2008 Mass. App. Unpub. LEXIS 228 *
PATRICIA ANN CHERIN vs. JOHN CHERIN (NO. 2).
Notice: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 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 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 .
Subsequent History: Reported at Cherin v. Cherin, 72 Mass. App. Ct. 1110, 891 N.E.2d 270, 2008 Mass. App. LEXIS 823 (2008)
Prior History: Cherin v. Cherin, 72 Mass. App. Ct. 288, 891 N.E.2d 684, 2008 Mass. App. LEXIS 803 (2008)
parties, marriage, marital estates, alimony, marital assets, attorney’s fees, judge found, property division, notice of appeal, plainly, argues, marital home, equitable, invest, nisi, clearly erroneous, inheritance, transferred, lump sum payment, separate order, alimony award, no evidence, predistribution, contributions, retirement, contends, deCastro, factors, probate, spent
Judges: [*1] McHugh, Katzmann & Grainger, JJ. Opinion
Cherin v. Cherin
Appeals Court of Massachusetts July 30, 2008, Entered 07-P-522
The defendant, John Cherin (husband), appeals from a decision by a Probate and Family Court judge awarding the plaintiff, Patricia Ann Cherin (wife), alimony and approximately one-half of the marital estate pursuant to G. L. c. 208, § 34, and attorney’s fees pursuant to G. L. c. 208, § 38. We address here the husband’s contentions that the judgment with respect to alimony and property division was plainly wrong and excessive, and that attorney’s fees were improperly assessed. 1 We affirm.
Background. The parties were married for thirty-nine years. They married in 1967 in Massachusetts and originally lived in Boston. They adopted one child, named Chiara, in 1975, and had no other children. The husband, a certified public accountant, was employed over the years in various capacities at Arthur Andersen, then a major accounting firm. The wife worked from time to time as a school teacher but, for the most part, was a homemaker. In 1977, they moved to Miami, Florida, when Arthur Andersen transferred [*2] the husband to its office in that city. The wife returned to Massachusetts twice, in 1980 and again in 1984, to keep her teaching credentials current, for about one year each time. She brought Chiara with her, but the husband remained in Florida.
In 1985, the husband, then a full partner at Arthur Andersen, was transferred to Virginia, where the couple purchased a home and resided together until 1997. 2 In 1993, the couple had some marital difficulties and, in
1 In a published decision also issued this day, we address and reject the husband’s claim that personal jurisdiction was lacking. Cherin v. Cherin (No. 1), ante (2008).
2 Although the wife was responsible for finding the property that the parties ultimately purchased and was the primary [*3] contact for the builder, the wife did not learn until the day of closing that the husband took the title to the home solely in his name.
1995, both consulted divorce attorneys but later reconciled. In 1997, the husband, then aged fifty-six and earning about $ 1 million annually, accepted Arthur Andersen’s early retirement incentive that amounted to a buyout for his remaining years at the firm. The husband then began investing heavily in various real estate entities that, for the most part, purchased unbuilt luxury condominium contracts and ‘flipped’ them preconstruction at a profit. He also began investing in various other entities, including one that raised seed capital for entrepreneurs and another that intended to invest in real property in India.
In August, 1997, the wife moved to Massachusetts with Chiara, and obtained a job as a teacher. The husband remained in the marital home in Virginia. The wife rented an apartment, but found it difficult to pay the rent on her salary alone, so the husband paid a substantial portion of it. The lease was in both their names, and, after 2001, the husband took deductions on his tax returns for his part of the lease payments. Until 2003, though living separately, the parties filed joint tax returns, and they spent most holidays and various other occasions together in Massachusetts.
