Opinion
11-P-539
12-21-2011
CAREN M. ACHESON v. KEVIN T. ACHESON.
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 plaintiff, Caren M. Acheson (wife), appeals from an order denying her rule 60(b) motion for relief from the divorce judgment. See Mass.R.Dom.Rel.P. 60(b) (1975). At issue is a handwritten provision in the parties' separation agreement that calls for the parties to total and 'equalize' their IRA accounts. The wife contends that this language was intended to refer to the marital estate as a whole, not just the IRA accounts, that the parties' assent to the language in the separation agreement concerning the IRAs was a mutual mistake, and that the separation agreement, as incorporated into the divorce judgment, should be reformed so as to effect the intent to divide the marital estate equally. We affirm.
The parties had been litigating their divorce for nearly three years and had drawn up a schedule for the division of most of the marital assets. They had agreed that the marital estate would be split, essentially, fifty-fifty. The parties could not agree, however, on all the details, most particularly about the husband's IRA accounts. The wife was concerned that the values reflected in the husband's financial statements -- about $132,000 -- were outdated.
The parties went back to the judge who had been overseeing the proceedings to resolve this problem, as well as a few others that are no longer at issue, and to finalize the divorce. As the judge put it: 'Just recalculate. Plug in today's numbers for both of them [the IRA accounts] and divide it equally.' The parties went into the hallway and worked out an agreement. The husband's counsel then crossed out the draft separation agreement's pars. 3 and 4 on pages 16-17, which had transferred the husband's IRAs to the wife, and inserted the following handwritten language in their place:
'In consideration of the mutual covenants, agreements and obligations of this Agreement, and in consideration of a division of assets pursuant to the provisions of M.G.L. c. 208, § 34, as amended, the parties shall total their IRA accounts as of the June 30, 2010 statements (i.e. as of 6/30/10). They shall then equalize the total amount with the Husband transferring to the Wife the amount necessary to so equalize.'
Counsel agreed on this language, and the parties signed the revised agreement and presented it to a second judge who was substituting for the first judge, who had to leave early that day. The judgment of divorce nisi entered on August 23, 2010.
The husband contends that the inserted language, when the appropriate numbers are used from the June 30, 2010, statements, means that the husband must transfer to the wife from his IRA accounts about $18,000. In fact, counsel for the wife sent a letter to that effect on September 27, 2010. The wife contends, however, that, under her understanding of the separation agreement, the husband was to transfer to the wife the entire amount of his IRA accounts as represented in the husband's earlier financial statements -- about $132,000 -- and that the husband would split fifty-fifty with the wife any increase in that value as shown in the June 30, 2010, statements. Under the wife's understanding, therefore, she was to receive a total cash payment of about $143,000. According to the wife, she is consequently receiving about $125,000 less than she otherwise should, and the marital estate division therefore actually works out to about fifty-three percent to the husband and forty-seven percent to the wife (rather than the contemplated fifty-fifty split).
On December 8, 2010, counsel for the wife filed a verified motion for relief from judgment, contending that the handwritten insertion quoted above constituted a mutual mistake at odds with the parties' specific agreement. The judge who had overseen the divorce proceedings and proposed the solution reflected in the contested provision disagreed:
'[Wife] relies upon the assertion that the clear intention of the parties was to effectuate a '50-50' division of assets. All the transcripts of all the proceedings confirm this assertion.
'However, the details of a '50-50 division' are less clear. (Certainly, for example, unless each and every identified asset is divided precisely in half, there are tradeoffs and adjustments in achieving an OVERALL 50-50 division. Such is precisely the case here, where [wife] claims that in getting an overall 50-50 division, she was to get 100% of both of the husband's retirement accounts.)
'The language of the Separation Agreement at paragraph 3, page 16, is clear and unequivocal.
'The well-established law which governs relief under Rule 60 does not give this moving party grounds to be relieved from the Judgment of Divorce (which incorporates the Separation Agreement), under these facts and circumstances.'
We review the denial of a motion for relief from judgment pursuant to rule 60(b)(1) under an abuse of discretion standard. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 (1979). Based on our review of the entire record, particularly the handwritten language in the revised separation agreement, the provisions struck from the draft agreement, the transcript of the proceedings leading up to the revised agreement, and the September 27, 2010, letter, we discern no abuse of discretion in the judge's denial of the rule 60(b)(1) motion. The judge's denial of the motion is supported by the plain meaning of the handwritten language, the removal of provisions transferring the entire amount of the husband's IRAs to the wife, the judge's own suggested solution to the IRA disagreement, and the September 27, 2010, letter reflecting that approximately $18,000 was the amount to be transferred.
The husband's request for appellate attorney's fees is denied.
Order denying motion for relief from judgment affirmed.
By the Court (Kafker, Fecteau & Wolohojian, JJ.),