Ward v. Grant

• Court: Appeals Court of Massachusetts
• Writing for the Court: PERRETTA
• Citation: 9 Mass.App.Ct. 364,401 N.E.2d 160
• Parties: Patrick J. WARD, Jr. v. Robert W. GRANT et al. (and a companion case 1 ).
• Decision Date: 11 March 1980

Page 160

401 N.E.2d 160 9 Mass.App.Ct. 364 Patrick J. WARD, Jr.
v.
Robert W. GRANT et al. (and a companion case ¹). Appeals Court of Massachusetts, Hampden. Argued Nov. 19, 1979.
Decided March 11, 1980.

Page 161

Patrick J. Melnik, Hadley, for plaintiff.

Robert E. George, Sturbridge, for defendants.

Before ARMSTRONG, ROSE and PERRETTA, JJ.

PERRETTA, Justice.

In the principal case, 1 the plaintiff, Ward, appeals from a judgment entered in the Superior Court dismissing his complaint brought pursuant to G.L. c. 109A, § 9. In that action Ward alleged that his debtor, the defendant[9 Mass.App.Ct. 365] Robert W. Grant, had conveyed his interest in realty in order to remove his assets from Ward's reach. The realty had been held by Robert and his wife, the defendant Sharon A. Grant, as tenants by the entirety. The judge found that Robert did not convey this asset for the purpose of defrauding his creditor and that the conveyance was not fraudulent as against Ward. These findings are neither clearly erroneous nor vitiated by an error of law, and we affirm the judgment.

This is a case "where the accuracy of the findings depends upon the credibility of the oral testimony and where the conclusions of the judge who saw and heard the witnesses must be given due weight." Metropolitan Life Ins. Co. v. Pollack, 332 Mass. 582, 584, 126 N.E.2d 373, 375 (1955). New England Canteen Serv. Co. v. Ashley, 372 Mass. 671, 675, 363 N.E.2d 526 (1977). Thus, while we are free to make additional findings because we have the transcript of the evidence, certain exhibits, and the findings and rulings of the judge, Mullins v. Riopel, 322 Mass. 256, 257, 76 N.E.2d 633 (1948); Western Massachusetts Elec. Co. v. Sambo's of Massachusetts, Inc., --- Mass.App. ---, --- ^a, 398 N.E.2d 729 (1979), we will not disturb any facts resolved on the basis of credibility. We relate the facts as contained in the judge's findings, which are not clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816-817 (1974), augmenting them with the undisputed portions of testimony set out in the transcript in order to provide a full narrative of the controversy. Hastoupis v. Gargas, --- Mass.App. ---, --- - --- ^b, 398 N.E.2d 745 (1980).

In 1968 Robert executed six promissory notes payable to Ward in the total principal amount of $18,000. These notes were due on January 16, 1973. In 1974 Robert married Sharon, who in 1976 purchased a motel-restaurant complex on Route 20 in Brimfield. She purchased this property with her own money and with her own credit, granting a mortgage to her seller. Robert took no part in this transaction, although he and Sharon operated the business together. Thereafter, Sharon desired to make improvements to her property, and she sought a loan from the Small Business Administration[9 Mass.App.Ct. 366] (SBA). When Sharon made her loan application, an SBA agent advised her that her application would be more favorably received if she and Robert held the property jointly. While such a statement by the SBA agent was improper, ² Sharon wished to enhance her application, and on September 28, 1976, she conveyed her property to Robert and herself as tenants by the entirety. By approximately January of 1977, Sharon was notified that the SBA had refused her request for a loan.

Sharon and Robert then took affirmative steps to convey the realty back to her. They contacted their attorney and informed him of their desire to retransfer the land. The deed, however, was in a safety deposit box in a bank in Palmer, and it was not retrieved until March. On March 15, 1977, Sharon and Robert executed a new deed conveying the property to Sharon, and the

Page 162

deed was recorded on March 24, 1977. On March 5, 1977, while Sharon and Robert were engaged in this process, Ward commenced suit against Robert on the notes he had executed in 1968 and had failed, as alleged by Ward, to pay when they became due in 1973. Ward gave notice of this suit to Robert at his usual address, but Robert was away with Sharon at the time, and Robert did not have actual notice of the suit until he returned home on March 10, 1977, five days after the commencement of the suit and five days prior to the transfer to Sharon. Ward contends the transfer is of no consequence to him because it was...