Opinion
15-P-218
05-05-2016
J.N.S. v. J.M.S.
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
After a trial in the Probate and Family Court, the judge ordered entry of a judgment of divorce that included an order for payment of "unallocated alimony and child support." J.M.S., the former wife (wife), appeals, arguing that the Alimony Reform Act of 2011, G. L. c. 208, §§ 48-55, inserted by St. 2011, c. 124, § 3, permits the judge to establish an amount of alimony based on the relative disparity in the parties' income, rather than be limited by a traditional "need/ability to pay" analysis. Specifically, G. L. c. 208, § 53(b), provides, "[e]xcept for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued" (emphasis supplied). The wife contends that that language would have warranted a far larger amount of alimony than was ordered -- while the amount would cover most of her claimed expenses, it is only approximately ten percent of her former husband's (husband) established gross income for the year of the divorce. In her view, this is unfair, particularly given that the amount ordered includes child support for four teenaged children, with the husband entitled to claim all of the tax deductions associated with the payments.
The judgment also included a custody/parenting plan and various other orders not challenged in this appeal.
Specifically, the judge found that the wife had overstated her expenses and he reduced by fifty percent, to $785 weekly, the amount requested for home, automobile and computer repairs, furniture, clothing, personal care, and vacations. In the end, he found the wife's expenses for herself and four teenage children to be $4,768 per week or $274,936 annually. The husband's expenses, for himself alone, were $6,894 per week or $358,488 annually. The wife did not challenge the husband's expenses which included what the judge described as "big ticket" items, including his "boat expenses of $481.00 per week or $25,012.00 per year; health club expenses of $489.00 per week or $25,428.00 per year; financial advisor expenses of $865.00 per week or $44,980.00 per year; and charitable giving expenses of $902.00 per week or $50,024.00 per year." By contrast, both the judge and the husband were quite critical of the wife's postseparation spending, which included, inter alia, a $75,000 kitchen remodeling, "housekeepers, at a cost of $6,500 per year [$125 per week], which she had not had in the past" and two trips she had taken with the children, one to Washington D.C. "for five (5) days; and in the summer of 2013 they went to New York City, Times Square for three (3) days." Household repairs (e.g., resealing the driveway, tree work in the yard, a new generator, along with some new furniture and a new garage door and opener) were dismissed entirely as "not 'fixed' weekly expenses."
Unfortunately, we are unable to address that issue in a meaningful and equitable way, given the extraordinary and concerning nature of the judge's findings. Were they expressed differently, we might have been able to accept them as falling within the judge's prerogative to evaluate the credibility of the witnesses and find the facts, even if we would have decided the issues differently. However, the language of the findings and rationale is so vitriolic, and the findings and rationale themselves are so one-sided, and, in fact, so unsupported by the evidence, that they create, in our view, at least the appearance of bias and partiality and therefore cannot stand.
"Article 29 of the Massachusetts Declaration of Rights requires that judges be 'as free, impartial and independent as the lot of humanity will admit.' Commonwealth v. Leventhal, 364 Mass. 718, 721 (1974). Commonwealth v. Campbell, 5 Mass. App. Ct. 571, 586 (1977). See Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L. Rev. 736, 746 (1973). Under the authority of S.J.C. Rule 3:09, Canon 3(C)(1), as appearing in 382 Mass. 811 (1981), '[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party . . . .'" Commonwealth v. Dane Entertainment Servs., Inc., 18 Mass. App. Ct. 446, 448-449 (1984). "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . . ." S.J.C. Rule 3:09, Canon 3B(5), as appearing in 440 Mass. 1309 (2003). "A judge must refrain from speech, gestures, or other conduct that could reasonably be perceived as evidencing bias or prejudice . . . . A judge must perform judicial duties impartially and fairly. A judge who manifests any bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute." Id. at 1312, Commentary to § 3B(5).
