Pisano v. Pisano ( 2015 )

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13-P-1758 Appeals Court
JUDITH BELUSHI PISANO vs. VICTOR RENO PISANO.
No. 13-P-1758.
Dukes. October 6, 2014. - May 29, 2015.
Present: Cypher, Grainger, & Maldonado, JJ.
Divorce and Separation, Alimony, Appeal, Judgment. Husband and
Wife, Antenuptial agreement. Contract, Antenuptial
agreement. Practice, Civil, Bifurcated trial,
Interlocutory appeal.
Complaint for divorce filed in the Dukes County Division of
the Probate and Family Court Department on October 20, 2010.
The case was heard by Spencer M. Kagan, J.
Robert J. Rutecki for the husband.
Sharon D. Meyers for the wife.
CYPHER, J. In October, 2010, Judith Belushi Pisano
(hereinafter, wife), after some twenty years of marriage to
Victor Reno Pisano (hereinafter, husband), filed a complaint for
divorce from the husband. The wife also moved, successfully, to
bifurcate the issue of the scope and validity of a premarital
2
agreement executed by the parties on October 6, 1990, the day
prior to the parties' wedding. Following a trial on the wife's
"bifurcated complaint for divorce," a judge of the Probate and
Family Court issued a "Bifurcated Judgment" dated April 2, 2012,
supplemented by findings, in which he determined that the
premarital agreement was valid and binding on the parties, and
that it limited any claim of the husband for alimony in a manner
we shall discuss more fully below.
With the assent of the parties, additional issues were
referred to a master, who was instructed to conduct an
evidentiary hearing, make findings of fact and conclusions of
law, and prepare a judgment of divorce nisi addressing all
outstanding issues. Among the issues considered by the master
was whether the wife was entitled to the repayment of temporary
alimony ordered earlier by the court and whether a certain debt
should be treated as a liability of the wife or a joint marital
liability to be shared by the parties. Following a hearing, the
master issued his report (including recommendations that the
wife recover the temporary alimony she paid to the husband and
that the loan be treated as the wife's sole liability), and a
subsequent amended report. The master's recommendations were
3
incorporated into the supplemental judgment of divorce nisi
dated February 5, 2013.1
The husband has appealed, challenging portions of the
"bifurcated judgment" as they pertain to alimony as well as the
order contained in the supplemental judgment for repayment of
temporary support. The wife has also appealed, challenging the
judge's determination concerning the debt.2
For the reasons set forth herein, we vacate so much of the
supplemental judgment as requires the husband to reimburse (or
credit) the wife for sums paid for temporary alimony. In all
other respects, we affirm the judgment.
1. Background.3 In late December, 1988, the husband, who
had previously been married, and the wife, a widow, "agreed to
marry and discussed that a premarital agreement was necessary to
protect various assets each had acquired, including intellectual
property rights they intended to exploit or continue to develop
in the future and that each wanted to protect in the event of
1
The bifurcated judgment did not grant the parties a
divorce. On May 28, 2013 (nunc pro tunc as of April 2, 2012),
the judge issued a "Rule 60 (a) Corrected Bifurcated Judgment of
Divorce Nisi" which granted the parties a divorce.
2
The appeals were originally docketed under separate
numbers; both appeals have since been consolidated.
3
The parties, in their respective statements of fact,
recite in some detail their personal situations and the events
leading up to the execution of the premarital agreement. For
purposes of our background statement, we shall do the same.
4
divorce, separation or death." The wife had valuable real
property located in Martha's Vineyard as well as an interest in
her parents' house in New Jersey. The wife also had valuable
intellectual property rights, including rights she inherited
from her late husband, the actor/comedian, John Belushi. While
the wife had achieved some success in her own right as an
author, writer, producer, and speaker, her income was derived
primarily from royalties and residuals from the intellectual
property rights she inherited from Belushi.
The husband is involved in the entertainment industry and,
prior to the marriage, had, among other things, written,
produced and co-directed a successful television miniseries,
produced a concert television special, and written scripts or
concepts for several full length screenplays, one of which was
sold to a studio. The husband had also negotiated various
business transactions regarding production, residual rights, and
intellectual property and royalty payments for himself and his
production company.
