Gaw v. Sappett
| Decision Date | 03 November 2004 |
| Docket Number | No. 03-P-9.,03-P-9. |
| Citation | 62 Mass. App. Ct. 405,816 NE 2d 1027 |
| Parties | EDDY C. GAW v. MAUREEN F. SAPPETT. |
| Court | Appeals Court of Massachusetts |
Present: PERRETTA, LAURENCE, & McHUGH, JJ.
Wendy H. Sibbison for the defendant.
Mark I. Zarrow for the plaintiff.
The former wife, Maureen F. Sappett (wife), appeals from a Probate and Family Court judge's denial of her motion for relief from a judgment that incorporated the parties' separation agreement, which had divided the marital property in a manner she now challenges. Within a year of the April 27, 1999, divorce judgment, she filed the motion, pursuant to Mass.R.Dom.Rel.P. 60(b)(2) and (3) (1975), alleging that her former husband, Eddy C. Gaw (husband), had fraudulently failed during the divorce proceedings to disclose an interest in his parents' residence in Clinton that his father had conveyed to him (and his two siblings) in 1990 but that he (and his siblings) had reconveyed to his father in 1997, while the divorce was pending; a one-half interest in his father's summer cottage in Harvard, also conveyed to him (and his brother) by his father in 1990; and a vested pension from his employer. The latter two assets were newly discovered, the wife asserted, during postjudgment discovery in connection with her rule 60(b) motion.1
After hearing testimony from the parties and considering the deposition testimony of the husband's father and an affidavit from the father's attorney, the Probate Court judge (who had also presided over the parties' divorce proceeding) denied the wife's motion on the following findings: (1) the Clinton property had been transferred by the father to the husband and his siblings for estate planning purposes (particularly with a view to avoiding its inclusion as an asset should the father have to enter a nursing home), and it had never been intended that the husband or his siblings would have any proprietary interest in the property, the father intending to use it exclusively and indefinitely and the husband having omitted it from his financial statements because he did not believe he had any actual interest in the property; (2) the transfer of one-half of the share of stock representing the father's interest in the Harvard property2 to the husband (at the same time that the other half was transferred to the husband's brother) had occurred prior to the marriage, had similarly been the product of the father's estate planning concerns ("lest there be nursing home claims should he fall ill"), and, although the husband used and enjoyed the property (along with his father and brother), paid his share of the real estate tax bills, and attended some annual meetings of the corporation, his more active involvement with that property after the transfer had occurred not because it was intended or the husband believed that he had a legal interest in it, but rather because of the need to assist his aging father financially in his father's retirement on a reduced income; (3) although the husband did not explicitly disclose his pension on any of the financial statements filed with the court,3 his response to an interrogatory propounded by the wife in the course of the divorce, requesting information about his participation in any pension or other retirement benefit plans, had attached the two most recent pension statements he had received from his employer, which stated that, as of December 31, 1993, his "pension status" was "active," and would yield a "projected monthly retirement benefit" of $998.88 at age sixty-five (in 2012).
The judge concluded on these findings that (1) the husband's pension was not "newly discovered evidence" under rule 60(b)(2) because it had in fact been disclosed during discovery to the wife, who could have pursued the issue with reasonable diligence, and, in any event, more explicit disclosure of its existence would not have sufficiently changed the outcome of the property division and should not disrupt the finality of the divorce judgment, since the wife would have been entitled at most to only one-half of the five-eighteenths of the pension accrued during the marriage; (2) prejudgment disclosure of the Clinton and Harvard properties would not have affected the outcome of the case, in light of the fact that their transfers to the husband had been effected solely for his father's estate planning purposes, because of which, the judge stated, she would have exercised her discretion to exclude them from division under G. L. c. 208, § 34; and (3) the wife's evidence did not clearly and convincingly demonstrate the kind of calculated, fraudulent conduct that warrants relief under rule 60(b)(3), but rather the evidence established that the nondisclosure was the product of the husband's understanding of his facilitating his father's estate planning and not of a deliberate plan to defraud the wife or the court. We discern no error in the judge's denial of the wife's rule 60(b) motion.
