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SJC 13473, Amy Sue Openshaw v Glenn Romney Openshaw.
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Okay, whenever you're ready,
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Attorney Owens.
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Good morning, Your Honor.
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Jason Owens appearing on behalf of Glenn Openshaw,
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may it please the court.
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The case before the court today is dealing with
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a question of that we're calling savings alimony
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and whether or not savings alimony
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should be permitted in Massachusetts.
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That's sort of the first tranche of the question
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and the second part is even if savings alimony
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should be permitted in Massachusetts,
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is it appropriate in this case
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given the evidence that was put into trial.
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Savings alimony in a nutshell is that
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historically in the lengthy jurisprudence
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that the state has had with respect to
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determining the need for alimony,
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we look at the lifestyle that the parties enjoyed
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during the marriage.
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And historically, by exclusion we can look at
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our cases talking about lifestyle
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and those cases have historically
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focused on affirmative spending.
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What people are actually purchasing,
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the trips they're taking, the vehicles they're buying,
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things of that nature.
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When we talk about savings alimony the question is
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whether need, that lifestyle, should include savings?
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So, not affirmative spending on flights
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and stuff that people are buying,
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but instead on the more passive act of accumulating-
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Why shouldn't it?
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Why shouldn't it include savings?
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So, there's a couple things.
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So, there's been several states
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that have adopted savings alimony,
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and when you look at those states
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there's important differences
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between Massachusetts and those states.
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The main reason that we shouldn't be
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adopting savings alimony is because
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our asset division statute section 34
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specifically takes into account one party's
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inferior ability to accumulate assets in the future
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and enables our judges to make a
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disproportionate division of assets,
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which are the assets that were actually saved
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and accumulated during the marriage
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at the time of the divorce, to account for
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that party's weaker ability
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to accumulate assets in the future.
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When we look at some of the states
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that have adopted savings alimony,
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California, Wisconsin, Arizona, these are states
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that are called community property states,
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and they have a much narrower conception
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of the asset division.
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In those states, community property is assets acquired
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during the marriage by either party
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and it is 50/50 division, and there's very little discretion
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to deviate from that.
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So, premarital assets is continued separate property,
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inherited assets is typically separate property,
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it's what was acquired during the marriage 50/50,
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very little leeway, such that if there is a party
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that has an inferior ability to accumulate assets,
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alimony is really their only tool.
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They look to alimony-
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And in those states, 'cause you seem to know them,
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is that the reason that they allow savings alimony
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because their division of assets does not allow them
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to consider the inferior ability to accumulate assets,
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as you say?
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I don't think that would be fair to say
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that they define their law in the context
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of what other states do. I think that-
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What is the reasoning that those states use
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to allow savings alimony.
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So, the reasoning is that that is the mechanism,
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savings alimony is the mechanism to address the problem
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of one party having the inability to acquire future assets
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that can't be addressed
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through the division of assets, not easily.
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Can I ask that question in a different way?
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Of those 14 states, are any of them
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non-community property states?
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Yes, so, the three I just listed
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are community property states,
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California, Wisconsin, and Arizona.
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Nearly all of the other states though,
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also have an important distinction from Massachusetts,
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which is they-
So, 11?
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Yes, I believe with the amicus brief,
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I saw a new state come down.
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So, yeah, believe 11.
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Well, so, two of those-
Even I can do that math.
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So, we get 11, right?
So, two of those states,
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Florida and Hawaii do not allow savings alimony.
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So, we have the remaining states
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that are not community property states
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or disallow community property,
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so, that is 14 minus five, equals nine.
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Those remaining states, I believe all of them,
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exclude what's called separate property,
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which is that they do not allow
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for the division of premarital assets
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or inheritances that come in during the marriage,
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that the division of marital assets is typically restricted
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to assets acquired during the marriage,
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which we don't have in Massachusetts.
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In Massachusetts on section-
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Our asset allocation is broader
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than any of these other states,
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so, we don't need savings alimony?
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I believe so, Your Honor.
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I think I say with a little bit of caution
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when we're talking about 14 states.
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Is it broader than every single one?
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There may be an outlier,
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but it is broader than nearly all of them.
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The question though is whether under section 53
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this is a permissible consideration
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when you're looking at the marital lifestyle
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during the marriage.
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And one of the cases, I can't remember the name,
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said something like, we shouldn't penalize somebody
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because they, during the marriage, have acquired stock
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as opposed to fur coats.
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And if the marriage, there was an agreement in the marriage
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to have some sort of frugality,
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maybe because someone might become a caretaker later on,
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and that was sort of embedded into the relationship
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during the marriage, what's the rationale
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for it not to be included in alimony?
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Well, I think there's two ways to answer that.
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I think you can look at the statutes
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and you see under section 34, one of the factors is
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one party's inferior ability to accumulate future assets
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and the absence of a corresponding factor
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under section 53 in the alimony statute.
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There is overlap between some of the considerations,
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employability, ability to maintain the marital lifestyle,
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but the alimony statute, the latter statute excluded
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anything having to do with the acquisition of future assets.
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And in fact, in the income definition for alimony,
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it actually excludes income derived
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from assets divided during the divorce.
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And we have some case law from the Cooper case in 2004,
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saying that it's inappropriate to enter an alimony order
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that allows for the accumulation of assets
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because that should fall under section 34.
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So, in the hypothetical you're describing,
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where there's a frugal lifestyle
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and as a result there's substantial savings,
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I would argue that section 34 provides,
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okay, now we have a larger pot because of that frugality,
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we have the ability to make a disproportionate division
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in favor of the party who's not going to be able
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to do that in the future.
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I just don't know why,
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and I wanna understand your argument.
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53 says something like maintain marital lifestyle.
