Opinion
16-P-49
05-09-2017
Michelle J. LOCKWOOD v. Richard P. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Richard P. Johnson (husband), appeals from a judgment of divorce nisi (judgment) from Michelle J. Lockwood (wife) following a trial in the Probate and Family Court. He raises multiple arguments challenging the judge's orders regarding the division of marital assets, child support, and custody of the minor children. For the reasons that follow, we conclude that the judge erred in the order of child support. Accordingly, we vacate that portion of the judgment and remand the issue for further consideration. In all other respects, we affirm.
Background. The judgment of divorce ordered equal division of the marital portion of the parties' retirement assets. The wife also received one half of the value of the marital home prior to its foreclosure sale. The husband received a diminished share of the value of the home, reflecting the costs associated with foreclosure. Sole legal custody of the two minor children was awarded to the wife. The judge ordered that the children have parenting time with the husband from Wednesday afternoons through Friday mornings, in accord with his work schedule. The judgment also ordered the husband to pay the wife $700 per week in child support.
Discussion. In reviewing the judgment of divorce, "[f]irst, we examine the judge's findings to determine whether all relevant factors in [ G. L. c. 208, § 34,] were considered." Adams v. Adams, 459 Mass 361, 371 (2011) (quotation omitted). Second we "determine whether the reasons for the judge's conclusions are apparent in his findings and rulings." Ibid. (quotation omitted). "A judge's determinations as to equitable distribution will not be reversed unless plainly wrong and excessive." Ibid. (quotation omitted). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). As a threshold matter "[w]e review the judge's findings of fact only to determine whether they are clearly erroneous." Cerutti-O'Brien v. Cerutti-O'Brien, 77 Mass. App. Ct. 166, 169 (2010).
1. Division of assets. a. Valuation date. After considering all of the statutory factors under G. L. c. 208, § 34, as amended through St. 2011, c. 124, § 2, the judge ordered that the parties' retirement assets be equally divided as of the date of divorce. The husband claims that the decision to divide the retirement assets as of that date rather than at the close of the evidence at trial was an abuse of discretion. "Although some States have established that marital property is to be valued as of a particular date (e.g., the date of separation, the date of filing of the divorce complaint, or the date of trial), Massachusetts has adopted a more flexible approach." Caffyn v. Caffyn, 70 Mass. App. Ct. 37, 43 (2007). While "the marital estate is typically determined as of the date of the divorce trial, the judge has the discretion to make that determination at another date when warranted by the circumstances of a particular case." Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996).
Here, the husband filed a motion to alter or amend the judgment, pressing the same argument he makes on appeal—that the proper valuation date was at the time of the trial, approximately two years before the judgment of divorce. In rejecting the husband's argument, the judge noted that "[o]ne issue (whether or not [the h]usband fully disclosed his assets) remained open, awaiting word from parties and counsel as to when they would be available for further hearing on that issue." The judge was referring to the wife's motion to reopen the evidence in which she alleged that the husband had failed to disclose at trial his business interest in a new health club. The judge allowed the motion. The issue remained unresolved until the parties filed a stipulation on March 19, 2015, more than fifteen months later. In the stipulation, the husband acknowledged that he had filed an "Article of Organization" for the business prior to the trial, but had failed to disclose that fact during the trial. Thus, the judge, upon reconsideration of the issue, implicitly concluded that the significant delay between the trial and the judgment was attributable to the husband. Under these circumstances, we cannot conclude that the judge abused her discretion in valuing the retirement assets as of the date of judgment.
b. Wife's potential inheritance. The husband claims that the judge abused her discretion in failing to consider the wife's potential inheritance from her mother and grandmother. As to the wife's grandmother, who died before the trial, there was no evidence that the wife would benefit from her grandmother's estate. There was evidence, however, that upon the death of the wife's mother and father, the wife's mother's estate would pass to the wife and her three siblings.
To be sure, such an "expectancy might be considered by the judge ... under the § 34 criterion of ‘opportunity of each for future acquisition of capital assets and income’ in determining what disposition to make of the property which is subject to division." Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375 (1985). Cf. Zeh v. Zeh, 35 Mass. App. Ct. 260, 264 (1993) ("An inheritance in possession ... constitutes part of the estate of the recipient subject to division under § 34"). Indeed, it is preferred that the judge recognize the existence of a potential inheritance explicitly as a finding related to the § 34 factor of "the opportunity of each for future acquisition of capital assets and income." See Heins v. Ledis, 422 Mass. 477, 481 (1996). Here, while the judge did not make an express finding regarding the potential inheritance, she did consider the parties' ability to acquire capital assets and income as it related to education, income, and employability; she recognized the opportunity for future acquisition as a § 34 factor in her rationale; and she expressly rejected including the wife's potential inheritance in her postjudgment order on the husband's motion to amend and alter the judgment. Thus, it is clear that the judge considered the evidence of the wife's potential inheritance, but did not include it because of its speculative nature. We see no abuse of discretion in that conclusion.
