Opinion
19-P-995
08-17-2020
PHYLLIS K. GOLD v. THOMAS R. GOLD, personal representative.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After forty-six years of marriage, Phyllis K. Gold (wife) and Richard L. Gold (husband) were divorced pursuant to a judgment of divorce nisi entered by the Probate and Family Court on March 3, 2016. At that time, the wife was eighty-three years old and the husband was ninety years old. In this appeal, the husband challenges the judge's division of the parties' marital estate set forth in an amended supplemental judgment of divorce nisi entered on August 9, 2018, after twelve nonconsecutive days of trial. Pursuant to that judgment, the wife was awarded sixty percent of the $8.3 million marital estate. The husband was awarded forty percent of the marital assets and his entire interest in his law practice and two businesses. The business entities were valued at $1,621,400. The judge did not award alimony. The husband argues that the judge abused her discretion by effectively awarding the wife assets in lieu of alimony after finding that alimony was not warranted. He also contends that there was no basis for awarding the wife a "highly disproportionate" share of the marital estate and that the judge erred by including the value of certain obligations owed to the husband's businesses as assets without also deducting the amount of alleged business debts. We affirm.
The husband died after commencing this appeal. His son from a prior marriage, Thomas R. Gold, was appointed personal representative of the estate and received permission from this court to proceed as the substituted party. Regardless, we refer to the husband and the wife, collectively, as the parties.
The wife's complaint alleged that an irretrievable breakdown of the marriage had occurred. As the judge observed, there was no one specific event that prompted the wife to file for divorce. The wife testified that she decided to do so after a vacation in Aruba with her children in 2015 during which the husband was not present. According to the wife, she felt at peace as a result of the husband's absence. Ultimately, although the judge found that neither party engaged in conduct that was abusive, neglectful, or demeaning, the divorce was granted on the ground of an irretrievable breakdown.
The husband, wife, and each of their sons testified. In addition, seven expert witnesses testified about the value of the marital home and the husband's various business entities.
Background. We summarize the facts from the judge's findings and the uncontradicted evidence in the record. See Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 106 (2016). The parties were married in 1969. This was the second marriage for the husband and the third marriage for the wife. The parties had no children together; however, the wife had two children from her second marriage and the husband had one child from his prior marriage.
During the marriage, the husband was the primary financial provider, while the wife had the responsibility of maintaining and organizing the household. The husband was a successful lawyer and businessman who consistently worked six days per week. In addition to maintaining a law practice, he owned four packaging and warehouse businesses. The wife assisted the husband in his profession by entertaining business associates and by accompanying him on business-related trips. The wife also worked briefly as an interior designer and managed the rental of a cottage and a studio located on the property of the parties' marital home in Weston. The judge found that despite the difference in the parties' roles, they contributed equally to the marriage.
The business entities are as follows: Tomac Machine Development Corporation (value not determined); Tomac Packaging, Inc. (valued at $1,111,400); Lincoln Warehouse Realty, LLC, and Lincoln Warehouse, Inc. (together valued at $510,000). The husband disputed his ownership of these business entities, claiming that he had previously transferred those interests to his son, but the judge found otherwise, and those findings are not disputed on appeal.
The parties enjoyed an upper middle class lifestyle and accumulated significant wealth during the marriage. The marital residence, which the husband purchased early in the marriage and where the parties continued to reside at the time the wife filed for divorce and during the trial, was assigned a value of $2,394,900. As noted, the husband's businesses were valued at approximately $1.6 million. Ultimately, after ruling on motions to amend the judgment, the judge divided the marital assets as follows: the wife was to receive $3,593,465 (sixty percent of the marital estate) and the husband was to receive $2,395,643 (forty percent of the marital estate) and full interest in his businesses and law practice.
Discussion. Our review of a judgment pursuant to the equitable distribution statute, G. L. c. 208, § 34, proceeds under a two-step analysis. Adams v. Adams, 459 Mass. 361, 371 (2011). "First, we examine the judge's findings to determine whether all relevant factors in § 34 were considered" (quotation and citation omitted). Id. "The second tier of our review requires us to determine whether the reasons for the judge's conclusions are 'apparent in his findings and rulings'" (citation omitted). Id. "A judge's determinations as to equitable distribution will not be reversed unless 'plainly wrong and excessive'" (citation omitted). Id.
