Brad S. Richard v. Tricia A. Richard. ( 2024 )

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
23-P-919
BRAD S. RICHARD
vs.
TRICIA A. RICHARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The wife appeals from a judgment of divorce nisi and from
orders denying her postjudgment motions to amend the judge's
findings. She argues that the judge abused her discretion by
(1) failing to consider the husband's past substance use in
determining the parties' respective ability to parent their two
minor children, and (2) failing to include in the marital estate
the value of the home that the parties occupied, assertedly
under a rent-to-own agreement. Seeing no abuse of discretion,
we affirm.
1. Child custody. a. Background. As the judge found
after trial, the parties were married in 2008 and have two minor
children. During the early years of their marriage, both
parties used cocaine, alcohol, and marijuana excessively. The
husband stopped using these substances to excess after two years
of marriage, although he continued to use marijuana and alcohol
regularly, and has no history of substance use treatment or
hospitalization. The wife, however, continued to use alcohol
excessively and has been hospitalized for alcohol use treatment
and related health issues. Her alcohol use jeopardized the
children's safety and wellbeing and ultimately led to the
breakdown of the marriage. During the pendency of this case,
she denied being an alcoholic and lied to the court about her
ongoing alcohol use.
Earlier in the marriage, the wife was the primary caregiver
of the two children. However, her alcohol use eventually
interfered significantly with her ability to fill that role, and
by the time of trial, the husband had been the primary caregiver
for several years, meeting the children's academic, social, and
emotional needs. The husband facilitated the children's visits
with the wife, when she was sufficiently sober for visits to be
safe. Based on the wife's continuing problems with alcohol use,
the judge found that it was in the children's best interests to
remain in the primary care of the husband. The judge awarded
legal custody to the parties jointly and physical custody to the
husband, with a detailed plan for parenting time for the wife,
subject to alcohol monitoring.
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b. Discussion. The wife requests no specific relief
regarding custody. Her brief requests a new trial on the issue,
yet she did not file any motion for a new trial before taking
this appeal, nor does she identify any particular error
occurring at trial that would make a new trial appropriate.1
Rather, she appears to argue that the judge abused her
discretion by giving insufficient consideration to certain
factors bearing on custody. We are unpersuaded.
The wife first argues that the judge failed to connect the
wife's problems with alcohol use to her ability to parent. Yet
the judge's findings describe instances in which the wife's
intoxication impaired her ability to supervise her children and
keep them safe. She passed out from alcohol use while the
children were in her care, and on another occasion one of the
children glued his eyes together while the wife was under the
influence.
The wife also asserts that the judge failed to assess
whether the husband was addressing his own alcohol addiction and
how it affected his husband's parenting ability. This claim is
1 The wife also filed a postjudgment motion to amend two
findings of fact concerning her alcohol use and other health
issues. The judge denied the motion, and the wife appealed from
that order, but her brief makes no argument concerning the
order. The issue is therefore waived, and we do not discuss it
further.
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unavailing. The judge found that the husband, although
continuing to use alcohol and marijuana, did not have any
current problems with substance use or addiction, and that he
was meeting the needs of the children as their primary
caretaker.
A judge "must settle custody in a manner that advances the
best interests of the children." Bak v. Bak, 24 Mass. App. Ct.
608, 616 (1987). Reviewing the custody determination "only for
abuse of discretion," we see none here. See Murphy v. Murphy,
82 Mass. App. Ct. 186, 193 (2012).
2. Ownership of marital home. a. Background. During the
marriage, the parties lived in a home owned by the husband's
mother. In her April 2022 pretrial memorandum, the wife
asserted that the mother had purchased the property specifically
for the parties' use and their eventual acquisition through a
rent-to-own agreement, but that the property had never been
conveyed to them. The wife's memorandum listed the valuation
and division of the property as triable issues. She
acknowledged, however, that neither she nor the husband had
listed any interest in the property on their financial
statements.2 Her memorandum further stated that she "has or will
2 Our review of the issue is hampered by the wife's failure
to include the financial statements in her record appendix.
This violates the "fundamental and long-standing rule of
appellate civil practice" that the appellant has an obligation
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file an [e]quity [c]omplaint to address the constructive or
resulting trust created by this transaction and breach." The
judge declined to include the matter in the list of contested
issues for trial.
In June 2022, the wife filed a separate action against the
mother in District Court, seeking to recover the value of her
asserted investment in the marital home, either through the
imposition of a constructive or resulting trust or through an
award of damages. The wife later amended her complaint to name
the husband as an additional defendant, and the case was
transferred to Superior Court. We take judicial notice of these
filings. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court
may take judicial notice of court records in related case).
In November 2022, in the divorce action, the wife filed a
motion in limine to add to the list of issues for trial the
parties' interests in the property. The judge denied the
motion. As a result, the wife contends, she was unable to
introduce evidence to show that the property was part of the
marital estate.
"to include in the appendix those parts of the . . . [record
that] are essential for review of the issues raised on appeal."
Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371,
372-373 (1991), S.C., 411 Mass. 807 (1992).
