Opinion
16–P–1001
06-15-2017
Phillip REIS v. Suzanne REIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from a judgment of divorce nisi and the denial of his motion to amend the judgment, the plaintiff (husband) argues the judge erred in (1) failing to consider or make findings on all relevant factors pursuant to G. L. c. 208, § 34, (2) valuing the marital assets as of the date of trial despite the parties' separation years earlier, and (3) directing the husband to pay for all of the youngest child's remaining college expenses. For the following reasons, we affirm in part and vacate in part.
Discussion. 1. Findings on division of assets. "A division of marital property which is supported by findings as to the required factors [pursuant to G. L. c. 208, § 34,] will not be disturbed on appeal unless ‘plainly wrong and excessive.’ " Passemato v. Passemato, 427 Mass. 52, 57 (1998), quoting from Heins v. Ledis, 422 Mass. 477, 481 (1996). A judge "ha[s] broad discretion to determine how to divide the entire estate equitably." Williams v. Massa, 431 Mass. 619, 626 (2000).
Based on the evidence presented at trial, the judge found that the parties' long-term marriage was "an equal partnership with the Husband providing financial support and the Wife being the primary homemaker and caretaker of the children." With regard to the husband's business, the judge found that the company was founded prior to the marriage and there was no evidence that the wife directly contributed to its growth. While the judge's findings might have been more detailed, we are confident from his rationale that he properly evaluated the relevant factors in concluding that "with the exception of the Husband's business," the parties are entitled to a "relatively equal division of the marital estate." This determination flows logically from the findings and underlying evidence at trial, and thus we cannot conclude it was "plainly wrong and excessive." Passemato, supra.
2. Date of valuation. "The right to equitable division of property is fundamentally based on a partnership model." Kuban v. Kuban, 48 Mass. App. Ct. 387, 389 (1999) (quotation omitted). Accordingly, the appropriate date for valuation of the marital estate is when the marital partnership "for all intents and purposes end[s]." Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996). In the context of property division, this is typically the date of the divorce trial. Caffyn v. Caffyn, 70 Mass. App. Ct. 37, 43 (2007). However, "the judge has the discretion to make that determination at another date when warranted by the circumstances of a particular case." Ibid., quoting from Moriarty, supra. In making that determination, the judge considers whether and to what extent each party contributed to the marital partnership, "for the period the parties are living together and during any period of separation prior to a divorce." Wheeler v. Wheeler, 41 Mass. App. Ct. 743, 746 (1996). Such considerations may include the parties' efforts "in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit." G. L. c. 208, § 34, as amended by St. 1988, c. 23, § 67.
Here, the judge determined that despite the couple's separation in 2008 when the husband moved out of the home, the marital partnership continued until the time of trial. While the wife admittedly made no financial contributions to the estate, the judge found that she continued to contribute to the marital partnership as the primary homemaker and caretaker of the couple's four children. The record indicates that she continued to live in the marital home with the children who were ages thirteen, fifteen, seventeen, and nineteen at the time of separation. The husband continued to contribute financially during this time and filed joint tax returns on the parties' behalf for four of the seven years postseparation. The home remained in both parties' names, and the husband acknowledged that he continued to come and go as he wanted. Accordingly, the judge did not err in finding that the marital partnership continued after separation and in dividing the marital assets based on valuations as of the trial date.
Contrary to the husband's claim, even if the wife used no funds to care for the children other than those provided by the husband, the judge's finding that "[w]hile the Wife did not contribute financially to the extent of the Husband or even to her potential, her contribution as caretaker of the children is significant," is not erroneous. The role of caretaker involves far more than a mere calculation of one's financial contributions to the family. The record indicates that throughout the marriage, the wife was responsible for the running of the household, which continued to be the primary residence of the parties' four children, three of whom were minors when the husband moved out.
