J.D.H. vs. P.A.H.

BROWN, J. J.D.H., the former husband of P.A.H., appeals from a judgment of divorce nisi of the Probate and Family Court that, in pertinent part, divides the parties' property, allocates the "marital debt," and orders the husband to pay alimony to the wife in the amount of $250 per week. We affirm the judgment.

Page 286

1. Background. In February, 2004, the husband filed a complaint for divorce alleging an irretrievable breakdown of the parties' thirty-year marriage. Following the issuance of temporary orders (including an order requiring the husband to pay alimony to the wife in the amount of $100 per week), the husband filed a motion, assented to by the wife, to appoint a guardian ad litem (G.A.L.) for purposes of investigating the mental competency of the wife and her ability to understand the nature and consequences of the divorce proceedings. The motion was allowed by a probate judge and an order was issued appointing a G.A.L. and directing that the G.A.L. be paid from the cash surrender value of a life insurance policy owned by the wife.

Some three months after the appointment of the G.A.L., the husband filed a complaint for contempt alleging that the wife had failed to meet the G.A.L. and that the wife, in fact, had cashed in her life insurance policy without paying the G.A.L. Thereafter, the wife moved to reassess the need for a G.A.L. (citing her lack of ability to pay the G.A.L. and asserting that she had agreed to the appointment on the belief that her life insurance policy had a cash surrender value). On September 7, 2005, the judge terminated the appointment of the G.A.L. [Note 1] On the judge's order, a judgment entered dismissing the husband's complaint for contempt.

On November 28, 2005, the day scheduled for trial of the divorce complaint, the husband filed a "motion in limine to preclude [the wife] from introducing evidence at trial including any documentary evidence and evidence of her psychological condition." [Note 2] The motion was allowed and the case was heard. After the issuance of the judgment of divorce nisi, the husband

Page 287

filed his notice of appeal. Upon the entry of the appeal in this court, and at the suggestion of the husband, we remanded the matter to the Probate and Family Court with directions that the judge make detailed findings of fact and explicate the reasons for his decision. The judge has now filed his findings, which we summarize below.

The parties were married in September, 1974, and last lived together in January, 2004. Two children were born of the union, both of whom were adults at the time of trial.

The husband is fifty-four years old and is in good health. For the past twenty-eight years, he has owned and operated a bakery sales company (valued at $75,000) in which he picks up and delivers bakery products and makes a profit on the markup. The husband earns $885 per week in salary and an average of $200 per week from overtime and commissions. The husband has been carrying the costs of two households (i.e., the former marital home and the apartment in which he resides) and lists his weekly expenses at $1,010.63 per week.

The wife is fifty years old and, the judge found, has had ongoing "mental health issues." [Note 3] During the early years of the marriage, the wife cared for the parties' children. She later sold real estate and worked as a teller and in customer service for banks and credit unions. During the last four years of the marriage,

Page 288

the wife worked as a procurement technician with the United States Department of Defense, earning $34,917 annually. She left that job in July, 2004, because she felt "unsafe and uncomfortable" at her workplace. [Note 4] By reason of the wife leaving her employment, the parties lost their health insurance (which had been provided through the wife) and the wife subsequently incurred $38,000 in uninsured medical expenses as a result of her treatment at McLean Hospital (see note 3, supra). The wife's attempts to revive her real estate career [Note 5] and to obtain other employment since leaving the Department of Defense have been unsuccessful. At the time of trial, the wife's only source of income was the $100 she received each week from the husband as temporary alimony.

The primary asset owned by the parties is the former marital home, which has an equity value of $370,697. The parties enjoyed a modest middle class lifestyle during the marriage. The judge concluded that the wife's over-all employment prospects are poor and that her "mental health issues will continue to impede her ability to find and maintain consistent work, so as to allow her to meaningfully produce income sufficient for her needs for the foreseeable future." The judge found that the wife requires support from the husband to maintain even a modest standard of living. Moreover, the judge found that upon the sale of the former marital home (which was on the market at the time of trial), the husband's weekly expenses should diminish substantially and that he has the ability to pay support to the wife. The judge also concluded that the unpaid medical expenses (in the amount of $38,000) incurred by the wife since the parties' separation, were properly marital debts.

The judgment of divorce nisi, entered December 12, 2005, ordered in pertinent part that the husband receive full ownership of his business, that the wife receive fifty-eight percent and the husband forty-two percent of the net proceeds from the sale of the former marital home, [Note 6] and that the husband pay the wife as

Page 289

alimony the sum of $250 per week (which sum was to be taxable to the wife and deductible by the husband). The judgment stated that the judge had considered all of the factors specified in G. L. c. 208, § 34, including the parties' health.

