-: SJC-13222, Michael D Cavanagh V Lynn A Cavanagh.
-: Attorney Goldman, when you're ready.
-: Thank you.
Madam Chief Justice, may it please the Court,
Jeff Goldman, Morgan Lewis,
with me is my colleague,
we have the pleasure of representing Lynn.
-: [Chief Justice Budd] I'm just going to ask you
to pull the microphone a little closer to.
-: Thank you, Your Honor.
Your Honor,
the Legislature passed the Alimony Reform Act of 2011,
in order to prevent cases like this one.
If you look over the transcript,
which I respectfully urge the court to do,
you'll see, this is not a case,
and now I'm speaking about
the issues of alimony and child support
in which there were many disputed issues of fact,
there's no closely held businesses
with contested valuations.
There's no offshore trusts.
Parties got their income from jobs, compensation,
and, you know, with some minor exceptions to be discussed
were set out in their pay stubs and their W-2
and their 1099s and in their retirement account records.
And while we may have some differences
about what the husband's full income is,
those differences arise
from the way different forms of income should be treated.
Not whether the income in question exists,
and nor is there any real question in this case,
whether it's a type of case
where alimony would normally be warranted.
It was a 21 year marriage,
the wife supported the husband
while he earned a professional degree
and paid off his, helped him pay off his student debt.
Family income was well over $20,000 a year,
and now the wife makes 30 something thousand dollars a year.
What the Legislature wanted
when it passed the alimony format,
was that in cases like this,
there'd be no good reason to go to trial
because the window of potential outcomes would be narrow.
If in this case,
you use the income of the parties
as determined by the Probate Court, 32.5%, you know,
half of the 30 and the 35 of the difference,
would've been exactly $1,200 per week.
Now you can look at the numbers with tax adjustments
and bring that down,
you could argue it should be 35 or 30 or even 25,
but that doesn't make the window very broad.
Maybe you get between 1100 and 1300.
Maybe, you know, you make an argument that's exceptional,
it should go to 1000 or 1400,
but it's in a relatively narrow range
where the parties are incentivized to settle the case.
Here after trial, the husband took the position
that total support should be $492 a week.
That's 13.3% of the income differential.
The Probate Court awarded $650 a week.
That's 17.6, I think percent of the income differential.
So you're way out the range
that the Legislature was anticipating
when it passed this Act.
As I point out in the briefs, as we point out in the briefs
and as the Guidelines Committee states
in the most recent version of the guidelines,
this falls into the category of cases,
where the wife would've been better off substantially,
if the marriage had no children.
Justice Georges: Counsel, I don't disagree with you
necessarily that this is problematic, right?
I mean,
I did read the transcript the way you suggested,
and she quite clearly,
and it seems that was testimony at trial
that this was what they decided to do when they got married.
She'd stay home, take care of the kids.
The issue that I have though is,
when we're looking to the plain language of 53(C)(2),
and you're asking us to take an interpretation,
to follow an interpretation
that we would have to go to a definition,
it's not the plain and ordinary definition that you'd find.
You'd have to go to like the threes and fours.
Tell us why that makes sense,
I understand it makes sense
that there are other provisions of the act
that contemplate that both alimony and child support
can be awarded in appropriate circumstances,
but looking at this, just the, the language of 53(C)(2),
is it a bit of a tortured kind of definition
you want us to infuse into that language?
-: I prefer awkward, but it is an unusual,
you have to assume, and I think it's fair to assume
that the Legislature goofed a little bit
in using that language.
You know, it would've been certainly clearer
to put it another way,
but I also think it's, you know,
it's utterly clear that the Legislature didn't intend
for the outcome that happened here.
So there's two ways around, I think.
There's the way that the guidelines,
that the present guidelines especially
have hinted on resolving this,
and there's, you know, my way, our way,
which we respectfully think
more effectively accomplishes the Legislature's intent.
-: When you say the guidelines is that use
fixing the alimony first, and then turning to child support?
-: The guidelines, if I understand them currently say is,
it's up to the Probate Court.
You should at least, I don't know, use the word, should,
but it says it's appropriate to consider child support first
and then alimony first, and then look at them,
and decide where you are,
and of course, that's not what the Probate Court did here,
and if it had, I respectfully suggest
it would've come up with a result much more
in the range that the Legislature intended.
The reason, I don't think
that's the best outcome of this case is that first of all,
it puts a big burden on the Probate Court,
which I think is what the Legislature
was in part trying to avoid,
and second of all, it, you know,
it takes that narrow range of outcomes and broadens it,
and it does so in two ways, because, you know, on the,
in the situation where one spouse made most of the money
and the other spouse is taking care of the kids,
child support alone will be less than alimony alone.
