Opinion
11-P-1762
05-31-2012
JAMES PENKALA v. DEBRA PENKALA.
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
James Penkala (husband) raises two claims of error in this appeal from the amended judgment of divorce. He argues first that the division of marital property was impermissible because it occurred during the pendency of a bankruptcy proceeding in violation of the Bankruptcy Court's automatic stay. See 11 U.S.C. § 362 (2000). The judge, however, was well aware of the bankruptcy proceeding and of the automatic stay, and, indeed, expressly stated in her findings of fact that '[a]ll transfers and property claims within the Court's [amended] judgment are first subject to the approval of the Bankruptcy Court.' In light of this, the husband has failed to demonstrate that the division of assets violated the automatic stay in any way that renders it void.
The husband also challenges that aspect of the amended judgment requiring the payment of spousal support to Debra Penkala (wife). He first argues that he 'did not have adequate notice' that the wife was seeking alimony. Because he did not reproduce the wife's complete answer and counterclaims in the record appendix (only the first page is before us), we are unable to determine the validity of this claim. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 372-373 (1991). Moreover, in the circumstances of this case, we do not think the husband can claim surprise, particularly in light of the proposed findings of fact submitted by the wife.
Turning to the primary substantive claim made by the husband, we do not think he has met his burden of demonstrating that the judge failed to weigh each of the factors listed in G. L. c. 208, § 34, or considered any irrelevant factors. See Heins v. Ledis, 422 Mass. 477, 481 (1996). The judge referred in her findings to a temporary order of April 1, 2010, which established the husband's support obligations to the wife. It is the husband's obligation to provide us with all the material necessary for a review of the judgment from which he has appealed. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995). His failure to provide us with a copy of that temporary order, which is nowhere in the record before us, makes it difficult to assess this claim. For example, it may well be that the order contains substantial reasoning concerning the determination that spousal support of $175 a week is appropriate. While the judge's language that there had been '[n]o material change in the financial circumstances of the parties' may be confusing in that it articulates a standard familiar in the context of a modification of a judgment rather than imposition of an initial obligation, the judge did not use that phrase as the basis for the award under review. Rather, the phrase is descriptive of why the amount of the award is appropriate.
The fact that the order was issued in another, related case is irrelevant. It is referred to in the judge's findings of fact in the instant matter.
In any event, even assuming the April 1, 2010, order contained no reasoning, there was evidence before the judge relating to all the § 34 factors, and the judge's findings of fact sufficiently address the § 34 factors such that the husband cannot meet his burden of demonstrating that the required factors were not weighed (or that irrelevant factors were considered).
Contrary to the husband's assertion, the judge's findings of fact are sufficiently supported by the evidence.
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Finally, the judge's statement that the cost of health insurance premiums 'shall be deemed a form of spousal support' disposes of the husband's final argument that the judge did not consider the cost of health insurance coverage in crafting the $175 per week alimony award.
Amended judgment affirmed.
By the Court (Katzmann, Rubin & Fecteau, JJ.),