Connor v. Benedict , 481 Mass. 567 ( 2019 )

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SJC–12551
LAYNE C. CONNOR vs. WILLIAM P. BENEDICT.
Middlesex. November 6, 2018. - March 7, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Divorce and Separation, Alimony, Division of property.
Marriage.
Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on June 2, 2014.
The case was heard by Kevin R. Connelly, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Robert Clark for the husband.
Marc G. Bellerose for the wife.
LENK, J. Layne C. Connor (wife) filed a complaint for
divorce in June 2014 against William P. Benedict (husband), to
whom she had been married for a little more than two years, and
with whom she had lived for much of the prior twelve years.
Following a trial, a judge of the Probate and Family Court
2
issued a judgment of divorce nisi that awarded general term
alimony to the wife and, among other things, divided the marital
estate such that fifty-five percent of the over-all assets were
awarded to the husband and forty-five percent to the wife.
Although the legal marriage lasted 2.25 years, for purposes of
determining the amount of alimony pursuant to the Alimony Reform
Act of 2011, St. 2011, c. 124, the judge considered the marriage
to have been of slightly more than eight years' duration. In
doing so, the judge took into account an approximately six-year
period from 2005 to 2011, during which he found that the parties
had lived together and had engaged in an economic marital
partnership. The husband appealed, and we transferred the case
to this court on our own motion.
The husband challenges the alimony award on two grounds.
First, he claims that, as a matter of law, the wife was
precluded from entering an economic marital partnership with him
during much of the six-year period because she received alimony
payments from her former spouse during that time. In the
alternative, the husband claims that, even if the wife could
have entered into an economic marital partnership, the judge did
not make sufficient findings to support a determination that she
had done so. The husband also challenges the division of the
marital estate on the grounds that the judge selected the wrong
valuation date; made an incorrect determination of the assets in
3
the marital estate; improperly assigned liabilities to the
husband; and did not clarify the distribution of the retirement
accounts. We affirm.
1. Background. We summarize the judge's findings of fact,
supplemented by undisputed facts in the record and reserving
certain facts for later discussion. See Pierce v. Pierce, 455
Mass. 286, 288 (2009).
a. Early years (2000 to 2004). When the parties met in
August 2000, the wife owned a single-family house. In July
2001, she sold that property and used the proceeds to make a
down payment on a house in Maynard. The parties began living
together in the Maynard house in August 2001, along with the
wife's minor son.1 At the time, the husband recently had filed
for bankruptcy; his name did not appear on the deed or mortgage.
Nonetheless, the parties shared the mortgage payments, as well
as the costs of utilities, groceries, and other household
expenses. At some point in 2001, the wife became disabled and
unable to work.2 In 2003, she began receiving disability
payments.
1 Each party had a son from a prior marriage. The husband's
son did not live with the couple.
2 Due to her disability, the wife remains incapable of
working and is not expected to be able to work in the future.
4
b. Australia (2004 to 2005). From March 2004 to September
2005, the wife relocated to Australia with her son in order to
receive medical treatment. The parties arranged for the husband
to live in the house in Maynard while he coordinated with a
realtor to sell it. In September 2004, after the house had been
sold, the husband moved to a rental townhouse in Shirley. Some
of the proceeds from the sale were used to pay the wife's
medical bills; $5,000 went to the husband for improvements he
had made to the house while the wife was away; the wife received
the remainder.
c. Reunification (2005 to 2012). The wife returned to the
United States in October 2005, when her Australian medical visa
expired. In November 2005, the wife moved into the townhouse in
Shirley and the parties resumed living together, sharing rent
and utility expenses. The husband provided for the wife's
health insurance through his employer's "domestic partner
benefits program."
In November 2006, the parties jointly purchased a house in
Townsend (marital home).3 They each contributed at least $44,000
3 The parties dispute the current value of the marital home
and provided no evidence to support their varying estimates.
The judge declined to make a finding as to the value of the
house; he ordered the parties to sell the house and to share the
sale proceeds equally.
