Opinion
20-P-141
12-02-2020
LYNNE CHEEK v. RAYMOND G. CHEEK, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The former husband, Raymond G. Cheek, Jr. (husband), appeals from a judgment of divorce nisi of the Probate and Family Court pursuant to G. L. c. 208, § 1B. He argues that the judge erred in (1) dividing his pension; (2) assigning a tax liability; (3) ordering that he maintain life insurance for the benefit of his former wife, Lynne Cheek (wife); and (4) ordering that the parties' real estate business be dissolved. We affirm.
Background. We summarize the record, incorporating the judge's findings in support of the judgment of divorce nisi, and reserving additional facts for discussion below. The parties married in 1980 and lived together until 2007. On July 6, 2017, approximately ten years after their relationship ended, the wife filed a complaint for divorce. At the time of trial, the parties had been married for more than thirty-eight years. They have four adult children.
The husband was the primary wage-earner throughout the marriage. In 1984, the husband began work as a firefighter for the city of Boston. He subsequently sustained an injury in the line of duty that made him eligible for an "Accidental Disability Section 7" retirement allowance from the city. On January 31, 2002, following over seventeen years of service as a firefighter, he retired. He has received an accidental disability retirement allowance since that time. The wife also worked during the marriage and provided the majority of care for their children. Both parties contributed their wages to a joint bank account to pay household expenses and contributed to the maintenance of their home.
During the 1990s and 2000s, the parties owned and operated a real estate business, Realty Marketplace. The husband is a licensed real estate broker and the wife holds a real estate license. The business primarily focused on buying, renovating, and selling investment properties. The husband handled the financial issues related to the real estate business and the wife helped with sales and rentals.
The husband failed to file his 2006 Federal tax return. The Internal Revenue Service (IRS) eventually prepared a substitute tax return for the husband, determining that his taxable income for that year was $566,534, and assessed the taxes that he owed accordingly. At the time of the trial, the husband owed a balance of over $377,000 to the IRS. The husband's large taxable income in 2006 was generated when the husband sold one of the "financially troubled" investment properties, resulting in substantial capital gains taxes.
The judge credited the husband's testimony that this tax liability will terminate as of 2019.
A judge of the Probate and Family Court issued extensive findings of fact and entered a judgment of divorce nisi on June 19, 2019, which was amended on October 21, 2019, nunc pro tunc to June 19, 2019. The divorce judgment included orders that, inter alia, (1) the husband's retirement pension be divided equally between the parties; (2) the parties will be responsible for their own financial liabilities; (3) the husband will retain his life insurance policies naming the wife as the sole beneficiary; and (4) the parties shall dissolve their real estate business.
The judgment was amended to address the allocation of payment for dental and health insurance. The husband filed his appeal prior to the entry of the amended judgment and does not contest the amendment on appeal.
The husband filed a motion to stay the judgment pending appeal, which the judge denied. The husband then requested a stay from a single justice of this court, which was likewise denied.
Standard of review. A judge has broad discretion under G. L. c. 208, § 34, to make an equitable division of the marital estate. See D.B. v. J.B., 97 Mass. App. Ct. 170, 180 (2020). We review a judgment under G. L. c. 208, § 34, under a two-step analysis: "[f]irst, we examine the judge's findings to determine whether all relevant factors in § 34 were considered" and second, we "determine whether the reasons for the judge's conclusions are 'apparent in [her] findings and rulings'" (citation omitted). Adams v. Adams, 459 Mass. 361, 371 (2011). A judge's determinations "will not be reversed unless 'plainly wrong and excessive.'" Id., quoting Redding v. Redding, 398 Mass. 102, 107 (1986).
Discussion. 1. Division of pension. The husband argues that the judge abused her discretion in determining that his accidental disability retirement allowance, under G. L. c. 32, § 7, was a marital asset subject to division. He asserts that his accidental disability retirement allowance includes proceeds for pain and suffering that are personal to him, and, thus, only a portion of the pension should be considered a marital asset subject to division.
As discussed above, a judge has broad discretion under G. L. c. 208, § 34, to make an equitable division of the marital estate; this includes dividing retirement benefits. See Early v. Early, 413 Mass. 720, 723 (1992); Dewan v. Dewan, 399 Mass. 754, 755 (1987). See also Dalessio v. Dalessio, 409 Mass. 821, 829 (1991) (proceeds from personal injury suit, "at least to the extent of recovery for loss of earning capacity and medical expenses, and including the annuity," were subject to division under § 34); Warnajtys v. Warnajtys, 97 Mass. App. Ct. 690, 692 (2020) (workers' compensation settlement was part of marital estate and could be divided).
