Opinion
No. 13–P–679.
10-07-2014
James Alan TRERICE v. Irene ZORIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from the parties' judgment of divorce and from the denial of her motion for relief from judgment. She raises the following arguments: (1) the judge erroneously failed to take into account funds that the husband could be expected to inherit from his elderly parents; (2) the judge erroneously failed to find that money regularly delivered by the wife to the husband was intended to be set aside for her retirement; (3) the judge failed to adjust the property division to account for funds withdrawn by the husband from his Individual Retirement Account (IRA) when the parties separated; and (4) the judge abused his discretion in denying the wife's Mass.R .Dom.Rel.P. 60(b) motion to recalculate the division of marital property in light of the withdrawal by the husband's mother of funds in a certificate of deposit account assigned to the wife. We affirm.
Background. The parties were married in August, 2002, and separated in August, 2010. At the time of trial, the wife was fifty-seven years old, and, having ceased operating a home cleaning business, was working as a live-in nanny. The husband was a sixty-five year old retired construction project manager, who was collecting interest from his IRA and planned to apply for Social Security benefits. Previously, he had generated additional cash income by renting rooms to boarders.
The judge determined that the parties' assets included the equity in the marital home in Springfield, fifty percent of the equity in a house in Vermont which they owned jointly with the husband's father, an IRA owned by the husband, and other cash and personal property. Upon separating, both parties made withdrawals that diminished their assets. The wife withdrew $91,529 from the home equity line on the Springfield property and cashed in a $10,881.55 jointly owned certificate of deposit. The husband withdrew $70,000 from his IRA, which, prior to the withdrawal, had a value of $149,000.
The parties collectively had a fifty percent interest, while the husband's father had the other fifty percent. The respective interests were held in joint tenancy with rights of survivorship.
The judge's task was made more difficult because the parties routinely did not report cash income. The judge found that the husband was in possession of $90,000 of marital funds held in cash, $25,000 of which he ordered to be delivered to the wife as a lump sum payment.
The judge determined the marital estate to be worth $435,100. He awarded $221,300 to the wife, and $213,800 to the husband. The wife received the Springfield property, along with sole responsibility for the mortgage. The husband received the couple's fifty percent interest in the Vermont property. The judge excluded from the marital estate certain certificates of deposit totaling $125,000, which had been owned jointly by the husband and his parents before the parties' separation, but which the parents later withdrew and placed in accounts of their own.
The judge found that the husband's parents made these withdrawals as a direct result of the wife's withdrawals from the home equity line on the Springfield property.
Discussion. We review the judge's decision under deferential standards. “The appropriate weighing and balancing of the § 34 factors, and the resulting equitable division of the parties' marital property, is left to the judge's broad discretion.” Kittredge v. Kittredge, 441 Mass. 28, 43 (2004). Findings of fact made pursuant to G.L. c. 208, § 34, will not be set aside unless clearly erroneous. Brash v. Brash, 407 Mass. 101, 105 (1990). See Mass.R.Dom.Rel.P. 52(a). We give particular deference to the judge's credibility findings. Gaw v. Sappett, 62 Mass.App.Ct. 405, 409 (2004).
1. Expectation of inheritance. The judge did not err in excluding from the marital estate funds previously held in certificates of deposits jointly owned by the husband and his parents. Both the husband and his mother testified that the husband's name was on the accounts only for convenience and that the money belonged to the parents. The judge believed this testimony, and there is no reason to disturb his credibility determination. See Brash v. Brash, supra, quoting from Mass.R.Dom.Rel.P. 52(a) (“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”). Contrary to the wife's position, the judge's treatment of the expectancy issue was not fatally inconsistent. The judge was free to conclude that the husband could expect to inherit the Vermont property under the right of survivorship, but that it was unclear whether he would inherit the funds previously held in the certificates of deposit or other cash assets belonging to the husband's parents.
2. Weekly payments to husband. The judge heard conflicting testimony as to the purpose for which the wife delivered $400 per week to her husband, and found that the money was contributed to pay the parties' living expenses, and not earmarked for her retirement. Again, we defer to the judge's credibility determination.
3. Husband's IRA. The wife claims that the judge did not properly account for the husband's withdrawal of $70,000 from his IRA. The record shows otherwise. The husband came into the marriage with slightly less than $59,000 in the account. The judge did not consider that sum to be part of the marital estate. The judge did include in the marital estate a $90,000 increase in the account during the marriage. The husband's $70,000 withdrawal then reduced the account from $149,000 to $79,000. The judge ordered that $40,000 of the remaining funds be transferred to the wife by means of a qualified domestic relations order, and left $39,000 in the husband's account. The judge also attributed $11,000 of “excess IRA” to the husband, as money already received, in the same way the judge attributed $101,000 to the wife for funds she withdrew from marital assets. The judge did not overlook the dissipation and could exercise his discretion to divide the IRA as he did.
4. Rule 60(b) motion. Even apart from procedural defects in the wife's rule 60(b) motion, the judge was not required to reopen the case to account for the withdrawal by the husband's mother of money contained in a certificate of deposit assigned to the wife. The wife listed the certificate of deposit on her financial statement as far back as 2010, and had ample opportunity to discover that the funds were missing prior to the judgment. See Sahin v. Sahin, 435 Mass. 396, 405 (2001). The judge could conclude in his discretion that, in the interests of finality, the judgment should stand. See Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361–362 (2008).
While we find the wife's arguments unpersuasive, they are not frivolous. Accordingly, we decline to exercise our discretion to award the husband appellate attorney's fees and costs.
Judgment affirmed.
Order denying motion for relief from judgment affirmed.