Divorce Mediation Blog

Rehabilitative Alimony: Its All about the Effort, Or is It? Zaleski v. Zaleski, Part One

Wednesday, September 17, 2014

In its second case decided on the Massachusetts Alimony Reform Act, eff. 3.1.12, the Supreme Judicial Court (SJC) upheld the judgment of Probate and Family Court Amy Lyn Blake in which she awarded 5 years of rehabilitative alimony to the wife at the conclusion of a 16 year marriage. In Zaleski v. Zaleski, the wife claimed that Judge Blake had abused her discretion by opting for this restrictive form of spousal support, with its short time limit and heightened standard for extension, over general term alimony, which could have run an additional eight years, with a lower standard for extension.

A basic inference from Zaleski is that the SJC means business when it comes to implementing the legislative imperative: that the days of unlimited alimony are past; and that even with a marriage of long duration, and a high standard of living, if a trial judge writes comprehensive findings of predictable employability, she should expect to be upheld. That said, the case presents a number of other interesting aspects that we will begin to explore in this and subsequent entries.

We start with a curious line between this case and a previous "unreported" decision of the Massachusetts Appeals Court in Nystrom v. Nystrom, about which we wrote on July 9th. The SJC trumps the Appeals Court, especially when the latter's opinion is only that of one panel, unendorsed by the court-at-large and thus not binding any subsequent court, the differing conclusions of the two appellate courts illustrate to us, as divorce mediators, just how fraught litigation is with chance.

The Nystrom panel vacated a trial judge’s award of 6 months of rehabilitative alimony, focusing on that part of the statute that permits the trial court to limit alimony to a period of five years or less for a spouse who is "… expected to become economically self-sufficient by a predicted time, such as,… [by reason of] reemployment…” That judge had concluded that the wife had the ability to become reemployed within 6 months after judgment, and supported this view by finding that the wife “…had not used sufficient best efforts in becoming reemployed…”,. The appellate critique was that the trial court had not expressly discredited the wife's testimony about her unsuccessful job search efforts, and that there was no conflicting testimony that the judge could use to support her finding.

In Zaleski, by contrast, the SJC endorsed Judge Blake’s conclusion that the wife's “… job search efforts had been sporadic and superficial, and that she had not used her best efforts to secure employment." Further: "the judge was not required to credit, or give significant weight to, the wife's assertions as to those steps she had taken in her job search..." Thus, the SJC concluded, that its trial judge was justified in her prediction that the wife would become economically self-sufficient by attaining reemployment at a predicted time.

What led 2 appellate panels to reach opposite results, in the same rehabilitative alimony context? One difference is that the husband in Nystrom did not offer any expert testimony on the subject of the wife's employability. By contrast, Mr. Zaleski did offer an expert to challenge the wife’s self-serving testimony. (Neither wife had an expert.) But, if either expert witness commented on the wife’s job search, neither panel told us. Moreover, Judge Blake “…did not credit the opinion of the husband's expert that the wife was highly employable as a sales manager or marketing manager … but did find that the wife had skills that were transferable across many fields beyond pharmaceutical and medical device sales." So, at least as disclosed by the SJC, Judge Blake did not rely upon the expert in making the apparently critical finding that the wife's job search had been lacking.

A second difference between the two cases is the ages of the wives whose employability was examined. Ms. Nystrom was 58 years old at the time of trial, while Ms. Zaleski was 13 years younger. One could certainly imagine an appellate panel being more skeptical about the job prospects of a woman who was 60 by the time of its opinion, than for a younger person. A third difference was the economics of the two cases. Ms. Nystrom had a five-year earnings average of under $50,000 while Ms. Zaleski had earned in the range of $170,000 at her peak; and, the former was to receive $300 per week of alimony in the latter 9 times that amount. But, if these factors were critical to the thinking of either appellate court, they did not say so.

Perhaps, the most important factor, albeit unspoken in either case, was that the older woman was given 6 months to find self-sustainability by work while the younger was awarded a far higher sum of alimony for 5 years, at the end of which term, she would be “just” 50. Maybe, in their undisclosed thinking, the SJC justices believed that the policy behind alimony reform was advanced by what it deemed a reasonable rehabilitative period, while the Appeals Court felt the 6 months allotted to Ms. Nystrom simply unfair.

Ms. Zaleski's lawyer, Paul Perrochi, told Massachusetts Lawyers Weekly that the “the lesson to be learned is [in] some of these cases you have to win at trial court." Especially true in discretion-laden family law, where the likelihood of reversal on appeal is generally low. But, as divorce mediators, we have to ask potential litigants, should you be taking the chance on "winning" anywhere?

Next: Rehabilitative Alimony: Whatever Happened to Needs? Zaleski v. Zaleski, Part Two


Marriage Equality: Politics and Supreme Court Briefs

Wednesday, March 06, 2013

As Massachusetts lawyers, we have prided ourselves by association with the SJC’s Goodridge v. Department of Public Health decision. For the people directly involved in the battles for gay and lesbian rights, progress from then until now has probably seemed to be painfully slow; but to those of us not on the front lines, perhaps bearing in mind the historical path of previous civil rights aspirants like African Americans and women, it can seem breathtakingly fast -- and that is good.

We have previously blogged about the federal Defense of Marriage Act (DOMA), and the utter indefensibility of congressional authorization to pay for its defense before the United States Supreme Court. More recently, and more happily, we discussed the 2012 elections, in which three states broke new ground with statewide electoral victories for marriage equality. The whiff of inevitability that last November was advanced further last week, when the Department of Justice filed briefs not only in support of DOMA’s demise, but also in support of striking California’s Proposition 8 ban of same sex marriage.

How remarkable is that? A presidential administration supporting constitutional attack on legislation signed by the last president from his own party; then filing a brief on what is ostensibly a purely state matter where the government is not even a party; all following closely on the heels of the abolition of “don’t ask, don’t tell.” It may seem less surprising after the President’s second inaugural address and the views that he espoused during the 2012 election (doesn’t it seem like eons since Vice-President Biden outed the President, intentionally or otherwise?), but isn’t this the same President who comforted some by declaring his personal view that marriage is between a man and a woman, just 4 years before?

Regardless of what the Supreme Court rules this year, once civil rights movements take hold in this country they tend to go generally in one direction. With marriage equality beginning to take hold with the electorate in November, more so in the popular opinion polls since, and with the cause now being re-cast by a growing minority of conservatives thinkers as their own, the inevitable end looms closer.

From Justice Marshall to Ted Olson to President Obama, that is something for which we can all be proud and grateful.


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