Case Law Updates from Family Mediation Quarterly, October 2013

PC Agreement Held Enforceable.

A recent Appeals Court decision held that an agreement to use a parenting coordinator (PC) was enforceable, even where one party does not want to use one anymore. The father had sought the appointment of a new PC after the PC’s initial one-year term ended; the Probate and Family Court judge refused, asserting “I’m not appointing a [PC]. I don’t ever appoint them and I’m not going to start today.” The father appealed; the Appeals Court construed the agreement of the parties to mean that when the initial term of the PC ended, and the parties are unable to agree on a subsequent PC, the Court is empowered to make that decision. Notably, the decision does not reach the question of whether a Court may impose a PC on parties in the absence of their agreement. Ruddy v. Ruddy, 2013 Mass.App.Unpub. LEXIS 902 (September 16, 2013)

Post-Retirement Alimony Obligations.

Mediators and lawyers read with interest every time the Appeals Court confronts the Alimony Reform Act. The most recent case involves a 47-year marriage and two 68-year-old spouses in which the Probate and Family Court ordered (1) a roughly equal division of assets and (2) even though the husband had reached retirement age, payment of alimony until actual retirement. Among the assets divided equally was the husband’s teacher’s pension which, important to the Appeals Court, had not been valued. Also central: the parties agreed to treat the husband’s other pension as a stream of income and not a divisible asset (and the judge ordered the husband to maintain the wife as the sole beneficiary of this pension upon his death.) Although unelaborated in the decision, the latter is critical. Post-alimony, the husband would continue to enjoy the fruits of the pension while the wife would not. Post-alimony, the two would not be equally situated.

On appeal, the Appeals Court upheld the (1) property division, (2) amount of alimony, and (3) the husband’s obligation to pay alimony past retirement age. As to (3), the Court found that the Probate Court did not abuse its discretion in deviating from the presumption in the new law that alimony terminate on the payor’s retirement age; it was apparent from the findings that the Probate Court had considered the relevant factors for deviation – “including the wife’s age, poor health, and lack of employment opportunity.”

The appellate court disagreed, however, that the husband could stop paying alimony post-retirement. Without evidence of the income that the wife would receive from the teacher’s pension, the Court held, the judge erred in assuming that it would be adequate for her. The case was remanded to determine the wife’s income stream from the pension and “what amount of alimony (if any) the wife should receive after the husband’s retirement from teaching.” Green v. Green, 84 Mass.App.Ct. 1109 (August 30, 2013).