Opinion
18-P-1219
12-10-2019
Mary Ann BETHUNE v. Quentin A. BETHUNE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a judgment of divorce nisi issued by the Probate and Family Court. On appeal, the husband disputes the trial judge's property division determinations on the basis that the judge failed to consider all the mandatory factors set out in G. L. c. 208, § 34, or provide a rationale. The husband further argues that the judge failed to adequately explain her reasoning for the alimony and child support calculations. We affirm.
The husband also argues that the judgment must be reversed or vacated due to the judge's failure to issue conclusions of law. While it may have been better practice for the judge to have expressly stated her conclusions of law, her failure to do so does not, in the circumstances present here, require the judgment to be reversed or vacated. We think it is apparent from the record that the experienced judge was fully cognizant of the legal standards applicable to the case. Moreover, as we shall discuss, the judgment flows rationally from the judge's findings.
Background. The parties were married in August, 1993, and last lived together in January, 2017. At the time of trial, they had been married for nearly twenty-five years. The marriage produced one child, who was a twenty-one year old college student at the time of trial. The parties enjoyed a middle-class lifestyle and accumulated an estate consisting primarily of the marital home, investment accounts, and retirement accounts. Additionally, the husband received an inheritance in the form of real estate and the wife basically received her inheritance during her mother's lifetime. The husband was the primary wage earner, and the wife took on the majority of the childcare and homemaking duties. Pursuant to the divorce judgment, the husband and the wife received assets valued at $1,072,519.63 and $1,041,906.72, respectively. The divorce judgment further required the husband to pay alimony to the wife of $250 per week, and ordered the wife to pay child support of $50 per week.
The judge also equally divided shares of stock held jointly by the parties and shares of stock in the wife's name. The wife retained two shares of stock held jointly with her mother.
Without reference to legal authority, the husband argues that findings should have been issued contemporaneous with the trial. Because this claim does not rise to the level of appellate argument, we decline to consider it. See Mass. R. A. P. 16 (a) (9), as amended, 481 Mass. 1628 (2019); Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).
Discussion. 1. Division of property. The husband first takes issue with the judge's property division determinations. He argues that the judge failed to consider the mandatory factors under G. L. c. 208, § 34, and failed to provide a clear rationale for the division. Trial judges retain "broad discretion" in weighing and balancing the factors described in § 34. See Kittredge v. Kittredge, 441 Mass. 28, 43-44 (2004). "As long as the judge's findings show that all relevant factors in § 34 were considered, and the reasons for the judge's conclusion are apparent and flow rationally from the findings and rulings, a judge's determination on the equitable division of marital property will not be disturbed." Williams v. Massa, 431 Mass. 619, 631 (2000). "Mathematical precision is not required of equitable division of property" (quotation omitted). Ross v. Ross, 50 Mass. App. Ct. 77, 81 (2000). "We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ " Zaleski v. Zaleski, 469 Mass. 230, 245 (2014), quoting Baccanti v. Morton, 434 Mass. 787, 793 (2001).
a. Mandatory factors. We are unpersuaded by the husband's claim that the judge failed to make the requisite findings under § 34. The judge, in her findings of fact, made specific, detailed findings as to all the § 34 mandatory factors, including the length of the marriage; the parties' age, health, vocational skills, occupation, income and employment, needs, liabilities, station, conduct, and opportunity for future acquisition of assets; amount and duration of any alimony awarded; and present and future needs of the child.
The husband also contends that the judge placed an improper amount of emphasis on the length of the parties' marriage in making her property division determinations. The judge, however, did not discuss the length of the marriage beyond noting it in her findings of fact and mentioning it in her discussion section. Furthermore, "[t]he weight to be accorded each of the § 34 factors in a particular case is committed to the judge, who has broad discretion in fashioning a judgment under § 34" (citation omitted). Ross v. Ross, 385 Mass. 30, 37 (1982).
In support of this argument, the husband also notes that the judge emphasized the length of the marriage at a motion hearing. Because a transcript of the motion hearing is not included in the record before us, we do not consider this contention. See Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 10 n.3 (1994).
The husband next contends that the judge erred by not properly considering the extent to which the wife's donations to a "spiritual church" diminished the marital estate. At trial, the judge explained that unless the husband's counsel was going to present evidence that the wife "gave large amounts of money, more than five dollars a week to her church," counsel should move on from that line of questioning. Because no evidence was offered to show that the donations rose to the level of "dissipation," this was a proper exercise of the judge's discretion. See Kittredge, 441 Mass. at 40-41 ; Salten v. Ackerman, 64 Mass. App. Ct. 868, 873-874 (2005).
Finally, the husband contends that the judge did not properly consider the wife's lack of contribution to the parties' marriage and marital estate. The judge, however, did consider and make explicit findings as to the wife's financial and nonfinancial contributions. Specifically, the judge found that "[t]he Wife has contributed to the acquisition, preservation and appreciation of the value of the marital estate by being primarily responsible for childcare and homemaking duties and contributing her earnings to the marital enterprise." Contrary to the husband's claim, it is clear that the contributions of the husband and the wife underpinned her property division determinations.
Likewise, the husband's argument that the marriage was not a partnership is unsupported by the record and contrary to the judge's findings.
For the above reasons, we are satisfied that the judge gave all the mandatory § 34 factors due consideration.
b. Lack of rationale. The husband next claims that the judge did not provide an adequate rationale for her division of property. Contrary to the husband's position, "the reasons for the judge's conclusions [were] apparent in [her] findings and rulings," "either explicitly or by clear implication." Bowring v. Reid, 399 Mass. 265, 267-268 (1987). The parties filed a stipulation of uncontested facts. Following a trial, the judge issued fifty-nine detailed findings of fact in which she carefully addressed the § 34 factors. She took into account that the husband "was undoubtedly the major wage earner during the marriage" and weighed that against the wife's financial and homemaking contributions. In summarizing her reasoning, the judge stated that "an equitable division of the parties' marital estate is an approximately equal one." Her allocation of each marital asset reflected this principle.
