Openshaw v. Openshaw

228 N.E.3d 551

Amy Sue OPENSHAW

v.Glen Romney OPENSHAW.

SJC-13473

Supreme Judicial Court of Massachusetts, Plymouth.

Argued December 6, 2023.

Decided March 7, 2024.

Divorce and Separation, Alimony, Division of property, Findings. Statute, Construction. Words, "Marital lifestyle," "Need."

Complaint for divorce filed in the Plymouth Division of the Probate and Family Court Department on December 7, 2018.

The case was heard by Edward G. Boyle, III, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jason v. Owens, Hingham, for the husband.

Shaun B. Spencer, Sharon, for the wife.

Andrea C. Kramer, Boston, Laura Gal, Kate Barry, Kimberly A. Bielan, & Jamie Ann Sabino, for Women’s Bar Association of Massachusetts, Inc., amicus curiae, submitted a brief.

Margaret J. Palladino, for Mass Family Advocacy Coalition, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.¹

WENDLANDT, J.

Many married couples privileged to have sufficient income often, as the idiom counsels, "save something for a rainy day";² they might, for example, regularly set aside a portion of their income to purchase stocks and bonds, rather than country club memberships and recreational boats. In this case, we are asked to consider for the first time the question whether a judge may account for a divorcing couple’s custom of making regular contributions to their savings plans in determining, under G. L. c. 208, § 53 (alimony statute or § 53), the amount of alimony needed to maintain the marital lifestyle. Where, as here, the record supports that ongoing, regular saving was part of the couple’s standard of living during the long-term marriage and that the parties’ combined postdissolution income is adequate to allow both spouses to maintain the standard of living enjoyed during the marriage, we conclude that such consideration is appropriate.

We further conclude that the Probate and Family Court judge did not abuse his direction in determining the recipient spouse’s need for support in view of her reported expenses at the time of the trial, but that the judge’s unexplained allocation of over ninety-eight percent of the parties’ marital liabilities to the payor spouse is unsupported by the judge’s findings and at least arguably inconsistent with the judge’s conclusion as to the equitable division of the marital estate under G. L. c. 208, § 34. We therefore remand with instructions to reevaluate the portion of the judgment regarding the allocation of marital liabilities in light of our opinion and to enter a new judgment accordingly.³

1. Background.⁴ In August 1991, Amy Sue Openshaw (wife) and Glen Romney Openshaw (husband) were married in Salt Lake City, Utah. The couple eventually moved to Massachusetts. They had six children⁵ and enjoyed an upper middle class lifestyle; they funded their children’s participation in extracurricular activities, contributed to their children’s rent while the children attended college, sent some of their children to private high school, and accumulated personal property of significant value, such as jewelry, a collection of approximately twenty firearms, tools and equipment, home furnishings, fine art and antiques, and a grand piano.

In addition, because of the couple’s generous annual income of over $1.3 million,⁶ and their comparatively modest spending,⁷ they also routinely allocated significant portions of their income to investments and savings. The couple habitually transferred any funds not used to cover the family’s immediate expenses to specific investment and retirement accounts on a monthly basis. They also consistently donated approximately ten percent of their income to their church in accordance with the tenets of their faith as members of the Church of Jesus Christ of Latter-day Saints.⁸

The parties’ cumulative assets amounted to at least $4.5 million,⁹ several million of which was in the form of checking, savings, investment, and retirement accounts. The couple lived together in the marital home in Hanover, which was valued at over $1.2 million, until November 2018.

2. Prior proceedings. In December 2018, after nearly thirty years of marriage, the wife filed a complaint for divorce.¹⁰ At trial, the parties contested custody of their youngest child, alimony, child support, and the division of the marital estate. At the time of the trial, the wife resided in the marital home, and the husband lived in Florida; the husband maintained little to no contact with any of the unemancipated children for the two years prior to trial.¹¹

In June 2021, the trial judge entered a judgment of divorce nisi, supported by a written memorandum comprising seventy- three enumerated paragraphs setting forth the judge’s findings of fact as well as the rationale for his decision on the disputed matters. The judge granted sole legal and primary physical custody of the couple’s minor child to the wife. Pursuant to the Child Support Guidelines, the judge also ordered the husband to pay the wife $980 per week in child support. On appeal, the husband does not contest the custody award or the amount of child support.

With respect to alimony, after weighing the factors prescribed under the alimony statute, see discussion infra, the judge ordered the husband to pay $5,020 per week to the wife This amount was derived from the wife’s reported total weekly spending provided on her most current financial statement, which included $1,000 per week in savings and $730.64 per week in charitable giving.¹² Together with child support, the judgment required the husband to make total weekly payments of $6,000 to the wife.

With respect to the division of the marital estate, the judge stated:

"In light of all the factors set forth in G. L. c. 208, § 34, especially the disparity in the parties’ employability and opportuni-ty to acquire future assets and income, the [c]ourt finds that a division of the marital estate with [the w]ife receiving approximately [fifty-five percent] and [the h]usband receiving approximately [forty=five percent] is most equitable." Consistent with this desired distribution of the marital estate, the judge divided the marital assets between the parties fifty- five percent to forty-five percent, in favor of the wife.

Stating that "the [c]ourt finds it equitable to order the parties to be responsible for the payment of the liabilities listed in his or her individual name," the judge assigned to the husband liabilities of approximately $343,280 and consisting almost entirely of the family’s income taxes incurred in tax years 2020 and 2021. The wife was assigned liabilities of $5,082.91. This distribution of the parties’ liabilities left the wife with approximately fifty-nine percent of the parties’ marital estate, and the husband with forty-one percent.¹³ The judge did not address the resulting deviation from the division of the marital estate that he had found to be "most equitable."

After the judgment entered, the husband timely appealed, and we transferred the case to this court on our own motion.

[1] 3. Discussion, a. Alimony. "Alimony" is defined in the Alimony Reform Act of 2011, St. 2011, c. 124 (act), as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order." G. L. c. 208, § 48. The power to award alimony is governed by the alimony statute. See G. L. c. 208, § 53. See also Zaleski v. Zaleski, 469 Mass. 230, 233, 13 N.E.3d 967 (2014), quoting Gottsegen v. Gottsegen, 397 Mass. 617, 621-624, 492 N.E.2d 1133 (1986) (power to award alimony is "wholly statutory"). The statute provides:

"In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employ ability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material" (emphases added).

G. L. c. 208, § 53 (a).

[2] i. Saving. The husband first contends that the judge improperly considered the parties’ custom of allocating a significant portion of income as savings in setting the amount of spousal support payable to the wife.¹⁴ The husband’s challenge to the spousal support order raises a question of statutory construction, which we review de novo. See Cavanagh v. Cavanagh, 490 Mass. 398, 405, 191 N.E.3d 975 (2022).

[3–6] Our analysis begins with the alimony statute’s plain language. See Metcalf v. BSC Group, Inc., 492 Mass. 676, 681, 214 N.E.3d 1043 (2023).

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (citation omitted).

Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Sharris v. Commonwealth, 480 Mass. 586, 594,106 N.E.3d 661 (2018), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444, 895 N.E.2d 446 (2008).¹⁵ We "look to the statutory scheme as a whole, so as to produce an internal consistency within the statute" (quotations and citations omitted). Plymouth Retirement Bd. v. Contributory Retirement Appeal Bd„ 483 Mass. 600, 605, 135 N.E.3d 702 (2019).

A. Marital lifestyle. As set forth supra, the alimony statute enumerates certain...