Zaleski v. Zaleski , 469 Mass. 230 ( 2014 )

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SJC-11391
CAROLYN ZALESKI vs. STEPHEN ZALESKI.
Essex. December 3, 2013. - August 1, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, &
Lenk, JJ.1
Divorce and Separation, Alimony, Division of property.
Complaint for divorce filed in the Essex Division of the Probate
and Family Court Department on December 20, 2010.
The case was heard by Amy Lyn Blake, J.
The Supreme Judicial Court on its own initiative transferred
the case from the Appeals Court.
Paul P. Perocchi (Cynthia Grover Hastings with him) for the
wife.
David E. Cherny (Catharine V. Blake with him) for the husband.
DUFFLY, J. The Alimony Reform Act of 2011, St. 2011, c. 124
(alimony reform act or act), changed the legal framework under which
courts may award alimony when a marriage ends in divorce. The act
1
Chief Justice Ireland participated in the deliberation on this
case prior to his retirement.
2
created four categories of alimony: "[g]eneral term alimony,"
"[r]ehabilitative alimony," "[r]eimbursement alimony," and
"[t]ransitional alimony," and placed durational limits on the length
of time alimony may be paid absent specific extenuating circumstances
as found by a judge before the statutory period expires. See G. L.
c. 208, §§ 48-52. We are asked to decide in this case of first
impression whether a Probate and Family Court judge abused her
discretion in determining that rehabilitative alimony, with its
presumptive five-year payment period, was the appropriate form of
alimony to be ordered, rather than general term alimony, which, based
on the length of the parties' marriage, would have permitted alimony
payments to continue for thirteen years.
In December, 2010, Carolyn Zaleski (wife) filed a complaint for
divorce from Stephen Zaleski (husband) on the ground of an
irretrievable breakdown of the marriage. Following trial, judgment
entered granting a divorce nisi on the basis of irretrievable
breakdown of the marriage, see G. L. c. 208, § 1B, awarding
rehabilitative alimony to the wife, dividing the marital assets, and
incorporating a stipulation of the parties regarding the custody and
education of their two children. The wife appealed, and we
transferred the case to this court on our own motion.
The wife challenges that portion of the judgment ordering the
husband to pay rehabilitative alimony rather than general term
3
alimony. She also challenges the judge's exclusion of the husband's
bonus income from the calculation of the amount of the alimony award;
the requirement that she maintain policies of term and whole life
insurance as security for her obligations under the divorce judgment;
and the division of marital assets, including the allocation of
marital debt. We conclude that it was not an abuse of discretion
to award rehabilitative alimony, and that the allocation of debt and
division of property between the parties was warranted by the
evidence. Nonetheless, we remand for further proceedings based on
our determination that it was error not to include all of the
husband's income in the calculation of the amount of alimony, and
that there was no basis in the judge's findings to require the wife
to maintain life insurance policies as security.
Background. We draw our summary of the facts from the judge's
written findings of fact. The parties were married on October 15,
1994, in Massachusetts. At the time of trial, the wife was
forty-five years old and the husband was forty-eight years old.2
They have two children, both of whom attend private schools; at the
time of trial, their daughter was a sophomore in high school and their
son was in the eighth grade. The parties are in agreement that their
son should also attend a private high school. In June, 2011, the
2
The trial took place over three nonconsecutive days from
January 31, 2012, to March 6, 2012.
4
parties agreed to a temporary parenting arrangement under which the
children resided in the marital home continuously and the parties
moved in and out of the marital residence to accommodate each party's
scheduled time with the children.3 The complaint for divorce was
served on the husband in February, 2011.4
The judgment of divorce ordered the husband to pay the wife
rehabilitative alimony in the amount of $11,667 per month for five
years; this amount is thirty-five per cent of the husband's annual
base salary of $400,000.5 A stipulation of the parties that provided
for shared legal and physical custody of the children was
3
Pursuant to this "nesting arrangement," as described by the
parties, when a party was not residing in the marital home with the
children, that party lived in a shared apartment that was maintained
by the parties for this purpose.
4
This was a marriage of approximately sixteen years and four
months under the definition of "[l]ength of marriage" in G. L.
c. 208, § 48 (defining "length of marriage" as "the number of months
from the date of legal marriage to the date of service of a complaint
. . . for divorce").
5
Alimony was to be paid by the husband in monthly instalments
commencing on July 1, 2012, and terminating on the earliest of July
1, 2017, the remarriage of the wife, or the death of either party.
For State and Federal income tax purposes, the alimony payments were
deductible by the husband, and included as taxable income to the wife.