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If the marital lifestyle is
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we put this away for whatever reason,
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one of us might get sick, the kid's education,
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whatever it might be, and that's what happens
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during the marriage, why couldn't a probate
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and family court judge in his or her discretion say,
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"Well, I'm gonna take this into account
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as part of the alimony."
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I think that if hypothetically a judge did that
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without you doing a disproportionate division of assets,
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then that would start to make sense.
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But isn't it allotted under our statute
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because the lifestyle, wouldn't it contemplate
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basically the peace of mind
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that married couples sometimes get to put away some money
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because the washer breaks at the same time the dryer breaks
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and the car breaks down.
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And you know, now I've got a little bit of a float
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because we have the savings.
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That's part of people's lifestyles, isn't it?
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I would respectfully say that a alimony order
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that allows a party to maintain the affirmative spending,
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the actual spending,
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combined with the disproportionate division
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that puts into that party's hands a surplus of the savings
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that were actually acquired while they were married-
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If we're looking at narrowly alimony in lifestyle,
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would you agree that that peace of mind
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that's intended to savings that couples routinely do,
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could be considered part of a couple's lifestyle?
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I think that in layman's terms, I think that makes sense.
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I think that the way that the statutes are constructed,
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we've sort of used section 34 to address that.
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But I do think that's a jumping off point
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to this particular case and whether or not, as you say,
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if we are going to allow savings alimony
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perhaps savings alimony is appropriate in concept.
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Should it happen here?
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And I think the critical question really in this case
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is that we have some case law that makes quite clear
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that when we're determining lifestyle and need,
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we're to look at the lifestyle the parties lived
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prior to the separation,
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in contrast to their post-divorce lifestyles
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three or four years later, which could be quite different.
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They could be spending very differently.
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In this case, there was a strategy at trial
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taken by wife's counsel, which was to say explicitly
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to the judge in the closing argument
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and also in the evidence presented, that we do not,
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we're asking you not to look at the lifestyle
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that was enjoyed when the parties were intact.
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Instead, we want you to look at
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the wife's current financial statement.
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So, what came in in terms of evidence
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was uncontested evidence that the entire family
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had spent an average of $165,000 a year
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over the three years prior to the separation.
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What do we do with the fact that the husband
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also outspent the pace of spending
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that he purported the whole family of eight spent
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the prior three years?
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And that's a good question.
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I think that you do have to distinguish between
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the payor and the recipient of alimony.
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He left his house.
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He is estranged for his children.
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He can have what we might call a midlife crisis,
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buys a sports car, starts spending a lot more.
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Nevertheless, what he does post divorce and post-separation
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is a separate matter from the lifestyle
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that you're looking at in order to maintain with alimony,
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which does require you to go back.
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So, what he spends, how they spend their money is
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they can spend it however they want.
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So, the wife files a financial statement
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at the time of the divorce, says,
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"I'm currently spending $400,000 a year."
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That's far greater than what the entire family
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had been spending.
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She's allowed to do that.
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She can spend as much as she wants.
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Nevertheless, the court's analysis of alimony
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should be constrained to maintaining the marital lifestyle.
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Her counsel took the chance that we're gonna argue
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don't pay attention to the lifestyle during the marriage,
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we're going to argue, go ahead and focus
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on the current financial statement.
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That is not necessarily consistent with the law,
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but it's not up for appeal and it was successful.
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If you exclude the savings alimony, wife still receives
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$210,000 in alimony from the judge
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based on her current expenses,
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and that exceeds the entire family spending
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during the last three years of the marriage.
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Our issue is that having done that,
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having waived the examination of the marital lifestyle
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and said expressly don't pay attention to that,
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pay attention to the current spending of the wife,
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does she get to go back and say,
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"Well, while we were married we were frugal
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and we had a lot of savings back when we lived
267
00:12:35.160 --> 00:12:37.927
this very different lifestyle where we only spent
268
00:12:37.927 --> 00:12:42.303
$160,000 a year for a family with six children.
269
00:12:43.620 --> 00:12:45.630
Now I'm living this new lifestyle. I wanna be-"
270
00:12:45.630 --> 00:12:48.990
Just remind me, what was husband's income
271
00:12:48.990 --> 00:12:53.250
when he said they were spending 150 for a family of eight?
272
00:12:53.250 --> 00:12:54.270
I don't have the exact figure,
273
00:12:54.270 --> 00:12:56.190
but it was over a million dollars a year.
274
00:12:56.190 --> 00:12:59.070
Okay, so, there was a lot of savings going on
275
00:12:59.070 --> 00:13:00.513
as a family unit, right?
276
00:13:02.040 --> 00:13:04.260
By the process of deduction-
Yes.
277
00:13:04.260 --> 00:13:07.140
You could say, yes, that there were savings going on.
278
00:13:07.140 --> 00:13:10.650
But wife chose not to enter any of that testimony at trial
279
00:13:10.650 --> 00:13:14.070
because that testimony about the frugality
280
00:13:14.070 --> 00:13:17.850
with which they lived ran counter to her main argument,
281
00:13:17.850 --> 00:13:20.310
which is that was a very constrained lifestyle,
282
00:13:20.310 --> 00:13:22.590
I want you to calculate my current need for alimony
283
00:13:22.590 --> 00:13:25.680
based on my new lifestyle at $400,000 a year.
284
00:13:25.680 --> 00:13:27.570
That's where the waiver argument comes in.
285
00:13:27.570 --> 00:13:30.060
It was an argument where she didn't want
286
00:13:30.060 --> 00:13:31.680
that evidence to come in because then
287
00:13:31.680 --> 00:13:34.950
they would've had to contend with how frugal it was
288
00:13:34.950 --> 00:13:36.840
and how savings was just a component
289
00:13:36.840 --> 00:13:38.790
of an otherwise frugal lifestyle.
