Pierce v. Pierce

• Citation: 455 Mass. 286,916 N.E.2d 330
• Decision Date: 09 November 2009
• Docket Number: SJC-10381.
• Parties: Rudolph F. PIERCE v. Carneice G. PIERCE.
• Court: United States State Supreme Judicial Court of Massachusetts

916 N.E.2d 330

455 Mass. 286

Rudolph F. PIERCE v. Carneice G. PIERCE.

SJC-10381.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued September 8, 2009.

Decided November 9, 2009.

Anthony M. Doniger, Boston (Susan A. Hartnett with him) for Rudolph F. Pierce.

David E. Cherny, Boston (Mark T. Smith with him) for Carneice G. Pierce.

The following submitted briefs for amicus curiae:

Rachel B. Biscardi for Women's Bar Association of Massachusetts & another.

Edward M. Ginsburg, Christina L. Paradiso, & Katie M. Perry for Legal Assistance Corporation of Central Massachusetts.

John Foskett, Thomas J. Barbar, Boston, & Fern L. Frolin, Wellesley, for

American Academy of Matrimonial Lawyers, Massachusetts Chapter.

Present: SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

The plaintiff, Rudolph F. Pierce, was married to the defendant, Carneice G. Pierce, for thirty-two years until their divorce on August 26, 1999. As part of their separation agreement, which was merged in relevant part with the judgment of divorce nisi (divorce judgment), Rudolph was required to pay Carneice $110,000 per year as alimony for her support and maintenance.¹ In March, 2008, at the age of sixty-five, Rudolph voluntarily retired as a partner at the law firm where he had practiced and became "of counsel" to the firm. In April, 2008, he filed a motion in the Probate and Family Court to amend his earlier complaint for modification of the divorce judgment, asking the court to eliminate his alimony obligation to Carneice because of his retirement. After an evidentiary hearing, the judge allowed Rudolph's complaint for modification to the extent that the judge reduced the amount of the alimony to $42,000 per year. Rudolph now appeals from the modification of the divorce judgment, contending that the judge abused her discretion by failing to terminate Rudolph's alimony obligation. Rudolph also appeals from the judge's failure to grant a retroactive reduction in alimony for calendar year 2007, in view of the significant decline in his earned income that year resulting from his gradual withdrawal from active employment.

We granted Rudolph's application for direct appellate review to consider whether a former spouse's voluntary retirement from employment at or beyond the customary age of sixty-five should create a rebuttable presumption under the statutes governing the award of alimony (G.L. c. 208, §§ 34, 37) that any alimony obligation owed by the retiring spouse should be terminated. We conclude that the statutes and interpretative case law governing the determination of the amount of alimony do not reasonably permit such a presumption. Instead, we hold that voluntary retirement at a customary age is simply one factor, albeit an important one, to be considered by the judge in deciding whether to modify the alimony obligation set forth in a divorce judgment. We conclude that the judge did not abuse her discretion in finding that a reduction in the amount of alimony, but not a termination of alimony, was warranted in view of the totality of the circumstances, which in this case included not only Rudolph's age and wish to retire but also Carneice's recent loss of employment and desire to postpone her application for Social Security benefits until she became eligible for full retirement benefits.

We further hold that the judge erred in failing to make specific findings of fact to support her decision not to modify the divorce judgment retroactively with respect to alimony that she found was due in 2007 but had not yet been paid at the time Rudolph served his complaint for modification. We therefore remand this case to the judge for further proceedings consistent with our ruling.²

Background. We summarize the relevant facts as found by the judge and as stipulated by the parties, supplemented where necessary by undisputed evidence in the record. Rudolph and Carneice were married in 1967 and divorced on August 26, 1999. At the time of the divorce, Rudolph was fifty-seven years of age and Carneice was age fifty-five. At the time of the judge's ruling on the complaint seeking to terminate alimony, Rudolph was sixty-six years of age and Carneice, sixty-four. They have two children from their marriage, both of whom are emancipated. Both parties are in good health for their respective ages and physically able to work in their respective fields of employment.

