Zhao Rong v. Baogang Qian. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-214
ZHAO RONG1
vs.
BAOGANG QIAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The former wife, Zhao Rong, appeals a divorce judgment
awarding her sixty percent of the marital estate and twenty-five
dollars per week in child support, and awarding the former
husband, Baogang Qian, forty percent of the marital estate and
general term alimony of $127 per week. The wife challenges the
property division and the alimony award, claiming that the judge
(1) made erroneous findings about a certain asset, (2) failed to
consider the mandatory factors in the Alimony Reform Act (act),
see G. L. c. 208, § 53 (a), and (3) erred in finding she had the
ability to pay alimony and in determining the husband's needs
that he could not fulfill by working. We affirm.
1 Also known as Sophia Rong Zhao.
Background. After a two-day trial at which both parties
testified, the judge made detailed findings of fact under the
following headings: "Background;" "Length of the Marriage;"
"Age, Health, and Station of the Parties;" "Estate of the
Parties;" "Conduct and Contributions of the Parties;"
"Vocational Skills, Occupation, Employability, and Amount and
Sources of Income;" "Liabilities and Needs of the Parties;"
"Opportunity of the Parties for Future Acquisition of Capital
Assets and Income;" "Amount and Duration of Alimony;" "Present
and Future Needs of the Dependent Children;" "Child Support;"
and "Lost Economic Opportunity as a Result of the Marriage." We
summarize the judge's findings.
The parties, both scientists in their fifties, had been
married since 1990 when the wife filed for divorce in 2018. At
the time of trial, their child was a junior in college, lived
with the wife when not in school, and was dependent on the
parties for support, which only the wife provided. Other than
two years from 2007 to 2009 when the wife was bedridden, the
wife provided primary support and caretaking for the child and
household, and solely did so after May 2015, when the wife
brought an action under G. L. c. 209A and the husband left the
marital home.2
2 Since neither party testified to violence that occurred or
when, the judge found that whatever actions prompted the G. L.
2
The parties enjoyed a middle-class lifestyle during the
marriage and owned two properties, a marital home in West
Roxbury and an investment property in Dorchester. The judge did
not credit the wife's testimony that she alone provided the down
payments for these properties or about expenses she incurred in
connection with the Dorchester property, which, the judge found,
only the wife maintained (both parties maintained the marital
home). While the wife was employed and earned $55,016 per year
plus rental income from the Dorchester property and was "able to
support herself . . . as she ha[d] during the marriage," the
husband had been unemployed for many years because of medical
issues and was "unable to support himself in the marital
lifestyle." Weighing the evidence of the husband's health and
employment prospects, including the wife's assertion that the
husband was "good for nothing and not sick but a faker and is
essentially just lazy," the judge found the husband not fully
disabled and capable of working thirty hours per week, earning
fifteen dollars per hour. For alimony purposes, he attributed
weekly income of $450 to the husband.
The judge decided to award general term alimony of $127 per
week after finding that was the amount the husband required to
meet his needs and which the wife was able to pay. In assessing
c. 209A action did not rise to the level of abuse provided for
in G. L. c. 208, § 31A.
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the wife's ability to pay, the judge did not credit her claims
of several thousand dollars of debt and found some of her listed
expenses "overstated." Using the husband's weekly alimony
payment from the wife as the husband's income, the judge
calculated the presumptive child support payment under the Child
Support Guidelines and awarded the wife that amount. Turning to
property division, the judge was "persuaded that an unequal
division of the marital estate [wa]s equitable" by evidence of
the parties' "greatly unequal contributions . . . over the last
several years" and the fact that, "[i]f not for the super
contribution of Wife, the marital estate would be exponentially
smaller." Reasoning that the "[h]usband made substantial
financial contributions to support the household and the child
from the time of marriage until May 2015" but currently had no
income and "quite limited" future ability to acquire assets,
however, the judge decided "that a roughly 60/40 division [wa]s
appropriate."
The same day that judgment entered, the wife, then acting
pro se, (1) noticed an appeal and (2) filed a motion to vacate
the asset division and alimony provisions. As there has been no
ruling on the motion to vacate, the wife's appeal of the
judgment is technically premature. Mass. R. A. P. 4 (a) (2) (C)
and (a) (3), as appearing in 481 Mass. 1606 (2019). The husband
did not raise a jurisdictional issue, however, and asserted at
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oral argument that the motion to vacate was waived. He asked us
to affirm on the merits. Now represented by an attorney, the
wife said she was pressing this appeal instead of the motion to
vacate. Since the pendency of that motion appears to be "more
formal than real," Anthony v. Anthony, 21 Mass. App. Ct. 299,
303 n.4 (1985), we will exercise our discretion and decide the
appeal. Creatini v. McHugh, 99 Mass. App. Ct. 126, 128 (2021).
