Ross v. Ross

• Decision Date: 04 May 2000
• Docket Number: P-992
• Citation: 734 N.E.2d 1192,50 Mass. App. Ct. 77
• Parties: (Mass.App.Ct. 2000) JOAN BERTOCCHI ROSS, vs. ADAM J. ROSS No.: 98- Argued:
• Court: Appeals Court of Massachusetts

Page 1192

734 N.E.2d 1192 (Mass.App.Ct. 2000)

JOAN BERTOCCHI ROSS, vs. ADAM J. ROSS

No.: 98-P-992

Massachusetts Court of Appeals, Essex

Argued: May 4, 2000.

Decided: September 13, 2000

[Copyrighted Material Omitted] David E. Cherny (Peter A. Kuperstein with him) for Joan Bertocchi Ross.

David H. Lee (Marc J. Cooper with him) for Adam J. Ross.

Present: Brown, Perretta, & Greenberg, JJ.

GREENBERG, J.

Of twenty-four orders encompassed by a divorce judgment nisi, Joan Ross (Joan) appeals from five: (1) a restriction on the alimony award; (2) the allocation of the marital assets; (3) the assignment to her of responsibility for the children's private school tuition; (4) an authorization for Adam Ross (Adam) to secure payment of alimony and child support obligations by a taxable retirement death benefit; and (5) the failure to award reimbursement of her counsel fees and costs of the divorce litigation.

Before Joan and Adam married in 1982, she worked as a secretary for him at Thomas E. Sears, Inc., where he is the executive vice president, as well as being the vice president of its three affiliate corporations. He is thirteen years her senior, and theirs was his second marriage, although it was the first for her. When they wed, almost all of their assets were Adam's, with Joan bringing no assets to the marriage but her car. They purchased a large house on Hesperus Avenue in Magnolia, the southern part of Gloucester, right away, and Joan left the workforce to establish a home and family life. Within a year, they had a daughter, and a second daughter completed their family in 1985. Adam's corporate work brought handsome salary increases and bonuses, and his income eventually exceeded $500,000 a year. The Rosses' assets included the primary residence in Magnolia (worth $1.1 million), vacation homes in both Florida and Vermont, luxury automobiles, private country club memberships, and so forth. The two children, ages fourteen and twelve at the time of trial, attended private schools. As the years passed, Joan, Adam, and the girls engaged in many athletic pursuits. The children became highly proficient in tennis and played in tournaments, some distant from home. Adam trained and competed in triathalons. In addition to working fifty hours a week, this left him with little time, according to Joan, for communicating with the rest of the family. Other strains, not relevant to our review, also caused their relationship to sour and, in 1995, Joan filed a complaint for divorce. A temporary order entered, providing that $20,000 from the marital estate be made available to Joan for her counsel fees, and later another temporary order awarded each party $270,000 as an advance distribution of marital assets. Trial was held on four days in the fall of 1997.

The judge awarded physical custody of the children to Joan, but the parties share legal custody, and Adam was granted visitation. Adam remains responsible for providing Joan and the children with health insurance and will pay for eighty per cent of the girls' uninsured medical and dental expenses. Joan may claim the children as dependents for tax purposes.

The judge found that the aggregate marital assets amounted to more than ten million dollars. His judgment included awards to Joan of the mortgage-free Magnolia house and its furnishings, 42.5% of the value of the Florida property, 42.5% of the value of the Rosses' limited partnership investments, $1,543,087 from their joint Fidelity account, $150,000 from that portion of Adam's profit sharing plan which had accrued since the date of their marriage, and her automobiles, jewelry, and furs. On the basis of the values assigned by the judge, the assets which Joan was to take under the divorce judgment came to $3.4 million, or approximately thirty-four per cent of the marital estate. If the premarital portion of Adam's profit sharing plan were excluded from consideration, Joan's share would amount to forty-three per cent. She also was awarded $90,000 per year in child support, to be terminated when the children are emancipated, and $90,000 per year in alimony, to be terminated at either party's death, Joan's remarriage, or Adam's sixty-fifth birthday (then eleven years hence), whichever occurs first. To provide security for these payments in the event of Adam's death, the judge ordered him to designate Joan as beneficiary of $625,000, and the children as beneficiaries of $625,000 more, either of a life insurance policy or of death benefits from his retirement funds.

