Opinion
16-P-1212
06-22-2017
June A. MUELLER v. Robert A. MUELLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from an amended judgment of divorce nisi, challenging the division of the marital property. We affirm.
We address the husband's appeal from a separate judgment of contempt in a memorandum and order in case no. 16-P-1211.
The parties were married in 2006 and separated in February of 2014. Later the same month, the wife filed a complaint for divorce. In July of 2015, the parties stipulated to submit the question of property division for determination, "facts final," by a master. The judge then incorporated the stipulation into an order and appointed a master under Mass.R.Dom.Rel.P. 53"to hear the parties and make findings on ... [w]hat is a fair and reasonable division of marital assets in this case under G. L. [c.] 208, [§] 34." The order provided that "[t]he subsidiary findings of fact made by the [m]aster shall be accepted by the [c]ourt unless they are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the [m]aster as a matter of law[,] or are otherwise tainted by error of law."
Following multiple days of hearings in July and August of 2015, the master issued a lengthy report, which included 271 findings of fact. The husband filed objections to the report, while the wife moved for approval of the report in its entirety. The wife also opposed and moved to strike the husband's objections, arguing, among other things, that he failed to " ‘clearly’ state the grounds for each objection and the relief sought," Mass.R.Dom.Rel.P. 53(h)(2), and failed to cite to the evidentiary record to support his objections. The record does not reflect that the husband took any action to cure these deficiencies.
In February of 2016, the judge entered an amended judgment of divorce nisi, nunc pro tunc to July of 2015, approving and incorporating the master's report in its entirety. The judge concluded that the master's findings of fact were "clear, consistent[,] and warranted by the evidence," observing that "[e]ach finding [was] supported by a reference to the transcript page and line where the testimony at issue was provided." The judge further concluded that the master's proposed judgment was "fair, reasonable[,] and consistent with the law in all respects."
On appeal the husband argues that the master erred by (1) not valuing the marital assets as of the date the marital partnership terminated, (2) including one of the husband's premarital assets, his Ameriprise portfolio, in the marital estate, (3) awarding the wife the remainder of the husband's Martha's Vineyard savings account, and (4) finding that the husband dissipated marital assets. We agree with the wife that the husband waived these arguments by failing to raise or adequately present them below.
With respect to the valuation date, the husband conceded at oral argument that he did not raise that issue in the objections that he submitted to the judge. The issue is therefore waived. See Libman v. Zuckerman, 33 Mass. App. Ct. 341, 345 (1992) ("The failure to file any objections to the master's report as to [a particular] subject precludes challenge at this later stage of review"). With respect to the latter three arguments, having reviewed the parts of the record cited by the husband, we conclude that he did not present his objections to the judge in a manner sufficient to preserve them for appeal. The husband did not "clearly stat[e]" the grounds on which the objections were based, Mass.R.Dom.Rel.P. 53(h)(2), and provided no citations to the evidentiary record. Without such citations, the husband necessarily failed to identify any clear error in the master's findings. See Libman, 33 Mass. App. Ct. at 343 (where master "file[s] with his report a transcript of the evidence of the proceedings," "[t]he filing of the transcript permits an appellant to direct a reviewing court [in the first instance, the trial court ] to that transcript concerning points of objection" [emphasis supplied] ).
Even assuming for sake of argument that the latter three issues are not waived, we still would discern no reversible error. We will not disturb a judge's determination regarding a division of the marital estate unless it is "plainly wrong and excessive." Adams v. Adams, 459 Mass. 361, 371 (2011), quoting from Redding v. Redding, 398 Mass. 102, 107 (1986). Furthermore, where, as here, the parties agreed to submit the case to a master, the master's findings "have heft, and they will not be set aside unless the reviewing court is firmly and definitively convinced that they are mistaken." Libman, 33 Mass. App. Ct. at 343.
The husband's arguments, which we address in turn, fail to convince us that the master's findings should be overturned. First, the master explained that she was counting the parties' premarital assets, including the husband's Ameriprise portfolio, as part of the marital estate because the parties "both contributed to those premarital assets following their cohabitation, and continued to contribute to those assets after they were married." Contrary to the husband's assertion, it was not fatally inconsistent for the master to include the Ameriprise portfolio in the estate while assigning another of the husband's premarital assets, his Invesco IRA, to him exclusively. The master considered certain premarital assets, such as the Invesco IRA, to be outside the "marital pot" because "the evidence [did] not warrant a finding that [those] assets were com[m]ingled." In contrast, the master specifically found that the Ameriprise portfolio was commingled, based on the husband's testimony that he transferred money from a joint account into one of his Ameriprise investments. That finding was not plainly wrong or excessive. See Baccanti v. Morton, 434 Mass. 787, 792 (2001), quoting from G. L. c. 208, § 34 (judge "may assign to either husband or wife all or any part of the estate of the other" including "property acquired prior to the marriage").
Second, we discern no clear error in the master's awarding the remaining monies in the Martha's Vineyard savings account to the wife. The husband does not, and could not reasonably, claim that the master erred by considering this account as part of the estate, given that the husband set it up by using $450,000 of funds taken from a joint account. And once the master included the account in the estate, she had broad discretion to determine how to equitably divide the monies in it. See ibid. The master concluded that, overall, the "case call[ed] for a nearly equal division of the parties' marital estate," in light of their respective contributions to the marriage and their "economic partnership." The husband has not shown that this determination was plainly wrong or excessive. In turn, it was not clear error for the master to award the wife the remaining monies in the Martha's Vineyard account in order to effectuate an approximately equal division of the assets.
Third, the master did not clearly err by determining that the husband dissipated marital assets. The master found that the husband took $724,000 from the parties' joint accounts, repaid most of it, but could not account for $33,000. Although the husband contends that his conduct does not meet the legal definition of "dissipation," whatever the label put on his conduct, it was permissible for the master to charge the $33,000 against the husband's share of the estate, as it was unaccounted-for money that he took from a joint asset. We also reject the husband's claim that there is a fatal discrepancy in the master's calculations. The cited portions of the report do not support his contention, and, "even if there are some errors, we deem them insignificant," especially given the less than clear manner in which the husband presented his objections to the judge. Goldman v. Goldman, 28 Mass. App. Ct. 603, 613 (1990). See Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168 (1989) ("[m]athematical precision is not required" in property division).
The husband's most significant claim of error is that, in her rationale, the master accounts for "only $161,000 as used for the purchase of [a] Las Vegas property," but, earlier in her findings, she accounts for $212,275. The $212,275 figure in the finding, however, includes both the price of the Las Vegas property and about $50,000 in transfers that the husband made back to one of the parties' joint accounts. The master then goes on to find that the $50,000 still could not be accounted for because, "on the same day the [h]usband returned the $50,000," he made additional withdrawals from joint accounts and "provided no explanation for where the remaining funds are today."
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Amended judgment of divorce nisi affirmed.