Moriarty v. Stone

• Decision Date: 20 August 1996
• Docket Number: No. 95-P-1484,95-P-1484
• Citation: 41 Mass.App.Ct. 151,668 N.E.2d 1338
• Parties: Julie A. MORIARTY v. Richard J. STONE.
• Court: Appeals Court of Massachusetts

Page 1338

668 N.E.2d 1338

41 Mass.App.Ct. 151

Julie A. MORIARTY v. Richard J. STONE.

No. 95-P-1484.

Appeals Court of Massachusetts Hampden.

Argued May 10, 1996.

Decided Aug. 20, 1996.

Efrem A. Gordon, Springfield, for Richard J. Stone.

Peter Roth, Springfield, for Julie A. Moriarty.

Before SMITH, PORADA and IRELAND, JJ.

PORADA, Justice.

Julie A. Moriarty (the wife) filed a complaint for divorce against Richard J. Stone (the husband) on May 29, 1990. The husband filed an answer to the complaint in December, 1991, and a cross claim for divorce on September 24, 1993. A judge in the Probate and Family Court referred the cross actions for a hearing to a master, who after twenty-three days of hearings issued a sixty-one-page report. The Probate Court judge confirmed the master's report with minor modifications. Judgments of divorce nisi were entered in May, 1995, granting both parties a divorce. Those judgments were subsequently amended. Under the amended judgments, the husband was ordered to pay to the wife alimony in annual installments of $20,000 for four consecutive years and to pay $45,000 toward the wife's legal fees. In addition, the amended judgments provided for a division of the marital estate, resulting in the wife receiving approximately a thirty-one percent share and the husband receiving a sixty-nine percent share of the total marital estate valued at $2,707,829.32 at the time of the hearing before the master. The husband appeals.

On appeal, the husband claims the judge in confirming the master's report erred in: (1) accepting the value of the marital assets as of the date of the hearing before the master; (2) including in the assignable estate the pension and retirement benefits of the parties that had accrued prior to the marriage; (3) considering in the division of the marital estate the contribution of each of the parties to the acquisition, preservation, and appreciation in value of the parties' separate property during their ten-year period of cohabitation prior to marriage; (4) awarding alimony to the wife; (5) awarding attorney's fees to the wife; (6) determining that the husband gave certain items of jewelry to the wife as gifts; and (7) allowing the wife to amend her complaint on the first day of trial to include cruel and abusive treatment as a ground for divorce. We affirm the amended judgments.

We summarize the pertinent facts found by the master and adopted by the judge. This was an eight-year marriage (1986-1994) preceded by a ten-year period (1976-1986) during which the parties lived together. The parties had no children. When they first met in 1975, the wife was twenty years old and working as a waitress; the husband was thirty-two years old, held a law degree, and operated a small retail and wholesale outlet store in which he sold antique jewelry and clothing to local customers. In 1975, the husband's business, "The Family Jewels, Inc." (Family Jewels), which he had begun in 1970, had annual gross sales of $62,769 and an inventory of $5,728.

The wife began working for the husband as a clerk at the Family Jewels store on a full-time basis in late 1975. She was compensated for her work and learned the essentials of the antique jewelry business from the husband. Within approximately one year, the wife was involved in virtually all aspects of the business. As a result of the tireless effort of both the wife and husband, the business prospered and expanded to the international market. By 1985, the year preceding the parties' marriage, the business inventory was valued at $98,764 and the business had gross sales of $438,265. As a result of the success of the business, both the husband and wife were able to accumulate considerable savings and retirement benefits prior to their marriage on March 4, 1986.

As the parties' financial position improved, so too did their lifestyle. In 1981, they moved from a five-room apartment into an eighteen-room Tudor style house purchased with the husband's funds and maintained by domestic help. They entertained regularly, vacationed abroad, and gave gifts, including jewelry, to one another.

Notwithstanding the parties' success in business together, their personal relationship began to deteriorate after their marriage. There were numerous occasions when the husband was verbally abusive and, on at least one occasion, physically abusive toward the wife. The wife responded to this behavior by having an affair with another man in 1988 and in 1990. The wife left the marital home in May, 1990, and filed for divorce at that time. No activity occurred in the divorce action for a year and one-half thereafter; rather, the parties made various unsuccessful attempts at reconciliation.

