Jeanette A. McCarthy v. Arthur J. McCarthy, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-425

JEANETTE A. MCCARTHY

vs.

ARTHUR J. MCCARTHY, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jeanette A. McCarthy (wife), appeals from a

supplemental judgment of divorce nisi dated July 27, 2023

(supplemental judgment), entered by a judge of the Probate and

Family Court pursuant to an order of remand from a panel of this

court.1 She contends that the judge erred in the amount and

structure of the alimony award and dividing certain assets. We

vacate so much of the supplemental judgment as pertains to

alimony and remand the case for further proceedings consistent

with this memorandum and order. The supplemental judgment is

otherwise affirmed.

1 McCarthy v. McCarthy, 98 Mass. App. Ct. 1116 (2020).
Background. The parties were married on September 21,

1984. The defendant, Arthur J. McCarthy, Jr. (husband), worked

full-time throughout the marriage, first as a certified public

accountant and then as an executive for a financial staffing

company. His compensation included a base salary and quarterly

bonuses, in addition to employee stock programs (discussed

further below). The wife was employed full-time as a bookkeeper

until 1996, when the parties agreed that she would stop working

to raise their two children.2 Beginning in 2004, and continuing

through the time of trial, the wife worked part-time in

accounting and finance. The parties enjoyed a middle class

station in life throughout most of the marriage, and an upper

middle class station in the latter years of the marriage.

As relevant here, the judgment of divorce nisi that entered

in 2018 (2018 judgment) awarded the wife $740 per week in base

alimony and a decreasing percentage of the husband's quarterly

bonuses, capped at $300,000, in additional alimony. With the

exception of the assets at issue in this appeal, the marital

estate, valued at approximately $2.78 million, was equally

divided. The judge also divided the husband's shares from an

Employee Stock Ownership Plan (ESOP) and a Stock Appreciation

2 Both children were emancipated at the time of trial.

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Rights Plan (SARS) on an if, as and when basis.3 The 2018

judgment provided that the wife would receive a decreasing

percentage of the vested ESOP shares over time and twenty

percent of the SARS shares when they vested in 2020.

On the wife's appeal from the 2018 judgment, a panel of

this court vacated the alimony award and the division of the

ESOP and SARS shares and remanded the case for further findings

and rulings. See McCarthy v. McCarthy, 98 Mass. App. Ct. 1116

(2020). Thereafter, on July 27, 2023, the judge issued the

supplemental judgment and amended findings of fact and rationale

in support of the judgment. This appeal followed.

Discussion. 1. Division of marital estate. The wife

contends that the judge erred and abused her discretion in

dividing the ESOP and SARS shares. "We review the judge's

findings to determine whether she considered all the relevant

factors under G. L. c. 208, § 34, and whether she relied on any

irrelevant factors." Zaleski v. Zaleski, 469 Mass. 230, 245

(2014). We then "determine whether the reasons for the judge's

conclusions are 'apparent in [her] findings and rulings.'"

Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Redding v.

Redding, 398 Mass. 102, 108 (1986). "We will not reverse a

judgment with respect to property division unless it is plainly

3 The ESOP was only partially vested and the SARS was not
vested at the time of trial.

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wrong and excessive" (quotation and citation omitted). Zaleski,

supra. See Rice v. Rice, 372 Mass. 398, 401 (1977) (judge has

broad discretion to equitably divide marital property).

Here, the judge considered the relevant statutory factors

and did not abuse her discretion in dividing the ESOP and SARS

shares. The unvested shares were properly subject to division,

and neither party contends otherwise. See Baccanti v. Morton,

434 Mass. 787, 794-795 (2001); Canisius v. Morgenstern, 87 Mass.

App. Ct. 759, 764-765 (2015), and cases cited. The manner in

which the judge divided these shares was not erroneous where

they had not vested at the time of trial, and the husband's

continued postdivorce efforts were a factor in the shares'

future value. See Baccanti, supra at 796; Hanify v. Hanify, 403

Mass. 184, 188 (1988) ("where present valuation . . . is

uncertain or impractical, the better practice is to order that

any future recovery or payment be divided, if and when received,

according to a formula fixed in the property assignment").

We are not persuaded by the wife's contention that the

judge abused her discretion by unequally dividing the ESOP and

SARS shares. "The trial judge has discretion under G. L.

c. 208, § 34, to decide whether an asset should be included in

the marital estate based on the parties' joint efforts in

acquiring that asset." Baccanti, 434 Mass. at 799. "[T]he fact

that only one party may exert efforts after dissolution of the

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marriage to obtain the asset should be taken into account when

dividing property in a divorce proceeding." Id.

Here, the judge explained that "the bulk of [the husband's]

interests in the SARS and ESOP [accounts] . . . are presently

unvested and could be considered a portion of [the husband's]

compensation in the future." She considered the parties'

"relatively equal contributions" to the marital partnership "up

until the last few years of the marriage." She found that the

ultimate value of the shares "is contingent on a number of

factors, including but not limited to [the husband's] continued

employment . . . and the continued prosperity of the company."