Prior to the execution of the premarital agreement, the
parties discussed terms to be included therein. The judge found
that both parties desired to protect their existing assets,
including their intellectual property rights, from one another,
i.e., "what was Husband's would remain Husband's and what was
5
Wife's would remain Wife's, and any new project that they
created together they would share."
Each party consulted with counsel, and although there was
some confusion as to whose counsel would actually prepare the
prenuptial agreement, the agreement was ultimately drafted by
the wife's counsel. The "'draft' final agreement" prepared by
the wife's counsel was further negotiated by the parties on
October 6, 1990, and after certain revisions were made, the
agreement was executed that same day. The agreement, excluding
schedules, is eleven pages in length.
The premarital agreement provides, in part, in its
introductory paragraph, that the parties "wish to enter into
this Premarital Agreement for the purpose of defining the
respective rights which each of us shall have in the property
and estate of the other, both during our marriage and after its
termination, either by a separation or the dissolution of our
marriage or by the death of either of us." The parties set out
in paragraphs 1.1 and 1.2 of the agreement, and in attached
Schedules "B" and "C," the property each had acquired prior to
the intended marriage.4 Paragraph 2 of the agreement describes,
4
The wife's assets and liabilities are listed in Schedule C
of the agreement. In her "Notes to Statement of Assets and
Liabilities," the wife recites that her primary source of income
is from "royalties and residues on John Belushi and/or Blues
Brothers movies, records and videos in addition to licensing
income from the exploitation of the name and likeness of John
6
and essentially defines, separate and marital estate property.5,6
In paragraph 2.3, the parties agreed that "[e]ach of us shall
have complete ownership and control of our Separate Property and
Belushi and the Blues Brothers." The wife stated that her right
to receive the royalties and residuals, as well as her right to
exploit the name and likeness of her late husband and the Blues
Brothers, represent valuable assets, albeit assets that are
difficult to value as it is "impossible to predict with any
degree of accuracy what income stream they might generate in the
future." Although there was fluctuation in the amounts of
income received by the wife from her intellectual property
interests, the amounts were substantial.
5
Paragraph 2.1 provides: "Separate Property of each of us
as used herein shall include: (a) the property described on
Schedules B and C and any other property owned by the party on
the date of this Agreement; (b) any property or other proceeds
derived from the sale or exchange of the property described on
Schedules B and C or from any other Separate Property of the
party; (c) all income derived from the property described on
Schedules B and C or from any other Separate Property of the
party; (d) any increases in the value of the property described
on Schedules B and C or in the value of any other Separate
Property of the party; (e) any property which either party may
inherit or receive by gift, will, laws of intestacy, or
otherwise . . .; and (f) any property received as a result of a
reorganization, sale, exchange, liquidation or other disposition
of the property on Schedules B and C or any other Separate
Property of the party."
6
The premarital agreement was amended in August, 1996. By
virtue of the amendment, the parties deleted paragraph 2.2 of
the original agreement and substituted the following in its
place: "Our Marital Estate Property shall include 1) any
property owned or acquired by us which is not classified as
Separate Property in subparagraph 2.1 above, 2) any property
owned or acquired by us as tenants by the entirety or as joint
tenants with right of survivorship regardless of the source of
funds used to acquire such property, including any real estate
occupied by us as our principal residence or vacation home, 3)
any property devoted to a business venture of either of us...,
and 4) any other property which we may, by written amendment to
this agreement, classify as Marital Estate Property."
7
may use and dispose of such property in the same manner as if
our marriage had not taken place."
The agreement provides in paragraph 7, entitled
"Dissolution of Marriage:"
"7.1 We have been informed by legal counsel that it is not
possible to advise us specifically what our rights would be
if our marriage were terminated by divorce. Generally,
under existing Massachusetts law, in the absence of this
Agreement, a court would provide for the division or other
disposition of the property of either or both of us in a
manner which was just and proper under all of the
circumstances. In addition, a court could provide for the
payment of alimony by either of us to the other in amounts
considered just and proper.