At the time of the hearing before the master in 1994, the wife was living in a one-bedroom apartment in Maryland and operating a wholesale antique business that had inventory worth $64,600. At that time, her gross weekly income was $457, and her expenses were approximately $597 a week. She had assets in her own name valued at approximately $414,960. In contrast, the husband's lifestyle had not been affected by the parties' separation. He continued to reside in the eighteen-room house and to operate Family Jewels. His annual gross taxable income for the years 1990 through 1992 averaged $231,000, and his living expenses averaged $585 a week or approximately $30,421 a year. His assets at the time of the hearing before the master were valued at $2,292,861.60, including the inventory of Family Jewels, which was valued at $710,000 by the master.

On the facts stated in his report, the master recommended that the wife retain the assets in her possession and that the husband make an additional lump sum cash payment to her of $435,000, less $58,000 advanced to her during the proceedings, which would result in an award of approximately thirty-one percent of the parties' total assets, and that the husband retain the balance of the assets in his possession. In addition, the master recommended that the husband pay alimony to the wife in the sum of $20,000 for a period of four consecutive years and that the husband contribute $45,000 to the wife's legal fees. The amended judgments of divorce substantially reflect the master's recommendations.

¹

We address the husband's claims.

1. The property division.

a. Date of valuation of assets. The husband argues that the master, and subsequently the Probate Court judge by confirming the master's report, erred in valuing the parties' assets as of the date of the hearing before the master. Relying on Savides v. Savides, 400 Mass. 250, 508 N.E.2d 617 (1987), he asserts that the marital assets should have been valued as of the date of the parties' separation in May, 1990, because the wife failed to contribute to the marital partnership after that time.

Although 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. Davidson v. Davidson, 19 Mass.App.Ct. 364, 370 & n. 9, 474 N.E.2d 1137 (1985). See generally Kindregan & Inker, Family Law and Practice § 1133 (1990 & Supp.1995). Unlike the husband and wife in Savides, whose marriage for all intents and purposes ended on the date of their separation some ten years prior to their divorce hearing, the master concluded that he could not with certainty find that the parties' marriage ended in May, 1990, the date of the parties' separation, because of their repeated efforts for a year and one-half thereafter to effect a reconciliation. In addition, unlike the wife in Savides, whose contribution to the marriage as a homemaker and mother ended with the parties' separation, the master found that here the wife's contribution did not end at the time of the separation, because the husband continued to reap financial benefits derived from the years of work by both the wife and husband to develop Family Jewels, including its goodwill and inventory. ²

In light of the master's findings adopted by the judge, we conclude that the judge did not abuse his discretion in adhering to the usual practice of valuing the assets of the parties at the time of the hearing. See Kindregan & Inker, supra § 1133. Compare Pare v. Pare, 409 Mass. 292, 296 n. 4, 565 N.E.2d 1195 (1991) (where property division takes place in a separate proceeding after the divorce, the property is valued at the time of the separate proceeding, but the G.L. c. 208, § 34, factors are applied as of the time of the divorce). ³

b. Premarital retirement benefits. The husband argues that the judge erred in including within the assignable estate under G.L. c. 208, § 34, as amended through St.1990, c. 467, the parties' premarital pension and retirement-related benefits. The second sentence of G.L. c. 208, § 34, as amended through St.1989, c. 559, provided: "[i]n addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other." Statutes 1990, c. 467, amended this sentence by adding the following language "including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance."

The husband, seizing on the language "all vested and nonvested benefits, rights and funds accrued during the marriage" (emphasis supplied), argues that the court was without authority to include within the assignable estate that part of the parties' pension, profit-sharing, and retirement benefits that accrued prior to the marriage. ⁴ See Dewan v. Dewan, 17 Mass.App.Ct. 97, 101, 455 N.E.2d 1236 (1983), S.C., 399 Mass. 754, 506 N.E.2d 879 (1987) (where division is made to apply to pension...