5
to the down payment.4 They made substantial improvements to the
house, including installing hardwood floors, retiling several
rooms, and building a gymnasium in the basement. The wife
purchased most of the furniture, using credit cards; the husband
paid at least some of the credit card bills. The parties also
bought additional household items, such as a dining room set,
together. Throughout the time they lived in the marital home,
they shared the costs of the mortgage, utilities, and other
household expenses.
In December 2008, the husband's employer terminated the
wife's health insurance due to a change in company policy
concerning "domestic partners." In response, the wife obtained
COBRA insurance at a monthly cost of $500, and the husband began
contributing "slightly more" to the household expenses.
The wife's minor son lived with the parties in the marital
home and became close to the husband. When the husband's father
passed away in 2011, the husband named the wife's son in the
obituary as a grandson of the deceased.
4 The judge found that the wife used $50,000 from the sale
of her former house toward the down payment on the marital home.
At another point in the decision, however, the judge noted that
the wife contributed $44,000 toward the down payment on that
house. It is not clear whether the amount of $44,000 represents
a portion of the funds from the sale of the wife's former house,
or whether it represents an additional payment on the marital
home.
6
d. Receipt of alimony from prior spouse. The wife and her
prior spouse had divorced in 2001. After that divorce, the wife
received regular child support and alimony payments. By 2006,
the husband was "at least somewhat aware" of the alimony
payments, which ceased in 2011.
e. Marriage and separation (2012 to 2014). The parties
were married on February 18, 2012. Thereafter, the wife again
received health insurance through the husband's employer, at
that point as his spouse.
The trial judge found that, throughout the course of the
marriage (including at least the 6.33-year period in which they
lived together immediately prior to their legal marriage), the
parties enjoyed an "upper-middle-income lifestyle." They dined
out two to three times per week, and traveled together several
times per year to destinations such as Switzerland, the Bahamas,
and California. The husband purchased diamond earrings,
pendants, rings, and bracelets for the wife.
During 2013, however, the parties had a series of
disagreements. The wife testified to incidents of abuse and
harassment by the husband, and both parties suggested that the
other had used intoxicating substances to excess. Ultimately,
the judge found that the parties suffered from "a great deal of
marital discord." The wife and her minor son left the marital
7
home on May 25, 2014, and began renting an apartment, while the
husband and his adult son lived in the marital home.5
f. Divorce. The wife filed a complaint for divorce in the
Probate and Family Court on June 2, 2014; the husband accepted
service on June 13, 2014. In July 2014, the wife sought a
number of temporary orders, and the motion judge, who was not
the trial judge, ordered the husband to pay temporary alimony
and all expenses related to the marital home. At trial, the
husband and wife testified as the only witnesses, and submitted
individual financial statements.
A judgment of divorce nisi issued on August 25, 2016. The
trial judge determined that, at the time of trial, the wife was
receiving disability payments, child support, and disability
benefits for her child, totaling approximately $1,375 per week.
The husband remained in good health and had been able to
maintain his job at a large corporation, where he earned $2,832
per week,6 as well as retirement, medical, and other benefits.
The judge ordered the husband to maintain payments on the wife's
5 The wife describes this situation as "essentially
subsidizing the husband and his son's lifestyle while she
simultaneously went into debt."
6 Because of the commissions the husband received on complex
financial products, his income fluctuated greatly from year to
year. For instance, the husband's reported salaries during the
eight years preceding the divorce ranged from lows of
$124,623.50 in 2008 and $128,558.72 in 2015 to highs of
$362,838.68 in 2011 and $305,153.51 in 2014.
8
health insurance and to maintain a life insurance policy in her
name. The judge also ordered the husband to pay alimony in the
amount of $511 per week for a period of sixty-one months. With
respect to the division of property, the judge awarded fifty-
five percent of the assets to the husband and forty-five percent
to the wife, with the exception of the marital home, which was
to be sold and the proceeds divided evenly.