"7.2 We recognize that, under existing Massachusetts court
decisions and provisions of the Massachusetts General Laws,
we may enter into an agreement prior to our marriage
concerning the disposition of our property in the event of
a separation or the dissolution of our marriage and that
the agreement will be enforced unless, with respect to
alimony, enforcement would cause one of us to become
eligible for support under a program of public assistance
at the time of the separation or dissolution.
"7.3 If we are legally separated or our marriage is
dissolved and a decree of separation or dissolution is
entered by a court of competent jurisdiction, we agree that
each of us will have the following rights:
(a) Except for the Marital Estate Property, as
defined in paragraph 2.2 above, neither of us shall
have any rights in or to the real or personal property
owned by the other prior to our marriage or
subsequently acquired by the other at any time during
our marriage.
(b) [The wife] shall be entitled to her Separate
Property as defined in paragraph 2.1 above.
(c) [The husband] shall be entitled to his Separate
Property as defined in paragraph 2.1 above.
8
(d) The Marital Estate Property shall be divided
equally between us.
(e) Each of us will pay the costs of our own
attorney's fees and expenses of litigation.
"7.4 We agree that the provisions in this paragraph for
our benefit are fair and reasonable."
Finally, in paragraph 12, the agreement contains an
"integration" provision that recites, inter alia: "This
agreement constitutes the entire and complete agreement between
us as to our property rights and personal obligations arising
from our marriage. All prior or contemporaneous agreements and
understandings are merged into this Agreement."
After the wife filed her complaint for divorce in October,
2010, the husband sought temporary alimony, and by a temporary
order dated February 16, 2011, the wife was ordered to pay to
the husband the sum of $2,000 a month.
2. The bifurcated proceedings concerning the premarital
agreement. At the hearing on the wife's bifurcated complaint,
the husband challenged the validity of the premarital agreement.
The judge, on all the evidence, concluded that the agreement was
valid, fair, and reasonable at the time of its execution, and
fair and reasonable at the time of trial. Moreover, the judge
rejected the husband's claim that the agreement was the product
of coercion or duress.
9
The judge also made findings with respect to the question
of alimony under the agreement, stating: "Section 7 does not
waive the right of either spouse to put forward a claim of
alimony per se [emphasis in original] -- it only modifies and
limits that right by restricting the assets and income from
which alimony could be drawn to marital property (including
income from marital property) acquired during the marriage, and
further limits payment of alimony from Separate Property
(including income from such property) unless one spouse would
qualify for public assistance."
The judge elaborated on the point in his rationale for
decision:
"Husband waived any rights to alimony using the income
from the Wife's intellectual rights. Husband still has the
right to seek alimony in the future if he becomes a public
charge. The Agreement does not contain a[n] express waiver
of all alimony, but only a partial waiver of alimony so
long as the parties were not left as a pauper, as that was
not the intent of the parties. The parties' Premarital
Agreement only modifies the right to alimony by precluding
the use of income from Separate Property to fund the
alimony."
The judge also stated: "The limitation in the Premarital
Agreement provides alimony for Husband may be funded from Wife's
Separate Property only if without such alimony he would qualify
for public assistance."7
7
The judge noted that by virtue of the premarital agreement
the husband will have substantial assets (worth approximately
$600,000) that should prevent him from becoming a public charge.
10
The judge reserved the award of alimony to either party
from marital property or marital income until after the
determination of division of assets and liabilities consistent
with the premarital agreement was completed. As we have
indicated, by a "bifurcated judgment" dated April 2, 2012, the
judge concluded that the parties' premarital agreement was valid
and binding on the parties.8
Shortly after the bifurcated judgment was entered, the wife
filed a motion, supported by the affidavit of her business
manager, to terminate temporary alimony, stating that all of the
income currently being received by her comes within the
definition of her separate property under the premarital
agreement and is not subject to a claim by the husband or a
division by the court. By temporary order dated May 22, 2012,
the wife's obligation to pay the husband $2,000 a month as
temporary alimony was suspended.
