Alimony Cases
Gottesegen v. Gottesegen, 397 Mass. 617 (1986). Purpose
of alimony is to provide economic support to a dependent spouse. It is grounded
on the recipient spouse's need for support and the supporting spouse's ability to
pay.
Grubert v. Grubert, 20 Mass. App. Ct. 811 (1985).
The spouse's need for support and maintenance is determined in relationship to the
respective financial circumstances of the parties. The standard of need is measured
by the "station" of the parties — by what is required to maintain a standard
of living comparable to the one enjoyed during the marriage. Equitable (equal) division
of assets for fifty-nine year old dependent spouse did not adequately address wife's
needs for support measured by the parties' "station".
Rice v. Rice, 372 Mass. (1977). Because M.G.L. chapter
208, section 34 gives the courts such broad discretion, it is important that the
record indicates clearly that a judge consider all of the mandatory statutory factors.
Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903 (1992).
The probate judge acted properly and within the bounds of his discretion when he
awarded alimony when wife could have met her needs with income from the $4 million
allocated to her in the divorce judgment. Alimony is not merely limited to the need
of dependent spouse. The dissolution of long-term marriage (this was one of twenty-nine
years) resembles the dissolution of a partnership. It is consistent with the partnership
theory to order alimony which, if added to investment returns on assets, would give
her an amount which exceeded what is needed. (The court quoted King Lear's cry,
"O, reason not the need!", Shakespeare, King Lear, Act II, scene 2.)
Britton v. Britton, 69 Mass. App. Ct. 23 (2007).
Support of dependent spouse not necessarily limited to "need". Subject to availability
of resources, the more-dependent spouse should be maintained in an economic style
close to which the spouse had become accustomed during the marriage.
Williams v. Massa, 431 Mass. 619 (2000). Even though
the wife's contribution to the marriage less than equal, the Court provided an income
stream to her to maintain her station in life.
Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997).
The Trial Court had found that the wife relied upon payment of child support for
her needs and that once it ceased, she became unable to maintain herself, and ordered
alimony to be paid. The Appeals Court sustained the decision.
Goldman v. Goldman, 28 Mass. App. Ct. 603 (1990).
The Trial Court limited alimony to eight years in a long-term (twenty-year) marriage.
On appeal, however, the Appeals Court reversed and held that such alimony continue
until there is a material change in circumstances. Absent good reason, in a long-term
marriage there is no justification for the lifestyle of one spouse to go down while
the other remains high. It is an affirmative duty for a recipient spouse to mitigate
the burdens of support. Quoting Commonwealth v. Whiston, 306 65,66 (1940), the court
opined "There is no law that assures every married woman the right of a life of
idleness."
Krokyn v. Krokyn, 378 Mass. 306. (1979). Capital
assets may be used to evaluate a supporting spouse's ability to pay alimony in a
modification proceeding. The law does not require that an obligor be allowed to
enjoy an asset such as a home or interest in a trust while he neglects to provide
for those persons to whom he is legally required to support.
Smith v. Edelman, 68 Mass. App. Ct. 549 (2007). The
husband's income substantially increased post-divorce. And yet, the court did not
substantially increase the child support payment, because the ex-husband did not
increase his standard of living with the extra income. Since no substantial disparity
existed in the standard of living in the respective parent's households, the Appeals
Court sustained the Trial Court's denial of increased child support. An underlying
issue in the Trial Court was alimony, because according to the parties' separation
agreement, alimony payments to the wife had ended after five years. Part of the
wife's motivation to seek modification may have been to replace some of this income.
The court found that the wife was voluntarily underemployed. Note that standard
of living in child support cases may adjust prior to emancipation. In an alimony
case, standard of living during the marriage is the standard that is to be maintained,
if possible.
Wooters v. Wooters, 42 Mass. App. Ct. 929 (1997).
Court ordered alimony as a percentage of payor spouse's income. The argument that
it would impermissibly create automatic modifications without the customary requirement
of demonstrating a "material change of circumstances" is rejected, citing Stanton-Abbott
v. Stanton-Abbott, 372 Mass. 814, 816 (1977), which upheld a percentage increase
in alimony based on an increase in the retail price index.
Kirtz v. Kirtz, 12 Mass. App. Ct. 141 (1981). The
trial judge in a modification action found that the wife suffered continual erosion
of support through inflation and inserted a cost-of-living provision based on changes
in the consumer price index and increases in the husband's taxable income (whichever
was the lesser). The court held that the automatic increase was reasonable and sensible,
and likely to reduce abrasive and expensive further resorts to court on modification
actions.
Rosenblatt v. Kazlow-Rosenblatt, 39 Mass. App. Ct.
