Opinion
14-P-1569
12-08-2015
FREDERICK S. KIMBERK v. DOROTA J. WYSOCKA.
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
This is a divorce action in which a Probate and Family Court judge entered judgment after the parties reported that they had settled their litigation. Before judgment entered, the husband unsuccessfully sought to repudiate the agreement, and after judgment entered, he filed a motion for new trial. We affirm the judgment and the order denying the motion for new trial. We vacate the order clarifying the judgment because the court lacked jurisdiction when that order was entered.
Judgment and motion for new trial. The husband filed a complaint for divorce after a thirteen-year marriage. For present purposes, the principal dispute was over the division of the parties' considerable assets, which included many properties collectively valued at several million dollars. The litigation eventually proceeded to trial, but after five days of testimony and argument, the parties reached a settlement during a break in the trial.
The parties' agreement was set forth in a "Memorandum of Understanding" (MOU). Although the wife's lawyer was the principal drafter of the MOU, both parties signed it and both reported their settlement to the judge. The judge requested that the parties explain the contents of the MOU, and the wife's counsel did so without contradiction. As the wife's counsel explained, and is evident on the face of the document, the MOU sets forth the essential terms of how the properties were to be divided; all that remained was for the parties to fill in certain ministerial information regarding the properties (such as the current mortgage values of the properties). Although the MOU contemplated that the parties would execute a final more formal agreement, it expressly stated that if the parties were unable to execute such an agreement within fourteen days, the MOU as written would become the order of the court. The judge conducted a colloquy on the reported settlement, asking the parties if "what was related to [him] just now by the attorneys" was their "understanding of what's in the agreement." Both parties replied, "Yes." "[B]ased on the testimony [he had] heard to date" the judge then made a finding that "the agreement is fair and reasonable and free from fraud and duress."
This aspect of the MOU was discussed extensively at the hearing at which the parties reported their settlement.
Two weeks after the parties reported their settlement, the wife requested a hearing at which she reported that the husband was not cooperating with providing the information needed to finalize the contemplated more formal agreement. In response, the husband expressed his desire to repudiate the MOU, stating that it was "untenable" for him, and that he had "signed it under . . . pressure." The hearing concluded with the understanding that the parties would submit a typed agreement to the judge, who would reread it and render a judgment. Subsequent to the hearing, the husband continued his noncooperation; he did not share the missing information with the wife, nor did he submit anything to the judge. Working off available information, the wife prepared and submitted a "Proposed Judgment on Memorandum of Understanding." Based on the husband's refusal to cooperate in supplying the ministerial information needed to finalize the parties' formal agreement, the judge adopted the wife's proposed judgment.
In place of current mortgage information, the wife used information that was about one year old. She argues that this, if anything, worked in the husband's favor, and the husband does not argue otherwise.
In his rationale supporting the judgment, the judge took note that the husband was "refusing to participate in the requisite analysis and calculation of values, and [was] ignoring the [wife's] request to negotiate a written agreement based on the Memorandum."
We discern no abuse of discretion or other error by the judge in holding the husband to his agreement, entering the judgment based on the wife's proposed version, and refusing to vacate the judgment and grant the husband a new trial. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 91 (1984) (parties bound by agreement if "judge determines . . . that the agreement was free of fraud and coercion and fair and reasonable . . . and that the parties agreed on the finality of the agreement"). Contrary to the husband's protests, the judge made all such required findings here with respect to the MOU. Making additional findings of fact is not required, because divorce agreements "are almost always the product of compromise." Id. at 92. There is also no question that the judge had adequate information on which to find the settlement fair and reasonable, having just sat through days of trial, including expert testimony from both sides. Contrast id. at 91 (expressing concern whether the judge enforcing a reported oral agreement had sufficient information to find it fair and reasonable). For similar reasons, the judge acted within his discretion in not holding an evidentiary hearing on the husband's motion for new trial in which he attempted to repudiate the agreement. See id. at 92 (for purposes of reviewing divorce agreements, holding an evidentiary hearing is "not required").
The husband has not demonstrated that there are any material variances between the MOU and the final judgment. In addition, having forfeited his right to craft the particulars of the final judgment, the husband cannot now be heard to complain about the judge's accepting the wife's proposed version.
Indeed, at the hearing requested by the wife based on the husband's lack of response, the judge stated, "I had five days of trial . . . and that was enough time to give me all the facts."
Motion for clarification of judgment. The husband also appeals an order that the trial judge issued to clarify the judgment. That order was entered on October 16, 2014, by which time the current appeal had been docketed. Because the lower court did not have jurisdiction at the time the order was entered, we are constrained to vacate the order. See Commonwealth v. Cronk, 396 Mass. 194, 197 (1985) (lower court is divested of jurisdiction once appeal has entered).
When the husband delayed transferring certain rental properties to the wife, she filed a contempt action seeking that rents be paid to her until the properties were transferred. A different judge denied that relief and suggested that the wife seek clarification from the trial judge regarding the interim payment of the rents. The wife also sought relief regarding the paying over of security deposits; the parties agree that that issue is now moot.
Judgment affirmed.
Order denying motion for new trial affirmed.
Order entered October 16, 2014, clarifying judgment vacated.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 8, 2015.