2. Discussion. The husband contends that the judge erred
in calculating the duration of the marriage for purposes of
awarding alimony, and also that the judge erred in his division
of the marital estate.
a. Payment of alimony. In determining the length of
alimony payments to be awarded, the judge found that the parties
had been legally married for 2.25 years. See G. L. c. 208,
§ 48. A judge, however, may "increase the length of the
marriage if there is evidence that the parties' economic marital
partnership began during their cohabitation period prior to the
marriage." See id. Here, the judge determined that the parties
had cohabited and engaged in an economic marital partnership for
approximately 6.33 years, from November 2005, when they lived
together in Shirley, to the date of their marriage in February
2012. The judge therefore increased the duration of the
9
marriage to include that period,7 and ordered payment of alimony
for 5.148 years, the corresponding presumptive maximum duration
under the statute.8
The husband argues that it was error to consider the 6.33
years as an economic marital partnership, because, as a matter
of law, the wife was precluded from entering an economic marital
partnership during the time when she was receiving alimony from
a former spouse, and, even if she could have entered into an
economic marital partnership, the judge's findings of fact are
insufficient to support a determination that she had done so.
i. Durational limits on alimony. Alimony is "the payment
of support from a spouse, who has the ability to pay, to a
spouse in need of support for a reasonable length of time." See
G. L. c. 208, § 48. "The purpose of alimony is to provide
adequate support for a spouse who needs it." See Williams v.
Massa, 431 Mass. 619, 634 (2000). General term alimony, in
7 At trial, the parties disputed whether the period from
August 2001 to February 2004, during which they cohabited in
Maynard, also should qualify as a period of economic marital
partnership. The judge declined to increase the length of the
marriage to include that period of time. See note 14, infra.
8 Combining the 2.25-year legal marriage and the 6.33-year
economic marital partnership, the judge calculated the duration
of the marriage to be 8.58 years. Pursuant to G. L. c. 208,
§ 49 (b), because the total duration of the marriage fell
between five and ten years, the presumptive maximum duration of
alimony payments is sixty percent of 8.58 years, i.e., 5.148
years.
10
particular, aims to support one spouse who has become
"economically dependent" on the other. See G. L. c. 208, § 48.
"A judge has broad discretion when awarding alimony under
the statute." Zaleski v. Zaleski, 469 Mass. 230, 235 (2014).
Nonetheless, the "reasonable length of time" for which alimony
payments may be ordered is constrained by the Alimony Reform Act
of 2011, which sets presumptive durational limits on general
term alimony. See G. L. c. 208, § 49. The limits are premised
on the length of the parties' marriage; the longer the marriage,
the longer the maximum permissible duration of alimony, up to a
maximum cap.9 G. L. c. 208, § 49 (b). See 2 C.P. Kindregan,
Jr., M. McBrien, & P.A. Kindregan, Family Law and Practice
§ 53:1, at 1134 (4th ed. 2013) ("The longer a marriage lasts the
more likely it is that there will be a closer economic union and
dependence on support"). In order to determine the duration of
an award of general term alimony, therefore, a judge first must
calculate the length of the parties' marriage. See G. L.
c. 208, § 49 (b) (1)-(4); Duff-Kareores v. Kareores, 474 Mass.
528, 535 (2016).
9 "The legislative history clearly shows that the broad
discretion judges historically have had in making awards of
alimony was not affected by the Alimony Reform Act of 2011, St.
2011, c. 124 . . . ." See Zaleski v. Zaleski, 469 Mass. 230,
235 n.13 (2014). Judges also may deviate from the presumptive
maximum durations "in the interests of justice," upon a written
finding. See G. L. c. 208, § 49 (b).
11
General Law c. 208, § 48, defines the "[l]ength of the
marriage" as "the number of months from the date of legal
marriage to the date of service of a complaint or petition for
divorce . . . duly filed in a court." The parties were married
on February 18, 2012, and the husband accepted service of the
complaint for divorce on June 13, 2014. There was no error in
the judge's calculation that the parties had been married for
2.25 years.
As stated, the statute also provides that "the court may
increase the length of the marriage if there is evidence that
the parties' economic marital partnership began during their
cohabitation period prior to the marriage." G. L. c. 208, § 48.
A period of "cohabitation" and "economic marital partnership"
"resembles, but is not equivalent to, a legal marriage." See
Duff-Kareores, 474 Mass. at 534-535. During such a period, the
parties act like a married couple, and form the financial
dependencies, crystalized in marriage, for which alimony later
may compensate.
"[I]n order to ascertain whether the parties were
participating in an economic marital partnership," "a judge must
consider the factors set forth in G. L. c. 208, § 49 (d) (1)."