See Holmes v. Holmes, 467 Mass. 653, 655 n.2 (2014). The husband
was ordered to maintain his then-current medical, dental, and vision
insurance for the benefit of the children until their emancipation,
and for the wife so long as she was eligible for coverage under the
terms of his employer-sponsored insurance coverage. In the event
of an additional cost to the husband to insure the wife, the wife
was to be responsible for such cost. Each party was responsible for
his or her own uninsured medical and dental expenses.
5
incorporated in the judgment; the judge ordered that neither was to
pay child support "at this time." The judgment further provided that
the husband shall be solely responsible for the children's private
school tuition and expenses, and that the parties shall share equally
the cost of the children's extracurricular and enrichment activities
and their uninsured medical and dental costs.6 In addition, the
judgment required both parties to maintain life insurance coverage
as it existed at the time of trial as security for their obligations;
allocated responsibility for certain joint indebtedness; ordered
that each party will have responsibility for liabilities standing
in his or her own name; and provided for a division of assets,
including a payment from the husband to the wife in the amount of
$27,466, "[i]n order to equalize the division."7
Discussion. 1. Statutory framework. Because there was no
alimony jurisdiction at common law, "the power to grant alimony was
6
No provision was made for payment of the children's future
college tuition and expenses. See Passemato v. Passemato, 427 Mass.
52, 54 (1998) ("as a general rule, support orders regarding the future
payment of post-high school educational costs are premature and
should not be made").
7
The judgment ordered that the wife transfer her interest in
the marital home to the husband, and required that the husband
refinance the existing mortgage and pay to the wife the sum of
$161,432, an amount equal to one-half of the equity in the home. The
judgment also ordered that certain bank accounts, investment
accounts, and retirement accounts standing in the individual name
of a party would remain that party's property. The husband's Merrill
Lynch 401(k) account and Fidelity Investments individual retirement
account were to be divided equally.
6
wholly statutory." Gottsegen v. Gottsegen, 397 Mass. 617, 621-624
(1986).8 The courts' authority to grant alimony has been set forth
in G. L. c. 208, § 34. As noted, the alimony reform act of 2011 added
new provisions to c. 208, creating four categories of alimony; only
rehabilitative and general term alimony are at issue here.9 Both
require that a judge consider the factors set forth in G. L. c. 208,
8
The courts' statutory authority to award alimony has existed
in the Commonwealth since 1786. See St 1785, c. 69.
9
The other two forms of alimony are reimbursement and
transitional alimony. Reimbursement alimony is defined as
"the periodic or one-time payment of support to a recipient
spouse after a marriage of not more than [five] years to
compensate the recipient spouse for economic or noneconomic
contribution to the financial resources of the payor spouse,
such as enabling the payor spouse to complete an education or
job training."
G. L. c. 208, § 48. Reimbursement alimony terminates on the death
of the recipient or on a date certain; once ordered, modification
of reimbursement alimony is prohibited and income guidelines,
applicable to all other forms of alimony, do not apply. G. L.
c. 208, § 51 (a)-(c).
Transitional alimony is defined as:
"the periodic or one-time payment of support to a recipient
spouse after a marriage of not more than [five] years to
transition the recipient spouse to an adjusted lifestyle or
location as a result of the divorce."
G. L. c. 208, § 48. Transitional alimony terminates on the death
of the recipient or a date certain "that is not longer than [three]
years from the date of the parties' divorce." G. L. c. 208, § 52.
The statute prohibits modification or extension of transitional
alimony, which, once ordered, may not be replaced with another form
of alimony. Id.
7
§ 53, in deciding the appropriate form of alimony:
"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."
G. L. c. 208, § 53 (a). These factors also are to be considered in
determining the amount of alimony to be awarded. Id. In sum, the
primary differences between rehabilitative and general alimony
relate to the initial term limits set forth in the act and the standard
by which the term of alimony may be extended.
