D.B. v. J.B. ( 2020 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
18-P-600 Appeals Court
D.B. vs. J.B.
No. 18-P-600.
Suffolk. April 2, 2019. - March 17, 2020.
Present: Hanlon, Desmond, & Shin, JJ.
Divorce and Separation, Alimony, Division of property, Child
custody.
Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on July 18, 2011.
The case was heard by Joan P. Armstrong, J.
Nancy A. Freed for the husband.
Sandra E. Lundy for the wife.
HANLON, J. After a trial, a judge of the Probate and
Family Court issued extensive findings of fact and conclusions
of law, and entered a judgment of divorce nisi dated May 23,
2017. The plaintiff husband, D.B., now appeals, arguing that
the judge erred in (1) failing to calculate appropriately the
defendant wife's, J.B., need for alimony; (2) failing to credit
the husband for thirty-seven months of pretrial alimony; (3)
2
dividing equally the husband's interest in an investment
account; and (4) awarding joint legal custody of the parties'
minor children, while granting the wife final authority for
nonemergency medical decisions. For the reasons that follow, we
vacate the portion of the judgment that relates to the
durational limit of the husband's alimony payments, and we
affirm the remainder of the judgment.
Background. The husband and the wife were married in
October 1998; together they had three children.1 The parties
first separated in July 2011; the husband filed a complaint for
divorce on July 18, 2011. A short time later, the parties
reconciled. However, in May 2013, the parties again separated,
and the husband pursued his divorce complaint.2,3 After the
1 Because the parties' oldest child was eighteen at the time
the judgment issued, she was not included in the custody
determination.
2 The judge calculated the length of the marriage as 175
months, based on the number of months between the date of the
marriage and May 3, 2013, the date the parties last resided
together. The length of the marriage is not in dispute.
3 On May 3, 2013, the husband obtained an ex parte abuse
prevention order against the wife. See G. L. c. 209A. He
alleged that the wife had threatened him with a knife in front
of one of the children. Four police officers went to the
marital home to remove the wife while the husband took the
children to a Celtics game. None of the court papers relating
to the abuse prevention order is included in the record. As a
result, it is not clear whether there was a hearing after
notice, or whether the initial abuse prevention order was
extended and, if so, for how long.
3
separation, the children resided primarily with the husband in
the marital home; the oldest child resided with the wife for a
short time between September 2015 and January 2016, but then
returned to reside in the husband's home. In February 2014, by
stipulation of the parties, the husband agreed to pay to the
wife temporary support of $30,000 monthly; the stipulation
characterized the support as alimony, and the parties agreed
that the monthly payments would be "credited against the
applicable durational limit of the Alimony Reform Act of 2011."
The stipulation later entered as a temporary order.
The wife graduated with a college degree and was employed
prior to the parties' marriage. However, beginning with the
birth of the parties' oldest child in January 1999, the wife
became a stay-at-home parent; during the marriage she also
hosted dinners and political fundraisers in the marital home for
However, in an October 10, 2013 stipulation between the
parties (later incorporated into a court order), among other
things, the husband agreed to vacate the provisions of the abuse
prevention order that pertained to the children; the stipulation
instead instituted a "no-contact" requirement -- prohibiting
either party from contacting the other in nonemergency
circumstances by "phone, electronic means or in person." The
stipulation provided that, if the wife violated the no contact
order, the husband could seek a new abuse prevention order and
the wife would not object; there was no reciprocal provision if
the husband failed to comply with the no contact provision.
While a stipulation that would prevent a party from being heard
appropriately in a hearing on an abuse prevention order is
concerning, neither side has raised the issue here and so we do
not address it.
4
the purpose of developing the husband's business relationships.
The wife brought with her into the marriage approximately
$500,000; those funds were "incorporated into the marital
enterprise," or used to acquire and grow marital assets.
The husband was the primary wage earner during the
marriage, and the wife made significant noneconomic
contributions that permitted the husband to focus on his career.
She was the primary caregiver for the children during the early
years of the marriage; the family later employed nannies and
other household staff, and the wife remained intricately
involved in the day-to-day running of the household and in
coordinating the children's needs. At the time of trial, the
wife's sole source of income was the temporary alimony the
husband paid her.
