CONVERSE v. CONVERSE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Kimberley Jean Converse (wife), the former spouse of David Gary Converse (husband), appeals from a divorce judgment, issued by a judge of the Probate and Family Court on July 31, 2018, challenging the amount of the husband's alimony obligation, the property division, and the denial of her request for attorney's fees. We vacate the alimony award and remand the matter for further proceedings consistent with this memorandum and order. The remainder of the divorce judgment is affirmed.

Background. We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties were married in June of 1982. During the marriage, the husband was the primary wage earner and the wife was the primary caregiver of the parties' two children (both of whom are now adults). In 1994, the husband's parents established a revocable family trust naming the husband and his brother as remainder beneficiaries. Upon the death of the husband's mother, the husband will receive a three-sevenths share of the remaining trust balance, after various distributions to other beneficiaries totaling $62,000.

In November 2016, the wife filed a complaint for divorce. Soon thereafter, the husband was ordered to pay temporary alimony of $1,950 per pay period (approximately $975 per week). A two-day trial was held in early July 2018. The central disputed issues at trial were alimony and property division, with the wife seeking alimony of $1,300 per week, and approximately sixty-five percent of the marital assets.² The divorce judgment and accompanying “summary of decision” issued on July 31, 2018, followed by findings of fact on October 30, 2018. The divorce judgment provided, in relevant part, that (1) the husband shall pay general term alimony to the wife of $700 per week; (2) the wife shall receive fifty percent of the husband's retirement assets; (3) the wife shall retain the marital home, but shall pay the husband $35,000 on either refinancing the existing home equity line of credit within fourteen months, or selling the marital home if she cannot obtain refinancing; and (4) the parties shall be solely responsible for their respective liabilities and attorney's fees. The wife appeals from that judgment.

Discussion. The wife challenges the amount of the alimony award, the property division, and the denial of her request for attorney's fees. We address her arguments in turn.

1. Alimony. The wife contends that the judge erred in awarding alimony of only $700 per week, as it is insufficient to meet her needs and the husband has the ability to pay more.

Alimony is governed by the Alimony Reform Act (the act), G. L. c. 208, §§ 48-55. Although “[a] judge has broad discretion when awarding alimony,” Young v. Young, 478 Mass. 1, 5-6 (2017), quoting Zaleski v. Zaleski, 469 Mass. 230, 235 (2014), “the act establishes presumptive parameters: the amount of general term alimony ‘should generally not exceed the recipient's need or [thirty] to [thirty-five] per cent of the difference between the parties' gross incomes established at the time of the order being issued.’ ” Young, supra at 6, quoting G. L. c. 208, § 53 (b). See G. L. c. 208, § 53 (a).³ “A judge must consider and weigh all the relevant factors, but where the supporting spouse has the ability to pay, ‘the recipient spouse's need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage.’ ” Young, supra, quoting Pierce, 455 Mass. at 296.

Here, the judge found that the parties enjoyed a middle-class lifestyle during their thirty-four year marriage. The judge found that, at the time of trial, the husband's total gross weekly income was $3,090.31 ($2,998 salary and $92.31 household member contribution), and the wife's total gross weekly income was $345.77 ($5.77 sweepstakes prizes and $340 attributed income).⁴ The judge found the wife's credible weekly expenses to be $1,235.39. The judge concluded that the wife had a need for alimony “to maintain a similar standard of living as the one the parties enjoyed during the marriage,” and that the husband had an ability to pay. The judge awarded $700 per week, which was less than the amount of temporary alimony awarded during the pendency of the divorce proceedings.

The wife contends, and we agree, that the $700 alimony award places the parties in disparate financial circumstances, and is inconsistent with the judge's own findings regarding the wife's need and the husband's ability to pay. The judge's findings reflect that the wife has a need of at least $890 per week, before taking into account taxes due on her income. The judge's findings also reflect that the husband has an ability to pay approximately $1,252 per week, after taking into account all of his weekly expenses ($966.48) and paycheck deductions ($871.45 for health insurance, taxes, and retirement). The $700 alimony award leaves the wife with a weekly deficit of approximately $190, and the husband with a weekly surplus of approximately $537. We cannot discern any basis, either in the judge's findings or in the record, for awarding alimony below the wife's need, where her need is consistent with the marital lifestyle and is well within the husband's ability to pay. See Goldman v. Goldman, 28 Mass. App. Ct. 603, 611 (1990) (“Absent good reason, in a long term marriage, there is no justification for the life-style of one spouse to go down while the other remains high”). Accordingly, the alimony award must be vacated and remanded for a redetermination of alimony consistent with the wife's need and the husband's ability to pay, as found by the judge.