1. Limited alimony. Joan argues that the judge erred in ordering that her alimony award would terminate when Adam reached the age of sixty-five. There is no formula by which a probate judge determines whether to grant alimony and if so, how much and for what period of time. See Rosenblatt v. Kazlow-Rosenblatt, 39 Mass. App. Ct. 297, 299 (1995). Instead, the judge considers the mandatory factors enumerated under G. L. c. 208, § 34, as appearing in St. 1989, c. 287, § 59: "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income."¹ The parties' needs are determined by the amount necessary "to maintain a standard of living comparable to the one enjoyed during the marriage." Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). This ideal is subject, of course, to the provider spouse's ability to maintain two such households. See Heins v. Ledis, 422 Mass. 477, 484 (1996); Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992). Finally, "a judge of a Probate Court may not order the termination of alimony on the occurrence of an event unrelated to the recipient spouse's need for alimony or the supporting spouse's ability to pay." Gottsegen v. Gottsegen, 397 Mass. 617, 618 (1986).

Typically, alimony awards of limited duration are intended to be "rehabilitative." Such an award may be appropriate where a husband and wife of comparable professional and economic status divorce. See Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 16 (1979). In these circumstances, a limited term award would permit a spouse who had discontinued a career to resume it, and thereafter each independently could approximate the marital standard of living. See ibid. Before awarding rehabilitative alimony, the recipient spouse's realistic prospects for self-sufficiency must be "considered with care." Bak v. Bak, 24 Mass. App. Ct. 608, 622 n.14 (1987). The judge in the case at bar found that Joan's potential earning capacity was between $15,000 and $20,000 per year, an amount not likely to enable her to provide for herself and the children in the manner to which they had become accustomed. Regardless, the alimony awarded here was not rehabilitative; the judge clearly stated that he did not rely on Joan's potential earning capacity in determining her alimony and child support awards.

Although not explained in the judge's order, we presume (as both parties did in their briefs) that alimony was ordered to terminate when Adam becomes sixty-five because that is a common age for retirement. Such an anticipation of future events is improper, even where the projected date is only three years off. See Martin v. Martin, 29 Mass. App. Ct. 921, 921-923 (1990) ("as plausible as not that the husband will stay active in his employment for more than three years"). Regarding an event which was then eleven years down the road, the speculation is even greater. If Adam's ability to pay or Joan's needs should change materially -- when Adam turns sixty-five or at any other time -- either party may petition for a modification. See G. L. c. 208, § 37; Heins v. Ledis, 422 Mass. at 483. Meanwhile, however, Joan's needs are "current and predictable." Martin v. Martin, 29 Mass. App. Ct. at 923. This portion of the judgment cannot stand.²

2. Inequitable property division. Joan complains that the judge erred in three specific ways in the allocation of marital assets. First, she claims that he failed to include the premarital portion of Adam's profit sharing plan in the marital estate. This misstates the record. The judge was careful to point out that he was cognizant of the fact that all assets were included in the marital estate. His decision was not to exclude assets from the estate, but to award all of the premarital portion of Adam's profit sharing plan to Adam. His findings show that he considered all of the statutory factors, and we see no cause to overturn his decision. General Laws c. 208, § 34, "empowers probate judges incident to a divorce proceeding to employ broad discretion . . . in dealing with property and its equitable division." Tanner v. Tanner, 14 Mass. App. Ct. 922, 922 (1982), quoting from Newman v. Newman, 11 Mass. App. Ct. 903, 903 (1981). This includes the discretion not to divide certain assets between the parties. See Williams v. Massa, 431 Mass. 619, 625-627 (2000) (affirming distribution of husband's inherited and gifted assets solely to husband). Pension benefits, for example, typically are divided as "a percentage . . . of that portion of the pension benefits attributable to the period of the marriage." Dewan v. Dewan, 17 Mass. App. Ct. 97, 101 (1983). Joan has failed to show that in her case it was "plainly wrong and excessive," Rice v. Rice, 372 Mass. 398, 402 (1977), to limit her share of Adam's profit sharing plan to that portion that is attributable to the marriage.

Next, Joan claims that the judge overvalued her personal property. "Mathematical precision is not required of equitable division of property . . . ." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989). The valuation of her furs and jewelry was based on the amounts for which those items were insured -- not an unreasonable method in light of the complete lack of any credible,...