Opinion
19-P-939
11-02-2020
R.N. v. S.P.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
S.P. (wife), the former spouse of R.N. (husband), appeals from judgments issued by a judge of the Probate and Family Court that terminated the husband's alimony obligation and dismissed the wife's counterclaim seeking an extension of alimony beyond the Alimony Reform Act's (Act) presumptive durational limits, G. L. c. 208, § 49 (b ). We vacate the judgments and remand for further proceedings consistent with this memorandum and order.
Background. We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record, and reserving certain facts for later discussion. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties were married on July 11, 1981, and had two children together. The wife alleged that the husband physically abused her on multiple occasions during the marriage, including one incident in which he attempted to "strangle" her. The husband "admitted" that he "plac[ed] his hands on her neck" and "shook her by the neck" during that incident. The wife obtained an abuse prevention order against the husband, which was eventually made permanent. On March 12, 1991, the parties were divorced on the fault-based ground of cruel and abusive treatment of the wife by the husband. Pursuant to the parties' separation agreement, which was incorporated into the divorce judgment, the husband was required to pay alimony to the wife of $136 per week. Aside from a four-month temporary suspension of alimony in 1992, the husband paid alimony to the wife continuously from the date of the divorce until April 2004, when the parties executed a stipulation agreeing to discontinue the husband's alimony obligation.
The husband also admitted that the parties' relationship was "abusive" and that "the abuse ended in December of 1988," after he voluntarily attended counselling.
This provision merged with the divorce judgment.
The 2011 modification. In May 2010, the wife filed a complaint for modification requesting alimony, asserting that the Social Security Administration had deemed her totally and permanently disabled, and that her condition had continued to deteriorate since the last judgment. In April 2011, following a two-day trial at which both parties were represented by counsel, a judge of the Probate and Family Court (2011 judge) issued a modification judgment (2011 judgment) ordering the husband to pay alimony to the wife of $224 per week. The 2011 judge found that the wife "qualified in 1995 for benefits under the Social Security disability insurance [SSDI] program as a result of spinal injuries suffered by trauma," diagnosed as "posttraumatic Syringomyelia." However, the 2011 judge declined to credit the wife's "assertion that, during the marriage, [the husband] choked her into unconsciousness and that this was the proximate cause of the injuries upon which her disability determination is based," stating that he "did not believe [the wife's] description that [the husband] strangled her." The 2011 judge nevertheless concluded that alimony was warranted because the wife's "opportunity for future acquisition of income is bleak" and "[h]er only assets are [her] bank accounts and her home equity." In determining the wife's need for alimony, the 2011 judge found that: (1) the wife's income consisted of SSDI ($251 per week) and private disability insurance ($381 per week), the latter of which was set to expire in a few years; (2) the wife was capable of earning eighty dollars per week "perform[ing] some work, with accommodations"; (3) the wife had no debt and credible weekly expenses of $1,036; and (4) the wife had depleted her $79,000 Fidelity account to pay for living expenses after various surgeries and her remaining assets consisted of bank accounts totaling $76,439 and home equity of $380,000, the latter of which she could "presumably" draw on to supplement her income by approximately one hundred dollars per week. The judge determined the wife's need to be $224 per week, and found that the husband had the ability to pay that amount.
The 2011 judge apparently credited the opinion of the wife's witness that the wife's condition was "trauma induced," rather than congenital.
The 2011 judge found that the wife earned $60,000 per year prior to becoming disabled, and that she last earned wages in 1995. The 2011 judge found that the wife would not be eligible for Social Security benefits based on her own work history until she attained age sixty-six. At the time of the 2011 modification trial, the wife was age sixty and the husband was age sixty-two.