See Duff-Kareores, 474 Mass. at 535. These factors include, but
are not limited to, economic dependence or interdependence,
collaborative conduct in furtherance of a shared life, benefits
12
derived, and representations made or reputations acquired
regarding the relationship. See G. L. c. 208, § 49 (d) (1) (i)-
(vi). Here, the judge determined that the period from November
2005 to February 2012 constituted an economic marital
partnership.
ii. Receipt of alimony from third party. The husband
argues that, as a matter of law, the wife could not have entered
into an economic marital partnership with him from 2005 to 2011,
because she was receiving alimony payments from a previous
marriage during that period. He maintains that the word
"marital" in the phrase "economic marital partnership" imbues
the phrase with a requirement of monogamy, and permits either an
alimony relationship with a former spouse or an economic marital
partnership with a current partner, but not both. He contends
that to permit otherwise would be to endorse "financial
infidelity," "financial bigamy," or "financial polyandry."
Our jurisprudence recognizes, however, that the receipt of
alimony, without more, does not place an individual in an
economic marital partnership with a former spouse. While an
economic marital partnership "resembles . . . a legal marriage,"
a court-ordered obligation to pay alimony does not. See Duff-
Kareores, 474 Mass. at 534-535, 537.
"While it often may be the case that there is some measure
of mutual dependence and benefit enjoyed by formerly
married parties where one party is paying the other court-
13
ordered alimony, that alone would not convert court-ordered
payments into an economic marital partnership."
Id. at 537. An economic marital partnership is premised, in
part, on the parties' conduct "in furtherance of their life
together" and their "community reputation . . . as a couple."
See id. at 534, quoting G. L. c. 208, § 49 (d) (1). By
contrast, "[a] judgment requiring payment of alimony does not
contemplate a shared life," nor does it create a reputation of a
romantic pair within the community. See Duff-Kareores, supra at
537.
There is no indication that, between 2005 and 2011, the
wife and her former spouse shared a primary residence, presented
themselves to the public as husband and wife, or planned their
schedules and vacations together. Contrast Duff-Kareores, 474
Mass. at 537, 539 (once-married couple resumed economic marital
partnership after divorce). The transfer of payments, itself,
does not create a marriage-like relationship, and it does
nothing to preclude the recipient from seeking out and entering
into an economic marital partnership.
Indeed, the Legislature expressly contemplated that an
individual who receives alimony payments may enter a new
romantic relationship, see G. L. c. 208, § 49 (a), (d), and the
formation of a new economic marital partnership is not
prohibited by the statute. Rather, if an alimony recipient
14
cohabits and forms a "common household"10 with a new partner for
a period of at least three months, a former spouse's obligation
to pay alimony may be "suspended, reduced or terminated." See
G. L. c. 208, § 49 (d). Where an individual who receives
alimony enters an economic marital partnership, therefore, it is
the alimony -- not the economic marital partnership -- which may
give way. See id. Cf. G. L. c. 208, § 49 (a) (remarriage
terminates alimony).
Here, the former spouse's continued payment of alimony did
not prevent the wife from becoming economically interdependent
with the husband, nor did it diminish the extent to which the
new pair functioned as a couple and invested in a shared future
during the period from November 2005 to February 2012.11 It was
these mutual actions on which the husband's obligation to pay
alimony now rests, without regard to the burdens once borne by
the former spouse.
10The factors delineated in G. L. c. 208, § 49 (d) (1), are
used to determine both whether two individuals have engaged in a
"common household" and whether they have entered into an
"economic marital partnership." See Duff-Kareores v. Kareores,
474 Mass. 528, 534 (2016).
11The husband is not disadvantaged by the wife having
received alimony payments during the period of economic marital
partnership. If anything, the wife's receipt of alimony helped
fund the husband and wife's common enterprises, including
renovating, furnishing, and maintaining a home together.
15
The judge was aware that the wife had received alimony from
her former spouse, a fact that appears repeatedly throughout his
findings. In accordance with G. L. c. 208, § 49 (d) (1) (vi),
the judge was permitted to consider this and "other relevant and
material factors." Nothing in the record suggests that he
neglected to do so.
iii. Sufficiency of factual findings. The husband
contends that the evidence is insufficient to support a
determination that the parties cohabited and entered an economic
marital partnership. We do not agree.
