Opinion
15-P-1409
04-27-2016
C.E. v. J.E.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, C.E. (wife), appeals from an amended judgment of divorce nisi dated "June 11, 2015, as of April 21, 2015" entered by a judge of the Probate and Family Court. She argues that the judge abused her discretion and erred in two respects: (1) allowing the defendant, J.E. (husband), unsupervised visitation with the minor children despite evidence of sexual abuse of one child, and (2) the allocation of marital assets and award of alimony.
Background. We recite the judge's findings of underlying facts, reserving additional facts as they pertain to the issues.
The husband and wife were married on February 24, 1989. The wife is the sole owner of a law firm, where she works as the principal attorney. The husband was the primary caretaker of the children and either employed part-time or unemployed throughout most of the marriage. During their marriage, the parties accumulated substantial wealth and assets.
In April of 2002, the husband and wife adopted two children; the adoptions became final in September of 2003. The biological mother of the two children had substance abuse and mental health issues. The wife suspected the older daughter had a preadoption history of sexual abuse. Throughout elementary school, the older daughter had language learning delays and was placed on an individualized education plan. A neuropsychological evaluation of the older daughter concluded that she was "particularly vulnerable to the effects of peer pressure given" her language impediments and was "less likely than the typical teen to grasp the larger implications of specific actions."
The children are biological sisters. The older daughter was born in September, 1997, and the younger daughter was born in February, 2001. The older daughter was four and one-half years old when she began living with the husband and wife. The younger daughter was one year old.
The older daughter was unusually sexualized as a child.
Sexual abuse allegations. On June 25, 2011, the older daughter confided to an acquaintance at a family party that "sometimes her father stripped her down to her underwear and on other occasions he would lie on top of her." The acquaintance notified the husband, and the Department of Children and Families (DCF) became involved. A few days later, the wife first learned of the allegations when a DCF assessment worker called her.
After the telephone call, the wife confronted the older daughter. The husband, also present, angrily told the older daughter to tell the truth; the older daughter immediately recanted. The next day, the wife took the older daughter to the hospital for a physical examination; no physical signs of abuse were found. The daughter began treatment for her mental health issues.
During a conversation later that day, the older daughter repeated her recantation.
The older daughter also spoke to a social worker, who filed a report pursuant to G. L. c. 119, § 51A.
A week later, the older daughter was brought to the district attorney's office for a sexual assault intervention network (SAIN) interview. After the interview, a report pursuant to G. L. c. 119, § 51A, was filed against the parties. In response, the wife signed a safety plan with DCF, in which she agreed that the husband would not be allowed back into the family home or to spend time alone with either daughter. On July 11, 2011, DCF decided to support the allegations against both the husband and the wife.
At that time, the wife disbelieved the allegations of sexual abuse. The wife believed that the behavior of the older daughter "show[ed] that she did not suffer from trauma stress disorder, was atypical for an alleged sexual abuse victim and suffers from substantial language disorders."
In September of 2011, the husband returned to the family home. Throughout this time, there were multiple instances of unsupervised contact with the daughters, including an overnight trip with the older daughter to a soccer tournament. DCF ceased its services in October of 2011; the final service plan neither required the husband's parenting time to be supervised nor prohibited overnight parenting time.
However, when the husband and wife had a consolidated fair hearing to challenge the allegations in February of 2012, DCF continued to support allegations against both.
In February of 2012, the wife saw the husband and the older daughter cuddling on the couch in the family room with the television on, the lights off, and the doors closed. Later that month, the husband told the wife he wanted to keep a gun in the marital home. At that point, the wife no longer felt safe and decided to move out. On March 6, 2012, the wife filed the complaint for divorce and was granted temporary custody of both daughters. During the pendency of divorce, the husband was allowed supervised visitation.
After the complaint was filed, the older daughter exhibited instances of violence toward the wife. She also began to engage in self-harm. In April of 2012, the wife brought the older daughter to a second SAIN interview. The same month, the husband filed an appeal of DCF's fair hearing decision issued in February of 2012; in February, 2013, the husband and DCF entered into a stipulation of dismissal.
