Johnson v. Johnson

• Decision Date: 04 August 1997
• Citation: 682 N.E.2d 865,425 Mass. 693
• Parties: Philip O. JOHNSON v. Lynne M. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 865

682 N.E.2d 865

425 Mass. 693

Philip O. JOHNSON v. Lynne M. JOHNSON.

Supreme Judicial Court of Massachusetts Barnstable.

Argued May 8, 1997.

Decided Aug. 4, 1997.

Stephen C. Maloney, Boston, for Philip O. Johnson.

Jeremy M. Carter, Mashpee, for Lynne M. Johnson.

Before WILKINS, C.J., and ABRAMS, O'CONNOR, GREANEY and MARSHALL, JJ.

ABRAMS, Justice.

The husband, Philip Johnson, appeals from that portion of a judgment of divorce which divided marital assets. The husband claims that the judge erred by assigning marital property to dependent children under G.L. c. 208, § 34. He also argues that the judge erred in "clarifying the judgment." We transferred the case to this court on our own motion. We agree with the husband that the judge could not assign the marital property to persons other than the husband or wife. Because reconsideration of the order concerning the marital home may affect the other portions of the judgment, we vacate the portion of the judgment dividing the marital assets and debts. We remand the case to the Probate Court for reconsideration of the division of marital assets and debts. ¹

The parties had been married for approximately five years at the time of the divorce. They had lived together for an additional four years before marrying. They have four children, aged fourteen, seven, four, and two years at the time of the judgment. ²

The marital home was located in Mashpee. The parties purchased the home at a foreclosure sale for approximately $60,000 and used an additional $30,000 to fix up the home. The parties financed the purchase and renovations with a loan from the husband's parents, and they gave the parents a first mortgage on the property to secure the loan. The mortgage subsequently was discharged by the parents without consideration, and the debt was forgiven. The husband also owns residential rental property in Plymouth.

The judge made findings as to the parties' respective financial conditions and their employment prospects. The husband and wife both are employed as bus drivers. The judge awarded the parties joint legal custody of the children, with physical custody to the wife. He also made provisions as to child support, visitation, payment of medical insurance and uninsured medical costs, and division of marital assets. Specifically, he ruled that the house be put in a trust with the wife as the trustee "for the benefit of the four unemancipated children of the parties" such that "[e]ach child shall be entitled to a[25%] beneficial interest." The husband argues that neither G.L. c. 208, § 28, nor G.L. c. 208, § 34, allows a judge to assign marital property to children or to any other nonparty. We agree.

General Laws c. 208, § 34, ³ authorizes a Probate Court judge to "assign to either husband or wife all or any part of the estate of the other." In Levine v. Levine, 394 Mass. 749, 750, 477 N.E.2d 402 (1985), we said that "[t]he broad discretion of a judge under G.L. c. 208, § 34, to dispose of and assign property ... extends by its own language only to assignment of property to the parties themselves, not to their children or any other nonparty." In St.1989, c. 559, the Legislature added the following language to G.L. c. 208, § 34: "[I]n fixing the nature and value of the property to be so assigned, the [judge] shall also consider the present and future needs of the dependant children of the marriage." ⁴ The wife argues that this amendment allows assignment of marital property to children. We do not agree.

The judge's power to assign property in a divorce proceeding is purely statutory. Levine, supra at 751, 477 N.E.2d 402, citing Baird v. Baird, 311 Mass. 329, 331, 41 N.E.2d 5 (1942). Under G.L. c. 208, § 34, the power to assign property is limited to an assignment to the husband or wife. The Legislature's amendment did nothing to erode the basic principle that the marital property must be assigned to either the husband or the wife. "The words of the statute cannot be stretched beyond the fair meaning" to include an interpretation that would allow a permanent assignment of property to persons other than the husband or the wife. Holbrook v. Randolph, 374 Mass. 437, 440-441, 373 N.E.2d 941 (1978). The amendment relied on by the wife simply added a mandatory factor for the judge to consider in dividing the property between the husband and the wife.

The wife also argues that G.L. c. 208, § 28, supports the judge's decision. The wife points to the language in G.L. c. 208, § 28, which empowers the judge to provide for the "care, custody and maintenance" of dependant children. That provision, however, is, by its words, limited to the care and custody of children, the support of children, and children's education and health insurance. It permits a court to award custody to a third person. Its scope does not extend to the assignment of marital assets. ⁵

We conclude that § 28 does not include an implicit authorization of the assignment of marital property to children given the explicit legislation on the division of marital property expressed by § 34. "Sections of the same chapter are to be interpreted ... so as to constitute an harmonious and consistent body of laws." Gosselin v. Gosselin, 1 Mass.App.Ct. 146, 148, 294 N.E.2d 555 (1973).

In...