Here, the judge clearly met the first prong of the test. She issued a lengthy decision in which she considered all relevant factors as stated in G. L. c. 208, § 34. The husband argues, however, that the judge made other errors of law such that the division of assets was not equitable.
1. Assets in lieu of alimony. We reject the husband's assertion that the judge made "an end run around G. L. c. 208, § 4[9]," by awarding the wife assets as a proxy for alimony. Although the judge noted that the husband's income was greater than that of the wife, the judge's rationale for the unequal division of the marital estate was primarily based on the husband's "ownership of business interests" which, in turn, provided him with additional financial security. The judge wrote the following: "Although the [h]usband will receive a lesser share of the marital home and other marital assets (through an additional transfer/cash payment), his retention of his ongoing business interests, however they may be intermingle[d] with his son's interest in same, will provide additional financial security for him." Thus, the judge was balancing the wife's lack of ownership in a business with the husband's ownership and full retention of his income producing businesses and not, as the husband maintains, awarding a higher percentage of the marital estate to the wife as a substitute for alimony.
Moreover, the judge's statement, upon which the husband primarily relies, that "given the disparity in the part[ies'] earning capacit[ies] and the fact that it is inappropriate to award alimony given the parties' advanced ages, a 60/40 division of marital assets . . . is most equitable," shows neither that she awarded the wife assets in lieu of alimony or that she imposed an improper test for the equitable division of the marital estate (emphasis added). Rather, viewed in the context of the judge's entire analysis, the judge's words merely indicate that, after consideration of all the factors enumerated in § 34, including the parties' disparate earning capabilities and advanced ages, she concluded that an equitable division of assets could only be achieved by an awarding a greater portion of the marital assets to the wife. In sum, we discern nothing inappropriate about the judge's stated reasons for her decision and reject the claim that the judge used the property division as a mechanism for awarding alimony.
In light of our conclusion that the unequal division of assets did not amount to a replacement for alimony, we need not address the husband's argument regarding the taxability of alimony as compared to a nontaxable division of assets.
2. The sixty percent/forty percent division of the assets. The husband describes the judge's division of the property as "grossly disproportionate." Certainly, the division is disproportionate, but not "grossly" so, particularly in light of the fact that the husband retained ownership of his businesses and law practice. In any event, as the wife correctly observes, a judge does not abuse her discretion in dividing marital assets merely because the split is not equal. See Williams v. Massa, 431 Mass. 619, 626 (2000) ("an equitable, rather than an equal, division of property is the ultimate goal of G. L. c. 208, § 34"). Although it is true that the judge found that the respective contributions of the parties to the marital partnership were equal, it does not follow that a disproportionate division of the marital estate is an abuse of discretion. The judge made findings consistent with her obligation under the statute, she considered the relevant § 34 factors, and her reasons for the division of assets are apparent in her findings. See Adams, 459 Mass. at 371. Accordingly, even if we were to disagree with the judge, which we do not, there is no basis for concluding that her determination as to the property division amounted to an abuse of discretion.
3. Allocation of liabilities between the parties. The husband argues that the judge erred by including certain amounts owed to his businesses in her determination of the overall value of the marital estate while not deducting the debts he allegedly owed to his businesses in the amounts of $182,000 and $191,000. Although the husband testified that he owed these sums, the judge did not fully credit his testimony. To the contrary, the judge found that "the divisions between the husband, his businesses, and his law practice are not always clear or impermeable." The judge further found that "the structure and financial organization of these businesses is a complex set of transactions . . . and as such, the stated corporate entity and business entity lines are highly blurred between Thomas Gold and the [h]usband." These findings, which are not challenged as clearly erroneous, indicate that the judge did not accept the husband's testimony regarding these debts. Accordingly, we discern no error in the judge's failure to exclude these sums from the marital estate.
The wife's request for an award of appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 17, 2020.