In one instance, the older daughter gave herself a third-degree burn by putting salt on the back of her hand and then icing her hand. She also began cutting herself.
In late summer of 2012, the older daughter was hospitalized for inflicting self-harm, in which she continued to engage after hospitalization. In February of 2013, she was admitted to a residential therapeutic school. During her time there, she handwrote multiple accounts of the alleged sexual assault. During this time, the older daughter only saw the husband during supervised visitation. After the visitation supervisor resigned in August of 2014, the husband declined to hire a new supervisor as he did not believe supervised parenting time was beneficial to the older daughter.
The judge appointed a guardian ad litem (GAL) who met with the parties multiple times. The GAL reviewed the underlying pleadings and submissions to the court including DCF records, the psychological trauma evaluation of the older daughter, the medical and physical examination records from the hospital conducted after the allegations of abuse, a recommended parenting plan from the older daughter's therapist, a neuropsychological evaluation of the older daughter conducted in 2011, and a discharge summary regarding the older daughter's residential treatment at a treatment facility. He also requested that the parties participate in additional psychological testing.
After a fourteen-day trial with fourteen witnesses, the judge granted primary physical custody of both children to the wife and allowed the husband unsupervised parenting time. Following the entry of the amended judgment, the mother filed a notice of appeal, and unsuccessfully sought a stay of the amended judgment from both this court and the Supreme Judicial Court. See C.E. v. J.E., 472 Mass. 1016 (2015).
Discussion. Evidentiary matters relating to alleged sexual abuse. We review the judge's allowance of unsupervised visitation with the husband for an abuse of discretion, noting that "[a] Probate Court judge must settle custody in a manner that advances the best interests of the children." Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987). We defer to "the judge's assessment of the weight of the evidence and the credibility of the witnesses." Custody of Eleanor, 414 Mass. 795, 799 (1993).
We note that as of the time of this appeal, the older daughter is emancipated and only the younger daughter remains subject to the visitation order.
The wife first seeks to overturn the judge's finding of insufficient evidence to support a claim that the husband sexually abused the older daughter. "In order to conclude that it was clearly erroneous for the trial judge to fail to find a fact as to which the appellant was the proponent in the trial below, we must conclude that the evidence at the trial court required the finding in question." LaLonde v. LaLonde, 30 Mass. App. Ct. 117, 119 (1991) (emphasis in original).
Despite the older daughter's repeated assertions that the husband abused her, the record does not mandate such a finding. See id. at 124 (evidence did not mandate finding of sexual abuse where professionals could not conclude whether sexual abuse occurred although child "never wavered from her accusation"). The GAL reported that when the older daughter recounted the sexual abuse, her demeanor was "completely flat and without any indication of awareness of the provocative content of her narrative"; other professionals also noted the atypicality of the daughter's affect. The GAL relied on the information provided to him by several professionals who evaluated the older daughter, all of whom concluded that marital discord was one of the most significant negative impacts on her. Finally, while the lack of physical evidence from the examination does not lead to a conclusion that sexual abuse did not occur, it also does not manifestly support a mandated finding of sexual abuse. Therefore, it was not error for the judge to conclude that no sexual abuse was proven.
The older daughter's therapist testified that the older daughter is a "very vulnerable and complicated" young person as the result of her early maternal deprivation preadoption and that her disclosure of the alleged abuse was "atypical."
We now turn to the wife's position that the judge erred by excluding the older daughter's handwritten statements. "Trial judges have broad discretion to make . . . evidentiary rulings conducive to the conduct of a fair and orderly trial." Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131 (2002) (quotation omitted). The wife argues that the handwritten statements should have been admitted in evidence as an attachment to the GAL report. "GAL reports may contain hearsay if [the] GAL [is] available to testify at trial and [a] source of material is identifiable such that [the] affected party may rebut." Care & Protection of Jamison, 467 Mass. 269, 274 n.15 (2014). The judge did not err in determining that the husband would not be afforded an opportunity to rebut the statements. Adoption of Carla, 416 Mass. 510, 514 (1993) ("To permit the admission of a child's hearsay statements for their truth would violate this requirement where the parent is denied the opportunity to rebut those statements effectively. Such is the case when the child does not testify and the trial judge has no other means by which to assess the credibility and accuracy of the child's statements"). The wife has identified no rule that would mandate the admission of the statements. Finally, the judge correctly concluded that several other sources were available that would provide sufficient evidence of the daughter's claims in lieu of the older daughter's direct testimony and the admission of her handwritten statements.
