Putnam v. Putnam

• Decision Date: 29 May 1979
• Citation: 389 N.E.2d 777,7 Mass.App.Ct. 672
• Parties: Frederick J. PUTNAM v. Georgia D. PUTNAM.
• Court: Appeals Court of Massachusetts

Page 777

389 N.E.2d 777

7 Mass.App.Ct. 672

Frederick J. PUTNAM v. Georgia D. PUTNAM.

Appeals Court of Massachusetts, Worcester.

Argued Feb. 9, 1979.

Decided May 29, 1979.

Thomas P. Dziejma, Oxford, for defendant.

Chalmers A. Peairs, Westboro (Arnold W. Olsson, Worcester, with him), for plaintiff.

Before HALE, C. J., and GRANT and PERRETTA, JJ.

PERRETTA, Judge.

This is the second appeal by the defendant (the wife) from a Probate Court judgment which provides that the marital home held by her and the plaintiff (the husband) as tenants by the entirety be sold and the net proceeds divided one-third to the wife and two-thirds to the husband. We reverse the judgment.

It was decided in Bianco v. Bianco, 371 Mass. 420, --- ^A, 358 N.E.2d 243 (1976), that G.L. c. 208, § 34, as appearing in St.1974, c. 565, empowers a Probate Court to make an equitable division of property upon a divorce. This court in Putnam v. Putnam, 5 Mass.App. ---, --- - --- ^B, 358 N.E.2d 837 (1977), (hereinafter Putnam I ), considered the findings necessary under § 34 to support such a division. In that case, the deficiencies in the judge's findings were explained at length, and the judgment, identical in all material respects to the one now before us, was reversed and the case remanded for further proceedings in accordance with the principles set out in the opinion. Specifically, this court noted that the Probate Court judge might have grounded the assignment of property either upon his findings as to the capital contributions of the parties towards the acquisition and maintenance of the marital house during their marriage or upon his findings as to the wife's conduct. Ibid. ^C Each of these alternatives was held to be an improper foundation for an equitable division under § 34. As to the wife's conduct, "we caution against the view that either alimony or a transfer of property may be justified purely on the basis of the blameworthy conduct of one of the spouses." Id. at --- - --- ^D, 358 N.E.2d at 841. With regard to the contributions of the parties, "the contributions of the spouses to the house should not be considered in isolation from the total contributions of the spouses towards all marital expenditures, whether current or capital." Id. at --- ^E, 358 N.E.2d at 841. The judge's findings did not rise to the required level, set out at --- ^F, 358 N.E.2d at 842: "An order for equitable division should normally encompass all substantial assets jointly owned and any separate property representing accretion during the marriage and should be based on a comprehensive analysis of all major elements of contribution by the spouses during the marriage."

On remand the parties declined to offer additional evidence and rested their cases, notwithstanding the fact that the judge called their attention to § 34 and that they had the benefit of the Putnam I explanation of the necessary evidentiary foundation for an assignment of property. The judge noted that he could not consider all the factors listed in § 34 because the parties had failed to bring forth evidence on some of the factors. In addition to his rulings made at the conclusion of the first hearing, the judge further ruled that he based the assignment of the marital home upon the parties' contributions to its acquisition and renovation And upon the wife's conduct. He thereby removed any speculation concerning the rationale of the apportionment. In Bianco, supra at --- ^G, 358 N.E.2d at 245, it was explicitly stated that "the record must show beyond doubt that the judge considered all the factors set forth by the statute. Otherwise the objectives of the statute will not be satisfied." The record establishes that the judge was well aware of the § 34 factors and the need for their consideration. However, when parties decline to offer evidence on these factors, or some of them, and there is, therefore, nothing upon which findings can be made, obviously a trial judge cannot be required to consider all the factors. In these instances, consideration of the factors thereby omitted can properly be deemed waived. ¹

The husband nevertheless argues that the evidence is sufficient to justify a division of the house under § 34. Such an assertion could be accepted only if we ignore the notion of "contributions of the parties" as described in Putnam I, supra at --- - --- ^H, 358 N.E.2d at 842: "The concept of property assignment or equitable division under G.L. c. 208, § 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." A reading of the transcript shows that the testimony concentrates on two issues to the almost total exclusion of all others: (1) the improper relationship between the wife and a teenage neighbor, which commenced sometime in the same year the husband filed for divorce, and (2) the contributions to the acquisition and renovations of the house. The parties gave little attention, if any, to their respective contributions to the five year "marital enterprise" at the first hearing and refused to offer additional evidence at the hearing after remand. There is no evidence of the noneconomic contributions of the parties to the marital enterprise and there is scant evidence of the economic contributions, other than as they pertain to the house. ² Thus, the evidence before us does not provide a sufficient basis for the comprehensive analysis contemplated by Bianco and Putnam I. ³ The result of such a failure of the evidence is the impossibility of an equitable division under § 34. "An equitable division should not be orderd in a case there the evidence introduced by the parties does not...