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25-P-197 Appeals Court
JOANNE M. POPP vs. ROBERT L. POPP.
No. 25-P-197.
Middlesex. December 3, 2025. – July 27, 2026.
Present: Meade, Desmond, & Wood, JJ.
Divorce and Separation, Alimony, Modification of judgment,
Separation agreement, Notice, Appeal. Probate Court,
Divorce.
Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on January 28, 2010.
A complaint for modification, filed on July 2, 2018, was heard by Thomas J. Barbar, J.
Joanne M. Popp, pro se.
James A. Reidy for the husband.
DESMOND, J. Joanne M. Popp (wife), the former spouse of
Robert L. Popp (husband), appeals from a Probate and Family
Court modification judgment, dated January 21, 2021, which
awarded her alimony to terminate at the durational limits set
2
forth in the Alimony Reform Act (ARA), St. 2011, c. 124.1 See
G. L. c. 208, § 49. The wife challenges both the amount and the
termination date of the award.2 We conclude that (1) the judge
did not consider the parties' station in setting the amount of
alimony, as is required under G. L. c. 208, § 34 (§ 34); and
(2) the judge did not adequately explain why the alimony award
would terminate when the husband reaches full retirement age on
or about May 29, 2029. Accordingly, so much of the modification
judgment as pertains to the monthly alimony amount and
termination at the husband's full retirement age is vacated and
the matter is remanded for further proceedings consistent with
this opinion. The judgment is otherwise affirmed.
Background. The parties married in 1988, divorced in 1994,
remarried in 1996, and divorced again in 2011. The parties'
2011 divorce judgment incorporated a separation agreement
(agreement) that required the husband to pay alimony to the
1 The husband filed his own notices of cross appeal but did not take the steps necessary to docket the appeal. His cross appeal is, therefore, not before us. See Bottiggi v. Wall, 54 Mass. App. Ct. 430, 431 n.1 (2002).
2 In addition to the modification judgment, the wife's notice of appeal designates the order denying her posttrial motion for relief from the judgment, dated February 16, 2021, and the order denying her posttrial motion to amend the findings of fact, also dated February 16, 2021. However, the wife's brief raises no separate argument as to the posttrial motions, other than the argument addressed in note 3, infra, so we do not discuss those motions further.
3
wife. Pursuant to the agreement, the husband was required to
make monthly alimony payments of certain amounts and further
annual payments based on a percentage of his earnings. The
original alimony obligation was to continue "until further order
of [the] Court, the death of either party or the remarriage of
the Wife, whichever event occurs first." The alimony provisions
of the agreement merged with the divorce judgment and did not
survive, except for the terms of one paragraph. That paragraph
is as follows:
"In any modification proceedings brought by either party,
the parties agree that the Wife may exclude from
consideration the first $100,000.00 of any yearly income
she may earn. In addition, any income, other than alimony
support, made by the Wife up to $100,000.00 each year and
savings therefrom, any decision by the Wife to move to a
smaller home, proceeds from the sale of the Wife's home and
savings therefrom, any reduction in [the] Wife's expenses,
and/or the emancipation of the children, or reduction of
costs by the Wife, shall not be grounds for modification.
The provisions of this paragraph shall survive as an
independent contract and shall not be merged in the
parties' judgment of divorce."
In 2014, the husband filed a complaint for modification,
claiming a change in circumstances because his income had
decreased. See Popp v. Popp, 477 Mass. 1022, 1022 (2017). In
2015, a judge of the Probate and Family Court found that a
change in circumstances had occurred, reduced the husband's
monthly payment obligation, and preserved the structure of his
additional annual alimony obligation by ordering him to pay the
wife "36.75% of any income . . . in excess of $280,000 annually
4
up to an income cap of $875,000.00" each year. The judge also
applied the durational limits of the since-passed ARA and
ordered alimony to terminate upon the first to occur of the
death of either party, the wife's remarriage, or in August 2020,
unless otherwise modified by the court. See G. L. c. 208, § 49,
added by St. 2011, c. 124, § 3. The wife appealed from that
modification judgment, and the Supreme Judicial Court affirmed
it. See Popp, supra at 1023. See also Van Arsdale v. Van
Arsdale, 477 Mass. 218, 218-219 (2017) (application of
durational limits under ARA to alimony agreements that predate
ARA not unconstitutionally retroactive).