3. The bifurcated proceedings before the master. Pursuant
to the order of reference, the master was bound by the
bifurcated judgment, and the findings of fact, rationale and
Continuing, the judge stated that if, for any reason, these
assets were depleted and the husband met the statutory criteria
for alimony he has the ability to petition the court for relief.
8
The judge also ordered counsel for the parties to submit
asset schedules identifying those assets which they agreed were
either separate property or marital property under the
agreement. The matter was scheduled for a status conference for
the "remaining issues" to be decided by the judge.
11
conclusions of law dated April 2, 2012, regarding the judge's
ruling as to the enforceability and interpretation of the
parties' premarital agreement.9 The master was to conduct
evidentiary hearings and address all outstanding issues which
remained under the wife's complaint for divorce.
The master was presented with a number of issues, including
whether the wife received, or currently receives, any income
which is not separate property on which the husband was entitled
to or had a right to seek alimony. The parties also identified
to the master additional disputes, including whether the
temporary alimony paid by the wife was improperly paid from
income derived from the proceeds of the wife's separate property
(and whether the amounts paid should be credited to the wife),
and whether a $100,000 debt owed to the brother of the wife's
late husband was a joint marital debt or the debt of the wife.
The master determined that there was "no marital income in
dispute from which alimony could be paid." As to the question
whether the wife should be credited for the amounts of temporary
alimony paid by her to the husband ($32,000), the master found,
as we shall discuss more fully, infra, that the wife made the
required payments from monies that were her separate property
9
The parties filed a joint status memorandum identifying
the husband and wife's separate property and their joint marital
property. See note 8, supra. The wife's separate property
included the intellectual property rights she inherited from her
late husband.
12
under the premarital agreement and that the husband had been
unjustly enriched by $32,000 and must repay that sum to the
wife. Finally, with respect to the $100,000 loan, the master
concluded that the debt should be the responsibility of the
wife. As we have stated, the recommendations contained in the
master's report, and the amended report, were incorporated in
the supplemental judgment dated February 5, 2013. The husband
filed his notice of appeal from the supplemental judgment on
February 20, 2013; the wife filed her notice of appeal on March
5, 2013.
4. The husband's appeal. a. Construction of the
premarital agreement. The husband argues generally that the
judge "erred in construing the terms of the prenuptial agreement
as constituting a waiver of [his] right to alimony from the
income designated as the separate property of the wife in the
prenuptial agreement."10
Before addressing the husband's argument, we consider the
wife's contention that the husband's appeal of the court's
"finding" that he had knowingly waived his right to receive
alimony from the wife's separate property is untimely because it
was not filed within thirty days of the entry of the bifurcated
10
The husband's argument on appeal is directed towards the
judge's construction of the premarital agreement. The husband
states in his brief that he "has not appealed the trial judge's
ruling that the prenuptial agreement is valid and enforceable."
13
judgment. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603
(1999); Onello v. Twomey, 35 Mass. App. Ct. 671, 675-676 (1993).
More specifically, the wife states that the bifurcated judgment
dated April 2, 2012, constituted a final judgment on the scope
and validity of the premarital agreement, and that if the
husband intended to object to the judgment (and any findings
contained therein) he was obligated to, but did not, file his
notice of appeal by May 2, 2012. Continuing, the wife asserts
that the husband's appeal from the supplemental judgment of
divorce nisi, which the husband treats as encompassing the
bifurcated judgment, does not bring the bifurcated judgment
before this court. In response, the husband asserts that only
final judgments entered in the Probate Court are appealable as
of right to this court, see Borman v. Borman, 378 Mass. 775, 779
(1979); McDonnell v. McDonnell, 39 Mass. App. Ct. 932, 933
(1995), and that the bifurcated judgment is an interlocutory
order because it does not dispose of all claims raised by the
underlying complaint for divorce.
We agree with the husband that, notwithstanding its
nomenclature, the "bifurcated judgment" is, in essence, an
interlocutory order, and that the "supplemental judgment of
divorce nisi" constitutes the final judgment in this matter.