The husband received a bachelor's degree and later a
master's degree in business administration. He began his
successful career as a consultant with a company, and later
formed an investment firm (firm). The husband has been employed
by the firm throughout the course of the marriage and was, at
the time of trial, one of the general partners at the firm,
which had a number of employees. The husband did not receive a
regular salary from the firm, but instead, for the two years
preceding the trial, he opted to take a monthly draw of
$200,000.
5
The firm manages private equity accounts that invest in and
manage various investment portfolio companies. Partnership
investment entities hold the firm's interests in each of the
portfolio companies. Each account has a set duration of ten
years; after an account is established, the firm spends the
first five years raising investment capital to fund the entity
(in addition to the firm's initial investment). Once the
investment goal is met, the account is closed and the management
phase of the account begins. The following five years are then
focused on the management and growth of the account, in order to
provide a high return for the investors (and for the firm) when
the various entities contained within each account are sold.
As a general partner of the firm, the husband had a
mandatory capital commitment to establish an account; this
required him to contribute his personal assets. Relevant here,
the husband was personally obligated to contribute $2.4 million
to a specific account, asset X. By December 2009, fundraising
for asset X had been completed, and the management phase of
asset X had begun. At the time of trial, $600,000 of the $2.4
million in capital committed to asset X by the husband had yet
to be funded; because asset X was still in the management phase
at that time, the judge found that the husband's interest in
asset X was "illiquid." According to the husband, his
commitment obligation to asset X would continue to be
6
outstanding until December 2019.4 Based on the husband's
financial statement admitted at trial, the husband's general
partnership interest in asset X was approximately $8.1 million
(or forty percent of the firm's entire share). The judge found
credible the husband's testimony that he could not at the time
of trial predict the circumstances of any future sale of asset
X, including any profits or losses therefrom.
By stipulation of the parties, in October 2013, a guardian
ad litem (reporting GAL) was appointed to investigate, evaluate,
and report (with recommendations) to the judge issues relating
to the care, custody, and parenting plan for the children. A
second GAL (consulting GAL) was appointed for the purpose of
investigating and consulting with the reporting GAL.5 The two
GALs filed with the judge a joint report dated December 18,
2014; however, only the reporting GAL authored the
recommendations section of that report.
In her findings of fact, the judge concluded, after hearing
the trial testimony of the reporting GAL and the wife's expert,
that both GALs had failed in their investigations to comply with
mandated GAL standards, and had acted outside of their roles as
4 However, if both one-year extensions were exercised then
his commitment to asset X would end December 2021.
5 The parties also stipulated to the appointment of a
separate GAL for the purpose of asserting or waiving the
children's psychotherapist-patient privilege.
7
objective evaluators. As a result, the judge concluded that the
GALs' conduct undermined any perception of impartiality and
created the impression that they were biased in favor of the
husband –- which had a detrimental impact on the children. In
addition, according to the expert testimony, the GAL report
omitted certain information gathered from interviews with the
family and various others, and sometimes misconstrued statements
by collateral witnesses interviewed during their respective
investigations.6
After fifteen days of trial, the judge found that the wife
had been the primary caretaker of the children during the
marriage and that she had lost economic opportunities during the
two decades she was a stay-at-home parent. The judge declined
to adopt the reporting GAL's recommendations (due to both GALs'
questionable impartiality); found that "the presumption against
awarding [w]ife shared legal and physical custody ha[d] been
6 For example, all three children claimed that the husband
was abusive to them during the time of the parties' separation -
- prior to trial while they were in his sole custody; the
reporting GAL dismissed these allegations. Instead, he
concluded that the children's statements were about trivial
incidents that were uncorroborated. The judge acknowledged
explicitly the trial testimony of the mother's expert that it
was absolutely essential that the children's statements be
accurately recorded, and accurately reflected, in the GAL
report.
