Bianco v. Bianco

• Decision Date: 06 December 1976
• Parties: Joseph R. BIANCO v. Marianne Kenney BIANCO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 243

358 N.E.2d 243

371 Mass. 420

Joseph R. BIANCO

v. Marianne Kenney BIANCO.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 6, 1976.

Decided Dec. 6, 1976.

Robert I. Manuel, North Adams, for libellee.

James A. Bowes, North Adams, for libellant.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

Marianne Kenney Bianco (wife) appeals from a decree nisi granting Joseph R. Bianco (husband) a divorce and ordering him to pay to her the sum of $2,500 in lieu of all alimony, past, present, and future, and further ordering her to convey to him 'all of her right, title and interest in the marital domicile' located in North Adams, Massachusetts. The only challenge lodged by the wife to this order is that she convey her interest in the marital home to her husband. In a report of material facts the probate judge found that the parties were married in June, 1971. The husband was then sixty-one years of age and the wife fifty-two years of age, and each had been married once before. The judge recounted the ensuing marital difficulties. He further found that during the year 1974 the wife had a gross income of approximately $7,500, that just prior to the divorce hearing she had a savings account amounting to some $9,000, and that she was employed as a secretary earning a gross weekly salary of $154. Both parties had owned real estate in their own names at the time of the marriage. Subsequently, in December, 1971, they purchased the North Adams real estate in contention here. For this purchase the husband paid the down payment of $3,500. 'During the time of their marriage, (the) wife contributed approximately $2,000.00 from her earnings,' keeping the rest of her income for her own use. On the basis of the foregoing findings the judge made his rulings and entered the decree.

Here, for the first time, we interpret G.L. c. 208, § 34, as amended by St. 1974, c. 565. The amended statute and the one which it supplanted appear in the margin. ¹ The former language of the statute was interpreted by this court in Topor v. Topor, 287 Mass. 473, 474--475, 192 N.E. 52, 53 (1934), wherein it was stated that the statute did not provide 'that a part of the wife's estate may, upon divorce, be decreed to the husband on the theory of an equitable division of their properties as do statutes in some jurisdictions. What is taken from a wife's estate and is received by the husband under a decree based on our statute must be 'in the nature of alimony. " The husband contends that the 1974 amendment to G.L. c. 208, § 34, was designed to give the Probate Courts and the Superior Court power to dispose completely of the property of the litigants, and that the statute empowers those courts to deal broadly with property and its equitable division in ways not previously authorized. ²

We are of the view that this argument is well taken. The rationale behind the statutory change has been thoroughly and accurately discussed in an article by Messrs. Inker, Walsh and Perocchi in the Suffolk University Law Review, Vol. 10 (1975), entitled 'Alimony and Assignment of Property: The New Statutory Scheme in Massachusetts.' The authors pointed out that '(w)ith the enactment of Chapter 565 (St.1974), the Massachusetts probate courts (and the Superior Court), upon entry of a decree of divorce, now have the power to make a fair and just assignment of the spouses' property.' Id. at 4. Under the amended statute this power must be exercised with due regard to '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. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their...