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Appeals Court of Massachusetts.

Franz L. STEINER, Jr. v. Cathleen M. STEINER.


Decided: February 25, 2021

By the Court (Blake, Desmond & Hand, JJ.1)


Following a trial on April 10, 2019, a judge of the Probate and Family Court entered a judgment of divorce nisi on May 17, 2019, nunc pro tunc to April 10, 2019. The defendant (wife) appeals from the judgment arguing that the judge failed to properly consider the relevant factors under G. L. c. 208, §§ 34 and 53 (a), when awarding alimony and equitably dividing the marital estate. We affirm.

Background.2 The parties were married on September 18, 1983, and last lived together in March 2018. Together, they have four children, all of whom are emancipated. During the long-term marriage, the parties enjoyed a middle-class lifestyle, though they experienced some financial difficulties which ultimately led to the foreclosure of the marital home. Throughout the marriage, the husband owned a sign-making business and the wife worked as a public school teacher. The wife retired from teaching in 2017, but after her retirement, she received a waiver from the State Retirement Board which allowed her to continue teaching. At the time of trial, the wife worked as a public school teacher, and the husband continued to be self-employed as a sign-maker.

Both parties suffer from health issues, which they contend, impact their ability to work. In 2014, the husband was diagnosed with level three spinal stenosis, and was treated with surgery, but the diagnosis impacted his ability to stand for long periods of time, walk on ladders, and walk long distances. The husband was also subsequently diagnosed with chronic lymphocytic leukemia. In 2014, the husband applied for and was approved to receive Social Security disability benefits. After qualifying for the disability benefits, the husband downsized his business by selling some of his trucks and equipment, and began to work in a more limited capacity. At the time of trial, the husband earned approximately $343 per week from his self-employment, and also received $245 per week from Social Security.3

In or about 2010, the wife was diagnosed with hemochromatosis. Upon being diagnosed, the wife was required to treat her condition with bloodletting twice per week, and now requires the procedure once every three months for the remainder of her life.4 As a result of her health condition, the wife elected to retire early. The wife and the husband jointly selected option C as her retirement allowance, which permitted the husband to receive a survivor benefit. The wife currently receives $1,359 per week from her pension and earns $1,278 per week from her teaching position at the Narraganset Regional School District.

At the time of trial, the wife rented an apartment in Worcester, and the husband rented a house in Rutland where he lived and operated his sign-making business. The wife reported weekly expenses in the amount of $1,505.29, and the husband reported weekly expenses in the amount of $1,139. At trial, the husband testified, and the judge credited, that in lieu of paying his rent in cash, he provided services to his landlord by making repairs and performing other necessary maintenance work to the premises. Accordingly, the judge deducted the husband's reported rental expenses from his weekly expenses, and found that his weekly expenses were $886. The judge also found that the husband incurred a total of $1,540 in monthly business expenses.

In the judgment of divorce nisi, the judge ordered the wife to pay $172.50 per week to the husband as general term alimony. Additionally, the judge ordered the wife's pension to be divided equally between the parties, with the husband incurring the cost of the survivor benefit. The judge permitted the husband to retain the remaining tools and equipment that he owned for his business (valued at $15,000).5 Both parties were permitted to keep the vehicles and bank accounts held in their own name. Lastly, each party was held responsible for their own debt itemized on their respective financial statements, with the exception of a 2017 tax liability, which they were ordered to share equally.

Discussion. “In reviewing a property division under G. L. c. 208, § 34, or an alimony award under G. L. c. 208, §§ 48-55, an appellate court conducts a two-step analysis” (footnote omitted). Hassey v. Hassey, 85 Mass. App. Ct. 518, 523 (2014). “First, we examine the trial judge's findings to determine whether all relevant factors were considered (and whether irrelevant factors were disregarded). Next, we decide whether the rationale underlying the judge's conclusions is apparent and whether these flow rationally from the findings and rulings” (citations and quotations omitted). Id. at 524. “[B]ecause the judge has considerable discretion, determinations as to alimony and property division will not be reversed unless plainly wrong and excessive.” Id.