We address an issue related to the redetermination of alimony on remand. In finding the wife's weekly expenses to be $1,235.39, the judge declined to credit the entirety of her claimed motor vehicle expenses ($184.61 per week for insurance, fuel, and repairs).⁵ We will ordinarily not disturb a trial judge's credibility assessment, see Zaleski, 469 Mass. at 237, and the judge here was certainly within his discretion to conclude that the figure claimed by the wife was inflated. However, we think concluding that the wife had no motor vehicle expenses at all was “plainly wrong,” id., quoting Felton v. Felton, 383 Mass. 232, 239 (1981), especially given that the judge credited the husband's claimed motor vehicle expenses ($89.13 per week for fuel, insurance, and maintenance). Accordingly, on remand, the judge should determine what portion of the wife's claimed motor vehicle expenses are appropriate and reasonable, and make an adjustment of the wife's need for alimony reflecting those reasonable expenses.

2. Property division. The wife next challenges the property division, claiming the judge erred in failing to award her a larger percentage of the marital estate. We disagree.

“Our review of a judgment pursuant to the equitable distribution statute, G. L. c. 208, § 34, proceeds under a two-step analysis. ‘First, we examine the judge's findings to determine whether all relevant factors in § 34 were considered.’ ” Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Bowring v. Reid, 399 Mass. 265, 267 (1987). “The second tier of our review requires us to determine whether the reasons for the judge's conclusions are ‘apparent in his findings and rulings.’ ” Adams, supra, quoting Redding v. Redding, 398 Mass. 102, 108 (1986). “A judge's determinations as to equitable distribution will not be reversed unless ‘plainly wrong and excessive.’ ” Adams, supra, quoting Redding, supra at 107.

Here, the judge's findings reflect consideration of all relevant factors under § 34.⁶ The judge found the marital estate to be comprised largely of the husband's retirement accounts and the marital home. The judge found it appropriate to treat the husband's trust interest as an expectancy rather than a divisible marital asset,⁷ and considered it in connection with the husband's opportunity for the future acquisition of assets under § 34. The judge stated that the marital estate had been “approximately equally assigned,” except that the wife received a larger share (approximately seventy-three percent) of the equity in the marital home, “[i]n consideration of” the husband's trust interest. This resulted in the wife receiving approximately fifty-two percent of the total marital assets.⁸ The wife claims that the nearly equal division of assets demonstrated the judge's failure to give appropriate consideration to the wife's substantial liabilities and the husband's trust interest. We disagree.

“Mathematical precision is not required of equitable division of property,” Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989), and “[t]here is no mathematical formula to determine what weight a judge should accord to any of the factors in § 34.” Williams v. Massa, 431 Mass. 619, 631 (2000). “The weight to be accorded to each of the § 34 factors ․ is committed to the judge.” Ross v. Ross, 385 Mass. 30, 37 (1982), quoting Langerman v. Langerman, 9 Mass. App. Ct. 869, 870 (1980). We discern no abuse of discretion in the judge's weighing of the relevant § 34 factors here. See Langerman, supra.

Although at the time of trial the husband's family trust was worth approximately $1.1 million, there is no indication that the husband will receive close to three-sevenths of that amount on his mother's death. In addition to certain disbursements that are required prior to the husband receiving his share of the remainder, the trust is currently funding the care of the husband's mother and maternal aunt at a rate of $6,200 per month. The judge was, therefore, within his discretion to give some, but not substantial, weight to the husband's trust interest. Moreover, it is apparent from the judge's findings that he found the parties' respective contributions to the marriage to be relatively equal. Accordingly, “considering the roughly equal contribution here to the marital enterprise, the judge is hardly to be faulted about an apportionment close to 50%.” Fechtor, 26 Mass. App. Ct. at 861-862. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996) (“The parties' respective contributions to the marital partnership remain the touchstone of an equitable division of the marital estate”).

