Obara v. Ghoreishi

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22-P-1032 Appeals Court
KAYOKO OBARA vs. JAVAD GHOREISHI.
No. 22-P-1032.
Norfolk. September 18, 2023. – November 16, 2023.
Present: Milkey, Blake, & Sacks, JJ.
Divorce and Separation, Amendment of judgment, Division of
property, Modification of judgment.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on March 23, 2011.
Following review by this court, 89 Mass. App. Ct. 1110(2016), the case was heard by Paul M. Cronan, J.
James A. Reidy for the wife.
Javad Ghoreishi, pro se.
BLAKE, J. The wife, Kayoko Obara, and the husband, Javad
Ghoreishi, both dentists, were divorced in 2013, after
approximately twenty years of marriage. As relevant here, the
judge who presided over the 2013 trial (trial judge) divided
five pieces of real property between the parties, assigning two
to the wife, two to the husband, and one to the parties jointly.
2
The husband appealed, principally claiming that the trial judge
erred in awarding the parties' joint dental practice, including
the office condominium units (office space), to the wife. The
office space had been renovated to accommodate the husband as he
uses a wheelchair due to multiple sclerosis. In an unpublished
memorandum and order issued pursuant to our former Rule 1:28, a
panel of this court vacated, in pertinent part, so much of the
2013 judgment that ordered the division of the real property,
and remanded the case for further proceedings. See Obara v.
Ghoreisha,1 89 Mass. App. Ct. 1110 (2016). Following a trial
after remand in 2020, a different judge (remand judge) issued a
judgment that redistributed the real property between the
parties, assigning two properties to the wife and two properties
to the husband (including the office space), while effectively
allowing the husband to retain one hundred percent of the
proceeds from a fifth property sold in 2018 (2020 judgment). In
redistributing the marital estate, the remand judge used the
2013 property values despite evidence that the values had
1 There is no doubt that the husband's surname is
"Ghoreishi," but the panel in the first case used an alternate
spelling, noting that "we have docketed the appeal under the
title given to the action in the Probate and Family Court." See
Obara, 89 Mass. App. Ct. at 1110. Based on the materials before
us in this appeal, it appears that the spelling has been
corrected in the probate court.
3
increased significantly since 2013. See Johnson v. Johnson, 53
Mass. App. Ct. 416, 421-422 (2001) (requiring remand judge to
consider postdivorce appreciation of property and extent to
which appreciation attributable to one party or some other
cause).
On appeal, the wife principally contends that the remand
judge erred in using 2013 values for the real property,
resulting in a disproportionate division favoring the husband
inconsistent with the judge's stated intention to make an
"approximately equal division of the marital estate." We
conclude that the remand judge failed to adequately explain his
rationale for rejecting uncontroverted evidence of the
postdivorce property values, and we therefore vacate that
portion of the 2020 judgment pertaining to the division of real
property. We remand for further proceedings to allow the remand
judge to (1) explain his rationale, and amend his findings,
where appropriate, regarding property values; (2) make
supplemental findings pursuant to Johnson, 53 Mass. App. Ct. at
421-422, where necessary; and (3) reallocate the real property
distribution, if necessary, to achieve an equal division
consistent with the judge's findings as amended and supplemented
on remand.
Background. Because the issue on appeal involves five
pieces of real property and their values, we set them out in
4
some detail. The parties presented stipulated values for all
five properties at the 2013 trial. The trial judge divided the
five properties (all of which are in Brookline) so that the wife
received 52.66 percent and the husband received 47.34 percent of
the total 2013 stipulated value of these assets. The trial
judge found this disparate division to be equitable. The wife
was awarded her residence (wife's residence), with an equity
value of $357,923, and the office space, with a value of
$660,000. The husband was awarded the former marital residence
(husband's residence), with a value of $525,000, and a
condominium unit (Unit 406), with a value of $390,000. The
parties also owned a condominium unit, an income-producing
property (rental property), that the trial judge ordered them to
retain to be used to fund their daughter's college education.
The 2013 judgment provided that after a date certain, the rental
property would be sold with the net proceeds shared equally
between the parties.