1. Alimony. The wife contends that it is not clear from the judge's findings that all of the relevant factors under G. L. c. 208, § 53 (a), were considered. We disagree. In making an alimony determination under the statute,

“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). “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 v. Young, 478 Mass. 1, 6 (2017), quoting Pierce v. Pierce, 455 Mass. 286, 296 (2009). “A judge has broad discretion when awarding alimony under the statute.” Young, supra at 5-6, quoting Zaleski v. Zaleski, 469 Mass. 230, 235 (2014).

The wife asserts that, when awarding alimony, the judge did not properly consider her health, her employability, the husband's income and expenses, the parties’ contributions, and the parties’ ability to maintain the marital lifestyle. Notably however, the vast majority of her arguments focus not on a lack of findings but her disagreement with the findings, which we will not disturb unless clearly erroneous. See Michelon v. Deschler, 96 Mass. App. Ct. 815, 816 (2020).

Contrary to the wife's contentions, the judge explicitly considered her health challenges and found that, although the wife experienced significant medical issues, her ability to work was not affected by those issues. Though the wife argues that the judge should have credited her statements that she retired as a result of her deteriorating health and that her health negatively impacts her ability to work, credibility determinations are “quintessentially the domain of the trial judge.” Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). It was up to the judge to determine whether to credit the wife's testimony, and “[i]t is not our role to interpret the evidence differently from the judge.” Cerutti-O'Brien v. Cerutti-O'Brien, 77 Mass. App. Ct. 166, 169 n.3 (2010).

The judge also considered the wife's future employability. See Zaleski, 469 Mass. at 240 (“ ‘Employability’ in this context means that a party has the capability of being employed”). The judge credited the wife's testimony that, in order to receive an income while simultaneously receiving her pension, the wife was required to obtain a waiver from the State Retirement Board. The judge found that, while the wife's future employability was uncertain, she had the potential and ability to earn additional income by obtaining such a waiver. We see no error. See Michelon, 96 Mass. App. Ct. at 816.

Next, the wife contends that the judge did not properly factor the husband's method of “paying” rent into her award of alimony. The claim is without merit. After determining that the husband paid his rent with services rather than cash, and that the husband listed cash rental payments on his financial statement, the judge, in her findings, reduced the husband's weekly expenses by his reported rent. She then considered the husband's rental arrangement when awarding him $172.50 per week in alimony, which amounts to twenty-five percent of the difference between both parties’ incomes (excluding the wife's pension) and is well within the permissible range under G. L. c. 208, § 53 (b). See Hassey, 85 Mass. App. Ct. at 525 (statute allows judge to base alimony award on need and/or income differential formula).

Finally, regarding alimony, the wife alleges that the judge failed to consider her contributions to the marriage, and more specifically, that her efforts were the reason the parties were able to maintain a middle-class lifestyle. She asserts that the husband is now enjoying a lifestyle superior to the one they maintained during the marriage, while she is forced to work beyond her capability. The judge, however, considered both parties’ substantial contributions to this long-term marriage. She found that the wife's monetary contributions exceeded the husband's, but that the husband significantly contributed to the marriage in other ways. Specifically, although both parties contributed to the home and the rearing of the children, the husband built his business workshop adjacent to the home in order to be more available to care for the children. Furthermore, the record does not support the wife's assertion that the husband is living a superior lifestyle. In fact, at the time of trial, the husband testified that he was living in substandard housing conditions, which he was working to improve through his rental arrangement with his landlord.6

In sum, we are satisfied that the judge considered all of the relevant factors under § 53 (a) in assessing the parties’ needs and their ability to pay, and conclude that she did not abuse her broad discretion in awarding alimony to the husband. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion as decision that “falls outside the range of reasonable alternatives”).