In July 2018, the wife filed the complaint for modification
at issue here, seeking alimony beyond the ARA's durational
limits. She alleged material changes in circumstances,
including that her health had worsened. A different Probate and
Family Court judge presided over a trial in September and
October 2020 and issued a modification judgment in January 2021.
The judge found that the wife had met her burden to show that
deviation beyond the durational limits of the ARA was required
in the interests of justice. See George v. George, 476 Mass.
65, 70 (2016), quoting G. L. c. 208, § 49 (b). In setting the
support amount, he reasoned that the wife "is no longer entitled
to alimony in an amount sufficient to meet the marital
lifestyle," and he limited the payments "to the amount necessary
5
to provide [the wife] with some level of support based on her
needs as they presently exist." Accordingly, he ordered the
husband to pay alimony of $6,707.87 per month and made no order
for annual, percentage-based payments. The judge ordered that
the new support payment begin on the prior termination date and
end when the husband reached his full Social Security retirement
age.
Discussion. "[A] judge enjoys considerable discretion in
fashioning an appropriate modification judgment, and that the
judgment may not be reversed in the absence of an abuse of
discretion." Pierce v. Pierce, 455 Mass. 286, 293 (2009). "The
judge's reasons for his conclusions, however, must be apparent
in his findings and rulings," and "[a]ny failure in the
decision-making process to consider and explain the effect of an
important fact may require reversal of the judgment in order to
permit consideration and explanation of the omitted subject."
Redding v. Redding, 398 Mass. 102, 108 (1986).
The ARA imposed presumptive limits on the duration of
alimony to "provide parties with a clear expectation of a finite
period of time alimony will be paid and/or received" (quotation
and citation omitted). Clement v. Owens-Clement, 98 Mass. App.
Ct. 632, 639 (2020). This presumption may be overcome, however,
and alimony may be awarded beyond the durational limits, where
written findings based on the evidence show that deviation is
6
"required in the interests of justice." George, 476 Mass. at
70, quoting G. L. c. 208, § 49 (b). "This is not a hollow test,
nor is it an easy burden to meet, and it requires the judge to
consider both parties' circumstances at the time that deviation
is sought" (citations omitted). Clement, supra at 640.
"The statutory factors to be considered in connection with
deviation beyond the durational limits are" the grounds for
deviation "set forth in G. L. c. 208, § 53 (e)." Voorhis v.
Relle, 97 Mass. App. Ct. 46, 50 (2020). Relevant here, the
"[g]rounds for deviation may include: (1) advanced age; chronic
illness; or unusual health circumstances of either party; . . .
(8) a party's inability to provide for that party's own support
. . . ; and (9) upon written findings, any other factor that the
court deems relevant and material." G. L. c. 208, § 53 (e). In
determining whether to grant the deviation, "a judge should
evaluate the circumstances of the parties in the here and now;
that is, as they exist at the time the deviation is sought,
rather than the situation as it existed at the time of divorce."
George, 476 Mass. at 70. The determination of whether to
deviate, and what amount of alimony to award if deviation is
granted are interrelated; both are tailored to the circumstances
"in the here and now" that make deviation necessary and in the
interests of justice. Id. See Clement, 98 Mass. App. Ct. at
642 (no abuse of discretion to deviate from presumptive
7
durational limits where recipient "is unable to provide for her
own support").
However, modifications of alimony judgments may be made
only "under the terms and standards of modification existing at
the time the judgment entered." Chin v. Merriot, 470 Mass. 527,
536 (2015). See Griffin v. Kay, 101 Mass. App. Ct. 241, 245
(2022). See also Hay v. Cloutier, 389 Mass. 248, 252-253 (1983)
(judgment of divorce that became final before October 17, 1974
amendment to G. L. c. 208, § 34, could not be modified on basis
of that amendment). Because the parties' judgment of divorce
entered before the ARA came into effect, a judge must consider
the G. L. c. 208, § 34, factors in setting the amount of an
alimony award after determining that deviation is appropriate
pursuant to the factors in G. L. c. 208, § 53 (e). See Chin,
supra; Griffin, supra. With that context in mind, we turn to
the wife's specific arguments.
