Rolde v. Rolde

• Decision Date: 28 August 1981
• Parties: Alexandra K. ROLDE v. Edward J. ROLDE.
• Court: Appeals Court of Massachusetts

Page 388

425 N.E.2d 388

12 Mass.App.Ct. 398

Alexandra K. ROLDE v. Edward J. ROLDE.

Appeals Court of Massachusetts, Middlesex.

Argued May 15, 1981.

Decided Aug. 28, 1981.

Marjorie Sommer Cooke, Boston (Catherine S. Croisant, Boston, with her), for defendant.

David M. Wright, Boston (Jacob M. Atwood, Boston, with him), for plaintiff.

Before ARMSTRONG, ROSE and BROWN, JJ.

BROWN, Justice.

On August 29, 1977, Dr. Alexandra K. Rolde (wife) filed a complaint for divorce on the ground of cruel and abusive treatment. Thereafter the husband, Dr. Edward J. Rolde, cross-complained on the same ground. On May 7, 1980, a judgment of divorce nisi was entered in each action. The Probate Court awarded sole custody of the three minor children to the wife and ordered the husband to release all his interest in the marital residence in exchange for the settlement of any claims the wife might have with respect to alimony payments. See G.L. c. 208, § 34 (as appearing in St.1977, c. 467).

The husband was further released from all child support obligations, and the wife was ordered to convey to him all her interest in a parcel of land located in Maine. The husband brings this appeal challenging (a) the division of the marital assets and (b) the award of sole child custody to the wife. ¹ No question has been raised as to the divorces.

We think that this case is controlled in all material aspects by our extensive discussion and detailed analysis in ANGELONE V. ANGELONE, --- MASS.APP. ---, 404 N.E.2D 672 (1980)^A, of quite similar questions. As in Angelone, supra, we have before us a transcript of the evidence and the judge's detailed and comprehensive findings on all the essential and required factors pertaining to the matters in dispute. We are also aided in our resolution of the issues presented on appeal by the judge's extensive discussion concerning the hearings before him and his analysis of those proceedings.

The pertinent facts are summarized. The parties were married in May, 1966, and at that time both were engaged in their respective careers as psychiatrists. After approximately eleven years, the marriage had become less than idyllic. At that time the parties were severely antagonistic and embittered toward each other. ²

In December, 1977, the parties separated. At the time of this separation the parties had three children: David (age 10), Daniel (age 7) and Dorothy (age 3). The husband moved to a home in Brookline, and the wife remained with the three minor children in their marital home located in Weston. (In 1979 the husband purchased a home in Weston and relocated there). Prior to their separation the parties had agreed upon certain custody and visitation arrangements, whereby the children would continue to reside with the wife and the husband would have limited but reasonable visitation rights. On June 23, 1978, a temporary custody order was entered to that effect. The order provided that the children would spend six weeks in the summer, one evening a week, alternate weekends and alternate holidays with their father. Following an eight-day trial ³ the judge awarded sole custody of the children to the wife, limited Edward's visitation rights to two weeks in the summer, and eliminated evening visitation during the alternate weeks on which there is weekend visitation; the holiday schedule remained the same.

1. Division of marital assets.

In his principal challenge to the judge's division of the marital property, the husband, relying on dicta in Rice v. Rice, 372 Mass. 398, 361 N.E.2d 1305 (1977), contends that the trial judge "abused (his) discretion by making a tradeoff of (the husband's) equity in the marital home for (the husband's) support obligation for his children, a consideration not permitted by (G.L. c. 208, § 34)." We disagree. ⁴ See Topalis v. Topalis, 2 Mass.App. 530, 531, 316 N.E.2d 765 (1974).

Consistent with the mandate of G.L. c. 208, § 34, the Probate Court judge "made detailed findings on each item in the statutory collocation." Bahceli v. Bahceli, --- Mass.App. ---, ---, ^b 409 N.E.2d 207 (1980); Bianco v. Bianco, 371 Mass. 420, 423, 358 N.E.2d 243 (1976); Rice v. Rice, 372 Mass. at 401, 361 N.E.2d 1305; Putnam v. Putnam, 5 Mass.App. 10, 16-17, 358 N.E.2d 837 (1977); NEWMAN V. NEWMAN, --- MASS.APP. ---, 414 N.E.2D 627 (1981)^C. It is well settled that a judgment awarding alimony or a division of marital property which is supported by findings necessary to sustain it will not be set aside unless those findings are "plainly wrong." King v. King, 373 Mass. 37, 40, 364 N.E.2d 1218 (1977); Angelone v. Angelone, supra at --- - ---, ^d 404 N.E.2d 672. See Mass.R.Dom.Rel.P. 52(a) (1975).

