Davidson v. Davidson

• Decision Date: 20 February 1985
• Citation: 19 Mass.App.Ct. 364,474 N.E.2d 1137
• Parties: Ann DAVIDSON v. Henry L. DAVIDSON.
• Court: Appeals Court of Massachusetts

Page 1137

474 N.E.2d 1137

19 Mass.App.Ct. 364

Ann DAVIDSON v. Henry L. DAVIDSON.

Appeals Court of Massachusetts,

Barnstable.

Argued Nov. 15, 1983.

Decided Feb. 20, 1985.

Roberta Kettlewell, Boston, for Henry L. Davidson.

J. Richard Ratcliffe, Boston (Richard L. Zisson, Boston, with him), for Ann Davidson.

Before BROWN, ROSE and WARNER, JJ.

WARNER, Justice.

Ann and Henry Davidson were divorced by a judgment which was entered as absolute on the docket of the Barnstable County Probate Court on September 7, 1976. By the terms of that judgment, Henry was ordered to pay $40 per week for the support of the parties' two minor children, custody of whom was given to Ann, and $10 per week as alimony for a period of two years. In addition, Henry was ordered to convey to Ann his interest in the marital home. ¹ On November 29, 1978, Ann filed a complaint for modification, which was twice amended. On March 5, 1981, she filed a complaint, later amended, seeking assignment of marital property under G.L. c. 208, § 34. The actions were tried together. The judge filed comprehensive findings of fact and conclusions of law. A judgment of modification was entered ordering, among other things, Henry to pay $125 per week for the support of the minor children ² and lump sum alimony of $15,000. A second judgment was entered ordering Henry to pay Ann $45,000, "as a division of marital property," and $13,500 as counsel fees. Henry has appealed from the latter judgment, from so much of the former which awards Ann lump sum alimony, and from the denial of his motion for a mistrial.

1. The Judgment of Modification.

Henry says that the judge's findings show clear error in three respects. First, he argues that the judge placed undue emphasis on the fact that Henry was a life income beneficiary (in the discretion of the trustees) of an unfunded trust under the will of his mother. The judge's findings clearly indicate that she considered that the trust was unfunded and might never be. Moreover, Henry's current circumstances, as found by the judge and not disputed, apart from any future income which he might receive from the trust, fully support the amount of the award made. Henry next contends that the judge failed to take into account income which Ann earned as a private duty nurse in the finding as to her average weekly earnings. That finding involved an assessment of the credibility of Ann's testimony, which was for the judge to make. Henry's final claim--that there was clear error in the judge's finding that Ann had no opportunity for the future acquisition of income other than through her earnings as a registered nurse--is patently without merit.

The detailed findings of the judge are more than sufficient to establish the material change in circumstances necessary to support a judgment of modification under G.L. c. 208, § 37. See Robbins v. Robbins, 343 Mass. 247, 249, 178 N.E.2d 281 (1961); Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981); Pagar v. Pagar, 9 Mass.App. 1, 2, 397 N.E.2d 1293 (1980). The award of $15,000 as lump sum alimony was well within the judge's broad discretion. See Surabian v. Surabian, 362 Mass. 342, 348, 285 N.E.2d 909 (1972); Schuler v. Schuler, supra at 370, 416 N.E.2d 197.

2. The Judgment Under G.L. c. 208, § 34.

(a) Res judicata. Henry argues that Ann was precluded from seeking an assignment of property by the judgment of divorce. We have no record of the divorce proceedings other than the judgment of divorce nisi, entered March 4, 1976, in which Henry was ordered to pay child support and alimony, and to convey his interest in the marital home to Ann. The judge who heard the divorce action made no findings of fact, undoubtedly because the judgment was entered before the Supreme Judicial Court suggested, and then required, findings on the statutory factors set forth in G.L. c. 208, § 34. See Bianco v. Bianco, 371 Mass. 420, 423, 358 N.E.2d 243 (1976); Rice v. Rice, 372 Mass. 398, 402-403, 361 N.E.2d 1305 (1977); King v. King, 373 Mass. 37, 40, 364 N.E.2d 1218 (1977). See also Putnam v. Putnam, 5 Mass.App. 10, 15, 358 N.E.2d 837 (1977); Mass.R.Dom.Rel.P. 52(a), (c) (1975).