So we're now below the bottom.
On the other hand, if you take a situation the same way,
and you do alimony first, and then child support,
you go above 35%.
So you're almost, you know,
you're still gonna capture the right range,
but your range is gonna be, I would suggest
broader than the Legislature really wanted
when it passed the statute.
I do think that that's the second best
resolution of this case though.
-: Isn't there a third way the Legislature fixes this?
I mean, do we normally engage in this awkward construction
that you're suggesting in order to fix
what we in hindsight think the Legislature wanted?
-: We certainly don't prefer to,
or I don't think the court prefers to, but, you know,
there's obviously
lots of Massachusetts Statutory Interpretation cases,
we just heard one and there was one last week
about the possession of a gun.
You know, in sort of picking which one to site,
I used one of the cases
about early release for medical parole,
which the Court has had several.
And the reason I chose that is because
the Court was looking at a statute
that on its face left a lot of discretion,
and it says, listen, I'm quoting now,
this is the Maloy case.
Timely release was of great importance to the Legislature.
The Legislature certainly did not contemplate
as the Department of Correction argued
that the timing of the release would be left
to the D-O-C's discretion.
So when you, when you have, I mean,
I don't think there's a reading that says,
you have to do just child support.
The guidelines don't say that.
Even the previous version of the guidelines
realize that was wrong.
So you either have a situation where
you got a lot of discretion from a statute
that was supposed to con confine discretion,
or you reach a little bit for a reading of this one,
this one isolated word in the statute,
that seems out of place
that construed the way the Probate Court construed it
is respectfully absurd.
-: So what's what's going on because it seems that you,
as you point out subsection G seems to make (C)(2)
impossible to implement,
but most Probate and Family Court judges,
are they just setting alimony first.
-: Your Honor,
I respectfully had never been in Probate Court
before this case, it's a pro bono case for me,
and I don't have the subject matter expertise
to know what most Probate Courts are doing firsthand,
I've tried to survey that
and what I've come come up with understanding of
is there's a very wide variation across the State
and from judge to judge about how this is being interpreted,
and it was a substantial issue
before the Guidelines Commission in its most recent.
-: But I guess, you know, you'd say that
if you take into account subsection G
in common sense, it would an absurd result.
Now the child support limit,
-: Right, right.
You have a a contemplation for contemporaneous orders
at the same part as if you read the statute
the way the Probate Court did,
an impossibility of contemporaneous orders.
-: Counsel, I don't want your time to run out without,
I know you, you have other arguments
about what ought to have been in the pot
to consider for appropriate,
but I don't want to miss an opportunity
to talk about the emancipation issue
because that's an important issue to me.
Why isn't that an appropriate determination here?
And I'm gonna use something about
the oldest child's emancipation to make my point,
at some point later on down the line, the court found,
and I believe you stipulated a trial,
that he was emancipated at the time of his graduation,
Jeff: Correct.
-: And that entitled Mr. Cavanagh to reimbursement
for those child support.
Jeff: I don't think I conceded that,
-: Well I don't know that you wanted to
but it was ordered, right?
-: Yes Your Honor, yes.
-: He was ordered and said that for that period,
he shouldn't have been paying.
Why doesn't it make sense to presume emancipation
in this sense that all of this stuff in the record
seems to suggest that the second child
is being taken care of by the Military.
There's even that email that said,
"Hey, if you're claiming them, don't claim them."
There was testimony by Mrs. Cavanagh,
about how he doesn't come home at all that much, right?
So somebody's taking care of,
why wouldn't it be more appropriate to say
he is emancipated, and if down the line
there's some difference or change in circumstance,
then you can come back and say,
"Oh, no, he really wasn't emancipated."
But based on all of the evidence
that was in front of the trial judge,
why isn't that?
Why isn't that a proper conclusion that he's emancipated?
-: So I'd answer that question in two parts, Your Honor.
First, if we were looking at this case,
in the absence of a separation agreement,
the arguments you made may be perfectly appropriate
and I'd of course have, as you saw
contrary arguments for why at this point.
-: I'll give it to you,
the separation agreement says in the Military,
and you're not agreeing that he's in the Military
for purposes of attending West Point.
But why isn't that a proper construction by the trial judge
that he is in fact in the Military,
because it has all the earmarks of being in the Military,
including being taken care of, including a stipend.
-: Just to clarify the record
that the stipend is a West Point term of art
it's given and then taken back.
So he's not paid a salary
like he would be if he'd enlisted,
but more broadly, Your Honor,
the separation agreement, if you read it,
seems to contemplate the idea that the same child
would get a scholarship.