In January 2020, the remand judge conducted a two-day trial
(remand trial). The parties submitted evidence in the form of
sworn financial statements pursuant to Supplemental Probate and
Family Court Rule 401 (2012) and testimony that reflected that
all five properties had increased in value since the 2013
divorce. The evidence of increased values for three of the five
5
properties was uncontroverted.2 For the office space, the
parties agreed that the value had increased, although the
husband believed the increase was more significant than did the
wife.3 Finally, with respect to Unit 406, the husband testified
that it sold in 2018 for $719,000.4
Soon after the trial concluded, the remand judge issued the
2020 judgment and findings of fact and rationale that were dated
August 12, 2020, but not docketed until April 15, 2021. The
2020 judgment allowed the parties to retain their respective
residences, assigned to the husband the office space and Unit
406 (the latter having been sold two years earlier), and
assigned to the wife the rental property. Unlike the trial
judge, the remand judge found that an equal division of the real
property was appropriate and ordered the husband to make a cash
payment to the wife in order to effectuate that division.5
2 The equity value of the wife's residence was $626,190, the
value of the husband's residence was $900,000, and the value of
the rental property was $539,000.
3 The husband reported the value on his financial statement
as $1,035,400, and the wife reported the value as $985,600.
4 The husband apparently retained the proceeds, although
they were not reported on his financial statement filed during
the remand proceedings. The remand judge declined to credit the
husband's testimony that he did not know what happened to the
proceeds.
5 The remand judge did not award attorney's fees to either
party. That portion of the judgment is not at issue in this
appeal.
6
However, instead of using the 2020 property values, the remand
judge used the 2013 property values, concluding in a footnote
that there was a "lack of credible evidence . . . regarding the
properties' current values." Accordingly, while the wife was
awarded fifty percent of the total 2013 property values, she
received only approximately forty-three percent of what the
evidence at the remand trial suggested were the total 2020
property values (or approximately $527,333 less than the
husband).
Discussion. Valuing the marital estate as of the date of
division of the assets is appropriate in cases where the
parties' contributions to the marital enterprise continue up
until the date of division. See, e.g., Wheeler v. Wheeler, 41
Mass. App. Ct. 743, 745 (1996) (continuing to care for minor
child during separation was wife's "contribution[] to the
marital partnership" entitling her to share in assets acquired
by husband during separation but prior to division). Where,
however, the parties' contributions to the marital partnership
ended before the date of division, the judge may use an earlier
valuation date. See Savides v. Savides, 400 Mass. 250, 252–253
(1987) (assets valued as of date of separation, several years
before divorce; wife not entitled to share in postseparation
appreciation of assets where she made no contribution to marital
7
partnership after separation and appreciation was due solely to
husband's efforts).
The same principles apply when the marital estate is
divided in a postdivorce proceeding. If the postdivorce
appreciation is attributable to one party's sole efforts, the
appreciation is not divided between the parties (effectively
valuing the property as of the date of the divorce); if,
however, the postdivorce appreciation is not attributable to the
postdivorce efforts of one spouse alone, the appreciation is
divided between the parties (effectively valuing the property as
of the date of division). See Johnson, 53 Mass. App. Ct. at
421. "Where property division takes place . . . after the
divorce, the property is valued at the time of the [postdivorce]
proceeding, but [G. L. c. 208,] § 34[,] factors are assessed as
of the time of divorce." Heins v. Ledis, 422 Mass. 477, 483 n.3
(1996). If a property's value has increased between the time of
the divorce and the division, and the property's "postdivorce
appreciation is not fairly attributable to one spouse alone,
[the] correct procedure is to value the divisible property as of
the date of the order of division and apportion [the]
postdivorce appreciation in the value of the property between
the parties." Child v. Child, 58 Mass. App. Ct. 76, 79-80
(2003), citing Pare v. Pare, 409 Mass. 292, 296 n.4 (1991).
Accord Heins, supra at 483, citing Pare, supra at 297 (any
8
postdivorce "increased value of real estate resulting from
market conditions should be divided between both parties");
Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985) ("Where
the division of property under § 34 takes place . . . after the
divorce, the property subject to division is to be valued as of
the date of the order for division. . . . Thus, the parties
equitably share in any appreciation or depreciation in the value
of the property").
Similarly, where, as here, the property division was
vacated and remanded for a new trial, "[t]his resulted in the
case standing as if no judgment had been entered with respect to
the [property] division." Johnson, 53 Mass. App. Ct. at 420.
Accordingly, the remand judge "was charged with dividing the
property anew, applying the [G. L. c. 208,] § 34[,] factors as
of the date of divorce." Johnson, supra at 421. The remand
judge "then was required to consider whether there had been any
appreciation or depreciation with respect to the property, and
if so, the extent to which such appreciation was attributable to
one or the other of the parties or to some independent cause."
