Legal opinion on increased spousal support based on a lottery winning by the paying spouse
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Two years ago, Tina Wolf was divorced from her husband of twelve (12) years, Tom, a successful investment banker. As part of the divorce judgment (which incorporated Tina and Tom`s voluntarily agreed upon divorce settlement agreement), Tina was awarded monthly spousal support. This spousal support has been sufficient to meet Tina’s needs. Six (6) months ago, Tom won the lottery in our state. Tom will now receive approximately seven hundred thousand dollars ($700,000) per year from the state lottery for the next thirty (30) years.
Whether or not Tina can seek a modification of her spousal support and receive increased spousal support based on Tom`s significant change in circumstance in having won the lottery.
As provided under the General Laws of Massachusetts, “After a judgment for alimony or an annual allowance for the spouse or children, the court may, from time to time, upon the action for modification of either party, revise and alter its judgment relative to the amount of such alimony or annual allowance and the payment thereof, and may make any judgment relative thereto which it might have made in the original action.” (M.G.L.A. c. 208, § 37). Hence, the law allows for the amount of alimony or spousal support to be revised or altered upon action for modification of either party (M.G.L.A. c. 208, § 37). And in order that the amount of alimony to be paid may be determined, “the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.” (M.G.L.A. c. 208, § 34).
An action to modify a judgment for alimony may only be successful if the petitioner can demonstrate “a material change of circumstances since the entry of the earlier judgment.” Schuler v. Schuler, 382 Mass. 366, 378, 416 N.E.2d 197 (1981). Since, the modification of alimony judgment lies entirely within the discretion of the trial judge, the judge must first weigh all relevant circumstances to determine the extent and palpability of a change in circumstances which would warrant its modification. Downey v. Downey, 55 Mass.App.Ct. 812, 774 N.E.2d 1149 Mass.App.Ct., 2002. Thus, as held in Downey v. Downey, 55 Mass.App.Ct. 812, 774 N.E.2d 1149 Mass.App.Ct., 2002, “Unless there is no basis in the record for the judge’s decision concerning a motion for modification of alimony, an appellate court defers to the judge’s evaluation of the evidence presented at the trial.”
The substantial change in the financial condition or needs of the husband or wife since the decree was entered is said to be frequently used as a ground, for the modification of a decree for alimony or maintenance (M.L. Cross, Change in Financial Condition or Needs of Husband or Wife as Ground for Modification of Decree for Alimony or Maintenance, 18 A.L.R.2d 10, 1951). The pre-requisite that there be a substantial change in the circumstances is relevant not only because the said decree is considered to be res judicata, but also for the reason that the court will not make a new order if the circumstances present at the time of application for modification are substantially same as those previously adjudicated (18 A.L.R.2d 10, 1951). Considering that the lottery winnings involving a huge amount won by the husband definitely increased his income, would this alone serve as a change in circumstance to warrant an increase or modification in the amount of alimony?
As explained by M.L. Cross, “the substantial increase in the husband’s income will justify an increase in alimony or maintenance if the other circumstances of the case make an increase proper,” (18 A.L.R.2d 10, 1951). Hence, it does not automatically require that there be an increase in payments in the alimony just because of the increase in the husband’s income as “the wife may have had an increase in income, or may have inherited property since the original order was entered, or other circumstances may justify a refusal to increase the payments,” (18 A.L.R.2d 10, 1951).
In Lane v. Lane, the Court said that in order to determine if a change in the condition justifies an increase in alimony payments, it is not enough that the husband’s income or net worth alone has greatly increased after the judgment was made, 439 S.W.2d550 (Mo.Ct. App. 1969). Court added that, the said increase is considered only to determine his ability to pay more as a result in the change of condition to justify an increase in alimony payments, and even if the husband’s income trebled since the decree, said fact only becomes material “if it is determined that wife is entitled to receive a larger sum in order to maintain her in about the same standard of living to which she was accustomed at the time of the decree and prior thereto,”(Lane v. Lane, 439 S.W.2d550 (Mo.Ct. App. 1969).
In another case, the Court held that, “Increase in husband’s wealth and earning capacity does not alone justify increase in alimony, but can only be considered in connection with his ability to meet increased cost of maintaining wife in station in life enjoyed by her at time of divorce,” (Harriman v. Harriman, 281 S.W.2d (Mo. Ct. App.1955).
The mere fact that the husband’s income increased, was not sufficient to justify an increase in alimony, in the absence of evidence that would show that the wife was unable to live on alimony as provided in original decree (Hughes v. Hughes, 54 A.D.2d 83, 388 N.Y.S.2d 664 (2d Dep’t 1976). Hence, generally, an increase in the paying spouse’s or obligor’s income alone will not be sufficient for a change in circumstance to allow increase in periodic alimony payments (Gross v. Gross, 64 Ohio App. 3d 815, 582 N.E.2d 1144 (10th Dist. Franklin County 1990). The exception however that the court gave to this rule is that “increase in income may justify increase in alimony if obligor’s income was insufficient at the time of original decree to support recipient at standard of living maintained during marriage and increase in income will allow this level to be reached,” (Gross v. Gross, 64 Ohio App. 3d 815, 582 N.E.2d 1144 (10th Dist. Franklin County 1990).
