Opinion
18-P-167
09-19-2019
Tibebu W. GASHAW v. Genet YENENEH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife, Genet Yeneneh, appeals from a judgment of divorce nisi, claiming that the Probate and Family Court judge erred in dividing the marital estate. In particular, the wife challenges the judge's decision to award a property in Ethiopia to the husband, Tibebu W. Gashaw.
The wife's appeal has substantial procedural defects, which hinder our evaluation of the merits of her arguments. First, the wife has not provided us with a complete trial transcript, which is necessary to evaluate her claim that the judge erred in assessing the evidence. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019) (appellant has obligation to provide record appendix containing parts of record relevant to issues on appeal). See also Cameron v. Carelli, 39 Mass. App. Ct. 81, 84, 653 N.E.2d 595 (1995) (appellant's failure to provide relevant portions of trial transcript precluded appellate review of sufficiency of evidence). Second, the wife failed to provide us with a copy of the judgment, despite our request at oral argument that she do so. See Mass. R. A. P. 18 (a) (1) (A). Third, the wife's brief fails to comply with Mass. R. A. P. 16 (a), as appearing in 481 Mass. 1628-1631 (2019), as it lacks adequate citation to legal authority and the record. See Cameron, supra at 85-86, 653 N.E.2d 595, quoting Lolos v. Berlin, 338 Mass. 10, 14, 153 N.E.2d 636 (1958) ( rule 16 [a] is not "mere technicality" but "is founded on the sound principle that the right of a party to have this court consider a point entails a duty ... to assist the court with argument and appropriate citation of authority").
This rule formerly was codified at Mass. R. A. P. 16 (a), as amended, 428 Mass. 1603 (1999).
Despite these procedural defects, we have reviewed the wife's arguments based on the limited record and briefing before us and discern no error in the judge's assignment of the Ethiopian property to the husband. The judge found that the husband acquired land in Ethiopia and began constructing a house on it prior to the parties' marriage. The judge further found that the wife did not work at the construction site, had no part in overseeing the construction, and made no contributions, financial or otherwise, to the property. Thus, given that "there was no credible evidence of any contribution by [the wife] to the acquisition or maintenance of [the Ethiopian property]," the judge determined that it would be unfair to the husband to order that the property be sold and the proceeds divided between the parties. The judge concluded, rather, "that in light of all of the factors set forth in G. L. c. 208," it would be most equitable to award the Ethiopian property to the husband and the former marital home to the wife, while also requiring the husband to pay the wife the sum of $10,000.
"Once the judge included [premarital] assets as part of the marital estate, [he] had broad discretion to determine how to divide the entire estate equitably, including discretion not to divide the [premarital] assets between the parties" (citation omitted). Williams v. Massa, 431 Mass. 619, 626, 728 N.E.2d 932 (2000). See Baccanti v. Morton, 434 Mass. 787, 792, 752 N.E.2d 718 (2001). We will not disturb the judge's decision "unless it is ‘plainly wrong and excessive.’ " Id. at 793, 752 N.E.2d 718, quoting Mahoney v. Mahoney, 425 Mass. 441, 447, 681 N.E.2d 852 (1997). In view of the judge's findings that the wife made no contribution to acquiring or maintaining the Ethiopian property, it was not plainly wrong or excessive for the judge to determine that that asset should not be subject to equitable division. See Williams, supra at 625-627, 728 N.E.2d 932 (judge did not abuse discretion in awarding premarital assets to husband in light of evidence that husband alone managed them, kept them separate from other assets acquired during marriage, and made all investment decisions). We discern no abuse of the judge's considerable discretion.
We reject the wife's contention that the judge did not consider the requisite factors under G. L. c. 208, § 34. The judge identified the factors and plainly considered them, including the parties' respective contributions to the marital estate, and specifically took into account that the wife was the primary caretaker of the parties' children. While the wife claims that the judge did not consider the parties' roles in a traditional Ethiopian marriage, and to what extent the wife could have held title to real estate in Ethiopia, she provides no record citations to support her assertions. Furthermore, the judge did not ignore evidence concerning real estate that the wife sold to put toward the construction of the Ethiopian property. The judge addressed that issue by finding that the wife had an interest in land (also in Ethiopia), that the husband built a one-room house on the land, that the house was sold for the equivalent of $1,200, and that the proceeds were divided equally between the parties, with the husband receiving $600 for building materials and the wife receiving the remaining $600. This evidence does not detract from the judge's ultimate conclusion that the wife did not substantially contribute to the acquisition or maintenance of the Ethiopian property, such that it would be appropriate to order that the property be equitably divided.
The wife further argues that the judge should not have considered the Ethiopian property as part of the marital estate because no expert testimony was presented on valuation. Putting aside that the wife could have offered an expert but did not do so, this argument fails because the judge's decision to assign the property to the husband did not depend on any valuation; the basis for the decision was that the property was a premarital asset to which the wife did not contribute. The judge specifically declined to make a determination as to the value of the property, finding that no credible evidence was offered on that issue.
The wife's brief also claims that the judge lacked jurisdiction to consider the Ethiopian property, but the wife abandoned this claim at oral argument.
To the extent we have not addressed other arguments made by the wife, they have not been overlooked. We have reviewed them and found them to be without merit.
We exercise our discretion to deny the husband's request for appellate attorney's fees.
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Judgment affirmed.