MILES v. BEUSCH (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Both the former wife (wife) and the former husband (husband) appeal from a Probate and Family Court further amended judgment of divorce nisi after remand (remand judgment) dated July 25, 2019. The husband also appeals from the judge's orders dated February 25, 2020, denying the husband's motion for a new trial and his motion to amend the remand judgment, findings, and rationale. We affirm.

Background. This case is here for the second time. In the first appeal, the husband sought, as relevant here, review of the further amended judgment of divorce nisi dated August 30, 2017 (first judgment). See Miles v. Beusch, 94 Mass. App. Ct. 1118 (2019). A panel of this court vacated portions of that judgment and remanded for further proceedings on three specific issues: (1) what income should have been attributed to the husband for the purposes of calculating child support; (2) whether the wife's ownership interest in a life insurance policy insuring her father should have affected the division of marital property; and (3) whether the wife received one $75,000 advance in 2014 against the division of the marital estate, or two such advances.

On remand, the judge directed the parties to file proposed amended findings of fact and proposed amended judgments. The parties did so, and approximately four months later, the judge issued amended findings and an amended rationale, a memorandum of decision, and the remand judgment.¹ The husband then filed a motion for a new trial and a motion to amend the remand judgment, findings, and rationale. After these motions were denied, both parties appealed.²

Discussion. We note at the outset that, in this second appeal, both parties make arguments concerning issues that were not within the scope of the limited remand order issued in the first appeal (and thus were not addressed by the judge on remand).³ Those issues are therefore not open in this appeal. The time to raise those issues, which we identify later in our discussion, would have been in the first appeal.

1. Husband's income for purposes of calculating child support. The findings in support of the first judgment attributed an annual income of $250,000 to the husband “while [he] is unemployed” and ordered child support accordingly. In the first appeal, the panel agreed with the husband that “it was an abuse of discretion to attribute income to him because he had recently been laid off and there was insufficient evidence of readily available positions at the attributed income level.” The panel therefore “remand[ed] for further findings as to whether the husband exercised reasonable efforts, since his layoff ․ to secure employment commensurate with his education, training, and work history” (emphasis added).

On remand, the judge found that during the limited period after the layoff as to which there was evidence -- the week between the layoff and the end of trial -- the husband made reasonable efforts to secure such employment. The judge then recalculated the child support order based on the husband's unemployment benefits and the severance pay he received for a brief period. The judge also ordered the husband to continue his reasonable efforts to seek employment and to submit detailed weekly reports of those efforts to the wife. The husband was also ordered to inform the wife when and if he obtained employment.

In this appeal, the wife does not argue either that the judge's amended finding of reasonable efforts was clearly erroneous or that the judge should have considered the posttrial period in evaluating such efforts. Nor does the wife challenge the mechanism that the judge established to ensure that the husband would continue to exert such efforts and that the wife would be kept fully apprised of them.⁴ Instead, the wife argues that because the husband was underemployed prior to his layoff during the divorce trial, the judge should have attributed income to him. The wife also argues that the judge should have considered the husband's investment income and dividends in determining the amount of his child support obligation and should have taken into account that the husband allegedly misrepresented his income in the earlier proceedings. None of these issues was within the scope of the remand, nor did the judge address them on remand, and we do not consider them.⁵

2. Wife's interest in life insurance policy. In the first judgment, the judge excluded the wife's interest in a life insurance policy insuring her father from the marital estate. In the first appeal, the panel concluded that one of judge's stated grounds for the exclusion -- that the wife lacked title to the policy -- was erroneous. Because the panel was “unable to discern whether the judge would have reached the same result if not for the error, remand [was] required on this issue.”

On remand, the judge corrected the error and found that the wife and her sister coowned the policy.⁶ Further, in response to a comment in the panel's decision, the judge found that “no marital assets were used to pay the ․ policy premiums that were not later reimbursed in full” by the wife's father. The judge also correctly observed that her original finding regarding the intended use of the policy proceeds -- that they were intended to be used to pay estate taxes on the wife's father's estate -- had not been disturbed in the first appeal. The judge thus affirmed her prior decision to exclude the wife's interest in the policy from the division of marital assets.

Before addressing the judge's rationale for doing so, we consider the husband's challenge to the amended finding regarding reimbursement of premiums.⁷ “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Barboza v. McLeod, 447 Mass. 468, 469 (2006), quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976). “It is the appellant's burden to show that a finding is clearly erroneous.” Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014). Here, the husband has not met his burden.

Here, the challenged finding is based on the judge's assessment of the credibility of witnesses, namely the wife and her father. The father asks us to reject the wife's and her father's testimony on the ground, among others, that the reimbursement mechanisms they described simply are “not how multi-millionaires like [the wife's] parents reimburse their children.” But “the credibility of a party or other witness who appeared at [a bench] trial is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). The husband has not made the requisite compelling showing here.⁸

We now turn to the judge's rationale for continuing, as she had in the first judgment, to exclude the wife's interest in the policy from the marital assets. The judge found that the policy existed solely to pay taxes on the wife's father's estate after his passing, and that the wife's future inheritance from her father was an expectancy that, while not sufficiently definite to be considered a divisible marital asset, had expressly been taken into account in the first judgment. The judge referenced the original findings in support of that judgment, in which she considered the expected inheritance in determining the wife's ability to acquire additional assets in the future. The wife's prospects in that regard originally led the judge to divide the assets in a manner that gave a larger share to the husband.⁹

We understand the judge to have reasoned that the wife's interest in the life insurance policy -- having effectively been paid for by the wife's father, and existing solely to pay the taxes on his estate so as effectively to increase the amount of the wife's likely inheritance -- was properly treated in the same manner as her interest in the inheritance itself. It was, in other words, an expectancy, not sufficiently definite to include in the marital estate, but properly considered in assessing the wife's ability to acquire additional assets in the future. Because the original judgment already took into account the existence of the policy and its intended use to pay estate taxes, and awarded a larger share of marital assets to the husband in recognition of the wife's expected inheritance, the fact that the policy was owned by the wife and her sister, rather than by her sister alone or by a trust, did not require any further adjustment to the equitable division of marital assets.

