Pare v. Pare

• Decision Date: 30 January 1991
• Citation: 565 N.E.2d 1195,409 Mass. 292
• Parties: Judith M. PARE v. David L. PARE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1195

565 N.E.2d 1195

409 Mass. 292

Judith M. PARE v. David L. PARE.

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 5, 1990.

Decided Jan. 30, 1991.

Douglas M. Watson, Newburyport, for Judith M. Pare.

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

GREANEY, Justice.

After the trial of a complaint for an equitable division of marital property brought by Judith Pare (wife) against David Pare (husband) pursuant to G.L. c. 208, § 34 (1989 Supp.), ¹ a judge of the Probate and Family Court entered a judgment dividing the parties' interests in the marital home. The wife appealed from the judgment, and we transferred the case to this court on our own motion. We conclude that the judge erred in dividing the property as he did, and that he should address another issue raised by the wife. Accordingly, we reverse the judgment and remand the case for further proceedings.

We take the facts from the judge's findings and from the uncontradicted evidence and materials before him. The parties were married in 1969. They have one child, a daughter, born on June 9, 1976. In 1978, using joint savings and a loan, the parties purchased a single family home in Lynn for $22,900. This property became the marital home. Five months later, the wife and daughter moved out. Neither the wife nor the daughter has lived in the home since then. The judge found that "[the husband] was exclusively responsible for payment of all costs and expenses associated with said property from [the time that the wife and daughter left] to the time of the divorce in 1982, and to the present." These costs and expenses principally involved the mortgage, taxes, and insurance. The husband testified on direct examination, however, that his live-in girlfriend supports him and pays the mortgage. ²

In addition to contributing to the down payment on the house, the wife contributed to the mortgage payments in the months that she lived there. The wife also was the principal homemaker and caretaker of the minor child. After the separation, so far as the record indicates, the wife has been virtually the exclusive caretaker of the daughter. The wife has received no assistance from the husband during this time. She has supported herself and the daughter at first by relying on public assistance, and later by maintaining two jobs.

On February 19, 1982, the wife was granted a divorce from the husband on the basis of cruel and abusive treatment. The judgment of divorce nisi provided, among other things, that the wife would have sole custody of the daughter; the husband was to pay $80 weekly for the support of the wife and daughter; and the husband was to pay the daughter's reasonable medical, dental, and hospital expenses. There was no assignment of the marital property at the time of the divorce.

Since the divorce, the husband consistently has failed to meet his support obligations, causing the wife to prosecute several contempt complaints to collect support. The husband also has failed to pay (or provide insurance coverage for) the daughter's medical and dental bills. ³ The wife has been forced to pay premiums of $364 monthly for medical insurance for the daughter. By February, 1987, when the trial on the wife's complaint for property division was held, the husband was in arrears on his support obligations by at least $4,045. At the same time, the daughter's accrued, uninsured medical expenses were approximately $20,000.

The husband has neglected the marital home as well. The property was in good condition when the parties bought it. By the time of the wife's complaint, however, the house was, in the words of the husband, "[r]un-down and in bad need of repair." The husband testified the home had fallen into disrepair because he had been unemployed and unable to pay for upkeep and repairs.

On August 26, 1987, the wife filed a complaint for property division. The only property in dispute was the marital home, which the parties agreed had a value of $75,000 in 1989 when the trial was held. The wife sought an order determining the parties' respective rights in the marital property and requiring that the husband's interest be held as security for past and future child support (including medical and dental expenses) owed. Following a trial, the judge ordered that the property be sold, that the proceeds first be applied to pay off the mortgage ($17,000) and costs of sale, and that the balance be split 75%--25% between the husband and wife respectively. The judge also ordered that, prior to any sale, the husband have sixty days in which to purchase the wife's interest. The judge rationalized his decision as follows: "The husband has been the sole occupant of the marital property since five months after the parties moved there in 1978. He was exclusively responsible for payment of all costs and expenses associated with said property from that time to the time of the divorce in 1982, and to the present.... [B]ased on the [§ 34] factors ... the parties would be entitled to an equal division of the property, but for the husband's contributions to said property as described above. For his contribution ... an additional 25% of the proceeds from the sale of the marital home to the husband is warranted." In his written decision, the judge did not mention the wife's request that the husband's interest be applied or held as security for past and future obligations of support for the daughter and for her medical and dental expenses. ⁴

