MILLIREN v. MILLIREN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant (husband) appeals from an amended Superior Court judgment ² requiring him to pay more than $3.1 million to the plaintiff (wife) in connection with the husband's unsatisfied obligations arising out of the parties' 2001 divorce. Those obligations, involving a promissory note and an employment contract, were established by the 2001 separation agreement and incorporated, but not merged, in the divorce judgment. The husband contends that the judge erred (1) in determining that those obligations had not been discharged in the husband's proceeding under Chapter 7 of the United States Bankruptcy Code filed in 2005, and, (2) even if the obligations survived, in determining the amounts due. We conclude that the amended judgment, with some additional modifications, should be affirmed.

1. Dischargeability. We reject the husband's argument that the obligations were discharged in bankruptcy. The husband asserts that, at the time he entered into the separation agreement, his obligations to the wife based on the promissory note and employment contract would have been dischargeable in bankruptcy, but that Federal bankruptcy law, 11 U.S.C. § 523(a)(15), was amended in 2005 to make such obligations nondischargeable. The husband contends that the amendment should not be “retroactively” applied to obligations, such as his, that were already in existence.

We need not consider this retroactivity argument, because even if it were correct,³ the husband's claim would still fail. The separation agreement itself provided: “Any attempt by Husband or Wife, in any way, to discharge any of their obligations under this Agreement in any bankruptcy proceedings shall have no effect upon the responsibility of that party under this Agreement and shall in no event discharge him or her from complying with all the terms of this Agreement.” The husband's brief fails to acknowledge this provision,⁴ let alone offer any argument as to why it is not controlling. The husband thus has not shown any error in the judge's determination that his obligations were not discharged.⁵

2. Amounts due. The husband argues that the judge erred in calculating the amounts due under both the promissory note and the employment contract. The wife, for her part, acknowledges certain errors in the calculations for both amounts that she submitted to the judge and that were largely incorporated in the amended judgment. The wife's brief provides revised calculations and a reduced total damages amount. The husband's various arguments about the amounts due either (1) appear to have been addressed by the wife's revised calculations, (2) are without merit substantially for the reasons stated at pages thirteen to fourteen of the wife's brief, or (3) lack sufficient detail to persuade us that any revisions beyond those proposed by the wife are warranted. Accordingly, we conclude that the amended judgment should be modified only insofar as necessary to reflect the wife's revised calculations.

3. Conclusion. The amended judgment entered on December 13, 2018, is modified to provide that the amount of single damages is $2,260,957.45, the amount of prejudgment interest is $337,247.04, and the total judgment payable to the wife (including $280 in statutory costs already awarded) is $2,594,484.49. As so modified, the amended judgment is affirmed.

So ordered.

Affirmed as modified.

FOOTNOTES

2.   The amended judgment also applied to a related Probate and Family Court contempt proceeding filed by the wife; the Superior Court judge received an interdepartmental assignment to enable him to resolve both matters together.

3.   The husband has not supported his argument with any citation to relevant authority. The amendment to which he refers was made by Pub. L. 109-8, Title II, Subtitle B, § 215, 119 Stat. 54 (2005), and was made applicable to bankruptcy cases filed 180 days after the date of enactment, as the husband's case undisputedly was. Pub. L. 109-8, Title XV, § 1501, 119 Stat. 216 (2005). The husband cites no authority suggesting that, even in such postamendment cases, the amendment nevertheless should, or as matter of Federal constitutional law must, be held inapplicable to obligations incurred before its effective date.

4.   Indeed, the husband's brief goes so far as to affirmatively assert that “[n]othing in the agreement ․ indicated that it was the parties' intent that the obligations would survive a personal bankruptcy of the [husband] under all circumstances.”

5.   Our analysis does not depend on any statements regarding nondischargeability made by the husband's bankruptcy counsel in a 2016 proceeding under Chapter 11 of the Bankruptcy Code involving the husband. The wife's argument that these were judicial admissions is unfounded; “[s]tatements that amount to conclusions of law are not susceptible to treatment as judicial admissions.” Quinn v. Mar-Lees Seafood, LLC, 69 Mass. App. Ct. 688, 697 (2007). And the wife properly refrains from arguing that judicial estoppel should apply.