"); Oxford English Dictionary Online, "Lifestyle" (defining "lifestyle" as "[a] style or way of living"; "characteristic manner in which a person lives [or chooses to live] [one's] life").

As it regards the couple's financial decisions, "marital lifestyle" includes the typical way the parties regularly allocated their income during the marriage; to be considered the marital lifestyle, such allocations must be so customary as to identify the parties' financial decision-making during the marriage. See Oxford English Dictionary Online, "Characteristic" (defining "characteristic" as something "[t]hat serves to identify or to indicate the essential quality or nature of a person or thing; distinctive; typical"). Accord Rhew v. Rhew, 138 N.C. App. 467, 473 (2000) ("the trial court can properly consider the parties' custom of making regular additions to savings plans as a part of their standard of living in determining the amount and duration of an alimony award" where "[e]vidence was presented that established an historical pattern of such contributions" [citation omitted]); Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16 (inclusion of saving as part of needs analysis permissible where contribution to savings accounts "was standard practice during the marriage and helped to form the couple's marital standard of living").

Thus, the plain meaning of the alimony statute's directive that the judge must consider the "marital lifestyle" and the "ability of each party to maintain the marital lifestyle" requires consideration of saving where the evidentiary record shows it was a regular practice during the marriage. G. L. c. 208, § 53 (a). These statutory terms encompass not just consumption spending on goods and services, but also the deliberate choice during the marriage to devote income to savings regularly.

B. Need. This construction of "marital lifestyle" as permitting the consideration of the couple's pattern of contributions toward savings is buttressed by G. L. c. 208, § 53 (b), which provides in relevant part: "the amount of alimony should generally not exceed the recipient's need." [Note 16] The term "need" is not defined; however,

Page 606

in view of the alimony statute's enumerated factors, we have stated that

"the need for support of the recipient spouse (here, the wife) under general term alimony [Note 17] is the amount required to enable her to maintain the standard of living she had at the time of the separation leading to the divorce" (emphasis added).

Young, 478 Mass. at 2-3. Where the parties' combined income is adequate to allow both spouses to maintain the standard of living enjoyed during marriage, "the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the [marital] lifestyle he or she enjoyed prior to termination of the marriage." [Note 18] Id. at 6, quoting Pierce v. Pierce, 455 Mass. 286, 296 (2009). See 1 Lindey and Parley on Separation Agreements and Antenuptial Contracts § 22.63[2][e] (2d ed. 2023) ("standard of living experienced during the several years before the divorce" relevant for alimony determination is preseparation standard of living); L.D. Wardle & L.C. Nolan, Fundamental Principles of Family Law 715 (2d ed. 2006) ("the historic base line for measuring need has been the standard of living the parties enjoyed during the marriage").

Thus, where the parties have a combined income sufficient to permit both spouses to maintain the marital standard of living, the statute's limitation that the amount of alimony generally should not exceed the recipient spouse's need for support depends on the parties' marital lifestyle. In other words, "'need' is a relative term for purposes of the act, [and] it must be measured in light of

Page 607

mandatory considerations that include the parties' marital lifestyle." Zaleski, 469 Mass. at 243. See Young, 478 Mass. at 7 ("the parties' needs expanded in accordance with the increasingly available income during the marriage" [quotation omitted]).

For example, where the parties' marital lifestyle at the time of their separation included lavish spending on luxuries, such as expensive vacations, high-end vehicles, art collections, and recreational boats, such discretionary spending is material to determining the amount of spousal support. See, e.g., Young, 478 Mass. at 4 (considering spousal support judgment in view of parties' lavish lifestyle during marriage, which included owning extravagant principal residence, maintaining Nantucket summer home, driving luxury vehicles, regularly dining out, enjoying expensive vacations, and purchasing luxury goods); D.L. v. G.L., 61 Mass. App. Ct. 488, 490 (2004) (factoring in spending on "the finest furniture, rugs, china, and jewelry," extensive travel, frequent entertaining, and membership in private social clubs, among other luxuries). Thus, the couple's customary financial decisions during the marriage regularly to allocate income for savings, no less than their consumption spending, must be considered where it characterized the parties' marital lifestyle and defined their standard of living.

