Lockwood v. Johnson

• Decision Date: 09 May 2017
• Docket Number: 16-P-49
• Citation: 91 Mass.App.Ct. 1120,86 N.E.3d 246 (Table)
• Parties: Michelle J. LOCKWOOD v. Richard P. JOHNSON.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 1120

86 N.E.3d 246 (Table)

Michelle J. LOCKWOOD

v.Richard P. JOHNSON.

16-P-49

Appeals Court of Massachusetts.

Entered: May 9, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Richard P. Johnson (husband), appeals from a judgment of divorce nisi (judgment) from Michelle J. Lockwood (wife) following a trial in the Probate and Family Court. He raises multiple arguments challenging the judge's orders regarding the division of marital assets, child support, and custody of the minor children. For the reasons that follow, we conclude that the judge erred in the order of child support. Accordingly, we vacate that portion of the judgment and remand the issue for further consideration. In all other respects, we affirm.

Background. The judgment of divorce ordered equal division of the marital portion of the parties' retirement assets. The wife also received one half of the value of the marital home prior to its foreclosure sale. The husband received a diminished share of the value of the home, reflecting the costs associated with foreclosure. Sole legal custody of the two minor children was awarded to the wife. The judge ordered that the children have parenting time with the husband from Wednesday afternoons through Friday mornings, in accord with his work schedule. The judgment also ordered the husband to pay the wife $700 per week in child support.

Discussion. In reviewing the judgment of divorce, "[f]irst, we examine the judge's findings to determine whether all relevant factors in [ G. L. c. 208, § 34,] were considered." Adams v. Adams, 459 Mass 361, 371 (2011) (quotation omitted). Second we "determine whether the reasons for the judge's conclusions are apparent in his findings and rulings." Ibid. (quotation omitted). "A judge's determinations as to equitable distribution will not be reversed unless plainly wrong and excessive." Ibid. (quotation omitted). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). As a threshold matter "[w]e review the judge's findings of fact only to determine whether they are clearly erroneous." Cerutti-O'Brien v. Cerutti-O'Brien, 77 Mass. App. Ct. 166, 169 (2010).

1. Division of assets. a. Valuation date. After considering all of the statutory factors under G. L. c. 208, § 34, as amended through St. 2011, c. 124, § 2, the judge ordered that the parties' retirement assets be equally divided as of the date of divorce. The husband claims that the decision to divide the retirement assets as of that date rather than at the close of the evidence at trial was an abuse of discretion. "Although some States have established that marital property is to be valued as of a particular date (e.g., the date of separation, the date of filing of the divorce complaint, or the date of trial), Massachusetts has adopted a more flexible approach." Caffyn v. Caffyn, 70 Mass. App. Ct. 37, 43 (2007). While "the marital estate is typically determined as of the date of the divorce trial, the judge has the discretion to make that determination at another date when warranted by the circumstances of a particular case." Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996).

Here, the husband filed a motion to alter or amend the judgment, pressing the same argument he makes on appeal—that the proper valuation date was at the time of the trial, approximately two years before the judgment of divorce. In rejecting the husband's argument, the judge noted that "[o]ne issue (whether or not [the h]usband fully disclosed his assets) remained open, awaiting word from parties and counsel as to when they would be available for further hearing on that issue." The judge was referring to the wife's motion to reopen the evidence in which she alleged that the husband had failed to disclose at trial his business interest in a new health club. The judge allowed the motion. The issue remained unresolved until the parties filed a stipulation on March 19, 2015, more than fifteen months later. In the stipulation, the husband acknowledged that he had filed an "Article of Organization" for the business prior to the trial, but had failed to disclose that fact during the trial. Thus, the judge, upon reconsideration of the issue, implicitly concluded that the significant delay between the trial and the judgment was attributable to the husband. Under these circumstances, we cannot conclude that the judge abused her discretion in valuing the retirement assets as of the date of judgment.

b. Wife's potential inheritance. The husband claims that the judge abused her discretion in failing to consider the wife's potential inheritance from her mother and grandmother. As to the wife's grandmother, who died before the trial, there was no evidence that the wife would benefit from her grandmother's estate. There was evidence, however, that upon the death of the wife's mother and father, the wife's mother's estate would pass to the wife and her three siblings.

To be sure, such an "expectancy might be considered by the judge ... under the § 34 criterion of ‘opportunity of each for future acquisition of capital assets and income’ in determining what disposition to make of the property which is subject to division." Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375 (1985). Cf. Zeh v. Zeh, 35 Mass. App. Ct. 260, 264 (1993) ("An inheritance in possession ... constitutes part of the estate of the recipient subject to division under § 34"). Indeed, it is preferred that the judge recognize the existence of a potential inheritance explicitly as a finding related to the § 34 factor of "the opportunity of each for future acquisition of capital assets and income." See Heins v. Ledis, 422 Mass. 477, 481 (1996). Here, while the judge did not make an express finding regarding the potential inheritance, she did consider the parties' ability to acquire capital assets and income as it related to education, income, and employability; she recognized the opportunity for future acquisition as a § 34 factor in her rationale; and she expressly rejected including the wife's potential inheritance in her postjudgment order on the husband's motion to amend and alter the judgment. Thus, it is clear that the judge considered the evidence of the wife's potential inheritance, but did not include it because of its speculative nature.³ We see no abuse of discretion in that conclusion.

c. Other claims. The husband raises various other arguments that the judge either made clearly erroneous factual findings or abused her discretion in dividing the marital assets. We have reviewed each of the husband's claims and conclude, essentially for the reasons set forth in the wife's brief, that they lack merit.⁴

2. Child support. The judge ordered the husband to pay the wife $700 per week in child support. In her findings and rationale, the judge expressed her intention to calculate the amount of child support pursuant to the...