As the older daughter was older than ten at the time she made the allegations, G. L. c. 233, § 82, does not apply.
The wife relies in part on Commonwealth v. Aviles, 461 Mass. 60, 67-73 (2011). There is no definitive authority of which we are aware for the application of the first complaint doctrine as a vehicle for admitting hearsay outside of criminal law cases. However, if we were to apply it here, we would discern no error in the judge's conclusion that these statements do not constitute admissible statements under the first complaint doctrine. See Commonwealth v. King, 445 Mass. 217, 243-248 (2005). Admission of the statements does not serve to assist "in determining whether to credit the complainant's testimony about the alleged sexual assault," nor do they assist in proving "the truth of the allegations" when the fact the daughter made the statements was not contested. Mass. G. Evid. § 413(a) (2016). In addition, the statements are not admissible as a statement made for the purposes of medical diagnosis or treatment. They were not "made for the purpose of medical diagnosis or treatment describing medical history, pain, symptoms, condition, or cause" and furthermore, contained "the identity of the person responsible." Mass. G. Evid. § 803(4) (2016). Finally, the statements cannot be admitted as a then existing mental, emotional, or physical condition as such statements must be "not too remote in time" and cannot be used "to prove the fact remembered or believed." Mass. G. Evid. § 803(3)(B)(i) (2016). To the extent that the wife makes a due process argument, "[it] ha[s] not been overlooked. We find nothing in [it] that requires discussion." Department of Rev, v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004) (quotation omitted).
Given our conclusion that the judge did not err in her fact finding, we discern no abuse of discretion in the custody arrangement. The judge carefully examined the behavior of both daughters with the husband and, while she could have made other findings on the basis of evidence that was contradictory, the record supports the findings she did make. Specifically, the judge found that the older daughter wavered on the issue of supervision but ultimately told the GAL that she preferred unsupervised visitation. The judge also noted that during more recent unsupervised visits with the husband, the younger daughter was in a good mood, engaging, receptive and responsive to doing activities. We find no abuse of discretion in the judge's conclusion that the younger daughter would benefit from more time with the husband, who was also the primary caretaker prior to the divorce.
The older daughter is now of the age of majority; the relevance of her claims of abuse is limited to whether the judge was required to find a risk warranting supervised visits between the father and the younger daughter, with respect to whom no abuse allegations have been made.
Award of alimony and distribution of the marital estate. The wife argues that the judge erred in (1) entering temporary alimony orders in excess of the permitted statutory maximum under G. L. c. 208, § 53, and failing to correct the error in the amended judgment, (2) accepting a certain valuation of the wife's business, (3) assigning the bulk of the couple's liquid assets to the husband, and (4) equally dividing assets that the wife acquired after the entry of the temporary alimony order.
1. Temporary alimony orders. General Laws c. 208, § 17, governs the allocation of temporary alimony during the pendency of divorce. At the time, the wife reported an income of $20,151.69 per week and the husband reported no income. The first temporary alimony award ordered on March 12, 2012, to the husband was $6,934.69 per week, less child support. The wife argues that the temporary alimony should have been reduced retroactively based on the judge's finding in her amended findings of fact that the wife's annual income was $350,000.
We note that "[t]he [alimony] reform act addresses only divorce judgments and the modification of such judgments; it does not address any matter that may arise between the filing of the complaint for divorce and the issuance of the judgment. Specifically, it did not amend, and did not even reference, G. L. c. 208, § 17, which provides for the payment of temporary alimony during the pendency of a divorce action." Holmes v. Holmes, 467 Mass. 653, 658-659 (2014).