Where the family budget during the marriage is characterized by regular saving, fewer resources necessarily are available for pure consumption spending. If, as the husband maintains, alimony strictly is measured by the marital level of consumption on goods and services, then the recipient spouse either must reduce that level of consumption in order to continue the pattern of saving that characterized the marital lifestyle or must abandon the practice altogether. See, e.g., In re Marriage of Drapeau, 93 Cal. App. 4th 1086, 1096 (2001) (Drapeau) (purpose of couple's saving was to retire early, goal which payor spouse could achieve but payee spouse could not without savings alimony); Vadala v. Vadala, 145 N.C. App. 478, 479 (2001) (without savings alimony spouse "will be forced to work much longer than she would have, had she continued to enjoy the standard of living to which she had become accustomed during her marriage, since she is unable to accumulate savings of an amount that would allow her to retire"). Such a construction would frustrate the alimony statute's purpose of maintaining each spouse's marital lifestyle where the parties' postdissolution income makes that outcome possible.

Because it is the manner in which a couple consistently allocated marital income -- not just how they spent it on day-to-day

Page 608

expenses and luxuries -- that determines their standard of living during the marriage, nothing in the limitation that the alimony award generally must not exceed the recipient spouse's "need," see G. L. c. 208, § 53 (b), precludes a judge from considering the parties' regular practices of saving. "[T]here is no demonstrable difference between one family's habitual use of its income to fund savings and another family's use of its income to regularly purchase luxury cars or enjoy extravagant vacations." Lombardi v. Lombardi, 447 N.J. Super. 26, 39 (App. Div. 2016). "[I]t would be a perverse state of the law if we, as a rule, always included in an alimony calculation all sums parties spent, even imprudently, but excluded sums wisely saved." Mintz v. Mintz, 2023 UT App. 17, ¶ 26. It would in effect "penalize those who are prudent enough to save during marriage." Drapeau, 93 Cal. App. 4th at 1096.

C. Division of marital estate. The husband contends that a couple's habit of saving cannot be considered in setting the amount of alimony because it is already subsumed in the marital estate in the form of assets; as such, the husband argues, saving already is considered in connection with the division of the marital estate under G. L. c. 208, § 34. [Note 19] That provision enumerates "the opportunity of each [party] for future acquisition of capital assets and income" as one factor that the judge must weigh in equitably distributing the parties' marital property. The husband argues that this factor therefore precludes the judge from considering the parties' habit of saving portions of their income during the marriage as an element of the parties' "marital lifestyle" under the alimony statute.

Page 609

Of course, the division of marital property pursuant to G. L. c. 208, § 34, and the provision of alimony pursuant to § 53, are to be considered in relation to each other. See D.L., 61 Mass. App. Ct. at 508 ("alimony and property division . . . are interrelated remedies that cannot be viewed apart"). Both alimony, under § 53, and the division of the marital estate, under § 34, are committed to the sound discretion of the trial judge to balance equitably, and the judge may adjust the award of each in relation to the other. See id.

While the husband is correct that the judge must ensure that the financial arrangement is fair "as a whole," Hassey v. Hassey, 85 Mass. App. Ct. 518, 523 n.12 (2014), quoting Grubert v. Grubert, 20 Mass. App. Ct. 811, 822 (1985), nothing in § 34 precludes consideration of the parties' custom of allocating substantial portions of their income to savings as part of the "marital lifestyle" under § 53. To be sure, an equitable distribution of the marital estate ensures that both parties reap the benefits of regular saving during the marriage in the form of the marital assets. However, where, as here, the parties' postdissolution income is sufficient for each party to continue to live the marital lifestyle, if routine saving is not considered in connection with the determination of alimony, the recipient spouse will be forced to rely on the appreciation of current assets while the payor spouse will be able to continue the full extent of the marital lifestyle, including regular saving. See Lombardi, 447 N.J. Super. at 40 ("it is not equitable to require [the wife] to rely solely on the assets she received through equitable distribution to support the standard of living while [the husband] is not confronted with the same burden").

