Represents husband
The Court of Appeals found that a Probate and Family Court judge erred when he entered a divorce judgment that deviated from the presumptive time limit on alimony by requiring the husband to make potentially lifetime payments to his ex-wife.
In ordering the husband to pay support until he or his ex-wife dies, his ex-wife remarries, or the court makes another order, the judge relied on a guardian ad litem's report describing three psychiatric evaluations conducted several years before the trial.
The first examination apparently diagnosed the woman with “delusional disorder, persecutory type.” A second examination, conducted in India a year later, apparently diagnosed her with schizophrenia. And a third examination, conducted two years before the divorce proceedings, acknowledged the woman's depression but denied that she suffered from paranoia or delusions.
In ordering the indefinite payments, the judge found it reasonable to assume that the wife's “significant mental illness” was likely to continue beyond the anticipated termination date under the Alimony Reform Act, which, given the 11-year duration of the marriage, would be approximately eight years later.
But the appeals court overturned the verdict.
“[T]The evidence does not support a finding that the woman's current mental health problems and their impact on her ability to work would continue beyond 97 months,” wrote Judge Sookyoung Shin for the panel. “Without such evidence, the woman has not met her burden of proving that the interests of justice require a departure from the presumed permanence limit in the 'here and now,' that is, at the time of divorce. [and the judge] wrongfully shifted the burden onto the husband to file a motion for modification to terminate his maintenance obligation on the anticipated date.”
The 11-page decision is SS v. SS, Lawyers Weekly No. 11-080-24.
“Relief” and “clarity”
Maureen E. Booth of Newburyport, who represented the husband on appeal, said the ruling provided relief for her client while clarifying the law regarding the possibility of seeking a departure from alleged time limits at the outset of a divorce proceeding, as opposed to cases in which a party seeks a departure in a later modification proceeding.
“The case law should be of assistance to practitioners in the future if they wish to deviate from an original maintenance order,” she said.
The wife's attorney, Marcus L. Scott of North Andover, called the verdict devastating.
“It basically puts a time limit on her support, and she's not doing well,” Scott said. “These were not normal circumstances, and the judge had every right to award her longer support based on the criteria presented to her. But the appeals court just threw that out the window. I don't want to offend anyone, but when I read their reasoning, it just doesn't make sense to me.”
Framingham attorney Matthew P. Barach represented the wife in the 2016 Supreme Court case George v. George, which clarified the standards for deviations from time limits when modifying an existing support order. He said the ruling in that case left open the question of whether a party could seek a deviation at the time of the divorce itself.
A party must also present and future detailed facts clearly demonstrating that exceeding the time limits will serve the interests of justice.
The decision in SS makes it clear that they can do that, but the requirements remain high, said Barach.
“A party must continue to present and future a detailed case that clearly demonstrates that the interests of justice will be served by exceeding the time limits imposed,” he said.
Pasquale DeSantis of Boston said that given the GAL report, previous assessments of the wife's mental health and the parties' agreements, there appears to be a “mountain” of evidence to conclude that her situation is unlikely to change.
However, given the obvious standard of establishing a preponderance of the evidence, DeSantis suggested that lawyers should seek to provide expert testimony in such situations in the future.
“Any testing in this case would have left open the possibility for a court to say, 'Hey, she needs further testing,'” DeSantis said. “But someone who can definitively come in and say, 'Yes, in my opinion she is permanently impaired and this is a long-term pathological condition that cannot be corrected and therefore the woman is not going to be able to work in the foreseeable future,' could help rebut the presumption in favor of the time limit.”
Testing the limits
The parties married in India in 2009 and had their first child in 2014. Their second child was born in 2020 and was stillborn.
The husband worked continuously at a university in Boston after obtaining his doctorate in 2004. The wife, who has a master's degree, worked as a dental assistant for a time during the marriage.
The husband filed for divorce in May 2021. At the divorce hearing in January 2023, two witnesses appeared: the husband himself and a special investigator who was tasked with selling the marital home.
SS against SS
THE PROBLEM: Did a Probate and Family Court judge err in entering a divorce judgment that deviated from the presumptive time limit on alimony by requiring the husband to pay alimony to his ex-wife, potentially for life?
DECISION: Yes (Court of Appeal)
LAWYERS: Maureen E. Booth of Turco Legal, Newburyport (husband) Marcus L. Scott of North Andover (wife)
During the trial, Probate Judge Christine D. Anthony admitted several pieces of evidence, including the report of a general counsel who was in charge of litigating custody issues.
The GAL report described a psychiatric evaluation the wife underwent in 2018 in which she was diagnosed with delusional disorder, although the doctor noted that schizophrenia could not be ruled out.
The GAL also reported that the wife was diagnosed with schizophrenia during a visit to India in 2019, but no follow-up examination was carried out, although the expert stated that this was necessary.
The report also details the wife's 2021 evaluation by a psychiatrist who diagnosed her with depression and noted that she had been misdiagnosed in 2018. The report concluded that she was “relatively clinically stable” and showed no signs of schizophrenia.
Ultimately, the GAL concluded that the wife's diagnosis and treatment required further clarification.
The parties also stated that the wife was mentally impaired and was therefore limited in her ability to work and care for the child.
Based on these documents, Anthony entered a ruling that departed from the presumed time limit on alimony. Although the marriage had lasted a relatively short time, she held that because the wife is completely dependent on her husband for financial support due to her mental health issues, the husband should pay alimony until either spouse dies, the wife remarries, or the court issues another order.
The husband appealed.
Uncovered burden
The Court of Appeal, in response to the husband's argument to the contrary, first noted that George's case should not be read as if a modification was the only means by which a party could seek a departure.
“[W]When the motion is made in divorce proceedings, as in this case, it is consistent with GL c. 208, § 53(e) and procedurally appropriate for a judge to consider departing in making the initial support order,” Shin said.
Nevertheless, the panel agreed with the husband that the judge's findings did not provide justification for a departure.
In particular, according to Shin, the trial judge made no findings as to the extent to which the wife's mental illness and the resulting incapacity to work would continue beyond the expected termination date.
“[I]”In the end, the judge merely found that the wife is demonstrably 'currently' incapable of working; the judge did not find that the wife's mental health condition is untreatable or likely to prevent her from working beyond the anticipated 97-month period,” Shin said. “To the extent that such findings are implicit in the judge's decision, they are clearly incorrect because there is no evidence on record to support them.”
Regardless, Shin stressed, “Nothing we have said prevents the wife from filing a modification suit to extend the husband's maintenance obligation beyond the expected date. If the wife files such a case, the burden of proof at that time is on her to prove that the deviation is justified.”
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