In determining the husband's ability to pay, the 2011 judge found that (1) the husband's average gross wages in early 2011 were $2,374 per week; (2) the husband also had "access" to the income of his current spouse (who earned $114,135.78 in 2010); and (3) the husband's assets consisted of $56,000 in home equity, and bank accounts totaling $10,000. The 2011 judge also noted that the husband owned stock options, which he had yet to exercise. The 2011 judge concluded that the husband "has sufficient means to pay his costs of living" and "sufficient means to pay alimony."
The 2017 modification. In August 2016, the husband filed a complaint for modification seeking to terminate alimony on the basis of his retirement and resulting decrease in income. In September 2016, the wife filed a counterclaim for modification, pursuant to G. L. c. 208, § 53 (e ), requesting a deviation from the Act's durational limits on the following grounds: (1) the wife's "[a]dvanced age[,] chronic illness[,] or unusual health circumstances," § 53 (e ) (1) ; (2) the husband's "[s]ources and amounts of unearned income ..., including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties divorce," § 53 (e ) (5) ; (3) the wife's "inability to provide for her own support by reason of physical or mental abuse by the [husband]," § 53 (e ) (7) ; and (4) the wife's "inability to provide for her own support by reason of [her] deficiency of property, maintenance[,] or employment opportunity," § 53 (e ) (8).
On October 3, 2017, the parties appeared for trial on the husband's complaint and the wife's counterclaim. The wife was pro se and the husband was represented by counsel. In support of her request for deviation, the wife testified that she had been totally and permanently disabled with a condition "akin to ALS" since 1995, that she underwent emergency spine surgery in 2016, that her medical condition had continued to deteriorate since that time, and that her income had declined considerably since the 2011 judgment due to the termination of her private long-term disability insurance in August 2015 (from which she used to receive income of $1,525 per month). The wife also testified that her disability was "a result of strangulation to unconsciousness" by the husband; however, the judge precluded the wife from presenting further testimony or other evidence on the abuse issue, ruling that it was "res judicata" in light of the 2011 judge's findings. The judge also precluded the wife from calling one of her witnesses and introducing several exhibits due to her purported failure to timely comply with a pretrial order requiring the exchange of exhibits and witness lists by September 11, 2017.
The evidence that the wife attempted to introduce was largely aimed at establishing the husband's abuse of her during the marriage. The wife also sought to introduce a mortgage application rejection letter, presumably for the purpose of establishing that she was unable to draw on her home equity as contemplated by the 2011 judge.
Shortly after the trial concluded, the judge issued two judgments on the same day terminating the husband's alimony obligation and dismissing the wife's counterclaim. The judge found that the husband had paid alimony in excess of the Act's presumptive durational limits, he and his current spouse were both "retired," and his "income ha[d] materially and significantly decreased since the date of the last judgment." The judge found that the wife "ha[d] not met her burden that there should be a deviation." The judge did not make any findings regarding the wife's request for deviation on the ground of her "chronic illness or unusual health circumstances," despite the wife pleading that ground in her counterclaim and providing testimony on that issue. With respect to the wife's assertion that her inability to self-support was caused by the husband's abuse, the judge reiterated her ruling that the abuse issue had already been adjudicated by the 2011 judge. In addressing the wife's request for deviation on the ground of "deficiency of property, maintenance, or employment opportunity," G. L. c. 208, § 53 (e ) (8), the judge concluded that the wife failed to demonstrate a need for alimony because her entire financial statement was "patently unreliable and deliberately misleading as to her true household income and financial circumstances." The judge appeared to base this conclusion on two factors: (1) the wife's assertion that she receives a contribution of only thirty dollars per week from her adult son currently living with her, despite that he was earning $615 per week prior to losing his job (the judge acknowledged that the son was unemployed at the time of the trial); and (2) the wife's failure to report on her financial statement two pieces of real property held in a family trust (of which she is apparently a beneficiary along with her brothers). The judge found that the wife "feigned lack of knowledge as to the corpus of that trust," and that she failed to rebut the husband's assertion (based on hearsay testimony to which the pro se wife did not object) that the wife refused to sell the trust properties because she "did not want to list her share of the proceeds on her financial statement during this litigation." The judge found that the wife "receives $341 per week from [S]ocial [S]ecurity ... as noted on her trial financial statement," and that she "report[ed] weekly expenses of at least $779 per week, over half a million dollars in equity in her home[,] ... a vehicle worth $7,000," and "no debt other than one bill for emergency surgery." The judge made no additional findings regarding the wife's reported income, expenses, and assets. With respect to the husband, the judge credited his financial statement in its entirety, noting that he reported gross weekly income of $1,286, weekly expenses of $1,274, and assets consisting primarily of $107,000 in home equity and various accounts totaling $67,264. The judge concluded that, even if the wife had demonstrated a continuing need for alimony, the husband "does not have the ability to pay alimony at this stage of his career, ... his accumulated assets are relatively modest compared to [the wife's] estate," and he "is entitled to a termination of alimony based on his age and retirement status." The present appeal by the wife followed.
