Opinion
18-P-991
08-20-2020
C.M.A. v. J.T.A.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a two-phase, thirty-three-day divorce trial before a special master, a judge of the Probate and Family Court largely adopted the master's findings and issued a divorce judgment ordering C.M.A. (the husband) to pay unallocated alimony and child support to J.T.A. (the wife) of $19,740 per month ($236,880 per year), for a period of eleven years and five months. The wife appeals from the divorce judgment, principally challenging the amount and duration of the husband's support obligation. We affirm.
The wife also raised two issues in her brief pertaining to the parties' "business asset stipulation" (BAS) incorporated into the divorce judgment. The wife's counsel informed this panel at oral argument that the wife was no longer pressing the first issue (i.e., whether the judge improperly struck the master's augmentation of the BAS), in light of the decision reached by a different panel of this court in K.G.S. v. D.S., 95 Mass. App. Ct. 1105 (2019). Accordingly, we treat that issued as waived by the wife. However, even if that issue had not been waived, we would have deemed the wife's arguments unavailing, largely for the reasons articulated by the panel in K.G.S. We find the wife's arguments equally unavailing with respect to the second issue (i.e., whether the judge abused his discretion in failing to order security for the BAS beyond "mere death protection"). Although the wife contends that there was nothing preventing the judge from ordering such security, the judge declined to make such an order due to the lack of legal authority requiring security for property allocation, the lack of evidence of appropriate security options, and his view that ordering such security could unreasonably undermine the husband's business security obligations. There was no error. The wife points to no authority permitting or requiring the imposition of additional security. Where the wife failed to present any evidence of available, viable options, the judge also could justifiably have declined to impose additional security. Moreover, we note that the BAS specifically shielded the wife's $3.6 million share from reduction due to personal or business "liabilities, debts, and/or other payables associated with any of the husband's business interests." Accordingly, we discern no abuse of discretion or other error of law in the judge's refusal to order additional security for the BAS. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Discussion. "A judge has broad discretion when awarding alimony under the" Alimony Reform Act (act). Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). "In reviewing both the form and the amount of an 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. . . . A judgment will not be disturbed on appeal unless plainly wrong and excessive" (quotations and citations omitted). Zaleski, supra.
Because the unallocated support award was decided largely on alimony principles, our analysis pertains to alimony.
These factors include "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).
In the present case, the judge adopted the master's findings, which reflected careful consideration of all the relevant § 53 (a) factors. We summarize some of the master's most pertinent findings here. During the parties' nineteen-year marriage, the wife was the children's primary caretaker and the husband was the sole income earner. At the time of trial, the husband's "available income" from his various business interests was $990,911 per year. Toward the end of the marriage, the parties lived a "high income station, supplemented by significant tax benefits of the husband's business structure." In addition to owning multiple homes, taking frequent vacations, regularly dining out, and driving luxury vehicles, the parties enjoyed "regular access to cash" and numerous unquantifiable personal benefits flowing from the husband's business interests, including "the ability to merge business matters with personal and vacation activities." The master found that the wife needed $245,180 per year to maintain the marital lifestyle, and after attributing annual income to her of $14,300 (adjusted for income tax purposes), ordered the husband to pay unallocated support of $236,880 per year, for a period approximately one year and one month less than the presumptive maximum duration under G. L. c. 208, § 49 (b).
The master, crediting the wife's assertion that "there are many ways in which the Husband receives financial benefits from his business operations that do not find their way into tax reporting documents," found that "[i]t is reasonable to take those financial benefits into account in structuring support orders."
The wife contends that the judge (1) erred in using a need-based, rather than income differential, alimony calculation; (2) failed to include the wife's unrestricted access to cash when determining her need for alimony; (3) improperly attributed income to the wife; and (4) erroneously ordered support to continue for less than the presumptive maximum duration under § 49 (b). We address the wife's arguments in turn.
1. Need-based award. "[T]he act establishes presumptive parameters: the amount of general term alimony '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.'" Young v. Young, 478 Mass. 1, 6 (2017), quoting G. L. c. 208, § 53 (b). The wife argues that the judge erred in using a need-based, rather than income differential, alimony calculation, as the latter would have resulted in a more "equitable" award by accounting for the unquantifiable benefits flowing from the husband's business interests. We disagree.