He's incredibly academically talented.
So the separation agreement has all these provisions
about how the wife doesn't need to contribute to the college
and how the college contribution is independent
from the, you know, from the obligation
to continue child support.
So respectfully what our position was,
is that this is not an issue of Abstract Law,
where you are, you know, looking at it afresh,
you're trying to effectuate
the terms of the party's agreement, and under the agreement,
it's pretty much clearly contemplated
that he gets a scholarship, child support continues.
Judge Georges: But if he's emancipated, it doesn't.
Jeff: Correct.
-: That's the issue.
So why is it that the trial judge was wrong
in concluding that,
for purposes of the agreement he's emancipated?
-: Well, I don't think that it was, it doesn't say,
the agreement's confusing on this.
I don't think it's, you know,
an issue that could have been fairly resolved
without recognizing there's a, as I say,
a latent ambiguity in the separation agreement,
you got military, you've got college,
what did the parties think?
And, really that's, what's important here,
it's not an issue of Abstract Law,
emancipation's not from the statutes it's from the agreement
and my position is that the judge failed
to properly resolve the issue,
because she did not consider the evidence
about what the parties wanted when they signed it.
If she'd listened to that evidence, and she'd said,
you know, "I hear you, Mr. Goldman,"
"but I think that this falls on side B not side A."
you know, I might not appeal,
but she didn't do that analysis.
She didn't determine what the parties really intended,
and that's what I think she should do on her math.
I'm running outta time, I could start on the privilege,
but I won't detain the Court,
unless there is further questions, thank you, Your Honor.
-: Thank you.
Okay, Attorney Dargie
Ann: Dargie
-: Dargie, sorry.
-: Well good afternoon, may it please the court,
My name is Anne Dargie,
and I'm appearing on the half of the plaintiff.
Appellee, cross appellant Michael Cavanagh,
and while we do have a cross appeal, and I certainly,
we argue that the Court abuses discretion
in the issues raised in that cross appeal,
I do want to address some of the points
made by the appellants counsel,
particularly as it relates to this interaction
between the award of alimony and child support.
I think that the legislative intent
is in fact quite clear,
when we look at the breadth of the Alimony Reform Statute
from 2011, the Court continued to, or I'm sorry,
the Legislature continued to be clear about the fact
that the own award of alimony
should generally not exceed the need of the payee
and also added durational limits
and added restrictions on certain sources of income.
Globally the 2011 Alimony Reform Statute
gave better protections for payers of alimony,
and I think that's an important distinction to be made
when we have arguments relative to legislative intent.
A reading on the whole again of this statute suggests that
there were concerns prior to the reform
that there were inequitable awards of alimony being made,
particularly as it relates to the double calculation
of the income of a payer,
the sort of broad stroke statement
that a person who is childless
versus a person who is not childless,
that the alimony award is well for lack of a better phrase,
that there seems to be an equal protection argument,
I think is a fundamental fallacy because it,
-: There's a big picture child support and alimony,
the four types of alimony, first of all,
under the alimony of format,
and secondly, and more important,
they're getting at two entirely different things.
-: Yes, I agree, they are, they are.
-: One limit the other by definition, in all circumstances,
if they're getting at two different goals.
Ann: Because you have only one source of income,
the child support guidelines themselves
deal with one income.
The initial guidelines that were the subject of this case,
or the 2018 Child Support Guidelines,
they considered income up to $250,000 a year,
the new guidelines up to $400,000 a year.
So if we're to make an alimony order on the same income
that's used for the child support,
you've essentially double counted this alimony
resulting in an inequitable,
-: But that's,
but we don't know if it's inequitable,
because the entire issue is
whether or not the burden on the payer
would be disproportionate
to whatever the income happens to be.
There was no analysis of that.
It was just, you don't get alimony
because you're paying child support.
So we don't even know if there,
it may very well have been a number
that might have been an argument for it's inequitable,
but the problem here is,
there was just a categorical denial of alimony
based on the fact that child support was being paid
and, you know, to Justice Lowy's point,
isn't this the very paradigm of why general term alimony
is supposed to be awarded.
I mean, you have a spouse who stayed at home,
who raised the children who helped put them through school,
the incomes are disproportionate,
I mean, yeah, I know you could say,
"well, she got a house and she had a payment from the 401k,"
but I suppose somebody could turn around and say,
"So what, she's a young woman, she's only in her 50s."
So there's a long time here that's left to live, hopefully.
How is she supposed to support herself now?
-: Well, I think to, for your second point,
I think that the asset division
is an important consideration
because she was given an essentially mortgage free home
and she had a significant retirement account
resulting from the divorce.
