Opinion
16-P-1108
06-19-2017
M.L.-S.F. v. J.S.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from a judgment of divorce nisi, challenging the division of property, the lack of an alimony award, and other rulings and orders. We affirm.
Background. The parties married on June 25, 1990. They have three adult children. The husband has been a school bus driver for over twenty years. The wife graduated from law school in December of 2011. In 2013, after leaving her job, she opened her own law practice. The parties last lived together on November 14, 2013.
The wife filed her complaint for divorce on May 13, 2014. Following various pretrial motions and orders, the divorce trial was held on November 5 and 6, 2015. On December 30, 2015, the judge issued a judgment of divorce and a supporting memorandum containing findings of fact, conclusions of law, and rationale. The judgment provided that the proceeds from the sale of the marital home and the parties' liquid assets would be divided equally after prior withdrawals by each of the parties were taken into account. The wife was awarded sole interest in her law office.
The wife's argument that the judgment should be reversed because the judge failed to issue conclusions of law fails because they are included in his memorandum.
In his December 30, 2015, findings of fact, the judge wrote that the husband estimated the house to be worth more than $350,000. The parties subsequently stipulated that that the value of the house was $365,000.
Discussion. "A judge has broad discretion when awarding alimony and dividing marital assets pursuant to G. L. c. 208, § 34." Heins v. Leidis, 422 Mass. 477, 480-481 (1996). "If the judge has made the obligatory findings under § 34 and ‘has not considered any irrelevant matter, his determinations as to alimony and property division may not be reversed unless plainly wrong and excessive.’ " Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993), quoting from Redding v. Redding, 398 Mass. 102, 107-108 (1986). The judge's findings are to stand unless they are clearly erroneous. See Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014). It is up to the judge to evaluate the credibility of witnesses. See Goodman v. Atwood, 78 Mass. App. Ct. 655, 657-658 (2011).
1. The wife claims that the husband made misrepresentations as to various accounts and the judge disregarded her explanations about her financial statements and the husband's financial statements. However, the wife's argument overlooks that fact that the judge found the wife's testimony on these various financial matters to not be credible. Also, the judge did not credit the wife's testimony with respect to her income and that she listed a nonexistent mortgage on her financial statements. He found that she failed to disclose even partial account numbers on her financial statements and listed only one account there. He found her testimony that she could not recall other accounts was not credible and her claim that she had $1,000 in her bank accounts was not credible. He also found that funds in the four Bank of America accounts controlled by the wife were spent, transferred, or secreted by her since the separation.
The divorce judgment was issued on December 20, 2015, and docketed on January 6, 2016. The wife filed her notice of appeal on January 6, 2016, and her motion for reconsideration on January 19, 2016. To the extent the wife purports to challenge the denial of that motion, she failed to present a reasoned appellate argument on that issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even if we were to assume that she did, the judge did not abuse his discretion in denying it. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 408 n.5 (2004).
2. The wife also challenges the judge's division of assets. She claims she was left with responsibility for the loans from her sister and her son, no pension fund, and that the husband retained his 401(k). As to judge's findings that the alleged debt to her sister and the debt to one of the children were the wife's personal debts, not marital debts, these findings were not clearly erroneous. See Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 774 (2006) ("A judge's assessment of the quality of the testimony is entitled to considerable weight because he or she is in the best position to judge the weight and credibility of the evidence").
The wife also claims that she was left with her ten year old Toyota while her husband was able to keep his 2016 Toyota. In his findings, the judge was cognizant of, and noted, the different values of the two cars.
The judge found: "Wife testified as to the liabilities owed to her sister[,] which was memorialized by a note from her sister. The date on the note was altered. No other credible proof of said debt was entered in [ ] evidence. The [c]ourt did not find this testimony of [w]ife credible. The [c]ourt finds that this sum is not marital debt." As to wife's debt to one of the children, the judge found: "As a child, [J.S.F. Jr.] had two law suits involving possible lead paint poisoning. These cases settled in 1997 for a total of $260,000. Wife controlled these funds and [h]usband was not involved with their use or management. Since the child turned 18, [w]ife received $133,950 from these settlement proceeds. This twenty-four [year old] adult child of the marriage was unaware of these funds until days prior to this trial. Wife testified that money she received for his benefit was saved in the equity of the marital home. Although [w]ife wishes to characterize this as a loan from her adult child, it clearly was not a loan as the son was unaware of said funds. As [w]ife solely controlled said funds and determined their use, [w]ife is responsible for said debt to her son."