In this case, the question of bias is particularly striking because most of the issues between the parties -- including, significantly, custody and a parenting plan -- were not seriously contested and essentially were settled by stipulation in advance of the trial. It was left for the judge only to decide financial issues, including the division of the marital estate and the amount of alimony and child support to order. Nonetheless, beginning his findings with a quotation from a nursery rhyme, the judge inexplicably focused a significant portion of his attention on the conduct of the parties during the marriage and their relationships with their children, despite the fact that the issue was not before him. In so doing, the judge frequently adopted wholesale detailed language from the husband's proposed findings that was extremely critical of the wife's character (as well as her conduct). These findings were suggestive of a lack of balanced consideration of the conduct of both parties, including the husband.
"All the king's horses, and all the king's men couldn't put Humpty Dumpty together again."
In fact, the judge acknowledged, "The most important issue in this divorce case, to wit, the relationship between the children and both parents has already been decided by the behavior of each family member."
In the rationale, the judge stated that "the Wife is the more unhealthy, dysfunctional and harmful parent to the four children than the Husband"; it was "the unhealthy manner in which the Wife raised the children that led to the present estrangement between the children and their dad"; "the only logical conclusion that the Court can make from the evidence, is that the Wife has successfully prevailed in shutting out her children (with the exception of [the youngest child] for the time being) from another person that she has totally removed from her own life"; "This time it is the most important relationship in the children's lives, their relationship with their father, their dad, their other parent whose blood runs through their veins. And she has done so with absolutely not one shred of remorse or understanding of the effect on her children"; the wife "is an unhealthy person, parent and mother . . . who without a shred of compassion, can literally, shut the door to any relationship with a human being that she no longer wishes to pursue," and "she has been able to manipulate her children to do the same"; "[t]he Wife could not give one reasonable explanation as to why the Husband should not have a relationship with the three other children. Her reasons as found, were quite frankly, scary and shocking to this judge"; "It is clear to me that I am dealing with a mother who takes absolutely no responsibility for her behavior or actions in this case, and chooses to accept her own reality which is clearly not the one that this Court found upon the evidence."
"The Husband admits that he has been angry and probably did exhibit a temper in front of the children during the last sixteen (16) years. The Husband has sworn in the home in front of the children, and has spanked the children . . . a few times. He once (lx) slapped [his daughter] gently in the face, and once (lx) attempted to hit [one son] with a belt, but did not hit him. There was one (1) occasion that the Husband dragged [another son] by the arm back to his room for not sleeping in his own bed. In the context of a disciplinary matter, the Husband once (lx) told [his son] to sit down or he would knock him down."
Certain basic facts are undisputed. This was a sixteen-year marriage. The parties were married on June 1, 1996. By November 12, 2002, they had four children. The parties agreed that the husband would work outside the home and that the wife, at least after the first child was born, would be a full-time mother and homemaker. The husband worked very hard and was extremely successful. At the time of the divorce he was employed as chief operating officer and chief financial officer of an investment firm. The amount of his income was disputed, because it was comprised of a base salary plus a distribution from the operating profits of the firm and certain incentive fees. At trial, he testified that his projected income for 2013 was $3.471 million. The parties lived frugally. At some point during the marriage, the wife had an affair with a contractor who was renovating the marital home. The husband purchased another home in the same town, where he was living at the time of the divorce, and also a vacation home.
The amount of the income was disputed. The husband initially testified that his projected income for 2013 was $4.029 million. A short time later, he said that he had made a mistake and gave the figure a $3.471 million.
After the husband moved out of the marital home, his oldest daughter and oldest son had only brief contact with him and much of that was hostile. The second son (the third child) initially had some contact with his father, but no longer wished to see him at the time of the trial. The youngest child continued to see his father on a regular basis. This admittedly troubling situation greatly disturbed the trial judge, and, at least in his findings and rationale, he appeared to hold the mother solely responsible for it.