We likewise discern no abuse of discretion in the judge's consideration of the parties' respective liabilities. The judge found the wife's liabilities (comprised largely of credit card debt) to be $61,009.88, and the husband's liabilities to be $1,346. The wife testified that much of her credit card debt was incurred to pay for her attorney's fees, which, we note, were more than double the amount of attorney's fees incurred by the husband. The judge could have, therefore, “reasonably decide[d] to leave each ․ party to his or her debts.” Duckett v. Duckett, 27 Mass. App. Ct. 1164, 1165 (1989) (assigning individual liabilities to each party where husband had been profligate in incurring personal and business debts).

The wife further contends that it was error to require her to pay the husband $35,000 by either refinancing or selling the marital home. The judge explained that the $35,000 payment was “intended to assist the husband in purchasing his own real estate,” while remaining “a manageable amount in terms of the refinancing.” At the time of trial, the husband was sharing a one-bedroom apartment with the parties' adult son, while the wife was residing in the marital home. The judge had “broad discretion” to fashion an equitable distribution of marital assets that provided both parties with an opportunity to obtain suitable housing after the divorce. Dalessio v. Dalessio, 409 Mass. 821, 830 (1991). We therefore cannot say that it was “plainly wrong and excessive” to assign the husband twenty-seven percent of the marital home equity -- even if such assignment may ultimately require the wife to sell the marital home. Adams, 459 Mass. at 371, quoting Redding, 398 Mass. at 107.

3. Attorney's fees. The wife contends that it was an abuse of discretion to deny her request for attorney's fees, as the judge failed to consider the extent to which the wife's substantial liabilities were incurred to pay her own legal fees. We disagree. A judge may award counsel fees to either spouse in a divorce action, pursuant to G. L. c. 208, § 38. See Drapek v. Drapek, 399 Mass. 240, 248 (1987). The decision whether to award such fees “is within the discretion of the trial judge.” Id. Although the wife's attorney's fees left her with greater postdivorce liabilities than those of the husband, we cannot say that the judge's denial of the wife's fee request constituted “a clear error of judgment in weighing the factors relevant to the decision, ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). This is especially true where, as we have previously stated, the wife's attorney's fees were more than double those of the husband. Accordingly, we conclude that “the judge acted within his discretion in declining to award the wife attorney's fees.” Drapek, supra.

Conclusion.⁹ The portion of the divorce judgment requiring the husband to pay alimony of $700 per week is vacated, and the matter is remanded for a redetermination of the husband's alimony obligation consistent with this memorandum and order. The divorce judgment is affirmed in all other respects. During the pendency of the remand proceedings, the temporary order requiring the husband to pay alimony to the wife of $1,950 per pay period shall be reinstated and remain in effect until the remand judgment enters.

So ordered.

Affirmed in part; vacated in part and remanded

FOOTNOTES

2.   That amount included one hundred percent of the marital home equity worth $127,000, and approximately sixty percent of the husband's retirement assets worth $836,745.

3.   “In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material.” G. L. c. 208, § 53 (a).

4.   The judge found that the husband is in good health, while the wife suffers from several health issues that impact her ability to work full time. The judge credited the opinion of the husband's vocational expert that the wife was capable of earning $340 per week working part-time (twenty hours per week) in a clerical, data entry, or administrative position (and $600 per week as a web developer if the wife obtained additional training, i.e., a two-year associate's degree, in web development). The wife does not challenge the income attribution on appeal.

5.   The wife testified that weekly figure was comprised of $100 per month for insurance, $300 per month for fuel, and $400 per month for repairs and maintenance.

6.   The mandatory factors for the judge to consider are “the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive.” G. L. c. 208, § 34. The judge “may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.” Id.

7.   The wife does not challenge the judge's legal conclusion that the husband's trust interest should be excluded from the marital estate and instead treated as an expectancy.

8.   The total marital assets divided between the parties were approximately $1,001,267. The wife received total assets of approximately $522,617 ($418,372.76 in retirement assets, $92,291 in equity, $9,500 in motor vehicles, $453.02 in miscellaneous accounts, and $2,000 of the husband's HSA account). The husband received total assets of approximately $478,650 ($418,372.76 in retirement assets, $35,000 in equity, $4,940 in motor vehicles, $19,336.75 in miscellaneous accounts, and $1,000 of the HSA account).

9.   To the extent that we do not address the wife's other contentions, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).