8
rebutted;"7 and found that the wife was in need of support, due
to her absence from the workforce for nearly two decades and a
diagnosed medical condition. The judgment of divorce nisi that
issued, relevant here, (1) awarded the parties joint legal and
physical custody of the children, and granted the wife final
decision-making authority with regard to the children's medical
care, due to the parties' inability to work collaboratively in
those matters in the children's best interests; (2) ordered the
husband to pay to the wife general term alimony in the amount of
$60,000 each month (representing thirty-four percent of his
gross income) until September 1, 2027; and (3) awarded the wife
7 The judge found that the "knife incident constitute[d] a
'serious incident of abuse' in that [w]ife's behavior that
evening placed [h]usband in 'reasonable fear of imminent serious
bodily injury.'" Nonetheless, she concluded that the statutory
presumption that it was not in the children's best interest to
be placed in the custody of the parent who had committed the
serious abuse had been rebutted. See G. L. c. 208, § 31A. She
concluded, "There is no dispute that [the two minor children]
are intelligent, mature and capable of articulating their wishes
and desires. Both . . . have clearly and consistently expressed
that they would prefer to reside primarily with [w]ife. There
was ample evidence presented at trial that the limitations
placed on [w]ife's relationship with the children has had a
negative impact on each member of [this] family. . . . [Based
on their ages, the two minor children's] preferences should be
given significant weight. The children have also been thriving
while residing primarily with [h]usband, and the [c]ourt finds
no reason to limit his contact with them going forward. Due to
the children's full and active lifestyles, the [c]ourt finds
that a flexible, non-rigid parenting schedule is appropriate for
[this] family. Enabling the children to enjoy liberal parenting
time with both [p]arties within the parameters of the children's
respective schedules is of paramount concern."
9
fifty percent of all distributions received by the husband
derived from his interests in asset X. The husband appealed.
Discussion. 1. Wife's need for alimony. The husband
first argues that the judge erred when she calculated the amount
of his alimony obligation. For support, he cites the Alimony
Reform Act of 2011 (act), St. 2011, c. 124, which provides, in
pertinent part, "[e]xcept for reimbursement alimony or
circumstances warranting deviation for other forms of alimony,
the amount of alimony should generally not exceed the
recipient's need or 30 to 35 per cent of the difference between
the parties' gross incomes established at the time of the order
being issued" (emphasis added). G. L. c. 208, § 53 (b). The
husband's argument focuses particularly on the word "or," which,
he contends, "is critical." In his view, the award must satisfy
both criteria. And, he argues, the wife does not need the
amount of alimony that the judge ordered him to pay. As to that
second portion of his argument, we are not persuaded.
The act did not change the fundamental purpose of alimony,
which "is to provide for postdivorce economic support of a
spouse who was financially dependent during the marriage."
Hassey v. Hassey, 85 Mass. App. Ct. 518, 524 (2014), citing
Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986). "[W]here the
supporting spouse has the ability to pay, 'the recipient
spouse's need for support is generally the amount needed to
10
allow that spouse to maintain the lifestyle he or she enjoyed
prior to termination of the marriage'" (emphasis added). Young
v. Young, 478 Mass. 1, 6 (2017), quoting Pierce v. Pierce, 455
Mass. 286, 296 (2009). In determining the amount and duration
of an alimony award, the judge must consider certain statutory
factors, "and such other factors as the court considers relevant
and material." G. L. c. 208, § 53 (a). Although the act
created express guidelines to aid judges in fashioning alimony
awards, "it [did] not alter the principle that the central issue
relevant to a financial award is the dependent spouse's 'need
for support and maintenance in relationship to the respective
financial circumstances of the parties.'" Hassey, supra at 524-
525, quoting Partridge v. Partridge, 14 Mass. App. Ct. 918, 919
(1982).
We look to our cases establishing a child support order in
higher income cases for some guidance in determining a spouse's
need for alimony in a case where a party earns a substantial
income. That is, we have held that "consistent with principles
underlying the [Massachusetts Child Support Guidelines
(guidelines)], children's needs are to be defined, at least in
part, by their parents' standard of living and that children are
entitled to participate in the noncustodial parent's higher
standard of living when available resources permit." Brooks v.
Piela, 61 Mass. App. Ct. 731, 737 (2004). If there exists a
11
"material disparity in the standard of living in the respective
parents' households," the ordered child support should, in
furtherance of the principles of the guidelines, "provide the
standard of living the child would have enjoyed had the family
been intact." Smith v. Edelman, 68 Mass. App. Ct. 549, 554
(2007), quoting Brooks, supra (modification of child support
denied as noncustodial parent's increased income postdivorce did
"not result[] in a material disparity in the parties' respective
lifestyles").
