D.B. v. J.B.

• Decision Date: 17 March 2020
• Docket Number: No. 18-P-600,18-P-600
• Citation: 144 N.E.3d 911,97 Mass.App.Ct. 170
• Parties: D.B. v. J.B.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 170

144 N.E.3d 911

D.B.

v.J.B.

No. 18-P-600

Appeals Court of Massachusetts, Suffolk..

Argued April 2, 2019

Decided March 17, 2020

Nancy A. Freed, Boston, for the husband.

Sandra E. Lundy, Brookline, for the wife.

Present: Hanlon, Desmond, & Shin, JJ.

HANLON, J.

After a trial, a judge of the Probate and Family Court issued extensive findings of fact and conclusions of law, and entered a judgment of divorce nisi dated May 23, 2017. The plaintiff husband, D.B., now appeals, arguing that the judge erred in (1) failing to calculate appropriately the defendant wife's, J.B., need for alimony; (2) failing to credit the husband for thirty-seven months of pretrial alimony; (3) dividing equally the husband's interest in an investment account; and (4) awarding joint legal custody of the parties' minor children, while granting the wife final authority for nonemergency medical decisions. For the reasons that follow, we vacate the portion of the judgment that relates to the durational limit of the husband's alimony payments, and we affirm the remainder of the judgment.

Background. The husband and the wife were married in October 1998; together they had three children.¹ The parties first separated in July 2011; the husband filed a complaint for divorce on July 18, 2011. A short time later, the parties reconciled. However, in May 2013, the parties again separated, and the husband pursued his divorce complaint.^{2 ,3} After the separation, the children resided primarily with the husband in the marital home; the oldest child resided with the wife for a short time between September 2015 and January 2016, but then returned to reside in the husband's home. In February 2014, by stipulation of the parties, the husband agreed to pay to the wife temporary support of $30,000 monthly; the stipulation characterized the support as alimony, and the parties agreed that the monthly payments would be "credited against the applicable durational limit of the Alimony Reform Act of 2011." The stipulation later entered as a temporary order.

The wife graduated with a college degree and was employed prior to the parties' marriage. However, beginning with the birth of the parties' oldest child in January 1999, the wife became a stay-at-home parent; during the marriage she also hosted dinners and political fundraisers in the marital home for the purpose of developing the husband's business relationships. The wife brought with her into the marriage approximately $500,000; those funds were "incorporated into the marital enterprise," or used to acquire and grow marital assets.

The husband was the primary wage earner during the marriage, and the wife made significant noneconomic contributions that permitted the husband to focus on his career. She was the primary caregiver for the children during the early years of the marriage; the family later employed nannies and other household staff, and the wife remained intricately involved in the day-to-day running of the household and in coordinating the children's needs. At the time of trial, the wife's sole source of income was the temporary alimony the husband paid her.

The husband received a bachelor's degree and later a master's degree in business administration. He began his successful career as a consultant with a company, and later formed an investment firm (firm). The husband has been employed by the firm throughout the course of the marriage and was, at the time of trial, one of the general partners at the firm, which had a number of employees. The husband did not receive a regular salary from the firm, but instead, for the two years preceding the trial, he opted to take a monthly draw of $200,000.

The firm manages private equity accounts that invest in and manage various investment portfolio companies. Partnership investment entities hold the firm's interests in each of the portfolio companies. Each account has a set duration of ten years; after an account is established, the firm spends the first five years raising investment capital to fund the entity (in addition to the firm's initial investment). Once the investment goal is met, the account is closed and the management phase of the account begins. The following five years are then focused on the management and growth of the account, in order to provide a high return for the investors (and for the firm) when the various entities contained within each account are sold.