Id. at 421-422. "[I]f the postdivorce increase . . . is
attributable only to the postdivorce efforts of one spouse," the
remand judge should treat the "postdivorce increase . . . in the
value of the property . . . as an after-acquired asset, not
subject to division." Id. at 421. However, "[w]here
9
postdivorce appreciation . . . is not attributable to the
postdivorce efforts of one spouse alone after the divorce," the
appreciation should be treated as part of the marital estate and
divided accordingly. Id.
Despite the largely uncontroverted evidence presented by
the parties of significant postdivorce appreciation for all five
properties, the remand judge ultimately valued the properties as
of the 2013 divorce. He found, without explanation, that there
was no credible evidence of any postdivorce appreciation despite
the agreement of the parties to the value of at least three
properties, and thus failed to perform the second step of the
Johnson analysis, i.e., determining the extent to which the
postdivorce appreciation was attributable to one party's
efforts, to both parties' efforts, or to some independent cause.
See Johnson, 53 Mass. App. Ct. at 421-422.
The remand judge was "plainly wrong" in finding no credible
evidence of postdivorce appreciation for the sale of Unit 406
for $719,000, given that he apparently credited the husband's
testimony that the property had been sold for that amount, yet
he offered no explanation as to why he rejected it as credible,
direct evidence of a bona fide sale establishing the property's
most recent fair market value (citation omitted). Zaleski v.
Zaleski, 469 Mass. 230, 237 (2014). See Tigar v. Mystic River
Bridge Auth., 329 Mass. 514, 517 (1952) ("Fair market value
10
'means the highest price which a hypothetical willing buyer
would pay to a hypothetical willing seller in an assumed free
and open market'" [citation omitted]). We see no basis in the
record for the judge's decision to reject this uncontroverted,
direct evidence of the property's postdivorce value.
Accordingly, the judge's valuation of Unit 406 as of 2013,
rather than as of the 2018 sale, was clearly erroneous. See
Martin v. Martin, 70 Mass. App. Ct. 547, 549 (2007) (finding is
"clearly erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed"
[quotation and citation omitted]).
The 2018 sale price of Unit 406 reflects a postdivorce
appreciation of $329,000, one hundred percent of which the
husband retained as a result of the 2020 judgment. The remand
judge, however, made no findings indicating that this
appreciation was attributable solely to the husband's efforts,
nor is there any uncontroverted evidence in the record
compelling such a conclusion. In the absence of such findings,
it was error to allow the husband to retain the entirety of the
postdivorce appreciation of Unit 406. See Johnson, 53 Mass.
App. Ct. at 421. Accordingly, on remand, the judge must make
findings as required by Johnson, supra, addressing whether the
postdivorce appreciation of Unit 406 in the amount of $329,000
11
was attributable to one party's sole efforts, to both parties'
efforts, or to some other cause (such as passive appreciation
attributable to market conditions), and divide such appreciation
accordingly.
As to the other four properties, both parties submitted
evidence of 2020 property values, reflecting a total increase of
more than $1.5 million since 2013.6 This was competent evidence
on which the remand judge could rely. See Williams v. Massa,
431 Mass. 619, 629-630 (2000). Where it was undisputed that all
four properties had appreciated considerably since 2013, and the
remand judge's reasons for rejecting this undisputed evidence
are not readily apparent, he should have explained his rationale
for declining to credit the 2020 values submitted by the
parties. Cf. Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct.
525, 532 (2016) (remanding to allow judge to "explain his
rationale, or make an alternate disposition," where basis for
judge's decision was unclear). Accordingly, on remand, the
judge should explain his rationale for rejecting the
uncontroverted evidence of 2020 property values. The remand
6 The value of the wife's residence increased by $268,267
(from $357,923 to $626,190); the value of the husband's
residence increased by $375,000 (from $525,000 to $900,000); the
value of the office space increased by approximately $325,600
(from $660,000 to at least $985,600); the value of the rental
property increased by $234,000 (from $305,000 to $539,000); and
the value of Unit 406 increased by $329,000 (from $390,000 to
$719,000).
12
judge may, in the alternative, amend his findings to use 2020
property values where warranted by the evidence. To the extent
that his findings on remand reflect postdivorce appreciation for
any or all of the four properties, the remand judge should
(a) make findings addressing whether such postdivorce
appreciation is attributable to one party's efforts, both
parties' efforts, or to some other cause (such as passive
appreciation); and (b) divide such postdivorce appreciation
accordingly. See Johnson, 53 Mass. App. Ct. at 421-422.