So, too, in calculating alimony, it is appropriate to view
the need of a recipient spouse in light of the affluence of the
family as a whole, keeping in mind the ability of the other
spouse to pay. See C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 159
(2008) ("An award of alimony may be appropriate, even if the
receiving spouse can generate income from the estate awarded her
by the divorce, because '[m]any considerations shape the
structure of an award.' Johnston v. Johnston, 38 Mass. App. Ct.
531, 537 [1995]"). Cf. Zeh v. Zeh, 35 Mass. App. Ct. 260, 267
(1993) ("The fact that the judgment provisions may meet the
wife's basic needs does not preclude assessment of the fairness
of the division of the assets of this long-term marriage, given
both the apparent failure to weigh the effect of the wife's
contribution as a homemaker and the size of the marital estate,
as enhanced by the husband's inheritance from his father");
12
Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992) ("When
the entire marital estate is as large as it is in this case
. . . , need, even as related to station in life, recedes as a
consideration").
It is apparent from the judge's findings in this case that
she carefully addressed each of the considerations outlined in
§ 53 and concluded that the wife had a "significant" need for
support from the husband in order to maintain the "upper-middle
class to upper-class lifestyle" enjoyed by the parties during
the marriage. See Zaleski v. Zaleski, 469 Mass. 230, 236 (2014)
("we examine a judge's findings to determine whether the judge
considered all the relevant factors under G. L. c. 208,
§ 53 [a]"). The judge acknowledged that the wife had a college
degree, but she properly took into account the fact that the
wife had been out of the workforce for almost two decades, and
also that she was not in the best of health. The judge further
considered, among other factors, the wife's noneconomic
contributions to the marriage, as well as the economic
opportunities she had lost due to the parties' agreement that
she would stay at home to parent their children. See G. L.
c. 208, § 53 (a). As a result, given the husband's substantial
ability to pay, and the wife's limited income and stated need
for support, the judge permissibly determined that the wife
needed the alimony in order "to maintain the lifestyle she
13
enjoyed prior to the termination of the marriage." Young, 478
Mass. at 7. By contrast, an award on these facts that focused
on need for bare necessities alone would have produced a
material disparity in the parties' postdivorce lifestyles.
It is true, as the husband argues, that the judge
criticized the wife's statement of financial need.8 Further, the
judge noted that it was "incumbent upon [the w]ife to adjust her
expectations following the divorce to reflect the reality of one
income being shared between two households." However, the judge
also noted that, during the marriage, the wife earned no income,
and that, at the time of trial, her income derived exclusively
from temporary support paid by the husband ($6,976.74 weekly).
For this reason, she concluded that the wife had "no ability to
maintain the marital lifestyle without continued support from
[the h]usband."
As noted, a dependent spouse's "need" for postdivorce
support is but one of the many factors to be considered by the
judge in fashioning an alimony order. G. L. c. 208, § 53 (b).
Here, although the judge was unable to determine the wife's
"true need" based on her financial statement, given the
discretion afforded by the act, it was permissible for her
8 Specifically, the judge found that the wife's failure to
complete her financial statement appropriately made it
"impossible for the [c]ourt to precisely determine her true need
as of the time of trial."
14
instead (or in addition) to consider the various mandatory and
discretionary factors as prescribed by § 53 (a) to fashion an
alimony award that would be appropriate in providing the wife
the means to maintain the marital lifestyle. This is precisely
what the judge did here, and in so doing, "the judge quite
clearly and directly considered the alimony calculation in
relationship to the respective financial circumstances of the
parties." C.D.L., 72 Mass. App. Ct. at 159. The alimony award
was neither "plainly wrong" nor "excessive." Zaleski, 469 Mass.
at 236, quoting Heins v. Ledis, 422 Mass. 477, 481 (1996).
Ordering an alimony amount that constituted thirty-four percent
of the disparity between the parties' determined gross incomes
was well within her broad discretion. See G. L. c. 208,
§ 53 (b). See also Young, 478 Mass. at 5-6; J.S. v. C.C., 454
Mass. 652, 660 (2009) (support awards reviewed for abuse of
discretion).
