JONES v. JONES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The wife appeals from an amended judgment of divorce nisi and a judgment of dismissal of her complaint for contempt. The wife claims that the judge erred by admitting the expert testimony of Eric Purvis and erred in ordering the amount, duration, and tax consequences of the husband's alimony obligation.² The wife also claims that the judge erred by dismissing the wife's complaint for contempt. We affirm.

1. Expert testimony and report. The wife claims that the judge committed an error of law and abused her discretion by allowing Eric Purvis, a business valuation expert jointly hired by the parties, to provide expert testimony on the value of the husband's business. She also claims it was error to admit his report and for the judge to adopt his opinion of value. We disagree.

Despite jointly retaining Purvis,³ the wife claims that Purvis's unfamiliarity with Bernier v. Bernier, 449 Mass. 774 (2007), prevented him from being qualified as an expert and, as a result, his opinion of value was invalid.⁴ As the judge found, both parties had been given the opportunity to explore Purvis's methods and qualifications, by, among other things, depositions. Neither party deposed Purvis. Indeed, Purvis asked the parties whether he should be aware of any Massachusetts case law; neither provided any direction or mention of Bernier.

The wife does not elaborate on her attack on the qualification of Purvis as an expert or his report directly, but instead simply claims that because Purvis lacked knowledge of Bernier, his analysis is invalid. In any event, Purvis's methodology does not run afoul of Bernier. In fact, Purvis's asset-based evaluation is not inconsistent with Bernier and is consistent with the “fair value” approach utilized in Caveney v. Caveney, 81 Mass. App. Ct. 102, 109-110 (2012), and, crucially, his method avoided a minimal or negative valuation. Moreover, Purvis considered the market approach, income approach, and asset approach. As to the market approach, Purvis rejected it because the husband's company was not significantly comparable to publicly traded companies. As to the income approach, Purvis considered the capitalization of earnings methodology of valuation, but due to negative cash flow, could not develop a value using this method, a conclusion that benefited the wife. Because these two methodologies were not applicable, Purvis used the asset approach that analyzes the differences between the fair market value of an asset and the assets and liabilities thereof. Given these considerations, the judge did not abuse her discretion in allowing Purvis to testify as an expert, or in adopting Purvis's opinion of value.

The wife also challenges Purvis's report on procedural grounds, claiming that the report was not properly authenticated. We disagree. “[P]roof of authenticity usually takes the form of testimony of a qualified witness either (1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be” (quotation and citation omitted). Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977). Purvis was admitted as an expert and confirmed authorship of the report shortly after taking the stand. To the extent the report was entered in evidence before Purvis took the stand, the wife suffered no prejudice.⁵ See Adoption of Kimberly, 414 Mass. 526, 538 (1993).

2. Alimony. The wife claims that the judge erred as to the amount, duration, and tax consequences ⁶ of the husband's ordered alimony obligation. We disagree. Pursuant to the Alimony Reform Act of 2011, St. 2011, c. 124, “the amount of alimony should generally not exceed the recipient's need or 30 to 35 per cent of the difference between the parties' gross incomes.” G. L. c. 208, § 53 (b). The question of need has remained unchanged. It is “the amount required to enable [the wife] to maintain the standard of living she had at the time of the separation leading to the divorce, not the amount required to ․ maintain the standard of living ․ if the couple had not divorced.” Young v. Young, 478 Mass. 1, 2-3 (2017). Furthermore, “the supporting spouse generally should not be required to pay more than thirty-five per cent of the difference between the parties' gross incomes.” Id. at 7. Here, the judge ordered an amount of alimony equal to 32.4 percent of the difference between the parties' gross incomes.

In considering the wife's need, the judge found that, although the parties had an “upper middle class lifestyle” during the marriage, their lifestyle was on the decline toward the end of the marriage, and that they were “unable to sustain the lifestyle they lived during the financial heyday of the ninety's as they rely solely on husband's income, which has legitimately decreased substantially.” The judge's findings are amply supported by the record and the resulting order does not constitute an abuse of discretion. Young, 478 Mass. at 8 n.8 (wife's alimony limited to amount needed for her to continue to “live the lifestyle she enjoyed at the end of the marriage”).

As to the duration of the husband's alimony obligation, the wife claims that the parties' premarital relationship qualified as an economic partnership such that duration of the husband's alimony obligation would exceed the limits established by the statute. Pursuant to G. L. c. 208, § 48, the duration of an alimony obligation is based, primarily, on the length of the marriage as defined by statute. A judge “may” increase the length of the marriage for the purpose of calculating the durational limits “if there is evidence that the parties' economic marital partnership began during their cohabitation period prior to the marriage.” G. L. c. 208, § 48. The wife claims that the husband's payment of her college tuition and payment of a greater share of the expenses while they lived together, but before they were married, constituted unequivocal proof of an economic partnership. Here, the judge explicitly found there was no economic marital partnership as set forth in § 48. The record supports this finding, which we will not set aside unless clearly erroneous. See Henry v. Morris, 62 Mass. App. Ct. 714, 717 (2004). Moreover, the question of an economic partnership is discretionary as reflected in the statute's permissive language (“may”). See G. L. c. 208, § 48. The judge did not abuse her discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

3. Complaint for contempt. Finally, the wife claims that the judge erred in dismissing her complaint for contempt. She claims that the husband did not pay reasonable living expenses as mandated under the temporary order. In order to be adjudicated guilty of contempt, the moving party must prove, by clear and convincing evidence, that there was a clear and unequivocal order and a willful disobedience of the order. See In Re Birchall, 454 Mass. 837, 852-853 (2009). See also K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). However, the wife failed to offer any evidence of what reasonable living expenses she claims the husband did not pay. Therefore, the dismissal was not in error.⁷

Judgments affirmed.

FOOTNOTES

2.   The parties, by agreement, terminated the wife's life insurance obligation as reflected in the amended judgment of divorce nisi.

3.   After disagreement between the parties with respect to prior experts, the parties entered into a stipulation to appoint Purvis as an agreed upon business evaluator.

4.   Although the wife claims that she was effectively prohibited from retaining an expert of her own, she did not seek review by a single justice from the judgment denying her motion for reconsideration on the September 26, 2018 order providing that Purvis would be the only expert witness at trial. Purvis has been qualified as an expert in business valuation in the State of Maine where the husband's business is located. The judge found that he performed the valuation in accordance with accepted business valuation standards.

5.   Even if the report was improper hearsay, “the form in which information is ordinarily transmitted to an expert witness is often one that is not itself independently admissible ․ It is not the form of the presentation to the expert that governs whether an opinion may be based thereon, but the nature of the facts or data contained in that presentation.” Commonwealth v. Markvart, 437 Mass. 331, 337 n.4 (2002).

6.   As the judge noted, the husband's alimony obligation is explicitly limited to his ability to deduct it “to the extent permissible under federal and state law,” which renders the wife's claim as to the failure to consider the tax consequences meritless.

7.   Additionally, the husband's request for attorney's fees is denied. Avery v. Steele, 414 Mass. 450, 455 (1993) (“[u]npersuasive arguments do not necessarily render an appeal frivolous”). Any additional claims of error are either without merit or harmless. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).