Opinion
21-P-304
06-10-2022
MARNA R. ORCUTT v. PAUL A. ORCUTT.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Paul A. Orcutt (husband), appeals from a judgment of divorce nisi following a trial in the Probate and Family Court. He contends that the judge erred in dividing the marital estate, and in failing to order the plaintiff, Marna R. Orcutt (wife), to pay child support, or any other child-related expenses. We reverse.
Background.
We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties, who married on November 5, 1995, have three unemancipated children. During the marriage, the wife worked as a licensed cosmetologist and eventually opened Sherborn Day Spa, Inc. The spa was successful, employing approximately thirty people, and generating annual gross revenues between $500,000 and $750,000. The husband, a self-employed accountant, generated gross revenues between approximately $200,000 and $500,000 annually. For most of the marriage, the parties enjoyed an upper middleclass lifestyle.
The parties owned residential properties in Massachusetts, Florida, and New Hampshire as well as commercial properties in Norwood. They vacationed frequently, and owned, among other things, boats, snowmobiles, and luxury cars.
In 2013, the wife began to spend time away from the spa; eventually she stopped paying the spa bills and subsequently moved to Florida in early 2015. The husband liquidated assets to pay the family's expenses, and to operate the spa. In June 2016, the bank foreclosed on the marital home, in which the husband and children lived, but took no action to collect the debt. Months later, the bank foreclosed on the spa property. The husband was personally and individually liable for the deficiency.
In December 2016, the husband sold an office condominium, and used the proceeds to pay the mortgage and utilities on the marital home, and automobile loans. The husband borrowed money from a business associate to pay real estate loans, support, and legal fees in connection with the spa because the wife failed to pay these expenses, despite a court order requiring her to do so. The husband twice borrowed money from the same business associate to pay the mortgage on the New Hampshire property. In 2018, the husband sold a second office condominium and used the proceeds to pay real estate taxes, a loan for the spa, and the mortgage on the marital home. He also liquidated his retirement assets, and sold cars, motorcycles, and a boat to pay family expenses and the wife's attorney's fees.
After the wife moved to Florida, the children continued to live with the husband. At the time of the trial, the eldest child (born in 1998) worked part-time and was principally dependent on the husband. The middle child (born in 2001) attends a therapeutic school. In 2015, the husband reduced his work schedule to care for this child during a protracted health crisis. The youngest child (born in 2002) attends a school-based therapeutic program. The wife last had contact with the oldest two children in 2017, and has limited contact with the youngest child.
In relevant part, the judgment of divorce nisi provided that: the husband had sole legal and physical custody of the youngest child; neither party was ordered to pay current alimony or child support to the other; the husband was required to pay all expenses of the children including, uninsured medical expenses and the cost of secondary education or training; and the marital estate was divided "disparately" with the wife "receiving slightly more."
The eldest children were over the age of eighteen, but were unemancipated. Accordingly, a custody order was not required.
Discussion.
a. Division of the marital estate.
"We review the judge's findings to determine whether she considered all the relevant factors under G. L. c. 208, § 34." Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). We then determine whether the reasons for her "conclusions are 'apparent and flow rationally' from [her] findings and rulings." Baccanti v. Morton, 434 Mass. 787, 790 (2001), quoting Williams v. Massa, 431 Mass. 619, 631 (2000). A judgment "will not be reversed unless 'plainly wrong or excessive'" (citation omitted). Adams v. Adams, 459 Mass. 361, 371 (2011). See also Baccanti, supra at 793.
