Opinion
10-P-1103
08-10-2011
JUDITH ANN BLONDIN v. GARY FRED BLONDIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from the judgment of divorce nisi issued by the Probate and Family Court. She argues that the judge erred in his calculation of property distribution and alimony because he failed to determine the value of the husband's businesses. She also claims the judge abused his discretion in denying her posttrial motions and in not granting her a hearing on the motions. We affirm.
Background. The parties, Judith Ann Blondin (wife) and Gary Fred Blondin (husband), were married for twelve years. There were no children born of this marriage. The husband was the primary wage earner throughout the marriage and derived his income from two businesses, a masonry business and a landscaping company. The wife filed a complaint for divorce on December 21, 2007. On February 8, 2008, the wife filed a motion for business appraisal and the court awarded her $5,000 toward the cost of a business appraiser; however, the appraisal was never performed. The case was tried over four days between June 1 and June 16, 2009. At the commencement of the trial, the parties entered into evidence an eight-page stipulation of uncontested facts, which included the parties' agreement that the wife keep the furniture in the former marital home and the husband retain the assets of both of his businesses while indemnifying the wife against all liabilities associated with the businesses. On September 2, 2009, the trial judge entered his findings of fact, rationale, and conclusions of law and the judgment of divorce nisi. In his decision, the judge awarded the wife $550 per week in alimony and divided the marital assets equally. The judge also awarded the furniture to the wife and both of the husband's businesses to the husband as agreed to by the parties in their stipulation of uncontested facts. The wife filed a timely notice of appeal from the judgment. On December 16, 2009, the wife filed three motions requesting relief from judgment and to reopen proceedings and for the taking of additional evidence. The motions were denied on January 5, 2010. On January 13, 2010, she filed a second notice of appeal.
Discussion. 1. Error in calculating property distribution and assets. 'The appropriate weighing and balancing of the [G. L. c. 208,] § 34[,] factors, and the resulting equitable division of the parties' marital property, is left to the judge's broad discretion.' Kittredge v. Kittredge, 441 Mass. 28, 43 (2004). Here, the judge considered all the required factors, and the reasoning for his decision is clearly articulated in his comprehensive twenty-four page findings of fact, rationale, and conclusions of law. Of note, although the wife alleges that the value of the husband's businesses was not properly considered by the judge, the husband's businesses were specifically referenced several times, including in the judge's conclusion that the husband's future acquisition of capital assets and income was limited by the current economic downturn and in the finding of fact that the husband made several loans from his personal accounts into the businesses' checking accounts. In addition, the judge credited evidence that the husband paid his crew members a salary equal to or more than his own during the downturn in order to retain his most skilled workers in the hope that the business climate will improve in the future. The judge also accepted into evidence the husband's financial statement, which contained tax statements of his two businesses prepared by the husband's accountant.
The wife argues that the judge failed to determine the value of the two businesses owned by the husband, preventing an equitable distribution of the marital property. However, both husband and wife, in their jointly introduced stipulation of uncontested facts, agreed that the husband should retain the assets of his businesses while indemnifying the wife with regard to any liabilities associated with the businesses., Moreover, in the plaintiff's rationale and proposed judgment, the wife again specified that the businesses should remain with the husband. In addition, although the wife argues that the judge erred in calculating property distribution and alimony without determining the value of the husband's businesses, in her rationale and proposed judgment, she indicated that valuing the businesses was not necessary and that the funds earmarked for that purpose should be kept by her and applied toward her outstanding legal fees.
The pertinent section of the stipulation reads, 'The parties agree that the Wife shall retain the furniture located at 10 Little Pond Road (not including the appliances), and the Husband shall retain the assets of and all interest in and to the two businesses known as G.F. Landscape and Excavation and Blondin Masonry, Inc., and he shall hold the Wife harmless and indemnified as to any and all liabilities associated thereto.'
The stipulation is not noted or referenced in the wife's brief.
The wife's proposal reads, 'The Husband shall retain the business entities known as Blondin Masonry, Inc. and GF Blondin Landscape Excavation.'
The wife's proposal states, 'There is the sum of $5,000.00 being held by Wife's counsel which had been earmarked for the hearing of an expert which was ultimately deemed unnecessary.'
