Opinion
16-P-264
06-21-2017
Emilio ESTACIO v. Maria ESTACIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Emilio Estacio (husband), appeals from a judgment of the Probate and Family Court dividing the marital estate sixty percent/forty percent in favor of the defendant, Maria Estacio (wife), and ordering him to pay the wife alimony in the amount of $510.77 per week. On appeal, the husband argues that the judge made clearly erroneous findings of fact regarding the wife's needs and current lifestyle and the parties' abilities to acquire future assets, and thus, awarded too much to the wife. We affirm.
Background. The parties were married in 1986, and their marriage lasted for twenty-six years. At the time of trial, the husband was fifty-four years old and the wife was forty-nine. The parties have two adult children and owned their marital home (Gifford Road), valued at $374,000, mortgage-free, and several investment properties, also mortgage-free, including (1) a single family home on Kay Street in Fall River, valued at $229,000 (Kay Street); (2) a three-family rental property on Willow Street in Fall River, valued at $246,000; (3) a five-family rental property on Warren Street in Fall River, valued at $241,000; and (4) lots 20, 21, 22, 23, 26, and 27 on Whitefield Street in Fall River, with a combined value of $144,000. Some of these properties were in the parties' individual names, and some were held by EMA Realty, Inc. (EMA), of which the parties were both officers and equal shareholders.
In 1989, the husband was arrested in the parties' home for drug trafficking. At the time of the arrest, the wife was pregnant with the parties' second child, and she was under the impression that the husband owned a landscaping business. The wife walked into the parties' home during the arrest and went into shock, collapsing on the floor and screaming. She began bleeding and was taken to the hospital, where she was placed on bed rest. The husband was later convicted of trafficking cocaine, and received a ten-year suspended sentence.
At the time of the husband's arrest, the wife was employed at a bank. News of the arrest was published in the local newspaper, and when the wife returned to work, she found that her position and job duties had been changed. She no longer had access to the vault or alarm system, and was required to hand in her keys after work. The wife subsequently began to suffer from anxiety and panic attacks, which included difficulty breathing, hyperventilation, vomiting, and fainting. She was placed on leave at the bank, and after an unsuccessful attempt to return to work, she left her job and applied for Social Security disability income (SSDI). She has collected SSDI ever since, from which she receives $247.28 per week. At the time of trial, the judge found that the wife had no other income. The husband, however, had been employed at a municipal housing authority since 2002. At the time of trial, he held the title of assistant to the superintendent, and earned $1,706.73 per week.
During the parties' marriage, the husband engaged in several extramarital affairs, causing the wife great emotional distress. In the midst of the husband's affairs, the wife contracted the human papilloma virus (HPV), a sexually transmitted infection. The wife had never had sexual relations with anyone other than the husband, and did not have HPV prior to the marriage. The husband also engaged in other deleterious acts throughout the marriage, including threats and aggressive behavior toward the wife.
In 2004, the wife was also present when the husband injured his brother with a chainsaw during an altercation, which caused her great anxiety. The husband was later charged with assault and battery by means of a dangerous weapon and domestic assault and battery.
At the time of trial, the wife was living at the Gifford Road property with the parties' two children and the wife's elderly mother, who suffers from dementia and other health issues. The wife helped care for her mother, and regularly bought groceries to cook for everyone in the house. When the wife was short on money, she would borrow from the parties' daughter. The husband lived at the Kay Street property with various women, none of whom contributed to household expenses. During the postseparation period, and in direct violation of a court order, the husband made a total of $138,200.80 in unauthorized withdrawals from EMA funds, some of which he used to pay for personal expenses and the expenses of various girl friends.
Discussion. Pursuant to G. L. c. 208, §§ 34 and 53, a judge has broad discretion when awarding alimony and assigning marital property. See Baccanti v. Morton, 434 Mass. 787, 792 (2001) ; Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). "[I]t is important that the record indicate clearly that the judge considered all the mandatory statutory factors, and that the reason for her conclusion is apparent in her findings." Zaleski, supra at 236 (quotation omitted). The statutory factors for awarding alimony include the parties' health, income, employment and employability, "economic and non-economic contribution of both parties to the marriage, marital lifestyle, [and the] ability of each party to maintain the marital lifestyle." G. L. c. 208, § 53(a ), inserted by St. 2011, c. 124, § 3. The factors for equitably dividing marital property are similar, and notably, include the "conduct of the parties during the marriage." G. L. c. 208, § 34, as amended by St. 2011, c. 124, § 2. "A judgment will not be disturbed on appeal unless plainly wrong and excessive." Heins v. Ledis, 422 Mass. 477, 481 (1996) (quotation omitted).
The factors include "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, ... the amount and duration of alimony, ... the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit." G. L. c. 208, § 34, as amended by St. 2011, c. 124, § 2.
The judge found, among other things, that both parties contributed to the acquisition, appreciation, and preservation of the marital estate; that the husband is in good health and is "fully and appropriately employed"; that the wife is disabled and "not currently employable" due to her anxiety disorder; that the wife's anxiety disorder and resulting unemployability began after the husband's arrest for drug trafficking in 1989; that the wife contracted HPV as a result of the husband's extramarital affairs; that the husband paid for his education and legal expenses for his criminal cases using funds from the marital estate; that the husband earns $1,706.73 per week from employment and has at least $89,980.60 in cash and retirement assets, whereas the wife receives $247.28 per week in SSDI and has no retirement assets; that the wife's claimed weekly expenses of $982.69 are "reasonable and accurate and are not inflated," whereas the husband's claimed weekly expenses of $2,115.73 are "not accurate and are inflated"; and that the husband dissipated over $100,000 of the marital estate during the parties' postseparation period. The judge further found that, because of the husband's "conduct both prior to and during this litigation that has had a deleterious effect on Wife and on the marital estate," much of his testimony was not credible. The judge concluded that the alimony award and "disparate division of assets in Wife's favor [are] based upon all of the [statutory] factors and taking into account Husband's dissipation [of marital funds] and other conduct."
Our review of the record shows that the judge's findings are reasonable, that the judge properly considered the statutory factors, and that she made the reasons for her conclusions clear in her findings. The husband argues that (1) the wife's claimed expenses of $982.69 per week are not reasonable because they include certain costs incurred in caring for the wife's elderly mother and cooking for the parties' adult children; (2) the judge erred in finding that the wife can no longer afford a gym membership and personal grooming services such as manicures and pedicures because the wife's most recent financial statement lists expenses for personal grooming and going to the gym; (3) contrary to the judge's finding, the husband has "little or no ability to acquire future assets"; (4) the wife is not unemployable because she has continued to manage the parties' realty company, EMA; (5) the wife did not account for $18,000 of the $88,000 she improperly withdrew from EMA accounts during the first three months of the parties' separation; and (6) the alimony and property award is too high because the wife will receive "well in excess of her needs" from weekly rental income under the current order. These claims are not supported by the record, particularly in light of the judge's credibility findings. The judgment was not plainly wrong or excessive. We decline to award double costs and appellate counsel fees as the appeal was not frivolous.
Moreover, even if we were to disregard one or more of the findings the husband takes issue with as clearly wrong, "we would not reach a different result in this case." Schuler v. Schuler, 382 Mass. 366, 372 (1981).
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Judgment dated June 16, 2015, affirmed.