Opinion
15-P-118
03-07-2016
DANIEL C. TUCKER v. MAUREEN R. MCKINNON-TUCKER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Maureen R. McKinnon-Tucker (wife), the former wife of Daniel C. Tucker (husband), appeals from a judgment of divorce nisi entered in the Probate and Family Court awarding her approximately sixty percent of the equity in the marital home. On appeal, the wife contends she should have received a larger share of the assets and that the property division does not rationally flow from the judge's factual findings. She specifically asserts the judge failed to make a mandatory finding as to the husband's employability under G. L. c. 208, § 34, and gave excessive weight to the parties' respective contributions to the marital partnership. She also challenges the inclusion of a provision providing that the husband shall receive his equity in the former marital home upon the oldest child's graduation from high school. We affirm.
The principal asset of the marital estate is the marital home. It was purchased with the proceeds of settlement funds received by the parties after an accident during the marriage that left the wife confined to a wheelchair.
The wife also asserts the judge should have attributed income to the husband. Because this issue was not raised before the Probate Court judge, we decline to consider the wife's argument on appeal. See M. H. Gordon & Son, Inc. v. Alcoholic Beverages Control Commn., 386 Mass. 64, 67 (1982) (appellate court ordinarily will not consider argument raised for first time on appeal).
Division of assets. "[A] judge has considerable discretion in making an equitable division of property. As long as the judge's findings show that all relevant factors in [G. L. c. 208,] § 34, were considered, and the reasons for the judge's conclusion are apparent and flow rationally from the findings and rulings, a judge's determination on the equitable division of marital property will not be disturbed. There is no mathematical formula to determine what weight a judge should accord to any of the factors in § 34. A judgment may be vacated only where the award is plainly wrong and excessive." Williams v. Massa, 431 Mass. 619, 631 (2000) (citations omitted).
Contrary to the wife's assertion, the judge did make findings, supported by the evidence, regarding the husband's employability and capacity to earn income. She found that the husband had earned his bachelor's degree in business administration and finance. The judge also made a finding regarding the husband's weekly salary as a self-employed sales consultant. She further found that the husband has held "a number of different sales and marketing jobs" since the parties were married in 1992. These findings are fully supported by the husband's testimony and exhibits entered in evidence at trial. In addition, the judge's findings support her statement that she "considered all of the factors under [G. L. c. 208, § 34]," including employability. See Rice v. Rice, 372 Mass. 398, 402-403 (1977) (judge should make findings showing that she "weighed all the statutory factors in reaching h[er] decision and considered no extraneous factors").
The wife next contends that the judge gave excessive weight to the parties' respective contributions to the marital partnership. She asserts the judge did not place sufficient emphasis on her physical condition, which renders her less able than the husband to provide for her needs, acquire future assets, and earn income.
Here, the judge properly considered the parties' respective contributions to the marital partnership as the touchstone of an equitable division of the marital estate. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996). In addition to the relevant factors the judge must consider under § 34, "the judge may, in . . . her discretion consider 'the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.'" Drapek v. Drapek, 399 Mass. 240, 243 (1987), quoting from G. L. c. 208, § 34.
The judge's division of the marital estate in which she awarded the wife a greater percentage of the marital assets reflects her consideration of all factors, including those raised by the wife. The judge's division of the estate flowed rationally from the judge's findings regarding the parties' economic and noneconomic contributions, and represents a reflective application of the statutory factors. The judge determined that both of the parties contributed to the acquisition, preservation, and appreciation of the value of the marital estate. Specifically, she determined that the wife contributed financially by using the proceeds of her legal settlement "toward the purchase of and renovations to the former marital home." The judge also found that both parties contributed their earnings to the marital enterprise, although the wife's earnings during the period when she was working "were far less than the Husband's." The judge also found that the husband assumed "a majority of the child and home care duties." Under the circumstances presented here, we cannot say that the judge's allocation of the estate was "plainly wrong." Williams v. Massa, 431 Mass. at 631.
The wife further contends the judge did not provide a rationale for her decision to delay the wife's equity payment to the husband until the high school graduation of the oldest child rather than that of the youngest child. In equitably dividing the marital estate, a judge may "defer[] the husband's receipt of a portion of his share of the marital property until the occurrence of a specified event rationally related to the circumstances of the parties." Tatar v. Schuker, 31 Mass. App. Ct. 534, 538 (1991). Here, the judge ordered the wife to pay the husband $50,000 within sixty days of the date of the judgment, and provide him with a note for his remaining equity in the property, secured by a mortgage on the former marital home, at four percent interest per annum. The note would become payable upon the oldest child's graduation from high school. Contrast Yee v. Yee, 23 Mass. App. Ct. 483, 484-485 (1987) (realization of husband's share of proceeds of sale of house contingent on wife's subjective determination). The judgment thus allowed the wife to remain in the former marital home for a period of approximately four years after the divorce. The judge acknowledged that it would be "unfortunate" if the wife were required to sell the family home to satisfy the judgment, but also balanced the inequity in "requir[ing] the Husband to wait indefinitely for his share of the marital estate, especially given his position as a shared physical custodian of the parties' two (2) children."
The youngest child has special needs including balance issues and learning disabilities.
At the time of trial, the youngest child was eight years old and was in the second grade; the oldest child was thirteen years old and was in the eighth grade.
The judge found that "[t]he children's best interests will be served by the continuation of the shared custody plan." Neither party was ordered to pay alimony or child support.
Delaying the payment until the youngest child's graduation from high school, as the wife suggests, would require the husband to wait approximately ten years after the judgment before he could receive his share of the equity in the property, which was the principal asset of the marriage. Under these circumstances, we see no abuse of the judge's considerable discretion in concluding that such a result would be inequitable, particularly in light of her finding that "[t]he [h]usband's opportunities for the future acquisition of assets will come from the share of the marital estate . . . as well as from his earned income," and his status as shared custodian of the children. See Brower v. Brower, 61 Mass. App. Ct. 216, 221 (2004).
Appellate attorney's fees. We deny the husband's request for an award of double costs and appellate attorney's fees. Although we conclude that the wife's challenges lack merit, they were neither frivolous or initiated in bad faith. See Avery v. Steele, 414 Mass. 450, 456-457 (1993) (sanctions imposed where party misrepresented holding of trial court and misstated the opposing party's principal position).
Judgment of divorce nisi affirmed.
By the Court (Maldonado, Blake & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 7, 2016.