J.N.S. v. J.M.S.

• Decision Date: 05 May 2016
• Docket Number: 15-P-218
• Parties: J.N.S. v. J.M.S.
• Court: Appeals Court of Massachusetts

J.N.S. v. J.M.S.

15-P-218

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

May 5, 2016

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a trial in the Probate and Family Court, the judge ordered entry of a judgment of divorce that included an order for payment of "unallocated alimony and child support."¹ J.M.S., the former wife (wife), appeals, arguing that the Alimony Reform Act of 2011, G. L. c. 208, §§ 48-55, inserted by St. 2011, c. 124, § 3, permits the judge to establish an amount of alimony based on the relative disparity in the parties' income, rather than be limited by a traditional "need/ability to pay" analysis. Specifically, G. L. c. 208, § 53(b), provides, "[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 thetime of the order being issued" (emphasis supplied). The wife contends that that language would have warranted a far larger amount of alimony than was ordered -- while the amount would cover most of her claimed expenses, it is only approximately ten percent of her former husband's (husband) established gross income for the year of the divorce.² In her view, this is unfair, particularly given that the amount ordered includes child support for four teenaged children, with the husband entitled to claim all of the tax deductions associated with the payments.

Unfortunately, we are unable to address that issue in a meaningful and equitable way, given the extraordinary and concerning nature of the judge's findings. Were they expressed differently, we might have been able to accept them as falling within the judge's prerogative to evaluate the credibility of the witnesses and find the facts, even if we would have decided the issues differently. However, the language of the findings and rationale is so vitriolic, and the findings and rationale themselves are so one-sided, and, in fact, so unsupported by the evidence, that they create, in our view, at least the appearance of bias and partiality and therefore cannot stand.

"Article 29 of the Massachusetts Declaration of Rights requires that judges be 'as free, impartial and independent as the lot of humanity will admit.' Commonwealth v. Leventhal, 364 Mass. 718, 721 (1974). Commonwealth v. Campbell, 5 Mass. App. Ct. 571, 586 (1977). See Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv. L. Rev. 736, 746 (1973). Under the authority of S.J.C. Rule 3:09, Canon 3(C)(1), as appearing in 382 Mass. 811 (1981), '[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party . . . .'" Commonwealth v. Dane Entertainment Servs., Inc., 18 Mass. App. Ct. 446, 448-449 (1984). "A judgeshall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . . ." S.J.C. Rule 3:09, Canon 3B(5), as appearing in 440 Mass. 1309 (2003). "A judge must refrain from speech, gestures, or other conduct that could reasonably be perceived as evidencing bias or prejudice . . . . A judge must perform judicial duties impartially and fairly. A judge who manifests any bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute." Id. at 1312, Commentary to § 3B(5).

In this case, the question of bias is particularly striking because most of the issues between the parties -- including, significantly, custody and a parenting plan -- were not seriously contested and essentially were settled by stipulation in advance of the trial. It was left for the judge only to decide financial issues, including the division of the marital estate and the amount of alimony and child support to order. Nonetheless, beginning his findings with a quotation from a nursery rhyme,³ the judge inexplicably focused a significant portion of his attention on the conduct of the parties during the marriage and their relationships with their children,despite the fact that the issue was not before him.⁴ In so doing, the judge frequently adopted wholesale detailed language from the husband's proposed findings that was extremely critical of the wife's character⁵ (as well as her conduct). These findings were suggestive of a lack of balanced consideration of the conduct of both parties, including the husband.⁶

Certain basic facts are undisputed. This was a sixteen-year marriage. The parties were married on June 1, 1996. By November 12, 2002, they had four children. The parties agreed that the husband would work outside the home and that the wife, at least after the first child was born, would be a full-time mother and homemaker. The husband worked very hard and was extremely successful. At the time of the divorce he was employed as chief operating officer and chief financial officer of an investment firm. The amount of his income was disputed, because it was comprised of a base salary plus a distribution from the operating profits of the firm and certain incentive fees. At trial, he testified that his projected income for 2013 was $3.471 million.⁷ The parties lived frugally. At some point during the marriage, the wife had an affair with a contractor who was renovating the marital home. The husband purchased another home in the same town, where he was living at the time of the divorce, and also a vacation home.

After the husband moved out of the marital home, his oldest daughter and oldest son had only brief contact with him and much of that was hostile. The second son (the third child) initially had some contact with his father, but no longer wished to see him at the time of the trial. The youngest child continued to see his father on a regular basis. This admittedly troubling situation greatly disturbed the trial judge, and, at least in his findings and rationale, he appeared to hold the mother solely responsible for it.

However, our review of the trial record indicates that there also was evidence to support the wife's argument that her former husband "was an overbearing, verbally and physically abusive husband and father." A guardian ad litem's (GAL's) report was filed on June 25, 2013, and admitted at trial by agreement. The GAL reported that both parties "were cooperative, flexible and prompt in making arrangements and making additional payments."

During the course of his investigation/evaluation, the GAL met extensively with each party, with each of the four children, and with references recommended by each party. He also reviewed documents, including text messages between the parties and transcripts of their depositions. In contrast to the judge's findings, the report includes a number of examples given by thechildren of their father's temper along with verbal and physical abuse.

Specifically, the GAL reported that the parties' daughter, who was seventeen at the time of trial, reported that, before her parents separated, her father was "rough" on everyone in the house.⁸ The parties' older son was born in 1998. He told the GAL that life at home when his father was there was tense, with a lot of arguing.⁹ The second son was born in 2000 and hisreport to the GAL was similar.¹⁰ By contrast, the youngest boy was sad when his father left, and he was glad to go to see himfor regular visits. "He said it is fun as he is the only one there, his father does what he wants." This child also said that his mother, sister, and brothers commented to him about seeing his father. "He replied a lot. He said they can be rude about what he has done in the past and what he is doing. They say he is bribing him to go. . . . I asked how his father treats him. He said good." When told that his brother had said that the father had lost his temper at him, this child said that it was a long time ago and he did not want to talk about it. When the GAL asked him if he thought his father was nicer to him than to his brothers and sisters, he said yes. "[The GAL] asked what if he treated them like he treats him. He said no, they don't want to spend time with him after what he has done."

Many of these remarks were corroborated by the husband's own testimony at trial; in fact, when asked whether his prior behavior toward his children warrants the way the children treat him today, he responded in the affirmative. The older children were adamant that before a relationship could resume with their father, he would have to change, "fix his temper definitely," and "control himself" -- no longer hit them, scream or swear at them.

The GAL's report also describes several problems attributable to both parties. While they seem to have coparented well in many areas, there appears to have been littleor no agreement about discipline, and the differences of opinion, at least in the last years of the marriage, were played out in front of the children. In the GAL's opinion, "Both parents are to be faulted for not having sustained work on their marriage and the consequent negative impact it was having on the children." The GAL concluded with the following: "This is a tragic story of a father estranged from three out of...