The wife does not dispute the orders that the husband be given the opportunity to purchase her interest, and failing that, that the property be sold. The wife challenges the judge's division of property and his failure to address her request that her husband's interest be held as security. Specifically, she argues: (1) the division of property was plainly wrong because the judge attached too much importance to the husband's payment of the mortgage, taxes, insurance, and other bills after she left the house, and because he failed to weigh fairly the enumerated § 34 factors; and (2) the judge erred in failing to consider her request that the husband's interest be applied or set aside as security for past and future child support owed, as well as for past and future medical and dental bills of the minor daughter.

1. We consider first the issue of the fairness of the division. Under G.L. c. 208 § 34, a judge has broad discretion to divide marital property equitably. See Drapek v. Drapek, 399 Mass. 240, 243, 503 N.E.2d 946 (1987). Of course, that discretion is not unlimited. See Handrahan v. Handrahan, 28 Mass.App.Ct. 167, 168, 547 N.E.2d 1141 (1989), and cases cited. We require that judges dividing marital property make express findings indicating that all relevant factors under § 34 have been considered. See Rice v. Rice, 372 Mass. 398, 402-403, 361 N.E.2d 1305 (1977). We also require that the reasons for the judge's conclusions must be apparent in his decision. See Bowring v. Reid, 399 Mass. 265, 267, 503 N.E.2d 966 (1987). A judgment dividing property that is "plainly wrong and excessive" cannot stand. See Redding v. Redding, 398 Mass. 102, 107, 495 N.E.2d 297 (1986).

The judgment here was plainly wrong and excessive. By focusing on the narrow issue of which spouse paid more toward the house, the judge overlooked the principle that "[t]he concept of property assignment or equitable division under [§ 34] must be read to apply in a broad sense to the value of all contributions of the respective spouses towards the marital enterprise; it contemplates something more than determining which spouse's money purchased a particular asset (emphasis added)." Putnam v. Putnam, 5 Mass.App.Ct. 10, 17, 358 N.E.2d 837 (1977). Although the wife was not contributing to the mortgage, tax or insurance payments for roughly three and one-half years before the divorce, she was, with considerable difficulty and without any help from the husband, supporting and caring for their daughter. This support provided by the wife included the payment of rent to maintain a home for the daughter, major medical expenses, and the normal costs of raising a child. The wife also provided the sole emotional care and nurturing for the daughter during a period that the record reflects to have been very difficult. The considerable expenses incurred by the wife to support the daughter, and the wife's provision of love and support, offset the husband's payment of the mortgage and other expenses on the marital home. The same conclusion applies to the efforts made by the wife during the period between the divorce and the disposition of the property division complaint.

In addition, because of his reliance on the fact that the husband made more mortgage payments than the wife, and paid taxes and insurance, it appears that the judge implicitly may have credited the husband with the roughly $52,000 of appreciation in value of the house. There is no sound basis for doing so. When the wife and daughter left in 1978, the house was in good condition. Since then, the house has become (in the husband's own words) "[r]un-down and in bad need of repair." Thus, the appreciation in the value of the property is attributable to rising real estate values generally, rather than to any efforts by the husband. This is no reason to award the husband a larger share of the proceeds from the sale of the house. See Willis v. Willis, 27 Mass.App.Ct. 1144, 1144-1146, 538 N.E.2d 62 (1989). Contrast Savides v. Savides, 400 Mass. 250, 253, 508 N.E.2d 617 (1987).

The case comes down to this. After years as the primary housekeeper and caretaker for the daughter, and after contributing to the acquisition of the marital home, the wife left to avoid (as the divorce judgment indicates) cruel and abusive treatment. After the separation, the wife continued to care for the minor daughter, while the husband allowed the marital home--the sole asset of the marriage of any value--to become...