In stipulating to the husband's retention of his businesses, the wife has agreed to a settlement. Once a party consents to a separation agreement, the party is not at liberty to attack by appeal a judgment that incorporates that agreement. Doten v. Doten, 395 Mass. 135, 136 n.1 (1985). The wife had an opportunity before the trial to seek an appraisal of the businesses and was awarded $5,000 toward that end but declined to do so. She also had an opportunity during the trial to examine the financial statements of the businesses in order to question the husband about their value and to register her objections. Her failure to do so would be deemed a waiver of any further consideration of the issue. '[W]hen parties decline to offer evidence on [the § 34] factors, or some of them, and there is, therefore, nothing upon which findings can be made, obviously a trial judge cannot be required to consider all the factors. In these instances, consideration of the factors thereby omitted can properly be deemed waived.' Putnam v. Putnam, 7 Mass. App. Ct. 672, 674 (1979). The trial judge could hardly be expected to consider issues that were not brought before him, particularly since the parties had already stipulated as to their disposition in their prejudgment agreement.
2. Denial of posttrial motions without hearing. Paragraph (a)(1) of Standing Order 2-99 of the Probate and Family Court requires that a copy of the judgment at issue and a concise statement of facts and law in support of why the motion should be granted be filed with the motions. In addition, if a party wishes to request a hearing on a motion, the request shall be filed and served with the motion. Neither requirement was met by the wife. The judge did not err in denying her motions without a hearing. Even without these procedural deficiencies, the standard of appellate review for a claim of an abuse of discretion by a trial judge is to decide whether 'no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.' Commonwealth v. Ira I., 439 Mass. 805, 809 (2003), quoting from Commonwealth v. Bys, 370 Mass. 350, 361 (1976). In this instance, the judge made a careful and considered judgment using all the § 34 factors. The wife was awarded alimony and the marital assets were divided equally. The wife declined to value the husband's businesses and did not question the husband about them during the trial. Most significantly, the basis for the wife's appeal is her contention that the businesses were improperly not valuated although she stated herself that the valuation was not necessary and stipulated that the husband should retain the businesses. In her brief, the wife argues that her posttrial motions set out substantial evidence of her (former) divorce attorney's 'ineffective assistance' or negligence although she does not explain her failure to question the husband during trial and she also fails to mention the stipulated agreement. The judge did not abuse his discretion in denying the wife's postjudgment motions.
Paragraph (b)(2) of Standing Order 2-99 indicates that '[f]ailure to request a hearing shall be deemed a waiver of any right to a hearing afforded by statute, court rule or case law.' Paragraph (d) of Standing Order 2-99 states, 'Failure to comply with any and all of the provisions of this order may result in the Court's refusal to entertain the motion and/or the imposition of sanctions and/or costs against a party or his/her counsel.'
The wife cites no pertinent authority for applying principles of ineffective assistance of counsel in this civil matter to vacate the judgment. Any issues that the wife has with her former attorney can be raised through the appropriate legal means.
3. Attorney's fees and costs of appeal. The wife's attempt to alter a judgment awarding the husband his businesses after requesting the court to do just that as part of a stipulated agreement is frivolous and not meritorious. Further, lack of any mention of the stipulation in the wife's brief is misleading and does not address the primary objection to the appeal. 'Unpersuasive arguments do not necessarily render an appeal frivolous.' Avery v. Steele, 414 Mass. 450, 455 (1993). But '[w]hen the law is well settled, when there can be no reasonable expectation of a reversal, an appeal is frivolous.' Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). Rule 25 of the Massachusetts Rules of Appellate Procedure authorizes the court to 'award just damages and single or double costs to the appellee' if it is determined that an appeal is frivolous. Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). Prior decisions have included attorney's fees as part of the 'just damages' awarded to the appellee. Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 72 (2010). Morever, sanctions under the rule have been interpreted to lie against either the party or the attorney. The rationale for imposing fees and expenses upon the responsible appellate attorneys is to serve the purposes of '(a) punishment of counsel causing the waste of the court's public resources; (b) compensation of opposing litigants for the waste of their private resources; and (c) deterrence of further abuse by the same or other attorneys.' Id. at 73 n.6.
'Although we have not considered the issue directly, courts interpreting the cognate Federal rule, Fed. R.A.P. 38, have held that sanctions under the rule may be imposed on either the party or the attorney . . . . We agree.' Avery v. Steele, 414 Mass. at 455. See Worcester v. AME Realty Corp., 77 Mass. App. Ct. at 73 n.6, for prior decisions imposing fees and expenses on appellate attorneys under the cognate Federal rule.
Within fourteen days of the date of this decision, counsel for the husband shall submit to this court a verified itemization of his appellate fees and costs supported wherever possible by time sheets or summaries of time sheets (specifying the working attorney, the service rendered, its date and duration, and the hourly rate) and by invoices or receipts of disbursements. Within fourteen days thereafter, counsel for the wife shall file any opposition to the requested amounts. The appellate attorneys for the wife shall be jointly and severally responsible for payment of the awarded fees and costs.
The judgment and the orders denying the plaintiff's postjudgment motions are affirmed.
So ordered.
By the Court (Rapoza, C.J., Cypher & Carhart, JJ.),