Pierce v. Pierce SJC-10381 (2009)

In a case followed closely by lawyers, legislators and litigants, the Massachusetts Supreme Judicial Court ruled that there should not be a rebuttable presumption that alimony should automatically terminate when a former spouse reaches a customary age of retirement, but rather, voluntary retirement at a customary age is one important factor that a court should take into account when deciding whether to terminate or reduce alimony at that time.

Previously, Carneice and Rudolph were divorced in 1999 after 32 years of marriage and two children.  At the time, Rudolph was earning in excess of $450,000 as a partner at his law firm. In a separation agreement entered into by the parties, Rudolph agreed to pay Carneice $110,000 per year until his death, her death, or her remarriage.

Atwood & Cherny (Mark T. Smith and David E. Cherny) represented Carneice Pierce in an action brought by Rudolph F. Pierce, seeking to terminate his alimony obligation to Carneice on the basis of his voluntary “retirement” as a partner at his Washington, D.C. law firm.  Rudolph, a former Massachusetts Superior Court Judge and U.S. Magistrate, became “Of Counsel” to his law firm, entitling him to certain ongoing benefits and compensation in the amount of  $250 per hour for any work that he performed, although he had no plans to do so. 

The trial court reduced Rudolph’s alimony obligation to $42,000 per year, rejecting his argument that his obligation should end.  In particular, the judge found, at the time of trial, that Carneice had recently left her job due to her age (she was 64 at the time of trial) and the increased demands of travel and responsibilities without an increase in salary, that Rudolph continued to have an ability to work at the rate of $250 per hour in his “Of Counsel” position at his law firm and that the facts of the matter demonstrated an ongoing need for support on behalf of Carniece.

In upholding the trial court’s decision, the Supreme Judical Court stated that “…[E]ven in the context of a good faith retirement, a judge must reach a fair balance of sacrifice between the parties, based on all the factors set forth in G.L.c.208, sec. 34.  This may mean that overriding or counterbalancing needs of the recipient spouse require the judge to consider the retiring party’s continued earning capacity (assuming the party remains in good health) in deciding the motion for modification, even if the practical consequence of considering continued earning capacity is to delay the support provider’s retirement or to require the provider to find part-time employment.”  The SJC further held, “[t]he multiple factors set forth in G.L. c. 208, § 34, and the obligation of a judge deciding an alimony judgment to consider all the factors, including ‘the opportunity of each [party] for future acquisition of ... income,’ reflect the complexity of the alimony decision, the unique set of circumstances posed by every case, and the need to fashion an alimony judgment that imposes a fair balance of sacrifice in each case. Section 34 does not place any one of its mandatory considerations above any other; constrained by its directives, we have declined to do so on our own.”