As a general partner of the firm, the husband had a mandatory capital commitment to establish an account; this required him to contribute his personal assets. Relevant here, the husband was personally obligated to contribute $2.4 million to a specific account, asset X. By December 2009, fundraising for asset X had been completed, and the management phase of asset X had begun. At the time of trial, $600,000 of the $2.4 million in capital committed to asset X by the husband had yet to be funded; because asset X was still in the management phase at that time, the judge found that the husband's interest in asset X was "illiquid." According to the husband, his commitment obligation to asset X would continue to be outstanding until December 2019.⁴ Based on the husband's financial statement admitted at trial, the husband's general partnership interest in asset X was approximately $8.1 million (or forty percent of the firm's entire share). The judge found credible the husband's testimony that he could not at the time of trial predict the circumstances of any future sale of asset X, including any profits or losses therefrom.

By stipulation of the parties, in October 2013, a guardian ad litem (reporting GAL) was appointed to investigate, evaluate, and report (with recommendations) to the judge issues relating to the care, custody, and parenting plan for the children. A second GAL (consulting GAL) was appointed for the purpose of investigating and consulting with the reporting GAL.⁵ The two GALs filed with the judge a joint report dated December 18, 2014; however, only the reporting GAL authored the recommendations section of that report.

In her findings of fact, the judge concluded, after hearing the trial testimony of the reporting GAL and the wife's expert, that both GALs had failed in their investigations to comply with mandated GAL standards, and had acted outside of their roles as objective evaluators. As a result, the judge concluded that the GALs' conduct undermined any perception of impartiality and created the impression that they were biased in favor of the husband –– which had a detrimental impact on the children. In addition, according to the expert testimony, the GAL report omitted certain information gathered from interviews with the family and various others, and sometimes misconstrued statements by collateral witnesses interviewed during their respective investigations.⁶

After fifteen days of trial, the judge found that the wife had been the primary caretaker of the children during the marriage and that she had lost economic opportunities during the two decades she was a stay-at-home parent. The judge declined to adopt the reporting GAL's recommendations (due to both GALs' questionable impartiality); found that "the presumption against awarding [w]ife shared legal and physical custody ha[d] been rebutted;"⁷ and found that the wife was in need of support, due to her absence from the workforce for nearly two decades and a diagnosed medical condition. The judgment of divorce nisi that issued, relevant here, (1) awarded the parties joint legal and physical custody of the children, and granted the wife final decision-making authority with regard to the children's medical care, due to the parties' inability to work collaboratively in those matters in the children's best interests; (2) ordered the husband to pay to the wife general term alimony in the amount of $60,000 each month (representing thirty-four percent of his gross income) until September 1, 2027; and (3) awarded the wife fifty percent of all distributions received by the husband derived from his interests in asset X. The husband appealed.

Discussion. 1. Wife's need for alimony. The husband first argues that the judge erred when she calculated the amount of his alimony obligation. For support, he cites the Alimony Reform Act of 2011 (act), St. 2011, c. 124, which provides, in pertinent part, "[e]xcept for reimbursement alimony or circumstances warranting deviation for other forms of alimony, the amount of alimony should generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes established at the time of the order being issued" (emphasis added). G. L. c. 208, § 53 (b ). The husband's argument focuses particularly on the word "or," which, he contends, "is critical." In his view, the award must satisfy both criteria. And, he argues, the wife does not need the amount of alimony that the judge ordered him to pay. As to that second portion of his argument, we are not persuaded.

The act did not change the fundamental purpose of alimony, which "is to provide for postdivorce economic support of a spouse who was financially dependent during the marriage." Hassey v. Hassey, 85 Mass. App. Ct. 518, 524, 11 N.E.3d 661 (2014), citing Gottsegen v. Gottsegen, 397 Mass. 617, 623, 492 N.E.2d 1133 (1986). "[W]here the supporting spouse has the ability to pay, ‘the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage’ " (emphasis added). Young v. Young, 478 Mass. 1, 6, 81 N.E.3d 1165 (2017), quoting Pierce v. Pierce, 455 Mass. 286, 296, 916 N.E.2d 330 (2009). In determining the amount and duration of an alimony award, the judge must consider certain statutory factors, "and such other factors as the court considers relevant and material." G. L. c. 208, § 53 (a ). Although the act created express guidelines to aid judges in fashioning alimony awards, "it [did] not alter...