So then we have to talk about her need.
An alimony award,
can't be addressed without discussing the need,
and so her need is going to necessarily be impacted
by the asset division from the divorce.
So she doesn't have a mortgage to pay,
she doesn't have, you know,
some of her retirement concerns on her own,
and there was also testimony
and this is important in many probate cases,
and many probate judges have to make this assessment,
and I will say having been counsel on many alimony cases,
one of the things that has to be considered,
is an ability to earn income,
and the mother was quite clear in her testimony
that she has the ability to work as a teacher,
and she historically has been a teacher
that she has the ability to,
-: She has, but all of these issues weren't really played out
because they were not at issue in the case,
and that's the problem here, right?
I mean, cause there was also testimony
that her income to be a teacher
was limited by the fact
that she didn't have all the certifications that she needed
and it was gonna cost additional monies
to go get those certifications that she didn't have.
Isn't that all the stuff that we want the judges to consider
as to whether or not maybe an award of alimony
would've been appropriate in the first instance?
-: I think that that if this was a case where
there was either a previous award of alimony,
which in this case, there wasn't,
the mother had waived it in the first instance,
and I would also note that she waived the ability
to include the income from Baystate Medical Center
that the father was receiving,
so that would also have to come off the top
when we have an alimony conversation in this case,
I think the short answer is yes, of course.
We would always want there to be a global sort of view
of what the circumstances,
the particular circumstances of both parties are,
that having been said, she, again,
isn't entitled to an increased standard of living
beyond what she had at the time of the marriage
-: Those are all, those are all really good points,
but with the Probate and Family Court judge saying,
"If I've got the section right, no, this is (C)(2)."
"I'm not considering all of that, that whole dynamic."
that's the problem.
I think we do want the Probate and Family Court judge
to consider everything you said in the big picture.
-: But I think she's bound at that point
or any Probate and Family Court judge is bound at that point
when they've considered all of the income,
and as you know, we've certainly appealed her calculation
of Mr Cavanagh's income, but she,
I would say for lack of a better phrase, I mean,
pulled out the pocket handkerchiefs
to find every ounce of income she could
to use as a calculate,
to calculate as the child support guidelines,
the guidelines are presumptive,
there is still an unemancipated child
and she used all of that income
in her calculation of child support.
Where or how could she have then used
other incomes for alimony?
-: That's the problem I have with that Counsel is that,
all those factors that you were suggesting,
should have been considered in whether or not
to award alimony were just not considered
because the judge did the child support math first,
and it just seems to me that that
can't be what the Legislature intended
that whatever equation goes first
dictates whether or not you consider
the totality of the party's circumstances.
It just seems odd that
the choice of doing one equation first, is the driver.
-: But I think the trouble is
if you were to do the alimony equation or calculation first
becomes even quite frankly more problematic
because the alimony calculation,
unlike what I think is being somewhat suggested here
that the alimony has a presumptive calculation,
which it doesn't, and in fact, the statute gives,
and I note in my brief that where we've moved the needle,
as it relates to the percentage of the income
that the statute says 30 to 35% ,
talking now more about 25 to 27%, given the tax changes,
that being said, the alimony isn't presumptive,
she isn't automatically entitled to it,
certainly it's a case for it,
but she isn't automatically entitled to it,
and so what is the number?
The number would be based on her need,
and so then if we look at her need,
could the Judge then reduce the child support to meet,
and I think what the judge could do is,
would give her some income from alimony
and then he'd factor that into the child support guidelines,
and run them that way,
I don't know that you'd see her making a significant,
I don't know that that would make a big difference
in what she otherwise be entitled to.
-: But the problem is that we just don't know,
the Judge never struggled with,
"Well, let's see what the alimony calculation first goes."
Justice Georges: Right.
-: And the tax consequences, and then look at the, you know,
let's do the child support first and the tax consequences,
and then make an informed assessment
as to what in this situation is the best reason.
Here it seems like the judge
just did the math for the child support first
and ergo said, you know,
"I've considered all the income so."
-: Well, which the judge is permitted to do
under the statute.
-: But there's one other implication to that though,
is that right now,
very soon two of the children are gonna be emancipated.
You've got a younger son,
who is still yet to go to high school,
but the issue may very well be,
that if we took what the judge did in this case,
that there's a finite number of years,
to which child support is going to attach,
and it very well may be
that the wife has continued need past that.
So if we take this construction and say,
"Okay, as soon as the third child hopefully matriculates"
"and graduates from college,"
that, you know, "Hey, Mrs. Cavanagh your needs are all set."
We could very well be wrong about that
without this assessment.