The wife's acknowledgment that the "relationship as husband and wife was over ... in August of 2008" is not determinative for purposes of the appropriate valuation date. Despite their physical separation and the end of their romantic relationship, the parties continued their marital enterprise in other respects, as discussed herein. See Moriarty, supra at 154–155.
The husband argues that with respect to his 401(k) retirement plan in particular, the appreciation in value that occurred postseparation can only be attributed to his own efforts and therefore should be divided based on its valuation as of the separation date. However, as discussed, a party's contributions that result in an asset's appreciation is only one factor the judge may consider in determining an equitable distribution of the estate. See Pare v. Pare, 409 Mass. 292, 297 (1991). The judge may also consider the significant contributions a spouse made to the marital partnership in the homemaking and caretaking of the children, as the judge appropriately did here. See ibid. See also Wheeler, supra (parties should share equitably in any change in value of assets after separation where wife substantially contributed to marital partnership after that time).
The husband overemphasizes the factual distinctions in decisions such as Pare, supra, and Wheeler, supra (namely that the husbands there had little to no involvement with their children postseparation and did not contribute financially). The husband fails to consider the over-all intent of equitable division as well as the importance of the judge's broad discretion in making determinations on a case-by-case basis. See Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).
3. College expenses. The husband argues it was error for the judge to order him to continue paying the college expenses of the parties' youngest child, as he had for her first two years of college. While we acknowledge that G. L. c. 208, § 28, allows a probate judge, upon a judgment of divorce, to make appropriate orders relating to the education expenses of an unemancipated child, that issue was not properly before the judge here.
Fundamental notions of fairness require a party to have timely notice of the claims he faces. Jensen v. Daniels, 57 Mass. App. Ct. 811, 815 (2003). Consequently, a judge's decision on an unpleaded issue may raise serious due process concerns. Ibid. An unpleaded issue, however, can be fairly tried by express or implied consent. Id. at 815–816. See Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974). Express consent is easy to detect. Jensen, supra at 816. In determining whether an unpleaded issue was tried by implied consent, "the record must, at a minimum, show that the parties knew the evidence bearing on the unpleaded issue was in fact aimed at that issue and not some other issue the case involved." Ibid.
The pleadings here make no mention of the support or maintenance of any current or future college expenses of the children. In fact, in his rationale, the judge stated that the only contested issues before him involved the proper division of assets, namely whether the husband's business was part of the marital estate, and the date at which the 401(k) should be valued. While evidence of the husband's payment of the youngest child's first two years of college expenses was introduced on direct examination, a careful review of the record does not show that the parties understood that evidence to bear on any issue other than the husband's contribution to the upbringing of all four children, including their costly education expenses both before and after the separation. No evidence was introduced concerning the youngest child's remaining years of college, with the exception of the husband's acknowledgment that she had moved off-campus for the upcoming school year. The husband lacked notice that payment of the remaining college expenses was at issue and was thus unfairly prejudiced by the portion of the judgment ordering him to pay for the entirety of those expenses. See id. at 818.
The only reference by either party to the issue of payment of the child's remaining college expenses appears in the wife's proposed judgment and rationale which was served on the husband on July 30, 2015, the submission date imposed on both parties following trial. In her proposed rationale, the wife reasons that the husband should pay the child's remaining college expenses because of the wife's lack of involvement, coupled with the husband's significant role, in the child's college decision-making process as well as the husband's use of a personal injury settlement to pay the child's previous college expenses. The record supports these facts and the husband acknowledged them on cross-examination; however, that theory of responsibility was not argued or advanced at trial such that the issue of future college payments was implied by consent or the husband otherwise had fair notice of the issue. See Jensen, supra at 818.
The husband testified that he had paid for the child's security deposit for her off-campus apartment but was unsure where she was getting the funds to pay rent.
Conclusion. So much of the judgment that directs the husband to pay for the youngest child's remaining college expenses is vacated. In all other respects, the judgment is affirmed.
We deny the husband's request for appellate attorney's fees.
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So ordered.
Affirmed in part, vacated in part.