Casey v. Casey

948 N.E.2d 892, 79 Mass. App. Ct. 623, 2011 Mass. App. LEXIS 842
CourtMassachusetts Appeals Court
DecidedJune 7, 2011
DocketNo. 10-P-643
StatusPublished
Cited by21 cases

This text of 948 N.E.2d 892 (Casey v. Casey) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casey v. Casey, 948 N.E.2d 892, 79 Mass. App. Ct. 623, 2011 Mass. App. LEXIS 842 (Mass. Ct. App. 2011).

Opinion

Hanlon, J.

The primary issue before us is whether, on the facts of this case, the husband’s military retirement pay should have been treated as a marital asset subject to division. The wife appeals from a February, 2009, judgment of divorce, arguing that the judge erred in treating the husband’s military pension as income, and that the judge’s findings of fact related to property division and child support were not supported by the [624]*624evidence. We affirm in part and reverse in part, remanding for further proceedings in the Probate and Family Court.

Facts.1 The judge characterized this as a long-term marriage; the parties were married in Hawaii in August, 1990, and last lived together in Florida in January, 2007. They have one daughter, who was bom in July, 1993. At the time of the trial in 2009, the husband was fifty-one and the wife was forty-five.

The husband enlisted in the United States Air Force Reserve Officers’ Training Corps in 1978 and was commissioned as an officer in 1980. In 2000, after a lengthy career flying fighter aircraft in the United States Air Force, he retired from military service with a rank of lieutenant colonel. He is currently employed full time as a defense contractor. Because of the husband’s career, the family moved four times in ten years, with posts in the United States and Europe, including time in Germany, where the husband served on the staff of the North Atlantic Treaty Organization at Ramstein Air Base. During the summer of 2006, the parties moved from Massachusetts to the marital home in Niceville, Florida.

Throughout the marriage, the parties enjoyed a middle-class lifestyle. The wife has a bachelor’s degree in nursing and has taken some courses toward a master’s degree. During the marriage, she served as the primary caregiver for the daughter and the primary homemaker. Although the husband traveled extensively for work,2 he did contribute to the “maintenance and operation of the household” when he was home and also handled all of the parties’ finances.

The judge found that the parties’ daughter, who was fifteen at the time of the trial, was in good health and had a loving relationship with both parents.3 At the time of the trial, she resided with her mother in Massachusetts, attending high school, but she communicated with her father “via email, telephone and a web camera.”

[625]*625The wife worked full time before the daughter was bom and part time at other points in the marriage, but she did not work while the parties lived abroad in Germany and England. The husband worked full time throughout the marriage and deposited his income in the parties’ joint bank account. The judge found that “both parties made monetary contributions to the family unit throughout the marriage.” The parties did not accme substantial debt during the marriage and had limited liabilities after the divorce.

The parties’ primary asset, other than the husband’s military pension, was the marital home in Niceville, Florida, which they purchased in July, 2006, for $615,000. At the time of the divorce, the husband was living in the home,4 while the wife and daughter were living in a rented two-bedroom townhouse in a Massachusetts suburb. The parties agreed as to the division of the proceeds from the sale of the marital home,5 and the rest of their financial holdings, apart from the husband’s military pension, were divided equally by stipulation.6

At the time of trial, the wife was working twenty-eight hours per week as a nurse coordinator, and her net weekly income, not including the temporary child support order, was $695.07.7 “In light of Wife’s age, the minor child’s age, Wife’s experience, field of expertise and credentials, as well as her current work schedule, . . . [the judge found] that Wife is capable of [626]*626working a 40-hour week as a nurse, and, as such, [found] her potential earning capacity to be” approximately $868 per week.

At the time of the trial, the husband was employed full time as a defense contractor; his net income was $2,496.72 per week, not including the deduction for temporary child support. His net income included $867 per week in military pension and $29 per week in veteran’s disability pay. Although the husband travels extensively for work, and receives large reimbursement checks for lodging, flights, rental cars, and other travel expenses, along with a per diem allowance for food, the judge concluded that those payments should not be considered income.

Trial. After a two-day divorce trial, hearing evidence from the husband, the wife, and a certified public accountant, the judge found the contested issues to be the custody of the minor child, the characterization of the husband’s military pension, alimony, and the sale of the marital home. As noted, the marital home has been sold and the proceeds divided; no appellate issues remain as to the sale. The custody judgment is also unchallenged.8 The most significant issue at trial was treatment of the husband’s military pension, in pay status at the time of the divorce: the wife argued that the pension should be treated as a marital asset, subject to equitable distribution; the husband argued that it was a stream of income. Citing Andrews v. Andrews, 27 Mass. App. Ct. 759, 761 (1989), and the factors under G. L. c. 208, § 34, the judge concluded that it was more appropriate to treat the pension as income. He noted that treating the pension as a source of income entitled the wife to a greater child support award and could be taken into consideration should the wife seek a modification to provide alimony.9

After considering the Massachusetts Child Support Guidelines and the parties’ incomes and expenses, the judge ordered the husband to pay $589 in weekly child support until the child’s [627]*627emancipation. With the child support order, the wife’s net weekly income, as augmented by attributed income, increased to $1,457 and the husband’s net weekly income decreased to $1,907.72.10

Discussion. 1. Military pension. At the heart of the parties’ dispute is the question whether the husband’s military pension should be treated as a stream of income or as a marital asset subject to equitable distribution. The stream of income would provide the wife with an interest subject to modification; the distribution of a marital asset would provide her with a fixed interest. See Andrews v. Andrews, 27 Mass. App. Ct. 759, 761 (1989). The judge treated the pension as a stream of income, and the husband argues that decision is a finding of fact that we must uphold unless clearly erroneous. Whelan v. Whelan, 74 Mass. App. Ct. 614, 619 (2009). “Although we will not substitute our judgment for that of the probate judge, we will ‘scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.’ ” Id. at 620, quoting from Kelley v. Kelley, 64 Mass. App. Ct. 733, 739 (2005).

a. Background. In McCarty v. McCarty, 453 U.S. 210

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Bluebook (online)
948 N.E.2d 892, 79 Mass. App. Ct. 623, 2011 Mass. App. LEXIS 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-casey-massappct-2011.