Opinion
11-P-867
05-04-2012
LUCY WONG v. JAMES KWOK L. CHAN.
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
The parties were romantically involved and lived together from 1990 until 2006, separating once in 1998. They never married, and separated permanently in 2006. For most of the time they were together, the plaintiff maintained the household and the couple's finances while the defendant worked outside the home. In 1999, the parties purchased property in Waltham. Following their final separation, the defendant filed in the Land Court a petition for partition and sale of the Waltham property. The plaintiff then filed a complaint in the Probate and Family Court seeking to recover her financial contribution to the relationship. The cases were consolidated in the Probate and Family Court. Following a bench trial, the probate judge awarded the parties equal interests in the Waltham property and in the accounts with Bank of America and Citizens Bank. The judge also declared that the defendant was entitled to the full value of his 401(k) and his IRA. The plaintiff has appealed, arguing that: (1) she is entitled to an equal share in the 401(k) and the IRA; (2) the judge improperly awarded damages to the defendant; and (3) her motion to disqualify the defendant's counsel should have been allowed. We affirm. 1. Share of 401(k) and IRA. Whether an account is a joint or individual asset is a question of fact. See Desrosiers v. Germain, 12 Mass. App. Ct. 852, 856-857 (1981). The probate judge found that the defendant held the 401(k) and the IRA individually, a factual finding we must accept unless clearly erroneous. See T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). The 401(k) and the IRA were held in the defendant's name; the plaintiff was only a beneficiary, in the event of the defendant's death. The plaintiff herself testified that the defendant held the accounts individually and that the parties had not discussed how the accounts were to be distributed in the event of their separation. The defendant similarly testified that the 401(k) was his alone and that he never had discussed their division with the plaintiff. On this record, we cannot say that the probate judge's finding that the 401(k) and the IRA were the property of the defendant alone was clearly erroneous.
We understand the plaintiff's argument to be that she should have received the equivalent of one-half of the value of the funds in these accounts, rather than that she was entitled to a distribution from them. We note that a distribution from the 401(k) is not possible unless it conforms with applicable Federal law, something that was not established or determined below or briefed on appeal.
The plaintiff argues that equitable principles entitle her to an equal share of the 401(k) and the IRA. We disagree. The plaintiff's claims for unjust enrichment, quantum meruit, and quasi contract are analogous. See Salamon v. Terra, 394 Mass. 857, 859 (1985). 'A determination that a party would be unjustly enriched 'require[s], generally, . . . that [the] party [would] hold property under such circumstances that in equity and good conscience he ought not retain it." Sutton v. Valois, 66 Mass. App. Ct. 258, 265 (2006), quoting from Stevens v. Nagel, 64 Mass. App. Ct. 136, 141 (2005). We look to the 'reasonable expectations of the parties,' ibid., quoting from Community Builders, Inc. v. Indian Motorcycle Assocs., 44 Mass. App. Ct. 537, 560 (1998), to determine whether through some 'significant wrongdoing' the defendant has acquired property that should belong to the plaintiff, id. at 266, quoting from Barry v. Covich, 332 Mass. 338, 342 (1955).
The plaintiff did not show that the defendant obtained individual ownership of the 401(k) and the IRA through fraud, deceit, or other wrongdoing, and we discern no abuse of discretion in the judge's finding that the plaintiff had no reasonable expectation that she would receive half their value. See Demoulas v. Demoulas, 428 Mass. 555, 589 (1998). The plaintiff admitted she knew the accounts were individually owned and the parties had not discussed how they would be divided. Additionally, she did not contribute funds to either account. See Sutton, 66 Mass. App. Ct. at 266-267 (not a windfall for defendant to retain sole interest in property where plaintiff contributed no funds toward that asset).
2. Claim of improper damages. The probate judge found that the plaintiff was entitled to $98,475.50, which represented half the value of the parties' joint assets. The judge also found that the plaintiff already had removed $120,235 from the joint accounts. The judge, accordingly, ordered the plaintiff to repay the defendant $21,759.50. The plaintiff argues that this is an improper award of damages because the defendant did not make a claim for damages. We disagree. The order is not an award of damages, but rather an equitable setoff in the amount the plaintiff had withdrawn in excess of what she was owed. There was no error.
3. Motion to disqualify counsel. Finally, the plaintiff argues that her motion to disqualify the defendant's trial counsel should have been allowed because he previously had represented her in a personal injury suit. To succeed on her motion, the plaintiff needed to show '(1) that an attorney-client relationship existed in the former legal representation, and (2) that the former and current representations are both adverse and substantially related.' Bays v. Theran, 418 Mass. 685, 691 (1994), quoting from Note, Developments in the Law: Conflicts of Interest in the Legal Profession, 94 Harv. L. Rev. 1244, 1318 (1981). See Adoption of Erica, 426 Mass. 55, 61 (1997). We review the denial of a motion to disqualify counsel for abuse of discretion. Steinert v. Steinert, 73 Mass. App. Ct. 287, 288 (2008).
Massachusetts Rules of Professional Conduct 1.9(a), 426 Mass. 1342 (1998), provides: 'A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.'
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Two matters are substantially related only 'if the previous representation exposed counsel to confidential information that could be used against the client in the present litigation.' R & D Muller, Ltd. v. Fontaine's Auction Gallery, LLC, 74 Mass. App. Ct. 906, 907 (2009). The personal injury claim sought compensation for physical injuries resulting from an automobile accident in 1998. This case, heard almost ten years after the previous case settled, centers on the equitable division of the couple's property. Any information obtained during the personal injury litigation was unlikely to be useful against the plaintiff in this case. The plaintiff argues generally that the attorney had confidential information about her mental health and her relationship with the defendant; however, the record does not indicate that the attorney had such information or how it could be used against the plaintiff. Thus, we cannot say that the probate judge abused his discretion in denying the motion.
Judgment affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),