Pestana v. Pestana

• Decision Date: 04 August 2009
• Docket Number: No. 08-P-1444.,08-P-1444.
• Citation: 910 N.E.2d 939,74 Mass. App. Ct. 779
• Parties: Jose Manuel PESTANA v. Kelly Fitzgerald PESTANA.
• Court: Appeals Court of Massachusetts

910 N.E.2d 939

74 Mass. App. Ct. 779

Jose Manuel PESTANA v. Kelly Fitzgerald PESTANA.

No. 08-P-1444.

Appeals Court of Massachusetts, Essex.

Argued April 8, 2009.

Decided August 4, 2009.

Thomas J. Gleason for the wife.

William A. Simmons (Ellen C. Shimer-Brenes with him) for the husband.

Present: KAFKER, GREEN, & GRAHAM, JJ.

GREEN, J.

The defendant wife appeals from so much of an amended judgment of divorce nisi as requires her to list the former marital home for sale, in order to permit payment to the plaintiff husband of his share of the equity in the property as part of the division of the marital estate. Because it appears from the record that the trial judge held a mistaken understanding of his legal authority to defer sale of the former marital home, and because of certain other inconsistencies between the amended judgment and the rationale supporting it, we remand the matter for clarification.

Background. The parties married on August 13, 1994, and have two children, ages eight and twelve at the time of trial. The parties are of limited means. The husband works full time earning approximately $420 per week, or $21,840 per year. The wife works part time, earning approximately $130 per week, and also receives $647.08 per week in Social Security disability insurance payments.¹ Pursuant to the amended judgment, the wife has physical custody of the parties' children, and the husband pays the wife $94 per week as child support. Independent of the mortgage on the marital home, the parties have other debts: the wife has credit card and automobile loan debt totaling almost $20,000, and the husband has credit card and automobile loan debt totaling $17,000. The parties are also jointly subject to the possible repayment of $35,000 to the Social Security Administration (SSA), pursuant to a pending claim by the SSA that they previously received that amount in overpayment of benefits.

The principal asset of the marital estate is the marital home.² The trial judge found that it had a fair market value of $270,900, with mortgage debt totaling $106,000, leaving net equity of $164,900. The amended judgment, entered on November 28, 2007, directed that the home should be listed for sale by May 15, 2009, and that the net proceeds of sale should be divided equally between the parties.³ Specifically, the amended judgment directed as follows:

"The parties shall retain joint ownership of the [marital home]. The Wife shall have sole use and occupancy of the residence and shall be liable for the timely payment of the expenses related thereto.... Any necessary repairs which exceed $500.00 shall be shared equally by the parties but shall not be incurred unless advance notice is given to the Husband except in emergency situations. Upon sale of the home, the net amount received shall be shared equally by the parties. The Wife and her mother made contributions to the purchase of the home but these gifts benefitted both parties and have been considered in the division of other assets herein. The real estate shall be listed for sale by May 15, 2009."

In the rationale supporting the judgment, the trial judge addressed the wife's request that sale of the marital home be deferred until the parties' younger child reached eighteen years of age. As explained by the judge,

"This would mean the Husband would have to wait almost ten years to receive any liquid asset from this marital partnership. Although I have considered the needs of the children and that it would be in their best interests to remain in the home, the Husband clearly needs access to the equity to satisfy his obligations and subsidize his living expenses. The Court has delayed the payment to the Husband for almost one and one-half years to afford the Wife an opportunity to refinance the home or make other accommodations for herself and the children."⁴

The disposition of the marital home was also the subject of discussion during a conference conducted immediately preceding the trial, directed to the possibility of settlement. During that conference, while encouraging the parties to reach agreement on the division of the marital estate, the judge offered the following observation:

"But if this case goes to trial, then I'm more limited than the two of you are. For example, on the issue about the equity and the real estate. My understanding of the case law is that even if I wanted to have the wife and the children stay in the home until the youngest was eighteen, I probably can't do that legally. I can't—the cases are quite clear that the father doesn't have to wait for his share of the proceeds for eight, nine years."

Discussion. "Under G.L. c. 208, § 34, a judge has broad discretion to divide marital property equitably.... Of course, the discretion is not unlimited.... Judges dividing marital property must make express findings indicating that all the relevant factors under § 34 have been considered.... Also the reasons for the judge's conclusions must be apparent in the decision." Charrier v. Charrier, 416 Mass. 105, 111, 616 N.E.2d 1085 (1993) (internal citations omitted). Failure to consider the needs of the parties' dependent children is cause for reversal. Ibid.

The judge's written findings and rationale, which are nine single-spaced pages in length, discussed the various § 34, factors in some detail. However, several considerations cast doubt on the portion of the judgment concerning sale of the marital home.⁵ First, as we have observed, is the judge's comment during a settlement conference immediately before trial that he was without legal authority to defer sale of the marital home until the children were emancipated. The comment was an incorrect statement of the law. See Hartog v. Hartog, 27 Mass.App.Ct. 124, 128, 535 N.E.2d 239 (1989) ("A provision allowing minor children to remain in the marital home is a traditional...