Anne M. Leone v. Edward T. Patten. ( 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-746
ANNE M. LEONE
vs.
EDWARD T. PATTEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the Superior Court, the former
husband, Edward T. Patten (husband), was found in breach of
contract for failing to make alimony payments to the former
wife, Anne M. Leone (wife), in accordance with their separation
agreement. In this appeal, the husband claims that the judge
erred in (1) rejecting his claim that the wife fraudulently
reported her income at the time of divorce and (2) failing to
provide the husband with an opportunity to be heard before
correcting a scrivener's error. 1 We affirm.
1. Background. This case involves a contentious divorce.
The husband and wife were married in 1988 and in 2005 a judgment
1 To the extent that we do not specifically address other points
made by the husband in his briefing, those points "have not been
overlooked. We find nothing in them that requires discussion."
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
of divorce nisi entered. The wife testified that, under the
separation agreement, 2 she was to receive from the husband
monthly alimony payments of $1,720. In 2016, the wife filed a
complaint in the Superior Court, alleging that the husband
breached the separation agreement by failing to make alimony
payments as of September 2014. The husband's defense was that
the contract was rendered void due to the wife's fraudulent
misrepresentation of her income to the Probate and Family Court
at the time of their divorce.
On October 26, 2021, a jury-waived trial was conducted, and
the husband and wife agreed to waive detailed findings of fact
and rulings of law. 3 See Rule 20(2)(h) of the Rules of the
Superior Court (2018). That rule also allows the parties to
submit special questions to the judge on the elements of each
claim equivalent to that of a jury verdict form. Both husband
and wife agreed to limit the scope of the trial to whether the
separation agreement was breached and whether the agreement was
rendered void due to fraud. The parties also agreed to the
special verdict slip.
2 The separation agreement, "incorporated but not merged" with
the divorce judgment (with the exception of provisions related
to child support), provided that it "shall survive [the divorce
judgment] and be thereafter forever binding" on the parties "as
a . . . contract."
3 The husband, a practicing attorney, represented himself at
trial.
2
The evidence at trial consisted of the testimony from one
witness, the wife, and two exhibits, the parties' 2005
separation agreement and certain short form financial statements
introduced by the wife.
On October 29, 2021, the judge determined that the husband
had breached the separation agreement by failing to pay alimony
and failed to prove that the wife had committed fraud in
reporting her income at the time of the divorce. The judge
awarded damages to the wife in the amount of the unpaid alimony
payments from September 2014 to the date of the verdict, as well
as prejudgment interest. On November 4, 2021, the judge ordered
the verdict slip be amended because "there was a scrivener's
error" regarding whether the husband breached the separation
agreement, and the judge signed an amended verdict slip to
reflect that the husband did breach the separation agreement. 4
2. Discussion. Where, as here, the parties agreed to
waive detailed findings of fact under Superior Court
rule 20(2)(h), "appellate review of the court's decision and of
the judgment entered shall be according to the standard of
review that would apply to a verdict by a jury in a case tried
to a jury and to the judgment entered thereon." Rule 20(8)(b) of
4 The original verdict slip was in error in that question 1,
asking if the husband had breached the separation agreement, was
checked off "no."
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the Rules of the Superior Court. In other words, the verdict, and
the judgment entered thereon, will be upheld so long as
"anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be drawn in favor of the" prevailing
party. Rabassa v. Cerasuolo, 97 Mass. App. Ct. 809, 814 (2020)
(quotation omitted).
Based upon a review of the evidence at trial, we conclude
that the judge's findings -- that the husband breached the
separation agreement when he stopped paying alimony to the wife
and that the wife did not make fraudulent misrepresentations at
the time the parties entered into the separation
agreement -- are supported by sufficient evidence. The judge
was permitted to credit the wife's testimony, who attested to
the fact that the husband stopped paying alimony in September of
2014. Throughout the trial, the husband never challenged the
wife's claims that he failed to pay alimony: his defense was
that his contractual obligation to pay alimony was void due to
fraud committed by the wife when reporting her income. 5
5 At the beginning of the trial, the judge made it clear that the
issue at trial was "whether or not [the wife] committed fraud
such that her actions would make the contract void." The
husband did not object to the judge's framing of the issue. The
judge clarified further, indicating that the other issues raised
by the husband already had been litigated in the Probate and
Family Court and affirmed on appeal. The husband agreed with
the judge that the issue at trial was the husband's allegations
4
As to the judge's finding that the husband failed to
establish fraud, we again discern no error in the judge's
evaluation of the wife's trial testimony. The wife testified
that her annual income (of between $30,000 to $38,000) as
reported to the Probate and Family Court at the time of the
divorce was accurate.
The husband argues that the wife's trial testimony was not
truthful because she claimed a monthly income of over $17,000 in
mortgage applications made soon after the divorce judgment
entered and that therefore she severely and fraudulently
underreported her income to the Probate and Family Court. At
trial, the husband failed to introduce the mortgage applications
into evidence and the only evidence at trial was from the wife,
who admitted that while she signed the mortgage documents she
did not review them thoroughly because it "was all done by the
attorney and the mortgage initiator" and "they told me to sign."
The wife also specifically testified that her income as shown on
the mortgage documents was "not correct." The fact that a
mortgage application, a document wholly unrelated to the
separation agreement, reported a substantially higher income for
the wife does not establish fraud. The issue for the judge to
determine at trial was whether, at the time the parties entered
that the wife had engaged in fraud and misrepresentations of her
income and that that impacted the amount of alimony to be paid.
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into the separation agreement, the wife fraudulently reported
her income. Whether the wife fraudulently or mistakenly
reported her income in a mortgage application after her divorce
is not determinative as to whether the wife fraudulently
reported her income to the Probate and Family Court in the
divorce proceedings.
"[T]he judge, who has a 'firsthand view of the presentation
of evidence, is in the best position to judge the weight and
credibility of the evidence.'" Demoulas v. Demoulas Super Mkts.
Inc., 424 Mass. 501, 509-510 (1997), quoting New England Canteen
Serv. Inc. v. Ashley, 372 Mass. 671, 675 (1977). It was
entirely within the judge's role as a finder of fact to weigh
the credibility of the witness's testimony and to believe that
the wife's annual income was accurate when the divorce judgment
entered in 2005. It is the judge's role in a jury-waived trial
to make such credibility determinations. "Where there are two
permissible views of the evidence, [the judge's] choice between
them cannot be clearly erroneous." Demoulas, supra at 510
(quotation omitted).
Finally, the husband has failed to provide the court with
any legal authority supporting his contention that he was
entitled to a hearing regarding the scrivener's error in the
verdict slip. No hearing was required to correct a clerical
error. The judge who conducted the jury-waived trial and
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awarded the wife damages for the husband's breach was the same
judge who corrected the verdict slip and the record is clear,
without a hearing, that a clerical mistake occurred. The
husband's attempt to relitigate the issue of fraud by claiming
he has a right to be heard due to a scrivener's error is without
merit. The initial notation on the verdict slip indicating that
there was no breach of the separation agreement was simply a
clerical mistake, one properly corrected by the judge.
Judgment affirmed.
By the Court (Rubin, Neyman &
Walsh, JJ. 6),
Clerk
Entered: October 30, 2023.
6 The panelists are listed in order of seniority.
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