2. Duration of husband's alimony obligation. The husband
next argues that the judge erred when she failed to credit him,
as the parties had agreed, with the payment of temporary support
for the thirty-seven months preceding trial. We agree this was
error.
"While Probate and Family Court judges enjoy considerable
discretion, that discretion does not extend to vitiating a
contract that was negotiated at arm's length and entered into
15
freely and voluntarily" by the divorcing parties. DeMarco v.
DeMarco, 89 Mass. App. Ct. 618, 623-624 (2016) (enforcing
provisions of parties' surviving settlement agreement pertaining
to alimony). It is "important to respect the parties' 'freedom
to contract' and that such agreements may serve a 'useful
function' in permitting the parties to arrange their financial
affairs 'as they best see fit.'" Ansin v. Craven-Ansin, 457
Mass. 283, 288-289 (2010), quoting DeMatteo v. DeMatteo, 436
Mass. 18, 30 (2002) (enforcing contracted terms from postnuptial
agreement).
On February 20, 2014, the parties entered into a
stipulation that later entered as a temporary order. Relevant
here, one of the agreed-upon terms in the stipulation provided
that "[c]ommencing on March 1, 2014 and on the first day of each
month hereafter, the [h]usband shall pay $30,000 monthly as
[t]emporary [s]upport to the [w]ife. Said payments shall be
characterized as alimony and shall continue until further order
of the [c]ourt . . . and shall be credited against the
applicable durational limit of the [act]."
As part of the May 23, 2017 divorce judgment, the judge
ordered the husband to pay general term alimony for 123 months
(based on 175 months of marriage, see note 2, supra), to
terminate on September 1, 2027; this order ignored the parties'
agreement to include the temporary support payments in the
16
durational calculation. See G. L. c. 208, § 49 (b) (3). The
judge reasoned that the Supreme Judicial Court's holding in
Holmes v. Holmes, 467 Mass. 653, 660 (2014), made it clear that
"durational limits set forth in G. L. c. 208, § 49[,] appl[ied]
to general term alimony awards only and [did] not apply to
temporary alimony awards."9 For that reason, given the Holmes
court's conclusion that the Legislature's intent was not to
include in "the maximum presumptive duration of 'general term
alimony,' . . . the time period where temporary alimony was
paid," Holmes, supra, the judge here concluded that she was
"bound by the ruling in Holmes when setting the duration of any
general term alimony award."
We conclude, however, that the procedural history in Holmes
is distinguishable from what occurred here. In 2006, when the
Holmes parties agreed that there would be temporary alimony, the
act had not been enacted.10 Holmes, 467 Mass. at 654. As a
9 On April 2, 2014, the Supreme Judicial court decided
Holmes, holding that, in that case, the husband's payment of
temporary alimony did not afford him a credit against the
maximum presumptive duration of general term alimony ordered in
the judgment of divorce nisi. Holmes, 467 Mass. at 659-660.
Eight days later, the wife in the present case filed a motion to
modify the provision of the temporary order that had
incorporated the 2014 stipulation, requesting that the duration
of the husband's temporary support payments be excluded from the
duration of general term alimony; that motion was denied.
10The act was passed in 2011 and went into effect on March
1, 2012. See St. 2011, c. 124, § 7.
17
result, the parties there had no reason to address the language
of the act or to attempt to counter its effects by agreeing to
any sort of credit to the husband's future general term alimony
obligation for his pretrial alimony payments. See id. at 655.
See also G. L. c. 208, § 49 (b). Both the stipulation and the
divorce judgment in Holmes provided for the alimony payments to
continue "until the death of the husband or the wife, or the
wife's remarriage." Id. at 654.11 In contrast here, the parties
specifically had agreed that the husband would earn credit
toward the durational alimony limits prescribed by the act for
any pretrial support payments made to the wife. Because neither
party challenges the validity of the agreement contained in the
2014 stipulation (and subsequent court order), the contracted
terms are enforceable. Compare Ansin, 457 Mass. at 291 (minimum
11 In the Holmes case, "[a]fter the effective date of the
. . . act, the judge issued a modified judgment . . . [and]