Accordingly, we conclude that where, as here, a married couple has an established practice of saving during the marriage, a judge properly may consider such saving as a component of the couple's marital lifestyle in awarding alimony. In doing so, we join the vast majority of jurisdictions to have considered the issue. [Note 20] We realize that not everyone's resources permit such saving during

Page 610

the marriage, and that in many cases the parties' financial circumstances after dissolution may require that the standard of living enjoyed during the marriage be curtailed. In the circumstances presented here, however, as the couple's combined postdissolution income is adequate to allow both spouses to maintain the marital standard of living, the judge properly considered the parties' practice of saving as an element of their marital lifestyle.

ii. Financial support for wife's expenses. The husband also challenges the judge's decision to credit the wife's financial statement disclosing her expenses at the time of trial and to base the alimony award on her current reported spending rather than on the husband's accounting of the household's spending in the three years prior to the couple's separation.

In determining whether to award spousal support, and the amount thereof, under G. L. c. 208, § 53, a trial judge enjoys "broad discretion." Young, 478 Mass. at 5-6, quoting Zaleski, 469 Mass. at 235. Such an award "will not be disturbed on appeal unless plainly wrong and excessive" (quotation omitted). Zaleski, supra at 236, quoting Heins v. Ledis, 422 Mass. 477, 481 (1996). See Cavanagh, 490 Mass. at 405 (on appeal, our review is only for abuse of discretion). Instead, we confine our review to determining whether the judge's factual findings that the parties challenge on appeal are clearly erroneous, whether the judge considered

Page 611

the required statutory factors, whether the judge relied on any irrelevant factors, and whether the reasons for the judge's conclusions are "apparent" from the judge's findings. Zaleski, supra at 235-236.

The husband is correct that the proper measure of the recipient's need for support is "the marital lifestyle the parties enjoyed during the marriage, as established by the judge at the time of the order being issued." Young, 478 Mass. at 7. However, the crux of the husband's claim is not that the judge neglected this instruction; instead, his argument is that the judge credited the wrong evidence in determining the wife's need. Such determinations fall squarely within the judge's broad discretion. See id. at 5.

In financial filings, the husband represented that, excluding taxes and tithing, the family spent $193,203 in 2015, $146,241 in 2016, and $158,293 in 2017 (the three full years preceding separation). [Note 21] The judge found, however, that the husband's accounting failed "to recognize that a significant aspect of the parties' marital lifestyle was saving." Accordingly, the judge did not use the husband's reported figures to determine the amount of alimony.

The judge further considered the husband's report of the wife's spending following their separation. Specifically, the husband calculated that the wife spent $79,704.09 in 2018, $92,623.78 in 2019, and $224,144.64 in 2020. The judge found, however, that the wife's spending in these years was limited by the amount of support she received. Accordingly, he also declined to use these figures in calculating the alimony award. This determination that the wife's artificially constrained spending from 2018 through 2020 was not a reliable proxy for the marital lifestyle is well founded.

The judge instead credited portions of the wife's current financial statement as the best available record of the amount needed to maintain her marital lifestyle. He did not accept the wife's report blindly; he scrutinized the financial statement, crediting some expenses but excluding others to determine the wife's need

Page 612

for support. [Note 22] The judge's decision to credit this evidence followed a four-day trial, which included oral testimony and exhibits setting forth both parties' financial submissions. On this record, we cannot say that the judge erred in relying on financial statements filed shortly before trial to evaluate need based on the parties' lifestyle during the marriage. [Note 23] See generally Massachusetts Divorce Law Practice Manual § 6.4 (Mass. Cont. Legal Educ. 4th ed. 2019 & Supp. 2021) ("The financial statement . . . provides information relevant to the factors that must be considered when determining the appropriate form, amount, and duration of alimony. . . . As an exhibit, the statement can take the place of the attorney orally asking all the questions on the statement and receiving oral answers"). [Note 24]

Moreover, where the family earned approximately $1.3 million per year in 2016 and 2017, and the husband's postseparation expenses exceeded what he claimed the entire family spent preseparation -- despite the wife retaining primary responsibility

Page 613

for the unemancipated children -- we see no error in the judge's decision to discredit the husband's assertion that the needs of the marital lifestyle required only ten to fifteen percent of the household income. The judge acted within his discretion in determining that the evidence submitted by the wife reflected a valid assessment of the marital lifestyle.

