Wooters v. Wooters

• Court: Appeals Court of Massachusetts
• Citation: Wooters v. Wooters, 677 N.E.2d 704, 42 Mass.App.Ct. 929 (Mass. App. 1997)
• Decision Date: 03 April 1997
• Docket Number: No. 95-P-346,95-P-346
• Parties: Thomas A. WOOTERS, v. Janet S. WOOTERS.

Page 704

677 N.E.2d 704

42 Mass.App.Ct. 929

Thomas A. WOOTERS, v. Janet S. WOOTERS.

No. 95-P-346.

Appeals Court of Massachusetts.

April 3, 1997.

Further Appellate Review Denied May 22, 1997.

Richard D. Packenham, Boston, for plaintiff.

David H. Lee (W. Sanford Durland III, with him), Boston, for defendant.

RESCRIPT.

Divorce and Separation, Alimony.

The husband appeals from portions of a divorce judgment which (1) awarded the wife as alimony one third of his gross annual employment income; (2) ordered him to maintain $500,000 life insurance payable to the wife to secure the payment of alimony in the event of his death--such insurance, at the option of the husband could be reduced by $100,000 every five years; and (3) ordered him to maintain his existing medical insurance coverage for the wife, or its reasonable equivalent. The parties had agreed on the division of assets. We affirm.

At the time of the divorce, both parties were fifty-two years old, had an upper middle class station, and had been married for twenty-nine years. The husband was a partner in a large law firm and the wife, a high school graduate, was unemployed. She had worked as a bank teller prior to and during the first year of their marriage, but after she became pregnant with the parties' first child, did not work outside the home. The children are now grown. The judge made the requisite findings taking into account all of the appropriate factors under G.L. c. 208, § 34.

The husband complains that he did not get a full and fair hearing because the judge prejudged the case, deciding almost at the beginning of the trial to award as alimony a percentage of the husband's income. Because of that prejudgment, the husband argues, the judge refused to allow him to explore adequately his billable hours, his future economic prospects, the wife's earning potential, or her veracity as to her expenses. There was considerable evidence on all of these matters, but, more to the point, there were two important circumstances made known to the judge before he indicated that he intended to award a percentage of the husband's income. First, the husband was about to undergo a serious operation, and it was uncertain how much he would be able to work. Second, there had been evidence that the husband's compensation from his law firm had considerable fluctuations. He had testified that his 1992 income was fifty to sixty thousand dollars lower than in 1991, and he projected his 1993 income to drop even more significantly. Indeed, counsel for the husband (not the same counsel as represents him on appeal) pointed out in his opening statement that the case had some unusual factors which the court would have to consider, one of which is the "uncertainty as to the degree of continuity of Mr. Wooters' income in the future" because of his health. ¹

Rather than having a closed mind, the judge recognized the difficulties in this case of a fixed dollar award. The exhibits and subsequent testimony bore out the judge's concern about the husband's fluctuating income. Between 1985 and 1992, the year before trial, the husband's income had varied between a low of $176,000 to a high of $312,000.

The judge did not show bias in suggesting that he would not impute income to the wife just because she, a woman of fifty-two, was taking a few college courses, and that the husband was welcome to seek modification, if the wife became employed. Moreover, the judge allowed counsel to continue questioning the wife on the subject of her situation. The judge's reluctance to have the wife cross-examined on her expenses and what the parties had done prior to the divorce was based on the obvious point that they would not be able to maintain their previous life-style after the divorce. He was sensitive to the fact that the parties had two children and that there was no advantage to making the divorce trial "the world's most unpleasant experience." In any event, the judge said he would not preclude further questioning as to expenses and, in fact, counsel continued to interrogate the wife in that vein. A review of the entire trial shows that the judge was eminently fair and allowed the husband to introduce evidence on all the relevant factors.

Contrary to the husband's contention, there was no error in making a percentage award in this case. Although some courts have disallowed percentage awards, ² the rationale against a percentage urged by the husband, that such an award creates automatic modifications without the customary requirement of demonstrating a material change in circumstances, has been soundly rejected in Massachusetts. As Justice Kaplan stated for the court in Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814, 816, 363 N.E.2d 1311 (1977), in upholding a percentage increase in alimony based on an increase in the retail price index:

"This argument confuses the application of a contingent or variable clause of a judgment to events as they occur, with the modification of a judgment. Judgments for alimony, child support, and so forth, are typically prospective in their operation.... [S]uch judgments may contain clauses relating alimony or other payments, in various ways, to the future earnings or profits or means of the obligated (or benefited) spouse. When time brings about the change of situation of the parties, or trips the contingency, or alters the basis of the calculation, as provided in the judgment, we should not regard the corresponding shift in the rate of payment as a modification of the judgment which requires new justification in another court proceeding. The judgment has remained the same although its variable terms ... have...