The amount less child support was $5,632.54 per week. On November 28, 2012, alimony was reduced to $4,000, and on July 24, 2014, to $3,500.
We find no abuse of discretion at the time the temporary order was issued where the amount was based on the wife's self-reported income; the temporary alimony award was within the range established by G. L. c. 208, § 53(b). Furthermore, there was no double-dipping as the assets had not "already . . . been equitably assigned." Dalessio v. Dalessio, 409 Mass. 821, 828 (1991).
We find no abuse of discretion. Even assuming G. L. c. 208, § 53(b), inserted by St. 2011, c. 124, § 4, applies to the allowance of temporary alimony, the express language of the statute provides that "the amount of alimony should generally not exceed . . . 30 to 35 per cent"; this is not a mandatory cap but a guideline. The case cited by the wife to establish that case law mandates the adjustment of temporary orders is inapposite. See Richman v. Richman, 28 Mass. App. Ct. 655, 665 (1990) (remanding case to reconsider issue of temporary alimony where husband failed to pay ordered temporary alimony and judgment nisi did not take such failure to pay in account).
2. Business valuation. The judge's valuation of the wife's business was not clearly erroneous. A judge is "free to reject the opinion of [a party]'s expert and the valuation methods on which it was based." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989).
The judge credited the testimony of the husband's expert, finding that he conducted a thorough examination in determining the valuation of the wife's business. This included the expert's determination of the wife's adjusted compensation. The wife took objection to the expert's adjustment for nonowner employee compensation and for rent. The ratio of salary to revenue that the expert calculated, 52.4 percent, was between the historical average of 45.9 percent and the trailing twelve months of 55 percent; it was within the judge's discretion to find the adjustment reasonable. Similarly, the adjustment for rent was based on the opinion of the expert whom the judge was entitled to credit.
The business was located at property held in trust, of which the wife was a cotrustee. Instead of using the figure on the lease, the expert estimated the market rent based on a real estate appraisal of the property, and adjusted the business valuation accordingly.
3. Division of liquid and illiquid assets. The judge concluded that both parties contributed equally to the marriage, and thus an equal distribution of marital assets was most equitable. In fashioning the distribution, the judge assigned the totality of the law firm to the wife. As a result, the wife held 96.5 percent of the assets. It was not an abuse of discretion for the judge to order the wife to pay the husband $1,073,396.16 over a period of ten years to effectuate an equal division of assets. See id. at 861-862 (judgment affirmed where judge ordered cash payment for leaving intact husband's stake in his business).
The record fully supports this determination.
Furthermore, it was not unreasonable for the judge to distribute the entire business to the wife. The business generated the majority of the total income throughout the marriage and "had significant, readily accessible cash value" that would enable her to make the ordered payments. Sampson v. Sampson, 62 Mass. App. Ct. 366, 372 (2004).
4. Asset value postseparation. The wife argues that the judge should not have divided the postseparation increase in the equity in the jointly-owned house equally between the parties, as that increase resulted from mortgage payments made only by her. She advances the same argument with respect to monies paid by her after the separation into her retirement account. "[T]he marital estate is typically determined as of the date of the divorce trial, [although] the judge has the discretion to make that determination at another date when warranted by the circumstances of a particular case." Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996). We see no abuse of discretion in this case where the judge considered all of the discretionary and mandatory factors of G. L. c. 208, § 34, and concluded that both parties contributed equally to the marriage. See Pare v. Pare, 409 Mass. 292, 297 (1991), quoting from Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977) (judge abused his discretion in "focusing on the narrow issue of which spouse paid more toward the house" after separation and not "apply[ing § 34] in a broad sense to the value of all contributions of the respective spouses towards the marital enterprise").
In sum, we conclude that the judge did not abuse her discretion in fashioning the custody arrangement or the distribution of alimony and the marital estate. We find no error in her conscientious fact finding.
The husband's request for appellate attorney's fees and costs is denied.
Amended judgment affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 27, 2016.