J.D.H. v. P.A.H.
J.D.H. v. P.A.H.
Opinion of the Court
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.
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.
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.”
The parties were married in September, 1974, and last lived together in January, 2004. Two children were bom 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.”
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,
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 [mjotion in [fjimine 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.
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.
Even were we to assume, however, that the judge should not have considered the “facts” asserted by the husband in his pretrial memorandum,
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
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 “[wjife 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.
The husband represents in his supplemental memorandum, without reference or citation to the record, that the judge indicated on September 7 that the appropriate remedy for the wife’s failure to participate in the G.A.L.’s evaluation was a motion in limine to preclude the admission of evidence of the wife’s mental health. A pretrial conference also took place on September 7 and, in accordance with the judge’s pretrial notice, the husband submitted a memorandum (dated September 6, 2005) which we shall discuss more fully, infra.
The husband has included in the record appendix only the first page of the motion. Among the various reasons cited by the husband in requesting allowance of the motion was the wife’s failure to meet with the G.A.L. and the husband’s belief that the wife would attempt to introduce evidence at trial that had never been provided to his counsel.
After the parties separated in January, 2004, the wife left the marital home and rented an apartment. The judge found that upon the wife’s return to the marital home in July, 2004 (because she could not afford the apartment), the wife initially left her furniture in the yard and slept in her car in the driveway. Continuing, the judge found, based on the husband’s testimony, that when the husband vacated the home and the wife moved back in, the wife removed a newly installed ceiling panel and all of the light bulbs in the basement. The judge also “judicially notice[d]” facts asserted in the husband’s pretrial memorandum, to wit, the husband’s assertion that the “[w]ife removed the electrical wiring from the home because she was suffering paranoid delusions; [the w]ife thought that the home was wired by the [Federal Bureau of Investigation]; and, [the wife] attempted to disable the main electrical panel of the home with a crowbar which could have resulted in her electrocution.” (The judge noted, with respect to the ceiling and wiring, that there was no rational explanation for the wife’s conduct “other than it is indicative of [the w]ife’s ongoing mental health issues.”) The judge also took notice of the husband’s statements in his pretrial memorandum (see note 1, supra) that the wife is self-destructive and is, at times, a danger to herself. The judge stated that the wife received mental health treatment on an inpatient basis at McLean Hospital in February, 2005, some nine months before the divorce trial.
The judge found that the wife testified credibly as to why she left her employment. The judge stated expressly that “[n]o finding is made as to whether or not [the wife’s] feelings were rationally based.”.
The judge found that the “[w]ife believes and testified that, at best, she might be able to earn $25,000 a year selling real estate.”
The judge indicated that the “net proceeds” from the sale of the marital
The husband states that a mental health investigation would have resulted in his ability “to admit and/or challenge the findings and the determination of [the wjife’s ability to work, her voluntary failure to take medication, and need for alimony.” As we have indicated, the appointment of the guardian ad litem was terminated on September 7, 2005.
It is interesting to note that the husband, while challenging the judge’s reliance on the statements in the husband’s pretrial memorandum, asserts in his brief that the “[w]ife was hospitalized and sent for inpatient mental health evaluation at an expense of $38,000 after trying to disassemble the main electrical panel in the home without any electrical experience, on the hunch that she was being spied upon.”
The statements in issue in the husband’s pretrial memorandum are listed
At oral argument the husband’s counsel appeared to suggest that no evidence was adduced at trial concerning the wife’s hospitalization at McLean Hospital. (The husband does not contest that McLean Hospital is a mental health facility. See, e.g., Doe v. Doe, 377 Mass. 272, 274 [1979]; Leavitt v. McLean Hosp. Corp., 28 Mass. App. Ct. 598, 598 [1990]; Ketterle v. Ketterle, 61 Mass. App. Ct. 758, 759-760 [2004].) Rather, he stated that the judge improperly considered comments concerning the wife’s hospitalization made by the parties during colloquies with the judge immediately preceding trial. This argument ignores counsel’s own questioning of the husband at trial which, from all that appears, called the husband’s (and the judge’s) attention to the wife’s statements during the pretrial colloquies concerning the medical bills she incurred at McLean Hospital. The wife also testified, without objection, to the substantial bill she received from McLean Hospital and her treatment there.
As evidence bearing on the wife’s mental health was put before the judge, there is nothing which would have precluded the husband from seeking to offer evidence as to the wife’s ability to work when she was on medication.
Though we fail to discern error in this case, we are obliged to stress that where a judge, as here, presides at various stages of a proceeding (see note 9, supra), including the trial, see Matter of Curry, 450 Mass. 503, 525 n.30 (2008), he or she must take particular care to ensure that his or her decision is based on evidence properly before him or her and that neither party is unfairly surprised by the actions taken. Cf. White v. Peabody Constr. Co., 386 Mass. 121, 127 (1982).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.