T.E. v. A.O.

82 Mass.App.Ct. 586

976 N.E.2d 803

T.E.

v.A.O.¹

No. 11–P–246.

Appeals Court of Massachusetts, Suffolk.

Argued March 7, 2012.

Decided Oct. 9, 2012.

Matthew P. Barach, Sudbury, (Elisabeth R. Feeney with him) for the husband.

Dean Amrose, Boston, for the wife.

Present: RUBIN, BROWN, & HANLON, JJ.

BROWN, J.

By judgments of divorce nisi that were issued on the former wife's complaint for divorce and the former husband's counterclaim for divorce, a judge of the Probate and Family Court ordered, among other things, that the husband pay the wife in their short term marriage (1) alimony in the amount of $2,100 per month for a period of one year, and (2) the sum of $29,500 as his “contribution to the debt and diminished assets incurred during the marriage.” Each party has appealed. We affirm the judgments.

[82 Mass.App.Ct. 587]1. Background. a. The G.L. c. 208, § 34, findings. The parties are highly educated professionals—the husband is a physician, and the wife holds a master's degree and is a department director. They met in late 2005 while working at the same medical facility. The wife had been previously married. By June, 2006, the parties' relationship had sufficiently developed so that the husband moved into the wife's apartment. The husband contributed $2,100 toward monthly rent and utilities; the wife paid the balance and “living expenses.” In December, 2006, and prior to the marriage, the parties moved into a condominium unit in Boston that the wife purchased for $435,000, with a down payment of $43,500 from her own funds. While title to the property was briefly held in joint names, the parties in February, 2007, conveyed the real estate into the wife's sole name.²

Some five days prior to the parties' wedding on October 4, 2008, the husband went to Las Vegas for his bachelor party. There, he met a woman with whom he eventually would become romantically involved and further incurred a $20,000 charge at a “men's club.” Upon the husband's return, the parties had a “lavish” wedding that cost approximately $150,000 and that was paid for, in large part, by the wife's parents.

The parties' marriage quickly deteriorated. The husband began an intimate relationship with the woman whom he had met in Las Vegas, and the wife learned both of the relationship and the $20,000 men's club charge.³ In addition, the judge found there was poor communication between the parties, and the husband (notwithstanding his own spending excesses) was concerned with the wife's spending, all of which contributed to the breakdown of the marriage.

The parties separated on November 24, 2008, and, on December 15, 2008, the wife filed a complaint for separate support.⁴ Meanwhile, the wife's distress over the breakup of the marriage began to impact her functioning at work, and she started to see a psychiatrist in January, 2009. ⁵ Over the ensuing months, the wife, at times, would cry uncontrollably; she had difficulty concentrating at work, sleeping, and eating. In February and March, 2009, the wife was not working “full time days” but that initially did not affect her income. By May, 2009, however, the wife's income had changed as a result of her absences, and she took a leave from her employer and began to receive disability income.⁶ The wife also sold the condominium unit in May, 2009,⁷ for $465,000 and netted $397,319 after payment of the broker fees, the equity line of credit, and the closing costs. This resulted in a net loss of $37,000 from the original purchase price of $435,000.

In June, 2009, the wife's condition, as described by her psychiatrist, continued to worsen. She was hospitalized on June 15 after she came to her psychiatrist's office unable to speak. Shortly thereafter, the wife received inpatient treatment at two facilities in Arizona, the combined cost of which was $81,000. After her return to Massachusetts, and by November, 2009, the wife was deemed to be “more in control and more able to plan.” She was able to return to work part time.

Following the parties' separation, the husband left his position at the medical facility in Massachusetts, in part because of the inherent difficulties in working at the same location as the wife. He relocated to California to be in closer proximity to the woman he had met in Las Vegas and obtained employment as a physician. The husband's savings were substantially reduced when he moved to California, as he did not work during the several-month period before he obtained his California medical license.

