Divorce Mediation Blog

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

Tuesday, August 19, 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, that was nearly 41% of the payor’s gross income. In suggesting that the award was excessive, the justices examined M.G.L., chapter 208, section 53(b) which states that except as noted: “…alimony should generally not exceed the recipients need or 30 to 35 per cent of the difference between the parties’ gross incomes…

Since enactment, we have wondered how the appellate courts would construe the linkage between needs (the historical limit on alimony) and the percentage range imitation. Predictably, and we suspect correctly, the Appeals Court stressed the requirement for trial judges to explicitly make findings of recipient needs, particularly in view of the trial court’s discretion to deviate from the section 53(b) limits for defined reasons in section 53(e). Certainly fair enough.

But, why then did the Appeals Court take the additional step of opining that:

    …an alimony award that is equivalent to thirty to thirty-five per cent of the difference between the parties’ gross incomes as determined when the order issues will be deemed reasonable and lawful. (Our italics.)

Was this statement necessary to the appellate court’s conclusion that the trial judge’s order was unsupported by sufficient findings? Is it supported by section 53(b) or any other language in the omnibus alimony law? Does this conclusion arise from any appellate precedent? We don’t think so, on any count.

Just, how does the legislature’s expression of a maximum become the new range of reason and lawfulness to the appellate court?

Does this mean, despite its conclusions to the contrary, that needs (however elastically defined) are no longer the ceiling for alimony? As in, if needs are found to be $50,000 per year, is alimony of $150,000 per year is “reasonable and lawful” when a payor earns $450,000? This may be a “fair” result, certainly one that is consistent with common practice, but does it comport with the statute?

We don’t have a dog in the hunt, as we do not represent any clients, neither payors nor payees. But, as divorce mediators and as divorce arbitrators, we are concerned that the Hassey court has read a very substantive change into the statute, which will make it more difficult for us to inform mediation couples about the state of the law, and as arbitrators and masters, to apply the law.

We understand the appellate courts’ desire to provide guidance to future litigants, but exceeding the scope of that which is necessary to decide the case before it certainly tempts the forces of unintended consequences, as we fear has occurred here.

Next: They Got A Lot Right: Hassey v. Hassey, Part Three

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