Johnson v. Johnson
| Decision Date | 19 December 2001 |
| Docket Number | No. 98-P-2227.,98-P-2227. |
| Citation | 53 Mass. App. Ct. 416,759 NE 2d 741 |
| Parties | LYNNE JOHNSON v. PHILIP O. JOHNSON. |
| Court | Appeals Court of Massachusetts |
Present: LAURENCE, DREBEN, & GELINAS, JJ.
Stephen C. Maloney for Philip O. Johnson.
Thomas H. Souza for Lynne Johnson.
Philip Johnson (husband) raises three issues on his appeal from a judgment in the Barnstable Probate and Family Court. He claims as error the following: (1) that a postremand evidentiary hearing, in which the trial judge considered evidence of events occurring subsequent to the divorce, impermissibly exceeded the directive of a rescript from the Supreme Judicial Court; (2) that, with respect to division of the marital assets and debts, the trial judge erroneously considered factors under G. L. c. 208, § 34, as of the date of the hearing after remand, rather than as of the date of the divorce; and (3) that the trial judge abused his discretion in assigning virtually one hundred per cent of the assets to the wife, especially where the principal asset, the marital home, was acquired almost entirely as a gift from Philip Johnson's mother. We affirm.
Philip Johnson and Lynne Johnson, husband and wife, were divorced by a judgment of the Barnstable Probate and Family Court dated May 2, 1995. Among other provisions, the judgment required conveyance of the jointly held marital home (Mashpee home) to a trust for the benefit of the couple's four children, with the husband to be solely responsible for the real estate taxes.1 The judgment also awarded the contents of the marital home to the wife (except for certain enumerated items awarded to husband); permitted each of the parties to retain bank accounts standing in their respective names; allowed the wife to retain her 1988 Dodge Caravan minivan and the husband to retain his 1987 GMC Jimmy sport utility vehicle; permitted the husband to retain his sole interest in real estate in Plymouth (along with responsibility for the expenses thereof); required each party to be responsible for debts standing in their respective names as set forth in their financial statements; and ordered the husband to pay the wife $3,000 for attorney's fees.
The husband appealed that portion of the judgment placing the Mashpee home in trust and awarding $3,000 in attorney's fees. The husband simultaneously appealed a "clarification" issued by the trial judge, in response to the wife's complaint for contempt, filed in July of 1995, with respect to certain credit card obligations. After ordering direct appellate review, the Supreme Judicial Court, in Johnson v. Johnson, 425 Mass. 693 (1997), ruled the disposition of the Mashpee home to be in error, as it resulted in property being transferred to "persons other than the husband or wife." Id. at 695. Recognizing that any reconsideration of the order concerning the Mashpee home might affect other portions of the judgment dividing marital assets and debt, the Supreme Judicial Court vacated the entire portion of the judgment concerning their division. The Supreme Judicial Court also declined to reach the issue whether the judgment had been improperly modified by the "clarification," "because our ruling ... necessitates a reconsideration of the distribution of all the marital assets and debts." Id. at 693 n.l.
The decision and remand of the Supreme Judicial Court issued on August 4, 1997. On October 31, 1997, the same judge of the Barnstable Probate and Family Court who had decided the original matter filed a "Corrected Order of the Court." This order scheduled a hearing on the matter of the division of marital assets and debts for January 12, 1998. It further ordered the parties to file any complaints for modification forthwith, to be consolidated for trial on January 12; ordered the husband to reimburse the wife $1,100 for credit card payments that the wife had made during the prior three months; and ordered that each party contribute one-half of the credit card payments for the coming months of November and December. Thereafter the husband filed a motion to amend a complaint for modification he had filed on January 24, 1997 (relating to custody and visitation). The wife filed a complaint for contempt alleging the husband's failure to pay the credit card debt (this in addition to a pending complaint for contempt she filed in August of 1997, alleging failure to permit wage assignment, not paying property taxes, and not paying uninsured medical expenses incurred for the minor children). All matters came on for hearing on January 12, 1998. There was evidence that the value of the Mashpee home, fixed at $105,000 at the time of the divorce, had increased to $135,000. Prior to the hearing, the husband disposed of the Plymouth property at a "distress" sale, the price obtained being less than the mortgage owed on the property.
At the hearing, the judge received in evidence the transcript of the 1995 hearing, together with his original findings and rulings. He also permitted evidence of various changes in the parties' circumstances occurring since the original judgment of divorce, as well as evidence of the parties' activities with respect to the Mashpee home and the Plymouth property both before and after the divorce. The judge's subsequent findings of fact, issued on January 23, 1998, incorporated by reference his original findings and ultimate conclusions, the latter set forth in a document styled "Rationale." He made additional findings, reflecting changes since the divorce: in health conditions (both parties' health conditions had deteriorated, wife's more than husband's); living circumstances (wife's circumstances had deteriorated; husband was supported by wealthy mother who provided him with cash and many items of value — he had expended $250,000 of his mother's money on motorcycles, a motor home and the purchase of and improvements to another home); amounts expended by wife, since the divorce, in improving the Mashpee home ($11,700 for an addition, a deck, landscaping repairs and maintenance); the husband's "distress" sale of the Plymouth property (on this score the trial judge concluded, on the basis of her contribution of $14,000 to the repair of the property during the marriage, that wife would have been entitled to a portion of the equity had there been any); and the needs of the children in the present circumstance. He found that the future needs of the children would best be met by awarding any equity to which the husband might be entitled in the Mashpee home to the wife to allow the children to have a stable home environment. He further found that the wife was entitled to the property based on contributions made to the upkeep and improvement of the Mashpee property "throughout the marriage and subsequent to the marriage." He specifically found that the increase in the property's value was "due to the plaintiff's efforts," notwithstanding the fact that the Mashpee home was acquired with a gift of money from the husband's mother. The trial court judgment ordered that the husband convey his interest in the Mashpee home to the wife, with the wife to be responsible for all real estate taxes, including any that were past due. The judgment further ordered that the husband and wife each be responsible for one-half of the joint credit card debt then due ($26,000); that the wife retain sole title to the parties' timeshare unit in New Hampshire2; and that custodial interest in certain bonds held for their son Matthew be assigned to the wife. All other provisions of the May 2, 1995, judgment of divorce were to remain in effect.
The husband first contends that, under the terms of the Supreme Judicial Court's rescript, the trial judge had no right to hold an evidentiary hearing or to make further findings, and that he could not rely on any matters occurring after the judgment of divorce, or to consider the circumstances of the parties subsequent to that judgment. This argument is without merit.
The trial court is bound to enter a judgment after rescript in conformity with instructions in the rescript. Wheatley v. Planning Bd. of Hingham, 10 Mass. App. Ct. 884, 884 (1980). Here, the rescript of the Supreme Judicial Court did not purport to frame a judgment with regard to the division of property that would be binding on the trial court. The rescript was couched as a remand, and required the trial court to consider anew the matter of the division of all of the marital assets and debts. The remand made no attempt to dictate the procedure by which the trial court should reconsider the division. The Supreme Judicial Court vacated the judgment with respect to the division of marital assets and debts. This resulted in the case standing as if no judgment had been entered with respect to the division. See Lee v. Fowler, 263 Mass. 440,...
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