In our last two blogs, we took the Appeals Court to task for inconsistency and over-reaching as we saw it, but we should not let it go without acknowledging what the Court got right:
- The trial judge terminated alimony for “retirement as defined in the [alimony] act.” The Appeals court hewed to the statutory language that absent a defined deviation, alimony stops at a specific retirement age, and not necessarily at actual retirement, before or after. Under the law, a person can work beyond retirement age and pay no alimony, unless a judge explicitly rules otherwise in conformity with criteria set forth in the statute.
- Where the trial court ordered the husband to disclose his income periodically to the wife in furtherance of his sliding alimony order, the Appeals Court ruled this an abuse of discretion, because it gave the wife free information about the husband’s changing circumstances while denying the same to the husband, about the wife. (This will likely not impact the parties since the Appeals Court vacated the percentage arrangement, which, in all likelihood, will cause Judge Abber to drop the disclosure provision, too).
- Findings of needs, as stressed in this decision, absolutely, are a critical component of alimony law, common and statutory; and the “new” alimony lawunderscores the practice, rather that reducing it.
- On property, the trial court excluded the wife’s family of origin-derived vacation home from property division calculation, while not excluding any part of the husband’s partially family of origin-derived dental practice. The appellate panel reversed on this point, being unconvinced by the trial judge’s conclusion that the vacation home was “never relied on as a financial resource” by the family; pointing out that the family’s habitual use of the property during the marriage was, in fact, a form of financial reliance that was worthy of consideration in weighing the equities of exclusion or inclusion in the section 34 distribution numbers.
The Appeals Court also noted, twice, that Judge Abber was dealing with an extraordinarily complex statutory scheme with little or no appellate guidance, a departure from the too frequent practice of appellate courts speaking uncharitably about the efforts of their trial court colleagues. They certainly got that right.
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