April 14, 2015
By Robert Franklin, Esq., Member of the Board of Directors, National Parents Organization
The Supreme Judicial Court of Massachusetts has issued three decisions in alimony cases that substantially alter the apparent intention of the Alimony Reform Act. Steve Hitner, now of the National Parents Organization, was a prime mover behind passage of the Act. The Alimony Reform Act passed the state legislature unanimously.
Prior to the ARA’s passage, Bay State courts routinely ordered permanent alimony that was difficult to modify even if the payer retired or underwent some other change in circumstances. Additional problems arose when the payee’s financial circumstances improved as when she began cohabitating with another partner. That system was an artifact of a time in which fewer women worked for a living, so the law protected their well-being post-divorce. By passing the ARA, the legislature recognized that the circumstances that gave rise to the previous law mostly no longer obtain.
The plain intention of the legislature was to limit alimony payments in duration and to make downward modifications easier and in some cases, mandatory. Despite that plain intent, courts in the state have struggled to apply the new law.
In January, the SJC issued three decisions interpreting the ARA, Doktor vs. Doktor, Rodman vs. Rodman and Chin vs. Merriot. The major bone of contention is whether alimony payers may seek a modification of their orders if those orders were in effect prior to the effective date of the Alimony Reform Act, March 1, 2012. The wording of the law applicable to the Doktor case is this:
[A]ny payor who has reached full retirement age, as defined in section 48 of chapter 208 of the General Laws, or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013."
"[G]eneral term alimony orders shall terminate upon a payor reaching full retirement age."
Joe Doktor had reached full retirement age and so sought to modify his alimony obligation to his ex-wife. According to the plain terms of the new law, he was entitled to request a modification and the court was required to terminate his obligation. But he lost at the trial court and before the SJC. How is that possible given that the legislature’s vote on the bill was unanimous and that Doktor unquestionably fell under the plain wording of the statute?
Here is how attorney Robin Lynch Nardone described the SJC’s ruling:
The SJC... held that the legislature intended the retirement provision to have prospective application only and thus the retirement provisions are not applicable to Joe's request for modification...
the SJC looked to the uncodified provisions of the alimony reform act. Section 4 of the uncodified provisions of the Alimony Reform Act provides that Section 49 of M.G.L. c. 208 "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act."...
Section 4(b) provides the only exception, which is that alimony judgments that exceed the durational limits shall be modified without any additional material change of circumstances. Section 5 of the uncodified law provides the dates when alimony payors may file their modification actions if the durational limits have been exceeded. Section 6 then provides,
"Notwithstanding clauses (1) to (4) of section 5 of this act, any payor who has reached full retirement age, as defined in section 48 of chapter 208 of the General Laws, or who will reach full retirement age on or before March 1, 2015 may file a complaint for modification on or after March 1, 2013."
The SJC ruled that sections 4, 5 and 6 must be read together, not separately. The words "any payor who has reached full retirement age" apply only to a payor who has reached the durational limit and also reached or will reach full retirement age. The determination that sections 4, 5, and 6 of the uncodified sections of the alimony reform act must be read together defeats the rights of any payor who was married longer than 20 years from obtaining a modification based solely upon reaching full retirement age.
In short, the courts of the state have arguably contradicted the plain language of the statute by importing into its effect non-statutory wording. As NPO’s Steve Hitner said of the decision, “’Shall’ no longer means ‘shall’.”
The rulings in Rodman and Chin are much the same as in Doktor, except that the Chin case adds cohabitation to retirement as a cause for modification of pre-existing alimony orders the legislature recognized but the courts don’t.