Insofar as the remand judge also cited "the length of time
that has passed between the divorce trial and the remand trial"
as a consideration for valuing the properties as of 2013 (the
date of divorce) instead of 2020 (the date of division), the
passage of time alone is an insufficient basis for selecting an
earlier valuation date. The date for valuing marital assets is
typically the date of division -- regardless of whether the
division occurs at the time of the divorce, or in a postdivorce
proceeding. See Child, 58 Mass. App. Ct. at 79. While a judge
has discretion to choose a valuation date that precedes the date
of division in certain circumstances, see, e.g., Savides, 400
Mass. at 252–253; Daugherty v. Daugherty, 50 Mass. App. Ct. 738,
741–742 (2001), the valuation date is generally tied to the date
on which the parties ceased their joint efforts in contributing
to the marital enterprise. See Child, supra at 79-80, and cases
13
cited. In other words, the valuation date must bear some
relationship to the end of the marital partnership. See id.
Here, because the remand judge rejected all evidence of
postdivorce appreciation without explanation, he did not make
findings addressing whether any postdivorce appreciation of the
properties was passive or due to the efforts of one or both
parties. This inquiry not only involves consideration of a
party's postdivorce "contributions to the upkeep and improvement
of the property,"7 but also consideration of other relevant
contributions, such as a party's care and support of a dependent
child,8 in determining whether postdivorce appreciation is
attributable to one or both parties. Johnson, 53 Mass. App. Ct.
at 422-423. See Pare, 409 Mass. at 297, quoting Putnam v.
Putnam, 5 Mass. App. Ct. 10, 17 (1977) ("By focusing on the
narrow issue of which spouse paid more toward the house, the
judge overlooked the principle that '[t]he concept of property
7 As an example, the remand judge could have –- but did not
-- consider what the parties paid in taxes, condominium fees,
and upkeep of the properties following the 2013 judgment. The
evidence reflects that between 2013 and 2020, the wife was
responsible for managing three of the four properties divided in
the remand judgment. In October 2013, the wife took over
management of the rental property. The wife also appeared to be
responsible for maintaining the office space, as it was
originally assigned to her in the 2013 judgment, along with her
residence.
8 Here, the wife was granted primary physical custody of the
parties' child, who was seventeen at the time of the 2013
judgment.
14
assignment . . . must be read to apply in a broad sense to the
value of all contributions of the respective spouses towards the
marital enterprise'"). In the absence of evidence about the
parties' contributions to the postdivorce appreciation of the
marital estate property, "the correct procedure is to value the
divisible property as of the date of the order of division," --
here, 2020 -- "and apportion postdivorce appreciation in the
value of the property between the parties." Child, 58 Mass.
App. Ct. at 79-80. Similarly, if the appreciation in the value
of the real property was due solely to market forces, that
increase is divisible between the parties. See Pare, supra at
297-298; Johnson, supra at 421.
By valuing the marital estate as of the 2013 judgment,
rather than the 2020 division, the 2020 judgment has the
unintended consequence of disparately dividing the assets,
despite the remand judge's stated goal of dividing the property
equally. Because the remand judge's conclusions are not
apparent and do not flow rationally from his findings, we are
constrained to remand the case for further proceedings
consistent with this opinion.9 See Bowring v. Reid, 399 Mass.
265, 267-268 (1987).
9 The judge need not take additional evidence, but may do so
in his discretion.
15
Conclusion.10 So much of the 2020 judgment as divides the
real property and requires the husband to make a cash payment to
the wife is vacated, and the case is remanded for further
proceedings consistent with this opinion. In all other
respects, the 2020 judgment is affirmed.
So ordered.
10 We briefly address the wife's claim that the remand
judge, in awarding the office space to the husband, erred by
failing to consider its effect on the wife's employment and
ability to earn future income. She contends that she lost her
sole source of income when the husband was awarded the office
space. This claim was not raised in the Probate and Family
Court, and therefore it is waived. See Trapp v. Roden, 473
Mass. 210, 220 n.12 (2015). We do note, however, that
consistent with the parties' financial statements and trial
testimony, the remand judge made findings, pursuant to G. L.
c. 208, § 34, as to the parties' needs, other assets, income,
expenses, and liabilities, as well as their abilities to acquire
future assets and income, none of which are clearly erroneous.
See Martin, 70 Mass. App. Ct. at 549.