The judge also recognized that the husband's "expertise in the

field and employment value arose during this long-term

marriage," and thus found the wife entitled to a portion of the

ESOP and SARS shares because her contributions to the marital

partnership enabled the husband to acquire those assets. There

was no error. See Williams v. Massa, 431 Mass. 619, 626 (2000)

("the ultimate goal of G. L. c. 208, § 34," is "an equitable,

rather than an equal, division of property"); Brower v. Brower,

61 Mass. App. Ct. 216, 222 n.14 (2004) ("The ultimate

consideration is fairness").4

4 The judge wrote that she applied the "spirit" of the
Baccanti "time rule" in dividing these assets. While we do not
know what "spirit" means in this context, we need not resolve

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2. Alimony. The wife challenges both the amount and

structure of the alimony award. "The purpose of alimony is to

provide adequate support for a spouse who needs it." Williams,

431 Mass. at 634. The purpose of general term alimony is to

support one spouse who has become "economically dependent" on

the other. G. L. c. 208, § 48. See Connor v. Benedict, 481

Mass. 567, 572 (2019). The judge must consider the factors set

forth in G. L. c. 208, § 53 (a), see Young v. Young, 478 Mass.

1, 5 (2017), and the recipient spouse's "need for support and

maintenance in relationship to the respective financial

circumstances of the parties" (citation omitted). Grubert v.

Grubert, 20 Mass. App. Ct. 811, 819 (1985). See Young, supra at

5-6. "[T]he reason for [the judge's] conclusion [should be]

apparent in her findings." Zaleski, 469 Mass. at 236. We will

not disturb the judgment unless it is "plainly wrong and

excessive." Id. See Heins v. Ledis, 422 Mass. 477, 481 (1996).

a. Amount of alimony. As a preliminary matter, the wife

challenges the judge's finding that some of the wife's expenses

were not credible, and her conclusion that the wife's actual

expenses are $2,283 per week. This is essentially a challenge

that question as Baccanti, 434 Mass. at 801, anticipated the use
of a numerator and denominator not present here.

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to the weight of the evidence.5 This determination was "squarely

within the judge's broad discretion," and we will not disturb

it. Openshaw v. Openshaw, 493 Mass. 599, 611 (2024).

Here, the judge's reasons for the amount and structure of

the alimony award are not consistent with her findings.

Specifically, the judge did not adequately explain how she

considered the husband's earnings in the latter years of the

marriage. While the judge considered his 2015 income, she

excluded in its entirety the husband's 2016 and 2017 income from

the marital lifestyle. While the 2016 income was considerably

higher than prior years, the judge had many options, including

adjusting the gross income to reflect historical increases.

Instead, she simply excluded it without articulating a

permissible basis for doing so.6 The case must therefore be

remanded. See Zaleski, 469 Mass. at 243 ("The language of the

[alimony] act is clear that all of the payor spouse's income

. . . must be included in any calculation of alimony").

Moreover, it is unclear whether the judge recognized that

the base alimony award may not meet the wife's needs as found by

5The wife also contends that the judge failed to consider
the tax consequences of the alimony award. This argument was
not raised below and is therefore waived. See Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006).

6To the extent that the judge considered the lack of
intimacy in the latter part of the marriage as a factor in the
amount and structure of alimony, that was error.

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the judge. See Sampson v. Sampson, 62 Mass. App. Ct. 366, 369-

370 (2004) ("The judge's own findings cast doubt on the wife's

present ability to meet her ordinary needs"). See also G. L.

c. 208, § 48 (definition of alimony includes recipient spouse's

"need" for support); Hassey v. Hassey, 85 Mass. App. Ct. 518,

524-525 (2014) ("central issue" is "dependent spouse's need for

support" [quotation and citation omitted]). To be sure, the

judgment included provisions favorable to the wife, such as not

attributing additional income to her despite finding that she

was underemployed and requiring the husband to make alimony

payments after turning sixty-six years old. These aspects of

the judgment, however, do not assist us in determining why the

judge excluded the husband's income in 2016 and 2017 from the

alimony formulation.

Finally, to the extent that the judge used a fifteen-year

average of the husband's income (and as the issue may arise on

remand), we conclude that it was error to do so. Similarly, the

judge erred in excluding the husband's income in the final years

of the marriage, thereby artificially deflating the parties'

marital lifestyle. See Zaleski, 469 Mass. at 242-243 (required

considerations under G. L. c. 208, § 53 [a], include marital

lifestyle). For all of these reasons, the amount of the alimony

award cannot stand.

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b. Structure of alimony award. The question of how to

structure the alimony award may arise on further remand, so we

briefly address it here. Self-executing alimony orders are

permissible in some circumstances. See Young, 478 Mass. at 9-

11; Hassey, 85 Mass. App. Ct. at 527 n.18. A hybrid alimony

award that includes a base alimony award and a percentage of a

payor's bonuses as additional alimony may be permissible with

findings that support such an award. Here, the record supports

the judge's finding that the husband's bonuses were "associated

with his high level of performance," which would require

significant effort from the husband in the future, to which the

wife will not contribute. Similarly, a judge may issue an

alimony award that includes a cap on the payor's earnings as

reflective of the postdivorce efforts of the payor. See Young,

supra at 8 ("nothing in the language of the statute or our case

law suggests that the recipient spouse is entitled, by way of

alimony, to enjoy a lifestyle beyond what he or she experienced

during the marriage"). On remand, the judge may consider both

the use of a hybrid alimony award and a cap on the husband's

income.

Conclusion. So much of the supplemental judgment of

divorce nisi dated July 27, 2023, as pertains to alimony is

vacated, and the matter is remanded for further proceedings

consistent with this memorandum and order. The judgment is

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otherwise affirmed. During the pendency of the remand, the

husband shall continue to pay the alimony award set forth in the

supplemental judgment as temporary alimony to the wife, unless

otherwise ordered by the judge or agreed to by the parties.7

So ordered.

By the Court (Blake, C.J.,
Meade & Englander, JJ.8),

Clerk

Entered: May 15, 2025.

7 The husband's request for appellate costs and attorneys'
fees is denied.

8 The panelists are listed in order of seniority.

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