The husband contends that the judge failed to achieve her intended result of dividing the marital estate with the wife receiving "slightly" more. He argues that the judge did not assign values to many of the assets and liabilities, and did not provide an analysis of how the estate and its values were factored into the overall distribution. The husband claims that the division results in a disparate division in favor of the wife from fourteen to twenty-four percent, and that such a division cannot be characterized as slight. Of course mathematical certainty is not required in the division of assets and liabilities. See Ross v. Ross, 50 Mass.App.Ct. 77, 81 (2000). However, on this record, we are unable to discern whether the judge made a distribution "slightly" in favor of the wife, as was her stated intention. We are mindful that the judge received 207 trial exhibits, which contained a morass of financial transactions reflecting unpaid debts and liquidated, repossessed, and foreclosed upon assets, with each party blaming the other for the couple's financial ruin. We also recognize that the judge is free to disbelieve all or part of the testimony of a witness. See Schechter v. Schechter, 88 Mass.App.Ct. 239, 245 (2015). But here we are unable to reconcile some of the judge's findings with the uncontested documentary evidence. For example, the judge found that "[t]he Court has no information as to the tax liability on the withdrawals [from retirement accounts] or how that was paid." However, trial exhibit 197 shows that approximately $150,000 in federal and state taxes were incurred for these withdrawals. This liability was unaccounted for in the overall distribution. See Rosenthal v. Maney, 51 Mass.App.Ct. 257, 265 (2001) (deference to trial judge limited when findings not supported by evidence).
Although not required, the judgment did not include a chart that set forth the assets, liabilities, values, and intended division of same, which may have been helpful here.
We do not necessarily agree with the husband's calculations as set forth in his brief.
Another example relates to the judge's finding that the husband used retirement funds to "continue to live the lifestyle the parties enjoyed during the marriage." The judge does not explain how the husband's use of assets to pay fixed family expenses, medical insurance, and uninsured medical expenses, particularly in light of the children's extraordinary needs, was factored into the distribution. Some of the husband's spending may well have been discretionary, but the judge did not account for payment of necessary family expenses. While the judge may have valid reasons for doing so, they are not readily apparent from her findings, and therefore we are unsure that the overall distribution accomplished the judge's stated intention. Accordingly, a remand is necessary.
The judge need not take additional evidence, but may do so in her discretion.
b. Child support and expenses.
The husband next claims that the judge erred by failing to enter a child support order without making sufficient findings to justify that decision, and by ordering him to pay all child-related expenses without contribution from the wife. We review a child support order for an abuse of discretion. See J.S. v. C.C., 454 Mass. 652, 660 (2009). The Massachusetts Child Support Guideline (guidelines) have presumptive application in all cases in establishing a support order. See Wasson v. Wasson, 81 Mass.App.Ct. 574, 577 (2012). See also G. L. c. 208, § 28. The parties' income, as attributed to each of them by the judge, fell within the guidelines in effect at the time of the trial. See Child Support Guidelines § II (C) (June 2018). The judge made detailed findings about the children's needs, including their significant uninsured medical expenses, and anticipated secondary training or education. She found that the children were "entitled to support from both parents." See M.C. v. T.K., 463 Mass. 226, 231 (2012) (children should be supported by parents' financial resources where possible). Notwithstanding, the judge did not enter the presumptive order; she deviated from the guidelines without making the requisite findings. See Child Support Guidelines § IV (June 2018). The judge was required to, but did not, calculate "the amount of the order that would result from application of the guidelines," determine whether that "amount [was] unjust or inappropriate [in these] circumstances," identify the facts which justify deviation, and enter a finding that the order is consistent with the best interests of the children. Child Support Guidelines § IV (A). As a result, a remand is required. To the extent that the child support order is intertwined with the judge's decision to order no current payment of alimony, she may reconsider that order as well. Cf. Calvin C. v. Amelia A., 99 Mass.App.Ct. 714, 720-722 (2021).
Neither party appealed from the alimony provision in the judgment of divorce nisi.
Conclusion.
Those portions of the judgment of divorce nisi that divided the parties' assets and liabilities, ordered the wife to pay no current child support, and ordered the husband to pay all expenses of the children are vacated. The case is remanded to the Probate and Family Court for further proceedings consistent with this memorandum and order. In all other respects, the judgment of divorce nisi is affirmed. The wife's request for attorney's fees and costs is denied.
So ordered.
The panelists are listed in order of seniority.