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In its second case decided on the Massachusetts Alimony Reform Act, eff. 3.1.12, the Supreme Judicial Court (SJC) upheld the judgment of Probate and Family Court Amy Lyn Blake in which she awarded 5 years of rehabilitative alimony to the wife at the conclusion of a 16 year marriage. In Zaleski v. Zaleski, the wife claimed that Judge Blake had abused her discretion by opting for this restrictive form of spousal support, with its short time limit and heightened standard for extension, over general term alimony, which could have run an additional eight years, with a lower standard for extension.

A basic inference from Zaleski is that the SJC means business when it comes to implementing the legislative imperative: that the days of unlimited alimony are past; and that even with a marriage of long duration, and a high standard of living, if a trial judge writes comprehensive findings of predictable employability, she should expect to be upheld. That said, the case presents a number of other interesting aspects that we will begin to explore in this and subsequent entries.

We start with a curious line between this case and a previous "unreported" decision of the Massachusetts Appeals Court in Nystrom v. Nystrom, about which we wrote on July 9th. The SJC trumps the Appeals Court, especially when the latter's opinion is only that of one panel, unendorsed by the court-at-large and thus not binding any subsequent court, the differing conclusions of the two appellate courts illustrate to us, as divorce mediators, just how fraught litigation is with chance.

The Nystrom panel vacated a trial judge’s award of 6 months of rehabilitative alimony, focusing on that part of the statute that permits the trial court to limit alimony to a period of five years or less for a spouse who is "… expected to become economically self-sufficient by a predicted time, such as,… [by reason of] reemployment…” That judge had concluded that the wife had the ability to become reemployed within 6 months after judgment, and supported this view by finding that the wife “…had not used sufficient best efforts in becoming reemployed…”,. The appellate critique was that the trial court had not expressly discredited the wife's testimony about her unsuccessful job search efforts, and that there was no conflicting testimony that the judge could use to support her finding.

In Zaleski, by contrast, the SJC endorsed Judge Blake’s conclusion that the wife's “… job search efforts had been sporadic and superficial, and that she had not used her best efforts to secure employment." Further: "the judge was not required to credit, or give significant weight to, the wife's assertions as to those steps she had taken in her job search..." Thus, the SJC concluded, that its trial judge was justified in her prediction that the wife would become economically self-sufficient by attaining reemployment at a predicted time.

What led 2 appellate panels to reach opposite results, in the same rehabilitative alimony context? One difference is that the husband in Nystrom did not offer any expert testimony on the subject of the wife's employability. By contrast, Mr. Zaleski did offer an expert to challenge the wife’s self-serving testimony. (Neither wife had an expert.) But, if either expert witness commented on the wife’s job search, neither panel told us. Moreover, Judge Blake “…did not credit the opinion of the husband's expert that the wife was highly employable as a sales manager or marketing manager … but did find that the wife had skills that were transferable across many fields beyond pharmaceutical and medical device sales." So, at least as disclosed by the SJC, Judge Blake did not rely upon the expert in making the apparently critical finding that the wife's job search had been lacking.

A second difference between the two cases is the ages of the wives whose employability was examined. Ms. Nystrom was 58 years old at the time of trial, while Ms. Zaleski was 13 years younger. One could certainly imagine an appellate panel being more skeptical about the job prospects of a woman who was 60 by the time of its opinion, than for a younger person. A third difference was the economics of the two cases. Ms. Nystrom had a five-year earnings average of under $50,000 while Ms. Zaleski had earned in the range of $170,000 at her peak; and, the former was to receive $300 per week of alimony in the latter 9 times that amount. But, if these factors were critical to the thinking of either appellate court, they did not say so.

Perhaps, the most important factor, albeit unspoken in either case, was that the older woman was given 6 months to find self-sustainability by work while the younger was awarded a far higher sum of alimony for 5 years, at the end of which term, she would be “just” 50. Maybe, in their undisclosed thinking, the SJC justices believed that the policy behind alimony reform was advanced by what it deemed a reasonable rehabilitative period, while the Appeals Court felt the 6 months allotted to Ms. Nystrom simply unfair.

Ms. Zaleski's lawyer, Paul Perrochi, told Massachusetts Lawyers Weekly that the “the lesson to be learned is [in] some of these cases you have to win at trial court." Especially true in discretion-laden family law, where the likelihood of reversal on appeal is generally low. But, as divorce mediators, we have to ask potential litigants, should you be taking the chance on "winning" anywhere?

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