Rehabilitative alimony is defined as "the periodic payment of
support to a recipient spouse who is expected to become economically
self-sufficient by a predicted time, such as, without limitation,
reemployment; completion of job training; or receipt of a sum due
from the payor spouse under a judgment." G. L. c. 208, § 48. The
alimony reform act provides, among other things, that
"[r]ehabilitative alimony shall terminate upon . . . the occurrence
of a specific event in the future," G. L. c. 208, § 50 (a),10 but also
10
General Laws c. 208, § 50 (a), provides in full:
"Rehabilitative alimony shall terminate upon the remarriage of the
recipient, the occurrence of a specific event in the future or the
death of either spouse; provided, however, that the court may require
the payor to provide reasonable security for payment of sums due to
8
that the alimony term shall not exceed five years. G. L. c. 208,
§ 50 (b). Extension of the term is authorized, however, on a showing
of compelling circumstances that "unforeseen events prevent the
recipient spouse from being self-supporting at the end of the term
with due consideration to the length of the marriage, [and] the court
finds that the recipient tried to become self-supporting." G. L.
c. 208, § 50 (b).11 The amount of alimony may be modified during the
term "upon material change of circumstance." G. L. c. 208, § 50
(c). By contrast, general term alimony is defined as "the periodic
payment of support to a recipient spouse who is economically
dependent." G. L. c. 208, § 48. Payments continue, subject to
durational time limits established by the act that depend upon the
length of the marriage; here, general alimony would have entitled
the wife to support payments of up to approximately thirteen years.12
the recipient in the event of the payor's death during the alimony
term."
11
General Laws c. 208, 50 (b), provides:
"The alimony term for rehabilitative alimony shall be not more
than [five] years. Unless the recipient has remarried, the
rehabilitative alimony may be extended on a complaint for
modification upon a showing of compelling circumstances in the event
that: (1) unforeseen events prevent the recipient spouse from being
self-supporting at the end of the term with due consideration to the
length of the marriage; (2) the court finds that the recipient tried
to become self-supporting; and (3) the payor is able to pay without
undue burden."
12
Because this was a marriage of approximately sixteen years
9
See G. L. c. 208, § 49. General term alimony can be extended for
"good cause" if there has been a material change in circumstances
and the reasons are supported by "clear and convincing evidence."
G. L. c. 208, § 49 (f) (2).
We turn to a consideration whether the judge's findings in this
case reflect that she considered the mandatory factors when
determining the appropriate form of alimony, and whether those
findings support her conclusion that the wife should receive
rehabilitative alimony. We then consider whether the findings
support the judge's determination regarding the amount of the alimony
award.
2. Standard of review. A judge has broad discretion when
awarding alimony under the statute. Heins v. Ledis, 422 Mass. 477,
480-481 (1996).13 In reviewing both the form and the amount of an
and four months, see note 4, supra, the durational period of general
term alimony is governed by G. L. c. 208, § 49 (b) (4), which provides:
"If the length of the marriage is [twenty] years or less, but
more than [fifteen] years, general term alimony shall continue
for not longer than [eighty] per cent of the number of months
of the marriage."
13
The legislative history clearly shows that the broad
discretion judges historically have had in making awards of alimony
was not affected by the Alimony Reform Act of 2011, St. 2011, c. 124
(alimony reform act). Indeed, the Legislature appears to have
viewed the creation of the four categories of alimony as providing
greater discretion to judges. A senator speaking in support of the
bill that would become the alimony reform act stated, "Under this
bill, people are provided with the ability to plan for their future.
10
award of alimony, we examine a judge's findings to determine whether
the judge considered all of the relevant factors under G. L. c. 208,
§ 53 (a), and whether the judge relied on any irrelevant factors.
Cf. Baccanti v. Morton, 434 Mass. 787, 790 (2001) (reviewing factors
under G. L. c. 208, § 34, regarding division of marital property).
"[I]t is important that the record indicate clearly that the judge
considered all the mandatory statutory factors," Rice v. Rice, 372
Mass. 398, 401 (1977), and that the reason for her conclusion is
apparent in her findings. Heins v. Ledis, supra at 481. "A judgment
will not be disturbed on appeal unless "plainly wrong and excessive."
Id., quoting Pare v. Pare, 409 Mass. 292, 296 (1991).
3. Rehabilitative alimony. a. Mandatory factors. A judge
has discretion in deciding whether to award rehabilitative alimony
rather than general term alimony, so long as she has given appropriate
They are provided with clear guidance. We still need discretion for
judges." See State House News Service (Senate Sess.), July 28, 2011
(statement by Senator Cynthia S. Cream). And in floor debates prior
to adoption of the alimony reform act, a representative stated, "We
create[d] several forms of alimony. . . . [The bill] gives judges
the ability to do things they can't do now." See State House News
Service (House Sess.), July 20, 2011 (statement by Representative
John V. Fernandes prior to vote to engross 2011 Senate Doc. No. 665).
See also State House News Service, Sept. 25, 2011 ("The bill lays
out for the first time in state law specific guidelines on the levels
and duration, amount and form of payments to former spouses. Reform
advocates say the bill will give judges more discretion on when and
how much alimony to award").
