Opinion
14-P-1214
08-06-2015
PATRICIA DARLING v. MARK DARLING.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
In this divorce case, Mark Darling (husband) challenges that portion of the judgment of divorce awarding general term alimony to Patricia Darling (wife). This was a long-term marriage in which the parties were married for twenty-six years and raised five children together. The judge concluded that the wife was reestablishing herself and "her needs will be established in the future." The judge also concluded, based upon evidence that the husband's income might increase in subsequent years, that in addition to fixed alimony, the husband should pay the wife as additional alimony thirty-three percent of any income earned by him in excess of $225,000 annually.
During the pendency of this appeal this court decided Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014). In that case, of which, of course, the trial judge did not have the benefit, we wrote that G. L. c. 208, § 53B, "requires the judge to determine the parties' respective needs and income at the time the order is issued," id. at 527, noting that a "self-modifying order" was, ordinarily, impermissible under the Alimony Reform Act of 2011, G. L. c. 208, §§ 34, 48-55, see Hassey, supra at 527-529.
Although the wife attempts to distinguish this case from Hassey, the distinctions she raises are applicable only to a second, independent ground on which the self-modifying order in the Hassey case was held impermissible, namely that the order there was "inequitable because it requires only the husband to disclose quarterly income to the wife, but imposes no reciprocal duty on the wife." Id. at 528. The first ground for the holding in Hassey was as we have described: because modification must be made by a court on the basis of changed circumstance, a self-modifying order is generally impermissible. This holding is applicable here.
As the wife notes, Hassey also indicated that the facts of "a special case" might demand an exception to this general rule, id. at 527 n.18, citing Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814, 817 (1977). In Stanton-Abbott, id. at 815, after divorce the wife moved to England and was in a car accident, becoming paralyzed from the waist down and unable to work. The Supreme Judicial Court affirmed an award of alimony that arguably self-modified because its amount was keyed to the annual rate of inflation in England. Id. at 815-816. In doing so, the court did not reach the question of "whether it was advisable on the merits, or compatible with the fundamental purposes of alimony, or child support, or the like, to include a given contingent or variable provision in a divorce judgment" (footnote omitted). Id. at 817. In fact, the court "note[d] that the locations of the parties and of the husband's resources presented a special case that well might have suggested the use of these self-executing formulas. Other considerations might apply to a case with more parochial contacts." Ibid. Here, even assuming Stanton-Abbott's holding applies in our post-Alimony-Reform-Act world, the wife has not shown that the facts of the instant case are anything out of the ordinary. Hassey controls.
Consequently, the alimony award, which contained a self-modifying provision, must be vacated and the case remanded for reconsideration of the alimony award in light of Hassey. This does not mean that we disagree with the concerns that may have animated the particular relief that the judge ordered, and we express no opinion on whether any such concerns could be addressed in other respects. The husband does also allege inadequacies in the rationale behind the alimony order and in some of the calculations utilized by the judge. Since our conclusion about the self-modifying aspect of the alimony order means that the trial judge will have to craft a new alimony order, which presumably will be accompanied by a new explanation of the rationale supporting it, we need not address the husband's claims at this time.
We vacate the alimony provisions of the judgment and remand the case for further proceedings consistent with this memorandum and order. The judgment is otherwise affirmed.
So ordered.
By the Court (Kafker, C.J., Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 6, 2015.