Till Attempted Murder Do Us End Alimony

The Massachusetts Appeals Court affirmed a lower court determination that alimony could cease after the wife sought to murder her ex-husband

To effect the gradual division of property under a separation agreement, Mark Schenkman (husband) made monthly payments to his former spouse, Julie Rabinowitz (wife). After the wife tried to kill the husband, payments ceased. The wife filed an action for breach of contract in the Superior Court, and the husband asserted that the wife's attempt to murder him excused his further performance. Following a jury-waived trial, judgment entered for the husband on the contract claim. We affirm.

The parties married in 1997 and divorced in 2013

On August 11, 2015, the wife attacked the husband and the parties' nine year old son with a hatchet outside the husband's dental practice. In the pandemonium of the attack, the wife accused the husband of ruining her "reunification plans" that were "in the works" for the children. The husband ceased making payments. A grand jury returned five indictments against the wife. On December 16, 2015, the wife pleaded guilty to armed assault with intent to murder, one count of assault and battery by means of a dangerous weapon, one count of assault and battery, and two counts of assault by means of a dangerous weapon. A Superior Court judge sentenced her to two and one-half years in the house of correction, one year to serve, the balance suspended for ten years of probation. The husband did not make any payments to the wife after the attack.

Good faith

First, we are unaware of any flood of litigation since the Supreme Judicial Court expressly began applying the covenant of good faith and fair dealing to separation agreements almost a quarter century ago. See, e.g., Nile, 432 Mass. at 398. Second, the unique and admitted homicidal conduct in the present case allowed, but did not compel, the fact finder to conclude that such extreme conduct was sufficiently connected to specific terms of the separation agreement so as to excuse performance. Third, we need not "speculate" on the potential future applications of the covenant of good faith and fair dealing because, "on the facts before us, a finding is warranted that a breach of the contract occurred" justifying the husband's nonperformance.

The court

We have intentionally confined this decision to the narrow review of the judgment rendered by the Superior Court trial judge. We do not reach potential issues that have not been raised with respect to past or possible future proceedings in the Probate and Family Court. After reviewing the record, we discern no "clearly erroneous" factual finding of the trial judge. T.W. Nickerson, Inc., 456 Mass. at 569. We have also scrutinized, de novo, the trial judge's application of the law to the facts and perceive no error.

The Daily Mail recounted the charges relating to the attack

An oral surgeon from Massachusetts was preparing to take his 11-year-old son to his therapist Tuesday night when he was confronted by his ex-wife dressed in camouflage and a mask with an ax in her hands.  

Police in North Attleboro said 46-year-old Julie Rabinowitz hid in Mark Schenkman's minivan parked outside his dental practice.

According to authorities, she didn't know her son was going to be there and tried to restrain him by putting the child in a chokehold after he approached the car, but he was able to get away and warn his father.

(Mike Frisch)