11
consideration to the factors identified in G. L. c. 208, § 53 (a).14
Where the determination is made that rehabilitative alimony, with
its shorter durational limits, is the most appropriate form, findings
based on those factors must support the conclusion that a recipient
spouse's economic dependence is temporary, and that, at a predictable
date, the dependent spouse can become self-sufficient by undertaking
reasonable efforts. See G. L. c. 208, §§ 48, 53.
Here, the judge made comprehensive findings of fact in
conjunction with her conclusion that the appropriate form of alimony
in this case was rehabilitative. "[W]e will not reverse findings
made by the judge on the basis of oral testimony unless we are
convinced they are plainly wrong." Felton v. Felton, 383 Mass. 232,
239 (1981). See Mass. R. Dom. Rel. P. 52 (a). According to those
findings, this was a marriage of approximately sixteen years and four
months; at the time of trial the wife was forty-five years old and
the husband was forty-eight years old; both parties enjoyed good
health, as did their children. During most of the marriage, both
parties were employed full time outside the home and contributed
their earnings to the marital enterprise. The marriage was a "true
partnership in every aspect," from the financial contributions that
14
There is nothing in the statutory scheme to suggest that, even
where there is evidence of conditions supporting rehabilitative
alimony, a judge must in every case award rehabilitative and not
general term alimony; indeed, a fine line may distinguish the two
in some circumstances.
12
each made "to child rearing[, and] to homemaking."
The husband, who holds a bachelor of arts degree in political
science, initially worked as a real estate appraiser, then as an
analyst and executive in real estate investment firms. The
husband's income, as reported on his Internal Revenue Service W-2
forms, was $302,442 in 2004. It increased annually until it reached
$1,024,555 in 2008, and was in excess of $900,000 in 2009 and 2010.
In 2011, the husband's income as reported on his W-2 forms was
$741,958.15 Since 2008, the husband's income has consisted of base
salary in the amount of approximately $400,000, and bonuses which
are paid annually in the year after they are earned. In 2011, the
husband also received $286,625 in nonrecurring deferred compensation
from a prior employer. The husband's income during the marriage was
always greater than that of the wife. The husband was found to be
self-supporting and fully employed commensurate with his training,
skills, and experience.
The wife holds a bachelor of science degree in business;
beginning early in the marriage, she was employed as a sales
15
According to the judge's findings, the husband "received"
bonuses from his present employer in the amount of $200,000 in 2008,
$200,000 in 2009, and $345,000 in 2010, but the uncontested trial
evidence reflects that those amounts were "earned" in the years
indicated and received a year later and that the husband's income
for 2011 included a bonus in the amount of $345,000, and in each of
2010, 2009, and 2008 his income included a bonus of $200,000. This
evidence is consistent with the judge's findings regarding the
husband's 2011 income.
13
representative and, starting in 1990, as a pharmaceutical sales
representative for several companies. In 2003, the wife was
promoted to the position of sales district manager, a job from which
she was terminated in 2007. See note 16, infra. At that time, her
base salary was in the range of $127,000 to $130,000 annually, with
a bonus of up to $40,000; she also had use of the company car.
The judge found that the wife, who has not been employed outside
the home since 2008, is not presently self-supporting, but has the
ability and the desire to work. The judge found credible the wife's
testimony that she wants to work and plans to work outside the home,
but found also that her job search efforts have been sporadic and
superficial, and that she had not used her best efforts to secure
employment.16 At the time of trial, the wife had received no
interview or job offers as a result of her job search. The judge
was not required to credit, or to give significant weight to, the
wife's assertions as to those steps she had taken in her job search,
which do not, even if credited, negate the finding that the wife had
not used her best efforts. Cf. Flaherty v. Flaherty, 40 Mass. App.
Ct. 289, 291 (1996). The judge did not credit the opinion of the
16
The judge found that, immediately after being terminated from
her job in 2007, the wife applied for a job with another company,
but received no response. Soon thereafter, the wife and her
sister-in-law started a consulting firm for early-stage
pharmaceutical companies, but the business closed after six months
because of what the judge described as "issues" in the
sister-in-law's life.
14
husband's expert that the wife was highly employable as a sales
manager or marketing manager and in those jobs could earn an annual
salary of $160,000 to $170,000, but did find that the wife had skills
that were transferrable across many fields beyond pharmaceutical and
medical device sales.
