NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The wife appeals from a judgment of divorce nisi, arguing essentially that the financial division is inequitable. We conclude that the judge acted within her discretion in dividing the assets evenly and awarding the wife alimony of $875 per week until the husband retires from teaching. However, we also conclude that the record does not contain sufficient information about the value of the husband's teaching pension to support the financial award for the period after the husband retires from teaching. We therefore affirm in part but remand for further proceedings on the question of postretirement support for the wife.

Background. The parties had a long-term marriage that lasted forty-seven years. Their partnership was traditional: while the husband was the primary wage earner (working first as an engineer and then as a high school physics teacher [Note 1]), the wife maintained the home and raised the couple's five children. Through this partnership, the parties achieved a middle class lifestyle and accumulated meaningful assets. At the time of trial, the husband and wife were both sixty-eight years old. The husband's health was generally good, but the wife had multiple health issues, including cataracts, asthma, diabetes, arthritis, and hypertension. Given the parties' age, the judge found that they had limited opportunities to acquire future assets and income, and also found that the wife was "not employable and is dependent on her Husband for support." [Note 2]

The primary issues at trial were property division and alimony. With regard to property division, the judge concluded that "anything other than an equal division of the marital estate" would be inappropriate. [Note 3] She therefore divided the parties' nonpension assets approximately evenly. [Note 4] With regard to alimony, the judge awarded the wife $875 per week until, among other events, the husband retires from teaching. The husband has two pensions - one from his engineering job (with an annual defined benefit of $52,457) and one from his teaching job (with an unknown benefit). The parties agreed to treat the engineering pension as a stream of income and not a divisible asset. [Note 5] The judge ordered the husband to maintain the wife as the sole beneficiary of the engineering pension upon his death, and she ordered an equal division of the teaching pension. [Note 6]

Discussion. While equitable division of property continues to be governed by G.L. c. 208, 34, we note that the Alimony Reform Act (Act) took effect shortly before this case was tried. In making an award of alimony, a judge must now operate within the Act's framework. See G.L. c. 208, 34, as amended by St.2011, c. 124, 1-2; G.L. c. 208, 48-55, inserted by St.2011, c. 124, 3. Similar to prior law, the Act defines alimony as "the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time." [Note 7] G.L. c. 208, 48. Cf. Gottsegen v. Gottsegen, 397 Mass. 617 , 623-624 (1986) (prior statutory authority to award alimony was "grounded in the recipient spouse's need for support and the supporting spouse's ability to pay"). The Act directs judges to consider a nonexclusive list of factors to determine the form, amount, and duration of alimony, see G.L. c. 208, 53( a ), [Note 8] and sets presumptive limits on duration and amount. [Note 9] With regard to general term alimony, the Act permits judges to deviate from the presumptive limits on duration, and to deviate where necessary from the presumptive limits on amount. See, e.g., G.L. c. 208, 49( b ), 49( f )(1), and 53( e ). The recent amendments also recognize the interrelationship between alimony and property division, see D.L. v. .L., 61 Mass. App. Ct. 488 , 508 (2004), by expressly incorporating "the amount and duration of alimony, if any, awarded" into the list of factors judges must consider when dividing property. See G.L. c. 208, 34, third sentence.

Here, the wife challenges the overall financial division, arguing that both the allocation of assets and the alimony award are insufficient. Because the Act does not depart from the long-standing principle that alimony and property division "are interrelated remedies that cannot be viewed apart," D.L. v. G.L., 61 Mass.App.Ct. at 508, on review we assess the fairness of the "financial arrangement as a whole." Grubert v. Grubert, 20 Mass. App. Ct. 811 , 822 (1985). The parties, in their briefs, have argued first (and implicitly request that we review first), the division of assets. We turn to that question.

In allocating the parties' assets, the judge made findings of fact corresponding to each of the required statutory factors, see G.L. c. 208, 34, and she essentially divided the assets down the middle. The wife argues that she should have received more than fifty percent of the marital assets, but it was within the judge's discretion to divide the assets evenly, especially where the judgment includes other provisions to support the wife. Unlike the situation in Grubert, where the wife's only source of support after the husband's death would be proceeds from selling her home, here the judge not only awarded alimony, but she also split the teaching pension and required the husband to maintain the wife as the beneficiary of his engineering pension. Cf. Grubert, 20 Mass.App.Ct. at 818-819. The wife also argues that the judge erred by awarding her only $73,679 on a pre-tax basis from the husband's Fidelity IRA, but we think it is clear (and the husband agrees) that $73,679 represents an after-tax amount. [Note 10]

With regard to alimony, the judge awarded the wife $875 per week in general term alimony until, among other events, the husband retires from teaching. By subtracting discretionary home maintenance costs of $472 per week from the wife's reported expenses, the judge found that the wife's fixed weekly expenses are $705.93, and we cannot say that that finding was "clearly erroneous ." See Sampson v. Sampson, 62 Mass. App. Ct. 366 , 370 (2004). When the alimony is combined with the wife's Social Security payments, her weekly income stream is nearly $1,100, which, as the judge explained, "more than meets the fixed needs of Wife" and allows for some discretionary spending and anticipated home improvements.