290
00:13:38.790 --> 00:13:41.070
Having done that, does she get to come back
291
00:13:41.070 --> 00:13:43.920
and she says, "I now have a savings need of $1,000 a week,"
292
00:13:43.920 --> 00:13:46.260
this round number, "that I'm tacking on
293
00:13:46.260 --> 00:13:48.810
to this very, very different lifestyle today."
294
00:13:48.810 --> 00:13:51.000
And without putting in any of the evidence
295
00:13:51.000 --> 00:13:52.932
that we see in these other states, was there a pattern?
296
00:13:52.932 --> 00:13:55.800
I mean, the question for us is not so much can she do it,
297
00:13:55.800 --> 00:13:59.040
but whether it was clearly erroneous
298
00:13:59.040 --> 00:14:01.923
or an abuse of discretion for the judge to consider it.
299
00:14:02.970 --> 00:14:06.930
To the extent that we have the Young case telling us
300
00:14:06.930 --> 00:14:09.360
that all of the need for alimony
301
00:14:09.360 --> 00:14:12.750
should be based on the lifestyle prior to the separation.
302
00:14:12.750 --> 00:14:14.373
It's very, very specific.
303
00:14:15.585 --> 00:14:19.950
The court's use of the current spending of the wife
304
00:14:19.950 --> 00:14:23.340
when it is twice the spending that the parties engaged in
305
00:14:23.340 --> 00:14:26.427
is in and of itself wildly inconsistent with the standard,
306
00:14:26.427 --> 00:14:29.100
and I would argue an abuse of discretion
307
00:14:29.100 --> 00:14:30.840
to have calculated it that way.
308
00:14:30.840 --> 00:14:33.600
We narrowed in on just the savings component,
309
00:14:33.600 --> 00:14:37.590
but it is part of a larger examination in which the judge
310
00:14:37.590 --> 00:14:40.170
disregarded the lifestyle during the marriage
311
00:14:40.170 --> 00:14:43.890
and simply adopted from the wife's current expenses
312
00:14:43.890 --> 00:14:46.650
those that he felt, you know, were justifiable
313
00:14:46.650 --> 00:14:49.740
without concern for the historical pattern
314
00:14:49.740 --> 00:14:50.700
of what they actually did.
315
00:14:50.700 --> 00:14:52.627
What she's not doing is saying,
316
00:14:52.627 --> 00:14:54.690
"I lived a frugal lifestyle then,
317
00:14:54.690 --> 00:14:56.130
and there was a savings component
318
00:14:56.130 --> 00:14:58.050
in addition to the frugal lifestyle.
319
00:14:58.050 --> 00:15:01.800
And together with those two data points of what we spent
320
00:15:01.800 --> 00:15:04.470
and what we saved, here's my need for alimony."
321
00:15:04.470 --> 00:15:06.000
She didn't do that.
322
00:15:06.000 --> 00:15:09.690
She made the argument, "disregard all of the lifestyle.
323
00:15:09.690 --> 00:15:12.240
Focus on the current spending.
324
00:15:12.240 --> 00:15:14.820
And then, I'm just gonna add on that I'd also like
325
00:15:14.820 --> 00:15:19.080
to save $52,000 a year," based on her current spending.
326
00:15:19.080 --> 00:15:21.780
And when you have, as we did in this case,
327
00:15:21.780 --> 00:15:24.660
a disproportionate division of assets with a husband,
328
00:15:24.660 --> 00:15:26.730
where the court has already given her
329
00:15:26.730 --> 00:15:31.730
a 55/45 division of assets and a wildly disproportionate
330
00:15:31.830 --> 00:15:34.650
division of debts, so that when you look at the net equity
331
00:15:34.650 --> 00:15:38.490
in the marital estate, it was 59% to the wife
332
00:15:38.490 --> 00:15:40.650
and 41% to the husband.
333
00:15:40.650 --> 00:15:45.210
We would argue that that takes care of that question.
334
00:15:45.210 --> 00:15:47.611
Can, I ask you just, Chief Justice?
335
00:15:47.611 --> 00:15:49.410
Of course.
Can you address briefly
336
00:15:49.410 --> 00:15:54.270
the allocation of assets after paying down the debt?
337
00:15:54.270 --> 00:15:57.600
So, the court has broad discretion
338
00:15:57.600 --> 00:16:00.150
to order a disproportionate division of assets
339
00:16:00.150 --> 00:16:01.530
for the basis that they did here.
340
00:16:01.530 --> 00:16:04.380
In fact, the court said specifically in the rationale,
341
00:16:04.380 --> 00:16:08.340
especially because of her inadequate ability
342
00:16:08.340 --> 00:16:09.600
to earn assets in the future,
343
00:16:09.600 --> 00:16:12.480
we're going to make a 55/45 division of assets.
344
00:16:12.480 --> 00:16:14.400
And that's what they did.
345
00:16:14.400 --> 00:16:18.390
What he then did was he did a division
346
00:16:18.390 --> 00:16:20.730
of the marital liabilities where there was
347
00:16:20.730 --> 00:16:23.690
approximately $300,000 in the husband's name
348
00:16:23.690 --> 00:16:26.970
in the form of federal tax debt from the last two years,
349
00:16:26.970 --> 00:16:30.330
compared to $5,000 in credit card debt in the wife's name.
350
00:16:30.330 --> 00:16:33.510
And the court said, with the division of liabilities,
351
00:16:33.510 --> 00:16:35.880
I'm gonna assign each of you what's in your names.
352
00:16:35.880 --> 00:16:39.030
Maybe I just misread it because the tax,
353
00:16:39.030 --> 00:16:40.683
he filed personally?