Also according to the findings, "[t]he parties lived an upper
middle class lifestyle during the marriage. They dined out,
vacationed, joined a yacht club," and owned boats, luxury vehicles,
and a second home, which the parties sold by agreement during the
litigation. The children attended private schools. The husband
held membership in a fish and game club, while the wife was a member
of a tennis club. The judge also found that the husband and wife
"spent beyond their means" and that, despite the husband's
significant income and the wife's "meaningful salary," their only
assets at the time of trial consisted of the equity in their home
and their retirement accounts.
The judge determined that the wife was in need of rehabilitative
alimony and that it was "anticipated that [the w]ife will return to
the workforce on a full time basis" within a predictable period of
time, and that until such time she "is in need of alimony." The judge
further found that, with reasonable effort, the wife "can be employed
within five years. At such time, the parties will need to review
each of their respective financial circumstances and the need for
15
continued alimony and/or child support."
These factors reflect that the judge gave consideration to all
the factors identified in G. L. c. 208, § 53 (a). We turn now to
the wife's claim that the findings do not support the judge's
determination that the wife will become self-sufficient by a
predictable date in the future.
b. Self-sufficiency by predicted date. The wife argues that
the judge abused her discretion in awarding rehabilitative rather
then general term alimony, because there is no specific event upon
which termination was based. The wife relies on the language in
G. L. c. 208, § 50 (a), which provides, in relevant part, that
"[r]ehabilitative alimony shall terminate upon . . . the occurrence
of a specific event in the future," to support her claim that
rehabilitative alimony is appropriate only where a judge has
identified a "specific event in the future," such as completion of
job training or a medical residency, passing a licensing examination,
or graduation from a specific educational program. We agree that
the examples provided by the wife can support the award of
rehabilitative alimony. However, we conclude that, in some
circumstances, the potential of future reemployment may provide a
basis for deciding that rehabilitative, rather than general term,
alimony should be awarded.
We interpret a statute according to "all its words construed
16
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." Board
of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975), quoting
Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975).
The reference to a "specific event" is found only in G. L. c. 208,
§ 50 (a), which establishes the durational limits for rehabilitative
alimony. The meaning of "specific event" must be considered in light
of other provisions in the alimony reform act that define
rehabilitative alimony and list the factors a judge must consider
when determining the form of the alimony award.
General Laws c. 208, § 48, defines rehabilitative alimony as
support paid to "a recipient spouse who is expected to become
economically self-sufficient by a predicted time, such as, without
limitation, reemployment; completion of job training; or receipt of
a sum due from the payor spouse under a judgment." Although the wife
makes no direct reference to this provision, it is implicit in her
argument that she views the term "reemployment" to mean a specific,
identifiable job that is expected to materialize on a date certain.
But future employment is also among the factors a judge must consider
in determining the form of alimony to be awarded.
As set forth in G. L. c. 208, § 53 (a), a judge must consider
17
the "employment and employability of both parties, including
employability through reasonable diligence and additional training,
if necessary." "Employable" has been defined as "capable of being
employed," Webster's Ninth New Collegiate Dictionary 408 (1991), and
"able to be employed," Webster's New Universal Unabridged Dictionary
638 (2003). "Employability" in this context means that a party has
the capability of being employed. As the act suggests, to become
employable may require that a party undertake "reasonable diligence
and additional training." Thus, although a party may not be employed
or employable at the time of entry of the alimony award, that party
still could have predictable prospects of future employment in a
specific type of work or position. In such circumstances, if a
party's employability in the near future is a realistic prospect,
rehabilitative alimony might, with other considerations, be
appropriate.
The act itself sheds no further light on the specific
circumstances in which a spouse might be deemed capable of economic
independence at some predictable date that is five years or less in
the future. Our decisional law, however, through which the concept
of rehabilitative alimony has developed, provides some guidance.
The purpose of an award of rehabilitative alimony is "to protect,
for a limited time, a spouse whose earning capacity has suffered (or
become nonexistent) while that spouse prepares to reenter the work
18
force." Moriarty v. Stone, 41 Mass. App. Ct. 151, 158 (1996),
quoting Bak v. Bak, 24 Mass. App. Ct. 608, 621-622 (1987). See
Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 867-868 (1989) (affirming
award rehabilitative alimony to "knowledgeable, experienced
businesswoman" who "may take some time" to reach level of earnings
she previously had achieved while employed at husband's business).
The award of rehabilitative alimony is appropriate when a spouse's
anticipated self-sufficiency is based on the predictable occurrence
of a future event, such as reemployment. Adlakha v. Adlakha, 65
Mass. App. Ct. 860, 870 (2006).17 In accordance with these cases,
the prospect of future employment, when based on a past history of
commensurate employment followed by a brief hiatus, may be
sufficiently predictable, even in the absence of an available,
specifically identifiable job.
