Opinion
10-P-1218
12-02-2011
PATRICIA A. GRADY v. ALBERT E. GRADY.
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 husband appeals from a judgment of divorce nisi, as modified, awarding the wife substantial marital assets as well as alimony, and from a judgment of contempt dated May 10, 2010. The husband argues that the Probate and Family Court judge erred in her factual findings and misapprehended several areas of law. We find no fault with the judge's well-considered decisions and therefore affirm the judgments.
Background. The judge found the following: the husband and wife were married for thirty-four years when the wife, discovering her husband's infidelity, instituted the present action for divorce. The husband maintained a law practice, managed lucrative financial investments, and maintained a portfolio of real estate assets. The wife has a high school education and worked in clerical positions throughout the marriage to further the defendant's business interests. She was also the primary homemaker during the long marriage. We refer to other facts as necessary in our discussion of the legal issues. Discussion. In dividing assets for a divorce judgment, a judge must consider all factors relevant under G. L. c. 208, § 34, and has broad discretion to divide the marital estate equitably. See Kittredge v. Kittredge, 441 Mass. 28, 43-44 (2004). If a judge has fairly considered the relevant factors, and has not considered irrelevant matters, her determinations will not be reversed unless 'plainly wrong and excessive.' Redding v. Redding, 398 Mass. 102, 107 (1986). The judge's reasons for her conclusions 'must be apparent in [her] findings and rulings.' Id. at 108. '[A] judge's findings of fact will not be set aside unless clearly erroneous.' Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 553 (1997).
The judgment sufficiently took into account the husband's financial position: indeed, the judge modified her judgment at the husband's behest to reduce the husband's payment to the wife. Notwithstanding the husband's assertion, nothing in the record indicates that the judge failed to apply the $70,000 attorney's fees credit against the wife's estate.
Likewise, we discern no basis for the husband's argument that the judge failed to take into account certain statutorily required factors. The judge meticulously organized her findings to take into consideration all of the G. L. c. 208, § 34, factors. The husband also challenges the judge's findings that he employed strategems and evasions to depress his current law practice compensation and disguise his future earning capacity; we conclude that the judge's reasoning was sufficiently 'apparent in [her] findings and rulings,' Redding v. Redding, supra at 108, and amply supported by evidence in the record, which demonstrated as well that the husband 'either intentionally or neglectfully dissipated [his] assets.'
The husband is correct that, as a general rule, a court should consider any tax consequences that may follow from a division of assets. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989). However, his brief neglects to state that this is conditioned on the parties 'introduc[ing] reasonably instructive evidence bearing on those tax issues.' Ibid. The record is devoid of any indication that the parties introduced such evidence prior to the judgment, therefore consideration of tax consequences was not required.
Concerning questions of law, this court has the 'plenary power of de novo review.' Martha's Vineyard Land Bank Commn. v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27 n.3 (2004). In this context the husband contends that the judge erred in refusing to admit the wife's deposition testimony under Mass.R.Dom.P. 32(a)(2). While the judge did err in her interpretation of this rule, the error was not prejudicial to the husband. The trial transcript and the husband's arguments on appeal indicate that the husband intended to use the deposition to impeach the wife generally, and to emphasize the substantive issue of the wife's use of corporate money to pay personal debts. Insofar as the wife was cross-examined at length by the husband's counsel, there was ample opportunity to impeach her credibility, including through the use of her deposition testimony. On the substantive question, the judge's findings of fact favor the husband and specifically state that the wife impermissibly used the company's signature stamp to pay her personal debts. Consequently, the husband was not harmed by this mistake.
The judge construed Mass.R.Dom.P. 32(a)(2) as only allowing the admission of a deposition of an individual who is both a party and also an 'officer, director, or managing agent' of a party. However, the rule drafters' use of the term 'or' to link a 'party' with 'any one who at the time of taking the deposition was an officer, director, or managing agent' is in the disjunctive.
During the sidebar, the husband's attorney stated that, '[t]he purpose is to clarify to point out differences and contrast in the [wife's] testimony.' In his brief, the husband argues that, '[s]pecifically, the deposition parts sought to be read into the record contained admissions the wife that [sic], without the husband's knowledge, she had used the signature stamp for his real estate investment business (ISC) for payment of $20,000 of her personal credit card debts.'
Similarly, we find no merit in the husband's argument regarding contempt. The judge allowed a motion to extend the husband's deadline for compliance with the judgment until April 30, 2010, but then found him in contempt prematurely on April 12, 2010. However, with a spirit of patience to which the husband consequently failed to respond, the judge waited for an additional ten days past the deadline, until May 10, 2010, before imposing any penalty. Consequently, not only did the husband suffer no prejudice, he benefited from ten extra days in which to comply.
Throughout this unnecessarily protracted litigation, the husband has demonstrated his willingness to delay compliance with obligations imposed by the rulings below. This appeal conforms to that pattern, and lacks a legitimate basis. The wife may submit a petition for appellate attorney's fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The husband may respond to the petition within twenty days of said filing.
This includes, inter alia, myriad postjudgment motions and multiple appeals to the single justice of this court.
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Judgment of divorce nisi, as modified by order dated July 16, 2009, affirmed.
Judgment of contempt affirmed.
By the Court (Berry, Brown & Grainger, JJ.),