Domestic relations – Alimony – Marital estate

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Where a Probate & Family Court judge entered a judgment of divorce nisi excluding the wife’s interest in certain real property from the marital estate and establishing a ‘self-modifying’ alimony order, the order dividing the marital estate and the order awarding general term alimony must be reconsidered and revised in large part because the findings that might have supported such orders are absent.

Need for reconsideration

“The Alimony Reform Act of 2011 (Act) is ‘a comprehensive effort to address numerous issues in alimony law,’ including the elimination of ‘any historical connection to gender status or outdated gender stereotypes,’ clarification of various types of alimony, and recognition of durational limits on alimony awards. … In this case, we review the application of key provisions of the Act, which has received only limited appellate consideration. …

“Three aspects of the Act are at issue in the instant case. First is the statutory formula providing that ‘the amount of alimony should generally not exceed the recipient’s need or 30 to 35 per cent of the difference between the parties’ gross incomes established at the time of the order being issued,’ G.L.c. 208, section53(b), and the grounds for deviation from that formula, G.L.c. 208, section53(e). Second is the amendment to G.L.c. 208, section34, governing property division, deeming ‘the amount and duration of alimony awarded under [sectionsection48 to 55]’ to be an additional mandatory factor now relevant to the equitable property distribution. Third is the interrelationship between the Act’s presumptive time limits for alimony orders as determined by the length of the marriage, G.L.c. 208, section49(b), its provision that ‘general term alimony’ must ‘terminate upon the payor attaining the full retirement age,’ G.L.c. 208, section49(f), and the grounds for deviation from these presumptions, G.L.c. 208, section53. …

“… The judge appropriately made reference in his findings to the over twenty-year length of the marriage, the spouses’ ages, and their respective incomes, employment, and employability; however, it is not clear that he considered the ability of each party to maintain the marital lifestyle. Although the parties’ stipulation that they maintained a ‘comfortable’ lifestyle during the marriage is incorporated by reference into the judge’s findings, there is no finding with regard to the wife’s ability or inability to maintain that lifestyle after the divorce.

“It is undisputed that the wife has no income of her own, and we infer that the trial judge, in his discretion, determined the husband’s annual income to be $250,000. The alimony order of $8,500 per month is nearly 41 percent of the difference in incomes, thus exceeding the 30 to 35 percent range set forth in section53(b). While such an award may nonetheless be reasonable and lawful under section53(b) if based on a specific determination of the recipient’s need (and assuming a proper consideration of the other spouse’s ability to pay), we cannot say that is the case here because the judge made no finding as to the amount of alimony the wife needed in order to maintain the lifestyle she enjoyed during the marriage. … Because the order for general support alimony as presently constituted does not flow rationally from the judge’s findings, it is not in compliance with section53(b). …

“Furthermore, we are unable to uphold the so-called ‘self-modifying’ portion of the alimony order. … It appears that the judge intended this provision to allow the wife to share in the future earnings of the husband’s dental practice, in recognition of her contributions during the marriage. However, as the husband correctly points out, section53(b) requires the judge to determine the parties’ respective needs and incomes at the time the order is issued. It is also significant that the Act recognizes for the first time in Massachusetts four different types of alimony awards: ‘general term alimony,’ ‘rehabilitative alimony,’ ‘reimbursement alimony,’ and ‘transitional alimony.’ On the record before us, the judge’s self-modifying alimony does not fit into one of the four types of alimony awards authorized by the Act. …

“In the present case, unless preceded by either party’s death or the wife’s cohabitation, the judge’s order directs the husband to continue paying alimony until his ‘retirement as defined in the Act Reforming Alimony of 2011, as it may be amended.’ The judge did not make a written explanation of the precise intent of the order or suggest why he may have intended to deviate from the section49(f) default that the order will terminate upon the husband’s reaching ‘full retirement age.’ The trial transcript suggests to us that the judge was aware of the Act’s default duration and intended for it to apply in this case. The husband nonetheless argues that the order is ambiguous because the Act does not define the term ‘retirement,’ and the order could therefore be read to terminate instead upon the husband’s actual retirement. Because the order could be read as the husband suggests and because the case must be remanded in any event, we also vacate and remand this portion of the amended judgment to enable the judge to eliminate the ambiguity. …

“In view of the family’s enjoyment of the Chatham property during the marriage — contributed by the wife to the marital partnership — the exclusion of the wife’s interest in the Chatham property cannot be sustained. We think the judge took too narrow a view of ‘financial reliance’ upon an asset, evidently basing his analysis solely on the asset’s impact on the family’s tax obligations. It is undisputed that the parties and their children spent annual summer vacations at the Chatham property. The wife’s one-third share of Pond View Associates was valued at $300,000, which results in an approximation of the value of the property at $900,000. Had the wife’s interest in this property been unavailable to the family during the marriage, the parties would have incurred significant costs to rent a comparable property for summer vacations. It follows that the wife’s interest in the Chatham property provided tangible financial value to the family during the marriage. We therefore conclude that the judge’s finding that the parties never relied on the wife’s interest in Pond View Associates as a financial resource during the marriage is not supported by the evidence. Consequently, paragraph 6 of the amended judgment, which excludes this property from the marital estate, must be vacated.”

Hassey v. Hassey (Lawyers Weekly No. 11-074-14) (22 pages) (Agnes, J.) (Appeals Court) Case heard by Abber, J., in Probate & Family Court. John A. Macoul for Edward P. Hassey; Joseph L. Doherty Jr. for Maryellen S. Hassey (Docket No. 13-P-864) (June 25, 2014).