Rehabilitative alimony is the appropriate form of alimony if
"a recipient spouse . . . is expected to become economically
self-sufficient by a predicted time." G. L. c. 208, § 48. Thus,
17
See Sampson v. Sampson, 62 Mass. App. Ct. 366, 371 (2004)
(durational limit not warranted where "simply uncertain" that wife,
sole proprietor of small business, could generate future income that
would render alimony unnecessary); D.L. v. G.L., 61 Mass. App. Ct.
488, 510 (2004) (durational limit not warranted where "simply
uncertain" whether wife's future income from employment would render
alimony unnecessary); Goldman v. Goldman, 28 Mass. App. Ct. 603, 613
(1990) ("Where future events cannot be predicted with any measure
of certainty, an alimony award should be based on present
conditions").
19
the alimony reform act permits a judge to determine that
rehabilitative alimony based on expected employment is appropriate
where there is sufficient evidence for a judge to find, with a
reasonable degree of certainty, that the recipient spouse can obtain
employment through reasonable efforts, and thereby can gain economic
self-sufficiency, in the near future. See G. L. c. 208, § 50 (b).
Here, the judge found that both parties are educated
professionals, experienced in their respective fields. The wife had
been employed outside the home until 2008, fewer than four years
before the end of the marriage; at that time, her income was
approximately $170,000. After losing her job, the wife pursued her
interest in interior design, attending classes in 2009 and 2010, and
started a business that failed through no fault of her own. The judge
found also that the wife wished to work, that she was highly
employable in the area of sales, that her skills were transferrable,
and that she could with reasonable diligence find employment at a
level permitting self-sufficiency. These findings support the
judge's determination that the wife can be "expected to become
economically self-sufficient by a predicted time." G. L. c. 208,
§ 48. Thus, the judge did not abuse her discretion in deciding that
the wife was not entitled to general term alimony under the specific
20
facts of this case.18 See Heins v. Ledis, 422 Mass. 477, 480-481
(1996).
4. Amount of alimony award. The wife also challenges the
amount of the alimony award, arguing that it should not have been
calculated solely from the husband's base salary, but rather should
have encompassed his income from all sources, including any bonuses.
The husband argues that alimony based on thirty-five per cent of his
base income is sufficient to meet the wife's needs; that any future
bonuses are the result of his own hard work alone; that the amount
of his future bonuses is speculative; and that by ordering him to
pay all of the cost of the children's private school education, the
judge was in essence excluding from his income an amount that the
judge had already considered for setting a child support order, as
provided by G. L. c. 208, § 53 (c) (2).
Included among the factors that the judge was required to
consider in determining the amount of the alimony award are "marital
lifestyle" and "ability of each party to maintain the marital
18
As to the circumstances of the wife's departure from her last
position, the judge found that the wife's employer had determined
after investigation that, as a sales district manager, she had
approved an expense of a sales representative who had misappropriated
the funds. The wife had no knowledge of this misappropriation, but
was fired nonetheless. However, as the judge noted in her findings,
the husband's expert was not asked what impact the involuntary
departure from employment would have on the likelihood of the wife's
ability to secure employment. The wife introduced no expert
testimony on this issue.
21
lifestyle." G. L. c. 208, § 53 (a). In addition, an award of
rehabilitative alimony is governed by the general guidelines for
awards of alimony, other than reimbursement alimony, that the amount
"should generally not exceed the recipient's need or [thirty] to
[thirty-five] per cent of the difference between the parties' gross
incomes established at the time of the order being issued." G. L.
c. 208, § 53 (b). Subject to certain exclusions,19 "income shall be
defined as set forth in the Massachusetts child support guidelines."
G. L. c. 208, § 53 (b).
As the provisions of G. L. c. 208, § 53 (b), make clear, where
an award of alimony is necessary to assure the "self-sufficiency"
of a spouse who is determined to be dependent -- whether for the short
or long term –- the award must reflect the parties' marital
lifestyle. One method of measuring the amount necessary to support
a spouse in a manner consistent with the marital lifestyle
(particularly where, as here, the parties were found to be spending
beyond their means) may be found in the provision that authorizes
19
General Laws c. 208, § 53 (c), provides:
"When issuing an order for alimony, the court shall exclude
from its income calculation:
"(1) capital gains income and dividend and interest income
which derive from assets equitably divided between the parties
under [§] 34; and
"(2) gross income which the court has already considered
for setting a child support order."