Our conclusion finds support in our decision in Halperson v.
Halperson, 65 Mass. App. Ct. 909 (2006). In Halperson, the
14
Probate Court judge ordered the question of the validity of the
parties' antenuptial agreement bifurcated from the remainder of
the divorce action. After a trial on the antenuptial agreement,
a different judge ruled that the agreement was invalid and a
"judgment" was entered to that effect. The remaining issues of
the parties' divorce remained pending and the husband's attempts
to stay proceedings in the Probate Court pending determination
of the appeal were unsuccessful. We held that the husband's
appeal "from the judge's interlocutory ruling on the validity of
the antenuptial agreement accordingly is not properly before
us," and we remanded the matter to the Probate Court for
determination of the underlying case. In so holding, we pointed
to the various considerations militating against our
consideration of piecemeal appeals. We also stated that "the
'judgment' [did] not dispose of all issues in the case;
accordingly, without a certification of the type required under
Mass.R.Civ.P 54(b) . . ., it was not final and, hence, not ripe
for appeal." 65 Mass. App. Ct. at 909.11 We noted, in addition,
that the trial judge did not report the question under the
11
We expressed no view on whether the question of the
validity of an antenuptial agreement is a separate "claim"
appropriate for certification under rule 54(b).
15
extraordinary vehicle of Mass.R.Civ.P. 64(a), as amended, 423
Mass. 140 (1996).12
In the instant matter, unlike in Halperson, the judge
determined that the agreement was valid and enforceable. Yet,
the record makes clear, as we have discussed, that the judge's
determination did not dispose of all issues involved in the
underlying divorce action. The same considerations militating
against piecemeal appeals have application here. In the
circumstances, we decline to conclude that the husband's appeal
is untimely.13
We turn to the husband's arguments concerning the judge's
construction of the premarital agreement. The husband asserts
that the agreement contains no waiver of the parties' rights to
alimony upon divorce,14 that the waiver of the parties' claim to
the other's separate property does not constitute a waiver of
12
We recognize that DeMatteo v. DeMatteo, 436 Mass. 18
(2002), involved a procedural scenario where the probate judge,
in a bifurcated proceeding to consider the validity and
enforceability of an antenuptial agreement, concluded that the
agreement was not fair and reasonable. The husband appealed and
the Supreme Judicial Court granted his application for direct
appellate review and considered his arguments.
13
Nor do we construe the husband's general statement in his
brief that he was not appealing the judge's ruling that the
premarital agreement was valid and enforceable, see note 10,
supra, as a waiver of any argument concerning the judge's
interpretation of the agreement with respect to alimony.
14
The husband also points out that the wife's attorney who
drafted the agreement testified that she did not include an
alimony waiver in the document.
16
the parties' alimony right on income from the separate property,
that the judge failed adequately to distinguish between a waiver
of a property interest and a waiver of alimony (which constitute
two separate and distinct rights), and that the ruling resulted
in effect as an unknowing and involuntary implied waiver of his
alimony rights under G. L. c. 208, § 34, contrary to established
law and the public policy of the Commonwealth. In the husband's
view, the parties' agreement should have been interpreted by the
judge "so as to permit either party to seek alimony from the
other based on traditional principles of alimony without regard
to the source or nature of the income which forms the basis of
the supporting party's ability to pay." The husband asserts
that the judge's failure to so construe the agreement
constitutes reversible error.
"When the words of a contract are clear, they must be
construed in their usual and ordinary sense. . . ." General
Convention of the New Jerusalem in the United States of Am.,
Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). Extrinsic
evidence may be admitted, however, "when a contract is ambiguous
on its face or as applied to the subject matter." Id. at 836.
See Parrish v. Parrish, 30 Mass. App. Ct. 78, 86 (1991). "Even
when an agreement is integrated, evidence may be received and
17
used to elucidate (but not contradict) its meaning in context."