The husband's challenge to the evidentiary basis for the wife's saving also fails. Evidence elicited at trial supports a conclusion that the parties' marital lifestyle included a pattern and practice of saving. [Note 25] Because we conclude that a judge may consider a marital practice of saving in determining a recipient spouse's need, and the record supports such a routine practice here, the judge did not abuse his discretion by factoring the parties' marital practice of saving into the alimony award. [Note 26]

Finally, the judgment, findings, and rationale of the judge reflect that he considered and weighed each of the mandatory factors required by G. L. c. 208, § 53 (a). Therefore, we conclude that the trial judge did not abuse his discretion in connection with the amount of weekly spousal support.

b. Division of liabilities. The husband also challenges the judge's division of the parties' liabilities. The power to make an equitable division of the marital estate is entrusted to the judge's discretion, and we review the decision to ensure the judge properly relied on the statutory factors enumerated in G. L. c. 208, § 34. Adams v. Adams, 459 Mass. 361, 371 (2011), S.C., 466 Mass. 1015 (2013). We must determine "whether the reasons for the judge's conclusions are apparent in his findings and rulings" (quotation and citation omitted). Id. The judge's decision as to equitable distribution is subject to reversal only if the division

Page 614

was "plainly wrong and excessive." Zaleski, 469 Mass. at 245, quoting Baccanti v. Morton, 434 Mass. 787, 793 (2001).

In dividing the marital estate, exact "[m]athematical precision is not required." Ross v. Ross, 50 Mass. App. Ct. 77, 81 (2000), quoting Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989) (accepting trial judge's approximate valuation of marital estate). However, "[i]t is the duty of the reviewing court to consider whether the apportionment of assets flows rationally from the judge's findings under § 34." Calvin C. v. Amelia A., 99 Mass. App. Ct. 714, 727 (2021), quoting Casey v. Casey, 79 Mass. App. Ct. 623, 629 (2011) (reversing judgment where judge ordered equal division of marital estate equity but assigned obligation to repay one shared liability solely to husband, substantially reducing his share of estate equity). See Martin v. Martin, 29 Mass. App. Ct. 921, 921 (1990) (findings must "lead logically to" result).

Here, the judge concluded that "a division of the marital estate with [the w]ife receiving approximately [fifty-five percent] and [the h]usband receiving approximately [forty-five percent] is most equitable." Accordingly, the judge awarded fifty-five percent of the marital assets to the wife and forty-five percent to the husband.

With regard to marital liabilities, however, the judge assigned to each spouse the liabilities listed in his and her own name, resulting in the wife being responsible for just $5,032 in liabilities, and the husband $343,280, or 98.6 percent of the total marital debts. While the liabilities assigned to the wife consisted solely of credit card bills, all but $280 of the liabilities assigned to the husband were for the family's unpaid tax debt incurred in 2020 and 2021. This assignment of liabilities skewed the net division of the marital estate to a split of approximately fifty-nine percent to forty-one percent. [Note 27] The record does not reveal the rationale for this deviation of over $300,000 from the judge's stated intent to divide the marital estate with fifty-five percent to the wife and forty-five percent to the husband. See Calvin C., 99 Mass. App. Ct. at 727; Martin, 29 Mass. App. Ct. at 921. Moreover, the judge did not articulate any reason why these

Page 615

liabilities, which consisted primarily of the family's tax debt, should be assigned solely to the husband, aside from noting that the wife "acted within her right to file [taxes] separately." While the wife very well may have been entitled to file separately, that right does not bear on the equitable division of the tax debt, the primary marital liability. Accordingly, we conclude that the division of liabilities was erroneous. [Note 28]

4. Conclusion. So much of the judgment of the Probate and Family Court as addressed the division of liabilities is vacated; the judgment is otherwise affirmed, and the matter is remanded for further proceedings consistent with this opinion.

So ordered.