Although the husband resigned from his full-time position in July 2011, he was working part time in a different position during the 2017 modification trial.
The judge noted that the wife "claim[ed] an inability to provide for her own support by reason of physical or mental abuse by [the husband]," but concluded that the wife's "claim was already determined to be not credible by the [2011 judge]. ... It is thus res judicata."
Although it appears undisputed that the wife was a named trustee at one point (the wife claimed that she was removed as a trustee in 2016), there is no evidence in the record (either testimony or documentary evidence) indicating that the wife is also a beneficiary of the trust. However, the wife appears to concede her status as a beneficiary in her brief. The wife testified that she did not list the trust properties on her financial statement "because [she] [had not] received anything from [the trust]." No evidence was presented at trial regarding the value of the trust properties.
The wife reported gross weekly income of $341 (consisting entirely of Social Security), weekly expenses of $779.45, and assets consisting primarily of $580,000 in home equity, with no liquid assets (the wife claimed that her checking account was overdrawn).
The husband reported total gross weekly income of $1,286 (consisting of $528 in Social Security, $385 in earnings from a part-time job, and $373 in retirement income), weekly expenses of $1,274, and assets consisting of $107,000 in home equity, a car worth $6,000, bank accounts totaling $2,764, and an IRA with a balance of $64,500 (the husband testified that the IRA contained the remainder of his severance package paid by his former employer in July 2011). The husband sold his stock options in 2013, receiving gross income of $41,000; however, those proceeds were not reflected on his 2017 financial statement.
Discussion. The wife principally argues that the judge erred in (1) ruling that the wife's request for deviation on the basis of the husband's abuse was barred by the doctrine of issue preclusion, and (2) the judge failed to make required findings regarding the wife's asserted grounds for deviation under G. L. c. 208, § 53 (e ). We address her arguments in turn.
1. Issue preclusion. "[I]ssue ‘preclusion prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or [parties in privity with the same parties].’ " Degiacomo v. Quincy, 476 Mass. 38, 42 (2016), quoting Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). "A party is precluded from relitigating an issue where ‘(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication,’ was essential to the earlier judgment, and was actually litigated in the prior action." Degiacomo, supra, quoting Kobrin, supra. "For a ruling to have preclusive effect, it must have a bearing on the outcome of the case. ‘If issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded.’ " Jarosz v. Palmer, 436 Mass. 526, 533 (2002), quoting Restatement (Second) of Judgments § 27 comment h (1982).
