Opinion
No. 15–P–1305.
07-28-2016
Joann BERTOLINO v. Frank BERTOLINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Frank Bertolino (husband), defendant in this divorce action, filed a petition in this court under G.L. c. 231, § 118, first par., requesting relief from a temporary order entered by a judge of the Probate and Family Court. The single justice denied relief. In his order denying relief, the single justice stated that the husband did not require leave to appeal, citing G.L. c. 231, § 118, second par. The husband appeals from the issuance of the temporary order and from the single justice's denial of the husband's petition for relief. We affirm.
The second paragraph of G.L. c. 231, § 118, provides for interlocutory appeals as of right from orders granting or denying preliminary injunctions. This exception to the general rule disfavoring interlocutory appeals “is limited to orders that ‘grant or protect at least part of the permanent relief sought as an ultimate result of the action.’ “ Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 612–613 (1980), quoting from 16 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 3921, at 10 (1977). We have some doubt whether the temporary order appealed from here is such an order. However, the single justice's ruling is the law of this case, and we address the merits notwithstanding the dubious propriety of this appeal.
On October 28, 2013, the husband and wife filed a “[s]tipulation [r]egarding [e]state [p]lanning” in the underlying divorce action, incorporated as a temporary order of the court, providing that the husband “shall not amend, modify, revoke or in any other way change his will or any other estate planning document without written agreement of the [wife] or [o]rder of the [c]ourt.” Notwithstanding the stipulation and order, the husband executed a last will and testament and a revocable trust instrument on November 25, 2014. On the wife's motion, the judge, on May 29, 2015, issued a further temporary order, docketed on June 4, 2015, directing the husband to revoke the will and the estate planning document, but allowing him to “prepare an estate plan for business and tax purposes so long as the plan provides for [w]ife her statutory intestate share of his estate” or is otherwise acceptable to wife's counsel. The husband seeks relief from the May 29, 2015, order.
The husband argued that because he had no will or estate plan in place at the time he entered into this stipulation, the execution of a will and estate plan did not “amend, modify, revoke,” or “change” anything, and accordingly did not violate the order. The judge rejected this argument, stating in her order on reconsideration that the husband's actions “in substance” changed the estate plan. In any event, the question whether the husband technically violated the stipulation and order is not before us.
A judge of the Probate and Family Court “possesses broad and flexible inherent powers essential to the court's duty to act in the best interests of persons under its jurisdiction.” Bower v.. Bournay–Bower, 469 Mass. 690, 698 (2014). These broad powers include the discretion to enter temporary orders regarding the disposition of marital assets to maintain the status quo and to facilitate an equitable division of assets. See, e.g., Gleed v. Noon, 415 Mass. 498, 498 (1993) (considering reach of temporary order “prohibiting each spouse from transferring or otherwise disposing of their marital assets while their divorce was pending”). Indeed, rule 411(a)(1) of the Supplemental Rules of the Probate Court (2000) provides for an automatic restraining order upon the filing of a complaint for divorce that prohibits the parties from “in any way dispos[ing] of any property, real or personal, belonging to or acquired by, either party.” The May 29, 2015, order embodies the purpose of rule 411 and further clarifies the parties' stipulation.
We discern no merit in the husband's argument that the judge's exercise of her inherent powers to issue the temporary order exceeded the jurisdiction of the Probate and Family Court in a divorce action. Furthermore, even if the temporary order exceeded the court's statutory jurisdiction, by entering into a stipulation concerning “his will or any other estate planning document” to be incorporated as an order of the court, the husband conferred on the judge the authority to enforce orders regarding this subject matter. See Kotler v. Spaulding, 24 Mass.App.Ct. 515, 518–519 (1987) ; Barnes v. Devlin, 84 Mass.App.Ct. 159, 164 (2013).
The holding of Bongaards v. Millen, 440 Mass. 10, 16–18 (2003), that assets held by a deceased spouse in a trust created by a third party are outside of the estate for purposes of determining the surviving spouse's elective share under G.L. c. 191, § 15, has no bearing on this case. The husband nonetheless relies on Bongaards, supra at 22–23, for the proposition that the considerations of what should be treated as the “estate” for probate purposes differ from the considerations used to identify marital property divisible in a divorce. While the considerations certainly do differ, we nonetheless agree with the judge that “[n]othing in Bongaards precludes [a judge of the Probate and Family Court] from entering a temporary order preserving all assets in the marital estate, and thereby precluding a spouse's attempt to remove that property before the parties['] respective interests therein are determined.”
The husband further argues that the judge's order did not in fact accomplish its intended purpose of preserving the marital estate, but rather had the effect or preserving assets outside of the estate. Both parties present extremely fact-bound arguments as to why or why not F.B. Packing Company and Frank Bertolino Beef Co., Inc., should be included in the marital estate subject to division. The very nature of this dispute demonstrates why the temporary order maintaining the status quo was appropriate: these arguments can only be resolved upon a fully developed factual record. Upon entry of the judgment of divorce, either party may appeal from, among other things, any perceived errors in the asset division. We discern no error of law or abuse of discretion in the judge's decision to issue the temporary order in the interim, nor in the single justice's denial of the discretionary relief under the first paragraph of G.L. c. 231, § 118. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615–616 (1980).
Order dated May 29, 2015, affirmed.
Order of the single justice dated August 27, 2015, affirmed.