Opinion
10-P-1782
10-24-2011
EUGENE M. OSTROFF v. BETSY OSTROFF.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Eugene M. Ostroff (Eugene) appeals from an Essex County Family and Probate Court judgment modifying his alimony obligations to his ex-wife Betsy Ostroff (Betsy). Eugene argues that the judge's finding that he retired voluntarily is clearly erroneous and that the judge misapplied the 'fair balance of sacrifice' test set forth in Pierce v. Pierce, 455 Mass. 286 (2009). He asks this court to (1) vacate the judge's finding that he voluntarily retired and enter a new finding that his retirement was involuntary; (2) extinguish his alimony obligation; and (3) order Betsy to pay him weekly alimony in the amount of $367. Because we have concluded that the judge's finding that Eugene's retirement was voluntary is clearly erroneous, we remand for further consideration consistent with this memorandum and order.
Background. Eugene and Betsy married in 1969 and divorced on December 15, 1997. Pursuant to their separation agreement, which was incorporated into a judgment of divorce nisi, Eugene paid Betsy weekly alimony in the amount of $500, terminable upon the death of either party or Betsy's remarriage. The marital property was divided equally between Eugene and Betsy, resulting in an award of approximately $775,000 to each party. Eugene and Betsy have two emancipated sons, and neither has remarried.
On September 21, 2005, Eugene's alimony obligation was modified. He was ordered to pay Betsy weekly alimony in the amount of $575, and to maintain $100,000 in life insurance for Betsy's benefit. On November 19, 2009, Eugene filed a complaint for modification, citing his retirement and consequent diminution of income as changed circumstances warranting modification.
Eugene was sixty-five years old at the time of trial and had retired from a long career as an emergency room physician. Eugene testified that this work led to severe back and neck problems requiring several operations. In addition, the intense stress, long hours, and unpredictable, erratic work schedule associated with being an emergency room physician has subjected Eugene to physical and mental fatigue. Eugene stated that his memory 'is not what it used to be,' and he is 'not sure it's good enough for [him] to be practicing medicine anymore.' Eugene cannot practice part time because the cost of maintaining mandatory malpractice insurance makes this impracticable. Retirement was 'nothing that [Eugene] planned on doing right at this moment.' Rather, he 'had hoped [he] might be able to work longer than [he] ha[s], but because of physical and mental fatigue, [he] found that [he] just can't go on any longer and because of age.' Eugene testified that he 'would not have chosen to retire before [his] full retirement age if [he] possibly could have.' Betsy offered no evidence on the issue of Eugene's retirement.
1 According to Eugene, the yearly cost of malpractice insurance is between $18,000 and $32,000.
2 On cross-examination, Eugene was asked about his ability to work part time and the prospect of other employment. His testimony regarding his health and reasons for retiring was not challenged.
After a one-day trial, the judge found that Eugene's income 'is reduced as a result of his voluntary retirement at the age of sixty-five (65).' She ordered that Eugene's alimony obligation be reduced to $250 per week; Eugene's obligation to maintain medical insurance for Betsy be terminated; and Eugene maintain life insurance in the amount of $50,000 for Betsy's benefit for so long as he has an alimony obligation. In the 'Discussion' section of the order, the judge opined that
'it is anticipated by this trier of fact that the Plaintiff's obligation would continue for no more than (3) years, i.e., [Betsy's] attaining the age of sixty-five (65).'
Discussion. We note at the outset that the judge's opinion that the alimony obligation would continue for no more than three years is without legal effect. Under current law, Eugene would have to initiate yet another action to modify his alimony obligations in order to terminate the alimony obligation. In determining whether the amount of alimony should be modified based on a change of circumstances following entry of an earlier judgment for alimony, see G. L. c. 208, § 37, a judge must consider the factors specified in G. L. c. 208, § 34. Pierce v. Pierce, 455 Mass. 286, 295 (2009). 'We examine (1) whether the factual findings are 'clearly erroneous,' giving 'due regard . . . to the opportunity of the trial court to judge of the credibility of the witnesses[.]' Mass.R.Dom.Rel.P. 52(a).' Id. at 293. 'A finding is 'clearly erroneous' when although there [may be] evidence to support it, the reviewing court on the entire evidence is left with the firm and definite conviction that a mistake has been committed.' Whelan v. Whelan, 74 Mass. App. Ct. 616, 619 (2009), quoting from Springgate v. School Comm. of Mattpoisett, 11 Mass. App. Ct. 304, 309 (1981).
Because the evidence presented at trial by Eugene that he was involuntarily retiring due to his health was not countered by Betsy, the judge's finding that Eugene's retirement was voluntary is clearly erroneous within the meaning of Mass.R.Dom.Rel.P. 52(a). See Whelan v. Whelan, supra. In light of this determination, so much of the modification judgment as pertains to alimony and life insurance is vacated, and the matter is remanded to the Probate and Family Court for reconsideration of those issues. In all other respects the modification judgment is affirmed. See Simpson v. Simpson, 62 Mass. App. Ct. 366, 379 (2004).
3 Although Eugene does not argue specifically the issue of life insurance, we vacate the life insurance provision as it appears to be intertwined with the alimony award.
4 'However, unless the judge for good written reason decides otherwise, . . . the current [alimony order of $250 a week and life insurance order] shall remain in place as . . . temporary orders.' Casey v. Casey, 79 Mass. App. Ct. 623, 635-636 (2011).
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So ordered.
By the Court , (Trainor, Brown & Carhart, JJ.),