In general, the judge found the husband’s testimony about his post-Arthur Andersen investments and income not credible, and concluded that the marital estate, consisting of a considerable number of investments, the Virginia marital home, numerous bank and retirement accounts, and various personal property, was worth $ 8,329,330. On August 22, 2006, the judge issued a judgment nisi in which she awarded to the wife the estate’s more liquid assets after determining that the husband, [*4] due to his financial expertise, was better able to manage the illiquid assets. But this division did not equalize the dollar value of the marital estate, leaving the husband with $ 2,501,662 more than the wife. Accordingly, the judge ordered the husband to pay to the wife a $ 1,250,000 lump sum payment plus interest over a five-year period, to be paid by a $ 250,000 payment on June 1 of each year, commencing June 1, 2007. This resulted in a property division in which the wife was awarded $ 4,124,464 of the estate and the husband $ 4,212,183. The judge next ordered the husband to pay the wife alimony in decreasing amounts, starting at $ 4,500 per month in 2007 and decreasing annually to $ 1,100 per month by 2010, with each reduction coinciding with an installment of the lump sum payment. 3 Finally, in a separate order dated
3 The issue of alimony is left open for modification by the Probate Court, if necessary.
October 2, 2006, the judge ordered the husband to pay the wife an additional $ 85,000 in attorney’s fees, 4 reasoning that the husband’s lack of candor and various attempts to reduce the size of the marital estate by, for example, making numerous consideration-free transfers to third parties, and encumbering the marital home with a home equity line, which the judge [*5] treated as a predistribution draw down of his share of the marital estate, unreasonably increased the cost and complexity of this case, and that both parties should be relatively equal in terms of their ability to pay their attorneys out of the marital estate. On September 20, 2006, the husband filed a notice of appeal. 5
Discussion. 1. Alimony and property division. Before reaching the husband’s claims that the judgment with respect to alimony and property division should be reversed, we take note of the standard of review. General Laws c. 208, § 34, gives probate judges broad discretion to award alimony and divide the parties’ property equitably. Drapek v. Drapek, 399 Mass. 240, 243, 503 N.E.2d 946 (1987). However, that discretion is not unlimited. deCastro v. deCastro, 415 Mass. 787, 791, 616 N.E.2d 52 (1993). In reviewing a decision under § 34, a two-step analysis applies. First, the judge’s findings must indicate that she has considered all of the factors [*6] enumerated in § 34 6 and no other, irrelevant factors. Id. at 792. Findings will not be reversed unless they are ‘clearly erroneous,’ and due regard must be given to the trial judge’s role in evaluating the credibility of witnesses. Mass.R.Dom.Rel.P. 52(a) (2006). Second, her conclusions must follow from her findings and rulings, which must make clear the reasons for her conclusions.
4 This is on top of $ 165,000 already awarded to the wife out of the marital estate.
5 This notice of appeal precedes the judge’s order on the parties’ motions for counsel fees.
6 These factors are ‘the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.’ G. L. c. 208, § 34, as amended by St. 1990, c. 467. With regard to property division, ‘the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties [*7] in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.’ Ibid.
2008 Mass. App. Unpub. LEXIS 228, *3
deCastro v. deCastro, supra at 792. If both requirements are met, the judge’s conclusions are only subject to reversal if they are ‘plainly wrong and excessive.’ Ibid., quoting from Bowring v. Reid, 399 Mass. 265, 267, 503 N.E.2d 966 (1987).
Here, the judge’s findings demonstrate that she considered all of the relevant factors. Her findings of fact are explicitly organized according to each of the § 34 factors, with detailed findings underneath each heading. Nothing in the record indicates that she considered any irrelevant factors. She has provided a detailed rationale setting forth the reasoning for her conclusions. Therefore, we will not reverse her judgment in regard to alimony and property division unless it is ‘plainly wrong and excessive.’