As an initial matter, there is no indication in the record that the husband properly raised res judicata as an affirmative defense, as he did not file an answer to the wife's counterclaim or present evidence that he was entitled to that defense. Indeed, the first mention of res judicata in the record before us appears in the trial transcript when the judge made her ruling. See Methuen Retirement Bd. v. Contributory Retirement Appeal Bd., 384 Mass. 797, 797 (1981) ("Collateral estoppel is an affirmative defense which must be properly pleaded and proved, or, in the absence of an opportunity to plead it, must be shown in evidence. ... A court may not take judicial notice of the defense"); Fabrizio v. U.S. Suzuki Motor Corp., 362 Mass. 873, 873-874 (1972) ("The burden is on the party claiming res judicata ... to allege enough facts in his plea or motion to establish that the cause of action was (1) between the same parties; (2) concerned the same subject matter; and (3) was decided adversely to the party seeking to litigate the subject matter again"); Davidson v. Davidson, 19 Mass. App. Ct. 364, 368 n.3 (1985), citing Mass. R. Dom. Rel. P. 8 (c) ("Res judicata is an affirmative defense which must be pleaded").
Even if the husband had properly pleaded issue preclusion as an affirmative defense, the 2011 judge's findings did not have preclusive effect with respect to the wife's request for deviation on the basis that her inability to self-support was caused by the husband's abuse. The Act was not in effect at the time of the 2011 judgment, and the 2011 judge's findings regarding the alleged abuse were not "essential," D egiacomo, 476 Mass. at 42, because he ultimately granted the wife's request for reinstatement of alimony despite finding her description of the abuse to be not credible. See Jarosz, 436 Mass. at 533. Moreover, "res judicata is a rule of public policy," see Degiacomo, supra at 41, quoting Biggio v. Magee, 272 Mass. 185, 188 (1930), and it does not apply when equitable or policy considerations favor the relitigation of an issue. See York Ford, Inc. v. Building Inspector & Zoning Adm'r of Saugus, 38 Mass. App. Ct. 938, 942 (1995). There is a well-documented history of the husband's abuse of the wife, including the permanent restraining order that issued against the husband, the fact that the divorce was granted on the fault-based ground of cruel and abusive treatment of the wife by the husband, and the husband's own admission that he abused the wife during the marriage and that he "shook the wife by the neck" during the alleged strangling incident. Accordingly, it was error to prevent the wife from presenting evidence regarding her inability to provide for her own support due to the husband's abuse on the basis of issue preclusion.
2. Deviation. We review the denial of a party's request for deviation from the Act's durational limits for abuse of discretion. See Voorhis v. Relle, 97 Mass. App. Ct. 46, 53 (2020), quoting George v. George, 476 Mass. 65, 70 (2016) (analysis when considering deviation from durational limits "is in the ‘here and now,’ not the marital lifestyle at the time of the divorce"). The Act "provides presumptive termination dates for general term alimony obligations for marriages lasting fewer than twenty years"; however, "[a] judge may deviate beyond these termination dates if the judge makes a written finding that doing so is in the ‘interests of justice.’ " George, supra at 68, quoting G. L. c. 208, § 49 (b ). "[W]hen disputes of fact arise the judge must make written findings based on evidence to determine whether the ‘interests of justice’ require alimony payments to continue beyond the durational limits of the [A]ct. The recipient spouse bears the burden of proving by a preponderance of the evidence that deviation beyond the presumptive termination date is ‘required in the interests of justice.’ " George, supra at 70, quoting § 49 (b ). "Further, a judge should evaluate the circumstances of the parties in the here and now, that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce." George, supra. "If relevant factors that existed at the time of the divorce persist when the complaint for modification is filed, a judge may properly consider them." Id.
The durational limits apply retroactively to alimony obligations established prior to the Act's effective date. See George, 476 Mass. at 68.
Here, the judge was required, but failed, to " ‘consider all relevant, statutorily specified factors’ .... set forth in G. L. c. 208, § 53 (e )." George, 476 Mass at 71, quoting Duff-Kareores v. Kareores, 474 Mass. 528, 535 (2016). The judge refused to entertain the wife's claim that her inability to self-support was caused by the husband's abuse, see § 53 (e ) (7), and the judge made no findings regarding the current status of the wife's "chronic illness[ ] or unusual health circumstances," § 53 (e ) (1), despite being required to make findings regarding the "here and now." George, supra at 70. A remand is therefore necessary for the judge to take evidence and make findings on those issues. See Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 149 (2009) ("Because the judge failed to address an entire aspect of the dispute, a remand is necessary for the judge to explain [her] reasoning").
