Opinion
19-P-1374
07-15-2020
CAROLYN J. HOY v. ARTHUR F. HOY, 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
Carolyn Hoy (wife), the plaintiff in a divorce action against the defendant, Arthur Hoy, Jr. (husband), appeals from the judgment of divorce and from the order denying her motion for a new trial. We affirm.
During the parties' long-term marriage, the wife was the primary wage earner. The husband spent more time at home and provided care for the couple's only child. Although the judge found that the husband was in need of alimony, because the wife's wages were substantially reduced at the time of trial, the judge did not order her to pay alimony. The judge noted that the issue of alimony "may be brought back before the Court on a Complaint for Modification," and ordered the wife to provide the husband with written notice if her income increased by more than five percent.
The division of marital assets slightly favored the husband. The judge ordered an equal division of the wife's retirement and investment accounts accrued over the course of the marriage. With respect to the proceeds from the sale of the marital home, the judge awarded $23,238 to the husband and $11,619 to the wife.
The wife contends that the judge abused her discretion by determining that the marital coverture period for the purpose of dividing the retirement assets ended on the date of the divorce, August 15, 2018, rather than as of October 2011, when the parties separated. She asserts that the judge should have excluded the husband from sharing the increase in value of the retirement assets after the separation "where [the husband] made no contribution to the marriage after that time and the increase in value was solely attributable to the [wife's] efforts." Savides v. Savides, 400 Mass. 250, 253 (1987). She also cites Daugherty v. Daugherty, 50 Mass. App. Ct. 738, 739 (2001), where this court agreed with the appellant husband that because the wife did not make any contribution to the marital partnership after the parties separated, she was entitled to only "her one-half share of the fund valued as of the date of separation, plus any appreciation of that half-share to the date of the trial based solely upon interest earned or investment made by the fund," but not to "contributions made to the fund in his behalf by his employer following the separation."
This argument might have some force if the wife's retirement assets were acquired after the separation and the increase in value was the result of her postseparation efforts. See Daugherty, 50 Mass. App. Ct. at 740-741, and cases cited therein. But it was not. Most of the retirement assets were held in two accounts, which derived from the wife's profit-sharing account and 401(k) plan from her employment at Quinlin Publishing Company. Her employment ended in December 2006, as did her contributions to the funds. The value of the two accounts totaled almost $170,000 as of October 2006. Although they had increased in value to over $250,000 by the time of trial, the appreciation of these assets was not due to any contributions the wife or her employer made after the separation. It was not error or an abuse of discretion to divide these assets equally.
The remaining retirement asset was the wife's 401(k) fund from Rickenbacker Resources, where she worked from 2009 to 2016. The value of that account was approximately $20,000 at the time of trial. Unlike the Quinlin funds, the wife did contribute to the Rickenbacker 401(k) after the separation.
In reviewing the division of property we first consider whether the trial judge considered all the relevant factors under G. L. c. 208, § 34, and then "we decide whether the rationale underlying the judge's conclusions is apparent and whether these 'flow rationally from the findings and rulings.'" Hassey v. Hassey, 85 Mass. App. Ct. 518, 524 (2014), quoting Williams v. Massa, 431 Mass. 619, 631 (2000). A judge may award a share of marital assets, including retirement accounts, "[i]n addition to or in lieu of a judgment to pay alimony." G. L. c. 208, § 34. "[B]ecause the judge has considerable discretion, determinations as to alimony and property division will not be reversed unless plainly wrong and excessive." Hassey, supra at 524.
The judge found that at the time of trial the husband was "homeless, living out of his car and at a fitness club," and that he had "minimal earning capacity and physical and mental health issues which make his likelihood of steady employment or the future acquisition of assets unlikely." The wife, by contrast, had "a greater earning capacity and ability to acquire future assets." The judge also found that the husband had a need for alimony, but the wife did not have the current ability to pay. Rather than award alimony, the judge divided the retirement assets evenly and awarded the husband "a disproportionate division of the proceeds" from the sale of the marital home (after the wife recouped her expenses).
Dividing the $20,000 Rickenbacker 401(k) account fifty-fifty -- instead of determining how much was invested prior to October 2011, how much was invested from October 2011 through 2016, and how much appreciation was attributable to each portion -- and awarding the husband $11,619 more than the wife from the sale of the marital home were within the judge's discretion. The judge's rationale is obvious, and the division is not plainly wrong or excessive. We discern no abuse of discretion.
Nor did the judge abuse her discretion in ordering the wife to notify the husband of any five percent increase in her income. Contrary to the wife's assertion in her brief, the husband did request alimony in his answer to the complaint for divorce, and nothing he said at trial, where he was self-represented, can be construed as a waiver. Nor did the judge adjudicate alimony sua sponte, in violation of the wife's due process rights, as she exaggeratedly contends. If the husband seeks alimony in the future, he will have to file a complaint for modification and demonstrate a material change in circumstances. See Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017). If that occurs, the wife will have the opportunity to be heard before alimony is ordered.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Rubin, Milkey & Massing, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 15, 2020.