Zeh v. Zeh

• Decision Date: 03 September 1993
• Docket Number: No. 91-1097,91-1097
• Citation: 35 Mass.App.Ct. 260,618 N.E.2d 1376
• Parties: Lillian M. ZEH v. Stephen W. ZEH, Jr.
• Court: Appeals Court of Massachusetts

Page 1376

618 N.E.2d 1376

35 Mass.App.Ct. 260

Lillian M. ZEH v. Stephen W. ZEH, Jr.

No. 91-1097.

Appeals Court of Massachusetts Norfolk.

Argued Dec. 15, 1992.

Decided Sept. 3, 1993.

Ruth E. Soybel, Waltham, for Lillian M. Zeh.

Ira D. Feinberg, Boston, for Stephen W. Zeh, Jr.

Before DREBEN, JACOBS and GREENBERG, JJ.

JACOBS, Justice.

In this appeal from a divorce judgment entered in the Probate and Family Court, Lillian M. Zeh (wife), essentially claims that the judge was manifestly unfair in that he did not properly consider an inheritance of Stephen W. Zeh, Jr. (husband), and her contributions to the marriage in dividing their assets and awarding alimony pursuant to G.L. c. 208, § 34. She also argues that the judge erred in not making provision for health insurance coverage for her. We agree with her contentions, and accordingly vacate the financial components of the judgment and remand the case for further proceedings.

We recite the relevant facts from the judge's findings. The parties were married in 1964. They have two children, both adults at the time of the divorce hearing. After the birth of their second child in 1968, marital intimacy between the parties ended. "[T]he parties argued and on occasion were physically abusive to each other." The wife left the marital home and brought this action in August, 1988. The husband, a high school graduate, was self-employed during the marriage, managing residential property owned by him and his father. The wife, a college graduate, was employed throughout the marriage, first as a service representative for a telephone company and later in three part-time positions: meter maid, school crossing guard, and clerical worker. At the time of the divorce hearing in 1990, the wife was fifty-two years old and the husband fifty-six years old, and while each was experiencing physical ailments, both could continue their employment.

At the time of the divorce hearing, the husband's gross weekly income was $746.53, comprised of $394.77 in net rental income and $351.76 in dividends and interest, and the wife's gross weekly income was $410. The wife's net weekly earnings of $264.77 were insufficient to meet her weekly expenses of $406.41. The judge made no findings concerning the husband's needs other than that he was able to meet them and provide support for the wife. He also found that the husband had a gross estate of $603,820 ¹ and liabilities of $73,341, while the wife had an estate of $24,000, consisting almost entirely of future pension rights presently valued at $23,287, and liabilities of $32,417. In addition, approximately $11,000 of the husband's assets were being held in escrow by order of the court pending the outcome of the divorce action. The judge found that the wife was the primary caretaker of the children and the home during the marriage and utilized her earnings to purchase clothing for the children. She also did "some minor clean up work" and snow shovelling at the rental property managed by the husband. He found that the husband "took care of the children when the wife worked and took them camping and to baseball games." He characterized their station in life as "middle class."

From 1970 until the time of his death in 1984, ² the husband's father supplemented the parties' income. In 1975, he made a gift of several apartment buildings in Brookline to the husband. The husband later sold two of these buildings, remitted half of the proceeds to his father and used the other half to purchase property in New York in his and his father's name. The remainder of the Brookline property was valued at $236,000 at the time of the divorce hearing. The parties utilized one of the apartments as their home, and the husband continued to live there after the wife left. Upon his father's death, in 1984, the husband became the sole owner of property in New York valued at $178,000 at the time of the divorce. The husband's interest in other property in New York State jointly owned with his mother was valued at $165,000.

In the judgment of divorce, the judge awarded the wife a lump sum of $120,000 and weekly alimony of $100. The judgment also provided that the amount held in escrow be released to the husband and that he pay the wife's attorneys' fees in the amount of $10,000. The judgment contained no provision for health insurance for the wife.

