Braun v. Braun

• Decision Date: 04 May 2007
• Docket Number: No. 04-P-1639.,04-P-1639.
• Citation: 865 N.E.2d 814,68 Mass. App. Ct. 846
• Parties: Laura F. BRAUN v. George H. BRAUN.
• Court: Appeals Court of Massachusetts

865 N.E.2d 814

68 Mass. App. Ct. 846

Laura F. BRAUN v. George H. BRAUN.

No. 04-P-1639.

Appeals Court of Massachusetts, Middlesex.

Argued November 15, 2006.

Decided May 4, 2007.

Linda A. Ouellette, Boston, for Laura F. Braun.

Erin Moran Shapiro (David E. Cherny, Boston, with her) for George H. Braun.

Present: GELINAS, DREBEN, & GRAINGER, JJ.

DREBEN, J.

Before us are appeals by the wife from judgments of divorce on complaints filed by both parties and by the husband from a judgment of modification entered by a second judge. We ordered the appeals consolidated. In addition to numerous questions raised by the wife and the husband, each as to different provisions in the judgments, the husband raises the issue whether the second judge had jurisdiction to enter the modification during the pendency of the appeal of the divorce judgments. We hold that the second judge had such jurisdiction and affirm the modification judgment. We also affirm the judgments of divorce in so far as the issues have not become moot, with the exception of the matter of college expenses, and we remand to the Probate and Family Court for further consideration of the issue of life insurance.

1. The divorce actions. The judge's findings of fact reflect the following. The parties were married in May, 1990, and last lived together in January, 2002. Three children (ages eleven, ten, and six at the time of trial) were born of the union.¹

The husband, who was forty-nine years old at the time of trial, is a vice-president in the bond and corporate finance group of a major insurance company. His compensation from employment consists, inter alia, of base salary, cash bonuses, restricted stock, stock options, and income derived from other entities created by his employer. At the time of trial, the husband's base salary was $237,200, but during the five years prior to trial the husband earned from all sources an average of $879,846 per year.² The marital assets were acquired through the husband's financial efforts, both before and during the marriage.

The wife was forty-one years of age at the time of trial and is in generally good health. She is a secretarial school graduate who has experience as an executive assistant. During the marriage the wife was the primary homemaker, not only for the parties' household and children, but for the husband's children from his first marriage when they were with him. The wife has been out of the workforce for twelve years, and unless she either receives some retraining or completes her college degree, she will be unable to obtain employment sufficient to support herself and the children. The judge also stated that it would not be unreasonable for the wife to remain at home until the children complete high school.

The primary asset owned by the parties at the time of trial was property in Sherborn purchased in 1998. In 2001, the parties decided to demolish the existing structure and build a new home. To finance the construction, the parties obtained a construction loan (the balance of which was $1.63 million at the time of trial), liquidated substantial marital assets, and used the husband's employment income. They agreed to market the property at a listing price of $3.7 million.³ The parties also owned a vacation home in Vermont that had an equity value of $154,000 and annual carrying costs of approximately $30,000. In addition, the husband had a 401K plan worth $526,959 and an interest in his employer's defined benefit plan of "undetermined value."

During the marriage the parties enjoyed a comfortable life-style, vacationing at all-inclusive resorts in Mexico and elsewhere. The wife has no expectation of future inheritance; the husband will receive $140,000 from the estate of his mother who died in January, 2003.

The judgments of divorce nisi dated September 15, 2003, awarded the wife primary physical custody of the children and ordered the husband to pay child support in the amount of $553 per week (calculated in accordance with the Child Support Guidelines as applied to the first $100,000 of the husband's base salary). Child support payments were to be reduced upon the emancipation of each child, and were to terminate upon the emancipation of the third child. Child support was to terminate upon the death of the husband so long as a life insurance policy called for by the judgment was in effect.

The judgments also provided that the husband pay alimony to the wife (terminable upon the earliest to occur of his death, the wife's death or remarriage, or December 31, 2014) from his "adjusted employment income," with the amount due the wife based upon a sliding percentage⁴ to be reduced by a percentage of her earnings. The parties were ordered to use the net proceeds of the sale of the Sherborn home to pay off the outstanding construction loan ($1.63 million), other debts (exceeding $242,000) as well as any additional amounts advanced by the husband to maintain the property until the sale, and to set aside $300,000 to fund "529 educational plans" for the children, $100,000 for each child.⁵ The balance was to be divided equally between the parties.⁶ In addition, the wife was assigned fifty percent of the marital coverture portion of (1) the net value of the husband's 401K account as of June 1, 2003, and (2) the husband's defined benefit plan as of the same date.

