Opinion
No. 15–P–1210.
12-09-2016
Maureen E. HERBERT–SULLIVAN v. Dennis P. SULLIVAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the husband challenges two aspects of the second amended judgment of divorce. First, he contends that it was error to require him to pay $150 per week in alimony because (a) the amount rested on clearly erroneous findings of fact, and the amount exceeds what is allowed under the Alimony Reform Act of 2011. , Second, he argues that the judge, in dividing the marital estate, failed to take into account the wife's inheritance from her mother. We discern no abuse of discretion in the judge's allocation of the marital estate, but conclude that the alimony award requires further explication and findings on remand.
See G.L. c. 208, § 34, as amended by St.2011, c. 124, §§ 1, 2; G.L. c. 208, §§ 48 –55, as appearing in St.2011, c. 124, § 3.
The husband also argues that (1) for any alimony award to be made there must be a finding of the wife being an "economically dependent spouse" under G.L. c. 208, § 48 ; (2) that the judge failed to make such a finding; and (3) that the evidence would not support such a finding. These arguments were not squarely raised below in a manner that would have fairly alerted the judge to them.
The parties were married for more than twenty-six years, and had two sons who had reached adulthood by the time of the divorce. Neither child was dependent on either parent for support. At the time of the divorce, the wife was fifty-four years old, and the husband was fifty-nine. The husband suffered from hypertension, migraine headaches, and elevated cholesterol controlled by prescription medication. These conditions did not interfere with his ability to work, and the husband was fully employed as a civil engineer by the Commonwealth, where he had been employed for thirty-eight years. The husband earns $85,000 annually.
The wife had been diagnosed in 2012 with ischemic optic neuropathy, which caused vision loss in her right eye. The wife also suffered from hypertension, depression, asthma, and elevated cholesterol controlled by prescription medication. These conditions did not interfere with the wife's ability to perform her work as an administrative assistant for the Department of Industrial Accidents, where she had been employed for over twenty-five years. But the trial judge credited the wife's testimony that her vision loss negatively affected her ability to work effectively in her part-time job as a bartender and waitress. The wife earns $71,000 annually, of which $9,360 ($180 per week) comes from her work as a part-time waitress and bartender and the remainder from her work as an administrative assistant.
The defendant argues that the judge's finding that the wife earns $180 per week from her part-time work is clearly erroneous because her employment records show that her earnings had been higher. See Feathler v. Feathler, 33 Mass.App.Ct. 924, 925–926 (1992) (alimony-related finding on earning capacity reviewed for clear error). "A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed." Commonwealth v. Hilton, 450 Mass. 173, 178 (2007). Although it is true, as the husband points out, that evidence was introduced showing that the wife's weekly earnings from her part-time job had been higher in the past, it does not follow that the judge's finding was necessarily clearly erroneous. Here, the evidence showed that the wife suffered from optic neuropathy that caused partial blindness, and the judge specifically credited the wife's testimony that her condition had negatively affected her ability to work as a waitress. That testimony was buttressed by the wife's testimony that her most recent pay stub at the time of trial, which showed gross weekly earnings of $157.50 and net earnings of $119, reflected a decline in earnings. Taken together, the evidence supported the judge's attribution of $180 per week of income from the wife's part-time work as a waitress and bartender.
We note that the husband has not provided any authority for the proposition that an alimony recipient who has a full-time job is expected to work a second job, or that a judge is required to hold a recipient to that standard when calculating alimony.
Incorporating the $180 per week figure we have been discussing, the judge found that the husband's annual income is $14,000 higher than the wife's (a difference of $269.23 weekly), and awarded the wife $150 per week in general alimony. This amount exceeds the range specified in G.L. c. 208, § 53(b ), which provides that ordinarily a general alimony award should not exceed thirty to thirty-five percent of the income difference between the parties. Although the judge is entitled to deviate from that general range, she must make "written findings that deviation is necessary" if she does so. G.L. c. 208, § 53(e ). Moreover, deviation "must be based on one or more of the first eight factors listed in § 53(e ) or, ‘upon written findings, any other factor that the court deems relevant and material.’ " Hassey v. Hassey, 85 Mass.App.Ct. 518, 525 (2014), quoting from G.L. c. 208, § 53(e )(9). Here, the judge made no findings to explain her rationale in deviating from the range and, accordingly, we vacate the alimony award and remand for reconsideration and such findings as are necessary.
Finally, the husband has not shown that the equal division of the marital estate was plainly wrong, excessive, or an abuse of discretion. See Kittredge v. Kittredge, 441 Mass. 28, 43–44 (2004). The judge considered the relevant factors enumerated in G.L. c. 208, § 34, and her equal division of the marital assets flowed logically and equitably from her findings, as did her decision not to increase the husband's share of the marital estate despite the wife's receipt of a one-third joint interest in her mother's home upon the latter's death on the second day of trial (and of a one-third share of a $5,000 life insurance policy). As the judge found, the mother's property had never been financially supported, maintained, or used by the parties during their marriage. See Williams v. Massa, 431 Mass. 619, 626–627 (2000). Nor has the husband demonstrated error by the judge in declining to attribute to the wife what the husband terms her "potential future inheritance" of assets that her mother's will left solely to the wife's two siblings, even where the will was executed during the pendency of the divorce action and superseded a prior will leaving the estate to all three children equally. Compare id. at 628–629 (no error in excluding speculative contingent remainder trust interests from marital estate).
The wife's mother had executed the deed granting the wife's and her two siblings' one-third remainder interests (and reserving a life estate in the mother) approximately four months earlier, and seven months after the parties separated.
For the reasons set out above, we vacate so much of the second amended judgment as sets the alimony award, and we remand that matter for further consideration and findings as are necessary pursuant to G.L. c. 208, § 53(e ). The judge may, in her discretion, establish a new alimony award within the presumptive range, or in excess of it upon appropriate findings. The second amended judgment is otherwise affirmed.
So ordered.