To the extent the wife argues that the judge did not consider all of the G. L. c. 208, § 34, factors, this claim is belied by the judge's memorandum of decision. Furthermore, in dividing the marital estate equally, the judge took into consideration the wife's liquidation of her pension account just prior to the separation and her ownership of several other bank accounts. The judge calculated that the wife was "due an additional $11,467 in marital assets." Viewed as a whole, the judge's division of assets fell within the bounds of his discretion under § 34.
The wife paid off her student loans using her pension funds on November 4, 2013, ten days before the separation.
The wife challenges the judge's finding number twenty-two, which states: "Insufficient evidence was presented to indicate that [h]usband owned any real property in Haiti or any value thereof." Where the document is unnamed, where neither the signature on the second page, nor the third page are translated, where no price is listed on the document and where the related transcript page sheds no light on the matter, where the translation is unclear and no expert was offered at trial regarding this document, the judge's finding is not clearly erroneous.
3. The wife also claims that the judge should have awarded her alimony. "[T]he statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay." Pierce v. Pierce, 455 Mass. 286, 296 (2009), quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986).
The judge found that at the time of trial the wife was fifty-two years old and the husband was sixty-four years old, they had roughly equal incomes of $45,000, she from her law office and he from this job as a bus driver, and equal expenses of $550 per month. He also found: "Wife remains able to support herself through her employment. This is likely to continue for the foreseeable future.... She has a law degree and her student loans are completely paid." The judge found that "[b]oth [h]usband and [w]ife can maintain themselves in the marital lifestyle without the support of the other." See Pierce, supra.
The judge found: "Wife is an attorney with her own practice in Massachusetts. She indicated that she makes about $26,000 from her employment. Wife's testimony concerning her income was not credible. The [c]ourt attributes income of $45,000 to [w]ife for her practice of law and/or using her law degree to support herself." In her brief, the wife does not challenge the judge's attribution of income. Moreover, in view of the wife's self-employment and her lack of credibility regarding her finances, the judge did not abuse his discretion in attributing income to her. See Croak v. Bergeron, 67 Mass. App. Ct. 750, 755 (2006).
Where the parties were on equal footing with respect to income and expenses, where the judge divided the marital home and the liquid assets equally and awarded the wife's law practice to her, he did not abuse his discretion in not ordering alimony to the wife.
4. The wife's contention that "[t]he trial court's orders based on the discovery practices in this case should be vacated," fails to identify specific orders from which she purports to appeal. Moreover, the judge found that it was the wife who failed to cooperate with discovery and misused the motion practice. Even if we were to read the wife's argument as challenging the judgment of contempt against her, this challenge would not be before us as she did not appeal from that judgment.
The judge wrote: "In this matter, [w]ife failed to cooperate with the discovery process including the filing of inaccurate and incomplete financial statements. She testified that her financial statement was inaccurate. She also failed to cooperate with the [d]iscovery [m]aster resulting in a finding of contempt. She also failed to pay the [d]iscovery [m]aster as ordered and failed to appear when the [d]iscovery [m]aster was forced to file a contempt to seek payment. After a capias was issued for her, wife then appeared and did not offer any payment to the [m]aster instead again arguing that she did not have funds to pay for said court ordered fees but rather had paid her office and personal expenses. She then impugned the professionalism of the [m]aster. She has consistently impugned the professionalism and character of opposing counsel. The [c]ourt found [husband's counsel] to be professional in all of his appearances in said matter. Wife has also filed a number of duplicative motions and a number of other motions with little to no merit. Wife's failures to cooperate with the discovery process and actions in this litigation and misuse of motion practice has caused [h]usband to incur legal fees in excess of the cost of said litigation if she acted in an appropriate manner. Therefore, she will be responsible for $12,720 of [h]usband's attorney's fees which includes the previous order of $3,000 from the [j]udgment of [c]ontempt of April 17, 2015."
5. The wife argues that the judge abused his discretion in ordering her to pay $12,720 of the husband's attorney's fees. "The probate judge has discretion in awarding attorney's fees in appropriate circumstances." Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), citing G. L. c. 208, § 38. In light of the judge's findings about the wife's conduct during the pendency of this case, and the submissions of husband's counsel in support of his request for attorney's fees, the judge did not abuse his discretion in making this award to the husband. For the above-stated reasons, the wife was not entitled to an attorney's fee award.
We have carefully considered each of the remaining arguments presented in the wife's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit. See Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).
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Judgment affirmed.