Opinion
14-P-606
06-01-2015
ROBIN HEALEY v. JOSEPH HEALEY.
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 defendant, Joseph Healey (husband), appeals from the entry of a judgment of divorce nisi, alleging that the trial judge erred in attributing income to him and awarding attorney's fees to the plaintiff, Robin Healy (wife). We affirm.
Background. The husband and wife married in 1993 and have one child, ten years old at the time of trial, who has been diagnosed with Asperger's disorder. On August 5, 2011, the wife filed a complaint for divorce from the husband. The case was litigated in front of the same judge over the course of two years, with voluminous pleadings filed by both parties. On April 4, 2013, the parties entered into a stipulation agreeing to have the court decide the case based upon written submissions and oral argument, without the taking of trial testimony. Thereafter, the parties submitted a stipulation of procedural history and uncontested facts. Pursuant to these stipulations, the judge was tasked with deciding the contested issues of child support, alimony, division of assets, and attorney's fees.
The docket reflects more than 120 entries.
Specifically, the parties agreed that "[f]ollowing the submission of the parties' respective [f]indings of [f]acts, [r]ationale and [p]roposed [j]udgment, the [c]ourt shall schedule a hearing on this matter at which time counsel for the parties shall have an opportunity to make oral argument and provide any additional information as deemed necessary and appropriate by the [c]ourt to assist in the ultimate determination of this action."
On June 25, 2013, the judge heard arguments on the merits of the case. Both parties were present. On November 19, 2013 the trial judge issued findings of fact, conclusions of law, and rationale on the complaint for divorce. In response to the wife's request for an award of attorney's fees, the judge ordered the wife to submit affidavits from the three attorneys who had represented her throughout the course of the proceedings. On February 11, 2014, after considering the wife's submissions, the judge ordered the husband to pay attorney's fees in the sum of $100,000.
The transcript of the hearing contains seventy-eight pages.
The thirty-three page ruling contains 164 findings of fact.
Discussion. We begin by addressing the husband's argument that we should review the judge's decision de novo because the trial evidence was submitted on stipulations, affidavits, and other documentary evidence. We traditionally review a trial judge's findings of fact for an abuse of discretion, and her conclusions of law de novo. Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). While the husband argues that we are in as good a position as the trial judge to review the documentary evidence, we note that both parties sought factual determinations on the contested issues and that the judge was required to consider materials submitted over the course of two years. The fact that there was no testimonial evidence did not relieve the judge of her obligation to find facts, see Mass.R.Dom.P. 52(a), which she did based upon the record before her. Accordingly, we decline the husband's request that we serve as a second set of fact finders. We will uphold the judge's findings "unless we are of the 'definite and firm conviction that a mistake' has been made." Martin, supra, quoting from Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). See also Mass.R.Dom.P. 52(a) ("Findings of fact shall not be set aside unless clearly erroneous").
The record appendix, containing all of the documentary evidence which was before the judge, consists of approximately 1,800 pages.
The husband states that the judge's attribution of income to him in the amount of $251,000 is clearly erroneous because he was unemployed at the time of trial. Nothing in the record supports this contention other than one sentence in the "defendant's verified facts" and the representations of husband's counsel on the date of trial. The judge was not required to credit these statements. Baccanti v. Morton, 434 Mass. 787, 791 (2001).
The husband also claims error because the judge failed to consider his ailing health. There was no error. While the husband claims in the "defendant's verified facts" that he is in poor health, he stated in response to the wife's request for admissions that, "as far as I know I am in excellent health[.]" The judge was not required to credit the husband's bald assertions of illness. See Baccanti v. Morton, 434 Mass. 787, 791 (2001).
The husband next contends that the judge's finding that he can earn $251,000 per year is "irreconcilably inconsistent" with her findings that the husband's alcohol abuse impacts his ability to parent. We disagree. The judge's detailed explanation of her determination of the husband's earning capacity is supported by the record, as is her finding that the husband has an issue with alcohol. The record provides ample evidence that alcohol impairs the husband's ability to care for the parties' special needs child but not his ability to work. We find no abuse of discretion in the judge's conclusion that the husband's alcohol issues do not interfere with his ability to generate a substantial income.
We note that, contrary to his position on appeal, the husband's position at trial was that he did not have an alcohol problem.
For example, the husband continued to earn $105 per hour after he was charged with assaulting the wife and child while he was intoxicated and driving under the influence of intoxicating liquor. Also, on two occasions while he was still employed, the husband was too intoxicated to take the child on a prearranged visit and the wife had to pick up the child early after accommodating the husband's request for parenting time because the husband was noticeably intoxicated. The wife and child vacated the marital residence after the incident giving rise to the assault and battery charges and stayed in hotels until the husband agreed to leave, which he refused to do despite the high level of anxiety that the child experiences in connection with his diagnosis, "particularly around unexpected situations and events."
Finally, the husband takes issue with the judge's award of wife's attorney's fees. The judge's findings are quite persuasive in this regard. She aptly found that the "[h]usband has stonewalled discovery throughout the entire divorce process" through his actions and inactions, thus carrying out his July 5, 2011, threat to make the wife "pay in court." "The wife had to expend considerable counsel fees and costs in a response to the husband's attempt not only to misrepresent his income but also to engage in" evasive discovery tactics, Kelley v. Kelley, 64 Mass. App. Ct. 733, 742 (2005), and "the fee award was justified because the litigation was unnecessarily complicated and prolonged by the actions of the [husband]." J.S. v. C.C., 454 Mass. 652, 666 (2009). We see no abuse of discretion.
Insofar as the husband challenges the judge's apportionment of fees between the wife's attorneys, he failed to include the attorneys' affidavits in the record appendix and, therefore, we do not consider this issue. See Mass.R.App.P. 8(b)(1), as amended, 430 Mass. 1603 (1999) (an appellant urging that a finding is unsupported by or contrary to the evidence "shall include in the record a transcript of all evidence relevant to such finding or conclusion"); Mass.R.App.P. 18(a), as amended, 425 Mass. 1602 (1997) (the parties may not rely on parts of the record not included in the appendix "unless leave be granted prior to argument").
Judgment affirmed.
By the Court (Trainor, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 1, 2015.