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Alimony in Massachusetts: Rehabilitative Alimony Requires Careful Fact-finding and Comprehensive Decision-writing

Wednesday, July 09, 2014

Alimony in Massachusetts: Rehabilitative Alimony Requires Careful Fact-finding and Comprehensive Decision-writing.

In a recent “unreported” case , Nystrom v. Nystrom, the court reversed a trial judge’s awarding rehabilitative alimony paid to the wife for a six-month period, a remedy that is limited by statute to cases where the recipient spouse “…is expected to become economically self-sufficient by a predicted time.” The trial court made 6 conclusory findings in attempted compliance with the rehabilitative alimony statute, including (not limited to) the wife’s education, continuing ability to work, her employment history in pharmaceuticals and in teaching, her decision to turn down a a pharmaceutical job offer, her average work income for 2007 – 2011 (judgment entered in May 2012) and critically that: “…she has not used her best efforts in becoming reemployed in either of these fields”. The Appeals Court found fault with the last conclusion because the record did not disclose any evidence contradictory to the wife’s own testimony about her job search, and the judge did not make findings “discrediting” the wife’s testimony. Therefore, the appellate court decided that the trial judge’s conclusion was not supported by her “subsidiary” findings.

We cannot know from the Appeals Court text whether or not the evidence itself supported the trial judge’s conclusions, but the case highlights two important points:

  1. As a former Probate and Family Court judge (Chouteau Levine) and a present and very active arbitrator and master (William Levine), we are reminded how critical it is to write clearly and comprehensively the role that credibility plays in fact-finding, that is, if decisions arise materially from believing or disbelieving a party, it is necessary to expressly say so and to detail the evidence that supports the belief or disbelief; and
  2. While our recent alimony reform law (eff. 3.1.12) indicates legislative determination to limit terms of alimony, appellate courts will scrutinize those limits carefully.

1A case decided by a 3 judge panel of the state’s intermediate Appeals Court, and not reviewed by the full bench, and therefore, not formal “precedent”, but influential in practice to the extent of its persuasiveness.

 

Pet Protection: A Judge Takes Action

Wednesday, December 05, 2012

The November 28th Patriot Ledger reported that Judge James Menno, of the Plymouth Probate and Family Court, had entered the first court order of protection for a pet, permitted under a recent statutory enactment signed by Governor Patrick. LDRC’s Chouteau Levine recalls from her years on the bench that serious abuse cases routinely included threats of and/or acts of abuse towards human victim’s pets. Abuse is abuse, whatever its manifestation. That Judge Menno made the first order of this kind in Massachusetts is both random and fitting. No judge has a bigger heart or inclination to use his bench authority to protect and benefit his litigants and their dependents.

Dogs have long been recognized for their forensic and security usefulness to police and military institutions, as guides for the blind and most commonly, as beloved family members. In an era in which offices, hospitals, therapists and even courts are using or experimenting with pets as aides to reducing stress their own uniquely stressful environs, the role and importance of pets continues to grow. We have seen this principle at work in our own practice at LDRC.

For restructuring families, the disposition of pets is a growing demand. Some states have dipped their toes into “pet custody”. We have not, which is probably appropriate. Pets remain “property” under our divorce framework. But, under Massachusetts law, people may now fund testamentary trusts to provide for care of a pet; and now Judges like Menno may enhance the security of these important members of our society.

Good for Judge Menno, and good for all of us.

 

Bill and Chouteau Levine Participating at the Divorce Mediation Training Program in Boston

Monday, April 09, 2012

Bill Levine will be participating as a faculty member at the Mediation Works Incorporated, Inc.'s Divorce Mediation Training program in Boston from April 20 through April 23, 2012. Chouteau Levine will be lecturing at the same program on April 20th. This annual training program combines substantive law and procedure and mediation skills for a limited number of qualified professional attendees, under the direction of M.W.I.'s own Josh Hoch.

 



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