Galluzzo v. Galluzzo

• Decision Date: 15 October 1981
• Citation: 423 N.E.2d 795,12 Mass.App.Ct. 890
• Parties: Mary A. GALLUZZO v. Dominic J. GALLUZZO.
• Court: Appeals Court of Massachusetts

Page 795

423 N.E.2d 795

12 Mass.App.Ct. 890

Mary A. GALLUZZO v. Dominic J. GALLUZZO.

Appeals Court of Massachusetts, Plymouth.

Argued Jan. 13, 1981.

Decided June 30, 1981.

Further Appellate Review Denied

Oct. 15, 1981.

Matthew J. McDonnell, Quincy (Philip J. O'Neill, Jr., Quincy, with him), for Mary A. Galluzzo.

Leonard M. Singer, Boston, for Dominic J. Galluzzo.

Before ARMSTRONG, ROSE and GREANEY, JJ.

RESCRIPT.

Mary A. Galluzzo (wife) brought a complaint for divorce against Dominic J. Galluzzo (husband) on the ground of cruel and abusive treatment, and the husband filed a separate complaint for divorce on the same ground. The wife also filed an action for an accounting of the assets of an alleged partnership in a landscaping business which the husband had operated (with the clerical and bookkeeping assistance of the wife) during most of the thirty-nine years of their marriage. The judge, confirming the master's reports, granted both divorce complaints and denied the request for an accounting on the basis of the master's finding that the parties had not formed a partnership to conduct the landscaping business. The wife appeals from various provisions of the judgment in which she was granted a divorce nisi, from the judgment granting the husband a divorce nisi, and from the judgment dismissing her complaint seeking an accounting.

As the evidence was not reported, the master's subsidiary findings "are binding upon us unless they are clearly erroneous, mutually inconsistent, contradictory or vitiated in view of the controlling law." John F. Miller Co. v. George Fichera Constr. Corp., 7 Mass.App. 494, 495, 388 N.E.2d 1201 (1979), and cases cited. Perkins v. Rich, --- Mass.App. ---, --- - ---, ^a 415 N.E.2d 895 (1981), further appellate review granted, --- Mass. --- (1981) ^b Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974). We have reviewed carefully the master's findings of fact upon which the judgments were based and are unable to find support for the appellant's contention that the findings with respect to the value of the landscaping business or with respect to the value of the real estate are mutually inconsistent or contradictory. Moreover, we agree with the master's conclusions, adopted by the judge, that the couple had not formed a partnership to conduct the landscaping business and that the husband should be granted a divorce on the ground of cruel and abusive treatment.

The appellant cites no authority and we can find none for the proposition that the judge's decision that alimony should terminate when the husband retires amounts to an abuse of discretion under G.L. c. 208, § 37. Should the parties' circumstances diverge from that which the award reflects, either is free, under § 37, to seek a modification. Similarly, the appellant fails to direct our attention to authority to establish that the failure to award attorney's fees in a case such as this was an abuse of discretion. See G.L. c. 208, § 38. Finally, we cannot say that the judge abused his discretion in refusing to order the husband to transfer to the wife certain bank accounts and life insurance policies held for the benefit of the parties' adult children. That is a matter between the husband and the children and, as the judge below noted, was not properly a subject of any division of marital assets under G.L. c. 208, § 34.

The remaining arguments raised by the appellant relate to inaccuracies in certain calculations and to inconsistencies between the master's findings of fact and the judgments on the divorce complaints. We find no error in the master's recommended formula, adopted by the judge, awarding roughly half of the husband's assets to the wife (s...