MCCARTHY v. MCCARTHY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from a judgment of divorce nisi, the wife raises various challenges to the award of alimony and the division of the marital estate.² Because we are unable to ascertain from the judge's written decision the rationale on which she based her decision, we remand the matter to the Probate and Family Court.

Though a Probate and Family Court judge has broad discretion in determining the amount of alimony to be paid by one divorcing spouse to another, and in dividing the marital estate, the exercise of that discretion is bounded by foundational legal principles, including the factors that bear on an appropriate order. The rationale for the award, and the manner in which the judge applied the relevant factors must be apparent in the judge's written decision. See, e.g., Bowring v. Reid, 399 Mass. 265, 267-268 (1987); Redding v. Redding, 398 Mass. 102, 108 (1986). In the present case, the judge failed to provide a clear explanation for her alimony award. Notably, the judge's decision offers no transparent articulation of the judge's assessment of the wife's need for support. Moreover, the rationale or permissible justification for the judge's adoption of a hybrid alimony award, based on a percentage of the husband's future bonus income, within the framework authorized by Young v. Young, 478 Mass. 1, 9-11 (2017), is not explained.³

For similar reasons, we are unable to evaluate the judge's asymmetrical distribution of the husband's retirement accounts. Though it is of course possible that the unequal division is appropriate, it is incumbent on the Probate and Family Court judge to articulate the rationale in her order of division.

Those portions of the judgment of divorce nisi awarding alimony, and dividing the husband's stock appreciation rights and employee stock ownership program accounts, are vacated, and the matter is remanded to the Probate and Family Court for further findings and rulings explaining the rationale on which any such award or division is based.⁴ The judgment is otherwise affirmed.

So ordered.

vacated in part and remanded; affirmed in part

FOOTNOTES

2.   The wife also challenges the denial by the trial judge of her request for an award of her attorney's fees. We discern no abuse of discretion in the judge's order.

3.   We decline the husband's invitation to divine such a rationale from our independent review of the record, coupled with speculation about the judge's unarticulated thought process.

4.   Both parties have requested an award of appellate attorney's fees, and the husband has requested an award of double costs based on his contention that the wife's appeal is frivolous. Our disposition of the appeal makes plain that the wife's appeal is not frivolous. We decline to award appellate attorney's fees to either party.