modified the duration of alimony, ordering that the husband's
payment obligation continue until the death of either party, the
wife's remarriage, the husband's attainment of full social
security retirement age, or October 7, 2020, whichever came
first. In setting the termination date, the judge calculated
the length of the marriage (fifteen years and seven days) and
the maximum presumptive duration of general term alimony under
the . . . act for a marriage of this length (twelve years), and
ordered alimony to continue, subject to other contingencies, for
the maximum presumptive duration. The judge did not subtract
the time period in which temporary alimony was paid (two years,
three months, and twenty-five days) from her calculation of the
maximum presumptive duration of general term alimony." Holmes,
467 Mass. at 655.
18
criteria showing marital agreement made with consent of parties
and not under duress).
The long-standing policy of allowing divorcing parties to
enter into agreements that "may secure with finality the
parties' respective rights and obligations concerning the
division of marital assets, among other things," remains
unchanged under the act (citation omitted). DeMarco, 89 Mass.
App. Ct. at 623. See St. 2011, c. 124, § 4 (c) ("Under no
circumstances shall said sections 48 to 55, inclusive, of said
chapter 208 provide a right to seek or receive modification of
an existing alimony judgment in which the parties have agreed
that their alimony judgment is not modifiable, or in which the
parties have expressed their intention that their agreed alimony
provisions survive the judgment and therefore are not
modifiable"). As a result, the reasoning in Holmes does not
apply to this case, and the contracted terms of the 2014
stipulation are enforceable. The husband must be credited with
thirty-seven months toward the durational limit of the general
term alimony award.
3. Property division. The husband further contends that
the judge erred when she equated his interest in asset X to
stock options, and therefore when she divided equally with the
wife that interest on an "if, as, and when" received basis. We
disagree.
19
Under G. L. c. 208, § 34, a judge has broad discretion to
divide the marital property equitably. Brower v. Brower, 61
Mass. App. Ct. 216, 221 (2004). "According [this] broad
discretion to the judge's division of property pursuant to the
§ 34 factors 'is necessary in order that the courts can handle
the myriad of different fact situations which surround divorces
and arrive at a fair financial settlement in each case.'" Adams
v. Adams, 459 Mass. 361, 371 (2011), quoting Rice v. Rice, 372
Mass. 398, 401 (1977). If the judge's conclusions are "apparent
and flow rationally" from the record, we must uphold the
division. Williams v. Massa, 431 Mass. 619, 631 (2000). "A
judgment may be vacated only where the award is plainly wrong
and excessive." Id.
The husband does not dispute that his interest in asset X
is a marital asset subject to distribution under § 34. He
challenges the judge's equal division of all distributions, when
received, because, he claims, at the time of divorce there was
an "agreed-upon, ascertainable, value" of the husband's
interest.12 However, the judge found that the husband's interest
in asset X, which was in the management phase at the time of
12The judge declined to permit the husband to "buy out" the
wife's share of the estimated value of asset X after the judge
determined that the husband's financial statement did not
support his claim that he was financially capable of doing so at
the time of trial.
20
trial, was illiquid. In addition, at that time, less than
seventy percent of the committed investment funds had been
"called," and seven of the ten companies comprising the initial
investment remained in the account; asset X was not due to close
until December 2019, or December 2021 if the potential
extensions were exercised. As the judge found, the husband's
interest in asset X was tied inextricably to the portfolio
companies within that account. Because, as the husband
testified at trial, there was no way to predict the
circumstances of any future sale of those companies, the timing
of any sale of those companies, or the profits or losses
resulting therefrom, the husband's interest in asset X could not
be determined until the various sales of the companies held by
the account were completed. See Haskell v. Versyss Liquidating
Trust, 75 Mass. App. Ct. 120, 125 (2009) ("As valuation is a
question of fact, the judge's determination of value will stand,
unless clearly erroneous").
We discern no error in the judge's determination that the
value of asset X was not ascertainable at the time of trial.