-: I would respectfully suggest that that makes sense
as far as a process
because it's child support fundamentally
is designed to meet the needs of a child,
it's a presumptive calculation
that isn't based on virtually any other factors
other than the party's respective gross incomes,
actually doesn't with the exception of health insurance
and other support orders that are in a court order,
it doesn't ask for any other reducing factors.
So this child has the right to be supported
to the extent that the law allows,
which is these child support guidelines,
which this child, you know, received with the,
aside that we think it was still high,
but at that point, when we move into in this case,
which very well may occur, an alimony calculation,
the mother's need will be different
likely reduced because this child isn't at home,
this child's emancipated and ostensibly living,
living independently,
and then the alimony would be reflective
of what the mother need at that time,
and I think that's a more reasonable, and in fact,
practical way of looking how we assess support of a spouse
to suggest that there would be
some amount even post emancipation
of the youngest child, some specific amount,
I think isn't, isn't true.
I don't think there's going to be,
here you automatically have a 27% difference in the incomes,
there are a lot of issues with that moving forward
after the emancipation of the child.
-: Well, but it doesn't take into account
that there is need now, there is need now,
and that was the testimony, right?
I mean, there was testimony about the fact that
she was still driving a car, that was the marital car,
that it was on its last legs.
Mr. Cavanagh had the benefit of two cars,
that she was heavily in debt and credit card debt,
cause she was using that to finance the schools
or at least for the youngest child,
I mean, so there's need now I guess,
is part of the reason why,
I'm wondering why the Trial Judge
couldn't do this at the same time.
-: I think what at having been at the trial,
I think that part of that issue is that the need
to some degree was artificially created.
You see in the record, the very extensive contempt hearings
that were had by the mother's
-: Judge never, maybe, maybe,
but the judge never got got to that point.
I mean, the judge is rigidly dealing with (C)(2).
I mean maybe.
Ann: but I think that.
-: Hadn't gotten to that point.
-: But the Judge was within her scope of the statute
in making the determination that she did,
She used all of his income for the child,
for child support assessment.
-: If (C)(2),
if (C)(2) means what it says,
what does subsection G mean?
-: I would suggest that subsection G is really designed,
is a way to give the Probate and Family Court,
which across the board,
in all cases in Probate and Family Court,
you see that those Courts are granted
with a tremendous amount of discretion
in certain situations, it's somewhat the nature,
and I think it's a very unique nature of the judges
in that position.
I think that subsection G acknowledged
that there's going to potentially be Interactions
between child support and alimony orders
in this case in particular,
that wasn't what the judge was looking at,
the parties only did child support at the outset,
in their separation agreement.
Well, the wife at that time and the mother in this case
effectively waived her certain parts,
levels of income for alimony and child support
into the future, but she didn't,
there wasn't an award of alimony at the outset,
and there wasn't that interaction at that time,
the father was paying child support
and the judge simply continued
what the parties had previously agreed to
in the manner that they had previously agreed to it.
I think that in the future to,
certainly to address the future point,
that, if were the mother to come back
and seek additional support,
which she very likely, will, the emancipation of this other,
of the youngest child,
it will be under the set of factors that Your Honors
have suggested today that need to be reviewed.
Her ability to earn, her, in some cases, in this case,
willingness to earn and what her actual need is.
She did to some degree,
create an artificial need by taking a home equity loan,
to pay for a private school tuition
that the Court told her she couldn't do,
and both the father told her she couldn't do it,
and the court said,
"No, ma'am you can't enroll your child"
"in this private school."
There isn't an agreement by the legal custodial parent,
and she did that anyway, causing herself unfortunately,
more debt it's unclear further in the record,
why she wouldn't have used any of those funds
to fix her car or to buy a refrigerator, or to not use it,
I mean, some of it was to some degree,
unfortunately, a bit theatrical
and I don't think necessarily credible
from the Judge's perspective,
but the Judge didn't need to reach that point,
because the Judge did what it needed to do under the statute
with respect to the child support order
and realizing that my time is up.
I just want to make the point relative to emancipation
that the specific factors that the parties agreed to
in the separation agreement,
this is in Record Appendix page 494,
all of the factors that the parties set forth,
all deal with the idea that
the child will at some point become independent.
A child's no longer dependent on the parents,
I think that's was made very clear in this case,
a review of the mother's financial statement makes it clear
in this case that she doesn't have any output
or support for the child in West Point at this time.
Other Courts have certainly other State Courts
have certainly found
that a child enrolled in US military academy
is emancipated for those purposes.
Certainly were the child to unemancipate at some point,
although he is now through his second year at West Point,
that could be dealt with at that time.
With no more questions, thank you.
-: Okay, thank you very much.