In her order on the husband's motion to amend and alter judgment, regarding the wife's inheritance from her mother, the judge stated "Denied. Wife's mother is very much in the land of the living ...."
c. Other claims. The husband raises various other arguments that the judge either made clearly erroneous factual findings or abused her discretion in dividing the marital assets. We have reviewed each of the husband's claims and conclude, essentially for the reasons set forth in the wife's brief, that they lack merit.
We note that the parties agree that the wife's Justice Resource Institute Retirement Benefit Account is a retirement asset to be divided under the terms of the judgment to the extent it was accrued during the marriage. We agree that, although not expressly mentioned, the account is included among the retirement assets referenced in paragraph twenty-two of the judgment and, therefore, the marital portion should be equally divided between husband and wife.
2. Child support. The judge ordered the husband to pay the wife $700 per week in child support. In her findings and rationale, the judge expressed her intention to calculate the amount of child support pursuant to the Child Support Guidelines. Specifically, she "decline[d] to depart from the guidelines as the Court finds the support obligation to be reasonable." The parties agree, however, that the $700 per week ordered by the judge is more than the amount calculated under the Child Support Guidelines. Accordingly, we vacate that portion of the judgment that orders child support in the amount of $700 per week and remand for recalculation in an amount consistent with the Child Support Guidelines.
The husband also claims error in the judge's failure to include each child's 529 college savings account in the judgment of divorce. See 26 U.S.C. § 529. The judge concluded that "[t]he children's maternal grandmother holds these accounts for the benefit of the children" and "[t]he Court has no authority to include them in the Judgment of Divorce." We discern no error in this conclusion.
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3. Custody and parenting time. The father argues that the judge's findings do not support the award of sole legal custody to the mother or the parenting plan. While parents have "equal rights to [the] custody of their children," Commonwealth v. Beals, 405 Mass. 550, 554 (1989), "the touchstone inquiry [in custody matters is] ... what is best for the child." Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). Here, the award of sole legal custody to the wife is supported by the judge's findings. The judge found that the husband and the wife are unable to communicate about the children and disagree regarding their care, such that co-parenting was not in the children's best interests. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981).
The findings also support the award of primary parenting time to the wife. During the marriage and after the parties' separation, the wife was the primary caretaking parent; while both parties were capable of meeting the children's needs, the wife assured that they were actually met; and the children flourished under her care. See El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010) (primary caretaking responsibility and continuity are factors to be considered in awarding custody). Under these circumstances, we cannot say that the judge abused her discretion in concluding that an award of primary physical custody to the wife was necessary "[i]n order to maintain a parenting plan that is least disruptive while preserving the minor children's emotional stability."
There is an inconsistency between the judge's findings and rationale, which suggests the husband's parenting time should be increased to include Friday nights, and the judgment of divorce, which provides the husband with parenting time from Wednesday afternoon to Friday morning. When the husband raised this issue in his motion to amend the judgment, the judge denied the requested amendment stating that "[t]he Court acknowledges that its Judgment regarding the parenting plan differs from the G.A.L.'s proposal, but the G.A.L.'s recommendations are not binding on the Court." The inconsistency is not further explained. Whatever the reason, it is clear that the judge ultimately concluded that at that time increased parenting time with the husband was not in the children's best interests. On the record before us, we see no reason to disturb that conclusion.
4. Attorney's fees. While we find most of the husband's arguments unpersuasive, we do not think sanctions are warranted as we cannot say that the appeal was frivolous or initiated in bad faith. See Avery v. Steele, 414 Mass. 450, 455 (1993). Accordingly, we decline to exercise our discretion to award appellate attorney's fees. See Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 330 (1997).
Conclusion. The portion of the judgment pertaining to child support is vacated and the case is remanded for recalculation in an amount consistent with the Child Support Guidelines. In all other respects the judgment is affirmed.
So ordered.
Vacated and remanded in part; affirmed in part.