By Eric T. Berkman, Lawyers Weekly Correspondent
A disabled woman was entitled to alimony payments from her ex-husband even after the durational limits established by the 2011 Alimony Reform Act had been reached, a Probate & Family Court judge has ruled.
The defendant ex-wife, about to turn 60 and unable to work as a result of a head injury she suffered in a car accident, argued that such a deviation from the durational limits laid out in G.L.c. 208, §49(b) of the act was warranted in the interests of justice.
Judge Anne M. Geoffrion agreed.
“Given her cognitive challenges, advanced age, and disability as determined by the Social Security Administration, it is not reasonable to expect [the defendant] to earn any additional income,” Geoffrion wrote, dismissing the plaintiff exhusband’s complaint for modification.
“Moreover, terminating [the plaintiff ’s] alimony obligation would be in direct conflict with the long standing public policy that ‘a judge ought not, even if there is some financial hardship, shift to the public a party’s obligation to provide support for his former spouse and children,’” Geoffrion continued, quoting the Appeals Court’s 1988 decision in Harris v. Harris.
The eight-page decision is Barcalow v. Barcalow, Lawyers Weekly No. 15- 003-15. The full text of the ruling can be ordered at masslawyersweekly.com.
Michael J. Serduck of Amherst, who represented the defendant, said though the case has limited precedential value as a trial court decision, other lawyers can cite it as guidance when seeking to have alimony extended beyond the retirement age of the payor spouse.
“Had it gone the other way, there would have been serious issues, as my client is on Social Security disability and wouldn’t have been able to meet her normal expenses,” he said.
The decision was not completely unexpected, he added. Case law predating the Alimony Reform Act held that if a spouse was a public charge and the other spouse could pay, alimony should be ordered.
“This continues the same concept forward,” he said.
Plaintiff ’s counsel Valerie J. Botter of Northampton said while she was disappointed by the decision, she and her client thought it was well reasoned and have decided not to appeal.
More broadly, she said the decision reiterates that, despite the Alimony Reform Act, the Probate Court still has considerable discretion in continuing alimony.
“Even with the retirement and cohabitation provisions, there are essentially escape clauses where a judge could continue alimony,” Botter said. “I also think that reflects our law in general, which gives wide discretion to Probate & Family Court judges in divorces, whether dividing property, ordering child support or ordering alimony. That’s the history of the discretion our judges have had and that history continues.”
Janet Heatherwick Pumphrey, a family law attorney in Lenox, said the decision is “consistent with the underlying jurisprudential axiom that probate and family law is founded upon the law of equity.”
The most important lesson from the case, she added, “is that the payor spouse should not count on an alimony reduction in his retirement nest-egg in a case where there are serious equitable and policy considerations that weigh in favor of the payor’s continuing support of a payee in need of support.”
Plaintiff Emmett Barcalow served his wife, defendant Jilda Barcalow, with a complaint for divorce on Sept. 17, 2004, after six years of marriage.
Jilda had suffered a severe head injury in an automobile accident in 2002. Following the crash, she had difficulty recalling information and forming thoughts. She also had trouble reading and writing and could drive only short distances locally.
Jilda did operate a small home day care for a short period of time after the accident but apparently had to stop because of her limitations.
A divorce judgment was issued on Jan. 10, 2007, after a contested trial. As part of the judgment, the Hampshire County Probate & Family Court ordered Emmett to pay Jilda alimony in the amount of $325 a week until the death of either party, Jilda’s remarriage or further order of the court.
On March 3, 2014, Emmett filed a complaint for modification of alimony in Probate & Family Court seeking to terminate his support obligation on grounds that the order had exceeded durational limits set out in the Alimony Reform Act; that he as alimony payer would be reaching full retirement age on June 6, 2014; and that a decrease in his income constituted a material change in circumstances warranting modification.
Jilda, who apparently has no income other than Social Security disability benefits and alimony, requested that the complaint be dismissed.
Geoffrion held a trial on the issue in March.
Geoffrion noted that while Emmett’s prospective retirement was a factor the court could consider in determining whether a modification was warranted, it would not — on its own — provide a basis for terminating his alimony obligation since retirement provisions in the Alimony Reform Act do not apply to judgments entered before the law was enacted.
Meanwhile, the judge did not find a material change in circumstances that would necessitate terminating Emmett’s obligation.
Specifically, Geoffrion found that while Emmett’s expenses had increased $100 a week since the divorce, his income had increased approximately $200 a week. Meanwhile, he had been able to continue saving for retirement while managing to afford travel and vacation.
The judge also found that while Jilda’s weekly expenses had not increased since the divorce, her income had decreased and she was now spending $5,000 more annually than her income.
Meanwhile, Geoffrion noted that Jilda had exhausted funds she received from the sale of the former marital residence on the purchase of — and improvements to — her present, smaller home.
“Therefore, this court concludes that Mr. Barcalow has not demonstrated that a material change in circumstances has occurred regarding Ms. Barcalow’s need for alimony or Mr. Barcalow’s ability to pay alimony,” the judge said.
Turning to Emmett’s durational limits argument, Geoffrion noted that based on the length of the parties’ marriage, his alimony obligations should have lapsed in September 2010, three years and eight months after the divorce was final.
“However, the inquiry does not end there,” Geoffrion said. “When a party seeks to modify a pre-existing alimony obligation under durational limits, not only must the court inquire as to the relevance of the durational limits under [G.L.c. 208, §49(b)], but it must also consider whether a deviation from the durational limits is warranted or is required in the interests of justice.”
Given Jilda’s advanced age as well as the cognitive difficulties she was experiencing as a result of her head injury, it was not reasonable to expect her to earn additional income and support herself, Geoffrion said.
Moreover, terminating Emmett’s alimony obligations would violate the commonwealth’s longstanding policy against doing so if it would force the payee spouse to become dependent on the state for support.
Accordingly, Geoffrion refused to terminate or modify the award and dismissed Emmett’s complaint.
Reprinted with permission from The Dolan Co., 10 Milk Street, Boston, MA 02108. (800) 444-5297 © 2015 #02080vw www.masslawyersweekly.com