1. As to the husband's nondisclosure of his pension, the judge correctly concluded that the existence of the pension did not constitute newly discovered evidence warranting relief under rule 60(b)(2), since it was in fact revealed to the wife in the course of prejudgment discovery. The evidence, being thus available, could have been explored by the wife (at all times represented by counsel) prior to the judgment in the exercise of reasonable diligence. See DeLuca v. Boston Elev. Ry., 312 Mass. 495, 497 (1942); Poskus v. Lombardo's of Randolph, Inc., 48 Mass. App. Ct. 527, 528-529 (2000).4 Cf. Knott v. Racicot, 442 Mass. 314, 325 (2004).
2. The judge's discretionary conclusion5 that the wife had failed to demonstrate, by clear and convincing evidence (as was her burden, Care and Protection of Georgette, 54 Mass. App. Ct. 778, 787 2002, S.C., 439 Mass. 28 2003), that the husband's failure to list the Clinton and Harvard properties as assets was the result of fraud, rests upon the judge's findings described above. Those findings were not only supported by evidence in the record but, more significantly, rested almost entirely upon her assessment of the parties' and witnesses' credibility, which we must accord particular deference, given the realities that the trial judge, "by virtue of her firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence," and that an appellate court will not reverse the judge's decision to believe one witness rather than another unless that choice is convincingly shown to have been plainly wrong. Fox Tree v. Hart-Hanks Communications, Inc., 398 Mass. 845, 847 (1986), quoting from New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). Compare Knott v. Racicot, 442 Mass. at 326 ().
The wife has failed to demonstrate any plain error or an "arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice in the judge's rule 60(b) decision." Ibid., quoting from Kalenderian v. Marden, 46 Mass. App. Ct. 930, 931 (1999). Her primary assertions — that the judge was clearly erroneous in finding that the husband did not intentionally commit fraud against her or on the court when he did not disclose the Clinton and Harvard properties as his assets, because he believed that his father continued to be their true owner — are entirely conclusory and simply (and unavailingly) based on her disagreement with the judge's credibility assessments.6 The judge's determination that the circumstances attending the husband's relationship to the Clinton and Harvard properties were such as to negate any intention that he should receive true ownership interests therein has also not been shown to be vitiated by any error of law. Those circumstances, in fact, support the husband's contention that at most he held the Clinton property pursuant to a resulting trust, which the father could enforce at any time, see 5 Scott & Fratcher, Trusts §§ 404.1, 410 (4th ed. 1989); and also buttress the judge's view, relying on Williams v. Massa, 431 Mass. 619, 626-627 (2000), and Baccanti v. Morton, 434 Mass. 787, 798-799 (2001), that whatever actual interest the husband might be deemed to have received in the Harvard property was in the nature of a premarriage gift that should not be subject to division because of the wife's failure to have contributed to its preservation or appreciation during the marital partnership.
3. The wife's argument relying entirely on Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988), that even if she could not prove the husband's intentional fraud in omitting the two properties from his disclosures, she was entitled to relief on the ground that the nondisclosure constituted "other misconduct," which is governed by a less stringent standard under rule 60(b)(3), is also unavailing. In the first place, although she complains that the judge erroneously failed to consider this issue, she did not raise nonfraudulent "other misconduct" as a ground for relief below, or cite Anderson v. Cryovac, Inc., supra, but rather consistently maintained that the husband had committed intentional fraud on her and on the court by his nondisclosures. A party is not entitled to appellate review of a nonjurisdictional issue or theory never presented to the trial court. See Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977); Anthony's Pier Four, Inc. v. HBC Assocs. 411 Mass. 451, 471 n.25 (1991); R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73-74 (2001). Nor has she argued, much less demonstrated, that such exceptional circumstances existed here as would justify our discretionary departure from that axiomatic principle of appellate practice (e.g., if the appellant did not have the opportunity to present the issue to ...
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