Divorce Mediation Blog

No Country for Old Men, Part 5: The Appeals Court Tells 79-Year Old Alimony Payor “Si, Mas” Muellner v. Muellner

Thursday, September 06, 2018

Levine Dispute Resolution - Alimony

In an unpublished opinion under Rule 1:28, the Massachusetts Appeals Court recently consigned a septuagenarian couple to resumed legal combat in the Probate and Family Court, 14 years after their divorce. The appellate court vacated two modification judgments of the Probate and Family Court, reducing the now 79-year-old husband’s alimony to his former wife, for the judge’s failure to “demonstrate ‘appropriate consideration’” of:

  • the husband’s ability to pay;
  • the wife’s financial need; and
  • the “intent” of the parties as evidenced by their divorce agreement.

Putting aside completely the M.G.L., ch. 208, §49 (f) presumption that alimony terminates upon the payor’s attainment of full social security retirement age - a distant memory for this payor - since this divorce predated the Massachusetts Alimony Reform Act (eff. 3.1.12) (See, LDRC previous blog entries, “No Country for Old Men”, Parts 1 through 4) this decision is problematic for at least two reasons:

  • it appears that the trial judge is faulted for not considering information that the parties didn’t offer him at trial; and
  • the Appeals Court’s inference of the parties’ intent is pure speculation – the kind for which it might well criticize a trial judge.

Ah, Rule 1:28 decisions. The facts are not “fully addressed”, but one fact that the Appeals Court did disclose is that both modification “trials” were decisions entrusted to the Probate and Family Court judge by agreement of the parties, to be rendered on “stipulation[s] of facts in lieu of testimony”. No one gave direct testimony, and no one was cross-examined, no experts opined.

In other words, no trial at all, with all of its glorious inefficiencies and protections.

Then again, this is what the parties signed up for. Competent adults are, or should be, allowed to make decisions, including ones that disadvantage them. These parties were not juveniles – far from it – and they chose the rules by which they would play. No parens patriae, here. Essentially, they put the judge in the position of an arbitrator, limiting the evidence and circumscribing procedure; and accepting that the decision in generally binding.

The specters of 80-year-olds paying alimony, golden years spent in litigation and my self-indulgent blog title totally aside: shouldn’t the Appeals Court have left well enough alone?

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

Delivered by FeedBurner

other articles

recent posts


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