While the husband disputes the treatment of essentially every substantial marital asset, a large part of his argument focuses on the assets he obtained prior to the marriage or through inheritance. He first argues that he was entitled to a $26,000 credit for the down payment for the marital home he made prior to the marriage and a $36,000 credit for a payment towards the marital home mortgage that he paid from his inheritance. A judge, however, may divide "all property to which a party holds title, however acquired" (quotation omitted). Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110 (2016). See G. L. c. 208, § 34 (permitting division of "all or any part of the estate of the other"). The judge, therefore, did not err in declining to credit the husband with these expenditures. See Connor v. Benedict, 481 Mass. 567, 577 (2019) (including acquisitions made outside period of marriage in marital estate).
The husband also contends that the judge erred by failing to credit him with the entire balance of his inheritance, i.e., funds from the sale of the property he inherited. The judge, however, properly noted that the husband commingled the funds in bank accounts jointly held with the wife and used portions of it for marital expenses, improvements to the marital home, and the purchase of a motor vehicle. See Williams, 431 Mass. at 626-627 ("A judge may also consider ... whether the assets in question had been kept separate or commingled with the couple's jointly owned property"). The judge thus acted within her discretion in including those funds in the marital estate and utilizing them to effectuate a roughly equal division.
The judge also noted that the division of the joint bank accounts was not actually equal since the husband withdrew $30,000 from the accounts for unknown reasons.
The husband next argues that the judge improperly included in the marital estate the portion of his retirement account that accrued prior to the marriage, and that the judge should have used a marital coverture formula to divide the account. The judge, however, was not prohibited from including such amounts. See Brower v. Brower, 61 Mass. App. Ct. 216, 218-219 (2004). In declining to adopt the marital coverture formula, the judge properly noted that without evidence of the balance of the husband's retirement account at the time of marriage she was unable to determine whether applying the formula would result in an equitable division. See Denninger v. Denninger, 34 Mass. App. Ct. 429, 434-435 (1993).
The judge noted that the husband likely "deposited more money into his [retirement] account as his earnings went up and most of those higher-earnings years were during [the] marriage."
Unlike the husband's retirement account, the judge was able to ascertain the value of the husband's Ameriprise accounts at the time of marriage, and thus only included the amount that appreciated during the course of the parties' marriage in the marital estate. While the husband argues that the judge failed to provide a rationale for the treatment of the Ameriprise accounts, it can be inferred that the judge, with the benefit of knowing the premarriage value, determined that such a division would produce the most equitable result. Similarly, the treatment of the wife's Fidelity rollover IRA, the wife's ROTH IRA, the husband's personal Fidelity account, and the Lowell property all worked to produce a roughly even distribution.
The husband's claim that the judge erred by failing to make credibility findings as to the parties' testimony regarding the wife's Fidelity rollover IRA is unavailing. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
Although the husband claims that the wife was improperly awarded all of the equity from the Lowell property without any offset to the husband, the judge awarded the husband "the equivalent of the value of that real estate from the Fidelity account(s)."
2. Alimony. The husband next argues that the judge's findings do not adequately demonstrate her rationale for the alimony award. Like property division determinations, the reasons for a judge's alimony award must be apparent in her findings. See Heins v. Ledis, 422 Mass. 477, 480-481 (1996). Here, the record demonstrates that the alimony award flowed rationally from the judge's findings and was well within her broad discretion. See Zaleski, 469 Mass. at 235-236.
The judge made findings as to the wife's needs and earning ability, as well as the husband's own needs and ability to pay. Specifically, the judge found that the wife was "fully employed commensurate with her vocational skills and in light of her age," and that she was "not capable of providing for her own needs without financial contribution from the Husband." She further found the husband capable of paying alimony while providing for his own needs. Furthermore, contrary to the husband's claim that the alimony calculation was missing from the judgment, the judge explained in her discussion that the alimony award amount represented thirty-five percent of the difference in the parties' incomes.
Although the husband argues that the judge erred by refusing to attribute greater income to the wife, the judge noted that there was "no credible evidence ... offered in support of [the husband's] position.
3. Child support. Lastly, the husband argues that the judge improperly deviated from the Massachusetts Child Support Guidelines (guidelines) without providing a rationale. We disagree. A judge may deviate from the guidelines as long as "the judge make[s] specific written findings ... including findings ‘that such departure is consistent with the best interests of the child.’ " Wasson v. Wasson, 81 Mass. App. Ct. 574, 577 (2012), citing G. L. c. 208, § 28, and § IV of the guidelines. In declining to impose the guidelines calculation, the judge noted that the child was away at college for approximately eight months per year and that the wife was already required to contribute to the cost of the child's college education. The judge then made specific findings regarding the child's present and future needs, and explained that an amount of $50 per week from the wife would cover approximately one-half of the child's expenses. We cannot say that the judge abused her discretion in deviating from the guidelines.
Conclusion. We are satisfied that the judge, in forming the divorce judgment, considered the requisite factors and that "the reasons for [her] conclusions are ‘apparent and flow rationally’ from [her] findings and rulings." Baccanti, 434 Mass. at 790, quoting Williams, 431 Mass. at 631.
The husband also argues generally that the judgment is not supported by the evidence presented. As we have described in great detail, however, the judge's determinations were equitable and her reasons were sound. No more is required. See Williams, 431 Mass. at 631-633. We do not consider the husband's appeal frivolous, so we do not consider it appropriate to award the wife legal fees for the appeal.
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Judgment affirmed.