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Divorce Mediation Blog

“[T]he Parties Proceed at Their Own Risk” in the Probate and Family Court: Smith v. Smith

Wednesday, June 27, 2018

Levine Dispute Resolution - Alimony

For decades, Massachusetts divorce lawyers have advised their clients that if they depart from their divorce judgment obligations informally, and don’t incorporate their new deal in a modification order or judgment, they cannot rely on their consensus alone if one of the party decides to enforce the divorce orders that still exist, in court. The Appeals Court now says that we have all been wrong, with the blazingly ironic “... the parties proceed at their own risk.”

In a court system and body of law with judicial discretion that sometimes takes the breath away, life just became even less predictable. As did advising clients.

In Smith v. Smith, the husband accumulated $87,400.00 of alimony arrearages but claimed that he did so with the wife’s advance agreement, sometimes in return for his taking on voluntary financial burdens for emancipated children. The wife eventually thought better of her purported compromises, and she sued. The Probate and Family Court judge bought the husband’s claim that he relied on the wife’s prior agreements to his detriment, rejecting the wife’s claim of coercion, and wiping out the husband’s arrearages.

For reasons not addressed in this entry, the Appeals Court reversed the Probate Court’s retroactive reduction of the husband’s alimony, but it upheld that trial judge’s ruling of non-contempt, because the wife’s consent precluded a finding that the husband’s violation of the alimony orders was “undoubted”. So much for the previously given truth that only the court can modify its own orders.

In support, the Appeals Court cited its own Wooters v.Wooters, a case in which the husband was relieved of a contempt finding, while the established an alimony arrearage nonetheless, because of a bona fide dispute about the meaning of the alimony order: did a divorce judgment that ordered a lawyer to pay his wife a third of his compensation apply to a stock option income, that didn’t exist at the time of divorce, but arose later, when the husband left law practice for a corporate job.

Readers can reasonably debate the Appeals Court’s conclusion in Wooters, but what does a legal dispute over the meaning of the previous order have to do with the Smith judgment, with orders of unquestioned meaning? In fairness, the Appeals Court’s citation was limited to the principle that an arrearage (they even called it a “violation”) need not compel a finding of contempt. Wooters to Smith is, at best, a non sequitor.

An important principle was at stake, here. Either parties can or cannot supplant the court’s authority by their own behavior. If they do, the violation cannot be doubted. The question, really should be “can it be excused?

The answer to the real question now appears to be a resounding “maybe”, as in “maybe they can”. In a field where lawyers struggle to give clear and assured advice, life just became more, rather than less, uncertain.

 

Massachusetts Alimony: Watching the Pot - Part 1

Wednesday, April 10, 2013

The number one preoccupation among Massachusetts divorce lawyers this year is trying to figure out how the appellate courts will construe many of the complex and interactive features of the year old comprehensive alimony “reform” statute. They hope that once this appellate pot boils, “guidance” will flow that will, in turn, give lawyers some sounder basis for predicting how trial judges’ discretion will be bounded and exercised in the future.

There are many uncertainties in the statutes, such as:

  1. How should judges apply their deviation authority to avoid alimony termination when very long marriages bump up against payors’ retirement age in an economic environment where people are working long past “retirement age”?
  2. Where judges perceive that new alimony cut-offs are unfair, how freely should they approach unequal property allocations as a form of compensation?
  3. Should judges “count” the time of temporary alimony orders towards calculated durational limits?
  4. Are judges expected to calculate alimony or child support first?

Will the cases come down in a trickle or a rush? Will the Supreme Judicial Court pre-empt the Appeals Court? Will the decisions be narrowly crafted, allowing for slow and thoughtful development; or will we see broader and a more rambling style of statutory construction? Will the “unreported”, or so-called “128” decisions of the Appeals Court have any coherence at all?

This important and fraught process will only start this year. Will it help or hurt? In our next two blog entries, we will think about this from two perspectives: that of a divorce mediator, and as a divorce arbitrator.


 



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