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Kuzmitski v. Kuzmitski

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Dec 7, 2011
10-P-2212 (Mass. Dec. 7, 2011)

Opinion

10-P-2212

12-07-2011

CHRISTINE M. KUZMITSKI v. KENNETH P. KUZMITSKI.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The parties were married for forty-one years. They have two adult children. By stipulation, they agreed to an equal division of all the assets except the inherited assets, which the judge, with one exception, divided equally between the parties. The wife appeals.

That exception was the wife's $75,000 interest in the land in Dracut subject to the clearing of the title. The judge did not include this land in the marital estate.

Pursuant to G. L. c. 208, § 34, judges have broad discretion to divide marital property equitably. Brower v. Brower, 61 Mass. App. Ct. 216, 221 (2004). The judge's order must be accompanied by findings which indicate that all relevant factors under § 34 have been considered. See Rice v. Rice, 372 Mass. 398, 401- 403 (1977). A judgment of property division is not to be reversed unless it is plainly wrong and excessive. Mahoney v. Mahoney, 425 Mass. 441, 447 (1997). We have reviewed the record. The judge's seventy-two findings of fact reflect consideration of the relevant G. L. c. 208, § 34, factors. His division of property was not plainly wrong and excessive.

a. The wife argues that the assets inherited by each party should not have been included in the marital estate and subject to division. However, 'it is the well-settled foundation of domestic relations law . . . that a trial judge has 'discretion to assign one spouse the property of the other spouse whenever and however acquired." Adams v. Adams, 459 Mass. 361, 380 (2011), quoting from Rice v. Rice, 372 Mass. at 400.

The parties stipulated to the value of their respective inheritances. The husband received a fifty percent interest in his parents' condominium, valued at $83,333, inherited other assets in the amount of $33,461.79, and received $14,468 from life insurance policies, for a total of $131,262.79.
In 1975, the wife's mother deeded an undivided joint interest in her house to the wife. Upon the mother's death in 2006, the legal title in the house vested in the wife by operation of law, and she sold it for $240,567. The wife also inherited other property, accounts, and stocks in the amount of $188,935, as well as the interest in the Dracut property.

b. The wife also argues that because she and the husband received their inheritances toward the end of the marriage, they did not contribute to these assets and these assets should, therefore, not be considered as part of the marital estate. '[T]he marital estate is typically determined as of the date of the divorce trial.' Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996). Here, both parties received their inheritances in the later part of the marriage, but prior to the 2009-2010 trial. The timing of inheritances is not dispositive in this case of a long-term marriage with equal contributions by the parties. None of the cases cited by the wife requires a different result.

c. The 'parties' respective contributions to the marital partnership remain the touchstone of an equitable division of the marital estate.' Moriarty v. Stone, 41 Mass. App. Ct. at 157. The wife disputes the judge's finding that '[b]oth parties provided approximately equal, valuable contributions throughout the marriage,' arguing that her contributions exceeded the husband's. Based on the judge's subsidiary findings regarding the parties' contributions and our review of the record, we conclude that the judge's finding of equal contribution was not clearly erroneous. See Goodman v. Atwood, 78 Mass. App. Ct. 655, 657-658 (2011).

d. The wife argues that the judge paid 'little heed' to the husband's conduct, including his relationships with other women in 2007 and his interest in pornography. Where the judge considered the husband's conduct, it was up to him to decide how to weigh it. See Pierce v. Pierce, 455 Mass. 286, 296 (2009). As to the wife's related claim of dissipation, the judge found that the husband bought pornography with his own credit cards and made him responsible for their payment.

e. The wife claims that the judge erred in the husband's favor when he found that after the payment of taxes and the purchase of a car, the wife retained $207,373 and that, in light of the balance of $98,000 at the time of trial, she expended $109,370 for her own use. Although the language of the judge's finding on the subject may be confusing in light of two mentions of the taxes paid by the parties, there is no error in the judge's actual calculation. The $207,373 figure is based on the parties' stipulation of $240,567 in net proceeds, minus their tax payment of $19,015 and their car purchase of $14,179. The wife's use, in her appellate brief, of $221,552 as the net proceeds figure is not supported by the record and is contrary to the parties' own stipulation.

The parties stipulated, in part:

'27. On October 2, 1975 Wife's mother deeded to Wife an undivided Joint Interest in her mother's house.
'28. The wife's mother died in 2006 and legal title to the property vested solely in the Wife by operation of law.
'29. On October 3, 2006 the Wife sold the property for a net sales proceeds of $240,567.00.
'30. Said property was placed in a Joint Account with rights of survivorship.
'31. The sale of the house was reported on the parties' joint tax return for 2006, and federal income taxes were paid in the amount of $19,015.
'32. Funds were used from said account to purchase the Husband a new vehicle ($14,179.00).
'33. Immediately prior to or just after the filing for divorce the Wife transferred said funds to an account solely in her name.'

f. The wife argues that the judge should not have ignored her testimony and that of her brother that the two of them had an oral agreement that she would pay him $16,000 to equalize what they considered their unequal inheritances from their mother's estate and the husband's attorney's stipulation that this testimony was accurate. The judge did not ignore that agreement. However, having considered it, he was not precluded from finding that it did not take the sum in question out of the marital estate. Ketterle v. Ketterle, 61 Mass. App. Ct. 758, 763-765 (2004) (husband's promise to pay part of proceeds of prize to his mentor was moral obligation which did not constitute grounds for removing these funds from marital estate).

The wife testified at trial that this agreement was not acted on by her between her mother's 2006 death and the 2009-2010 trial.

The judge wrote: 'Wife and her brother testified that Wife owes her brother $16,000.00 as an equalization of their inheritance. Although both Wife and her brother may sincerely believe in their agreement and intend to act upon it, no evidence was presented to show that it was solemnified in any legally enforceable way. As this settlement appears to be an informal agreement between Wife and her brother rather than the result of a judicial determination or an enforceable legal document, Wife received no credit for her alleged agreement with her brother.'
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Judgment affirmed.

By the Court (Kafker, Cohen & Katzmann, JJ.),


Summaries of

Kuzmitski v. Kuzmitski

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Dec 7, 2011
10-P-2212 (Mass. Dec. 7, 2011)
Case details for

Kuzmitski v. Kuzmitski

Case Details

Full title:CHRISTINE M. KUZMITSKI v. KENNETH P. KUZMITSKI.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Dec 7, 2011

Citations

10-P-2212 (Mass. Dec. 7, 2011)