2. Discussion. a. The alimony award. A primary thrust of the husband's argument is that the alimony award must be set aside as it is based on the judge's improper judicial notice of facts concerning the wife's mental health that were contained in his pretrial memorandum (see note 1, supra). The husband's argument is essentially two-pronged. First, he asserts that "[d]espite allowing a [m]otion in [l]imine regarding the exclusion of all evidence of wife's mental health history for purposes of determining alimony, the [judge] in fact considered, gave weight to, and ultimately determined alimony based upon the excluded evidence" (emphasis supplied). In the husband's view, the judge, in essence, allowed the wife to circumvent the order requiring a mental health investigation and violated its own "curative" order. [Note 7] Second, the husband appears to assert that the facts concerning the wife's mental health issues were not a proper subject for judicial notice, which requires that the facts be so commonly known in the community as to be indisputable among reasonable persons or, if not generally known, that they are capable of immediate and accurate verification by resort to easily accessible and authoritative sources. See Bostwick v. Hurstel, 364 Mass. 282 , 293 n. 3 (1973); Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203 , 208 (1988); Commonwealth v. Barrett, 1 Mass. App. Ct. 332 , 334-335 (1973). See also Brodin & Avery, Massachusetts Evidence § 2.8 (8th ed. 2007); Young, Pollets, & Poreda, Evidence § 201.1 (2d ed. 1998). The husband also asserts that the judge violated the husband's due process rights by failing to provide him with

Page 290

notice of the judge's intention to take judicial notice of facts or the opportunity to be heard and to dispute the matter. See Brodin & Avery, supra at § 2.9; Young, Pollets, & Poreda, supra at §§ 201.15-201.16.

As to the former issue, we do not interpret (nor did the judge) the order allowing the motion in limine to exclude all evidence of the wife's mental health history at trial. Rather, from all that appears in the limited record before us (see note 2, supra), the motion, which was crafted by the husband, sought only to preclude the wife from introducing such evidence. The judge was careful to note in his findings that he received evidence in the form of the husband's testimony regarding the wife's mental health difficulties. Similarly, the judge's "judicial notice" of certain facts asserted in the pretrial memorandum was directed only toward assertions made by the husband.

As to the latter issue, we think it is evident that the judge, although using the language "judicial notice," did not take notice of the facts stated in the pretrial memorandum in the sense that they were commonly known in the community or were capable of being immediately and accurately verified. Rather, it appears that the judge was invoking the concept of "admissions," see Brodin & Avery, supra at § 2.3.2, a subject which the husband has failed to address in his brief and supplemental memorandum. [Note 8] See Mitchell v. Walton Lunch Co., 305 Mass. 76 , 80-81 (1940). See also Mass.R.Dom.Rel.P. 16; Slade v. Slade, 43 Mass. App. Ct. 376 , 377-380 (1997) (decided prior to the adoption of Mass.R.Dom.Rel.P. 16). In the circumstances, and on the limited arguments raised, we would be warranted in affirming the alimony award.

Even were we to assume, however, that the judge should not have considered the "facts" asserted by the husband in his pretrial memorandum, [Note 9] there was ample evidence before the judge at trial, including evidence of the wife's bizarre and erratic

Page 291

behavior and her recent treatment at McLean Hospital, [Note 10] to support the judge's findings that the wife, who is fifty years of age, has mental health issues that (the judge reasonably could conclude) will impede her ability to find and maintain consistent work or otherwise create financial burdens for her. [Note 11]

The husband also argues that the alimony award must be set aside because the judge understated the wife's earning capacity. See Heins v. Ledis, 422 Mass. 477 , 485 (1996) ("A judge is not limited to a party's actual earnings but may . . . consider potential earning capacity"); Kelley v. Kelley, 64 Mass. App. Ct. 733 , 741 (2005). Specifically, he asserts that the judge "indicated" that the wife would be able to earn $25,000 per year in real estate sales when the wife herself testified that she

Page 292

had earned $35,000 to $40,000 per year in real estate in the past and that she could earn $75,000 to $80,000 in the future.

The wife testified that she did not remember how much she earned in her earlier years in real estate but that it was "[m]aybe 35 to 40." Although the wife testified that in a good market she could probably earn "75 or 80," she stated that in the present market she would be "lucky" to earn $25,000. The judge, who found that the wife's "desired vocation suffers from poor economic conditions and inconsistent and unreliable pay," did not err in stating that the "[w]ife believes and testified that, at best, she might be able to earn $25,000 a year selling real estate."

b. The marital debt/medical bills. The husband argues that the judge's "inclusion of [the] wife's uninsured medical bills into marital debt" constitutes reversible error as the wife "solely accumulated the debt and should be solely responsible for it." Such a result, in the husband's view, is particularly appropriate in the present case as the wife, who was responsible for maintaining health insurance, lost her insurance when she left her job and failed to seek alternative forms of health insurance. Cf. Duckett v. Duckett, 27 Mass. App. Ct. 1164 , 1165 (1989) ("judge could reasonably decide to leave each marital party to his or her debts in view of the finding that the husband had been profligate in incurring personal and business debts"). See Kindregan & Inker, Family Law and Practice § 40:16 (3d ed. 2003).

In determining that the wife's medical expense debt was marital debt (that was to be subtracted from the proceeds from the sale of the marital home prior to the division between the parties of the net proceeds from the sale), the judge acknowledged that the medical debt was incurred because the wife left her job with the Department of Defense and allowed the parties' medical insurance to lapse. The judge found, however, that the wife did not leave her job purposefully to harm the marital estate (see note 4, supra), and he further found that both parties' "inability or unwillingness to communicate about the wife's health coverage issue contributed to the creation of these debts." There is nothing in the record before us that would cause us to conclude that the judge erred in his treatment of the debt.

Judgment affirmed.