Parrish v. Parrish, 30 Mass. App. Ct. at 86 n.11.15
We start with the observation, made clear from paragraphs 2
and 7.3 of the premarital agreement, that each party sought to
protect from the other his/her separate property, including the
income streams derived from, and any appreciation in value of,
that property. That the parties were to control all aspects of
their separate property, including the income streams, is also
manifest in paragraph 2.3, which allows the parties to control,
use and dispose of their separate property in the same manner as
if the marriage had not taken place.
Construing the agreement as a whole, see General Convention
of the New Jerusalem, supra, at 835, paragraph 7.1 provides that
"[g]enerally, under existing Massachusetts law, in the absence
15
In their briefs, the parties do not rely solely on the
language of the agreement itself; they also point to evidence
adduced at the bifurcated hearing (and/or certain of the judge's
findings thereon) that may bear on the parties' circumstances,
intent and the meaning to be attributed to the language of the
agreement. The wife does so even in the face of her assertion
in her brief that the language of the agreement is plain and
unambiguous. See e.g., Massachusetts Mun. Wholesale Elec. Co.
v. Danvers, 411 Mass. 39, 48 (1991) ("As a general principle, a
court considers extrinsic evidence to discern intent only when a
contract term is ambiguous"); Eastern Holding Corp. v. Congress
Fin. Corp. (New England, 74 Mass. App. Ct. 737, 742 n.5 (2009)
("Where contractual language is unambiguous, we do not resort to
extrinsic evidence concerning the contracting parties' intent in
order to ascertain the contract's meaning"). The judge made no
specific finding as to whether the premarital agreement was
ambiguous or unambiguous; his conclusions of law refer to
principles applicable to each scenario.
18
of this agreement, . . . a court could provide for the payment
of alimony by either of us to the other in amounts considered
just and proper" (emphasis supplied). Not only does this
provision indicate that the concept of alimony was considered by
the parties in their agreement, it reflects that traditional
principles governing an award of alimony by a judge were, to
some extent, modified or limited by the agreement.16 See G. L.
c. 208, § 34, as then in effect.17 Continuing, paragraph 7.2
recites, inter alia, that the parties recognize that they may
enter into an agreement prior to marriage concerning the
disposition of their property in the event of divorce and that
the agreement will be enforced unless, with respect to alimony,
enforcement would cause one of the parties to become eligible
under a program of public assistance at the time of the divorce.
This provision indicates, as the judge stated, that the parties
intended that alimony could be awarded from the parties'
16
Indeed, the husband's position that the agreement should
have been interpreted so as to permit either party to seek
alimony from the other based on traditional principles of
alimony, would appear inconsistent with the language of
paragraph 7.1.
17
The judge noted that in this case there had been a
modification of rights under G. L. c. 208, § 34.
19
separate property (including income from such property) to
prevent a party from becoming a public charge.18
While the premarital agreement, as the husband states and
as the judge noted, does not contain a waiver of alimony per se,
against the backdrop of the parties' intent to protect their
separate property (including income streams), and the above
discussed language of paragraph 7 as it pertains to awards of
alimony, we think the judge reasonably and properly construed
the agreement to limit the husband's claim for alimony in the
manner we have previously described. We also agree with the
judge that the modification of rights under G. L. c. 208, § 34,
does not, in the circumstances, act as an "unknowing waiver" of
the husband's alimony rights.
b. Temporary alimony. The husband argues that the
master/judge erred in ordering him to reimburse the wife for
temporary alimony in the amount of $32,000 paid during the
pendency of the divorce case. In view of (at least) the wife's
18
As to the husband's claim that there was "no evidence
whatsoever from any source that the parties intended to waive
their right to alimony from the separate property of the other,"
his assertion overlooks the language of the premarital
agreement. Moreover, even were we to assume that extrinsic
evidence may be considered here, the wife's testimony is
generally consistent with the judge's construction of the
agreement. Among other things, the wife stated that she
understood that the parties were waiving "the rights the State
of Massachusetts would provide us in terms of alimony, but that
we were leaving open the option so that if somebody was --
somehow had lost all their money, then that would be a time --
that would be an example when there might be alimony."