Here, the judge found that the husband's entire employment as a firefighter with the city of Boston occurred during the marriage and prior to the parties' separation. The judge noted that "[t]his is a long-term marriage in which both parties contributed to the marital enterprise," with the wife, who also worked and contributed her earnings to the family, "serving as the children's primary caretaker and Husband serving as the primary financial contributor." The judge concluded that the husband's "pension is the only marital asset of significant value to be divided [and] an equitable division of assets results in this asset being divided equally between the parties." The judge considered the relevant G. L. c. 208, § 34, factors and her reasoning is apparent in her findings and on the record. We discern no abuse of discretion.
Furthermore, although the husband argues that the judge failed to consider that his retirement allowance, at least in part, corresponds with an award for pain and suffering that is personal to him, he concedes that this argument is contingent on the review of medical records submitted on appeal. Insofar as the husband did not submit the medical records in the Probate and Family Court proceedings, their content cannot be considered for the first time on appeal. See Child v. Child, 58 Mass. App. Ct. 76, 84 (2003). For this reason as well, the judge did not abuse her discretion in dividing the entire retirement allowance equally between the parties.
2. Tax liability. The husband argues that the judge abused her discretion when she determined that he was solely responsible for the 2006 tax liability. A judge's discretion under G. L. c. 208, § 34, includes equitably allocating liabilities between the parties. See Zaleski v. Zaleski, 469 Mass. 230, 246 (2014) (affirming part of divorce judgment that allocated more debt to wife than husband because debts were "solely those of the wife").
The husband's tax liability stems from the sale of property held in his name. The property was sold to the parties' son, but because the property had a "large outstanding mortgage," only "a small realtor commission" was realized from the sale. The husband testified that he was unable to file an amended tax return because he lost the necessary documents when the parties' marital home was foreclosed. The judge found that this foreclosure was foreseeable and that the husband was not "precluded from preserving the documents necessary to reduce the tax liability." Moreover, the judge found that the husband was "in control of the financial aspects of the real estate investments." Finally, as the judge noted, the husband's "inaction impacted the tax liability." The record supports each of these findings, and the allocation of the tax liability was not "plainly wrong and excessive" (citation omitted). Adams, 459 Mass. at 371.
3. Life insurance. The husband contends that the judge abused her discretion by requiring him to maintain a life insurance policy naming the wife as sole beneficiary. It is "within the judge's discretion to require the [husband] to maintain a life insurance policy for the [wife's] benefit." Robbins v. Robbins, 16 Mass. App. Ct. 576, 579 (1983). Here, the husband's retirement allowance terminates on his death. "In light of the fact that Wife will stop receiving her 50% portion of Husband's pension if he predeceases her," the judge ordered the husband to maintain his life insurance policies, totaling $30,000, with the wife named as the beneficiary. We discern no abuse of discretion.
4. Real estate business. The husband contends that the judge erred in ordering that the real estate business, Realty Marketplace, be dissolved. The judge made findings, supported by the record, as to the nature of the real estate business, its principal period of operation, and the parties' current employment and sources of income. There is nothing in the record to indicate that the order to dissolve Realty Marketplace was "plainly wrong and excessive" (citation omitted). Adams, 459 Mass. at 371. "Again, we see no abuse of discretion." Warnajtys, 97 Mass. App. Ct. at 693.,
The husband also contends that the judge erred in finding that he "will likely be able to resume the marital lifestyle after [he] is no longer making payments to the IRS under his installment agreement." He asserts that the record shows that at the time the divorce judgment was issued, he was in fact no longer making payments to the IRS. The record contains some ambiguity on this issue. However, the judge was warranted in finding, based on the husband's testimony, that the husband was still liable for the tax lien until "September or November of [2019]." It was reasonable to find that once the liability was discharged, the husband would "likely" be able to resume the marital lifestyle. We cannot, on the record before us, conclude that this finding was clearly erroneous. The husband also asserts the judge erred in stating that "many of the properties purchased by the parties were foreclosed" where the record includes specific mention of only two properties that were foreclosed on. However, the judge could have credited the wife's testimony that "all of our properties, for whatever reasons, went into foreclosure."
The wife's request for attorney's fees and costs on the ground that this appeal was frivolous is denied.
Judgment of divorce nisi affirmed.
By the Court (Wolohojian, Neyman & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 2, 2020.