However, our review of the trial record indicates that there also was evidence to support the wife's argument that her former husband "was an overbearing, verbally and physically abusive husband and father." A guardian ad litem's (GAL's) report was filed on June 25, 2013, and admitted at trial by agreement. The GAL reported that both parties "were cooperative, flexible and prompt in making arrangements and making additional payments."
During the course of his investigation/evaluation, the GAL met extensively with each party, with each of the four children, and with references recommended by each party. He also reviewed documents, including text messages between the parties and transcripts of their depositions. In contrast to the judge's findings, the report includes a number of examples given by the children of their father's temper along with verbal and physical abuse.
Specifically, the GAL reported that the parties' daughter, who was seventeen at the time of trial, reported that, before her parents separated, her father was "rough" on everyone in the house. The parties' older son was born in 1998. He told the GAL that life at home when his father was there was tense, with a lot of arguing. The second son was born in 2000 and his report to the GAL was similar. By contrast, the youngest boy was sad when his father left, and he was glad to go to see him for regular visits. "He said it is fun as he is the only one there, his father does what he wants." This child also said that his mother, sister, and brothers commented to him about seeing his father. "He replied a lot. He said they can be rude about what he has done in the past and what he is doing. They say he is bribing him to go. . . . I asked how his father treats him. He said good." When told that his brother had said that the father had lost his temper at him, this child said that it was a long time ago and he did not want to talk about it. When the GAL asked him if he thought his father was nicer to him than to his brothers and sisters, he said yes. "[The GAL] asked what if he treated them like he treats him. He said no, they don't want to spend time with him after what he has done."
"She said it was very loud around the house, not peaceful or relaxed, not a good environment. She said her father was very rough, he swore, [got] physical sometimes while disciplin[in]g. I asked whom he was rough towards. She replied pretty much toward everyone. He has hit her before, kicked in the bathroom door with her inside. He has pinned [her brother] against the wall. One time while she was away at a cheerleading event, he hit [one brother] with a belt. One time he dragged [another brother] by his arm for not sleeping in his own room. She said he hit her in face but not hard, not forceful. I asked if her mother swore or hit. She said no. I asked about the arguing between her parents. She said they usually tried to keep it quiet. Her father would pick fights, sometimes in front of the children. She said her father wants to get the last word. She told me this happens when he texts her. I asked if there was ever a time in her life when he was different. She replied he was not bad when she was little, he would read to her. I asked when the changes took place. She said when she was in the seventh grade (three years ago). She said one time he picked her up at practice and told her that if he and her mother divorced, it would be all her fault. She said she was crying." During the second appointment, she told the GAL that her father "does not respect her. When she is older she wants to get a restraining order against him."
"He said his father would walk out on a random night, sometimes go to the [vacation] house or to his other home. I asked what was in the arguments. He said just yelling. I asked words or physical. He said just verbally. I asked how often with him. He said 3-4 times, once or twice he got pinned against a wall. He said his father is a loud person. . . . He said his father has told him to sit down or he would knock him down and stop talking or he would cuff him in the back of his head. I asked if his father ever hit him. He said sometimes. He said he does not remember specific times but knows he has been hit. [This son] said his father scares his brothers; they go up to their room to hide as he does and [his sister]. He said she never came out of her room, she did not want to deal with him. I asked if his father was verbal or physical toward her. He said he slapped her once in the face but verbal would be very common. I asked how he got along with his mother. He replied very well, sometimes they argue over running out of cold cuts. . . . I asked what would have to change with his father for him to see him. He said he would have to control himself. At saying this [son] started to cry in my office. He added it is always what his father wants to do and you are going."
