David J. Ruml v. Doraine W. Ruml

• Decision Date: 05 May 2000
• Docket Number: P-298,P-1179
• Citation: 738 N.E.2d 1131,50 Mass. App. Ct. 500
• Parties: (Mass.App.Ct. 2000) DAVID J. RUML vs. DORIANE W. RUML. No.: 97-& 99- Worcester County: Argued:
• Court: Appeals Court of Massachusetts

738 N.E.2d 1131 (Mass.App.Ct. 2000)

DAVID J. RUML vs. DORIANE W. RUML.

Massachusetts Court of Appeals

No.: 97-P-1179 & 99-P-298

Worcester County:

Argued: May 5, 2000.

Decided: November 21, 2000.

Contempt. Practice, Civil, Contempt. Probate Court, Divorce, Findings by judge. Parent and Child, Child support. Divorce and Separation, Child support, Division of property. Trust, Assets of trust. Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on October 25, 1994.

The case was heard by John J. Moynihan, J., and complaints of contempt, filed on April 5 and April 23, 1996, respectively, were heard by him.

Burton Chandler for David J. Ruml.

Michael P. Angelini for Doriane W. Ruml.

Present: Kass, Lenk, & Duffly, JJ

DUFFLY, J.

This is an appeal by a husband, David J. Ruml (husband), from a judgment of divorce nisi. We

consider this appeal together with the husband's appeal from two contempt judgments entered during the pendency of the divorce proceedings. In connection with the divorce judgment, the husband's primary contention is that the trial judge lacked the power to transfer to the wife all of the corpus and accumulated income in an inter vivos trust, of which the husband is neither a trustee nor beneficiary, because the wife as a former spouse was no longer a beneficiary, and the trustees were not made parties to the divorce action. In connection with the contempt judgments, the husband raises several issues, most notably whether a party may be held in contempt for failing to abide by an order which was sent to his attorney, the knowledge of which was attributed to the husband. We affirm all three judgments of the Probate and Family Court.

1. Background.

The judgments appealed from arise out of the following circumstances. The husband and Doriane W. Ruml (wife) were married in Rhode Island on June 27, 1970. By the time of their separation in October, 1994, they had three sons, born on October 30, 1977, October 24, 1981, and May 22, 1990. During the course of the marriage, the husband acquired a master's degree in business administration and became a successful and affluent businessman. The parties owned their own homes and expensive cars (during these proceedings, the husband drove a BMW and a Porsche); the children attended private schools; and the family belonged to a country club. The husband occupied various financial positions in the insurance and banking industries, eventually becoming an executive at a bank in Arizona where his income reached its apex, $320,000 for 1993, including salary and a bonus.¹ His ascent required sacrifices. The husband changed jobs with some frequency in the later years of the marriage in order to take advantage of better opportunities located in different cities throughout the country, while the wife took up the slack at home.

In 1985, after ten years with a Worcester insurance company, the husband changed jobs and the parties relocated to Dallas, Texas. Eight months later, the husband took a job in Los Angeles, California; in 1990 he began work for a bank in San Diego, California; in 1992 his work took him to Cleveland, Ohio.

During that seven-year period, the wife remained in Dallas with the children, and the husband commuted to and from work, generally, although not always, coming home on weekends. The wife, who had left her part-time job in a bookstore in order to relocate, continued to work at low-paying jobs requiring no specialized skills, in addition to bearing the brunt of the responsibilities for rearing the children and managing the household.

In June, 1992, the parties relocated their primary residence to Holden, where they purchased a home. The husband continued to commute to Ohio. With the youngest of their three children then two years of age, the wife did not resume employment outside the home following that move.