At the time of trial in December, 2009, the husband was thirty-eight years old and in good health. He earns $160,000 per year, or $3,076 per week (a reduction from his previous salary at the Boston medical facility), and is eligible to earn an additional $22,400 from a performance-based bonus. He may also receive extra compensation for undertaking additional work and seeing additional patients. The husband lists weekly expenses of $2,061 or $2,361 ⁸ and assets with a total combined value of $20,000. The husband's liabilities, including medical school loans, amount to $155,500.

The wife is thirty-nine years old and suffers from posttraumatic stress disorder, anxiety, and depression. She continues to see her psychiatrist on a regular basis, and her condition has improved.⁹ The wife's current yearly salary is $113,000, but because she is on medical leave and works about twenty-six hours per week, she receives approximately $75,000 per year or $1,430 per week.¹⁰ While the wife previously had $100,000–$120,000 in a stock account, the value of that account had been reduced to $25,000 by the time of trial. The wife's current assets have a combined value of $68,700, and her liabilities amount to $159,869.72.

The judge found that neither party specifically contributed to the other's acquisition of assets, and other than a joint account used to maintain the condominium unit and pay household expenses, the parties kept their individual assets separate. The parties largely paid for their own personal expenses separately.

Finally, the judge found that when the parties were together they enjoyed an upper middle class station in life and that they should be able to maintain that station following the divorce. Although the husband will likely continue to have a have a “higher earning power,” both parties should be able to support themselves and acquire assets in the future.

b. The rationale and judgments. We touch on salient points set out in the judge's extensive rationale for decision. At the outset, the judge stated that given the brevity of the parties' relationship, they never had time to come together to form a marital partnership or to acquire a marital estate. The judge also commented at length on the wife's contention that the husband's conduct caused the breakup of the parties' marriage and left her in an emotional state that resulted in her being unable to work full time and caused her to incur substantial health-related expenses that will continue into the future.¹¹ Althoughthe wife asserted that the husband should be responsible for “the economic consequences of his infidelity,” the judge opined that “[a]ll of the responsibility of the breakdown of the marriage cannot be placed solely on Husband's conduct,” and “[w]hile Husband's conduct, coming on the heels of the wedding, was the immediate factor in the breakup of the marriage, and while the breakup was abrupt, nonetheless I do not find the medical testimony persuasive that it was the sole or even principal cause of [the wife's] health issues.” The judge further stated that the wife has suffered “multiple emotional experiences” (which we need not recount here), all of which are given little weight in the medical testimony in terms of the individual or cumulative impact on the wife's emotional health.¹² Finally, the judge indicated that while the wife's anger with the husband was understandable, the judge could not (as the wife acknowledged in her proposed findings) award property or order support based solely on the fault of one party.

After discussing, among other things, the parties' financial practices during the marriage (including their general practice of keeping their individual finances separate except their joint account for household expenses), the absence of “joint property” to divide, the absence of “joint debts” and the relative comparability of the parties' individual debt levels, and the sale of the condominium unit, the judge stated that “[b]ut for the issue raised by [the] wife about her health, this would be an appropriate case to return each party to status quo ante by having them keep their separate assets and separate income.” ¹³ Continuing, the judge stated:

“I consider that Husband expended at least $22,000 during the marriage in connection with his involvement with [the woman he met in Las Vegas] and at a men's club and that Wife after selling the [condominium unit] for a gain on paper actually netted about $37,000 less than the original purchase price (after considering broker's commission and home equity). It is equitable that Husband make some contribution to the diminished assets and accordingly he is to pay Wife the sum of $29,500 ( 1/2 of $59,000) with one half payable in six months and one half payable six months after that. Husband has the greater salary and the potential to obtain a bonus. His contract does not prohibit his taking on additional work as he has in the past.... Even though he has reduced his own assets during the marriage, given his salary he is in a position to arrange to pay Wife this contribution toward debt and it is equitable that he do so.”

The judge also concluded that while the husband's conduct was not the sole or overriding reason for the wife's health issues, the wife “does have some emotional health issue which will require some recuperative period and for which she will need some support.”

By judgments of divorce nisi dated April 20, 2010, the wife was awarded a divorce...