Unsuccessful in a motion to amend the judgment, the wife filed a notice of appeal from the divorce judgments on November 10, 2003 (docketed January 7, 2004).⁷ The wife's appeal was entered in this court on December 6, 2004.

2. The modification action. On October 29, 2004, some five weeks prior to the entry in this court of the wife's appeal from the divorce judgments, the wife filed a complaint for modification (docketed November 29, 2004) in which she sought, among other things, permission to remove the children to Vermont and an increase in alimony and child support. The husband filed a complaint for contempt alleging that the wife had interfered with his visitation rights. After an evidentiary hearing held on two days in June, 2005 (and while the appeal from the divorce judgments was pending in this court),⁸ the second judge, concluding that there was a material change in circumstances,⁹ entered a modification judgment,¹⁰ and a judgment for the wife on the complaint for contempt. Among other things, the second judge denied the wife's request to remove the children to Vermont; ordered the husband to pay the wife $90,142.35, her share as determined by the second judge of the stock options exercised by the husband in 2004, and, in addition, to pay the wife thirty-three percent of the proceeds of any future stock options exercised by the husband; increased the husband's child support obligation to $1,000 per week (to terminate upon the emancipation of the last child); and ordered the husband to pay the wife alimony in the amount of $1,000 per week (to terminate upon the first to occur of the following: the wife's death, the husband's death, or the wife's remarriage) plus thirty-three percent of any bonus or incentive payments he may receive as compensation from his employment. After the entry of an order denying the husband's motion to amend the modification judgment and denying a portion of a motion he filed for clarification, the husband filed his notice of appeal from the modification judgment and the order on his motion for clarification.

3. Entry of modification judgment during pendency of appeal from divorce judgments. In a letter to this court submitted pursuant to Mass.R.A.P. 16, as amended, 428 Mass. 1603 (1999), the husband, reiterating a position advanced by him at the modification proceeding, but not raised in any of his briefs on appeal asserts that because the wife did not seek leave from this court to proceed with her modification complaint in the Probate and Family Court during the pendency of her appeal from the underlying judgments,¹¹ the second judge was without authority to exercise jurisdiction over the modification action and to enter a judgment thereon. In support of his position, the husband cites cases indicating that in the absence of leave from an appellate court, a trial judge lacks jurisdiction to entertain a motion pursuant to Mass. R.Civ.P. 60(b), 365 Mass. 828 (1974), or Mass.R.Dom.Rel.P. 60(b) (1975), while the judgment is pending on appeal.¹² Since the husband's claim is a challenge to the subject matter jurisdiction of the Probate and Family Court, a matter that cannot be waived, see Farnum v. Mesiti Dev., 68 Mass.App.Ct. 419, 422, 862 N.E.2d 425 (2007), it may be raised at any time. See Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622, 420 N.E.2d 339 (1981); Karbowski v. Bradgate Assocs., Inc., 25 Mass.App.Ct. 526, 527, 520 N.E.2d 504 (1988).

The rule relied on by the husband, however, relates only to motions to rehear or vacate the judgment, and does not apply to collateral or new proceedings which are separate, but not entirely divorced, from the underlying judgment. Farnum v. Mesiti Dev., 68 Mass.App.Ct. at 423, 862 N.E.2d 425. Even though a modification action may impact upon a divorce judgment, it may be characterized as a new proceeding, cf. Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814, 816, 363 N.E.2d 1311 (1977), generally arising out of new facts materially and substantially different from those found in the divorce proceeding. See Brooks v. Piela, 61 Mass.App.Ct. 731, 734, 814 N.E.2d 365 (2004); Kelley v. Kelley, 64 Mass.App.Ct. 733, 739, 835 N.E.2d 315 (2005). Modification is sanctioned by statute, see G.L. c. 208, §§ 37 (alimony), 28 (child support and custody),¹³ and its timing is not limited—indeed there may be emergency or other situations when modification may be necessary without time for obtaining approval from an appellate court.

We have recognized that a complaint for modification differs from a rule 60(b) motion, and have not treated the need for approval as a...