A very relevant case is that of Welford v. Nobrega which involved lottery winnings by the husband. In the said case, former wife of purchaser of winning lottery ticket brought action for modification of judgment of divorce as result of former husband’s winnings (Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, 1991). However, “the purchaser’s girlfriend brought separate declaratory judgment action to settle conflicting claims of ownership to winning ticket created by former wife’s proceedings,” Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991). The Court in this case, held that “the former wife was not husband’s ‘creditor’ on basis of her continuing right to modification of support orders upon material change in circumstances for purposes of wife’s claim that former husband’s agreement to share lottery winnings with girlfriend constituted fraudulent conveyance and that entire winnings should be considered as those of husband in wife’s action to increase support,” Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991).
The Court explained that “the prize won in lottery was co-owned in equal amounts between person who purchased lottery ticket and his girlfriend, and thus, purchaser’s former wife did not have claim against entire winnings in regard to husband’s support obligation,” Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991). The purchaser’s girlfriend in this case was able to prove that the she and purchaser appeared at office of commission to claim prize money as joint owners, and commission executed trust for equal benefit and without fraudulent on their part. Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991).
The Court cited that Gerald (the purchaser) and Nancy (former wife) were divorced in 1975, and the lottery windfall occurred in 1986 and even though Nancy was entitled to a modification of the outstanding alimony and support orders, Nancy is still not considered as a creditor which was defined as “a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent,” Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991).
A wife, where divorce proceedings are imminent, may qualify as a creditor under Chapter 109 A of the General Law of Massachusetts if conveyances were designed to frustrate the right to alimony or assignment of property. Yacobian v. Yacobian, 24 Mass.App.Ct. 946, 947, 508 N.E.2d 1389 (1987). The Court added that there is “no case, to our knowledge, has held that a divorced spouse seeking modification of outstanding orders long after the divorce became final is a “creditor” entitled to challenge prior transfers of property,” Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991).
Hence, the Court in this case held that the purchaser of the winning ticket and his girlfriend jointly owned the proceeds of the said lottery. Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239, (1991).
As taken from the applicable laws and case laws, the lottery winning of the paying spouse or an increase in his or her income does not automatically substantiate the increase in alimony of the recipient spouse. There also must be the existence of other circumstances to justify the dependent’s spouse’s entitlement to an increase in alimony.
Being in the court’s discretion, the dependent spouse has the burden to show that there is a need for a modification in the alimony probably because of an increase in the standard of living, a decrease in the dependent spouse’s ability to cope up with the said increase, and other circumstances to justify his or her case.
Indeed, the lottery winning involves a substantial amount of money but may not alone be considered as a substantial change in circumstance to justify modification. And as pointed out by M.L.Cross, “A substantial increase in the paying spouse’s income does not always require an increase in the amount of alimony or maintenance, since the recipient spouse may not need the additional allowance or other factors to justify a refusal to grant an increase,” 18 A.L.R.2d 10 (1951).
Tina’s claim to receive an increased spousal support based on Tom`s significant change in circumstance in having won the lottery cannot be used to justify a modification for spousal support. She must still prove the existence of other circumstances to substantiate her need for an increased spousal support. She must therefore, present evidence in court showing that her present alimony or spousal support is insufficient to meet her basic needs compared to what was originally decreed or other relevant reasons. Hence, basing one’s claim for an increased amount of alimony in the increased income of the paying spouse would not alone suffice.
Downey v. Downey, 55 Mass.App.Ct. 812, 774 N.E.2d 1149 Mass.App.Ct. (2002)
General Laws of Massachusetts M.G.L.A. c. 208, § 34
General Laws of Massachusetts M.G.L.A. c. 208, § 37
Gross v. Gross, 64 Ohio App. 3d 815, 582 N.E.2d 1144 (10th Dist. Franklin County 1990)
Harriman v. Harriman, 281 S.W.2d (Mo. Ct. App.1955)
Hughes v. Hughes, 54 A.D.2d 83, 388 N.Y.S.2d 664 (2d Dep’t 1976)
Lane v. Lane 439 S.W.2d550 (Mo.Ct. App. 1969)
M.L. Cross, Change in Financial Condition or Needs of Husband or Wife as Ground for Modification of Decree for Alimony or Maintenance, 18 A.L.R.2d 10 (1951)
Schuler v. Schuler, 382 Mass. 366, 378, 416 N.E.2d 197 (1981)
Welford v. Nobrega, 30 Mass. App. Ct. 92, 565 N.E.2d 1239 (1991)
Yacobian v. Yacobian, 24 Mass.App.Ct. 946, 947, 508 N.E.2d 1389 (1987)