Opinion
16-P-86
05-08-2017
GUOQIANG GUAN v. QIAO ZHANG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Qiao Zhang, the former wife, appeals from an order denying her motion for relief from a divorce judgment pursuant to Mass.R.Dom.Rel.P. 60(b)(2) and (3). We affirm.
Background. On November 8, 2012, the wife filed a complaint for divorce. On March 20, 2013, the parties filed a joint petition for divorce. On September 3, 2013, the parties filed a separation agreement with the court; the agreement provided that the marital home would be sold with net proceeds divided equally and that the liquid assets would be divided sixty-forty in favor of the husband. On September 10, 2013, the judge considered the agreement and found it unacceptable, in light of the unequal division of assets which was unsupported by any rationale. The judge advised the parties to seek legal counsel. At a hearing on October 8, 2013, the parties appeared again without counsel and presented the judge with the same agreement. At the same time, the wife indicated that she would be satisfied with an additional $50,000 in the division of marital assets; the husband rejected that proposal. The judge again rejected the agreement, stating that he could not find that it was fair and reasonable.
On November 4, 2013, the parties entered into a separation agreement which provided that the wife would buy the husband's interest in the marital home and that the purchase price represented "an $85,000 equity credit to [the wife] to compensate her for the difference in the division of marital assets." It also provided that each party would retain all rights in "the non-retirement and retirement accounts" "such as stock and 401k accounts," currently in his or her name. In addition, the agreement provided that all of its provisions, except those relating to the parties' child, would be incorporated into the divorce judgment, but not merged and would survive as an independent contract.
On December 4, 2013, after a hearing, a judge found that agreement to be voluntary, fair, and reasonable; that both parties accepted it as a full and final division of the marital assets; and that it made proper provisions for the disposition of the marital property. The judgment became absolute on March 5, 2014.
The divorce judgment was followed by several contempt actions. On June 18, 2014, the wife's counsel filed his notice of appearance and a modification complaint. On June 26, 2014, the husband filed a complaint for contempt.
A pretrial conference was held on September 16, 2014. On that date, the wife filed a motion for relief from divorce judgment pursuant to rule 60(b)(2) and (3), alleging that the husband had failed to disclose over $100,000 in assets. The husband filed an opposition. A hearing was held on June 15, 2015. On August 13, 2015, the judge who conducted that hearing, and who twice had considered the parties' original separation agreements, denied the wife's motion for relief from the divorce judgment.
In his rationale, the judge wrote, in part:
"On September 16, 2014, the Defendant ('Wife') filed a Motion for Relief from that Judgment arguing that the Plaintiff (Husband) did not disclose and secreted over $100,000.00 in retirement assets which affected the agreement for the overall division of assets. In support of the motion the Wife includes evidence that the Husband's girlfriend transferred monies to him after the Judgment and that his assets increased....
"Neither party was represented at the time of the hearing, however a thorough, mediated agreement was presented to the Court and each party was asked on the record if they believed it to be fair and reasonable to which they responded in the affirmative. The Wife had the opportunity for discovery in order to thoroughly investigate the Husband's finances and the fact that Husband's assets appear to have increased after the divorce does not necessarily indicate fraud with regard to disclosure of his assets...."
Discussion. a. Evidentiary hearing. The wife's first argument is that the judge abused his discretion by ruling on her rule 60(b) motion without an evidentiary hearing or an opportunity for her to be heard. First, a judge is not required to hold an evidentiary hearing on a rule 60(b) motion. See Knott v. Racicot, 442 Mass. 314, 326 (2004) ; Bahceli v. Bahceli, 10 Mass. App. Ct. 446, 450 (1980). Second, the wife did not, as is required, request a hearing in her motion for relief from the judgment. See Probate and Family Court Standing Order 2-99.
The standing order provides, in part, that: "If a party wishes to request a hearing on the motion, said request shall be filed and served with the motion.... Failure to request a hearing shall be deemed a waiver of any right to a hearing afforded by statute, court rule or case law." Probate and Family Court Standing Order 2-99(b)(2).
The wife claims that a hearing initially was scheduled in this case and then continued; for that reason, she argues, it could not be withheld. This argument fails for the reason, if no other, than that a consolidated hearing (status conference) on her motion was held on June 15, 2015. Following that hearing, on August 17, 2015, the judge denied the wife's motion for relief. On June 17, 2015, a trial date was set on the consolidated modification and contempt complaints. The wife's reliance on Wilkins v. Cooper, 72 Mass. App. Ct. 271, 276 (2008), is misplaced because, in that case, unlike here, neither the plaintiff nor his counsel had notice of the hearing.
Specifically, on March 9, 2015, the judge allowed the husband's assented-to motion to continue the March 12, 2015, hearing on the wife's motion for relief; the parties agreed to consolidate the hearing of this motion with the wife's complaint for modification and the husband's complaint for contempt already scheduled on May 5, 2015. On May 5, 2015, the hearing was continued to June 15, 2015, and the June 15, 2015, hearing was held as scheduled.
b. Motion for relief. The wife also argues that the judge erred in denying her rule 60(b) motion for relief from judgment. , We review the judge's ruling for an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). As to the wife's claim of newly discovered evidence, the wife had an opportunity to conduct timely discovery with respect to the husband's finances, and there is no indication in the record she did so at any time between the filing of the divorce complaint and the issuance of the divorce judgment. Based upon our review of the wife's "new" evidence regarding retirement and other assets, the judge acted within his discretion in concluding that the wife was not entitled to relief based on "newly discovered evidence" within the meaning of Mass.R.Dom.Rel.P. 60(b)(2). Moreover, the judge could properly take into consideration the fact that the wife had not timely sought discovery. A rule 60 motion is not a proper vehicle for bringing forward (or seeking) information that was not timely sought during discovery absent some extraordinary circumstances not present here.