297 (1995). There is no specific formula by which a probate judge determines whether
to grant alimony and, if so, for how much and for what period of time. Instead the
judge must consider the mandatory factors enumerated under M.G.L. chapter 208, section
34 and thereafter fashion a judgment appropriate to those factors. This court-made
law within the statutory framework explains while alimony amounts vary so greatly.
Cooper v. Cooper, 43 Mass. App. Ct. 51 (1997). The
Trial Court did not err in considering the husband's potential earnings when his
change was voluntary (leaving a salaried job for a new business venture), and there
were funds available from other sources to pay alimony. His failure to pay was not
due to his plight at the time of the divorce. A judge may consider the income or
assets of a second spouse in determining alimony. Although the second spouse does
not share in the duty to support, the income of the second spouse contributes to
the support of the current household. Therefore, the payor spouse has more of his
or her own money with which to satisfy the alimony obligation.
Flaherty v. Flaherty, 40 Mass. App. Ct. 289 (1996).
(Child support case.) Earning capacity may be considered in setting alimony payments.
Where husband lost his job involuntarily before divorcing wife and was making reasonable
efforts to secure additional income, contempt order was reversed.
Drapek v. Drapek, 399 Mass. 240 (1987). Rehabilitative
alimony (an award of support to enable a spouse to become economically self-sufficient)
may be appropriate in a short-term marriage. In this case, the marriage was eight
years long, and the Court found that within five years, the wife may be able to
rehabilitate her career.
Bak v. Bak, 24 Mass. App. Ct. 608 (1987). Rehabilitative
alimony is designed to protect, for a limited time, a spouse whose earning capacity
has suffered (or become non-existent) while that spouse prepares to reenter the
work force. Unless "rehabilitation" is proved probable, the husband's support responsibilities
may be of extended duration. Although rehabilitative alimony is viewed with some
circumspection in Massachusetts, it may be awarded in appropriate circumstances.
Before awarding rehabilitative alimony, the recipient spouses' realistic prospects
for self-sufficiency must be "considered with care".
Zildjian v. Zildjian, 8 Mass. App. Ct. 1 (1979).
Even though a short-term marriage, the disparity in income and earning potential
was so great that rehabilitative alimony was inappropriate. Application of rehabilitative
alimony would have left the ex-wife, at best, only marginally independent.
Gordon v. Gordon, 26 Mass. App. Ct. 973 (1988). Here
the alimony order to be paid to the husband had duration of one year, because the
Court found that the husband would be able to develop part-time work. If the future
employment failed to materialize, the husband could seek a modification.
Rosenblatt v. Kazlow-Rosenblatt, 39 Mass. App. Ct.
297 (1995). Even in this ten-year marriage with no children, the Court applied the
Grubert standard of need (measured by the "station" of the parties, i.e., by what
is required to maintain a standard of living comparable to the one enjoyed during
the marriage). The Court rejected the idea of transitional alimony — that the
wife should be gradually restored to her status quo ante, and that she should return
to being single and economically self-sufficient.
Ross v. Ross, 50 Mass. App. Ct. 77 (2000). In this
case, the Appeals Court found that the Trial Court had incorrectly ordered the wife's
alimony award to terminate when the husband reached the age of sixty-five, which
was eleven years in the future. (There was a thirteen-year age different between
the parties.) The Appeals Court presumed that alimony was ordered to terminate when
the husband reached age sixty-five because it is a common retirement age. The Court
held that such anticipation on speculative future events is improper, and that the
wife's needs were current and predicable. If, in the future, the husband's ability
to pay or the wife's needs should change materially — when he attained the
age of sixty-five or at any other time — either party may petition for a modification.
Gottesegen v. Gottesegen, 397 Mass. 617 (1986). A
probate court judge may not order the termination of alimony on the occurrence of
an event unrelated to the recipient spouse's need for alimony or the supporting
spouse's ability to pay. (In this case, the circumstance was the wife's cohabitation.)
Katz v. Katz, 55 Mass. App. Ct. 472 (2002) A former
spouse with assets cannot avoid payment of alimony if, without impoverishing him,
the absence of alimony would lead to poverty, if not destitution, on the part of
the dependent spouse.
Sampson v. Sampson, 62 Mass. App. Ct. 366 (2004).
In this case, a three-year durational limit on alimony was set aside where it was
uncertain whether the wife, a sole proprietor of a small business, would be able
to earn sufficient additional income so as to render alimony unnecessary after that
time period.