2. Equitable division. The wife argues that the judge failed to properly consider the factors under G. L. c. 208, § 34, in dividing the marital estate. “Section 34 contains both mandatory and discretionary factors that must be considered, see Drapek v. Drapek, 399 Mass. 240, 243 (1987), and allows a judge to ‘assign to either husband or wife all or any part of the estate of the other.’ ”7 Hassey, 85 Mass. App. Ct. at 531. “[A] judge has broad discretion to divide the marital property equitably.” D.B. v. J.B., 97 Mass. App. Ct. 170, 180 (2020).

In support of this assertion, the wife argues that the judge did not properly consider the application of the Windfall Elimination Provision (WEP), pursuant to 42 U.S.C. § 415(a)(7), in dividing the marital estate. “The WEP applies to individuals whose careers were split between employment covered by Social Security and government employment with pension benefits,” and provides a modified formula for calculating a person's benefits in order to prevent such individuals from receiving a windfall by being eligible for both Social Security and a government pension. See Ward v. Commissioner of Social Sec., 211 F.3d 652, 655 (1st Cir. 2000). Here, it is undisputed that the wife did not work long enough in a career covered by Social Security to be eligible for any future benefits. The wife argues however that because she is not eligible for her own benefits and is not entitled to her husband's Social Security benefits, see Mahoney v. Mahoney, 425 Mass. 441, 443 (1997), the judge erred in failing to award her a larger percentage of her pension. We are not persuaded.

The judge considered all of the relevant factors under § 34. She considered that the wife's pension was earned entirely during the long-term marriage, and that the husband made significant contributions to the marriage. The judge recognized that the husband earned Social Security disability, but as the wife acknowledges, such benefits are not assets subject to division. See Mahoney, 425 Mass. at 443. Broad discretion is awarded to the judge's division of property determinations 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.” Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Rice v. Rice, 372 Mass. 398, 401 (1977). On this record, we are unable to conclude that the judge's decision to divide the wife's pension equally between the parties was “plainly wrong and excessive.” Adams, supra, quoting Redding v. Redding, 398 Mass. 102, 107 (1986).

Lastly, the wife contends that the judge did not treat the husband's business as an asset of the marital estate. We disagree. The judge did consider the husband's business in dividing the marital estate, but assigned the husband's equipment and tools, valued at $15,000, to him alone, concluding that they were necessary for the husband to continue earning an income. Where the husband was earning a great deal less than the wife prior to the judgment, eliminating his ability to earn income in the future would make little sense. We discern no abuse of discretion. See Ross v. Ross, 50 Mass. App. Ct. 77, 81 (2000) (judge's discretion in equitable division “includes the discretion not to divide certain assets between the parties”).8

Judgment of divorce nisi affirmed.9


2.   We allow the husband's motion to strike portions of the wife's brief and record appendix to the extent they refer to a deposition transcript that was not admitted in evidence at trial. See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1116 (2019).

3.   The parties’ financial statements, which were presented to the trial judge, were not included in the record on appeal. We accordingly take all figures from the judge's findings of fact.

4.   “Bloodletting” is the “removing [of] blood, usually from a vein.” See Stedman's Medical Dictionary 232 (28th ed. 2006).

5.   The judge found that such tools and equipment were necessary for the husband to continue earning an income.

6.   The husband testified at trial that, when he moved into his current residence, the place was “gutted” and only had wall framing. He did not have a working bathroom, shower, or kitchen. He further testified that, at the time of trial, he still did not have running water or electricity in several rooms.

7.   “The mandatory factors for property division are now ‘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 [G. L. c. 208, §§ 48-55]. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage.’ The discretionary factors are ‘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.’ ” Hassey, 85 Mass. App. Ct. at 522 n.10, quoting G. L. c. 208, § 34.

8.   While the judge's findings of fact in this case were scant, she properly considered each of the relevant factors under §§ 34 and 53 (a) when equitably dividing the marital estate and awarding alimony to the husband. We are satisfied that, in the circumstances here, “the reasons for [her] conclusions are ‘apparent and flow rationally’ from [her] findings and rulings.” Baccanti v. Morton, 434 Mass. 787, 790 (2001), quoting Williams v. Massa, 431 Mass. 619, 631 (2000).

9.   The husband's motion for attorney's fees is denied.

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