Post-1997 marital assets. The judge valued the marital estate as of 2006, the time of the trial, in the amount of $ 8,329,330. She then divided it approximately equally between the parties. The husband argues that this was plainly wrong and excessive because, in his opinion, the wife made no contribution to the marital estate after the parties separated in 1997. He argues that the marital partnership effectively ended in 1997, when the wife moved back to Massachusetts, and that after that point, she made no contributions [*8]whatsoever to the marriage. He emphasizes the fact that all of the increases in value to the marital estate after 1997 are the result of his individual financial contributions, and that after the wife left Virginia, her contributions to the marriage, both financial and otherwise, ceased entirely. He contends that, therefore, it was inappropriate for the judge to award the wife approximately one-half of the marital assets as they existed on the date of the trial, and that the case should be remanded to determine the estate’s value as of 1997 and to determine what portion of it the wife should equitably receive.
We conclude that the judge’s decision was not plainly wrong and excessive. First, the judge was not clearly erroneous in finding that the marital partnership ended on June 30, 2005, and not September, 1997, as the husband contends. The fact that the husband and the wife were separated geographically, without more, does not establish that a marriage is irretrievably broken. Caffyn v. Caffyn, 441 Mass. 487, 496 n.20, 806 N.E.2d 415 (2004). Couples often take up separate residences for a variety of reasons and it would ‘defy common experience to conclude’ that a physical separation, by itself, indicates [*9]that a marriage has been irretrievably broken. Ibid. Although judges do sometimes use the date of physical separation as the relevant date for property division, they only do so when it is clear that the separation coincided with the effective end of the marriage. See Savides v. Savides, 400 Mass. 250, 251- 252, 508 N.E.2d 617 (1987) (parties moved in with paramours and ceased holding themselves out to the community as a married couple); Daugherty v. Daugherty, 50 Mass. App. Ct. 738, 741, 741 N.E.2d 92 (2001) (separation date was also effective date of dissolution of marriage).
In contrast, the marriage at issue here did not effectively end upon the separation of the parties. The judge found that between 1997 and 2005, ‘the marriage remained ongoing, if subdued.’ The husband, through his words and conduct, led the wife to believe that he wanted to remain married and would soon be joining her in Massachusetts for their retirement. The two corresponded regularly, and the husband regularly sent the wife cards for her birthday and their anniversary, some of which were romantic and nostalgic in nature. 7 The husband regularly visited the wife in Massachusetts for holidays, birthdays, and special events such as Chiara’s [*10] wedding and the birth of her first child. At Chiara’s wedding, the parties presented themselves to the guests as husband and wife. On his joint tax returns between 1997 and 2003, the husband listed the wife as his spouse. Additionally, the husband repeatedly encouraged and to some extent participated in the wife’s search for a retirement home for the two of them to eventually share in Massachusetts. The husband so successfully created the illusion of a functioning marriage that even the wife was fooled.
In short, although the husband may have considered the marriage to be over in 1997, he continually held out hope to the wife that they would resume residence together until June 30, 2005, when he sent her an e- mail threatening to charge her with trespass if she tried
[*11]to move back into the Virginia marital home. Therefore, the judge concluded that although the marriage may have been ‘dysfunctional,’ it was not irretrievably broken until June 30, 2005. These findings are not clearly erroneous, and the judge therefore did not err by ‘adhering to the usual practice of valuing the
7 For example, on February 12, 2001, the anniversary of the date on which the husband gave the wife a ring when they began dating, the wife sent the husband an e-mail stating ‘happy anniversary . . . 34 years and still wearing a ring.’ The husband responded, ‘[a]nd the same to you Boo-Boo [a pet name he used for the wife].’ The judge did not credit the husband’s testimony that he sent her these communications out of ‘sarcasm’.
2008 Mass. App. Unpub. LEXIS 228, *7
assets of the parties at the time of the hearing.’ Moriarty v. Stone, 41 Mass. App. Ct. 151, 155, 668 N.E.2d 1338 (1996).
