In the recent case of Hassey v. Hassey, the Appeals Court reversed Judge Jeffrey A. Abber of the Essex Probate and Family Court, in part, for ordering alimony as a percentage of the husband’s ongoing income, rather than as a flat sum. They justices ruled that the judge had pre-decreed a modification of his own judgment based on facts and circumstances that had not yet changed. Thus, they reasoned, he deprived the husband of the right to resist such a change based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.
This part of the decision was not surprising. The principle enunciated arises from long-standing precedent, with only 2 previous reported and relatively narrow appellate exceptions. Yet, curiously, the Appeals Court did not vacate that part of the judgment that determined that alimony shall terminate upon the wife’s cohabitation. Before the Alimony Reform Act of 2011 (eff. 3.1.12), this provision would have been absolutely contrary to law. Now, cohabitation is a statutorily recognized basis for change.
But the statute does not dictate the kind or extent of change. The law provides that if cohabitation occurs within the definition provided in the act, then the court shall do something. However, it requires the modifying judge to calibrate the remedy to the circumstances that exist at the time of the cohabitation. A judge may reduce, suspend or terminate alimony. So, when the Hassey judgment decreed that the wife’s cohabitation would automatically terminate alimony, the wife was denied the right, assured by the Alimony Reform Act, to resist termination based on the host of other material and substantial changes that might occur in the interim, in the context of a complaint for modification.
Did the wife fail to perfect this as an issue on appeal, relieving the court of an obligation to address it? We cannot know from the text of the decision. Without doubt, though, the decision is inconsistent, and the cause of consistency and predictability, its victim.