Opinion
No. 12–P–885.
2013-10-31
Linda DeFEUDIS v. Gino DeFEUDIS.
By the Court (KANTROWITZ, SIKORA & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Linda DeFeudis (wife) appeals from a divorce judgment entered in the Probate and Family Court, arguing that the probate judge (1) inequitably distributed a disproportionate amount of the marital assets to Gino DeFeudis (husband), and (2) abused her discretion by failing to consider, when awarding primary physical custody of the four minor children to the husband, that the wife had primary care of the children for the majority of the marriage. We affirm.
Property division. Our review is limited. “If the judge has made the obligatory findings under [G.L. c. 208,] § 34, and ‘has not considered any irrelevant matter, [the judge's] determinations as to ... property division may not be reversed unless plainly wrong and excessive.’ “ Denninger v. Denniger, 34 Mass.App.Ct. 429, 430 (1993), quoting from Redding v. Redding, 398 Mass. 102, 107–108 (1986). The judge, in her extensive findings, considered the required factors enumerated in G.L. c. 208, § 34. She noted that she had considered all of the factors, “in particular the age of the parties, the length of the marriage, the contribution of both parties toward the acquisition of the estate and the opportunity to acquire future assets.” See Bowring v. Reid, 399 Mass. 265, 267 (1987).
Contrary to the wife's assertions, the judge did not ignore the wife's contribution as a full-time homemaker; however, she did consider the fact that the husband's mother was a major contributor to the couple's accumulation of assets. That consideration was wholly appropriate. See Williams v. Massa, 431 Mass. 619, 626 (2000). “A judge may ... consider ... the source of the assets.” Id. at 627. Furthermore, “a disparity in contributions may be reflected in the distribution of the ... gifted assets.” Id. at 626.
The judge determined that “it [would be] inequitable to award the wife [fifty percent] or more of the estate.” We see no error. Compare Williams v. Massa, supra. The goal of G.L. c. 208, § 34, is “an equitable, rather than an equal, division of the property.” Ibid. “Mathematical precision is not the test.” Denninger v. Denninger, 34 Mass.App.Ct. at 430.
Considering the length of the marriage (seventeen years) and the lifestyle maintained by the parties (upper middle class), the judge determined that the most equitable approach was to place the wife in a position of economic certainty, a position, the judge found, the wife had enjoyed for seventeen years. To that end, the judge distributed to the wife cash, pension funds, and debt-free properties totaling at least thirty-four percent of the marital estate.
This distribution was consistent with the objective of reproducing for the wife the financial security she enjoyed during the marriage. Contrast, e.g., Denninger v. Denninger, 34 Mass.App.Ct. at 433–435.
This percentage is based on a valuation of the marital estate at $1,684,241, which did not factor in the negative equity of the husband's West Main Street property (which was between -$185,000 and -$312,000) or the wife's pension (which was of an unknown value and awarded to the wife). Factoring in the negative equity alone, the percentage of the wife's award would be significantly higher.
By contrast, reasoning that the marital debt (most of which was owed to the husband's mother) was an issue solely between the husband and his mother, the judge placed the burden of repaying that debt on the husband only. Properties awarded to the husband included the marital home with its two outstanding mortgages, a parcel of land that could not be developed, and property with negative equity.
The judge also permissibly considered the wife's potential for future income, noting that the wife, who no longer had primary caretaking responsibility for the couple's four children, could increase her station by returning to full-time employment as a registered nurse.
In contrast, the husband's prospect of increased income had diminished, as the economic boom from which he had benefited earlier had declined.
The judge found that the wife had been employed as a full-time registered nurse when the parties married. She was trained and employed as a cardiac nurse, and she reasonably could be recertified as such. Even without recertification, the judge determined that the wife, who had a job offer from Whittier Rehabilitation Center, could increase her earning capacity by $720 to $960 per week.
Finally, the judge considered the fact that as the children's primary caretaker, the husband would have greater financial responsibility for the parties' four children. She reasoned that he would therefore require a greater portion of the assets in order to provide for their welfare, especially since he could not depend upon financial support from the wife.
The judge's rationale for distributing to the husband a greater portion of the assets is well supported by the record. See Redding v. Redding, 398 Mass. at 108. We conclude, therefore, that her division of the assets was neither plainly wrong nor excessive. See Williams v. Massa, 431 Mass. at 631.
The judge did not order the wife to pay the husband any child support. Instead, she reduced the husband's alimony obligation to compensate for not awarding him child support.
Custody of the children. “The best interests of [the] child is the overarching principle that governs custody disputes in the Commonwealth.” Murphy v. Murphy, 82 Mass.App.Ct. 186, 193 (2012), quoting from Charara v. Yatim, 78 Mass.App.Ct. 325, 334 (2010). After noting, among other things, that the children have thrived at home with the husband, have a close personal connection to him, and that the wife had engaged in abusive behavior toward the husband in front of the children (which resulted in criminal proceedings and a G.L. c. 209A abuse prevention order being lodged against her), the judge determined that the children's best interests favored awarding the husband physical custody. We agree.
The wife asserts that the judge failed to consider that originally she had been the children's primary caretaker. She argues further that the judge awarded the father physical custody of the children to punish her for her abusive conduct. We see no support for these assertions.
The judge clearly considered the fact that the wife originally had been the primary caretaker, but the judge further noted that once the parties separated, the husband had fulfilled that role. She determined that the husband had always been involved as a parent and that the children have enjoyed a strong connection to him. After the separation, the children became even more bonded to the husband and viewed him as their primary parent. The judge determined that the husband was in the best position to meet the children's needs. Compare Murphy v. Murphy, 82 Mass.App.Ct. at 193 (“The judge's finding that the wife was the primary caretaker is not clearly erroneous”). She awarded physical custody of the children to the husband and devised a “workable visitation plan that will allow the [wife] meaningful access and time with the child[ren].” Id. at 192–193. This rationale is plainly grounded in the children's best interests, and not in punishing the wife for her abusive conduct. We see no abuse of the wide discretion afforded to the probate judge's custody determination.
Judgment affirmed.