Andrews v. Andrews
Decision Date | 02 November 1989 |
Docket Number | No. 88-P-930,88-P-930 |
Citation | 27 Mass.App.Ct. 759,543 N.E.2d 31 |
Parties | Anthony Joseph ANDREWS v. Robin Lee ANDREWS. |
Court | Appeals Court of Massachusetts |
Nonnie S. Burnes (Daniel T. Heffernan, Boston, with her), for Robin Lee Andrews.
Spencer M. Kagan (Nancy G. O'Donnell, Revere, with him), for Anthony Joseph Andrews.
Jamie Ann Sabino, Cambridge, & David Hoffman, Boston, for Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.
Before DREBEN, KAPLAN and KASS, JJ.
The question before us is whether a Probate Court judge may, in his discretion, treat a husband's military pension as a "stream of income" to be used as a source of alimony rather than as a capital asset to be equitably divided. We hold that there was no abuse of discretion in not dividing the pension and affirm the judgment.
We take our facts from the judge's findings. In February, 1986, after twenty-five years of marriage, the husband filed a complaint for divorce. Although the parties had often been separated for extended periods due to the husband's military career, the final separation coincided with a major suicidal depression on the part of the wife. Prior to that time her health had been good. She was a tenured elementary school teacher in the Newton public schools and is presently on leave of absence. She needs a low stress environment and has only been able to work in a bakery and a coffee shop part time. Since the separation, she has been hospitalized several times for acute suicidal depression and, at the time of the hearing before the probate judge, was a psychiatric patient at McLean Hospital. On the husband's motion, a guardian ad litem was appointed so that the divorce would proceed to trial. The wife was not present. "Her prognosis at this time is unclear because at present she has not responded to treatment."
Both the husband and the wife have pensions. Their assets, other than their pensions, were in excess of $830,000. These assets were divided approximately sixty-five percent ($541,462) to the wife and thirty-five percent ($289,485) to the husband. The judge valued the husband's pension (which he is presently receiving) at $555,392, and the wife's at $122,960. 1 The husband's present annual receipts from his pension are approximately $36,000 a year. The wife's pension, if she does not return to work, will become payable on September 1, 1994 in the amount of $791 per month. Both pensions are subject to cost of living increases. The husband was ordered to maintain medical coverage for the wife and to pay her as alimony thirty percent of his total gross monthly pension (including all cost of living adjustments) until the first to occur of the following: the death or remarriage of the wife, or September 1, 1994 (the date when the wife's pension will become payable).
In making the equitable division and alimony award, the judge took into account all the factors required by G.L. c. 208, § 34, and explicitly stated:
We see no error in the award. In view of the uncertainty of the wife's mental condition, the judge could well determine that a portion of the financial award should remain flexible to take care of future events. 2 Unlike equitable division, which cannot be altered, Bush v. Bush, 402 Mass. 406, 409, 523 N.E.2d 259 (1988); Maze v. Mihalovich, 7 Mass.App.Ct. 323, 326, 387 N.E.2d 196 (1979); Davidson v. Davidson, 19 Mass.App.Ct. 364, 367, 474 N.E.2d 1137 (1985); Hartog v. Hartog, 27 Mass.App.Ct. 124, 128, ...
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