Appeals court hears argument in Bernat v. Hetnarski over alimony, retroactivity and use of assets

The Appeals Court heard argument in Bernat v. Hetnarski (No. 24735) on whether the trial court abused its discretion by denying any alimony (retroactive or prospective) after the payor — a former portfolio manager — realized substantial earnings and investment gains following the divorce.

Why it matters: The case explores how courts should treat post-judgment increases in earned income and investment returns when evaluating requests for modification or retroactive relief under Massachusetts alimony law, balancing need, ability to pay and the equitable division of assets.

Attorney Richard Novich, representing the payee Jackie Bernat, told the court that during the four years after the judgment the payor earned roughly $5,510,000 in earned income and more than $3.5 million in passive investment income, figures Novich said the trial court failed to account for when it denied alimony. Novich argued the trial judge made no adequate factual findings explaining why the payee’s need was not met and why retroactive or limited relief should be denied. He cited appellate precedent that courts should not leave a dependent spouse to meet needs solely from assets awarded in equitable distribution and urged reversal and remand for the judge to make specific findings and apply the Alimony Reform Act in detail.

Attorney John Foskett, for Adam Hetnarski, responded that the trial record showed both parties were unemployed at the time of the divorce and that the payee failed to preserve or timely press some arguments below. He also emphasized that the trial judge properly considered assets and found the payee had significant assets post-divorce; Foskett said the judge acted within discretion and that the payee’s post–divorce spending (including real-estate purchases) undercuts the claim for retroactive relief.

The panel questioned counsel about timing, the reason for delay in seeking modification, whether the payee reasonably relied on the husband’s statements, which assets can be considered part of the need analysis, and how appellate precedent (including Dolan, Tetra, and more recent SJC guidance cited by counsel) should guide review of a judge’s exercise of discretion.

Ending: Both parties completed argument and the panel submitted the case. Any appellate remedial order could range from affirming the zero-alimony ruling to remanding for fuller findings addressing retroactivity, need and whether a portion of the payor’s post-judgment earnings should be apportioned as alimony.