The judge found that the parties cohabited between October
2005 and February 2012; during that time, they lived together in
Shirley and Townsend. As to their economic marital partnership,
the judge properly considered the factors set forth in G. L.
c. 208, § 49 (d) (1). With respect to economic interdependence,
the judge found that the wife had become disabled and relied on
the husband's health insurance during this period. The wife
also relied, at least in part, on the husband's salary, as she
was unable to work. In furtherance of building a life together,
the parties shared in the purchase of a house in 2006, the cost
of the mortgage, and the work required to perform renovations.
During the same period, the husband repeatedly represented his
16
wife to his employer as his "domestic partner."12 Moreover, the
husband held out the wife's son as his own in a 2011 obituary.
The judge determined that "[t]he parties acted as a married
couple in all respects."13
The judge's factual findings, supported by the record, also
support his conclusion that the parties engaged in an economic
marital partnership from November 2005 to February 2012.14
Accordingly, the judge did not abuse his discretion in including
the entire seventy-six month period in his calculation of the
duration of the marriage.
12The husband's employer defined "domestic partners" as
"two adults of the same or opposite sex who are in an ongoing
and committed spouse-like relationship. They reside together
and are jointly responsible for each other's welfare and
financial obligations."
13The husband argues, "Functionally, the parties' financial
transactions were undistinguishable from similar transactions
engaged in by unrelated roommates, and the parties' romantic
involvement did nothing to alter their financial arrangements."
We do not agree. It is the confluence of economic
interdependence, contemplation of a shared life, and reputation
or representation as a couple which suggest a marriage-like
economic marital partnership, pursuant to G. L. c. 208,
§ 49 (d) (1).
14To the extent that the judge also made findings that the
parties engaged in an economic marital partnership from
August 2001 to February 2004, he nonetheless retained discretion
not to extend the length of the marriage to include this period.
See G. L. c. 208, § 48 ("the court may increase the length of
the marriage"). Because the wife explicitly waives this issue
on appeal, we need not address it further. See Popp v. Popp,
477 Mass. 1022, 1023 n.1 (2017) (waiving claim of error in
judge's decision not to include specific period in length of
marriage).
17
b. Division of assets. The husband argues further that
the judge made several errors in dividing the parties' assets:
(i) selecting an improper date of valuation of the marital
estate; (ii) not properly defining the marital estate;
(iii) assigning some of the wife's liabilities to the husband;
and (iv) not clarifying the method of distribution of the
retirement accounts. Evaluating each in turn, we ascertain no
error.
i. Valuation date. The husband contends that the judge
erred by valuing the parties' marital assets based upon their
then most recent financial statements, that were filed at trial
on March 14, 2016, rather than valuing the assets as of June
2014, when the parties first separated, or upon the issuance of
temporary orders of support in July 2014.
The determination of the appropriate valuation date is left
to the discretion of the trial judge. See Savides v. Savides,
400 Mass. 250, 252-253 (1987) (no abuse of discretion where
judge used date of separation as valuation date); Moriarty v.
Stone, 41 Mass. App. Ct. 151, 154 (1996) (no abuse of discretion
where judge used date of trial as valuation date). See also
Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 n.9 (1985)
(determination of date is "best left to a case-by-case
analysis"). Except where "warranted by the circumstances of a
18
particular case," however, the valuation date typically is the
date of trial. See Moriarty, supra.
Only two years passed between the date of separation and
the date of trial. Contrast Savides, 400 Mass. at 250-253(trial took place approximately ten years after separation, and
value of marital estate had increased significantly due to
husband's exclusive contributions). This case is not one in
which either party obtained significant assets following the
separation, distinct from accounts they had maintained during
the marriage, such that the inclusion of those assets in the
valuation would be rendered "contrary to the marital partnership
concept on which [G. L. c. 208, § 34,] is founded." Contrast
Davidson, 19 Mass. App. Ct. at 370-376 (part of trust and
expectancy under will not subject to property division where it
was obtained after divorce).15 It was not an abuse of discretion
for the judge to decide upon the date of trial as the date of
valuation in the circumstances here.
ii. Defining the marital estate. The husband argues that
the judge did not properly "define the marital estate" because
he did not indicate which assets were acquired during the
15To the contrary, the husband argues only that he
continued to contribute to his retirement account and to pay
household expenses, including the mortgage -- all of which were
obligations existing during the period of the marriage or
ordered by the court as temporary payments during the course of
the divorce proceedings.