O'Brien v. O'Brien, 416 Mass. 477 (1993). The Court
may override a separation agreement providing for termination of alimony only to
the extent necessary to prevent a former spouse from becoming a public charge. In
this case, the former wife was receiving public assistance after her term of alimony
in the separation agreement ended. The wife's second (final) husband is required
to pay, and not her first husband. The Court held that when a successor spouse is
financially able to support the former recipient spouse, the first (former payor)
spouse is not obliged to contribute support payments.
Greenberg v. Greenberg, 68 Mass App. Ct. 344 (2007).
The husband could meet his alimony obligations from income generated by his retirement
assets, which he had chosen not to draw on for the time being. But he could continue
paying without affecting his own standard of living. The fact that he has retired
is not a sufficient basis to reduce the alimony award. His actual retirement did
not warrant termination but warranted a reduction.
Huddleston v. Huddleston, 51 Mass. App. Ct. 563 (2001).
Even though ex-payee spouse did not increase her employment (eight-year marriage,
three children), the ex-husband was required to continue paying alimony to her after
age 65 because payments were not "unduly burdensome" to him. The payments were to
be adjusted by COLA increases as provided in earlier modification judgment.
Gottesegen v. Gottesegen, 397 Mass. 617 (1986). Alimony
(if merged into the judgment) should not automatically end upon cohabitation. Modification
of alimony on the basis of moral judgments of the recipient's living arrangements
is beyond the scope of a divorce court's discretion. Citing Mitchell v. Mitchell,
418 A.2d 1140, 1143 (Me. 1980). A judge in formulating a divorce judgment may not
assume that cohabitation would have any effect on the recipient spouse's economic
circumstances and the need for alimony. The extent of actual economic dependency,
not one's conduct as a cohabitant, must determine the duration of support as well
as its amount. Citing Gayet v. Gayet, 92 N.J. 149 (1983).
Keller v. O'Brien, 425 Mass. 774 (1997) (Keller II).
Here, the wife had remarried. The divorce judgment was silent on whether alimony
would terminate in the event of remarriage. In Keller v. O'Brien, 420 Mass. 820
(1995) (Keller I), the SJC held that absent a surviving agreement, remarriage is
a prima facie change of circumstances and, absent proof of some extraordinary circumstances
warranting continuation established by the recipient spouse, alimony would end at
remarriage. However, the Court declined to issue a per se rule that remarriage ended
alimony. The Court in Keller I said that only in those "rare situations which involve
an on-going and legitimate need" for continuation, would alimony continue. In Keller
II, the Court reiterated that the burden of proof would fall on the recipient spouse,
and that the burden of proof was higher than usual, requiring the recipient spouse
to prove "extraordinary" circumstances that would warrant the continuation of alimony.
Cohan v. Feuer, 442 Mass. 151 (2004). Here the husband-payor
had died, and the ex-wife was seeking enforcement from the estate of the ex-husband
pursuant to a N.J. divorce stipulation that had required him to pay her alimony
until her death or remarriage. An order for payment of alimony ceases with the death
of the party obligated to pay it unless the decree or judgment provides otherwise.
Citing Barron v. Puzo, 415 Mass. 54, 56 (1993). The SJC held that the language of
the stipulation and the circumstances surrounding its negotiation did not make it
clear that the parties intended that the obligation to continue the alimony payments
after the husband's death. As part of the holding, the SJC adopted section 5.07
of the ALI Principles of Family Dissolution (2002) declaring that obligation to
pay alimony ends automatically at remarriage of obligee or at death of either party,
unless the original decree or agreement provides otherwise, or, in the case of a
death, the court makes written findings establishing that terminating at death would
work a substantial injustice because of facts not present in most cases.
D.L. v. G.L., 61 Mass. App. Ct. 488 (2004). This
was a ten-year marriage with one child. Both parties were from families of substantial
wealth and with large trusts for each of their benefits. Future expected interest
in trusts are "too speculative", but present discretionary interest in income can
be properly treated as a stream of income for the payment of alimony and child support.
Also remainder interests, even if susceptible to complete divestment under power
of appointment to others, can be considered in determining a party's opportunity
for future acquisition of capital assets and income. The Court struck down the ten-year
limitation on the alimony payments to the wife saying that it was "simply uncertain
at this juncture whether the wife's future income from employment will render alimony
unnecessary".
Frederick v. Frederick, 29 Mass. App. Ct. 329 (1990).
The husband and wife were separated for many years, and the husband had few assets
for retirement. The wife was taking care of elderly relatives, from whom she would
likely inherit a substantial sum. The three-year term on her alimony as upheld,
as she was underemployed and could have worked if necessary. Moreover, if the inheritance
failed to materialize, she could file for a modification as the circumstances would
be different from those anticipated.
Laurie Israel
April 1, 2008
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