354
00:16:41.850 --> 00:16:44.219
Yeah, the wife filed individually.
355
00:16:44.219 --> 00:16:45.930
And the court said that's okay,
356
00:16:45.930 --> 00:16:47.460
she doesn't have to file jointly.
357
00:16:47.460 --> 00:16:50.610
But I guess, the penalty for him filing individually
358
00:16:50.610 --> 00:16:51.690
was he owned the debt.
359
00:16:51.690 --> 00:16:53.610
He owned the debt and certainly, you know,
360
00:16:53.610 --> 00:16:56.310
that was saved up and it was divided and it was income.
361
00:16:56.310 --> 00:17:00.300
So, you know, the question there is whether or not
362
00:17:00.300 --> 00:17:03.270
the judge who made the findings
363
00:17:03.270 --> 00:17:05.970
supporting a 55/45 division of assets,
364
00:17:05.970 --> 00:17:07.830
but made no such findings about the liabilities.
365
00:17:07.830 --> 00:17:09.960
Just simply said, I find it's equitable to do it this way.
366
00:17:09.960 --> 00:17:11.520
Well, that moves the needle.
367
00:17:11.520 --> 00:17:15.297
It ends up being a 59/41 overall division.
368
00:17:15.297 --> 00:17:17.493
Was that a discretionary call by him?
369
00:17:18.990 --> 00:17:21.990
I think that it's a discretionary call,
370
00:17:21.990 --> 00:17:26.990
but it still falls within the factors under section 34.
371
00:17:27.300 --> 00:17:31.260
And if all of your factors that you described,
372
00:17:31.260 --> 00:17:34.740
the findings that you make are all focused on 55/45,
373
00:17:34.740 --> 00:17:38.250
then you need to probably make some additional factors
374
00:17:38.250 --> 00:17:39.660
when you're gonna do something very different
375
00:17:39.660 --> 00:17:40.610
on the liabilities.
376
00:17:41.476 --> 00:17:42.600
[Justice Wendlandt] Chief, can I ask one more question?
377
00:17:42.600 --> 00:17:44.010
Yep.
Thank you.
378
00:17:44.010 --> 00:17:49.010
So, he doesn't say 55/45, he says, "Approximately."
379
00:17:50.310 --> 00:17:54.150
And that is the response that's given
380
00:17:54.150 --> 00:17:57.210
by the wife in her brief.
381
00:17:57.210 --> 00:17:59.460
Can you address that?
382
00:17:59.460 --> 00:18:01.650
Because it's not like the other cases that you cite
383
00:18:01.650 --> 00:18:03.390
where the judge says it should be this
384
00:18:03.390 --> 00:18:04.920
and then it ends up being different.
385
00:18:04.920 --> 00:18:09.920
Here, how approximately close to 55/45 is 59/41?
386
00:18:13.410 --> 00:18:18.410
Okay, so, the division of assets in the judgment
387
00:18:20.670 --> 00:18:24.300
was split pretty carefully 55/45.
388
00:18:24.300 --> 00:18:26.400
Right, it's the division of debts that
389
00:18:26.400 --> 00:18:28.650
results in the 60/40 split.
390
00:18:28.650 --> 00:18:31.590
Right, and so, that's just a matter of
391
00:18:31.590 --> 00:18:34.800
essentially taking $4.7 million in assets
392
00:18:34.800 --> 00:18:36.393
and then acknowledging that there is a little over
393
00:18:36.393 --> 00:18:40.950
$300,000 in debt, of which 95% of that
394
00:18:40.950 --> 00:18:42.480
is gonna come out of the husband's share,
395
00:18:42.480 --> 00:18:45.090
bringing his share down while really not moving-
396
00:18:45.090 --> 00:18:47.040
So, I understand the math and you're running outta time.
397
00:18:47.040 --> 00:18:49.830
So, my question is about approximately.
398
00:18:49.830 --> 00:18:53.520
You know, he doesn't say, I wanna absolutely do 55/45.
399
00:18:53.520 --> 00:18:55.230
He says approximately.
400
00:18:55.230 --> 00:18:57.063
And is 60/40 close enough?
401
00:18:58.590 --> 00:19:01.230
And I think that I would answer that
402
00:19:01.230 --> 00:19:02.394
it's not close enough.
403
00:19:02.394 --> 00:19:06.810
That's essentially doubling the disproportionality.
404
00:19:06.810 --> 00:19:08.370
I mean, it's coming very close.
405
00:19:08.370 --> 00:19:13.370
You've supported a 5% difference from a 50/50 division.
406
00:19:13.920 --> 00:19:17.370
Going up to 9% is a very substantial jump
407
00:19:17.370 --> 00:19:19.500
without any additional findings.
408
00:19:19.500 --> 00:19:23.070
And I would also say that I think that
409
00:19:23.070 --> 00:19:28.020
if the court were to say that savings alimony is unsupported
410
00:19:28.020 --> 00:19:31.300
because of the disproportionate division of liabilities
411
00:19:32.220 --> 00:19:36.510
and not just assets, I think my client would waive,
412
00:19:36.510 --> 00:19:37.710
you know, his position
413
00:19:37.710 --> 00:19:39.630
on the disproportionate division of debts.
414
00:19:39.630 --> 00:19:40.560
He would say, "Okay."
415
00:19:40.560 --> 00:19:45.090
Not surprisingly,
But, if the courts say
416
00:19:45.090 --> 00:19:47.400
savings alimony stays in place and there's a remand,
417
00:19:47.400 --> 00:19:49.650
he would reserve the right to also argue
418
00:19:49.650 --> 00:19:51.690
the liabilities issue.