19
marriage, and because his division did not flow rationally from
the parties' contributions to the marital estate.
As to the assets included in the marital estate, a judge is
not limited to dividing assets acquired during the period of the
marriage. See G. L. c. 208, § 34 (permitting division of "all
or any part of the estate of the other"). A judge may divide
"all property to which a party holds title, however acquired."16
See Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110 (2016).
See also Rice v. Rice, 372 Mass. 398, 400-401 (1977) (permitting
assignment of property "whenever and however acquired"). This
includes acquisitions made outside the period of the legal
marriage or a period of marital economic partnership. See,
e.g., Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)
(dividing assets acquired during period of cohabitation before
legal marriage); Moriarty, 41 Mass. App. Ct. at 156 (permitting
division of "the pension, retirement and other benefits accrued
prior to the marriage"). The assets considered in this case
included the marital home, financial accounts, vehicles,
jewelry, retirement accounts, and personal property. As the
parties "held title" to each, it was not improper for the judge
16There is no requirement, as the husband would have it,
that the judge delineate "which assets were acquired during the
marriage and which were not."
20
to consider any of these assets, regardless of when they were
acquired.
General Laws c. 208, § 34, sets forth the factors which a
judge must consider in dividing the parties' assets. These
include
"the length of the marriage, the conduct of the parties
during the marriage, the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the
parties, the opportunity of each for future acquisition of
capital assets and income, and the amount and duration of
alimony, if any, awarded . . . . The court may also
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."
G. L. c. 208, § 34. Trial judges retain "broad discretion" in
weighing and balancing the factors described in G. L. c. 208,
§ 34. See Kittredge v. Kittredge, 441 Mass. 28, 43 (2004). See
also Adams v. Adams, 459 Mass. 361, 372-373 (2011), S.C., 466
Mass. 1015 (2013).
In reviewing a trial judge's division of property, we
conduct a two-step analysis. See Bernier v. Bernier, 449 Mass.
774, 794 (2007). First, "[w]e review the judge's findings to
determine whether he [or she] considered all the relevant
factors under [G. L. c. 208, § 34,] and no irrelevant factors."
See Baccanti v. Morton, 434 Mass. 787, 790 (2001). Second, if
the judge has done so, we will not reverse a judgment unless it
21
is "plainly wrong and excessive" (citations omitted). See
Bernier, supra; Baccanti, supra at 793.
Contrary to the husband's position, "[t]he judge did make
findings as to these [assets]; he simply did not make the
findings sought by the husband." See Baccanti, 434 Mass.
at 791. The judge meticulously defined each of the assets
within the marital estate, tracking them over the period from
2001 through 2014. After "fixing the nature and value of the
property" pursuant to G. L. c. 208, § 34, he explicitly
considered the requirements of the statute; he took into account
that the husband "contributed significantly more to the
acquisition of marital assets," and weighed that against the
wife's "health problems and lack of employability," as well as
his determination that the "parties contributed equally to the
marriage." The judge decided that a division of assets favoring
the husband, fifty-five percent to forty-five percent, was
appropriate, but that the marital home should be divided evenly
in recognition that the parties had "contributed equally" to its
purchase and maintenance. We cannot say that, having considered
the appropriate factors, the judge was "plainly wrong and
excessive" in his distribution of the parties' assets. See
Bernier, 449 Mass. at 794; Baccanti, supra at 793.
iii. Liabilities. The husband maintains that the judge
erred in allocating a portion of the wife's "post-separation
22
consumer debt" to the husband. The husband relies on Rule
411(a) of the Supplemental Rules of the Probate and Family
Court, Massachusetts Rules of Court, at 815-816 (LexisNexis
2018), which establishes an "automatic restraining order" on
both parties after one party files a complaint for divorce.17
The rule admonishes that
"[n]either party shall incur any further debts that would
burden the credit of the other party, including but not
limited to further borrowing against any credit line
secured by the marital residence or unreasonably using
credit cards or cash advances against credit or bank
cards."