Rudolph began practicing law in 1970. He became a United States Magistrate Judge in 1976 and an Associate Justice of the Massachusetts Superior Court in 1979. He returned to the private practice of law in 1985 and, in 1987, became a partner in a Boston-based law firm, where he remained until his voluntary retirement on March 31, 2008. During his years in private practice, Rudolph enjoyed a successful career as a trial lawyer, specializing in civil litigation and "white collar" criminal defense. Following the 1999 divorce, he remarried and moved with his wife in 2004 to the Washington, D.C., area, where he became the lone litigation attorney in his firm's Washington, D.C., office.

At the time of the divorce judgment, Rudolph earned approximately $450,000 as a partner at his law firm. After receiving between $500,000 and $570,000 in total compensation from the law firm for each of its fiscal years between 1999 and 2006, his compensation dropped to $300,000 in 2007.³ When he voluntarily retired from the law firm in 2008 at the age of sixty-five, he had been earning a salary of $225,000 per year. By converting to retired "of counsel" status, Rudolph relinquished any regular, fixed annual compensation, but continued to receive medical insurance and long-term care insurance. He would also receive $250 per hour for any case work he performed. In July, 2008, he began receiving full Social Security benefits totaling approximately $24,000 per year. At the time of the judge's ruling, Rudolph reported annual income of approximately $34,000, consisting of Social Security income, dividends, interest, and "one-time" income; he had assets of approximately $1.3 million and no significant debt. The judge found that among Rudolph's assets was a retirement account valued at approximately $843,000, which, she concluded, would provide him with unearned income of at least $40,000 when he chose to access these funds. Rudolph's current wife is employed and earns $125,000 annually.

During her marriage to Rudolph, Carneice was the primary caretaker for the parties' two children and the marital home. For twenty-seven years of her marriage, Carneice was employed by an international computer corporation, but at the time of the divorce, she had left her position there and was working as a development officer for an international charitable organization. In August, 2007, when the complaint for modification was filed, she was employed as a fundraiser for a national nonprofit organization, where she earned $95,000 annually. In June, 2008, Carneice's employer informed her that her position had been restructured and that she would be required to cover a larger territory, increase her travel, and assume more duties without any increase in salary. After explaining that she could not take on the increased travel and other responsibilities because of her age and physical condition, Carneice resigned her position. She received no severance payment. At the time of the judge's ruling, she was looking for, but had not yet found, new employment. She also had applied for unemployment benefits but had yet to learn whether she was eligible for such benefits. Because she was unemployed and received neither Social Security nor unemployment benefits, at the time of the judge's ruling, Carneice reported current total annual income of under $1,000, all from interest and dividends. She had nearly $600,000 in bank and money market accounts, plus an IRA retirement account valued at approximately $292,000. Including these accounts and the real estate she owned, her total assets were approximately $1,248,000; offsetting this, she had mortgages and other debts of approximately $325,000. Carneice intended to find employment and postpone retirement for two years, at which time she would become eligible for full Social Security benefits.

At the time of the 1999 divorce, the parties entered into a separation agreement, negotiated by experienced divorce counsel, which, with respect to all terms governing the payment of alimony, merged into the divorce judgment. The separation agreement made an equal division of marital property between the parties.⁴ Under the terms of the agreement, Rudolph was obligated to pay Carneice alimony for her support and maintenance in the amount of $110,000 annually for an indefinite period; the agreement provided for termination of the payments only on the death of Rudolph, or on the death or remarriage of Carneice, whichever came earlier. Payment was to be made in two parts: (1) regular payments in the amount of $2,000 on the first and the fifteenth of each month, totaling $48,000 annually; and (2) the balance of $62,000 "in approximately four yearly installments to be paid at a time and in an amount to coincide with cash payments [Rudolph] receives from his employer.... In any event, the entire sum of [$62,000] is to be paid in full no later than December 31st of each year."

Neither party sought modification to the terms of the divorce judgment until Rudolph filed a complaint for modification in August, 2007, seeking to reduce the amount of his alimony obligation in connection with his gradual withdrawal from active employment with his law firm. In February, 2008, Carneice filed a complaint for contempt after Rudolph failed to pay the $62,000 balance due under the divorce judgment for the calendar year 2007.

On March 17, 2008, the judge found that, under the terms of the separation agreement, Rudolph owed and was required to pay Carneice $41,107, which represented, in the judge's calculation, the prorated...