The husband argues in the alternative that regardless of when the marriage irretrievably broke down, the wife made no contributions to it after 1997 8 and should therefore not be entitled to one-half of the estate’s value. This contention is not persuasive. The judge found that the assets acquired by the husband during his time at Arthur Andersen prior to 1997 enabled the current marital estate to be acquired. The judge found that a partnership existed between the husband and the wife during that time, where he was the primary breadwinner and she was the primary homemaker. Since she was an equal partner to the marriage between 1967 and 1997, deCastro, supra at 794 (wife’s homemaking efforts, though not quantifiable, constituted an equal contribution to the marriage), and [*12] since the assets acquired during that time enabled the acquisition of the estate between 1997 and 2006, the judge concluded that the wife was entitled to an equitable distribution of the estate as it existed at the date of the trial. These findings were not clearly erroneous. Based on the foregoing, we conclude that the judge’s decision to value the estate as of 2006 was not plainly wrong and excessive.
The wife’s inheritance. On May 12, 2006, prior to the last day of the trial, the wife’s father died. In his will he left the wife an inheritance that the judge estimated to be worth $ 560,000. 9 The husband argues that the judge erred by declining to include this inheritance as a marital asset [*13] and divide it equally between the parties. We disagree.
The judge found that it was equitable to allow the wife’s father’s estate to pass in accordance with his last will and testament rather than allocate it as a marital asset. She found that the parties did not rely upon the wife’s
8 Although the judge did not explicitly conclude that the wife contributed to the marriage after 1997, the judge’s findings may support such a conclusion regardless. While living in Massachusetts, the wife allowed Chiara, Chiara’s husband, and their two children to live in her apartment for a period of time without paying, hosted all the family functions when the husband came to visit, and did most of the work in searching for a retirement home that she believed the parties would eventually share.
9 The judge found that because the wife’s father’s estate reported a large number of unknown expenses, its exact value would be unknown until an inventory was filed.
father’s assets during their marriage for financial support, nor did they receive regular financial gifts from him. The parties did not spend any of their own income in reliance on the prospect of the inheritance. Based on the foregoing, the judge was within her broad discretion to conclude that the wife’s interest in the estate was not susceptible to equitable distribution. D.L. v. G.L., 61 Mass. App. Ct. 488, 491-92, 811 N.E.2d 1013 (2004) (where parties had never received nor expected to receive value from trusts during marriage and trusts had ‘never been a part of the fabric of [the] marriage,’ judge was within her discretion to exclude them from the marital estate). Contrast Zeh v. Zeh, 35 Mass. App. Ct. 260, 265, 618 N.E.2d 1376 (1993) (judge should have included inheritance [*14] as a marital asset where parties relied on financial support from the deceased for fourteen years during marriage, will had been admitted to probate five and one-half years prior to the divorce hearing, there was no evidence of claims against the estate, and a fair estimation of its value was available).
$ 150,000 ‘loan repayment.’ In the month prior to filing for divorce in Virginia, the husband transferred $ 150,000 in marital assets 10 to his mother, alleging that it was a repayment of a loan she made to him on May 5, 2005. The husband argues that the judge erred by considering the transfer a predistribution of marital assets and crediting it against him for his share of the marital estate. He contends that there was no evidence that his mother had not lent him the money, and therefore no evidence that the transfer was an attempt to hinder, delay, or defraud the wife. See Bak v. Bak, 24 Mass. App. Ct. 608, 624, 511 N.E.2d 625 (1987) (judge found with ‘ample record support’ that the conveyance of a house was done only to keep it out of the marital estate).
We are not persuaded that [*15] the judge erred. The only evidence regarding this ‘loan repayment’ is the husband’s testimony, which the judge did not credit, and a note on the memo field of the check used to transfer the money indicating that it was a loan repayment. The judge found no documentation or credible evidence, such as a bank statement indicating a $ 150,000 deposit at the time the loan allegedly occurred, to establish that the husband’s mother had ever actually loaned him the money. There was no evidence that the husband had ever borrowed money from his mother in the past. Based on the above, and given that he transferred the
10 $ 50,000 came from the parties’ joint bank account, and $ 100,000 from a home equity line on the parties’ marital home.