Here, the wife raises several arguments challenging the
amount of the alimony award, including that the judge lacked the
statutory authority to modify the award, the judge improperly
expanded the issues beyond the final pretrial order, the judge
was required to adhere to the terms of the original divorce
judgment or the 2015 modification judgment when awarding alimony
beyond the durational limits, and the judge was required to
8
consider the parties' marital lifestyle. She also challenges
the termination of alimony at the husband's full retirement age.3
1. Monthly alimony award. a. Statutory authority. The
wife argues that the judge lacked the statutory authority to
award alimony in any amount other than the amount she received
before deviation in the absence of a separate complaint or
counterclaim alleging a material change in circumstances. We
disagree.
As the judge acknowledged prior to trial, he was not
required to treat the wife's request for deviation as an "allor-nothing" determination. The wife cites no authority
establishing that the judge was incorrect in this regard. The
wife's citation to Doktor v. Doktor, 470 Mass. 547, 550 (2015),
for the proposition that the ARA applied prospectively, other
than as to the durational limits, is unavailing. Indeed, "the
court may . . . upon the action for modification of either
3 The wife also argues that the judge's finding about her inheritance expectation is clearly erroneous and that, for that reason, the judge abused his discretion by denying her posttrial motions seeking relief from the judgment and to amend the findings of fact. First, we do not agree that the finding was clearly erroneous; the wife testified that her mother is ninetytwo years old and owns a home. Although we agree that the wife is not guaranteed to inherit from her mother, that is not what the judge found, and he was still permitted to consider the expectancy. Cf. Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375 (1985) (potential inheritance not subject to division in divorce but may be considered as factor in assigning divisible property).
9
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 [the court] might
have made in the original action." G. L. c. 208, § 37. See
Clement, 98 Mass. App. Ct. at 638 (ARA did not displace judge's
authority pursuant to G. L. c. 208, § 37).
The wife's related argument, that the amount of alimony
ordered after deviation was improper because the husband failed
to allege or show a material change in circumstances as to his
ability to pay alimony, fails for the same reason. See Pierce,
455 Mass. at 295, quoting G. L. c. 208, § 37 (after considering
§ 34 factors, judge may "make any judgment relative thereto
which [he] might have made in the original action").
b. Notice of issues at trial. The wife also argues that
the judge abused his discretion by awarding alimony in an amount
less than she had received under the 2015 modification judgment
because she had no notice that the amount of alimony was at
issue in the case. She points out that the judge's pretrial
order listed "alimony deviation" as the only contested issue,
that her complaint did not include any request to modify the
amount of alimony, and that the husband filed no counterclaim or
competing complaint. We are not persuaded.
The issues defined in a final pretrial order "ought to be
adhered to in the absence of some good and sufficient reason"
10
(citation omitted). Slade v. Slade, 43 Mass. App. Ct. 376, 378
(1997). However, "courts have consistently focused on the
elements of surprise and unfairness" in limiting issues to those
identified in pretrial orders. Id. at 379. Here, there was no
surprise; the record shows that the wife had notice that the
amount of the order was specifically at issue. The wife and her
counsel were present at the pretrial conference when the
husband's counsel asked directly, "[I]s this an all-or-nothing
situation . . . where it's still the same alimony for X amount
of years?" The judge responded, "No. I could . . . say that
it's a deviation but not the amount he's paying now." We are
therefore not persuaded that the wife had no notice that the
deviated award might not adhere to the amount awarded in the
2015 modification judgment.4
The wife further argues that comments made by the judge at
that hearing "foreclosed [her] from obtaining discovery"
regarding the husband's income. The wife refers us to a portion
of the pretrial conference transcript in which the judge
complimented her attorney's restraint in limiting discovery, but
in which he made no rulings as to the discovery permissible in
4 The wife argues that an earlier discussion at the pretrial conference, about the alimony obligation in place at the time of the hearing, clarified that the sole issue was the duration of the award. But contrary to the wife's suggestion, the discussion she quotes sheds no light on the anticipated scope of trial, only on the structure of the prior alimony order.
