Opinion
16-P-138
08-24-2017
Michael H. BINDER v. Pilar Z. MAURY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from a judgment of divorce nisi entered in the Probate and Family Court, arguing that the judge erred in (1) using the husband's income as of the time of separation in 2004 to fix the amount of alimony; (2) failing to consider fully the wife's contributions to the marital partnership in the property division under G.L.c. 208, § 34 ; and (3) disproportionately dividing the marital estate in the husband's favor. We affirm.
The parties were married on December 23, 1993, and separated in or about May, 2004, living separately and apart thereafter. There were three children born of the marriage; at the time of trial, none of the children was emancipated. During the marriage, the husband was the sole financial provider, and the wife, after the first child was born, stayed at home. The husband was heavily involved in the children's day-to-day care, school, and activities. While they were married, the parties enjoyed a middle-income life-style. After separation, the husband remained living in the marital home in Norton (which property was held in his name alone), and the wife moved with the children to Wellesley. The wife remained unemployed outside of the home during the years of separation (2004 to 2015) and the husband continued to provide complete financial support for the wife and the children from 2004 up until he filed for divorce in 2012—without a court order requiring him to do so. During the ten-year period of separation, the parties had great difficulty coparenting.
On September 5, 2012, the husband filed his complaint for divorce, stating that, in May, 2004, "it became clearly established" that there was an irretrievable breakdown of the marriage. A trial was held on April 10, 2015; neither the wife, nor counsel on her behalf, appeared for trial. On June 1, 2015, the judge issued his judgment of divorce nisi and rationale, based on a determination that there was an irretrievable breakdown of the marriage in May, 2004. The judgment, among other things, grants sole legal and physical custody of the children to the husband (with designated parenting time to the wife); orders the wife to pay to the husband the presumptive monthly minimum of eighty dollars in child support; orders the husband to pay to the wife general term alimony in the weekly amount of $2,055; allows the husband to retain sole and exclusive ownership of the marital home, with the husband receiving sixty percent of the net equity and the wife forty percent, and divides equally with the wife the value of the husband's 401K retirement account as of the date of separation; and allows each party to retain certain personal property, including their respective bank accounts and automobiles. The judge's findings were based on the "credible testimony and submissions of [the] Husband, in addition to the observations and recommendations of [the] Guardian ad litem, Dr. Ellen Berlinsky, as contained within her Report dated March 2, 2015, and admitted into evidence in this case." The wife did not file any postjudgment pleadings.
On May 29, 2012, the husband had filed an earlier complaint for divorce but he failed to serve it timely on the wife, thus prompting him to file the underlying complaint in September, 2012.
The wife stated in her answer and counterclaim that she "accepted" on May 29, 2012, that there was an irretrievable breakdown of the marriage.
According to the wife, due to equipment malfunction in the court room the day of trial, the proceedings were not recorded and, therefore, no transcript is available.
On May 21, 2015, the wife's motion requesting a stay of entry of judgment pending a new trial was denied.
The judge found that the husband is the "more responsive parent," attending to the children's day-to-day academic, financial, and emotional needs; the children's teachers "characterized [the w]ife as difficult to reach and largely absent" with regard to the children's academic progress. The judge based his findings on the "[c]redible testimony from the children and collaterals" contained in the report of the guardian ad litem (GAL); the GAL also noted in her report that the wife "was not consistently cooperative and showed affective lability" during the reporting process. The judge found credible the children's reporting to the GAL that the wife has refused to accommodate parenting time between the husband and the children "as a punishment for their failure to complete their chores, or for no reason at all."
The judge found that the wife's long-term absence from the workplace and lack of marketable skills prevented her from being self-supporting and, thus, alimony was appropriate. The judge measured the wife's need for support at the time of the parties' separation in 2004, as the standard of need is measured by the station and life-style she enjoyed during the marriage, and also because the wife failed to appear at trial and present evidence as to her current need. The judge also found that the weekly expenses listed on the wife's 2014 financial statement (the most recent filing at the time of trial) were "inflated and uncharacteristic of a middle income lifestyle." Absent an indication of need, the judge (citing to Hassey v. Hassey, 85 Mass. App. Ct. 518, 525 [2014] ) appropriately ordered an award representing thirty percent of the difference in the parties' gross income at the time of separation in May, 2004. At that time, the wife had no income and the husband's annual income was $356,300, resulting in an alimony award of $2,055 weekly in accordance with the Alimony Reform Act. G.L.c. 208, § 53(b ).
The judge determined the disproportionate, but equitable, division of the marital estate based on the "disparate contributions of the parties during the marriage," the wife's lack of contribution during the marriage and separation period, and the fact that the increase in any value of the marital home and the husband's 401K retirement account were due solely to the significant efforts of the husband, especially during the decade-long separation period.
On October 28, 2015, and again upon reconsideration, on November 30, 2015, a single justice of this court allowed the wife's motion to file a late notice of appeal, which she did in a timely fashion. On appeal, the wife states in her brief that she will not challenge the evidentiary foundation or the basis of any of the judge's findings but, instead, will focus solely on the judge's application of the law to the findings of fact. She argues that the judge erred (1) in using the husband's income as of the time of separation in 2004 to fix the amount of alimony and by failing to include the substantial period of separation in determining the duration of alimony; (2) in failing to consider fully the wife's contributions to the marital partnership in the property division under G.L.c. 208, § 34 ; and (3) in disproportionately dividing the marital estate in the husband's favor.
On September 10, 2015, the Probate and Family Court judge had denied the wife's motion to allow the late filing of her notice of appeal, stating, "[N]o authority in this Court to extend time for filing"; the wife then brought an interlocutory appeal with this court. On March 9, 2016, a single justice of the Supreme Judicial Court denied the husband's petition under G.L.c. 211, § 3, for relief from the decision of the Appeals Court single justice allowing the wife's motion to file a late notice of appeal. The husband purports to appeal to this panel from the decision of the Appeals Court single justice. However, he has failed to perfect his appeal, see Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001), and it therefore is not before us.
The wife, however, did not raise any of these issues at trial (as she was absent), nor did she call them to the judge's attention by posttrial motion. Therefore, each of the issues raised in the wife's brief is waived in this court. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006). In addition, because no trial transcript exists, we cannot say based on this record alone that the judge was wrong to decide as he did. See Tatar v. Schuker, 70 Mass. App. Ct. 436, 439 n.5 (2007). See also Gravlin v. Gravlin, 89 Mass. App. Ct. 363, 367 (2016).
Judgment of divorce nisi affirmed.
The husband's request for appellate attorney's fees is denied.
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