KEIRSTEAD v. KEIRSTEAD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Cassandra Keirstead appeals from a divorce judgment in which her wife, Carol Keirstead, was awarded sole legal and physical custody of their three minor children. On appeal, Cassandra asserts that the judge improperly awarded custody of the children to Carol, and abused her discretion in failing to award Cassandra a portion of Carol's deferred compensation account. We affirm.

1. Custody of the couple's minor children. Cassandra claims that the judge abused her discretion in awarding Carol sole legal and physical custody of their three minor children, based upon Carol's “improper testimony” concerning Cassandra's mental health, and the Department of Children and Families' (DCF) alleged bias towards Carol. We disagree.

Before reaching the legal merits of her argument, we must first note the factual deficiencies in Cassandra's claims on appeal. First, Cassandra cites only statements from Carol's unadmitted deposition testimony for what she claims to be an improper lay opinion concerning her mental health. Here, the record is clear that Carol's deposition testimony was not admitted at trial, and Cassandra has shown no evidence that the deposition played any role in the judge's findings and custody determination. In fact, contrary to Cassandra's claim on appeal, the judge explicitly found that “[g]iven the limited information presented to the [c]ourt, the [c]ourt [could not] make a determination as to Cassandra's mental health status.” ² See Hunter v. Rose, 463 Mass. 488, 494 (2012) (judge's findings must stand unless plainly wrong).

Next, Cassandra claims that DCF was improperly biased towards her, which negatively impacted her chances of receiving custody of the children. However, like with Cassandra's argument regarding improper testimony concerning her mental health, no such credible evidence exists either in the record, or in the judge's findings of fact to support such a claim.³

Nonetheless, we review custody determinations for an abuse of discretion. Macri v. Macri, 96 Mass. App. Ct. 362, 369 (2019). The “touchstone inquiry” in awarding child custody is the best interests of the child. Id., quoting Hunter, 463 Mass. at 494. “The determination of which parent will promote a child's best interests rests within the discretion of the judge ․ [whose] findings ․ must stand unless they are plainly wrong.” Id.

Here, the judge found that “Cassandra's behavior ․ evidences her unwillingness to follow any regime for [her daughter] that she personally does not agree with.” ⁴ Specifically, Cassandra refused to follow medication recommendations for her daughter, and deliberately interfered with Carol's parenting time with all three children. Furthermore, the judge credited numerous acts of domestic abuse committed by Cassandra, and found that she improperly permitted the couple's son to have contact with his biological father, a registered sex offender who was not permitted to be in contact with children under the age of eighteen.

Therefore, given the extensive evidence in the record of Cassandra's improper behavior and its negative impact on the children, we are satisfied that the judge did not abuse her discretion in awarding sole legal and physical custody to Carol.

2. Division of assets. Pursuant to G. L. c. 208, § 34, the judge in a divorce action ought to consider a number of specifically enumerated factors in her decision to equitably distribute marital property between spouses. The judge's equitable distribution of assets will not be reversed on appeal unless plainly wrong and excessive. See Adams v. Adams, 459 Mass. 361, 371 (2011). We review such a property distribution first to determine whether all relevant factors in G. L. c. 208, § 34, were considered, and subsequently “whether the reasons for the judge's conclusions are ‘apparent in [her] findings and rulings.’ ” Id.

On appeal, Cassandra claims that the judge abused her discretion in failing to award her with a portion of Carol's deferred compensation account. Specifically, Cassandra argues that because she is retired, and dependent exclusively on her pension and Social Security payments, she is entitled to a portion of Carol's deferred compensation account. We disagree.

In the judge's extensive findings, she explicitly set forth the statutory standard found in G. L. c. 208, § 34, for the equitable division of marital property, as well as the relevant factors that accompany such a division. With those factors in mind, the judge found that at age sixty-nine, Cassandra, who has been retired for seventeen years, “requires the full weekly payment from her pension to live,” such that “division of that payment may not be possible.” ⁵ However, the judge also found that at age fifty-nine with only seven years until she reaches the full retirement age, Carol is equally dependent on her own deferred compensation account. Specifically, “[i]f Carol's deferred compensation account is divided such that half of it is awarded to Cassandra, Carol has a short time to continue to contribute to her retirement account and she could lose the benefit from Cassandra's pension if Cassandra dies.” ⁶

When weighing the factors found in G. L. c. 208, § 34, the judge found that “an equitable division requires that Carol and Cassandra should each retain their own retirement assets.” Given each spouse's age, health, and sources of income, coupled with the fact that each spouse's retirement plan is approximately equal in value,⁷ the judge found an equal division to be equitable.

Ultimately, there is no “mathematical formula” to determine what weight a judge should accord each factor found in G. L. c. 208, § 34. Williams v. Massa, 431 Mass. 619, 631 (2000). Broad discretion is awarded to the judge's division of property pursuant to G. L. c. 208, § 34, to allow the courts to “handle the myriad of different fact situations which surround divorces,” and to ensure that they “arrive at a fair financial settlement in each case” (quotation and citation omitted). Adams, 459 Mass. at 371. Here, the record is clear that the judge's property distribution “flow[s] rationally” from her extensive findings in relation to the relevant factors in G. L. c. 208, § 34. Williams, supra. Therefore, we are satisfied that the judge's equal division of the couple's retirement assets is neither plainly wrong nor excessive.

Judgment affirmed.

FOOTNOTES

2.   At the beginning of trial, the parties also stipulated on the record that the health of each party was not in dispute.

3.   In fact, the only evidence of an attempt to bias DCF comes from Cassandra herself, who “coached” the children on what to say when speaking to DCF. Cassandra even went so far as to provide her daughter with an envelope addressed to the judge, so that her daughter could write to the judge directly.

4.   In contrast, the judge found Carol to be fully capable of handling their daughter's medical needs.

5.   According to the judge, it is unlikely that Cassandra would acquire any future income or assets, such that she “requires all of her current income to meet her needs.”

6.   The award of sole legal and physical custody of the three minor children to Carol also weighs against Cassandra's argument that she is entitled to a portion of Carol's retirement assets, as G. L. c. 208, § 34, also considers “the present and future needs of the dependent children of the marriage.”

7.   Cassandra's pension was valued at $458,399, while Carol's deferred compensation account was valued slightly lower at $446,964.