The uncontradicted materials and evidence in the record indicate that the husband and his mother were nominated and appointed executors of his father's will, which was admitted to probate, without contest, in the State of New York on March 6, 1985; that the father's gross estate was valued at over one and one-half million dollars; and that the husband's legacy of a one-quarter interest in the residual estate was valued at $421,918.82. Notwithstanding the issuance of Federal and State estate tax closing letters in 1987, no explanation is contained in the record for the husband's legacy not having been distributed as of the time of the divorce hearing in October, 1990, nor for the nonpayment of accrued executor's fees owed to him in the amount of $40,389. Although the weekly dividend and interest income of $351.76 attributed to the husband by the judge in his findings emanated almost entirely from the father's estate, that fact is not mentioned in the findings, and the husband's share of the probate assets which generated that income is not included in the judge's listing of assets constituting the "estate" of the husband.

Aside from referring to the father's death in his findings and noting that the husband acquired certain real property in New York State as surviving joint owner, the judge does not make mention of any specific expectancies relating to inheritance beyond acknowledging that the husband "has a substantial opportunity to acquire further assets from the estate of his father, his fees as co-executor of that estate and an inheritance from his mother ³ ..." and finding that "[t]he husband's estate is directly due to the generosity of his parents and the inheritance from the estate of his father."

In his statement of the theory for his conclusions the judge stated that "[t]he assets of this marriage were acquired as a result of gifts and/or inheritances from the husband's parents," and "[t]he wife contributed nothing to the acquisition of these assets." He further stated that the wife "will have sufficient money to meet her reasonable needs" from her earnings, alimony, and income from the lump sum of $120,000.

The applicable legal principles are well established. "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)." Pare v. Pare, 409 Mass. 292, 296, 565 N.E.2d 1195 (1991). See Early v. Early, 413 Mass. 720, 727, 604 N.E.2d 17 (1992). "Contribution to the marital enterprise is a factor to be taken into account in what is a fair division of assets.... It is the duty of a reviewing court to consider whether the apportionment of assets flows rationally from the judge's findings under § 34." Denninger v. Denninger, 34 Mass.App.Ct. 429, 430-431, 612 N.E.2d 262 (1993), and cases there cited.

1. The Inheritance.

While an expectancy of an inheritance does not qualify as property subject to division under G.L. c. 208, § 34, it may be considered by the judge under the "criterion of 'opportunity of each for future acquisition of capital assets and income' in determining what disposition to make of the property which is subject to division." Davidson v. Davidson, 19 Mass.App.Ct. 364, 374-375, 474 N.E.2d 1137 (1985). See 2 Kindregan & Inker, Family Law & Practice § 883 at 481 (1990). An inheritance in possession clearly stands on different footing and constitutes part of the estate of the recipient subject to division under § 34. Earle v. Earle, 13 Mass.App.Ct. 1062, 1063, 434 N.E.2d 1294 (1982). Davidson v. Davidson, supra at 374 & n. 13, 474 N.E.2d 1137. Comins v. Comins, 33 Mass.App.Ct. 28, 30, 595 N.E.2d 804 (1992).

In the circumstances of this case, the husband's inheritance from his father falls well within the category of assets subject to division. As a noncontingent legacy, it vested as of the date of the father's death. See DiSanto v. Wellcraft Marine Corp., 149 A.D.2d 560, 562-563, 540 N.Y.S.2d 260 (N.Y.1989); 6 Bowe & Parker, Page on Wills § 59.2 at 378-380 & supp. 1993 nn. 10 & 11 (rev. ed. 1962). See also Union Trust Co. v. Nelen, 283 Mass. 144, 149, 186 N.E. 66 (1933); 2 Newhall, Settlement of Estates § 356 at 447 & n. 6 (4th ed. 1958). A fair estimation of the size of the legacy appears to have been available at the time of the divorce hearing, which was conducted five and one-half years after the father's will had been admitted to probate. In the absence of evidence of claims against the estate or other unusual circumstances, there is no reason to treat the legacy other than as part of the "estate" of the husband and subject to equitable division under § 34. It falls more closely within the definition of "estate" as "includ[ing] all property to which [a spouse] holds title, ... whenever and however acquired," Rice v. Rice, 372 Mass. at 400, 361 N.E.2d 1305, than "a number of intangible interests (even those not within the complete possession or control of...