Opinion
No. 11–P–1830.
2012-09-19
Amy MERRILL v. Robert Cecil JOHNSON.
By the Court (KAFKER, KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a three-day bench trial in Probate and Family Court, Robert Cecil Johnson (husband) appeals from the amended supplemental judgment of divorce and the order denying his motion to vacate the judgment pursuant to Mass.R.Dom.Rel.P. 60(b) (1975). The primary issue is whether the husband is entitled to a portion of Amy Merrill's (wife) $12 million interest in multiple trusts established by her grandfather. Largely for the reasons set forth by the judge in the findings and rationale in support of the supplemental judgment, we affirm.
Background. The judge found that “the parties lived a modest, middle class, lifestyle during the marriage.... Since neither party knew the extent of the Wife's inheritance the Court finds that neither of them relied on the eventual receipt of those monies to support their lifestyle.” The judge left the parties with the assets each brought to or acquired individually during the marriage (including real estate acquired by the husband), gave each half of the equity earned during the marriage in the marital home, and awarded the husband $172,751 in assets from the wife, including fifteen percent ($66,751) of the amounts the wife inherited during the marriage (totalling $445,009) from various sources. Specifically as to the wife's interest in the Merrill trusts established by her grandfather or any future inheritance from her father, the judge reasoned:
“The Court does not find that an award of a portion of the Wife's Trust assets or future inheritance is appropriate in this case. The Court finds that Husband's contribution to the marital partnership was limited.... The parties maintained separate assets and filed separate tax returns throughout the marriage. Both parties used their assets as they chose without input from the other spouse to support their families. Husband also used his assets to acquire substantial real estate investments.... The Court finds that the parties planned separately for their future. There was no use of any income or principal from the Trusts during the marriage since the Wife has no right to receive any distributions from the Trusts until the death of her father. The Court finds that the Wife's interests in the Trusts, and her potential inheritance from her father, were contingent when the parties were married and remain contingent today.”
Discussion. 1. Prenuptial agreement. On appeal, the husband argues that the judge erred by failing to enforce the prenuptial agreement. Contrary to the husband's assertions, it was the parties themselves who stipulated that the agreement should not be enforced. The judge did not err by implementing the parties' decision not to enforce the agreement or by allowing the prenuptial agreement in evidence.
2. Division of assets. The husband raises a number of issues related to the division of specific assets pursuant to G.L. c. 208, § 34. “There is no mathematical formula to determine what weight a judge should accord to any of the factors in § 34.” Williams v. Massa, 431 Mass. 619, 631 (2000) ( Williams ).
a. Merrill trusts. The husband argues that the judge erred by failing to include the wife's interest in the Merrill trusts as part of the marital estate. We disagree. The judge fully considered the wife's interest in the trusts and the extent to which her future inheritance was woven into the fabric of the marriage. To compensate the husband for the substantial likelihood that the wife would acquire assets in the future, the judge awarded the husband most of the nontrust assets, including the Vermont property, which he would enjoy mortgage-free. Here, as reflected in the careful findings and rationale, the judge properly exercised her discretion and correctly applied to the facts the standards of Williams, supra, and D.L. v. G.L., 61 Mass.App.Ct. 488, 493 (2004). See Bacon v. Bacon, 26 Mass.App.Ct. 117, 118–119 (1988).
b. Hancock trust. The husband objects to the exclusion from the marital estate of the wife's interest in property located in Hancock, New Hampshire. The wife's interest represents an expectancy because her father was still alive at the time of the divorce and could revoke the wife's interest in the Hancock trust. See Davidson v. Davidson, 19 Mass.App.Ct. 364, 374 (1985) ( Davidson ). Thus, the wife's interest in the trust was “not [a] clearly fixed and enforceable property right[ ].” Williams, 431 Mass. at 628. Here, the judge correctly considered this expectancy “under the § 34 criterion of ‘opportunity of each for future acquisition of capital assets and income.’ “ Id. at 628–629, quoting from Davidson, supra. She concluded that the “unequal allocation of non-trust assets [to the husband] is appropriate in light of the Wife's greater likelihood to acquire substantial assets in the future.”
c. Marital home. The husband argues that the judge should have awarded him $220,000, or half of the fair market value at the time of divorce, rather than half of the appreciated value of the marital home. He points to his contribution to the marital estate and the fact that the wife only paid $30,000 of the original purchase price. The judge properly considered the forgiveness of the promissory loan as part of the wife's inheritance during the marriage, awarding the husband fifteen percent of the value of the promissory note together with other inherited assets. The judge specifically took into account the husband's contribution to the marital home when awarding him half of the appreciated value. Given the facts, the judge's award was not “plainly wrong and excessive.” Id. at 631.
For the first time in his reply brief, the husband argues that the judge erred by excluding the following items from the marital estate: a Matisse print, a Maxfield Parrish oil painting, and $2 million that the wife's father gave her and her siblings to set up the Merrill Family Charitable Trust. We treat these new arguments as waived. See Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 688 (2010).
3. Motion to vacate. The husband appeals from the denial of his motion to vacate the judgment pursuant to Mass.R.Dom.Rel.P. 60(b). Here, the basis of the husband's motion was his claimed discovery, in a closet in the marital home, of three unexecuted documents related to the Merrill trusts. As the judge found, the husband cannot establish that the documents previously were undiscoverable by him, or otherwise fraudulently were withheld. The judge did not abuse her discretion by denying the husband's motion. See Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361–362 (2008).
4. Costs and fees. We deny the husband's request for appellate attorney's fees. Because the husband's appeal is not frivolous, we deny the wife's request for appellate attorney's fees and double costs under G.L. c. 211A, § 15.
Amended supplemental judgment affirmed.
Order denying motion to vacate judgment affirmed.