11
this case. Later, the wife's counsel agreed when the judge
suggested "we end the discovery." Indeed, nothing in the record
shows that discovery as to the husband's income was sought but
denied. See Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 575–576
(2023) ("An issue not raised or argued below may not be argued
for the first time on appeal" [citation omitted]). Nor would
the wife have been prejudiced from such a denial, where, as she
argues elsewhere, the reduction of her alimony award was not
based on a finding that the husband had an inability to pay a
higher award. See Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct.
153, 161 (1999) ("While discovery orders are reviewable on
appeal from entry of a final judgment, we do not interfere with
the judge's exercise of discretion in the absence of a showing
of prejudicial error resulting from an abuse of discretion"
[citation omitted]).
c. Effect of separation agreement. The wife raises two
arguments relating to the parties' agreement. First, she argues
that the judgment violated the surviving language of the
agreement, which provides that "any reduction in Wife's expenses
. . . shall not be grounds for modification" of alimony. She
contends that a "reduction in [her] financial statement
expenses" was the "basis" of the judgment's alimony award. In
his rationale, the judge explained that the award "should allow
[her] to obtain adequate housing, pay her ongoing uninsured
12
health expenses, and provide her with the necessities of day to
day life." While the wife is correct that the surviving
paragraph of the parties' agreement prohibits the husband from
using a reduction in her expenses as "grounds for modification,"
a judge fixing a modified alimony judgment must consider the
§ 34 factors, including the "health" and "needs" of the parties.
G. L. c. 208, § 34. The judge's finding reflects that he
properly considered the wife's financial circumstances as one of
several § 34 factors that a judge determining the amount of
alimony is required to consider. See Chin, 470 Mass. at 536.
See also G. L. c. 208, § 34, as amended through St. 1990,
c. 467.
Similarly, the wife argues that the judge was required to
take into account the intent of the parties at the time they
entered into the agreement by continuing to include an annual,
percentage-based payment of additional alimony. "A judge who
modifies a divorce judgment does not write on a tabula rasa. To
the extent possible, and consistent with common sense and
justice, the modified judgment should take into account the
earlier, expressed desires of the parties" (citation omitted).
Katzman v. Healy, 77 Mass. App. Ct. 589, 598 (2010). But
consideration of an agreement does not require strict adherence
to its terms. At most, the parties' intent was one of several
factors for the judge to consider. See Jones v. Jones, 101
13
Mass. App. Ct. 673, 683 (2022) ("Each case also must be decided
in the context of the governing statute, G. L. c. 208, which
requires us to undertake separate consideration of the award of
alimony and child support using distinct standards").
d. Station. However, we agree with the wife to the extent
that it was error for the judge to conclude that he could not
consider the marital lifestyle in setting the terms of the
alimony judgment.
In his rationale, the judge stated that "[t]he case law is
clear that [the wife] is no longer entitled to alimony in an
amount sufficient to meet the marital lifestyle," and "[the
husband's] continued obligation is limited to the amount
necessary to provide [the wife] with some level of support based
on her needs as they presently exist." Although the judge
correctly noted that the inability to maintain the marital
lifestyle is not grounds for deviation from the ARA's durational
limits under G. L. c. 208, § 53 (e), the "standards of
modification existing at the time the [original] judgment
entered" dictate which factors a judge is required to consider
in fixing the amount of alimony if deviation is granted. Chin,
470 Mass. at 536. See Hay, 389 Mass. at 252-253. At the time
of the parties' original divorce judgment those factors were
listed in G. L. c. 208, § 34, as amended through St. 1990,
14
c. 467, and included the "station" of the parties.5 See Pierce,
455 Mass. at 295. The "station" of the parties is "what is
required to maintain a standard of living comparable to the one
enjoyed during the marriage." See id. at 296, quoting Grubert
v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). Put another way,
the judge modifying an alimony order established pre-ARA is
required to consider the marital lifestyle. See Pierce, supra.
See also Redding, 398 Mass. at 108 ("Any failure in the
decision-making process to consider and explain the effect of an
important fact may require reversal of the judgment in order to
permit consideration and explanation of the omitted subject").
The husband relies on George, 476 Mass. 65, and Voorhis, 97
Mass. App. Ct. 46, to argue that the judge could not consider
the parties' marital lifestyle, yet neither case stands for that
proposition. George, supra at 66, concerned the denial of a
husband payor's request for modification that the Supreme
Judicial Court affirmed on the grounds that it was premature,
but the court further discussed "how the 'interests of justice'
standard of [G. L. c. 208, § 49 (b),] should be applied when
determining whether deviating beyond the durational limits of
the [ARA] is warranted." And Voorhis, supra at 49, concerned
5 We note that the wife, in her proposed rationale and conclusions of law, erroneously identified G. L. c. 208, § 53 (e), as listing the relevant factors to consider when setting an alimony award.