419
00:19:51.690 --> 00:19:53.040
If there's no further questions, Your Honor.
420
00:19:53.040 --> 00:19:53.873
Okay.
Thank you.
421
00:19:53.873 --> 00:19:54.706
Thank you.
422
00:19:57.060 --> 00:19:58.023
Attorney Spencer.
423
00:20:05.130 --> 00:20:07.050
Good morning, Your Honors, may it please the court.
424
00:20:07.050 --> 00:20:09.963
Sean Spencer for the appelli, Amy Openshaw.
425
00:20:12.180 --> 00:20:15.150
I'd like to start with the discussion of the term need
426
00:20:15.150 --> 00:20:17.500
in our alimony statute, because it's important.
427
00:20:19.260 --> 00:20:22.470
There's a connotation you could read into the word need
428
00:20:22.470 --> 00:20:26.310
that involves necessity, bare minimum,
429
00:20:26.310 --> 00:20:29.547
some sort of evaluation of the marital lifestyle.
430
00:20:29.547 --> 00:20:31.529
And that is not the law,
431
00:20:31.529 --> 00:20:32.362
of the common law.
But need
432
00:20:32.362 --> 00:20:36.510
in Young versus Young is somewhat focused
433
00:20:36.510 --> 00:20:38.970
and arguably narrow.
434
00:20:38.970 --> 00:20:41.820
So, the question on need, Your Honor, in all of our cases,
435
00:20:41.820 --> 00:20:46.170
including Young, is what's the cost today
436
00:20:46.170 --> 00:20:49.470
to meet the shortfall between the wife's current income,
437
00:20:49.470 --> 00:20:53.730
post-divorce, and the marital lifestyle,
438
00:20:53.730 --> 00:20:56.670
maintain that marital lifestyle today.
439
00:20:56.670 --> 00:20:58.860
And that goes to actually the evidentiary question
440
00:20:58.860 --> 00:21:00.810
that's raised in my brother's argument.
441
00:21:02.070 --> 00:21:07.070
Not only is it appropriate to consider the evidence
442
00:21:07.260 --> 00:21:08.160
that the wife submitted
443
00:21:08.160 --> 00:21:10.710
about what her current lifestyle costs,
444
00:21:10.710 --> 00:21:13.050
it could be error to not consider that cost
445
00:21:13.050 --> 00:21:17.010
if the test is what's necessary to maintain
446
00:21:17.010 --> 00:21:20.070
the recipient spouse in the marital lifestyle today?
447
00:21:20.070 --> 00:21:22.230
If I look back to what I was spending four years ago
448
00:21:22.230 --> 00:21:25.053
on gas and groceries, I can't do that today.
449
00:21:26.070 --> 00:21:28.260
There are all sorts of reasons, every case is unique,
450
00:21:28.260 --> 00:21:30.630
but there are lots of justifications in a given case
451
00:21:30.630 --> 00:21:34.052
to look at what's the, at the time of the divorce.
452
00:21:34.052 --> 00:21:35.700
But, you know, one of the problems I have
453
00:21:35.700 --> 00:21:40.700
with the judge's findings is that he doesn't address
454
00:21:41.250 --> 00:21:44.940
the husband's statements as to
455
00:21:44.940 --> 00:21:47.550
what the family of eight spent
456
00:21:47.550 --> 00:21:50.550
for the prior three years before the separation.
457
00:21:50.550 --> 00:21:53.040
Well, I think the judge blows past it
458
00:21:53.040 --> 00:21:54.720
because it's so much out of proportion
459
00:21:54.720 --> 00:21:56.037
with what the parties are doing now.
460
00:21:56.037 --> 00:21:57.690
But how do I know that?
461
00:21:57.690 --> 00:21:58.800
I know that's what you think
462
00:21:58.800 --> 00:22:01.080
and what you state in your brief,
463
00:22:01.080 --> 00:22:04.140
but what's the basis for that?
464
00:22:04.140 --> 00:22:04.973
Well, number one,
465
00:22:04.973 --> 00:22:07.590
it's within the trial judge's discretion.
466
00:22:07.590 --> 00:22:10.440
Number two, it's apparent from his findings.
467
00:22:10.440 --> 00:22:14.610
He doesn't say I'm going to award future costs
468
00:22:14.610 --> 00:22:15.750
regardless of need.
469
00:22:15.750 --> 00:22:20.100
In two separate portions of the findings and rationale,
470
00:22:20.100 --> 00:22:22.800
the judge refers specifically to the cost
471
00:22:22.800 --> 00:22:25.860
to maintain the wife in the marital lifestyle.
472
00:22:25.860 --> 00:22:28.170
So Judge Boyle is very much focused on
473
00:22:28.170 --> 00:22:30.027
the standard that this court has articulated.
474
00:22:30.027 --> 00:22:35.010
So, you think because he focused on the current spend
475
00:22:35.010 --> 00:22:39.770
of the wife, necessarily he disbelieved
476
00:22:41.130 --> 00:22:45.300
the husband's allegations as to their three years prior
477
00:22:45.300 --> 00:22:47.910
to separation spend?
478
00:22:47.910 --> 00:22:48.743
That's correct.
479
00:22:48.743 --> 00:22:51.450
And I think that to hold otherwise would open the door
480
00:22:51.450 --> 00:22:54.780
for a flood of appeals challenging failure to connect
481
00:22:54.780 --> 00:22:56.850
every single dot in the opinion.
482
00:22:56.850 --> 00:22:59.370
No, but this one's an important dot.
483
00:22:59.370 --> 00:23:02.640
There's some balls you can drop but this one is important
484
00:23:02.640 --> 00:23:07.410
to determine the lifestyle, the pre-divorce lifestyle.