In cases where "the couple's collective income is inadequate to allow both spouses to maintain the lifestyle they enjoyed during the marriage after their household is divided in two through divorce, . . . the supporting spouse generally should not be required to pay more than thirty-five per cent of the difference between the parties' gross incomes." Young, 478 Mass. at 7. However, where the supporting spouse has a "substantial ability to pay, the determination of alimony rest[s] solely on the [recipient spouse's] needs, that is, the amount necessary to allow her to maintain the lifestyle she enjoyed prior to the termination of the marriage." Id. Thus, in high income cases such as this, where the payor's ability to pay is not in dispute, "[a]n alimony award is generally limited to the recipient's need for support," Macri v. Macri, 96 Mass. App. Ct. 362, 367 (2019), and an award exceeding the recipient's need may constitute an abuse of discretion. See Young, supra at 9 (contingent alimony award of thirty-three percent of husband's fluctuating income "ran afoul of the act and therefore was an abuse of discretion not because of its variable nature, but because it was intended to award the wife an amount of alimony that exceeds her need to maintain the lifestyle she enjoyed during the marriage"). To the extent the wife claims the master's use of need-based calculation resulted in an inequitable support award, we note that an "equitable" distribution of income is not the purpose of alimony. Cf. G. L. c. 208, § 34 (marital estate is subject to equitable distribution at divorce). Rather, "the crucial issue in an alimony dispute . . . [is] the [recipient spouse's] need for support and maintenance in relationship to the respective financial circumstances of the parties." Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985), quoting Partridge v. Partridge, 14 Mass. App. Ct. 918, 919 (1982). See Van Arsdale v. Van Arsdale, 477 Mass. 218, 219 (2017), quoting G. L. c. 208, § 48 ("The act changed neither the essential purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support'"). Accordingly, we discern no abuse of discretion or other error of law in the use of a need-based, rather than income differential, alimony calculation.
2. Access to cash. The wife next contends that, even if the judge properly used a need-based calculation, he failed to include the wife's unrestricted access to cash as an element of the marital lifestyle when calculating her need. We disagree.
Here, the master's thorough, detailed findings, adopted by the judge, reflect careful consideration of every aspect of the "high income marital station," including the parties' "regular access to cash." The master found that, during the parties' separation, the husband continued to enjoy unrestricted access to cash and various unquantifiable benefits flowing from his business interests, to the wife's exclusion. The master further found that the husband had been able to maintain the marital station while certain aspects of the wife's lifestyle had declined (namely, with respect to vacation, clothing, dining, entertainment, and other discretionary expenses). However, the master made upward adjustments for those expenses, and found the wife's "reasonable needs based on the marital station and current circumstances [to be] $245,180.00 per year ($4,715.00 per week)." This amount was based largely on the wife's own claimed living expenses of $237,994.12 per year (which she based on her lifestyle expert's calculation of the parties' household spending during the last two years of the marriage), with certain adjustments made by the master. Also included in the wife's need, as found by the master, was a cash allowance of $250 per week ($13,000 per year). Accordingly, the wife's total "need" encompassed all expenses necessary to maintain the high-income marital station, plus an additional $250 per week cash component.
The master adjusted certain expenses upward to reflect the wife's preseparation lifestyle, and also discounted certain household expenses claimed by the wife which failed to reflect the husband's absence from her household.
The wife, however, contends that the master should have included a cash component of $200 to $300 per day ($73,000 to $109,500 per year), consistent with her testimony that she typically carried anywhere between $100 and $1,000 in cash. However, there is no indication that the master credited this testimony, see Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995), nor does this testimony conclusively establish the amount of cash typically spent by the wife on a daily basis. Indeed, although it was undisputed that the wife had "free access to cash from one place or another within the [marital] home," and that thousands of dollars were often kept in the parties' safe at any given time, the wife did not testify as to average amounts of cash spent in a given time period or to any significant, recurring expenses for which she routinely paid in cash (aside from tips and smaller incidental expenses). Both parties' lifestyle experts testified that they were unable to track the parties' cash expenditures during the marriage, and that the wife's financial records did not reflect any cash withdrawals until after the parties separated in 2012. Although the master credited the wife's claimed cash withdrawals since separating from the husband of $22,984 per year, the master found that the wife "failed to explain how she isolated [those] 'cash withdrawals' from other financial statement expenses." Accordingly, the master concluded that, "in light of . . . personal benefits that the Husband derives from his business ownership and operations, and the parties' consistent use of cash throughout their marriage, . . . it [is] equitable and in keeping with the marital station that the Wife have some level of additional cash, albeit reduced, that she may use on a discretionary basis." In essence, to achieve the marital station, the master recommended a support award that met all the wife's quantifiable expenses supplemented by a modest cash allowance to capture the remaining cash component of the marital lifestyle not reflected in the wife's reported expenses. The master "rejected the Wife's demand for an unlimited percentage of the husband's future income, because it [wa]s not reasonably calculated to meet needs." Instead, the master found it appropriate under the circumstances to "estimate the Husband's cash flow, gauge the Wife's needs and meet those needs via periodic support, since the Husband has the demonstrated capacity to do so." The master also explicitly accounted for the various personal benefits that the husband "derives from business ownership and operations." The master's careful assessment of the wife's needs, as measured by the high income marital station, was neither plainly wrong, nor excessive; thus we decline to disturb it. See Zaleski, 469 Mass. at 235.
