Baccanti v. Morton

• Decision Date: 05 April 2001
• Citation: 434 Mass. 787,752 NE 2d 718
• Parties: TONI BACCANTI v. GEORGE I. MORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 787

752 NE 2d 718

TONI BACCANTI v. GEORGE I. MORTON.

Supreme Judicial Court of Massachusetts, Worcester.

April 5, 2001.

August 13, 2001.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Mark I. Zarrow for the defendant.

Penelope A. Kathiwala (Barbara A. Cunningham & Michelle R. King with her) for the plaintiff.

COWIN, J.

The husband, George I. Morton, appeals from a judgment of divorce issued by a Probate and Family Court judge. He claims that the judge (1) failed to consider the requisite factors under G. L. c. 208, § 34, in dividing the marital estate; (2) abused his discretion in dividing premarital assets; and (3) erred in awarding the wife, Toni Baccanti, one-half of the husband's unvested employee stock options. We transferred the case to this court on our own motion, and we affirm the judgment of the Probate and Family Court judge.

We recite the facts from the judge's findings and the uncontradicted evidence that was before him, reserving recitation of certain facts as they become relevant to the issues raised. The husband and wife were married on June 1, 1986. They adopted a boy, Sean, who was born on July 20, 1983, and began living with them in August, 1988.

After Sean came to live with the parties, they agreed that the wife would work part time so that she could be home with Sean after school. Sean's behavioral problems required extra attention. At first, the wife worked part time for Data General. Later, she taught college computer courses and established a computer software consulting business that she ran from her home. The husband is an engineering manager at Analog Devices, Inc., and has been working there since January, 1988.

The judge determined that both parties contributed to the marriage. He found that the husband was the primary financial provider and that, while both parties participated in raising Sean, the wife was the primary caretaker. He also found that the husband and wife shared the household chores, but that the wife was largely responsible for the maintenance and operation of the marital home.

Each spouse had acquired assets prior to the marriage. The husband owned a home, in which the parties lived when they first were married. They paid off the mortgage and kept that house, but purchased a new home together. The husband also owned stock that he either purchased or received as a gift before the marriage. The husband and wife each had their own IRA accounts and had money in separate checking and savings accounts. Initially, they contributed money from these separate checking accounts to pay bills, but they later opened a joint account in which they deposited their paychecks and from which they paid expenses. They accumulated other assets during the marriage, including stock and mutual funds. Some of these assets were held in one spouse's name, while others were held in both names. The husband also had a 401K plan through Analog Devices.

The wife filed a complaint for divorce in June, 1995, in the Worcester Division of the Probate and Family Court Department. Trial began in October, 1998, and the judge granted a judgment of divorce nisi in June, 1999. He granted both parties legal custody of Sean and the wife physical custody. He ordered the husband to pay alimony and child support to the wife. As to the assets, the judge awarded each party approximately an equal amount. The marital home was assigned to the wife, while the home originally purchased by the husband was assigned to him. The parties were awarded their separate checking and savings accounts, as well as their mutual fund and IRA accounts. The joint checking account was divided equally. The wife was awarded a jointly held brokerage account in its entirety. She also was given twenty-five per cent of the value of stock held in a brokerage account in the husband's name; the husband was awarded the remainder. In addition, the judge assigned each party one-half of the husband's 401K account and the vested and unvested stock options that the husband had received from his employer. The husband has appealed from the judgment, challenging certain aspects of the division of the marital estate.

I

The husband argues that the judge failed to make findings as to each of the requisite factors under G. L. c. 208, § 34, in dividing the marital property.¹ Section 34 provides in relevant part:

"[I]n fixing the nature and value of the property ... to be so assigned, the court... shall consider 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.... [T]he court shall also consider the present and future needs of the dependent children of the marriage."

We review the judge's findings to determine whether he considered all the relevant factors under § 34 and no irrelevant factors. See Williams v. Massa, 431 Mass. 619, 631 (2000); Mahoney v. Mahoney, 425 Mass. 441, 447 (1997); Bowring v. Reid, 399 Mass. 265, 267-268 (1987); Rice v. Rice, 372 Mass. 398, 402-403 (1977), We then determine whether the reasons for his conclusions are "apparent and flow rationally" from his findings and rulings. Williams v. Massa, supra.

See Mahoney v. Mahoney, supra.

The husband contends that the judge failed to make specific findings as to certain factors. While the judge's findings might have been more precise, we are confident that he properly evaluated the relevant factors and weighed the competing considerations. First, the husband claims that the judge did not consider the parties' premarital assets. We disagree. In reviewing the estate of the parties and the amount and sources of their income, the judge expressly stated that he "considered [the husband's] contributions from assets he acquired prior to the marriage, including the $36,000 down payment he made on the [home purchased by the husband before the marriage] and the stock which he either purchased or received as gifts."

In addition, the husband argues that the judge did not credit his testimony that the parties orally agreed to "keep the assets that we had accumulated prior to our marriage separate, and... to add to those assets separately from our salaries or any other ... sources that we each individually had and that we would just pay our living expenses together." The judge was not required to credit this testimony. See, e.g., Early v. Early, 413 Mass. 720, 727 (1992). Although the parties did maintain the accounts that they had established prior to the marriage, there is no evidence that they agreed to keep the assets in these accounts separate in the event of divorce. The wife testified that there was no such agreement. Moreover, the husband's contention is belied by the fact that both parties contributed to paying off the mortgage on the house purchased by the husband before the marriage and by the fact that the parties opened and maintained joint checking and brokerage accounts. This evidence indicates that the fine line dividing premarital and marital assets that the husband suggests does not exist and that the parties intended to do more than pay living expenses together. The judge was warranted in finding that he was "not persuaded by [the husband's] contention that the parties orally agreed to retain their separate assets in the event of a divorce. The parties never executed a pre-nuptial agreement and they did maintain joint accounts."

The husband next claims that the judge did not make "specific findings" regarding the accounts that each party individually opened prior to the marriage and maintained after the marriage. The judge did make findings as to these accounts; he simply did not make the findings sought by the husband. The judge provided a detailed chart of all the parties' accounts and in whose name the accounts were held. Moreover, his findings make clear that he was aware of the parties' separate accounts. With the exception of stock held in the husband's name in a brokerage account, the judge assigned the husband all the accounts (including checking, savings, IRA, and brokerage accounts) that were in his name only, as he did for the wife. The judge granted the wife the jointly held brokerage account in its entirety, but divided the joint checking account equally.

The husband also asserts that the judge did not make a finding with respect to the "contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." G. L. c. 208, § 34. This is a discretionary, not a mandatory, factor under the statute. See id. ("The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates ..."). The judge therefore was not required to make such a finding. However, the judge did discuss the parties' respective contributions to the marriage, including their division of responsibilities in caring for their home as well as the husband's contributions from assets he acquired prior to the marriage.

Finally, the husband argues that the judge did not consider the wife's education or her prior work history. The judge did comment briefly on the wife's occupation, vocational skills, employability, and opportunity to acquire assets and income in the future in his memorandum, as required by the statute. The judge stated that the wife taught computer courses part time and had started a computer software consulting business. He noted the amount that the wife earned from these endeavors. Further, he indicated that the wife should be able to work full time once Sean graduated from high school. This indicates sufficiently the wife's ability to earn income and support herself in the future. After examining the judge's decision, we conclude that he considered...