"[W]here the property rights of the parties have not been previously adjudicated, the Probate Court, upon consideration and findings relative to the statutory criteria, ... may assign property pursuant to G.L. c. 208, § 34 ... after a judgment of divorce has become absolute" (citations omitted). Maze v. Mihalovich, 7 Mass.App. 323, 324, 387 N.E.2d 196 (1979). See Hay v. Cloutier, 389 Mass. 248, 252, 449 N.E.2d 361 (1983). "[A] judgment of divorce only settles those 'matters which were necessarily involved and all issues which were actually tried and determined.' " Maze v. Mihalovich, supra at 326, 387 N.E.2d 196, quoting from Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647 (1949). As the Maze and Hay cases make clear, G.L. c. 208, § 34, issues are not "necessarily involved" in a judgment of divorce. From the record we are unable to determine whether any question of the assignment or division of the property of the parties was litigated in the divorce proceeding. We know that the judge could have ordered the conveyance of Henry's interest in the marital residence on traditional alimony principles. See Crossman v. Crossman, 14 Mass.App. 966, 968, 438 N.E.2d 1090 (1982). As will be seen in the discussion which follows, the judgment did not deal expressly with all of the property interests of the parties. Ibid.

We conclude, as did the probate judge, that the judgment of divorce did not preclude litigation of the issues raised in the subsequent complaint for the assignment of property under G.L. c. 208, § 34. ³

(b) Property subject to division. ⁴ Ann's amended complaint alleged that at the time of the divorce Henry had (1) an irrevocable remainder interest under a testamentary trust of his deceased father which had, at the time of the complaint, vested in possession, and (2) an expectancy, under the will of his mother, which had ripened into an inheritance at the time of the complaint. There is no dispute as to the judge's findings that at the time of trial Henry had received distributions from his father's trust of about $141,000 and tangible personal property from his mother's estate with a value of about $44,000. ⁵ It is also not in question that the judge considered at least these assets to be subject to division under G.L. c. 208, § 34.

Henry contends that since these assets did not come into his possession until after the judgment of divorce absolute, they constituted "after acquired" property and were thus not part of his "estate" and subject to division under § 34. Ann counters that the Supreme Judicial Court in Rice v. Rice, 372 Mass. 398, 361 N.E.2d 1305 (1977), foreclosed the issue by declaring that § 34 "gives the trial judge discretion to assign to one spouse property of the other spouse whenever and however acquired " (emphasis supplied). Id. at 400, 361 N.E.2d 1305. Thus, the argument goes, since the § 34 case was heard subsequent to the divorce under the holding in Maze v. Mihalovich, supra, the interests in question were subject to division.

Our consideration of the issue thus framed, one not heretofore considered by our appellate courts, begins with an examination of the nature of the rights afforded spouses under § 34. Without rehearsing in detail what has been said in our appellate cases which have treated the differences between traditional alimony and new division of property concepts (see e.g., Bianco v. Bianco, 371 Mass. 420, 358 N.E.2d 243 [1976], and Putnam v. Putnam, 5 Mass.App. 10, 358 N.E.2d 837 [1977] ), there is no question that the purpose and effect of § 34 has been, since it revision by St.1974, c. 565, ⁶ to provide for the equitable division of the property interests of partners in a marriage. See Rice v. Rice, supra at 401, 361 N.E.2d 1305 ⁷; Putnam v. Putnam, supra at 13, 358 N.E.2d 837. In making such a division "the court may award to the wife a portion of the husband's separate estate in recognition of the vital and substantial, although nonmonetary, contribution which she has made to the marital partnership.... The value of the property to be assigned is dependent on those circumstances which warrant division of property in recognition of the marital partnership concept...." Inker, Walsh & Perocchi, Alimony and Assignment of Property: The New Statutory Scheme in Massachusetts, 10 Suffolk U.L.Rev. 1, 8 (1975). ⁸ "[T]he right to equitable division of property is fundamentally based on a partnership model." Inker & Clower, Towards a New Justice in Marital Dissolution: The Massachusetts Statutory Scheme and Due Process Analysis, 16 Suffolk U.L.Rev. 907, 931 (1982). See Clark, Law of Domestic Relations § 14.8, at 449 (1968); Ginsburg, M.G.L. c. 208, § 34--Some Observations about the Division of Property Leading to Predictability and Consistency, 25 Boston Bar J., 10 (Jan. 1981).

None of the cases construing § 34 involved property interests acquired after the dissolution of the marital partnership. The language in Rice v. Rice, supra at 400, 361 N.E.2d 1305, "whenever and however acquired," in context referred to separate property acquired by the husband before the marriage and as gifts during the marriage. Id. at 399-400, 361 N.E.2d 1305. To hold that property interests acquired after the dissolution of the marriage are subject to division under § 34 would be contrary to the marital partnership concept on which § 34 is founded. See Inker et al., 10 Suffolk U.L.Rev. 4, n. 10. We conclude, therefore, that the property interests of Ann and Henry which were subject to division under § 34 were to be identified as of the time of their divorce. ⁹

We turn then to the interests (as they existed at the time of the divorce) which Ann identified in her amended complaint under § 34, and on which the parties seem to have focused at trial: (1) Henry's remainder interest under...