Opinion
19-P-18
11-18-2020
ELANA A. JORDACHE v. RAZVAN D. JORDACHE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant father appeals from certain aspects of a judgment of divorce nisi, as it incorporated a supplemental judgment of divorce nisi, entered in the Probate and Family Court on January 31, 2018. Specifically, he challenges the child custody and support order and the division of the marital assets in the judgment. We affirm.
Child support. In the judgment of divorce nisi, the judge ordered child support payments that are thirty-six dollars per week above the minimum presumptive level of support where the parties' combined annual gross income exceeds $250,000. See M.C. v. T.K., 463 Mass. 226, 233 (2012); Massachusetts Child Support Guidelines (2018). Because the judge did not explain this departure, we issued a remand order, while retaining jurisdiction of the case, consistent with Levitan v. Rosen, 95 Mass. App. Ct. 248, 256 & n.12 (2019), asking the judge to enter brief written findings explaining the reason for the award contained in the judgment appealed herein. Levitan was decided during the pendency of this appeal, and the judge's initial decision was entered without her having the benefit of its teaching.
In response, the judge entered detailed further findings. She explained that, in light of the wide disparity in household income, she calculated the child support guidelines based on each of the parties' total reported gross weekly income. She noted that the father's gross weekly income was more than double that of the mother. She also pointed to the parenting plan, which had the mother providing significantly more of the parenting time than the father. Additionally, she found that the difference between the minimum presumptive order and her order, which she calculated at thirty-eight dollars per week, "amounts to a very modest .009 percent of father's gross weekly income at the time of trial." The judge's findings comport with the requirement articulated in Levitan, 95 Mass. App. Ct. at 255-256, and, reviewing them, we see no abuse of discretion in her determination that the child support order is fair and equitable to both parties.
We need not determine whether the actual difference is thirty-six dollars or thirty-eight dollars per week as nothing in our decision turns upon it.
Child custody. The father also argues that the child custody order was an abuse of discretion because, although he was ordered to pay fifty percent of the minor child's education expenses and extracurricular activities, he was not awarded fifty percent parenting time. The judge's determination with respect to child custody, based on the best interest of the child, however, was well within the scope of the trial judge's discretion. See Yannas v. Frondistou-Yannis, 395 Mass. 704, 710 (1985); Custody of a Minor, 21 Mass. App. Ct. 985, 987 (1986). The allocation of parenting time need not be commensurate with the amount of child support a parent pays. Rather, the "determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings in a custody case 'must stand unless they are plainly wrong.'" Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v. Merida, 428 Mass. 182, 191 (1998).
The parties disagree about which activities the fifty percent payment order covers. Again, we need not resolve this issue as it is not material to the question before us.
The parties had one child during the marriage who, at the time of trial, was nine years old. In her findings of fact, the judge noted that the mother was the primary caretaker of the child and had been since birth. Moreover, after the parents separated, the child primarily resided with the mother and the mother's parents while the father lived alone in a different house. We find no abuse of discretion where the judge awarded primary physical custody to the primary caretaker and sought to maintain stability in the young child's living situation. See Angelone v. Angelone, 9 Mass. App. Ct. 728, 730 (1980) (finding physical custody with mother in best interest of children where she was their "primary caretaker for most of their lives, and they live[d] with her in a settled environment").
Division of marital assets. Finally, the father argues that in the division of the marital estate, the judge did not give him proper credit for his premarital assets and financial contributions during the marriage. "A judge's determinations as to equitable distribution will not be reversed unless 'plainly wrong and excessive.'" Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Redding v. Redding, 398 Mass. 102, 107 (1986). A trial judge's "broad discretion" in property division "is necessary in order that the courts can handle the myriad of different fact situations which surround divorces and arrive at a fair financial settlement in each case." Adams, supra, quoting Rice v. Rice, 372 Mass. 398, 401 (1977).
The judge properly recognized the father's considerable premarital assets and financial contributions during the marriage. However, the judge also found that the mother "contributed as a homemaker and mother in addition to working hard as a dentist to provide and care for the family while [the father] was working long hours" a significant distance from the marital residence. Moreover, although the father argues that the approximately $100,000 financial award to the mother was grossly disproportionate, it was made in light of the judge's decision to award the father all of the real estate and business assets in the marital estate except for the house the mother and child occupied. Thus, the father has demonstrated no abuse of discretion or other error of law in the property division. The judgment is affirmed.
The judge awarded the father the dental practice, valued at $235,000, and three additional real estate assets, collectively valued at $308,394. The property occupied by the mother was valued at $158,783 and the judge awarded her an additional $108,387.60.
So ordered.
By the Court (Rubin, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 18, 2020.