22
an alimony award based on "need," or on a percentage of "the
difference between the parties' gross incomes established at the time
of the order being issued." G. L. c. 208, § 53 (b). Because "need"
is a relative term for purposes of the act, it must be measured in
light of mandatory considerations that include the parties' marital
lifestyle. The judge found that the parties enjoyed "an upper middle
class lifestyle" that included dining out, vacations, memberships
in clubs, luxury automobiles, boats, and private schools for their
children. Although the husband's income at times prior to the
divorce approached or exceeded $1 million annually, the husband and
wife "spent beyond their means" and acquired few assets. On these
facts, the judge did not abuse her discretion in arriving at an award
based on thirty-five per cent of the husband's income, rather than
on a calculation of need based on historic marital spending. Cf.
M.C. v. T.K., 463 Mass. 226, 234 n.11 (2012) (noting distinction
between net worth and standard of living, and that household spending
is but one mode of establishing standard of living).
The question remains whether the judge was required to include
the husband's bonus income in this calculation. The language of the
act is clear that all of the payor spouse's income, as defined by
the Massachusetts Child Support Guidelines (guidelines), must be
included in any calculation of alimony, and bonus income is
23
specifically included in this definition.20 Caring for dependent
children is a factor to be considered in awarding child support, but
is not among the factors to be considered in determining alimony.
See G. L. c. 208, § 53 (a). See also Saia v. Saia, 58 Mass. App.
Ct. 135, 137-138 (2003).
It is certainly possible, as the husband suggests, that the
judge factored in as child support an amount the wife might otherwise
have been ordered to contribute to the costs of the children's private
schools, but the findings on this point are not clear. The judge
found that "the parties agreed that neither would pay child support
to the other," and, on this basis, ordered that neither party was
to pay child support "at this time." However, the record supports
the wife's claim that there was no agreement that the husband need
not pay child support. Rather, at trial the wife sought child
support calculated in accordance with applicable provisions in the
guidelines, and proposed that the amount so calculated would be
"designated . . . as alimony," so that the husband could enjoy the
20
The definition of income in the Massachusetts Child Support
Guidelines (effective Jan. 1, 2009) (guidelines) that were in effect
at the time of the trial in this case is very broad and includes
bonuses among twenty-seven specifically identified sources of
income, as well as "any other form of income or compensation not
specifically itemized above." The guidelines in effect as of August
1, 2013, do not alter this aspect of the definition of income.
24
tax advantages that such a designation would provide.21 She
thereafter sought to amend the judgment, seeking, among other things,
an increase in the alimony award by a percentage of the husband's
income in excess of his base salary.22
Because the alimony amount was not calculated on the basis of
all of the husband's income, as required by the statute, and because
the finding that the wife agreed that the husband need not pay child
support was erroneous, we are unable to conclude that the amount of
alimony was determined after due consideration of all of the
statutory factors. We therefore remand to the Probate and Family
Court for recalculation of the amount of alimony, and for any
additional action that the judge may deem to be warranted.
5. Life insurance as security. The judgment ordered both
parties to maintain the life insurance policies in effect at the time
of trial for the benefit of the other. The act authorizes a court
21
Section II.A of the guidelines provides that the guidelines
"do not preclude the Court from deciding that any order be designated
in whole or in part as alimony." Further, § II.A of the 2013
guidelines provides that, consistent with the alimony reform act,
"[c]onsideration may be given by the parties to preparing
alternative calculations of alimony and child support to
determine the most equitable result for the child and the
parties. Depending upon the circumstance, alimony may be
calculated first, and in other circumstances child support will
be calculated first. Judicial discretion is necessary and
deviations should be considered."
22
We do not suggest that the amounts calculated by the wife are
correct.
25
to "require reasonable security for alimony in the event of the
payor's death during the alimony period. Security may include, but
shall not be limited to, maintenance of life insurance." G. L.
c. 208, § 55 (a). In addition, when support for children has been
ordered, "the court may require sufficient security for its payment
according to the judgment." G. L. c. 208, § 36.
The wife's insurance policies would provide a death benefit to
the husband in the amount of $1.6 million; at the same time, the
husband would be relieved of his obligation to pay alimony.23 See
G. L. c. 208, § 50 (a). Although the wife is responsible for
one-half of the cost of the children's extracurricular and enrichment
activities and one-half of their uninsured medical and dental costs,
nothing in the judge's findings suggests that these costs were the
basis for her order. The findings do not otherwise support an order
requiring security under G. L. c. 208, § 55 (a), or under G. L.
c. 208, § 36. Assuming that some security could be found to be
appropriate, the amount of the death benefit the wife was ordered
to maintain exceeds any financial obligation she has under the
judgment and, on this basis, the order requiring that the wife
maintain life insurance policies with a death benefit of $1.6 million
for the benefit of the husband was an abuse of discretion.