Although the parties gave conflicting testimony regarding the amount of cash typically kept in the safe in the marital home, and whether the wife was able to open the safe without the husband present, the master found that "sums of $15,000.00 or greater" were kept "in the safe at times."
The master found that, since the parties' separation, the wife used cash withdrawals to pay for tips, medical copayments, and various incidental expenses for the children, and that the wife's "accessing of cash via bank cards or cash taken from support check deposits" was "a continuation of longstanding pre-separation practice of utilizing cash and a part of the [marital] station."
The wife further argues that the support order should be increased to correct the master's reduction of household expenses by twenty-five percent, rather than twenty percent, to reflect the husband's absence from a formerly five-person household. The master attributed fifty percent of the discretionary household expenses to the two adults (the wife and the husband), and the other fifty percent to their three children, thereby reducing such expenses by twenty-five percent to account for the husband's absence from the household. We discern no error with respect to this aspect of the master's calculation of the wife's need.
3. Attribution of income. The wife next contends that the attribution of income to her was an abuse of discretion, given her prolonged absence from the workforce and lack of appreciable skills, and unfairly penalized her for raising the parties' children. We disagree.
In determining the appropriate amount of alimony, a judge is required to consider the "employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary," G. L. c. 208, § 53 (a), and "may attribute income to a party who is unemployed or underemployed," G. L. c. 208, § 53 (f). Here, the master found that the wife, who possesses a high school diploma and has not worked outside the home since 1998, was "not highly employable." The master found the wife to have a present earning capacity of $14,300 per year (commensurate with the State minimum wage at twenty-five hours per week), and after making adjustments for income tax purposes, reduced the husband's support obligation by $8,300 per year. Although this court has cautioned "against relying unduly on the income-earning potential of a wife and mother who has been out of the regular job market for decades," such caution is unnecessary in cases where, as here, the amount of income attributed to the dependent spouse is de minimis in light of the total financial award. See Frederick v. Frederick, 29 Mass. App. Ct. 329, 334 (1990) (discerning no abuse of discretion in "the judge's finding . . . that the wife could, if necessary, look for part-time employment . . . because of its peripheral and contingent role in the wife's total financial picture"). Accordingly, we discern no abuse of discretion in the attribution of $14,300 in annual income to the wife.
4. Duration of alimony. For purposes of determining the appropriate duration of alimony under G. L. c. 208, § 49 (b), the master found that the length of the marriage was fifteen years and four months and that the maximum presumptive duration under § 49 (b) was twelve years and six months. The master ultimately recommended, and the judge adopted, a slightly shortened durational period of eleven years and five months, resulting in a termination date that will occur shortly after the parties' youngest child attains age twenty-three. The wife claims that the judge improperly tied the duration of alimony to the emancipation of the parties' youngest child, and to the duration of temporary support paid by the husband. We disagree.
"Although the reform act establishes presumptive termination dates for general term alimony, a judge is not obliged to order alimony for the presumptive maximum time period. Rather, in determining the appropriate duration of alimony, as well as its form and amount," the judge is required to consider the various factors set forth in G. L. c. 208, § 53 (a). Holmes v. Holmes, 467 Mass. 653, 658 (2014). In "applying these factors," the judge "may determine that the appropriate duration of alimony is less than the presumptive maximum without a written finding that deviation from the presumptive maximum is required in the interests of justice." Id.
Here, in arriving at a duration slightly shorter than the presumptive maximum under § 49 (b), the master considered all the relevant § 53 (a) factors, the outside date of the children's emancipation, the "unusually long" length of the divorce litigation spanning over four years, the length of time that the husband paid temporary support during the pendency of the divorce proceedings, and the fact that the wife received less support under the temporary order. The wife contends that it was improper to consider the duration of temporary alimony without finding that she unnecessarily protracted the proceedings. However, a judge may "consider the duration of temporary alimony in determining the duration of general term alimony" if "temporary alimony is unusually long in duration or . . . the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid" (emphasis added). Holmes, 467 Mass. at 654. See G. L. c. 208, § 53 (a) (in determining appropriate duration of alimony, judge may consider other factors that are "relevant and material"). Accordingly, we discern no abuse of discretion or other error in the duration of the husband's unallocated support obligation.
We further observe that the wife originally requested, in her proposed judgment of divorce submitted at the conclusion of trial, that the support award terminate upon the expiration of ten years and seven months from the date of the divorce judgment -- nearly one year less than what was ultimately ordered.
Judgment affirmed.
By the Court (Rubin, Wolohojian, & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 20, 2020.