15
the denial of a wife payee's request for modification from the
durational limits. Because the court affirmed the denial of the
request for modification, it did not discuss what factors a
judge should consider in setting the modified alimony judgment
after a judge decides that deviation from the ARA's durational
limits is warranted. See id. at 52-53. As discussed supra, the
appropriate factors for modifying a divorce judgment that
originated before the ARA are those enumerated in G. L. c. 208,
§ 34, as amended through St. 1990, c. 467. See Chin, 470 Mass.
at 536. See also Pierce, 455 Mass. at 295.
Accordingly, to the extent that the judge believed that he
could not consider the parties' marital lifestyle in fixing the
nature and value of their alimony, it was error.6 See Chin, 470
Mass. at 536.
2. New termination date. Finally, the wife argues that
the judge abused his discretion by ordering alimony only until
the husband's full retirement age. We agree.
To begin, we disagree with the husband's argument that the
judge was, in fact, required to order termination at his
retirement age. Where the parties' original divorce judgment
6 In his rationale, the judge noted that he had considered "all the mandatory and relevant factors under G. L. c. 208, §§ 34 and 53"; however, as described herein, this statement conflicts with his statement that the wife "is no longer entitled to alimony in an amount sufficient to meet the marital lifestyle."
16
predated the ARA, the retirement provision of the ARA, G. L.
c. 208, § 49 (f), which has prospective application, is "not
applicable to modification of the alimony judgment in this
case." Doktor, 470 Mass. at 548. Therefore, to the extent that
the judge may have relied on G. L. c. 208, § 49 (f), to support
his decision to terminate the modified alimony judgment at the
husband's full retirement age, it was error to do so. See
Doktor, supra.
We are mindful that a judge "upon the action for
modification of either party . . . may make any judgment
relative thereto which [he] might have made in the original
action." G. L. c. 208, § 37. Nevertheless, "the abrupt
termination of otherwise unconditional and indefinite alimony
demands 'clear and adequate explanation'" (footnote omitted).
Katz v. Katz, 55 Mass. App. Ct. 472, 482 (2002), quoting Bowring
v. Reid, 399 Mass. 265, 268 (1987). See Robbins v. Robbins, 343
Mass. 247, 249 (1961) ("Although [G. L. c. 208, § 37,] appears
on its face to give complete discretion to the court in the
revision of alimony decrees, this court has repeatedly said that
no modification can be made unless the petitioner shows a change
of circumstances since the entry of the earlier decree").
Here, the judge's only finding related to the date when the
husband shall reach his full retirement age was that the husband
"credibly testified that he cannot afford to retire in the near
17
future based on his financial condition at the time of the 2020
Modification Trial." The findings are silent as to what
circumstances at the husband's full retirement age merit
termination. Without some demonstration of a material change of
circumstances justifying termination at the husband's full
retirement age, we are compelled to vacate so much of the
alimony judgment as it pertains to termination at that time.
See Redding, 398 Mass. at 108 ("The judge's reasons for his
conclusions . . . must be apparent in his findings and
rulings").
Of course, if a material change of circumstances occurs,
nothing prohibits the husband from initiating an action to
modify the alimony judgment "to reflect [his] diminished actual
income after retirement," Pierce, 455 Mass. at 304, and the
request would likewise need to be considered pursuant to all
relevant factors under G. L. c. 208, § 34, as amended through
St. 1990, c. 467.
Conclusion. So much of the modification judgment dated
January 21, 2021, as pertains to the monthly alimony amount and
termination at the husband's full retirement age is vacated and
the case is remanded for further proceedings consistent with
this opinion. During the pendency of the remand, the provision
of the judgment pertaining to the monthly alimony amount shall
18
remain in effect as a temporary order, unless otherwise ordered
by the judge. The remainder of the judgment is affirmed. The
orders dated February 16, 2021, denying the wife's postjudgment
motions are affirmed.
So ordered.