23
The parties are in agreement that the wife's annual premiums
for the policies she has been ordered to maintain total approximately
$15,561.
26
6. Division of assets. The wife contends that the judge's
assignment of marital property and allocation of responsibility for
the parties' liabilities was plainly wrong and not supported by the
judge's findings. She argues that, because the judge found the
marriage to be a "true partnership" and ordered a payment to "equalize
the division of assets," the judge intended to effect an
approximately equal division of assets. The wife contends that the
division was not equal, because the judge allocated to her a greater
amount of debt than was allocated to the husband, failed to value
certain of the husband's bank accounts, and incorrectly divided one
asset based on its present value rather than ordering that she receive
one-half of any future proceeds.
We review the judge's findings to determine whether she
considered all the relevant factors under G. L. c. 208, § 34, and
whether she relied on any irrelevant factors. See Baccanti v.
Morton, 434 Mass. 787, 790 (2001). "We will not reverse a judgment
with respect to property division unless it is 'plainly wrong and
excessive.'" Id. at 793, quoting Mahoney v. Mahoney, 425 Mass. 441,
447 (1997).
The judgment allocates debts totaling $75,519.04 to the wife
and $26,200.71 to the husband. The findings reflect that over
$16,000 of the wife's listed debts were to repay loans from members
of her family, and over $57,000 consisted of credit card debt incurred
27
by the wife alone. The judge found that the wife's credit card
charges reflect a lifestyle beyond that which the wife could afford;
because the debts were incurred at a time when the husband "was paying
all of the family's living expenses" and the wife was receiving weekly
cash payments from the husband, who had taken over management of the
family finances, the judge found that the debts were solely those
of the wife. The judge's findings are supported by the evidence,
and the allocation of liabilities was not plainly wrong or excessive.
Apart from this allocation of the parties' liabilities, the
judge awarded each party assets of roughly equal value. The judge
was not required to follow a precise mathematical formula in dividing
the marital estate. See Williams v. Massa, 431 Mass. 619, 631
(2000); Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993).
The wife claims that the judge erred in concluding that the value
of the husband's bank accounts was "nominal." The husband testified
at trial that the balances in these accounts had changed; he was using
them to pay bills, and had recently made a mortgage payment on the
former marital residence.24 The judge was entitled to, and
implicitly did, credit this testimony when she allocated these
accounts to the husband without an attribution of specific value.
The wife also takes issue with the manner in which the judge divided
24
The husband's financial statement sets forth weekly living
expenses of $7,250.61, including payments to the wife in the amount
of $500.
28
the interests in a particular investment vehicle. The judge found
that the present value of the husband's interest in that investment
vehicle was $24,625. One-half of the value of the investment vehicle
was assigned to the wife. The wife makes no claim that the finding
as to the present value of this asset is erroneous.25 Rather, she
argues that the asset should have been divided on an "if, as, and
when basis," meaning that she should receive one-half of the value
at some future date if, and when, investors receive a return on their
investment.
Because the wife does not challenge the judge's finding as to
the present value of this investment, and the parties have sufficient
assets to permit a present payment, it was not an abuse of the judge's
discretion to order present assignment of the wife's interest. See,
e.g., Dewan v. Dewan, 399 Mass. 754, 757 (1987), citing Holbrook v.
Holbrook, 103 Wis. 2d 327, 340 (Ct. App. 1981) (present assignment
of percentage of future pension benefits is "the preferable approach"
where sufficient assets are available at time of divorce to divide
present value without causing undue hardship to either spouse).
Conclusion. For the foregoing reasons, the order in the
25
The husband listed this as the value on his financial
statement submitted to the court in conjunction with the divorce
filing. The value reflects the cost of two subscription units of
the investment vehicle made available through a private offering to
employees of a certain investment firm, less an outstanding payment
of $375.
29
judgment of divorce nisi requiring the plaintiff to maintain her
current policies of life insurance for the benefit of the defendant
is vacated. The matter is remanded to the Probate and Family Court
for recalculation of the amount of the monthly alimony payment to
be made to the plaintiff in light of this opinion. In all other
respects, the judgment is affirmed.
So ordered.