See Rule 411(a)(2) of the Supplemental Rules of the Probate and
Family Court, supra at 816.
Subsequent to the separation, the wife purchased furniture
on credit for the apartment in which she and her son were
living. The wife appears to have used her own credit cards for
17 As to the "restraining order," the rule requires:
"Neither party shall sell, transfer, encumber, conceal,
assign, remove or in any way dispose of any property, real
or personal, belonging to or acquired by, either party,
except: (a) as required for reasonable expenses of living;
(b) in the ordinary and usual course of business; (c) in
the ordinary and usual course of investing; (d) for payment
of reasonable attorney's fees and costs in connection with
the action; (e) written agreement of both parties; or
(f) by order of the court."
Rule 411(a) of the Supplemental Rules of the Probate and Family
Court, Massachusetts Rules of Court, at 815 (LexisNexis 2018).
The use of funds to purchase furniture satisfies the first
exception, "as required for reasonable expenses of living."
23
the purchases, and there is no indication that the credit cards
were in the husband's name, or that the debt encumbered the
marital home. As such, the wife does not appear to have
incurred "any further debts that would burden the credit of" the
husband. Id. Moreover, the wife's purchase of furniture was
not unreasonable. After the separation, the husband retained
use of the marital home and the furnishings therein; the wife
and her son moved into an apartment and required furniture of
their own. The judge was aware of the debt the wife incurred,
and considering the purpose for which the furniture was
purchased, the judge allocated liabilities such that the wife
was responsible for fifty-five percent of the debt and the
husband was responsible for the remainder. There was no error
in so doing. The "ultimate goal of G. L. c. 208, § 34," is "an
equitable, rather than an equal, division of property." Adlakha
v. Adlakha, 65 Mass. App. Ct. 860, 864 (2006), quoting Williams,
431 Mass. at 626.
iv. Retirement accounts. The judge ordered that "[t]he
parties' retirement assets shall be divided between the parties,
such that Wife receives [forty-five percent] of the total value
in the accounts and Husband receives [fifty-five percent]." The
husband contends that the distribution ordered was impermissibly
vague with respect to the date of segregation, the effect of
market gains or losses prior to the date the account is divided,
24
and the means by which to divide the accounts. He argues that,
because a qualified domestic relations order (QDRO) was not
issued, the division of the retirement accounts could constitute
"early distribution" that would trigger a tax penalty.
A QDRO is an appropriate method by which to facilitate the
distribution of child support, alimony, or marital property
rights. See, e.g., Silverman v. Spiro, 438 Mass. 725, 736
(2003). The parties concede that a QDRO would resolve any tax
concerns here. At oral argument, in response to a question
whether a QDRO from the Probate and Family Court would be the
appropriate resolution to the tax concerns, counsel for the
husband responded, "It very easily would be, and I think that's
really more of a housekeeping matter than anything else."
Counsel for the wife represented that there "is an unequivocal
agreement that a QDRO has to be done." Nothing in the judgment
nisi or anything in this opinion precludes the parties from
returning to the Probate and Family Court to seek such an order.
As to the husband's other concerns, as discussed, the
valuation date for the parties' assets -- including the
retirement accounts -- was set as March 14, 2016, the second day
of trial. The only open question is how to account for fair
market adjustments. The husband argues that the judge neglected
to "specify whether the wife's portion would be subject to
market gains or losses" after the valuation date. This judgment
25
does not preclude the parties from returning to the Probate and
Family Court to pursue a QDRO, or from seeking clarification on
the issue of how to account for market adjustments.18
Judgment affirmed.
18The wife seeks attorney's fees and double costs, on the
ground that the husband's arguments are frivolous. "We are
hesitant to deem an appeal frivolous and grant sanctions except
in egregious cases." Symmons v. O'Keeffe, 419 Mass. 288, 303
(1995). Because we do not determine that the law was
sufficiently well settled, such that "there [could] be no
reasonable expectation of a reversal," we decline to allow the
wife's request (citation omitted). See id.