MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff husband appeals from a September 12, 2019 divorce judgment, challenging a provision requiring the parties to file joint Federal and State tax returns for tax years 2017 and 2018, and to share equally in any tax refund or liability for each of those years. We affirm.
Background. Pursuant to a temporary order dated February 28, 2017, the husband was required to pay to the defendant wife temporary alimony during the pendency of the divorce proceedings in the amount of $1,153 per week “representing 35% of the difference between the parties’ respective gross, base compensation.” Following a trial, judgment of divorce nisi entered. That judgment obligated the husband to pay to the wife alimony in the amount of $1,375.77 per week, to “continue until November 21, 2030, following the date of [the] Judgment.”
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The judgment further ordered the parties to file joint Federal and State income tax returns “[f]or 2017 and 2018,” and to “share equally any tax refund or liability.” Otherwise, the judge largely divided the marital estate equally, with some exceptions not relevant to the present appeal.
Discussion. The husband contends that in requiring the parties to file joint tax returns for 2017 and 2018 (the two years during which the divorce action was pending), the judge superseded Federal law by removing the husbands right to choose his tax filing status and to deduct his alimony payments from his taxable income. He argues that being unable to deduct his alimony payments resulted in a significantly higher net alimony obligation to him, exceeding the presumptive thirty-five percent cap set forth in the Alimony Reform Act. See G. L. c. 208, § 53 (b) (“alimony should generally not exceed the recipients need or ․ 35 per cent of the difference between the parties’ gross incomes”). The husband further contends that the judge erred in ordering the parties to share equally in any tax refund or liability, in contravention of the “separate filings rule” set forth in Hundley v. Marsh, 459 Mass. 78, 82 (2011) (in context of bankruptcy proceeding, joint tax refund must be allocated based on “each spouses hypothetical individual tax liability” as if spouses had filed separately).
The wife counters that the husband raised the joint tax filing issue for the first time on appeal. The husband, however, claims that this is a matter of first impression, and he thus may raise it here for the first time. The wife further asserts that the judge was not obligated to “grapple” with the tax consequences resulting from joint income filings because the husband failed to present evidence of such consequences. The wife has the better argument.
We agree with the husband that in fashioning divorce judgments, “where the issue of tax consequences has been raised and the judge has been provided with appropriate evidence in the record, the judge should consider the tax consequences arising from a judgment” (quotation and citation omitted). L.J.S. v. J.E.S., 464 Mass. 346, 350 (2013). Here, however, the husband did not raise the issue of tax consequences at trial. Further, neither he nor the wife asked the judge to order the parties to file individual rather than joint tax returns. To the contrary, in the wifes posttrial proposed findings of fact, she asserted that with respect to the outstanding 2017 and 2018 income tax returns, she was “willing to file jointly with [husband] to minimize their overall income tax liability and to allow for the use of their withholdings toward taxes due.” Likewise, in the husbands posttrial proposed findings of fact, he stated that the “parties have not filed their 2017 or 2018 joint tax returns.” Insofar as both parties referenced the tax obligation in terms of “joint” returns, we cannot fault the judge for ordering them to file accordingly. The husband responds that the customary and proper practice is to order the parties to file individual returns. Although that may be so, our cases have required parties to request the judge to consider particular tax consequences, either through evidence at trial, or through a posttrial motion or submission. See L.J.S., supra at 350-351 (“In some circumstances, tax consequence issues may be raised during trial; in others, the issues may be more appropriately raised in a postjudgment motion to amend the judgment under Mass. R. Dom. Rel. P. 59 (e), or for relief under Mass. R. Dom. Rel. P. 60 (b)”); Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989) (“If parties do not request the judge to consider particular tax consequences and do not introduce reasonably instructive evidence bearing on those tax issues, the probate judge is not bound to grapple with the tax issues”). Here, the husband filed no such motion and introduced no such evidence at trial or in any posttrial submission. Thus, the claim is waived. See Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) (“An issue not raised or argued below may not be argued for the first time on appeal”).
Of final note, the husband provided no evidence to the judge regarding the alleged disparity between the tax liability that would result from filing jointly versus the tax liability that would result from filing separately. See Fechtor, 26 Mass. App. Ct. at 866 (“No evidence was offered about the basis of the husbands non-business assets and what the tax impact of liquidating at current market values would be”). Indeed, the husband acknowledges that the estimated difference in tax liability was not part of the record before the judge. Under these circumstances, we cannot say that the judge abused her discretion.
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Judgment of divorce dated September 12, 2019, affirmed.
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FOOTNOTES
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. The judge issued a twenty-three page “rationale” with comprehensive findings of fact and conclusions of law, in which she explained that the alimony amount represented “thirty-two (32) percent of the difference between the parties’ respective gross, base compensation.”
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. We deny the wifes request for attorneys fees and costs. Although we are not persuaded by the husbands arguments, on the record before us we cannot say that the appeal is frivolous. See Avery v. Steele, 414 Mass. 450, 455 (1993).
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. To the extent that we have not specifically addressed subsidiary arguments in the parties’ briefs, they have been considered, and do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).