We need not consider the wife's claim, made for the first time on appeal, that the husband breached his fiduciary duty to the wife. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006).
Rule 60(b) provides in pertinent part:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); [or] (3) fraud ..., misrepresentation, or other misconduct of an adverse party."
Mass.R.Dom.Rel.P. 60(b)(2),(3).
We have in mind the judge's refusal on two separate occasions to accept the parties' separation agreement due to a disparate division of the marital assets. At that time, the judge also advised the parties to hire counsel, and the wife did not do so until she filed her complaint for modification on June 18, 2014, more than five months after the divorce judgment became absolute.
The wife's claim that after the divorce judgment became final the husband rolled over approximately $66,000 to his Fidelity IRA "from another retirement account not disclosed on his financial statements," is unsupported by the material she submits: a single page of an eight-page Fidelity IRA statement, showing a $66,000 rollover to, and an approximate $67,000 ending balance in, a "core account." The husband's November 4, 2013, financial statement, filed prior to the entry of the judgment nisi, listed $170,000 in one or more Fidelity IRAs. The wife thus did not make a threshold showing that the $66,000 was "new," i.e., came from somewhere other than the husband's already-disclosed Fidelity IRA holdings.
The wife's brief refers to an allegedly undisclosed 401(k) account with ADP, but in support she submits only the second page of a two-page statement. That page does not include the husband's name or any other indication that it pertains to an account held by him, nor does the page indicate the date the statement was issued (as opposed to having been printed from the Internet) or the actual value of the account. Similarly, the wife's brief refers to allegedly undisclosed stock options issued to the husband by his current employer, but in support she submits only a single-page report dated February 27, 2013. The wife offers no evidence that the husband still held those options as of November 4, 2013, the date of the earliest financial statement in the record before us, and no explanation of how she could not have learned of these options through discovery propounded to the husband or the employer well before the divorce judgment was entered.
According to the wife's May 15, 2015, status conference memorandum, she did serve discovery requests on the husband on or about March 16, 2015. These discovery requests were made more than two years after the entry of the divorce judgment and after the filing of the wife's complaint for modification.
For this reason, neither contention justifies granting the wife equitable relief from the divorce judgment under rule 60(b). See Sahin v. Sahin, 435 Mass. 396, 404 (2001), quoting from Heins v. Ledis, 422 Mass. 477, 483-484 (1996) ("A division of marital assets anticipates a final and equitable distribution of the property owned by the parties at the time of the divorce, and it is from those assets only that a judge can make [his] division.... Thus, in making a division of assets the judge [is] limited, for better or worse, to the property owned by the parties at the time of the divorce").
As to her fraud claim, the wife fares no better. The judge was not required to credit the speculative and conclusory allegations in her motion. See Knott v. Racicot, 442 Mass. at 326. The judge could permissibly conclude that, "the fact that Husband's assets appear to have increased after the divorce does not necessarily indicate fraud with regard to disclosure of his assets," given the lack of evidence presented.
The wife's allegation that, six months after the divorce, the husband bought a $500,000 home and that he disclosed assets to his lender that were absent from his financial statement lacked supporting documentation. Moreover, the four pages of materials, unaccompanied by affidavits, which the wife attached to her motion did not require a different result. "We recognize that there may be instances when allowing a particular judgment to stand would be so contrary to principles of equity as to tip what would otherwise be ordinary fraud into the special category that can invoke a court's inherent power to breach finality. The wife has not presented evidence that this is such a case."Sahin v. Sahin, supra at 405.
One included page is a chart compiled by the wife alleging balances in the husband's accounts on various dates. This chart, without supporting documentation as to any of its figures, is insufficient to support the wife's allegation that the husband hid assets from her as of the time of the divorce. Moreover, the chart demonstrates the wife's knowledge of the existence as of July, 2012, of a Dedham savings account, which was not listed on the husband's November 4, 2013, financial statement, filed prior to the entry of the judgment nisi. The wife thus had the opportunity before judgment entered of propounding discovery as to the status of that account, but she did not do so. It was thus within the judge's discretion to reject the wife's claim that the existence of the account in June, 2014, was "newly discovered evidence which by due diligence could not have been discovered" before judgment. See Mass.R.Dom.Rel.P. 60(b)(2). Also, the wife contends that the two checks ($49,000 and $5,000, respectively) from the husband's alleged girl friend made payable to the Husband, and what appears to be a deposit receipt (of the second check) into the husband's Citizen's Bank account, represented funds hidden from her at the time of the divorce. Again, these checks, without more, are insufficient to support the wife's speculative assertions that these funds were, in fact, the husband's assets secreted from her.
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For these reasons, we conclude that the judge did not abuse his discretion in denying the wife's motion for relief from the divorce judgment.
Order denying motion for relief from judgment affirmed.