A trial judge "has broad discretion in awarding alimony after he has considered all the statutory factors." Bahceli v. Bahceli, supra at ---, ^e 409 N.E.2d 207. That discretion is sufficiently broad to encompass "the myriad of different fact situations which arise," Newman v. Newman, supra at ---, ^f 414 N.E.2d 627, in these matters, and permits the judge (as was done here) to assign to one spouse property of the other spouse in lieu of an award of alimony. ⁵ King v. King, supra at 39, 364 N.E.2d 1218, and cases cited. The peculiar circumstances and highly charged emotions of the parties here called not only for the exercise of sound discretion but also for some careful creativity in arriving at a fair and reasonable financial settlement. See Rice v. Rice, 372 Mass. at 401, 361 N.E.2d 1305. The record indicates that the judge meticulously considered all the mandatory and discretionary factors, and there is ample evidence to support his comprehensive subsidiary findings. See Serino v. Serino, 6 Mass.App. 926, 380 N.E.2d 1323 (1978). There is "no evidence that the judge below considered any impermissible factors in deciding to award" the marital home to the wife. Rice v. Rice, 372 Mass. at 402, 361 N.E.2d 1305.

On the evidence the judge could permissibly find that both parties had and would continue to have substantial incomes and that their personal financial assets (notwithstanding some difficulty in ascertaining the precise amounts) were not insignificant. The judge could, accordingly, consider the parties' respective financial resources, as well as their "difficulty in communicating" and their total inability to "cooperate with each other" and "agree on child rearing," and reasonably conclude that the optimum arrangement for the future would be to preclude all personal interaction and financial transactions between the parties. ⁶ In these circumstances, we cannot conclude that the judge abused his discretion or committed an error of law in awarding the marital home to the wife and relieving the husband of all alimony and child support payments. ⁷ See Angelone v. Angelone supra at ---, ---, ^g 404 N.E.2d 672; Bahceli v. Bahceli, supra. See also Topalis v. Topalis, supra, 2 Mass.App. at 532, 316 N.E.2d 765 ("Alimony may include an allowance for the wife for the support of the children"); Klar v. Klar, 322 Mass. 59, 60, 76 N.E.2d 5 (1947). Contrast Rice v. Rice, 372 Mass. at 403, 361 N.E.2d 1305 (improper to consider "extraneous" factors).

2. Custody.

The husband argues that the judge erred in awarding sole custody to the wife and in so doing wrongfully presumed that maternal preference was in the children's best interests. It is true that in determining the question of custody "the rights of the parents shall ... be held to be equal." G.L. c. 208, § 31 (as amended through St.1977, c. 829, § 12). However, in deciding issues involving custody, the overriding concern of the court must be the promotion of the best interests of the children and their general welfare. Hersey v. Hersey, 271 Mass. 545, 555, 171 N.E. 815 (1930); Heard v. Heard, 323 Mass. 357, 375-377, 82 N.E.2d 219 (1948); Clifford v. Clifford, 354 Mass. 545, 548, 238 N.E.2d 522 (1968) ("sole question" is what is best for children's welfare). See Masters v. Craddock, 4 Mass.App. 426, 428, 351 N.E.2d 217 (1976); Angelone v. Angelone, supra at ---, ^h 404 N.E.2d 672; DIRUSSO V. DIRUSSO, --- MASS.APP. ---, 422 N.E.2D 463 (1981)^I. As a corollary to this standard, the Supreme Judicial Court in Jenkins v. Jenkins, 304 Mass. 248, 250, 23 N.E.2d 405 (1939), added: "In providing for the custody of a minor child, while the feelings and wishes of the parents should not be disregarded, the happiness and the welfare of the child(ren) should be the controlling consideration. It is the duty of the judge to consider the welfare of the child(ren) in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge." For a recent restatement of these principles, see Vilakazi v. Maxie, 371 Mass. 406, 409, 357 N.E.2d 763 (1976).

The judge did not abuse his discretion. He correctly applied these principles in deciding this question, and his conclusions are amply supported by his subsidiary findings, which are founded on the evidence. Moreover, "(t)he opportunity which the judge had to observe and appraise both parents is particularly important in a case of this kind." Stevens v. Stevens, 337 Mass. 625, 627, 151 N.E.2d 166 (1958). On this record we cannot say that the judge was clearly wrong in awarding sole custody to the wife. See Smith v. Smith, 361 Mass. 855, 279 N.E.2d 693 (1972); Clarke v. Clarke, 3 Mass.App. 736, 737, 326 N.E.2d 722 (1975). Contrast BOUCHARD V. BOUCHARD, --- MASS.APP. ---, 422 N.E.2D 471 (1981)^J.

Following eight days of trial, the major portion of which was devoted to the question of custody, the judge concluded that even though the wife "may be irrational in perceiving joint custody as a vehicle whereby her husband can continue to impose his will upon her," in the instant circumstances joint custody would be entirely inappropriate and injurious to the children. The husband does not claim that such "irrational" fears of the wife could cause her to become a "non-functional" parent...