2008 Mass. App. Unpub. LEXIS 228, *11
money shortly before filing for divorce, the judge concluded that the husband’s purpose in transferring the $ 150,000 was to diminish the marital estate, and treated it as a predistribution of marital assets. This finding was not clearly erroneous, and in fact does have ‘ample record support.’ Ibid.
$ 298,300 expenditure on the home equity line. On May 7, 2005, the husband took out a $ 500,000 line of credit on the parties’ marital home, withdrew the maximum amount, paid the balance down by $ 100,000 and then withdrew an additional $ 100,000. The judge found that the husband withdrew [*16] an aggregate amount of $ 600,000 from the equity line, and spent $ 298,300 11 of it on personal expenses. The husband argues that the judge erred by characterizing this $ 298,300 as a predistribution of the marital estate. He contends that he borrowed $ 500,000 in total, not $ 600,000, 12 and that the money at issue was spent on reasonable living expenses, and so should not be credited against him as a marital asset.
Although the husband testified at trial that he spent the $ 298,300 on spousal support and improvements to the marital home, the judge did not credit his testimony, and found no credible evidence to support [*17]his contentions. She found that the property was not encumbered prior to the husband’s opening of the equity line, and assigned the $ 298,300 to him as a predistribution of the marital estate. This finding was not clearly erroneous, and the judge did not abuse her discretion in assigning the $ 298,300 as a marital asset.
Alimony. In addition to the property division and lump sum payments, the judge ordered the husband to pay the wife alimony in the amount of $ 4,500 per month until June 1, 2007, then $ 3,500 per month until June 1, 2008, $ 2,300 per month until June 1, 2009, and then $ 1,100 per month from that point forward unless modified by the court. To secure these alimony obligations, she also ordered the husband to maintain life insurance in the amount of $ 500,000 to be payable to the wife upon
11 To reach this figure, the judge credited the testimony of one of the wife’s experts, who ‘backed out’ that amount from the $ 600,000. The expert was able to account for a portion of the expenditures, and concluded that the remainder was spent by the husband on personal expenses.
12 The judge found that the husband diminished the equity of the marital home by a total of $ 600,000, notwithstanding the fact that he paid $ 100,000 back to the bank. In fact, the judge’s findings indicate that the husband conceded that he withdrew a total of $ 600,000 from the equity line.
his death. The husband argues that the judge erred in ordering him to pay alimony and carry life insurance in the absence of any ‘need’ demonstrated by the wife; he contends that there is no evidence that the property division and lump sum payments would be insufficient for the wife to maintain her standard of living. We disagree. The judge found that the wife’s awards under the property [*18] settlement may not be sufficient for her to maintain the standard of living she enjoyed during the marriage. Although she could invest the liquid assets so that she could see a return from them, the judge found that she lacked the required financial sophistication to do so effectively and would need to ‘consult a financial advisor and arrange an investment portfolio.’ The alimony award was designed to supplement the wife’s income while she made the proper arrangements. The judge noted that due to her receipt of lump sum payments from the husband each year and her inheritance from her father’s estate, her need for alimony would decrease over time as she became more able to invest her assets. The judge therefore designed the alimony award to decrease annually. In sum, we conclude that the alimony award properly considered the wife’s needs. 13 2. Attorney’s fees. On October 2, 2006, after entering the judgment nisi, the judge issued a separate order requiring the husband to pay the wife an additional $ 85,000 in attorney’s fees. 14 The husband argues that the judge erred in ordering him to pay the $ 85,000 entirely out of his share of the estate because the judge had originally intended [*19] to assess the award out of the estate
13Even assuming arguendo that the alimony award was [*22] not necessary to meet the wife’s needs, it was still not plainly wrong and excessive. Although generally ‘need is the primary consideration in establishing the level of alimony,’ when dealing with long-term, high-income marriages, ‘need’ becomes a less important consideration, and equitable distribution of the marital assets becomes the primary task. Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904, 595 N.E.2d 792 (1992) (judge did not abuse discretion by awarding wife alimony even though $ 4,000,000 property settlement was more than sufficient to meet her needs at the end of a twenty- nine year marriage). In the context of a thirty-nine year marriage, we conclude that the judge properly considered the equitable division of the estate, and the judgment was
therefore not plainly wrong and excessive.
