Opinion
14-P-1746
03-07-2016
KAYOKO OBARA v. JAVAD GHOREISHA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
In this consolidated appeal from a divorce judgment dated July 8, 2013, and a contempt judgment dated December 12, 2013, and a resulting order for fees dated January 29, 2014, entered in the Probate and Family Court, Javad Ghoreisha (husband) challenges aspects of the property division, the child support order, and the award of legal fees to Kayoko Obara (wife) in connection with both the divorce and the contempt actions. We address the husband's arguments in turn.
The wife did not file a brief.
1. The property division. The husband principally challenges the award of the parties' joint dental practice (including the office condominium and most of the equipment) to the wife. The husband, who is wheelchair-bound due to multiple sclerosis, contends that the wife's receipt of the handicap-accessible office effectively prevents him from continuing his employment as a dentist.
"In reviewing a judge's decision under G. L. c. 208, § 34, we use a two-step analysis." deCastro v. deCastro, 415 Mass. 787, 791-792 (1993), citing Bowring v. Reid, 399 Mass. 265, 267 (1987). "We first determine whether the judge considered all the § 34 factors, and no others . . . . We then evaluate whether the conclusions follow from the findings and rulings." deCastro, supra at 792. "A division of marital property which is supported by findings as to the required factors will not be disturbed on appeal unless 'plainly wrong and excessive.'" Passemato v. Passemato, 427 Mass. 52, 57 (1998), quoting from Heins v. Ledis, 422 Mass. 477, 481 (1996).
During their long-term marriage, the parties successfully operated a joint dental practice in an office condominium located in the same complex as their home. The parties renovated both the home and the dental office to accommodate the husband's physical disabilities. These renovations, as found by the judge, included widening the office entrances and patient rooms, lowering the cabinets and laboratory benches, installing a handicapped toilet, and generally "making the office more accessible" to the husband. The judge credited the husband's "testimony that the multiple sclerosis does not affect him very much in his upper body" and that "[t]here is no effect on his mental acuity." The judge found there to be "nothing about [the husband's] present condition that prevents him from continuing to practice dentistry." The judge further found that, in the year prior to trial, the parties treated approximately the same number of patients.
At the time of their separation, the parties agreed that the husband would remain in the handicap-accessible home. They further agreed to share the dental office pursuant to a schedule designating specific work days to each party. The husband sought to preserve that arrangement, while the wife sought sole ownership of the dental office as she could no longer "envision the parties working cooperatively . . . in the same location."
The judge found the husband "deviated" from the "schedule numerous times" by working on days "designated solely to [the wife,]" and "[a]lthough [his] presence . . . did not affect the patients or the dental assistants, [he] displayed a lack of respect to [the wife] in front of the staff."
The judge concluded that it was "not viable to separate the dental office space into two separate offices" and awarded the dental office to the wife. The judge found that the wife derived the majority of her income from her dental practice, "which would be interrupted for an unknown time period" if she were required to relocate. In contrast, the judge found that the husband "has two definite and fixed sources of income (Social Security disability and private insurance disability) as well as rental income which should continue unabated if he were to relocate his dental practice." The judge noted that while "[n]either party offered any evidence to demonstrate the cost" of relocation, moving the husband's dental practice "would require extensive handicap accommodations." The judge further acknowledged that the husband "has no plans to move his dental practice if he cannot use the current office space."
Notably absent from the judge's findings is any consideration of the impact of the husband's relocation on his "employability" and his "opportunity . . . for future acquisition of capital assets and income," both of which are mandatory factors under G. L. c. 208, § 34, as amended by St. 2011, c. 124, § 2. Because the judge's findings do not meaningfully address those two factors, a remand is necessary "for that reason alone." Charrier v. Charrier, 416 Mass. 105, 111 (1993).
Moreover, it is difficult to perceive how, on this record, the award of the handicap-accessible office to the able-bodied wife could be deemed equitable. It is especially perplexing since the husband was awarded the handicap-accessible home located in the very same condominium complex as the dental office. Here, we cannot say that the judge's "reasons for his conclusions are 'apparent and flow rationally' from his findings and rulings." Baccanti v. Morton, 434 Mass. 787, 790 (2001), quoting from Williams v. Massa, 431 Mass. 619, 631 (2000).
Accordingly, we vacate so much of the divorce judgment that orders division of property and remand the matter for further proceedings and findings, and if appropriate, redistribution of the dental practice, permitting revisitation of the distribution of other assets to the extent necessary to effectuate an equitable division on remand.
2. The child support order. In the divorce judgment, the judge ordered the husband to pay child support to the wife in the amount of $627 per month, retroactive to May, 2011. The husband contends that it was error to make his child support obligation retroactive since the wife did not request any child support until the time of trial.
The $627 amount was consistent with the monthly social security dependency benefit the husband was receiving on behalf of the parties' child.