See Adams, 459 Mass. at 376, quoting Baccanti v. Morton, 434
Mass. 787, 796 (2001) ("we are unwilling to deny one spouse, who
contributed to the acquisition or appreciation of property
during the marital enterprise, the right to share in what may be
the most valuable asset between the spouses on the basis of the
21
uncertainty or future contingencies bound up in that asset"
[quotations omitted]). See also Canisius v. Morgenstern, 87
Mass. App. Ct. 759, 765 (2015), quoting Adams, supra at 379 n.14
("where a present valuation of [an asset] is uncertain or
impractical, the better practice is to order that any future
recovery or payment be divided, if and when received, according
to a formula fixed in the property assignment").
4. Custody of the children. The husband finally argues
that an award of joint legal custody of the children was error
based on "overwhelming" evidence that the wife was unable to
communicate effectively with the husband as to issues relating
to the children. He also claims that the custody award was
"entirely at odds" with the GALs' findings.
In deciding the issues of custody and parenting time, the
best interests of the children are paramount. See G. L. c. 208,
§ 31. "The determination of which parent will promote a child's
best interests rests within the discretion of the judge."
Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v.
Merida, 428 Mass. 182, 191 (1998). "[A] judge may consider any
factors found pertinent to those interests in the circumstances
of the dispute." Custody of Zia, 50 Mass. App. Ct. 237, 243
(2000). "The judge's findings in a custody case 'must stand
unless they are plainly wrong,' or 'clearly erroneous'"
22
(citations omitted). Loebel v. Loebel, 77 Mass. App. Ct. 740,
747 (2010).
Here, the judge acknowledged that, historically, the
parties had had difficulty prioritizing the children's needs
above their own, but she also found that, eventually, they were
able to work out a flexible parenting plan. The judge also
found disingenuous the husband's accusation that the wife
refused to communicate with him regarding the children in light
of his abuse prevention order and the later no contact order.
Finally, the recommendations in the GAL report, that the husband
have sole legal and physical custody of the minor children, were
permissibly rejected based on the judge's findings of
"troubling" conduct by the GALs in acting "outside of their
prescribed roles."
While a judge may consider a GAL's recommendations, the
judge is required, as she did here, to draw her own conclusions
in deciding the case. See Sagar v. Sagar, 57 Mass. App. Ct. 71,
79 (2003). In particular, the judge found that, during the
marriage, the wife was the primary care provider for the
children, and that at the time of trial both of the minor
children wanted to live with her.13 Both children had
13The judge also found troubling the husband's apparent
reason for involuntarily admitting the eldest child to a
psychiatric hospital; he alleged she was "out of control" and
23
significant health issues, and when she was caring for them, the
wife diligently had employed both homeopathic and western
medicine options in providing for the children's health and
wellbeing. Both children had significant food allergies and
sensitivities that the wife consistently took steps to mitigate
and to prevent allergic reactions.14 In addition, the judge
found credible the wife's testimony that the husband was
disinterested in learning how to use the "Epi Pen" prescribed
for the children due to their extensive food allergies. After
careful review, we discern no error in the award of joint legal
custody, with final decision-making authority granted to the
wife for the children's medical needs.
Conclusion. So much of the judgment of divorce nisi, as
supplemented by the first and second supplemental judgments of
divorce dated November 15, 2017, as pertains to the duration of
the husband's alimony obligation is vacated, and the matter is
remanded for the entry of an amended judgment reflecting a
reduction in the duration of the husband's alimony obligation by
"out of touch[] with reality" because she wanted to live with
the wife.
14Among other steps, the wife taught the children how to
read food labels and purchase food that would not trigger their
allergies. She also prepared and maintained "Remedy Bag[s]"
containing "homeopathic remedies, Epi Pens, an inhaler and
traditional first aid[] items."
24
thirty-seven months.15 In all other respects, the judgment of
divorce nisi, as supplemented by the first and second
supplemental judgments of divorce dated November 15, 2017, is
affirmed.16
So ordered.
15On remand, the judge may consider that the amount of
temporary alimony, for which the husband received a credit for
purposes of the durational limits, is approximately one-half of
the amount of alimony the wife is receiving pursuant to the
divorce judgment. We express no opinion whether the amount of
alimony awarded after remand should or should not be adjusted as
a result of our determination that the 2014 stipulation of the
parties controlled.
16The husband's request for appellate attorney's fees is
denied; the wife's request for appellate attorney's fees and
double costs is denied.