Opinion
No. 11–P–2160.
2012-07-19
Steven KRINTZMAN v. Wendy HONIG.
By the Court (TRAINOR, GRAINGER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the third appeal in the course of the parties' divorce proceedings, which have been ongoing for nine years; the details are reflected in prior decisions of this court and we decline to repeat them here. On this occasion the wife asserts that a judge of the Probate and Family Court committed reversible error in nine separate respects. These relate primarily to credibility determinations and the weight accorded to the evidence. We affirm.
The parties' dispute centers on the valuation of distributions from the Wendy Honig Trust. In previous rulings, this court determined that at the time of trial the Probate and Family Court judge should have calculated the then present value of anticipated future distributions from the trust, and that specific findings were necessary to support that calculation. On remand in regards to the current appeal, the judge held an evidentiary hearing and issued a careful and comprehensive memorandum of rationale with specific references to the testimony provided by expert witnesses for each party and by a cotrustee of the trust. The judge adopted the valuation report of the husband's expert, finding it more credible than that presented by the wife and more consistent with other evidence relating to the overall goals of the trust. The judge also adopted a longer timeline than that advocated by the wife to project the pattern and amounts of future distributions. The judge also found, with support in the record, that the trust did not distinguish distributions of interest from those of principal in a disciplined fashion. In these conclusions, as well as in numerous others of which the wife complains, the judge enjoys a presumption of soundness unless they are determined to be “clearly erroneous.” Mass.R.Dom.Rel.P. 52(a). Kendall v. Selvaggio, 413 Mass. 619, 620–621 (1992). This standard requires a reviewing court to be left “with the definite and firm conviction that a mistake has been committed.” Ibid. (citation omitted). Here, to the contrary, our review provides the definite and firm conviction that the judge applied a careful and cogent rationale to reach a result that is well supported by the record.
The wife's remaining assertions of error are equally unavailing. The judge determined the value of projected distributions at the time of trial in accordance with this court's instructions on remand, and was therefore manifestly correct in rejecting proffered evidence relating to market conditions, after-acquired assets, or asset value fluctuations that occurred thereafter. The judge's finding that the trust was intended to support the wife's lifestyle and provide for her well-being during her life without a substantial remainder is also supported by the record, including the testimony of the cotrustee.
With support in the record including testimony by the husband's expert, and at least in some degree to the husband's detriment, the judge adopted a slightly lower value than would be calculated by projecting total depletion of the trust assets at the end of the wife's projected life span.
The judgment entered October 27, 2011, is affirmed. The husband may file a petition for appellate attorneys' fees with this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), within twenty days of the date of the rescript. The petition may include application for fees incurred in responding to the wife's motion before this court for stay of proceedings pending appeal. The wife may respond to the petition within twenty days of said filing.
So ordered.