With respect to the other grounds for deviation raised by the wife, the judge's findings were inadequate. The judge concluded that the wife did not demonstrate a need for alimony and thus failed to meet her burden of establishing that she was unable to provide for her own support due to "deficiency of property, maintenance, or employment opportunity," G. L. c. 208, § 53 (e ) (8). The judge did not, however, make adequate subsidiary findings to support that conclusion. See Prenaveau, 75 Mass. App. Ct. at 142, quoting Felton v. Felton, 383 Mass. 232, 240 (1981) ("an ultimate conclusion needs a foundation in the record supported by ‘ground-level facts’ "). The judge found the wife's financial statement to be "patently unreliable" largely due to the omission of the family trust properties. Although the judge was entitled to draw inferences adverse to the wife due to the uncertainty surrounding those particular assets, see Crowe v. Fong, 45 Mass. App. Ct. 673, 678-679 (1998), the judge failed to explain her reasoning for rejecting the wife's entire financial statement. The judge made no subsidiary findings indicating that the wife failed to report other sources of income or that her reported expenses were inflated.
This is especially concerning given that the wife's financial statement reflected a weekly deficit of $438, and her reported weekly expenses of $779, comprising only "basic needs," Fugere v. Fugere, 24 Mass. App. Ct. 758, 761 (1987), were approximately twenty-five percent less than her expenses of $1,036 credited by the 2011 judge. Moreover, the wife was found to have a need for alimony in 2011, despite having significantly more income and liquid assets at that time.
We will ordinarily not disturb a trial judge's credibility assessment; however, declining to credit any portion of the wife's claimed expenses was "plainly wrong." Felton, 383 Mass. at 239. See Zaleski v. Zaleski, 469 Mass. 230, 237 (2014). Although the judge determined that, irrespective of the wife's need for alimony, the husband lacked the ability to pay, this conclusion is not adequately supported by subsidiary findings. Indeed, the judge's findings indicate that the husband has a small weekly surplus after deducting his expenses from his gross income. See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 776 (2014) ("income for purposes of alimony is calculated on the basis of gross income). In light of the deficiencies in the judge's findings relating to the wife's need, and because need and ability to pay are interdependent concepts, see Katz v. Katz, 55 Mass. App. Ct. 472, 483 (2002) (payor's ability to pay should be "considered in the context of the entirety of the parties' respective financial situations"), the judge's ultimate conclusion that the husband does not have the ability to pay any amount of alimony cannot stand.
We note that the husband's reported expenses were nearly forty percent higher than the wife's and appeared to include many discretionary expenses beyond "basic needs" including housecleaning, entertainment, vacations, and gifts. See Fugere, 24 Mass. App. Ct. at 761. Included in the husband's 2016 statement was a breakdown of weekly "additional expenses" of $603, which included $224 in alimony payments. The husband's 2017 financial statement likewise listed $614 as weekly "additional expenses," although without a breakdown, so it is unclear whether these expenses also included alimony. The inclusion of alimony as expenses underscores the need for additional fact finding.
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Accordingly, a remand is necessary for further fact finding regarding all four grounds for deviation raised by the wife, as required by George, 476 Mass. at 70-71. See Prenaveau, 75 Mass. App. Ct. at 149. Because the judge erroneously precluded the wife from presenting evidence regarding the abuse issue, the wife shall be permitted to present evidence on that issue on remand. The judge may also, in her discretion, permit the parties to present additional evidence regarding the other issues on remand.
Conclusion. The October 3, 2017 judgments are vacated, and the matter is remanded for further evidence and fact finding consistent with this memorandum and order.
So ordered.
Vacated and remanded.