Beginning in November, 1992, when he became an executive for a bank in Phoenix, the husband commuted between Massachusetts and Arizona. This arrangement continued until October, 1994, when the husband left his wife and children and moved into a condominium in Scottsdale, Arizona, which he purchased with his sister.²

The wife and the three children remained in the marital residence in Massachusetts and were living there at the time of the trial. On October 25, 1994, the husband filed a complaint for divorce pursuant to G. L. c. 208, § 1B, alleging that an irretrievable breakdown of the marriage had occurred. He requested that custody of the children be awarded to the wife, and that the marital assets be distributed in accordance with G. L. c. 208, § 34.³

2. The contempt judgments.

Two judgments of contempt, both dated September 10, 1996, were entered against the husband on separate complaints for contempt filed by the wife. An evidentiary hearing on both complaints took place on July 19, 1996, and the husband testified and was cross-examined.⁴

On May 20, 1997, eight months after issuing the judgments of contempt, the Probate Court judge rendered separate findings of fact and conclusions of law. The husband makes the general claim concerning both judgments that the judge lacked authority to issue findings of fact once the husband had filed his notice of appeal because, although he had requested such findings, he subsequently filed a motion to revoke his earlier request. There is no merit to this claim. Although Mass.R.Dom.Rel.P. 52(a), as amended (1987), provides that "[i]n actions tried upon the facts without a jury, . . . the court shall upon written motion . . . find the facts specially" (emphasis added), there is nothing in this rule that precludes a judge from issuing findings of fact in connection with a contempt proceeding, after being notified that a party has taken an appeal from that judgment, even though no party has requested that such findings be made. We do not discourage a practice that assists the parties and the court in understanding fully the basis for a trial judge's decision, and the courts have, at times, required findings even when no party has requested them. See Rice v. Rice, 372 Mass. 398, 402-403 (1977); Custody of Vaughn, 422

Mass. 590, 600 (1996).⁵

a. Failure to pay child support.

On July 21, 1995, a judge of the Probate and Family Court entered temporary orders which, among other things, granted physical custody of the children to the wife and visitation to the husband, and ordered the husband to pay to the wife $5,400 per month in child support and to maintain medical insurance for the benefit of the wife and children. The judge in his May 20, 1997, decision found the husband in contempt for having failed to pay $27,000 in child support and to provide health insurance as ordered. The husband's defense at trial and on appeal is his inability to pay. He argues that he should not be held in contempt because he lost his job in November, 1994; at the time of the July, 1996, hearing he still was receiving no income from his employment; and he had, by February, 1996, depleted the $300,000 severance package which he received when his employment terminated. The trial judge found that since losing his job in November, 1994, the husband had been "selective in his job search as to salary," further limiting his search to states other than Massachusetts. As of the date of the hearing, the husband was employed by a business he had purchased on May 17, 1996, with his father and sister, paying $15,000 for a thirty-five per cent interest in a partnership that owns a majority interest in that business. At the time of this purchase, the husband gave his $20,000 Porsche to the business. The funds to purchase the husband's share of the business came from an account (established before he received the $300,000 severance package) containing $50,000, held by one of his attorneys, which was also the source of $17,000 in legal fee payments, and a $15,000 payment to his father on account of an undocumented loan. The business purchase on May 17, 1996, and the loan repayment on May 16, 1996, took place two and three days prior to the scheduled date of the contempt hearing. From another bank account he withdrew $21,000 to repay several undocumented loans to family and friends; that account had contained $21,500 in February, 1996. On a financial statement filed at the time of hearing, the husband claimed to have assets, in addition to the equity in the marital residence, valued at $169,327.00.⁶ The husband continued to maintain health insurance for himself, as well as maintaining $5,000 in a medical savings account which he set aside to cover his own uninsured medical expenses and anticipated deductibles. He provided no benefits of that kind for his wife or children. On the basis of detailed findings, amply supported by the evidence, the judge concluded that the husband had "financially abandoned his children" while at all times since the July 21, 1995, order he had access to adequate financial resources from which he could have paid his support obligation and provided health insurance. Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990), S.C., 30 Mass App. Ct. 418 (1991). See Furtado v. Furtado, 380 Mass. 137 (1980); Bisienere v. Buccino, 36 Mass. App. Ct. 749, 753-754 (1994). There was no error in the trial judge's refusal to accept at face value the results of the husband's manipulation of his assets, which he undertook to appear to be divested of financial resources, hoping thereby to justify his failure to pay support. We affirm the judgment of contempt.⁷

b. Appointment of additional trustees.

On April 8, 1996, following the first of six days of trial on the husband's complaint for divorce

(conducted over the course of a year and a half), the parties were heard on the wife's motion seeking to preclude the husband from taking steps to remove or appoint any trustee of the David J. Ruml Family Irrevocable Trust (family trust) and from exercising any power of appointment with...