Part 1: Teaching is learning: the courts
don’t always get it right

Accepting an invitation to present the subject “Self-Adjusting Support Strategies” for the 4th Annual Family Law Symposium on Divorce Financial Issues, of Chris Chen and Tom Seder's Insight Financial Strategists, LLC, we began digging into the history the Massachusetts courts' historic reluctance to make their own orders with variable formulas to capture income fluctuations.

We knew that the sources of were the first Wooters v. Wooters (1997) case from the Appeals Court, and the prior 1977 SJC case, Abbott-Stanton - Abbott-Stanton. We have long been uneasy about the link between the two, and preparation for Insight’s program gave us the excuse to dig back into the precedents, which we did.

The result is a confirmed belief that the Appeals Court got it wrong in Wooters, as we argued in a Massachusetts Lawyers Weekly article (March 28, 2016), and which we are pleased to feature in today's newsletter, below. Here, we advocate a re-examination of the presumption against the court’s ability to utilize variable support orders, which are instead reserved for “special cases”. For many reasons, a presumption in favor of that authority, bounded by reasoned and reasonable discretion, would serve the public interest.

We have been asked if we suggesting that alimony should be untethered from its historical anchor of recipient “need”? The answer is absolutely not. Court-generated alimony orders only arise from the need for financial support. The use of variable support orders is simply away to meet that need, linked as it is by case law, to the standard of living of the parties during their marriage together because, in most cases, there is not enough income, post-divorce, to keep both parties at the marital station.

Fixed support orders put the burden squarely on most dependent parties to sue for more support simply to try to regain the marital standard to which the law entitles them, to the extent of the payor’s ability to pay; and they must do so without any real knowledge about whether or not there have been increases in the payor’s resources. As a result, recipients frequently do not ever enjoy the law’s goal.

Variable orders, by contrast, when sensibly and properly structured, can meet the law’s mandate without imposing an unfair burden of action on the economically weaker party.

Take a look and tell us what you think. And, thanks to Insight Financial Strategists for the chance to address their eclectic group, and for the inspiration to dig deeper.

Part 2: A singular decision – or is it plural?

MARRIOTT MARQUIS, WASHINGTON D.C.—JAN. 8—In its 26th annual words of the year vote, the American Dialect Society voted for they used as a gender-neutral singular pronoun as the Word of the Year for 2015. They was recognized by the society for its emerging use as a pronoun to refer to a known person, often as a conscious choice by a person rejecting the traditional gender binary of he and she. http://www.americandialect.org/2015-word-of-the-year-is-singular-they

We get the reason why, but not the result. Despite a writing lifetime of admittedly awkward gender workarounds like “he or she” “she and he” “s/he”, this seems a sad linguistic compromise.

“They” is plural, whatever the dialect police say. Maybe we just made need a new pronoun.

Suggestions anyone?

Part 3: The LDRC Blog

We kept up our pace of 30 or so blog entries last year, commenting on current interests in family law. In today's newsletter, we highlight two blog topics from 2015 and early 2016:

    -- Two entries about Katz Nannis v. Levine (no relation), in which the SJC ruled that parties may not contractually expand the narrow forms of review permitted by statute in arbitration proceedings, an unfortunate precedent for family law, in our view; and

    -- Six entries about last year’s Pfannenstiehl v. Phannenstiehl, an infamous trust-in-divorce litigation disaster saga from the Massachusetts Appeals Court, on which the SJC has just heard oral argument (April 5th), upon further appellate review. A slightly edited version of these blog entries will appear shortly in the Family Mediation Quarterly published by the Massachusetts Council on Family Mediation.

Please look around our blog for entries that you may have missed. They are timely, we hope cogent, and sometimes just a little bit off the beaten track.

Part 4: The Fatalist's Verse
(He Is Still Around)

As convention time nears
It won’t be a snooze
Couldn’t possibly be worse --
Come Tr**p or come Cruz.

Enjoy the spring!

Bill and Chouteau

The Curious Case of Variable Support Orders


When a Massachusetts court issues a support order after trial, it will almost always be a fixed sum, unchanged until a later modification judgment.

We accept that a judge’s self-adjusting orders would offend due process, which precludes modification of a judgment without agreement, or a full trial vetting of changed circumstances.

But does that orthodoxy have a solid foundation? Or is it simply an unchallenged distortion of Supreme Judicial Court precedent? Can the presumption against self-adjusting orders, as found by the Appeals Court, persist? Should it?

The Alimony Reform Act case, Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014), recently highlighted the issue. A trial judge had ordered a flat sum of periodic alimony, plus 30 percent of the husband’s gross pre-tax bonuses, as additional spousal support. The Appeals Court reversed the contingent part because:

“[T]he self-modifying feature of the order ... is not based on a judicial determination, supported by subsidiary findings of fact, of an increase in the wife’s need accompanied by the husband’s ability to provide for the same.” (Citation omitted) (Italics ours) Id., at 528. The descriptor “self-modifying” is critical. Chosen over “self-adjusting,” “self-executing,” “contingent” or “variable,” it was coded to the court’s view, as stated in Note 18, that:

“[A] general term alimony award established as a percentage of income and not as a fixed amount may be valid in some circumstances.” (Italics ours) Id.

Note 18 indirectly explains its source by citing two cases that, ironically, upheld variable orders, beginning with Wooters v. Wooters, 42 Mass. App. Ct. 929, 930 (1997), in which:

“[T]he husband was about to undergo a serious operation, and it was un- certain how much he would be able to work ... [and his] ... compensation ... had considerable fluctuations .... read more...

What does Katz, Nannis say about family law arbitration?

Katz, Nannis & Solomon v. Levine – Part 2


In our last entry, we commented on the Supreme Judicial Court case that recently held contracting parties to the tightly limited review provisions of the Massachusetts version of the Uniform Arbitration Act, M.G.L., ch, 251 ("UAA"), and barring contractual terms that broaden review. read more...

You may also read:

Good News and Bad News: Arbitration Just Became a Little Bit More Final (Katz, Nannis & Solomon, PC v. Levine Part 1)

O Pfannenstiehl! Part 6: No Wonder We’re All Confused (Just What Might the SJC Do?)


We have not talked to anyone yet who is not hoping that the Supreme Judicial Court (SJC) grants further appellate review, though admittedly, we have not spoken with Mrs. Pfannenstiehl or her counsel! At this point, it is hard to imagine the high court not taking the case. read more...

You may also read:

O Pfannenstiehl! No Wonder We're All Confused Part 1: The Appeals Court's Fuzzy Math

O Pfannenstiehl! Part 2: No Wonder We’re All Confused (The Appeals Court Doesn’t Even Agree With Itself)

O Pfannenstiehl! Part 3: No Wonder We’re All Confused (Be Careful What You Wish For)

O Pfannenstiehl! Part 4: No Wonder We’re All Confused (Equities Trump Law?)

O Pfannenstiehl! Part 5: No Wonder We’re All Confused (The Fruit of the Poisonous Tree)

© 2019 Levine Dispute Resolution Center LLC. Dedham and Northampton, MA
781.708.4445 | 413.341.1017 | Email: wmlevine@levinedisputeresolution.com

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