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Appeals court hears challenge to unequal ESOP and SARs division and 15‑year alimony calculus
Summary
In Jeanette McCarthy v. Arthur McCarthy (24P425) the panel reviewed a trial judge’s asymmetrical division of ESOP and SARs retirement assets and a novel 15‑year averaging approach to set alimony; appellant argued key factual findings were clearly erroneous and that the division produced an inequitable result.
The appeals panel heard argument in Jeanette McCarthy v. Arthur McCarthy, docket 24P425, a divorce and asset-division appeal focusing on the judge’s treatment of employer retirement benefits and the calculation of alimony.
Appellant’s argument
Sandra Lundy, representing the wife, asked the panel to find that the trial judge’s factual finding that "the parties’ marriage had been broken down for several years prior to separation" was not supported by the record and that the court’s resulting asymmetric award for ESOP and SARs accounts amounted to an abuse of discretion. Lundy argued the ESOP in question vests at age 65 and that much of the value at issue would vest only if the husband continued working; she urged the panel to correct what she called an excessively unfavorable allocation to the wife.
Appellee’s response
Catherine Giordano, representing the husband, told the panel the judge complied with statutory requirements and exercised permissible discretion. Counsel said the judge used evidence about when compensation and bonuses were earned and sought to produce an equitable, if not equal, division; the judge also limited unusually high outlier years in the income averaging.
Panel concerns and context
The panel explored whether a 15‑year income average (used to estimate marital lifestyle and need for alimony) is an appropriate baseline in a long marriage where income rose over time and included large bonuses. Justices questioned the record support for certain factual findings and asked counsel to point to precedent endorsing the trial judge’s particular staircase-style allocations and the 15‑year averaging approach.
Outcome
The court took the matter under advisement. Justices signaled they were wary of orders that invite ongoing litigation over document exchanges (for self-executing staged payments) and emphasized that appellate review focuses on whether the trial judge abused discretion or made clearly erroneous findings.
