Opinion
11-P-533
02-01-2012
WILLIAM W. GRIBBELL v. SUSAN P. GRIBBELL.
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
On appeal from a judgment of divorce nisi (amended by a subsequent order), the former husband claims error in various aspects of the division of the marital estate, and contends that the amount of alimony ordered by the judge is excessive. We discern no error of law or abuse of discretion, and affirm. We address the husband's various claims in turn.
For sake of economy, hereinafter, we refer to the former husband as the 'husband.'
1. Nantucket property. As a threshold matter, we observe that the judge committed no error of law or abuse of discretion by including the Nantucket property in the marital estate. The judge acknowledged that the husband's one-third interest in the property was a gift to him during the parties' marriage, but explained the determination to include the value of the asset in the marital estate by reference to the length of the marriage, the fact that the property was given to the husband approximately halfway through the marriage, the absence of any expressed intent in the trust to limit the property to the husband (or to exclude it from assets available for division upon divorce), and the use and enjoyment of the property by the family during the marriage. The judge held wide discretion concerning the division of the asset and, though he was not required to divide it equally (an equitable division instead being the goal), we discern no abuse of his considerable discretion in his decision to do so for the reasons he gave. See Williams v. Massa, 431 Mass. 619, 626-627 (2000).
We likewise discern no error or abuse of discretion in the judge's refusal to discount the value of the husband's one-third interest in the property by reason of his minority interest. The judge found that there is no present intention to sell the property, and that the management and operation of the property is relatively free of tension or controversy among the husband and his siblings (the coowners of the property). Essentially, in other words, the property is not currently intended for sale, and there is no indication that any eventual sale will be impaired by controversy among the coowners. The judge was entitled not to credit the opinions of the husband's experts. In the circumstances, the judge's refusal to apply a marketability or minority discount was entirely reasonable. See Bernier v. Bernier, 449 Mass. 774, 792 (2007).
2. 'Double-dipping.' There is no merit to the husband's contention that the judge erred by including dividends between the date of trial and the date of judgment within the assets transferred to the former wife as part of the division of the marital estate. The temporary order for support during the pendency of the proceedings entered by stipulation of the parties, and nothing in its terms supports the husband's contention that the dividends were an essential element of the income necessary or required for the husband to make such payments. This case is entirely unlike those in which a stream of future payments duplicatively was included as a source of income and (discounted to a current value) as an asset available for division in the marital estate. See, e.g., Dalessio v. Dalessio, 409 Mass. 821, 827-828 (1991); Sampson v. Sampson, 62 Mass. App. Ct. 366, 373-378 (2004).
For sake of economy, hereinafter, we refer to the former wife as the 'wife.' See note 1, supra.
3. Northwestern Mutual policy. The husband's argument that the value of the Northwestern Mutual life insurance policy should not have been included in the judge's calculation of assets available for division as part of the marital estate, because it was held in an irrevocable trust, is waived by reason of his failure to raise it below. See Child v. Child, 58 Mass. App. Ct. 76, 83-84 (2003).
Before the probate judge, the husband consistently listed the policy (including its cash value) among assets of the marital estate, while listing the Gribbell Irrevocable Trust as the death beneficiary of the policy. The husband did not submit the policy in evidence, and made no suggestion or attempt otherwise to assert that the policy was held by any person or entity other than himself.
4. Disproportionate allocation of cash assets. The husband cites no authority to support his contention that the division of the marital estate was inequitable because the judge awarded a higher proportion of cash assets to the wife than to the husband. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Though it is possible to imagine that a division of assets could in extreme circumstances produce an inequitable result (as, for example, if following the division the liquid assets held by a party, viewed in context of that party's income and other sources available to meet ongoing expenses, left that party incapable of meeting basic needs), that is not the situation here. As noted, supra, there is no present intention to sell the Nantucket property; there is hence no need to consider the potential tax costs associated with a hypothetical future sale. Viewed as a whole, the division of assets fell well within the bounds of the judge's discretion under G. L. c. 208, § 34.
5. Alimony. Finally, there is no merit to the husband's contention that the judge erred in awarding alimony. To the extent that the claim of error rests on the inclusion of a provision for alimony to increase by an amount equal to thirty percent of annual commission income above $120,000, it appears clear that the provision is designed to calibrate the amount of alimony to the husband's ability to pay, during a period when (it is hoped) his income increases from its greatly reduced level at the time of trial to a level more closely approaching his income during the last nine years of the parties' marriage; any concern for excessive alimony will arise (if at all) only from and after any point at which the husband's income rises above its level during the last nine years of the parties' marriage, a prospect that, though possible, appears speculative at the present time. In any event, should the husband's income increase to a level above the substantial earnings he achieved during the last nine years of the parties' marriage, it remains open to him to seek a modification, based on a material change in circumstances.
Judgment, as amended by order dated November 29, 2010, affirmed.
By the Court (Green, Vuono & Milkey, JJ.),