MCFM Spring 2012 Family Mediation Quarterly Article by Attorney Fields

The most recent issue of the Massachusetts Council on Family Mediation Family Mediation Quarterly features the following article I wrote called MASSACHUSETTS FAMILY LAW: A Periodic Review.

Value of Inherited Nantucket Home Divided Equally. The Appeals Court upheld a Probate and Family Court judgment that divided equally between parties the value of the husband’s interest in a Nanucket home. In upholding the trial court’s wide discretion, the appellate court was impressed by several factors. The island home had been gifted to the husband in trust by his family halfway through a presumably long-term marriage. The trust did not “limit the property to the husband (or … exclude it from assets available for division upon divorce).” Finally, the family had “use and enjoyment of the property” during the marriage. The Appeals Court also dismissed the husband’s argument that his minority interest in the home should be discounted for its lack of marketability. Citing Bernier v. Bernier, 449 Mass. 774 (2007), since the property was not currently intended for sale, such a discount would be inappropriate. Gribbell v. Gribbell, 2012 Mass.App.Unpub. LEXIS 104 (February 1, 2012) (Unpublished)

Must a Changed Circumstance be Unanticipated? (Or A Change is a Change.) In a modification action, to what extent does it matter whether the alleged material change in circumstance should have been anticipated? In a recent case, Lee Werling, a husband with a pre-existing medical condition at the time of divorce, agreed to a merged provision requiring him to pay alimony until the wife, Deborah Nutting, remarried or either party died. A few years later, the pre-existing medical condition came to fruition and Mr. Werling returned to court with a modification to terminate the alimony. The Probate and Family Court allowed the modification. Ms. Nutting appealed for a number of reasons, one of which caught my attention. Relying on Huddleston v. Huddleston, 51 Mass.App.Ct. 563 (2001), she argued that the “husband should have anticipated in the separation agreement the effect of his preexisting disability on his finances and should be precluded from obtaining termination of alimony on any basis other than those enumerated in the agreement.” The Appeals Court pointed out that Huddleston has a “common sense and justice” exception and found that Mr. Werling had met the criteria for this exception. In fact, although the Appeals Court does not note it, the modification statute itself requires only a “material change in circumstances” –and makes no mention of whether the change should have been anticipated. A change is a change, it seems to me, whether it’s anticipated or not. Nutting v. Werling, 81 Mass.App.Ct.1116 (February 24, 2012) (Unpublished).

Life Insurance to Secure Alimony is not Improper Post-Mortem Alimony Award. The husband appealed from a judgment in the Probate and Family Court which provided the wife with security in the event the husband died while under an alimony obligation to her. He argued that this amounted to an award of “post-death alimony” and that, since Massachusetts law mandates that alimony terminate upon the payor’s death unless otherwise agreed, such a requirement was unlawful. The Appeals Court affirmed the judgment, relaying on Braun v. Braun, 68 Mass.App.Crt. 846, 856 (2007), in which it held, “a judge may order that a party maintain life insurance as security for alimony even where the order for alimony does not continue after the support obligor’s death.” The Court continued: “[s]such an order, and the payments of premiums, may be seen as a component of alimony and other payment requirements.” There is no post-death alimony obligation because “payments under the policy flow from the insurer to the beneficiary” and not from the obligor’s estate to the beneficiary. Mastrocola v. Mastrocola, 81 Mass.App.Ct. 1122 (March 19, 2012).