Judicial restraint. We don’t recall ever seeing this phrase about the divorce court’s exercise of broad discretion before. In McClelland v. McClelland, the parties provided in their separation agreement that the husband would pay 75% of the children’s secondary school expense. In a later modification action, they agreed that each parent would pay 1/3 of college costs.
In a second modification, neither party sought review of either education term, focusing rather on periodic alimony and child support matters. The trial judge terminated alimony, increased child support (more below) and – on her own initiative - loaded the full college burden on the father.
In reversing, the Appeals Court panel called this a “forceful case for judicial restraint”, cautioning judges against unravelling prior agreements reached by parties when no one is complaining about them.
As divorce mediators, we certainly understand and support the concept that a court should not undo consensus where it exists (assuming no public policy problems). After all, client empowerment is our calling card.
Yet, as a family law arbitrator and special master, and as a former judge, we also understand the trial judge’s temptation. After all, education costs are an adjunct to support; and one could easily see how a change in support as compelled by the evidence of changed circumstances, could render a previous college cost arrangement unfair or even untenable.
It is tempting to think that a failure to address this reality will just beg a follow-on modification action to demand exactly what seems sensible to adjust, now.
On balance, we think that the Appeals Court’s suggestion is sound. It is the judge’s job to decide pleaded controversies, not create them. If the new judgment does not make sense in the context of matters not pleaded, that does not make the court responsible for the collateral outcome, even if those matters that should have been pleaded. A good pre-trial conference, and with effective divorce mediation, should surface these issues, sometimes causing the parties to broaden their issue lens, and perhaps even amend pleadings. But once adjudication begins – as McClelland suggests - judicial restraint, in the form of fixing what is before the court, and not what should be there, is both prudent and proper.
Parties’ Intent. The divorce agreement and judgment required the husband to pay 19% of his pre-tax income as alimony and 19% as child support. The judge in McClelland, terminated alimony but increased child support to 25% of the father’s gross pay.
The Appeals Court supported the alimony ruling but vacated the child support, indicating that the judge’s writing did not evidence proper heed to the parties’ perceived intent that child support be limited, on its own merits, to 19%; and Bercume v. Bercume requires special care in trying to observe and make when possible defer to intent, even when the provision under review merged in the previous judgment.
The Appeals Court remanded the case to the trial judge, simply ordering her to write additional findings in explanation of why respect for the parties’ apparent intent was overcome by other material changes of circumstance, necessitating a support change.
Negotiators, divorce mediators and agreement drafters should take heed. Frequently, the parties strike support deals with the assumed comfort that a judge would have broad discretion to re-structure a support package to meet changed facts in the future; and that the initial structure, will not unduly hamper a modification judge, when the parties’ financial profile has substantially changed. This should not deter any one from careful and efficient support structuring, but as Huddleston and Bercume taught, the parties spell out their intent where they can.
For example, a divorce agreement could say that: “The income percentages expressed in this provision meet the parties’ current needs, but the parties do not intend to limit or impair the court’s discretion to modify support in accordance with circumstances existing at the time of any future modification judgment.”
The law of unintended consequences can hurt a lot, and at other times, it can be a gift. There is a time for strategic ambiguity, but only when it is itself intended. Careful drafting that spells out intent and does not leave it to later inference, or even speculation, from the bench, when someone’s ox will be gored.
Just ask poor old Dr. Huddleston.