781.708.4445

info@levinedisputeresolution.com

Divorce Mediation Blog

“Self-Modifying” Divorce Judgments: The Appeals Court Feels Strongly Both Ways. Hassey v. Hassey, Part One

Tuesday, August 05, 2014

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.

Next: Needs versus 30-35% in Section 53(b): In Its First Foray, Has the Appeals Court Legislated? Hassey v. Hassey, Part Two



Get e-mail notifications of new blog posts! Enter email address below.:



Delivered by FeedBurner

other articles


recent posts


tags

mediator lawyers alimony statute divorce mediator Alimony Reform Act divorce process divorce and family law med-arb DOMA divorce mediators resolve disputes COLA mediation child support dispute resolution Levine Dispute Resolution Center LLC Massachusetts Alimony Reform Act divorce arbitration med/arb MLB labor agreement Same Sex Marriage family support lawyer-attended mediation arbitrators Massachusetts lawyers special master family law arbitrator family mediation Baseball family law arbitrators high-risk methodology divorce arbitrators Matrimonial Arbitration Massachusetts Uniform Arbitration Act Defense of Marriage Act pre-ARA alimony family law mediation Levine Dispute Resolutions divorce arbitrator Chouteau Levine Massachusetts Lawyers Weekly divorce judgment alimony reform legislation fraud how baseball arbitration works annulment Self-adjusting alimony orders Massachusetts alimony and child support divorce mediations Twinkies private dispute resolution alimony IRC §2704 Massachusetts divorce mediators divorced The Seven Sins of Alimony mediators medical benefits alimony law Baseball Players General term alimony traditional negotiations facilitated negotiations Major League Baseball Arbitration arbitrator support orders Divorce Agreements Child Support Guidelines Massachusetts alimony family law Boston health insurance mediations separation litigation LDRC arbitration lawyer self-adjusting alimony Levine Dispute Resolution family and probate law disputes divorce mediation Cohabitation Levine Dispute Resolution Center Baseball Arbitration Family Law Arbitration SJC divorce lawyers alimony orders disputes Act Reforming Alimony in the Commonwealth divorce and family law mediators conciliation health coverage divorce agreement Divorce Obamacare divorce litigation rehabilitative alimony