485
00:23:07.410 --> 00:23:08.243
Understood.
486
00:23:08.243 --> 00:23:10.740
We know what the judge relied on.
487
00:23:10.740 --> 00:23:15.740
Could he rely on the 2020 financial statement?
488
00:23:17.700 --> 00:23:19.830
I mean that statement's out of date
489
00:23:19.830 --> 00:23:21.483
by the time we get to 2021.
490
00:23:22.680 --> 00:23:23.670
But I think he relied on
491
00:23:23.670 --> 00:23:25.200
the most recent financial statement.
492
00:23:25.200 --> 00:23:27.390
And in fact, you see in the findings
493
00:23:27.390 --> 00:23:29.250
that he went through that with a fine tooth comb.
494
00:23:29.250 --> 00:23:30.990
He looked at what the spending was.
495
00:23:30.990 --> 00:23:32.280
He struck several items,
496
00:23:32.280 --> 00:23:34.440
struck more than several items, I believe.
497
00:23:34.440 --> 00:23:37.260
And then added a few that would be caused as a result of
498
00:23:37.260 --> 00:23:39.540
the order he was entering.
499
00:23:39.540 --> 00:23:42.290
I think this was a careful decision by the trial judge.
500
00:23:43.770 --> 00:23:46.860
I'd like to turn to the question of whether savings
501
00:23:46.860 --> 00:23:48.570
is part of the marital lifestyle.
502
00:23:48.570 --> 00:23:52.020
I would urge the court not to create a carve out
503
00:23:52.020 --> 00:23:54.750
from the marital lifestyle for three reasons.
504
00:23:54.750 --> 00:23:57.300
First, it would create an alimony shelter.
505
00:23:57.300 --> 00:24:00.510
It would allow for manipulation of financial affairs
506
00:24:00.510 --> 00:24:03.780
to shelter, potentially decades of future income,
507
00:24:03.780 --> 00:24:06.360
from the alimony determination.
508
00:24:06.360 --> 00:24:08.880
Second, it would compound the economic injustice
509
00:24:08.880 --> 00:24:10.710
suffered by spouses who have spent years
510
00:24:10.710 --> 00:24:14.070
out of the workforce as full-time caregivers.
511
00:24:14.070 --> 00:24:17.010
And third, it would rest upon what I think
512
00:24:17.010 --> 00:24:20.490
is just an incoherent distinction
513
00:24:20.490 --> 00:24:22.590
between two different types
514
00:24:22.590 --> 00:24:26.550
of financial allocations by the parties.
515
00:24:26.550 --> 00:24:28.530
And let me start with the last one.
516
00:24:28.530 --> 00:24:30.930
As I'm thinking about how you could write the opinion
517
00:24:30.930 --> 00:24:33.270
in this case to find for the husband.
518
00:24:33.270 --> 00:24:38.270
So, there would have to be something different about savings
519
00:24:38.460 --> 00:24:40.350
and I came up with two possibilities,
520
00:24:40.350 --> 00:24:41.670
and I think neither one works.
521
00:24:41.670 --> 00:24:45.210
So, maybe savings are different because they create value
522
00:24:45.210 --> 00:24:48.090
which ultimately gets equitably divided.
523
00:24:48.090 --> 00:24:50.070
That's the case for lots of the things
524
00:24:50.070 --> 00:24:52.770
that this court has already very explicitly referenced
525
00:24:52.770 --> 00:24:55.770
as part of the lifestyle, acquiring vacation homes,
526
00:24:55.770 --> 00:25:00.150
acquiring expensive vehicles, all those things build value
527
00:25:00.150 --> 00:25:01.050
and are divided.
528
00:25:01.050 --> 00:25:04.230
The fact that that happens doesn't remove them
529
00:25:04.230 --> 00:25:06.080
from the lifestyle the parties lived.
530
00:25:07.740 --> 00:25:10.050
So, another possibility would be,
531
00:25:10.050 --> 00:25:13.920
the savings have only an intangible benefit,
532
00:25:13.920 --> 00:25:17.790
not some tangible benefit to the parties.
533
00:25:17.790 --> 00:25:20.040
I think that fails for two reasons.
534
00:25:20.040 --> 00:25:21.990
Number one, savings in fact, I mean, yes,
535
00:25:21.990 --> 00:25:24.600
they create a feeling of security for me,
536
00:25:24.600 --> 00:25:27.720
but that security is against calamities
537
00:25:27.720 --> 00:25:29.280
that might come to pass.
538
00:25:29.280 --> 00:25:32.370
I run out of funds in retirement.
539
00:25:32.370 --> 00:25:35.160
I or a relative, a parent, gets sick
540
00:25:35.160 --> 00:25:36.480
and I need to care for them.
541
00:25:36.480 --> 00:25:38.010
When those calamities come to pass,
542
00:25:38.010 --> 00:25:39.600
even if it's just the washing machine
543
00:25:39.600 --> 00:25:42.120
and another appliance breaking at the same time,
544
00:25:42.120 --> 00:25:44.400
now the benefit's tangible, just as tangible as if
545
00:25:44.400 --> 00:25:48.060
it's a car that's driving during the marriage.
546
00:25:48.060 --> 00:25:50.040
And there are plenty of items
547
00:25:50.040 --> 00:25:52.800
that are traditional consumption spending
548
00:25:52.800 --> 00:25:54.270
that this court's already talked about
549
00:25:54.270 --> 00:25:57.030
as being within the marital lifestyle
550
00:25:57.030 --> 00:25:58.590
that only have intangible benefit.