20
failure to object to the payment of any temporary alimony on the
grounds that payment was proscribed on the basis of the
premarital agreement19 and her "request" for the entry of an
order for temporary alimony,20 we do not think the present case
is an appropriate one in which to invoke (as the master and the
judge did) the doctrine of "unjust enrichment." See generally
Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005) ("[u]njust
enrichment is defined as 'retention of money or property of
another against the fundamental principles of justice or equity
and good conscience'").
5. The wife's appeal. The wife testified that between
2008 and 2010, she incurred numerous expenses which put a
financial strain on her and resulted in her obtaining a loan
19
We note that there is no specific reference in the
premarital agreement to temporary alimony. For a recent
discussion of temporary alimony under G. L. c. 208, § 17, see
Holmes v. Holmes, 467 Mass. 653 (2014).
20
In her opposition to the husband's request for temporary
alimony, the wife described what she viewed as her then
straightened financial condition. She "strenuously" opposed the
husband's request for temporary alimony in the amount of $12,000
a month, and "request[ed]" the court to order a more suitable
amount of $1,500 a month. The wife attached to her opposition a
proposed order consistent with her request. The motion judge,
who was not the trial judge, ordered an amount modestly in
excess of the wife's request.
21
from her late husband's brother in the amount of $100,000.21 She
sought to have the husband share equally the debt incurred.
The master found in his initial report that the wife
borrowed the sum in question in June, 2010, after the parties
had separated and without the knowledge or assent of the
husband. The master stated that the wife had other sources of
income and assets from which she could have obtained these funds
but she chose not to access these sources. Continuing, the
master found that the loan was for the convenience of the wife
in paying her various liabilities and living expenses at the
time, and that the debt owed should be the responsibility of the
wife.
In response to the wife's objections to the master's
initial report, the master supplemented in his amended report
his findings with respect to the loan. Among other things, he
noted that while the wife incurred great expenses as a result of
her voluntary willingness to provide financial help to the
husband's three adult daughters from his first marriage, she was
under no legal obligation to do so, and her generosity does not
21
The expenses incurred by the wife resulted, in part, from
the wife's defense of an unrelated civil lawsuit, the payment of
college expenses for the parties' son (the parties had one
child) and the payment of numerous voluntary expenses for the
husband's adult children. The wife testified that she
maintained a close relationship with the husband's children by
his previous marriage.
22
provide a compelling basis to force the husband to repay a loan
he did not agree to seek.22
The wife argues that the court erred in determining that
the husband need not share in the payment of the debt. More
particularly, she asserts that she was generally responsible for
all the parties' living expenses and costs incurred (with little
or no assistance from the husband) and that the loan was not
simply for her "convenience," but to pay "legitimate familial
obligations" (at least some of which benefitted the husband).
As the loan, in the wife's view, was used for legitimate and
proper purposes, she asserts that the premarital agreement,
insofar as it provides that "marital estate property shall be
divided equally between us," paragraph 7.3 (d), supra,
encompasses marital debt, and required the judge to order that
the husband share equally the $100,000 debt.
Putting to one side the fact that the parties' agreement
contains no specific provision concerning the payment of marital
liabilities, the master, and consequently the judge, determined,
on all the evidence (including the timing, lack of assent on the
22
The master also noted that some of the borrowed money was
used to support the parties' unemancipated son. The master
stated that this "constitutes a whole different basis for
analysis" and was the reason why he entered a specified finding
requiring the husband to contribute to the past support of the
son. The master suggested that there would be "some degree of
double dipping" if the husband were required to pay back a
portion of the $100,000 debt and the reimbursement in the
specified finding.
23
part of the husband, and the expenses which gave rise to the
loan), that this particular liability should be treated as an
individual debt of the wife. In the circumstances of this case,
we fail to discern either an abuse of discretion or an error of
law.
6. Conclusion. So much of the supplemental judgment, as
corrected, as orders the husband to reimburse the wife the sum
of $32,000 for the temporary alimony paid by her is vacated. In
all other respects, the supplemental judgment, as well as the
orders contained in the so-called bifurcated judgment, are
affirmed.
The husband's request for sanctions for frivolous arguments
is denied.
So ordered.