Opinion
15-P-0134
02-12-2016
DENISE M. DINUCCI v. DANIEL J. DINUCCI.
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 husband, Daniel J. Dinucci, appeals the denial by a single justice of this court of a motion to stay execution in a Probate and Family Court judgment of divorce nisi. See Mass.R.A.P. 6(a)(1), as appearing in 454 Mass. 1601 (2009). Specifically, the husband sought to enjoin aspects of the equitable distribution of marital assets from taking effect. We find no abuse of discretion on the part of the single justice, and therefore affirm.
Background. The undisputed relevant facts, as found by the trial judge, are as follows. The parties were married for nearly ten years and have two minor children. The wife largely abandoned her career as a hairdresser to care for the children, one of whom suffers from significant disabilities since birth. The husband provided for the family financially during the marriage and currently has an annual salary of $117,500. Upon the finalization of their divorce, the wife was awarded $88,360.61 (one-third) of the inheritance from the estate of the husband's mother. The husband was also ordered to transfer to the wife $9,449.40 pursuant to a [q]ualified [d]omestic [r]elations [o]rder. Finally, each party was granted "exclusive ownership of all tangible and intangible items in [each's] possession." The husband filed a motion for a stay, which was denied by the trial judge. He subsequently sought a stay from a single justice of this court, which was also denied. Before this panel is his appeal of the denial of his motion to stay by the single justice.
The sole issue on this appeal is the single justice's denial of a stay. We do not review the merits of the trial judge's decision, nor do we review the Probate and Family Court judge's order of equitable distribution. However, we incorporate and refer to those decisions to the extent they are relevant to our review of the issue before us.
Discussion. The single justice's denial of husband's motion to stay. The findings and decision by a single justice are accorded finality, thus "we limit our review of the single justice's order to any alleged error of law or abuse of discretion." Karellas v. Karellas, 61 Mass. App. Ct. 716, 720 (2004). In evaluating a motion for stay, a single justice must determine whether the moving party is likely to be successful on the merits, whether irreparable harm will result from the denial of the motion, and whether the risk of irreparable harm to the moving party outweighs similar risks of harm to the opposing party. See Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164 (2011). "We review . . . the denial of a preliminary injunction to determine whether the [motion] judge abused [her] discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of factual questions." Ibid., quoting from Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008).
We apply the standard for review of a denial of a preliminary injunction to our review of the denial of a motion to stay. The abuse of discretion standard requires the party seeking relief to demonstrate more than simply that the single justice could permissibly have allowed the motion. See In the Matter of the Enforcement of a Subpoena, 436 Mass. 764, 795 (2002). If there is a supportable basis for the single justice's order, it will be upheld. See Petricca Constr. Co., v. Commonwealth, 37 Mass. App. Ct. 392, 394-395 (1994). See also Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th Cir. 2005).
In evaluating whether the single justice abused her discretion, the husband (the moving party) faces a very high burden. It is unlikely that the husband would be successful on the merits, as "judges possess broad discretion to divide marital property equitably." Dalessio v. Dalessio, 409 Mass. 821, 830 (1991). See G. L. c. 208, § 34. Furthermore, a judgment of property division will not be reversed unless it is "plainly wrong and excessive." Redding v. Redding, 398 Mass. 102, 107 (1986), quoting from Rice v. Rice, 372 Mass. 398, 402 (1977). See Mahoney v. Mahoney, 425 Mass. 441, 447 (1997). There is no requirement that the equitable division of property be equal under G. L. c. 208, § 34. See Adlakha v. Adlakha, 65 Mass. App. Ct. 860, 864 (2006), quoting from Williams v. Massa, 431 Mass. 619, 626 (2000) ("The ultimate goal of G. L. c. 208, § 34," is "an equitable, rather than an equal, division of property").
The trial judge made detailed findings of fact and gave reasons for the order relating to the division of assets, and filed a written decision explaining his reasons for the denial of the motion for a stay. On this basis, the single justice justifiably relied on the lower court judge's division of assets in evaluating whether the claim would be successful on the merits. We find no abuse of discretion. The husband appears to argue that he will suffer irreparable harm through the denial of the injunction because it would be unlikely that he could reacquire the money from the wife, once she has control over it. This argument is unpersuasive, as it incorrectly assumes that he has a legal claim to the money distributed to the wife by the Probate and Family Court judge. In this instance, the judge found "that each party made significant contributions to the marriage and that an equal division of the marital estate is equitable." Given the husband's current annual income of $117,500, the execution of the judgment will not thrust him into any form of poverty.
Furthermore, any risk he faces does not outweigh the risk of harm faced by the wife. The wife has obtained sole legal and physical custody of the minor children, one of whom has significant disabilities that require ongoing care and attention. Because of these requirements, and the wife's limited earning potential, she was found to be in need of support from the husband, and the Probate and Family Court judge found, in his discretion, that the husband has the financial means to provide this support.
"Rarely, if ever, can it be said that a single justice is in error in denying relief." Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874, 874 (1977). Here, the record bears no indication that the denial of the motion to stay has been "characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice." New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135, 144 (1989). As such, the single justice on this court neither abused her discretion nor committed an error of law in denying the husband's motion for a stay.
Order of single justice denying motion for stay affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 12, 2016.