551
00:25:58.590 --> 00:26:01.500
If I buy precious artwork and display it on my walls,
552
00:26:01.500 --> 00:26:04.830
I don't use it, I don't wear it, I don't engage with it,
553
00:26:04.830 --> 00:26:06.630
I enjoy it, I enjoy that I see it,
554
00:26:06.630 --> 00:26:08.940
I enjoy that others see me having it on my walls.
555
00:26:08.940 --> 00:26:10.860
Those benefits are intangible.
556
00:26:10.860 --> 00:26:14.340
So, tangibility can't be a coherent dividing line.
557
00:26:14.340 --> 00:26:19.340
What about the fact that section 34 specifically includes,
558
00:26:20.430 --> 00:26:24.180
I forget, the inferior ability to accumulate assets
559
00:26:24.180 --> 00:26:26.553
in the future and section 53 does not?
560
00:26:28.080 --> 00:26:30.270
Or whatever the alimony statute is, sorry.
561
00:26:30.270 --> 00:26:31.530
Well, but what it doesn't include
562
00:26:31.530 --> 00:26:33.360
is the marital lifestyle. I don't think-
563
00:26:33.360 --> 00:26:37.650
So, you think the statement in one doesn't preclude
564
00:26:37.650 --> 00:26:40.780
its inclusion in the other because of the marital lifestyle
565
00:26:41.970 --> 00:26:43.320
Yes, for sure.
language?
566
00:26:43.320 --> 00:26:44.153
For sure.
567
00:26:46.800 --> 00:26:47.973
Is charity different?
568
00:26:49.590 --> 00:26:50.580
Thank you for bringing that up.
569
00:26:50.580 --> 00:26:52.200
I forgot to mention it at the start.
570
00:26:52.200 --> 00:26:53.550
Charity's not at all different.
571
00:26:53.550 --> 00:26:56.040
And I'd point out, first of all, charity is not disputed
572
00:26:56.040 --> 00:26:57.270
in this case.
573
00:26:57.270 --> 00:27:00.270
The charitable contributions, the record is clear,
574
00:27:00.270 --> 00:27:01.800
were simply the party's tithing
575
00:27:01.800 --> 00:27:04.110
as part of their religious observation.
576
00:27:04.110 --> 00:27:06.600
No one disputes that it was happening or the amounts
577
00:27:06.600 --> 00:27:08.520
and it's not been raised on appeal.
578
00:27:08.520 --> 00:27:11.670
I don't think it's any different from savings.
579
00:27:11.670 --> 00:27:12.870
I certainly don't think it should be
580
00:27:12.870 --> 00:27:15.090
something that's carved out.
581
00:27:15.090 --> 00:27:18.300
I think that's just not, it's not a good look for a rule
582
00:27:18.300 --> 00:27:19.500
that this court could adopt,
583
00:27:19.500 --> 00:27:22.890
saying that we're gonna value consumption spending
584
00:27:22.890 --> 00:27:24.090
and conspicuous consumption,
585
00:27:24.090 --> 00:27:27.000
but we're not gonna value prudent savings
586
00:27:27.000 --> 00:27:28.410
or contributions to charity.
587
00:27:28.410 --> 00:27:30.570
If those are part of the way that
588
00:27:30.570 --> 00:27:33.030
the parties before the judge lived,
589
00:27:33.030 --> 00:27:34.200
those are fair to include.
590
00:27:34.200 --> 00:27:39.200
Can I ask you about debt and why it was not erroneous
591
00:27:39.330 --> 00:27:44.330
to saddle the husband with essentially 99% of the debt?
592
00:27:44.910 --> 00:27:47.070
Well, because it's well within
593
00:27:47.070 --> 00:27:48.480
the trial judge's discretion
594
00:27:48.480 --> 00:27:50.790
to not make an equal distribution.
595
00:27:50.790 --> 00:27:53.040
And it's clear that there's no mistake,
596
00:27:53.040 --> 00:27:57.930
But his aim was to get close to 55/45.
597
00:27:57.930 --> 00:28:00.540
His aim was approximately 55/45,
598
00:28:00.540 --> 00:28:05.540
but it's not a case like the home equity line of credit case
599
00:28:07.140 --> 00:28:09.180
where there's just a massive mistake.
600
00:28:09.180 --> 00:28:13.080
There's a $90,000 swing in what the trial judge said
601
00:28:13.080 --> 00:28:16.110
was to be a precise 50/50 split.
602
00:28:16.110 --> 00:28:19.350
Here we know exactly what the trial judge was doing.
603
00:28:19.350 --> 00:28:21.240
There were four very specific ways
604
00:28:21.240 --> 00:28:23.460
to implement the 50/50 split.
605
00:28:23.460 --> 00:28:26.340
It surely didn't escape Judge Boyle's notice
606
00:28:26.340 --> 00:28:29.940
that the math didn't come out to exactly 55/45,
607
00:28:29.940 --> 00:28:31.260
the approximately 55/45.
608
00:28:31.260 --> 00:28:33.720
But there's no explanation other than
609
00:28:33.720 --> 00:28:36.090
everybody takes their own debt
610
00:28:36.090 --> 00:28:39.000
in that paragraph in his findings.
611
00:28:39.000 --> 00:28:44.000
And I'm struggling with why husband should take
612
00:28:45.180 --> 00:28:49.983
99% of the debt other than it's in his name
613
00:28:51.870 --> 00:28:55.440
for the family income taxes that he filed.
614
00:28:55.440 --> 00:28:57.360
Sure, one possibility is cashflow
615
00:28:57.360 --> 00:28:58.260
and that would be a reasonable
616
00:28:58.260 --> 00:29:00.870
consideration for the trial judge.
617
00:29:00.870 --> 00:29:04.980
But, I also don't know that it's Judge Boyle's burden
618
00:29:04.980 --> 00:29:09.010
to put that explicit explanation in the findings
619
00:29:10.350 --> 00:29:15.350
whether he said 45/55, 55/45, or 59/41,
620
00:29:16.020 --> 00:29:18.630
all of those are within his discretion.