According to the GAL, "He started by telling me about his interest in computers that his friends taught him when he was six. He then went on to talk about dirt biking. He said his mother taught him. I asked if his father was involved with the dirt bikes and he [said he is] not really as he was never a big fan. I asked what he has done with his father. He said he enjoys fishing with him, the only thing, really does not like spending time with him. He said his father hits him, screams, and swears. He said his father needs testing, he is bipolar, yells at you then is randomly nice. He added his mother is his favorite person in the world. He said whenever anyone treats him with disrespect he does not treat them with respect either. I asked if his mother loses her temper too. He replied no, his mother does not scream like his father, he is glad he is not here, not screaming, the family is calm now. I asked how he found out his parents were separating. He said he could not recall, asking if we could skip that question. Then he recalled and said that his father yelled at him for trying to fix the door. He said his father yelled at him and called him stupid. [This son] recalls he told his father to get out of his room, his sister came to defend him, his father then packed his bags and left. He said his mother told him to leave. Things were calm then. He said he does not like how his father tries to bribe him, his brothers and sister. His (youngest) brother . . . goes and comes back with things, he gets jealous, he gets new stuff every time he goes. He added bribing is not fair. His mother never does that."
Many of these remarks were corroborated by the husband's own testimony at trial; in fact, when asked whether his prior behavior toward his children warrants the way the children treat him today, he responded in the affirmative. The older children were adamant that before a relationship could resume with their father, he would have to change, "fix his temper definitely," and "control himself" -- no longer hit them, scream or swear at them.
The GAL's report also describes several problems attributable to both parties. While they seem to have coparented well in many areas, there appears to have been little or no agreement about discipline, and the differences of opinion, at least in the last years of the marriage, were played out in front of the children. In the GAL's opinion, "Both parents are to be faulted for not having sustained work on their marriage and the consequent negative impact it was having on the children." The GAL concluded with the following: "This is a tragic story of a father estranged from three out of four of his children. After reviewing all the data, especially meeting with each of the children, I see most of the estrangement coming from past experiences of the children with their father. [The father] is only partially aware of the effect of his behavior on his children. He tends to put the blame excessively on [the mother]. However she has a part in it as well. She is quite anxious. She also lacks insight into full[y] appreciating her effect on others. A bit too often I was hearing nearly the identical language used by the children and [the mother]. This suggests there has been mutual discussion. The children are fundamentally loyal to [their mother] and may have trouble seeing things for themselves. [One son's] language was more even keeled. He did not deny there have been problems with his father and that his father has had problems with his siblings, but he has seen him more positively since the separation. [The mother's] solution to her conflicts with her family of origin is to cut them off. This is not a good model for the children in their relationship with their father."
The judge's disapproval of the wife's conduct, both for having an affair and for whatever role she played in her children's unwillingness to spend time with their father, seems to have permeated his every thought on this case. On the division of the marital estate, the judge apparently dismissed any notion that the wife, who gave birth to four children within six years and then raised them as a full-time mother, had any role in creating it. The judge's diagnosis for the end of the marriage was this: "The Wife remains in a home with the four children, three of which have no relationship with their father due, in large part, to her behavior. The 'cash cow' has left the marital barn." Contrast Decastro v. Decastro, 415 Mass. 787, 794-795 (1993) ("[General Laws c. 208, §] 34[,] does not require the judge to limit his order to consideration of which party made the greater financial contribution to the acquisition of the assets. That narrow focus and analysis is precisely what the Legislature tried to avoid in § 34. The marriage-as-partnership concept, embodied in G. L. c. 208, § 34, recognizes that one party often concentrates on the financial side of the family while the other concentrates on homemaking and child care. Both parties contributed to developing a substantial marital estate").
The GAL observed that "[the mother] has done most all of the parenting."
In addition, the judge explicitly incorporated his views regarding custody into his rationale regarding alimony. "[T]o the Wife's view that the disparate net disposable income of the parties is so remarkable that the Court must do something about allocating it, the Court states that the most remarkable and shocking disparate positions that the Husband and the Wife are left with in this case is the grim and sad reality that the Wife retains an intact family of four children, while the Husband remains totally isolated from three of his four children, largely due to her behavior. Just as [the judge has] stated from the outset, as there is nothing [he] can do about this reality, [he] also state[d] that there is no legal nor equitable justification for adopting the Wife's position of what [he] would call, 'equitable alimony.'"