Furthermore, to the extent that G.L. c. 208, 49( f ) (creating a presumption that alimony shall terminate when the payor reaches full retirement age [as the husband has] ) has application in this case, [Note 11] the judge here implicitly found that there was good cause to deviate from that presumption, see G.L. c. 208, 49( f )(1), and her factual findings show that she considered the relevant statutory grounds for deviation, including the wife's age, poor health, and lack of employment opportunity. [Note 12] See G.L. c. 208, 53( e ). We conclude that the judge acted well within her discretion in awarding alimony to the wife even though the husband had already reached full retirement age, and we see no error in the amount of alimony awarded for the period until the husband's retirement.

While it is apparent to us why the judge found it necessary to award weekly alimony of $875, it is not apparent why alimony should cease when the husband retires from teaching. See Adams v. Adams, 459 Mass. 361 , 371 (2011) (judge's conclusions must be apparent in findings and rulings). It seems that the judge terminated alimony upon the husband's retirement from teaching with the expectation that his teaching pension would then effectively replace the alimony amount. However, without any evidence of the value of the teaching pension benefit, it was error to assume that it will be an adequate substitute for weekly alimony of $875. While we affirm all other aspects of the judgment, we remand the matter so the judge can take evidence to determine the anticipated value of the teaching pension benefit and assess whether an equal division of that pension (as currently ordered) will adequately replace alimony, and whether alimony should continue and, if so, in what amount. [Note 13]

Conclusion. The judgment dated April 25, 2012, is vacated to the extent that it terminates alimony after the husband's retirement from teaching, and the matter is remanded solely for the purpose of determining the value of the husband's teaching pension, as herein discussed, and what amount of alimony (if any) the wife should receive after the husband's retirement from teaching. The judgment is otherwise affirmed. [Note 14]

So ordered.

Asset Value To Wife To Husband
Marital Home $259,000 $259,000 $0
Husband's Fidelity IRA $413,540 $73,679 $339,861
Wife's Fidelity IRA $3,894 $3,894 $0
Husband's Merrimack IRA $24,012 $0 $24,012
Wife's Merrimack IRA $31,833 $31,833 $0
Husband's Credit Union Account $38,505 $0 $38,505
Wife's Credit Union Accounts $36,613 $36,613 $0
Husband's Communications Stocks $13,291 $0 $13,291
Husband's DSPP Common Stock $10,552 $0 $10,552
Husband's vehicle $2,400 $0 $2,400
Wife's vehicle $13,000 $13,000 $0
TOTAL   $418,019 $428,621


FOOTNOTES

[Note 1] The husband was still teaching at the time of trial, even though he was past full retirement age, see 42 U.S.C. 416(l)(1)(C), and earning $1,367.59 per week. He was also receiving $519.46 per week in Social Security income and $1,008.78 per week from his engineering pension.

[Note 2] The wife's only independent source of income is a weekly Social Security payment of $194.84.

[Note 3] Whereas the husband had proposed an equal division of marital assets, the wife sought sixty-five percent of the assets based on the husband's allegedly poor behavior during the marriage. The judge rejected the wife's request for a disproportionate allocation of assets, explaining that "[e]ach party exhibited certain conduct during ... the marriage which contributed to [its] eventual breakdown."

[Note 4] Assets were divided as follows:

[Note 5] Typically, pensions are treated as assets subject to equitable division. See Casey v. Casey, 79 Mass. App. Ct. 623 , 629-630 (2011).

[Note 6] The judge made no findings about the value of the teaching pension, and both parties acknowledged at oral argument that the record is silent on that point.

[Note 7] The Act also defines four different forms of alimony. See G.L. c. 208, 48 (defining general term alimony, rehabilitative alimony, reimbursement alimony, and transitional alimony). Here, the husband acknowledged that general term alimony was appropriate because of the length of the marriage and disparity of income.

[Note 8] The new alimony factors in G.L. c. 208, 53( a ), largely overlap with the property division factors in G.L. c. 208, 34.

[Note 9] See, e.g., G.L. c. 208, 49( b ) (setting presumptive limits on duration of general term alimony based on length of marriage); G.L. c. 208, 53( b ) (providing that alimony generally should not exceed recipient's need or thirty to thirty-five percent of difference between parties' gross incomes).

[Note 10] The wife also argues that provisions in the judgment relating to life insurance, medical coverage, personal property, and preparation of the qualified domestic relations order were error, but we cannot say that those provisions create a "plainly wrong and excessive" financial division. Heins v. Ledis, 422 Mass. 477 , 481 (1996).

[Note 11] The judge found, and the record supports, that the husband agreed and acknowledged that he has an obligation to pay alimony as long as he remains in his current position.

[Note 12] Although the judge did not enter written findings of her reasons for deviating - as required by G.L. c. 208, 49( f )(1) and 53( e ) - the parties have waived any argument that this was error. See Correia v. Correia, 70 Mass. App. Ct. 811 , 816 (2007) (issues not raised below are generally deemed waived on appeal).

[Note 13] In addition to challenging the financial division, the wife also argues that the judge should have awarded her attorney's fees because the husband has a greater ability to pay. "A judge has considerable discretion in determining the necessity and the amount of attorney's fees." Moriarty v. Stone, 41 Mass. App. Ct. 151 , 159 (1996). We discern no abuse of discretion here. Cf. Drapek v.. Drapek, 399 Mass. 240 , 248 (1987) (judge acted within discretion in declining to award wife attorney's fees).

[Note 14] The husband's request for appellate attorney's fees and costs is denied.