As for the husband's claim that the judge was precluded from ordering support to continue after the termination of the child's social security dependency benefit at age nineteen, he offers no legal authority to support this contention. A judge may order postminority support "that continues until a child is emancipated (as defined by the statutory framework), by virtue of continued dependency on and domicile with a custodial parent. This is particularly so when it is apparent from the facts of the case that the parties anticipate that their children will be attending college and thus likely will not be emancipated when they reach the age of majority." Tatar v. Schuker, 70 Mass. App. Ct. 436, 446 (2007) (citations omitted).
"We review child support orders . . . to determine if there has been a judicial abuse of discretion." J.S. v. C.C., 454 Mass. 652, 660 (2009), quoting from Department of Rev. v. C.M.J., 432 Mass. 69, 75 (2000). Here, where the husband did not receive notice of the wife's request for child support until the trial, the judge erred in entering a retroactive order. See G. L. c. 119A, § 13(a); Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 405-406 (1998). Accordingly, so much of the divorce judgment that orders the husband to pay retroactive child support from May, 2011, to the date of trial is vacated.
The husband further asserts that the "purpose" of the child support order was "to financially decimate" him. This claim does not rise to the level of appellate argument contemplated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); thus we do not consider it. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).
3. The award of attorney's fees in the divorce judgment. The husband contends that the judge abused his discretion by awarding the wife $25,000 in attorney's fees without providing any explanation for his decision. It is well-settled that judges have discretion to award attorney's fees in domestic relations cases. See G. L. c. 208, § 38; Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 12 (2016). In awarding fees to one party, the judge must consider several factors, including "the reasonableness of the fees and the other party's ability to pay." Caccia v. Caccia, 40 Mass. App. Ct. 376, 381 (1996), citing Kane v. Kane, 13 Mass. App. Ct. 557, 560-561 (1982). In the present case, the judge provided no explanation for his decision to award fees to the wife. Moreover, the judge did not conduct an inquiry as to whether the fees sought by the wife were reasonable. Accordingly, so much of the divorce judgment that awards attorney's fees is vacated, and the matter is remanded for further proceedings and findings. See Caccia, supra; Hoegen, supra.
4. The award of attorney's fees in connection with the contempt action. The divorce judgment sets forth specific deadlines for the husband to vacate the dental practice and to make certain payments to the wife. Those deadlines were temporarily stayed by this court pending a ruling on the husband's motion to stay filed in the Probate and Family Court. The judge ultimately denied the husband's request for a stay, and the wife filed a complaint for contempt shortly thereafter. The parties entered into a stipulation resolving all of the issues raised in the contempt complaint, while reserving the wife's motion for legal fees for hearing before the judge. The judge awarded the wife $9,115 in attorney's fees and costs related to pursuing her contempt complaint. The husband contends that the judge abused his discretion in making such an award.
Under G. L. c. 215, § 34A, there is "a presumption in favor of an award of reasonable fees and costs for a successful plaintiff in a contempt action." Coppinger v. Coppinger, 57 Mass. App. Ct. 709, 714 (2003). However, "the judge should state specifically in the judgment whether or not [he] is adjudging the defendant guilty of contempt for purposes of G. L. c. 215, § 34A." Poras v. Pauling, 70 Mass. App. Ct. 535, 544 (2007). In this case, neither the judgment incorporating the parties' stipulation, nor the subsequent order granting the wife's motion for fees, contained an "express finding" of contempt against the husband. Id. at 541. While certain circumstances may warrant an award of fees despite the lack of a formal contempt finding, see Cooper v. Cooper, 62 Mass. App. Ct. 130, 143-144 (2004), here the judge's order contains no explanation as to the basis for the fee award. Moreover, the order does not contain any indication that the judge considered the reasonableness of the fees. See Olmstead v. Murphy, 21 Mass. App. Ct. 664, 665 (1986) (discussing relevant factors judge should consider when setting fee award). Accordingly, the order dated January 29, 2014, awarding fees to the wife is vacated.
Given the lack of a contempt finding, we need not reach the husband's argument that there was insufficient evidence to support such a finding.
Conclusion. So much of the judgment dated July 8, 2013, that orders division of property is vacated, and that matter is remanded to the Probate and Family Court for further proceedings and findings, and if appropriate, redistribution of the property consistent with this memorandum and order. So much of the judgment that orders attorney's fee is vacated, and that matter is remanded for further proceedings and findings consistent with this memorandum and order. So much of the judgment that orders the husband to pay child support from May, 2011, to the date of trial is vacated. In all other respects, the judgment dated July 8, 2013, is affirmed. The judgment dated December 12, 2013, is affirmed. The order dated January 29, 2014, awarding the wife attorney's fees is vacated. Because we think that a fresh look would be appropriate, the case is remanded to a different Probate and Family Court judge.
To the extent that we do not address the husband's other arguments, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
By the Court (Cypher, Trainor & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 7, 2016.