The judge concluded his fifty-two pages of findings with finding number 357: "The Court is more concerned about the Wife's refusal to abide by a Court Order requiring everyone's attendance at family therapy." This finding, too, clearly is contradicted by a letter in the record from the psychotherapist himself, in which he acknowledged that both parents "have cooperated fully with [him]." The psychotherapist in fact "resign[ed] as family therapist," because he believed that forcing the children to engage in therapy at that time would be counterproductive.
There is no question that the judge saw this letter. It was submitted to the court on February 20, 2014, in support of the wife's "Emergency Motion Regarding Family Therapist and For Further Orders." The judge endorsed it, "See Judgment of Divorce dated 5/07/04," and signed it.
The therapist continued, "I interviewed each of your children independently, and each was very frank and forthcoming, each discussing their thoughts and feelings for each parent and discussing their beliefs and wishes regarding the therapy process. The children are now adamant that they will not continue to cooperate or participate with me in this process. They are 'voting with their feet.' It is my strong clinical opinion that pursuing this therapy would be counterproductive and not in the children's best interest at the current time. It is doomed to failure, and it is increasing the hostility and resentment felt by the children (which is the exact opposite of the goal). Forcing therapy on unwilling adolescents is likely to 'poison the well' rendering them unwilling/unable to appropriately use services when they are ready. You both already know that the father-child estrangement is a long-term problem in place far before the current divorce action."
The judge himself expressed concern that this case had affected him more than others and perhaps more than it should have. After the judgment and related findings and rationale were entered, he took the unusual step of ordering sua sponte the couple's four children to his lobby where he lectured them about their responsibilities to their father.
Specifically, the judge said, "I learned a lot about your family. And I wanted to tell you that what I learned bothered me, so I took the rare step that I've never taken in 20 years, and I brought you in to talk to you for five minutes. . . . Now, I could have been like any other judge and just say, 'Hey, I did my job, I'm done,' but every night it nagged at me." "If you do not eventually heal that relationship that has broken between you and your father, you will, you will have problems the rest of your life. . . . [To the oldest daughter] the relationship between a father and daughter, critical. If you don't heal that relationship, you won't have a good relationship with boys or your own husband. [To two middle boys who had refused to spend time with their father] if you don't heal it, you're going to be looking for a father figure. . . . I know your dad, I'm sure, from listening to him for three days, will meet with you anywhere, any time, anyway. I'm not ordering you to, but you need to think about it. . . . I know you're young, but I'm just telling you I couldn't go to sleep at night anymore if I didn't tell you this stuff. Now I don't know what these lawyers could do. They could file a complaint against me because this might not be appropriate what I'm doing. I don't really care."
In all of the circumstances, we conclude that the judge's findings and rationale raise serious questions whether the judgment was the product of fair and unbiased judicial deliberation. As a result, this matter is remanded to the Probate and Family Court for the purpose of reconsideration, by a different judge, of an appropriate order relating to unallocated child support and alimony under the Alimony Reform Act., See Doe, Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry Bd., 84 Mass. App. Ct. 537, 542 (2013) ("[W]e intend no suggestion as to any outcome following further proceedings in this matter"). The remainder of the judgment is affirmed.
Although the trial judge indicated at the June 18, 2014, hearing that he will have "nothing more to do with this case," and that "[i]t's going back to Judge Jacobs," we, nonetheless, order reassignment to insure that the case is considered by another judge of the Probate and Family Court.
The existing order will continue in the meantime.
It should be noted that, because the judge's bias did not become apparent until the issuance of his findings and rationale upon final judgment, the wife's objection on appeal, and not before, was timely.
That portion of the judgment pertaining to unallocated child support and alimony is vacated, and that matter is remanded to the Probate and Family Court for further proceedings in accordance with this memorandum and order. In all remaining respects, the judgment is affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 5, 2016.