621
00:29:18.630 --> 00:29:20.760
I think the question on that point, Your Honor,
622
00:29:20.760 --> 00:29:23.520
is whether Judge Boyle made a demonstrable mistake
623
00:29:23.520 --> 00:29:27.960
and whether that mistake was big enough to justify reversal.
624
00:29:27.960 --> 00:29:31.110
There have been cases where, I think one of them was
625
00:29:31.110 --> 00:29:35.970
an attempt at 50/50 and it came out to be 47% to the wife
626
00:29:35.970 --> 00:29:37.380
and that was not reversible error.
627
00:29:37.380 --> 00:29:39.843
Mathematical precision's not required.
628
00:29:41.970 --> 00:29:44.850
What about appellant's argument
629
00:29:44.850 --> 00:29:49.850
that the wife's spending is just so much more now
630
00:29:50.400 --> 00:29:53.220
and that this really isn't about
631
00:29:53.220 --> 00:29:55.500
lifestyle during the marriage,
632
00:29:55.500 --> 00:29:58.350
but it's more about, not his word,
633
00:29:58.350 --> 00:30:01.200
but profligate spending enabled
634
00:30:01.200 --> 00:30:03.330
by an additional thousand dollars.
635
00:30:03.330 --> 00:30:06.090
Yeah, I don't think that Judge Boyle credited
636
00:30:06.090 --> 00:30:08.670
that all of the expenses that husband put together
637
00:30:08.670 --> 00:30:10.530
and claimed were all that they spent
638
00:30:10.530 --> 00:30:13.470
during the marriage was accurate.
639
00:30:13.470 --> 00:30:17.160
I don't think Judge Boyle found that to be the case.
640
00:30:17.160 --> 00:30:19.260
And I do think it's important to point out
641
00:30:19.260 --> 00:30:20.760
that I wasn't trial counsel,
642
00:30:20.760 --> 00:30:22.950
but I know from reading the transcript,
643
00:30:22.950 --> 00:30:27.090
trial counsel did not accept those (indistinct) that came in
644
00:30:27.090 --> 00:30:29.310
and that were put forward in the trial
645
00:30:29.310 --> 00:30:31.680
as proof of exactly what was spent.
646
00:30:31.680 --> 00:30:34.020
The section that my brother's brief refers to,
647
00:30:34.020 --> 00:30:36.720
if you go back and read it, trial counsel's referring
648
00:30:36.720 --> 00:30:38.550
to those dismissively
649
00:30:38.550 --> 00:30:41.040
and is pointing to the cost today
650
00:30:41.040 --> 00:30:43.350
as what Judge Boyle should rely upon.
651
00:30:43.350 --> 00:30:45.630
What the wife's lifestyle, which is similar
652
00:30:45.630 --> 00:30:48.780
to what she lived in before, the house she lived in before,
653
00:30:48.780 --> 00:30:51.600
there's not some change to what the parties are doing.
654
00:30:51.600 --> 00:30:54.603
The cost today is what has to be the standard.
655
00:30:56.610 --> 00:31:01.050
I do also wanna point out what evidence there was
656
00:31:01.050 --> 00:31:04.590
of savings in the record because I think that's important.
657
00:31:04.590 --> 00:31:08.082
The wife is clear, and this is at page 408,
658
00:31:08.082 --> 00:31:09.870
and 414 of the transcript.
659
00:31:09.870 --> 00:31:13.170
She's clear that this was a monthly practice.
660
00:31:13.170 --> 00:31:15.180
This happened each month.
661
00:31:15.180 --> 00:31:16.680
And the husband's testimony,
662
00:31:16.680 --> 00:31:19.200
even if you didn't have to rely solely on the wife's,
663
00:31:19.200 --> 00:31:20.220
the husband's testimony is
664
00:31:20.220 --> 00:31:23.310
that he would look out a month or two or three,
665
00:31:23.310 --> 00:31:24.660
see what expenses were coming
666
00:31:24.660 --> 00:31:28.020
and move funds that were available to investments.
667
00:31:28.020 --> 00:31:31.548
The parties agree there was savings in this case.
668
00:31:31.548 --> 00:31:34.470
What's the support though for the number?
669
00:31:34.470 --> 00:31:37.380
The only support in the evidence is the wife's submission
670
00:31:37.380 --> 00:31:39.420
of financial statements, which came into evidence
671
00:31:39.420 --> 00:31:41.310
of $1,000 a week.
672
00:31:41.310 --> 00:31:44.400
Now, if you look back through the transcript,
673
00:31:44.400 --> 00:31:46.920
husband's trial counsel never cross examinees
674
00:31:46.920 --> 00:31:48.870
about that amount, although he cross examinees
675
00:31:48.870 --> 00:31:50.850
about other aspects of the statement.
676
00:31:50.850 --> 00:31:53.700
And I'd suggest one possibility is the reality that
677
00:31:53.700 --> 00:31:54.930
it was much more than that.
678
00:31:54.930 --> 00:31:57.990
I mean, this is a huge income,
679
00:31:57.990 --> 00:32:00.723
an accumulation of a really significant estate.
680
00:32:01.830 --> 00:32:04.350
My submission is that's probably an under counting
681
00:32:04.350 --> 00:32:07.320
by the wife of what happened during the marriage,
682
00:32:07.320 --> 00:32:08.820
although that's certainly not, I'm not raising
683
00:32:08.820 --> 00:32:10.923
an issue on appeal on that point.
684
00:32:14.340 --> 00:32:16.913
If the court has nothing further, I rest on my brief.