14 The husband had paid his counsel over $ 250,000 from marital assets. The wife had already been awarded $ 165,000 in attorney’s fees from the marital estate. The additional $ 85,000 was designed to put the parties in an equal position in terms of their ability to pay attorney’s fees out of the marital estate.
2008 Mass. App. Unpub. LEXIS 228, *15
before division, and that the husband therefore should only have to pay $ 42,500. We disagree. First, it should be noted that this issue is not properly before us on appeal. General Laws c. 215, § 9, provides that any party ‘aggrieved by an order, judgment, decree or denial of a probate court . . . may . . . appeal therefrom to the appeals court.’ Rule 4(a) of the Massachusetts Rules of Appellate Procedure, as amended, 430 Mass. 1603 (1999), requires an appealing party to file a notice of appeal within thirty days of the entry of the judgment appealed from. Rule 3(c) of the Massachusetts Rules of Appellate Procedure, as appearing in 430 Mass. 1602 (1999), requires that the notice of appeal ‘designate the judgment, . . . order, or part thereof appealed from.’ The husband asserts that he is aggrieved by the October 2, 2006, order, requiring him to pay attorney’s fees entirely out of his half of the estate. He has not filed a notice of appeal with regard to this order. He has only appealed from the judgment nisi, issued on August 22, 2006. 15 He argues, however, that the judgment nisi incorporates the subsequent order, 16 and since no amended judgment [*20] was ever entered, his notice of appeal covers the postjudgment order. This claim is not persuasive. The husband’s attempted appeal concerns the specific terms of the October 2, 2006, order requiring him to pay fees out of his half of the estate. This requirement is only present in the subsequent order, from which he has not filed a timely notice of appeal. The judgment nisi, from which he has timely filed a notice of appeal, only states generally that both parties have submitted requests for attorney’s fees, and that the issue will be addressed in a separate order. It does not specify any resolution of the issue, or how the fees will be awarded. The husband does not dispute that fees should be awarded to the wife; he is only disputing the manner in which the October 2, 2006, order awarded them. Since he is appealing the specific terms of the separate order, he was required to file a timely notice of appeal in regard to that order. Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999). He failed to do so, and the issue of attorney’s fees is not properly before us on appeal. Even assuming that the issue were properly before us, we disagree with the husband’s argument that the judge [*21] intended to assess the fees prior to distribution. The judgment nisi and order on motion for counsel fees do not reflect an intent to assess the fees equally against the husband
15 His notice of appeal was filed on September 18, 2006.
16 The judgment nisi provides that ‘[a]ttorneys’ [*23] fees and costs will be addressed under separate order.’
and the wife. In her rationale, the judge specifically noted that ‘about $ 35,000 [of the attorney’s fees] has been offset against the Wife’s share [of the marital estate] as part of the judgment. The Court, given the husband’s conduct, which has increased the cost of this litigation tremendously . . . declines to offset any further fee awards against her share of the marital assets.’ Given that the October 2, 2006, order was such a ‘further fee award,’ we cannot conclude that the judge erred by not offsetting it against the wife’s share of the marital assets and instead ordering the husband to pay it in the entirety. Conclusion. The judge’s order regarding alimony and property division was not plainly wrong and excessive. Moreover, the judge did not err in assessing attorney’s fees against the husband’s share of the marital estate. The disposition of this case is stated in Cherin v. Cherin, ante. 17 So ordered. By the Court (McHugh, Katzmann & Grainger, JJ.)
Entered: July 30, 2008.
2008 Mass. App. Unpub. LEXIS 228, *22
17 The wife’s request for attorney’s fees and costs on appeal is denied.