Canisius v. Morgenstern
Decision Date | 06 August 2015 |
Docket Number | No. 14–P–341.,14–P–341. |
Citation | 87 Mass.App.Ct. 759,35 N.E.3d 385 |
Parties | Peter CANISIUS, Jr. v. Erin Joy MORGENSTERN. |
Court | Appeals Court of Massachusetts |
Michael P. Friedman, Boston, for the husband.
William Sanford Durland, III, Boston, for the wife.
Present: RAPOZA, C.J., VUONO, & MEADE, JJ.1
Peter Canisius, Jr. (Peter), the former husband of Erin Joy Morgenstern (Erin), appeals from a judgment of divorce of the Probate and Family Court. He argues that the judge erred in treating Erin's vested contractual rights to future payments resulting from the best-selling novel, The Night Circus, which she authored, as too speculative for inclusion in the divisible marital estate. He also argues that the judge erred by finding that the parties' contributions to the marital estate were unequal, and making an unequal division of the marital estate based on that erroneous finding.
We fail to discern error in the judge's determination that the parties' contributions to the marital estate were not equal. We agree with Peter, however, that the judge committed an error of law by excluding from the marital estate subject to division under G.L. c. 208, § 34
, Erin's contractual rights to future payments arising from her novel. Our review of this issue is de novo. As explained more fully, infra, we vacate the judgment, in part, and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion.
1. Background. Peter and Erin began to live together in August, 2004, some two years prior to their marriage. Early on, they established a pattern that continued throughout their cohabitation and marriage: Erin handled the cooking for the couple while Peter performed the cleaning duties. During this early period, Erin was unhappy with her employment situation and wished to pursue artistic endeavors. After discussing the issue with Peter, the parties decided that they would no longer share equally their living expenses (as they had been) until Erin's income from the arts would allow her to do so. By June, 2005, Erin had ceased working outside of the creative arts, and by February, 2006, Peter had begun to pay for virtually all of the parties' expenses. The parties were married on October 13, 2006.
During the marriage, the parties lived a “simple lifestyle” on a limited budget. Peter, a chemical engineer, worked long hours to pay the parties' expenses, including those expenses directly related to Erin's creative pursuits. He also paid off Erin's then existing student loan debt. Erin, for her part, engaged in writing as well as the creation of various pieces of art. Certain of Erin's writing projects ultimately evolved into the novel, The Night Circus.2
In May, 2010, Erin obtained an agent (who provided her with numerous suggestions to improve her novel) and, in November, 2010, the agent negotiated a contract with Doubleday, a division of Random House, Inc., for the disposition of the publishing rights to The Night Circus. Other rights, including the right to make a movie, were optioned to Summit Entertainment (Summit) in December, 2010.3 Although Summit has retained a screenwriter
and producer for the movie project, the film has no timetable for production. In 2011, Erin transferred the copyright to The Night Circus to Night Circus LLC, which she owns. Erin received substantial initial payments from both Doubleday and Summit.
As The Night Circus began to find success, the parties' marriage, which had experienced some tension, continued to deteriorate and, in July, 2011, the parties separated. Subsequent to the parties' separation, Erin engaged in significant publicity and promotional work for the novel which, the judge found, was important to the success of the book. Erin continues to build her “brand” by marketing herself “through blurbs and other means, including social media.”
By the time of trial on Peter's complaint for divorce, The Night Circus had grossed over $3 million in royalties and between November, 2010, and October 9, 2013 (the last day of trial), Erin received net income derived from The Night Circus of $2,853,281.4 Nonetheless, the judge found that the gross amount of royalties was decreasing as sales were decreasing. The judge also stated that Erin's future earnings from The Night Circus are unpredictable. “It may become a highly successful movie, theater production etc., which will provide a large income stream for [Erin] for years to come, or it may not, and [Erin] may have to rely on the past financial success of The Night Circus to support her for a lifetime.”5
Peter earns approximately $95,000 per year as an engineer. Both parties have retirement plans. They do not own any real property. Neither party sought alimony from the other at trial.
factors that payment of [$628,000] from Wife to Husband would be an equitable division of the marital estate.”6
The judge issued a judgment of divorce on December 19, 2013, which contains provisions that effectuate his stated rationale, including an order directing Erin to make a lump sum payment to Peter of $570,000 (which takes into account previous advancements of attorney's fees to Peter in the amount of $58,000) as “his share of the royalty and book-related earnings she has received to date from the publication of [her] novel ...” (emphasis supplied).
provides, in part, that the “court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage....” In S.L. v. R.L., 55 Mass.App.Ct. 880, 882–883, 774 N.E.2d 1179 (2002)
, we summarized the general principles bearing upon the inclusion of an asset or interest in, or the exclusion of an asset from, the marital estate:
.’ Baccanti v. Morton, 434 Mass. 787, 794 (2001), quoting from Lauricella v. Lauricella, 409 Mass. 211,...
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