Opinion
21-P-839
04-29-2022
Michael A. TRETHEWEY v. Rosalia F. TRETHEWEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following the issuance of a judgment of divorce nisi and the denial of his motion for a new trial, the plaintiff, Michael A. Trethewey (husband), filed an application in the single justice session of this court for a stay of "the property division provisions" of the judgment pending appeal. See Mass. R. A. P. 6 (a), as appearing in 481 Mass. 1608 (2019). The single justice denied the stay, and the husband timely filed a notice of appeal. Because the husband has not demonstrated that the single justice abused her discretion, we affirm.
As required by the rule, the husband first applied to the trial judge for a stay of the property division provisions of the judgment. The judge denied the motion.
"An appellant seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant's success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absence of harm to the public interest from granting the stay." C.E. v. J.E., 472 Mass. 1016, 1017 (2015), quoting J.W. Smith & H.B. Zobel, Rules Practice § 62.3, at 409 (2d ed. 2007). These factors are essentially the same considerations that are relevant to securing a preliminary injunction. Compare Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-618 (1980). The single justice must balance the relative risks of harm to the parties against the likelihood of success on the merits in determining whether to grant a stay. See id. at 617. That balancing determination is reviewed for abuse of discretion and "is rarely overturned." Cartledge v. Evans, 67 Mass. App. Ct. 577, 578 (2006).
The single justice concluded that the husband failed to demonstrate that he would be irreparably harmed if the stay did not issue. We agree. As a general rule, economic harm does not rise to the level of "irreparable harm," as the harm can be undone by repayment if the husband ultimately prevails on appeal. See Packaging Indus. Group, Inc., 380 Mass. at 617 n.11. Economic harm that threatens the existence of the moving party's business or livelihood may satisfy the irreparable harm standard. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 643-644 (1987). However, the husband's claims that his income "could decrease," and that he faced a "risk" of insolvency "if his employment situation should change for any reason," demonstrated at worst a possibility, rather than a likelihood, of irreparable harm.
With respect to the likelihood of success on the merits, in his submission to the single justice the husband raised four appellate issues: that the trial judge impermissibly engaged in "double dipping" when she assigned the proceeds of his Wells Fargo forgivable loan to him as an asset, but then considered his employer's monthly forgiveness of the loan payments as part of an income stream in calculating his support payments to then defendant, Rosalia F. Trethewey (wife); that the divorce order failed to effectuate the judge's intent to divide the marital property only "slightly" in favor of the wife; that the judge failed to take into account the change in value of certain assets between the last day of trial and the date of the judgment; and that the judge violated the husband's due process rights in awarding attorney's fees to the wife. The single justice found that the husband's likelihood of success on appeal "weighs in favor of denying the motion."
The term "double dipping" is used "to describe the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing support obligations." Champion v. Champion, 54 Mass. App. Ct. 215, 219 (2002). Double dipping is not prohibited as matter of law; rather, "the judge must look to the equities of the situation to make her determination." Croak v. Bergeron, 67 Mass. App. Ct. 750, 759 (2006). We agree with the husband his double dipping claim meets the low threshold of presenting a "meritorious" claim, that is, an "appellate issue of sufficient heft that would give an appellate court pause." Commonwealth v. Nash, 486 Mass. 394, 403-404 (2020). However, the existence of a single meritorious claim does not satisfy the standard for issuance of a stay. "It is the combination of likelihood of success and degree of irreparable injury that matters." Packaging Indus. Group, Inc., 380 Mass. at 622.
The husband did not demonstrate a likelihood of success on the other three issues. He bears a heavy burden to prevail on appeal on his claims regarding the fairness of the property division. "[A] probate judge acting under G. L. c. 208, § 34, has broad discretion to assign assets." Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993). "We review the judge's findings to determine whether she considered all the relevant factors under G. L. c. 208, § 34, and whether she relied on any irrelevant factors." Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). "We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ " Id., quoting Baccanti v. Morton, 434 Mass. 787, 793 (2001). The husband did not demonstrate a likelihood of prevailing on his claims that the property division provisions were plainly wrong or excessive. Likewise, the judge's decision to award attorney's fees and the amount of the award also appear to have been within her sound discretion. See Edinburg v. Edinburg, 22 Mass. App. Ct. 192, 198 (1986).
We conclude that the single justice did not abuse her discretion in determining that the husband did not make a sufficient showing to warrant the issuance of a stay pending appeal. In affirming the denial of the stay, "we do not prejudge the merits of the [husband]’s appeal.... The [husband] remains free to raise the same arguments on a fully developed record ..., and we trust that [the panel that ultimately decides the appeal] will consider [his] arguments with an open mind." C.E., 472 Mass. at 1017 n.3.
The wife's request for appellate attorney's fees is denied.
Order denying stay pending appeal affirmed.