See Swampscott Educ. Ass'n v. Swampscott, 391 Mass. 864, 865-866
(1984) ("a decision on the merits should not be avoided on the
technicality that a premature notice of appeal was or may have
been filed, where no other party has been prejudiced by that
fact").
Discussion. 1. Equitable division. We review the
property division first to determine whether the judge
considered all the relevant factors under G. L. c. 208, § 34,
and no irrelevant factors, and second to determine whether the
judgment was "plainly wrong and excessive" (citation omitted).
Connor v. Benedict, 481 Mass. 567, 578 (2019). The § 34 factors
include the length of the marriage; the parties' conduct during
the marriage, ages, health, stations, occupations, amounts and
sources of income, vocational skills, employability, estates,
liabilities, needs, opportunity for future acquisition of
capital assets and income, and contributions in the acquisition,
preservation or appreciation in value of estates and as a
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homemaker to the family unit; the amount and duration of alimony
awarded, if any; and the needs of dependent children.
The judge here considered all these factors and analyzed
their application to the facts he found. The wife has not
identified any irrelevant factors he relied on, and we see none.
The wife only claims that the judge "failed to recognize the
disparity far greater than 60/40 in [the] parties' respective
contributions to the" Dorchester property, but that is not true.
The judge awarded that asset to the wife in recognition of her
"greatly unequal contributions." His decision to award the
husband some equity was not tied to efforts by the husband in
relation to that particular asset, but to the judge's
consideration of the § 34 factors and overall conclusion that it
was "equitable for Husband to receive a significant amount of
marital assets despite his shortcomings over the last several
years." We have carefully reviewed the record, and "[w]e cannot
say that, having considered the appropriate factors, the judge
was 'plainly wrong and excessive' in his distribution." Connor,
481 Mass. at 579.
2. Alimony. "In fashioning an alimony award, '[a] judge
must consider and weigh all the relevant factors'" (citation
omitted). Cavanagh v. Cavanagh, 490 Mass. 398, 407 (2022).3
3 In Cavanagh, 490 Mass. at 410-411, the Supreme Judicial Court
established a three-step methodology in which judges must engage
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Those factors are "the length of the marriage; age of the
parties; health of the parties; income, employment and
employability of both parties, including employability through
reasonable diligence and additional training, if necessary;
economic and non-economic contribution of both parties to the
marriage; marital lifestyle; ability of each party to maintain
the marital lifestyle; lost economic opportunity as a result of
the marriage; and such other factors as the court considers
relevant and material." G. L. c. 208, § 53 (a). "'[I]t is
important that the record indicate clearly that the judge
considered all the mandatory statutory factors,' and that the
reason for [his] conclusion is apparent in [his] findings"
(citation omitted). Cavanagh, supra at 408.
The wife claims that the judge failed to consider these
factors because he only cited to them once, in a conclusion of
law wherein he simply quoted § 53 (a). As reflected in the
headings for the findings and rationale, however and as the wife
"before" deciding whether to award alimony under the act in
cases where there will also be a child support order. The judge
here did not engage in that methodology, as Cavanagh was decided
after trial and after the wife filed her appellate brief. The
husband's brief contains no reference to Cavanagh and neither
party cited it at oral argument. As a result, any "Cavanagh"
argument is thus waived. Although that case was remanded for
the judge to go through the new methodology, we decline to do so
here, where no party has raised the issue and, unlike in
Cavanagh, supra at 404, this judge did consider the act's
mandatory factors and indeed calculated the alimony award before
turning to the child support calculation.
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conceded at oral argument, the judge considered the relevant
factors and no "irrelevant" ones. Zaleski v. Zaleski, 469 Mass.
230, 236 (2014). Reading the decision as a whole, we are
persuaded that the alimony award "flow[s] rationally from the
judge's findings." Hassey v. Hassey, 85 Mass. App. Ct. 518, 526
(2014). In view of the judge's superior position to observe the
witnesses and weigh the evidence of the husband's disability and
wife's expenses, we cannot say that his "careful balancing of
the parties' financial circumstances," Calvin C. v. Amelia A.,
99 Mass. App. Ct. 714, 720 (2021), and conclusion that the
husband needed alimony the wife was able to pay, was an abuse of
discretion. Cavanagh, 490 Mass. at 405. See Murphy v. Murphy,
82 Mass. App. Ct. 186, 193 (2012).
Judgment affirmed.
By the Court (Neyman,
Desmond & Smyth, JJ.4),
Clerk
Entered: April 18, 2023.
4 The panelists are listed in order of seniority.
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