The first appellate case on the "new" Massachusetts alimony statute (eff. 3/1/12), has emerged from the Appeals Court. In the case Green v. Green, the court addressed a provision that many think was central to the bill's passage: the presumption that when an alimony payor reaches a defined "retirement age" support should usually end, whether or not actual retirement has occurred.
Since enactment, lawyers and judges have wondered about the hard cases presented by very long-term marriages that may have the most entrenched economic dependencies and the shortest runs to retirement age. They correctly understood that a presumption may be overcome by compelling facts, empowering judges to "deviate" from the retirement age cut off. Most expect judges to be undeterred from exercising sound discretion in extending alimony in appropriate cases.
So, it is not very surprising that the first case (a so-called “unreported” or “Rule 1:28” case, but influential nonetheless) deals with this issue, but with a twist. The Greens were married for 47 years -- long-term by any measure. Both parties were already past the statutory retirement age, and Mr. Green was still working; and if the Appeals Court's reported facts are correct, he did not object to paying alimony for the rest of his actual working life. The problem was that the Probate and Family Court judge who tried the case set a different "date" for termination than required in the deviation section of the alimony law, namely the date upon which the Husband actually retires, at an indeterminate point in the future.
In critiquing the judge's decision, the appellate panel wrote that the judge apparently thought that the wife's loss of alimony at the time of the husband's retirement would be offset by the onset of payments from the husband's teacher pension, of which the wife will receive half under the divorce judgment. The Appeals Court apparently assumed that the wife's needs and other resources, and all other relevant factors would remain steady; and that therefore, the Probate judge's assumed expectation was unjustified on the record, as lacking factual assessment of how much the retirement pay will actually be. They sent the case back with the order that the judge determine this one expectation only, then presumably to reconsider the termination part of the judgment.
It seems to us that the Appeals Court made an assumption about the trial judge's motivation that is not necessarily right; and then they built an infirm conclusion on that shaky premise. Maybe, the trial court was not thinking of the pending pension payments as a surrogate for the adjudged alimony sum. Maybe, instead, the judge was regarding the statutory framework, the significance of the retirement age presumption in the new law and the mandate that when deviating from presumed termination, she must set a new termination date. In this case, she picked a logical one, the point of actual retirement.
Maybe, too, the trial court was mindful of the fact that she does not have a crystal ball to foretell the myriad relevant circumstances that will accompany the Mr. Green's retirement, beginning with the assumption that he outlives his career. The respective financial needs of the parties will change: it is not uncommon for seniors to cut back on their lifestyle expenses; nor is it unusual to be swamped by medical costs or other calamities. Investments may fail or flourish.
The legislature did not repeal the historic concept that court-made modifications need generally occur when actual relevant facts are known, and not at some earlier, indeterminate time based on hypothetical circumstances. Had the Appeals Court let the trial court decision stand, at the time of the Husband's actual retirement date, when the relevant facts are in, the wife could have sought to extend the alimony if then justified by the facts and circumstances. This, it seems, would have been more consistent with the legislature's most likely intent; and respect the appellate courts' own precedents. Instead, we fear that Green begins the shaping of the appellate response to this incredibly complex and important statute, on a surmise and a half-measured remedy.
Earlier, we wrote about how we, as divorce mediators felt advantaged in our freedom to explore this statute with clients and their counsel, free of confusing and contradictory appellate law. Today, we are a little bit disappointed, and a little more apprehensive about what is to come.