Opinion
14-P-1453
07-13-2015
MICHELLE L. GREENSPUN v. PHILIP G. GREENSPUN.
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 plaintiff, Michelle L. Greenspun, and the defendant, Philip G. Greenspun, were married in 2008 and have one minor child, born in 2009. Prior to their marriage, the parties executed a premarital agreement (agreement), the validity of which is uncontested. Slightly less than three years later, Michelle filed for divorce. Philip now appeals from an "Additional Further Amended Judgment of Divorce Nisi" dated June 25, 2014, contending, among other things, that the child support order is excessive and that the judge erred in her application of the agreement to the division of the equity in the marital home. We affirm.
To avoid confusion, we will refer to the parties by their first names as they share a last name.
1. Child support. Child support is governed by G. L. c. 208, § 28, and the Massachusetts Child Support Guidelines (guidelines). The guidelines are not strictly applicable where the combined annual gross income of the parties exceeds $250,000, as is the case here. In this situation, "a judge has discretion to adjust upward from the 'minimum presumptive level of support,' i.e., the award applicable at the maximum combined income level." M.C. v. T.K., 463 Mass. 226, 233 (2012), quoting from Adams v. Adams, 459 Mass. 361, 393 (2011).
Philip was ordered to pay child support to Michelle in the amount of $865 per week, retroactive to July, 2013, less certain credits. The judge arrived at this number by applying the guidelines for the parties' combined income up to $250,000, and then adding an additional eleven percent of Philip's income, in excess of the combined income of $250,000, as additional child support. On appeal, he argues that the weekly amount is excessive, not designed to meet the reasonable needs of the child, and was ordered simply because he could afford it. The claim is unavailing.
Philip mischaracterizes the weekly child support order by including, as part of his weekly obligation, the lump sum of retroactive support he was ordered to pay.
The judge crafted the amount of child support to be paid after careful consideration, and the record supports her findings that it will allow the child to maintain her current standard of living, in that it will provide Michelle sufficient funds to meet her weekly living expenses and contribute to the cost of reasonable housing for the child in her current upscale community. In reaching her decision, the judge considered the nature and value of the estate each party will retain following the divorce. See Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997). She also considered the agreed-upon parenting schedule, the parties' earned and unearned income, their available weekly income, and their respective proposals for child support orders and underlying rationales. See M.C. v. T.K., supra at 236-237. Although, as the judge found, Phillip is a far more frugal spender than Michelle, the child is entitled to be supported commensurate with each parent's ability to contribute to the child's standard of living. See guidelines, principles; Brooks v. Piela, 61 Mass. App. Ct. 731, 737 (2004) ("[C]hildren are entitled to participate in the noncustodial parent's higher standard of living when available resources permit"). We discern no abuse of discretion in the award of child support.
The judge found that the value of Michelle's assets was in excess of $720,000, and that the value of Phillip's assets was nearly $16,000,000.
The judge found Michelle's weekly income, exclusive of child support, to be $3,914.25, and Phillip's weekly income, exclusive of the child support obligation, to be $6,846.64.
The judge rejected Philip's proposal, concluding that it reflected only the costs of basic food, shelter, and clothing. The judge also rejected Michelle's proposal, concluding that it reflected Michelle's desire to stay in luxury housing.
Philip argues that the judge erred in including in his income the depreciation of certain expenses that he used to offset his self-employment income. This claim is without merit. "The guidelines and our case law leave the definition of income flexible, and the judge's discretion in its determination is broad." Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011).
2. Division of the marital home under the premarital agreement. Philip purchased the marital home shortly after the parties married, with his separate funds (as defined by the agreement), and without a mortgage. The provisions of the agreement at issue here, found in paragraph 12, provide for various specified distributions of the equity in that property upon certain triggering events. The relevant subsections are as follows. Paragraph 12(a) provides that, during the course of the marriage, Michelle "will accrue a 2.5 percent ownership interest in the principal residence for every year following the purchase, during the marriage, up to a maximum ownership interest of fifty (50) percent." Paragraph 12(c) sets forth terms to be applied in the event either party files for separation, separate support, or divorce. In the event of divorce, where there is a child who has not yet graduated from high school, as is the case here, paragraph 12(c)(iv) provides that if:
The judge found that Philip "paid the full $1.4 million purchase price for the marital home with his separate property," closing the purchase two days after the parties were married.
"both parties wish to retain the principal residence and the parties cannot agree as to the disposition of such property, then the parties will make every effort to determine what is in the child or children's best interests, resolving any buyout equitably by the parent who wishes to remain in the principal residence with the child or children. If the parties cannotParagraph 12(b) applies in the event the parties acquire the property through mortgage financing, and 12(d) provides for disposition of the property in the event of either party's death.
agree to the terms of vacating by one parent and/or an equitable buy-out of one parent[,] . . . the parties agree to submit themselves to the Probate and Family Court for resolution."
The judge determined that paragraph 12 is unambiguous, and in applying it, divided the equity in the property equally between the parties. On appeal, Phillip challenges both the judge's conclusion that the agreement is unambiguous, and her interpretation of subsection 12(c)(iv); in the alternative, he claims a scrivener's error or mutual mistake.
The judge found that the home has a fair market value of $1,455,000.
"The meaning of a contract, '. . . what promises it makes, what duties or obligation it imposes, is a question of law for the court.'" Tri-City Concrete Co. v. A.L.A. Constr. Co., 343 Mass. 425, 427 (1962), quoting from Smith v. Faulkner, 12 Gray 251, 255 (1858). In general, contracts should be construed in accordance "with justice, common sense, and the probable intention of the parties." Krapf v. Krapf, 439 Mass. 97, 105 (2003), quoting from Clarke v. State St. Trust Co., 270 Mass. App. Ct. 140, 153 (1930). Courts take into account not only the meaning of the individual words of the contract and their interrelation with each contract provision and the contract as a whole, but also the attendant facts and circumstances. J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986) (every phrase and clause given meaning and construed with all other phraseology in instrument in harmonious manner to achieve desired intent of parties). Extrinsic evidence is only admitted if there is an ambiguity. General Convention of the New Jerusalem in the United States of America, Inc. v. MacKenzie, 449 Mass. 832, 836 (2007). A controversy between the parties, which results from each favoring a contrary interpretation of the contractual language, will not create an ambiguity. Continental Cas. Co. v. Canadian Universal Ins., 924 F.2d 370, 374 (1st Cir. 1991). Such is the case here.
Read as a whole, paragraph 12 defines each party's equity in the property during the marriage, upon separation or divorce, or in the event of death. The fact that the subparagraphs provide for various, inconsistent outcomes depending on the given situation is not surprising, given the differing intentions of the parties underlying each subsection (continuing marriage, divorce, death). Moreover, as the cited cases stress, paragraph 12 must be viewed in the context of the entire agreement, wherein Michelle retained and waived certain property rights and permanently waived any and all claims for alimony. It follows that the provisions concerning the disposition of the principal residence, in conjunction with the bargained-for rights afforded each party, formed part of the consideration for the agreement. See DeMatteo v. DeMatteo, 436 Mass. 18, 23-24 (2002). For those reasons, we fail to discern either an error of law in the judge's interpretation, or an abuse of discretion in her division of the property under the agreement.
Michelle's request for appellate attorney's fees and costs is denied.
Additional further amended judgment dated June 25, 2014, affirmed.
By the Court (Meade, Hanlon & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 13, 2015.