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Nevertheless, at trial in February 2023, the wife elicited
some testimony on the issue from the husband. The judge, in
finding of fact number 56 (finding 56), credited that testimony
and concluded that the parties paid rent to the husband's
mother, and hoped and planned to purchase the property from her
one day, but never did so. The property was held in the name of
the husband's mother, and the judge concluded it was not a
marital asset. The remainder of the parties' assets were
divided according to their separation agreement, which was
incorporated in the judgment.
After judgment entered, the wife moved to amend the judge's
findings by deleting finding 56, or in the alternative for a new
trial. The wife argued that finding 56 was erroneous in that
there was not merely a hope and a plan to purchase the home, but
an agreement to so do. Although the motion stated that attached
thereto were numerous supporting exhibits, the wife's record
appendix omits several of those exhibits, including the mother's
deposition testimony, her interrogatory answers, a "notarized
agreement," and an affidavit from the husband. See note 2
supra. The judge denied the motion to amend the findings, and
the wife has appealed from that order.
b. Discussion. On appeal, the wife first argues that the
judged abused her discretion by excluding evidence of the
parties' rent-to-own interest in the marital home and by
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excluding the value of that interest from the divisible estate.
The wife contends that such evidence would have shown what was
the value of the parties' interest and that it was recoverable
through a claim against the mother. The wife asserts that the
value of the claim should have been included in the marital
estate and divided on an "if and when received" basis.
"A divorcing spouse's enforceable right to an asset
generally permits that asset to be included in the marital
estate." Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 111
(2016). Where a loss affects both spouses, the value of "an
enforceable, ripened, and pending claim for money damages"
brought by one spouse against a third party may be included in
the marital estate. Hanify v. Hanify, 403 Mass. 184, 188
(1988). Such a claim is a "chose in action" and, if its present
valuation is uncertain, a judge in a divorce case may "order
that any future recovery or payment be divided, if and when
received, according to a formula fixed in the property
assignment." Id.Here, however, unlike in Hanify, the wife did not seek her
share of potential future damages, or an interest in property,
that would otherwise accrue to the husband on a claim he alone
had asserted. Compare Hanify, 403 Mass. at 188-189. Here, it
is the wife herself who brought the claim, even while failing to
list it as marital property in her financial statement. To be
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sure, she named the husband as a defendant, but if her
allegations of a rent-to-own agreement are proven in the
Superior Court case, the husband presumably will share in the
recovery. A Superior Court judge is as capable as the judge in
this divorce case of determining, based on whatever evidence may
be presented at trial, whether and how any recovery should be
equitably divided.
Notably, the judge here did not determine what would be the
most equitable division of the parties' other property, or any
part of it. She had no occasion to do so, because the parties
themselves divided it all in their separation agreement. Thus
this is not a case where a judge could simply have ordered that
proceeds of the pending claim, "if and when received," be
divided in the same proportion as the rest of the estate.
Hanify, 403 Mass. at 189. Similarly, this is not a case where
any future division of the proceeds by a Superior Court judge
might upset some equitable division scheme already settled upon
by the divorce judge.
Tellingly, the wife here does not propose any formula for
dividing any proceeds of her pending claim. Nor does she point
to any principle of divorce law that might require a different
division of any recovery than contract or property law might
require. We do not intimate that any particular division, or
any division at all, would be required. That issue may depend
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on the resolution of factual issues that could not be settled in
binding fashion in this divorce action, because the mother -- a
party to the claimed rent-to-own agreement, and a defendant in
the Superior Court case -- is not a party here.
For all of the foregoing reasons, the judge did not abuse
her discretion in declining to include the parties' interest in
the home in the marital estate, thus leaving it to the Superior
Court to do so if and when necessary.
As for the wife's appeal from the order denying her motion
to amend the findings or for a new trial, the wife has not shown
that the finding in question was erroneous, and she has not
included in her record appendix the documents that she claims
bear on that question. It follows that she cannot show an abuse
of discretion in the denial of the motion. "We grant
considerable deference to a judge's disposition of a motion for
a new trial, especially where [she] was the trial judge, and we
will reverse the ruling only for an abuse of discretion." Gath
v. M/A-Com, Inc., 440 Mass. 482, 492 (2003).
We comment briefly on the wife's suggestion that leaving
finding 56 intact unfairly prejudices her by creating questions
of claim or issue preclusion in the Superior Court. On this
record, we are unpersuaded. Claim preclusion "bars further
litigation of all matters that were or should have been
adjudicated in the [earlier] action." Heacock v. Heacock, 402
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Mass. 21, 23 (1988). None of the wife's claims against the
mother in Superior Court were asserted here, nor does it appear
that they could have been asserted, because the mother was not a
party. Issue preclusion applies only where, among other things,
the issue "actually was litigated and determined in a prior
action between the parties or their privies." Id. at 25. Here,
finding 56 said nothing about the existence or content of the
asserted rent-to-own agreement, nor is it apparent that anything
stated in that finding would be inconsistent with any of the
wife's Superior Court claims.
Judgment affirmed.
Orders dated May 5, 2023,
denying defendant's
posttrial motions affirmed.
By the Court (Sacks,
Ditkoff & Toone, JJ.3),
Clerk
Entered: October 7, 2024.
3 The panelists are listed in order of seniority.
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