Opinion
11-P-244
12-19-2011
JEAN H. CHRONOWSKI v. JOHN J. CHRONOWSKI.
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 defendant (husband) appeals from a judgment of divorce nisi issued by a judge of the Probate and Family Court after trial, and from the denial of his motions to modify the judgment and for reconsideration. We affirm.
The principal issue on appeal has to do with the division of marital assets. The couple had been married thirty-two years, and the judge ruled that the marital assets should be divided equally. The husband does not challenge the goal of a fifty-fifty split, but he argues that the judge did not in fact accomplish that end because she put too high a value on the three-decker building in which the couple had lived (and which the husband kept). The judge accepted the fair market value ($500,000) that the wife placed on the three-decker in her sworn financial statement, which was introduced as an exhibit. The husband did not offer any contrary evidence at trial. The judge's finding as to value of the three-decker is not clearly erroneous. See Casey v. Casey, 79 Mass. App. Ct. 623, 624 n.1 (2011). Our review of the record shows that the judge considered the relevant statutory factors and that her division of property was not plainly wrong or excessive. See Mahoney v. Mahoney, 425 Mass. 441, 447 (1997).
The judge expressly noted that neither party presented any evidence of the value of the real estate other than what was listed in the financial statements. Strictly speaking, this is not correct, because the wife testified in passing that the home was worth $550,000 ($50,000 above the value listed in her financial statement). It is not clear if this figure is inconsistent with her financial statement, because her testimony also referenced a $50,000 pay-out to the wife's sister. In any event, the wife has not appealed, so we need not consider whether the $500,000 understates the house's value.
We also note that '[t]here is no requirement in G. L. c. 208, § 34, or cases under it, of precise parity in equitable division of marital assets.' Johnson v. Johnson, 22 Mass. App. Ct. 955, 956 (1986), quoting from Cabot v. Cabot, 18 Mass. App. Ct. 903, 905 (1984).
After judgment entered, the husband sought to reopen the record to introduce an appraisal that purported to show that the three-decker was worth only $338,000. The judge did not abuse her considerable discretion in denying such postjudgment relief. See Owens v. Mukendi, 448 Mass. 66, 72 (2006) ('A motion pursuant to rule 60(b)(6) is addressed to the discretion of the judge, and will not be reversed on appeal save for abuse of that discretion') (citations omitted). We therefore do not consider the arguments he makes that are based on that appraisal.
The husband did not testify at trial. The judge found that he 'chose' not testify, while the husband claimed in a postjudgment affidavit that he wanted to testify but that he was prevented from doing so by the actions of his lawyer. Even if this allegation were true, we do not see how it would render the judge's decision not to reopen the proceeding an abuse of discretion. However, we also note that the record reveals some doubt about the husband's account. For example, the husband spoke up during the wife's testimony, stating, in part: 'Again this is so ridiculous. . . . Well, I've got to quit this. I can't stay here. . . .'
There is no merit in the husband's argument that the judge gave insufficient weight to the wife's exercising self-help to take marital assets in violation of a restraining order and to her dissipating the assets. The judge's decision reveals that she gave careful consideration to such issues, and that, in calculating the assets of the marital estate, she took account of the moneys withdrawn by each party after the issuance of the automatic restraining order.
The husband also seems to suggest that the $160,000 obtained by the wife prior to the start of the divorce proceedings by taking out a mortgage on the Corey Street property should have been included in the marital estate. The judge found that the wife used the money to do much-needed renovations to the Corey Street property, including a furnace, new windows, floors and appliances; to make payments for the mortgage, real estate taxes, utilities, and other expenses of the property; and to make gifts, including gifts to the husband's children. She further found that notwithstanding the wife's failure to account for some of the funds, the wife took out the mortgage prior to the filing of the divorce complaint; that she was the one who handled the family finances and the operation of the Corey Street property; that the decision to take out the mortgage was not inconsistent with the parties' understanding and that the mortgage was, therefore, a mutual responsibility of the parties.
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Finally, the husband challenges the judge's award of the parties' dog to the wife. The wife was the only witness at trial, and she testified that it was 'her' dog. Based on this evidence, we perceive no error in awarding her custody or in declining to reopen the issue through the husband's Mass.R.Dom.Rel.P. 60(b) motion. We do note that the husband alleges that the dog has continued to live with him since the time of the divorce, that he has taken care of the dog, that he has taken the dog to the veterinarian and paid the bills, and that the wife does not want the dog. If these allegations, which have not been contradicted by the wife, are true, there may be no reason to disturb the present arrangement.
Judgment affirmed.
Orders denying motions to vacate and for reconsideration affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),