We see no abuse of discretion in the judge's determination. As discussed at length in the decision in the first appeal, a judge has considerable discretion in dividing marital assets after considering the factors set forth in G. L. c. 208, § 34. “We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ ” Zaleski v. Zaleski, 469 Mass. 230, 245 (2014), quoting Baccanti v. Morton, 434 Mass. 787, 793 (2001). It bears mention that the panel in the first appeal in no way suggested that the judge had abused her discretion by declining to treat the life insurance policy as a marital asset. Rather, the panel concluded only that one of the several factual premises the judge relied on in doing so was erroneous, and thus remanded for a determination of “whether the judge would have reached the same result if not for the error.” Now that the judge has answered that question in the affirmative, the husband has shown no basis to disturb the judgment as to the property division.

The husband finally argues that, aside from the life insurance policy, the judge also abused her discretion in excluding from the marital estate various other assets, such as an insurance settlement from an automobile accident involving the wife, unreported distributions from her parents' trusts, and what the husband asserts are “likely many other hidden assets.” Such issues were not within the scope of the remand, nor did the judge address them on remand, and thus they are not properly before us.

3. Advance distributions to wife. The first judgment accounted for one $75,000 advance received by the wife in 2014, during the pendency of the divorce proceedings. In the first appeal, the husband argued that record was unclear whether there had been one such advance in 2014, or two such advances. The panel agreed and remanded for clarification.

On remand, the judge found that there was no evidence of a second $75,000 advance and that the first judgment accounted correctly for the one such advance that occurred. Accordingly, the judge declined to modify the division of assets set forth in the first judgment. In this appeal, the husband argues that the amended finding of only one advance was clearly erroneous, and he submits various calculations from which he infers that the wife took two such advances.

Once again, the husband has not met his burden of showing that the challenged finding was clearly erroneous. See Allen, 86 Mass. App. Ct. at 298. He has not furnished us in his record appendix with copies of the judge's two orders relating to the 2014 advance(s). See Shawmut Community Bank, Nat'l Ass'n v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). More important, he has not furnished us with any financial records showing two 2014 withdrawals of $75,000 from marital assets, or two 2014 deposits of $75,000 into accounts controlled solely by the wife. The husband argues that “[a]dequate evidence would make this easy to resolve, but [the wife] refused to provide required discovery documents as shown in many gaps in [t]rial [e]xhibits for much of 2014.” The time and place to resolve any discovery disputes would have been in the trial court prior to trial. We can only rule based on the record that is now before us. The husband's arguments do not leave us “with the definite and firm conviction that a mistake has been committed” (citation omitted). Barboza, 447 Mass. at 469.

The husband further argues that, apart from the dispute over the $75,000 advance(s), the wife may have taken “an additional $50,000 prior to authorization.” This issue was not within the scope of the remand, nor did the judge address it on remand, and so we do not consider it.

4. Challenged findings of fact. The husband argues that judge's findings, even as amended on remand, continue to contain “dozens of clearly erroneous findings of fact,” and he challenges the judge's denial of his motion to amend those findings. So far as we can tell, however, and putting aside the assertedly erroneous findings that we have already discussed, the findings the husband challenges do not directly relate to any of the issues that were open or addressed on remand. Accordingly, we do not address them.

Conclusion. The further amended judgment of divorce nisi after remand, dated July 25, 2019, is affirmed. The orders dated February 25, 2020, denying the husband's motion for a new trial and his motion to amend the remand judgment, findings, and rationale, are affirmed.¹⁰

So ordered.

Affirmed

FOOTNOTES

1.   Three and one-half months after the husband filed his proposed amended findings and judgment, and while the judge had the matter under advisement, the husband filed a motion for an evidentiary hearing. The judge denied the motion as untimely and because the panel's remand decision did not direct the taking of additional evidence. The husband's brief includes a one-paragraph challenge to the denial of his motion. The husband has not, however, included the motion in his supplemental record appendix, leaving us with an inadequate record upon which to review his assertions. See Shawmut Community Bank, Nat'l Ass'n v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992) (appellant's obligation to provide portions of record necessary to review of claims on appeal). Based on the materials in the record, we see no abuse of discretion in the denial of the motion.

2.   The husband has not provided us with a copy of his motion for a new trial, nor does he make any arguments with respect to its denial. We therefore do not discuss it further.

3.   Under longstanding principles, “[i]t is the duty of the trial court, unless in its discretion it permits new issues to be raised, to follow implicitly the terms of the rescript and not to travel outside what is there laid down, read in the light of the opinion on which it is founded.” Lannin v. Buckley, 268 Mass. 106, 111 (1929).

4.   At oral argument, the wife acknowledged that (1) if she believed the husband was not complying with the reasonable efforts or reporting provisions, she could seek an order of contempt and (2) if the husband obtained employment, she could file a complaint for modification of the husband's child support obligations.

5.   The husband, who is self-represented, argues that the wife's brief contains false statements that relate to child support, but he states that we need not address his claim if, as we do, we affirm the judge's resolution of the child support issue. We therefore do not reach the claim regarding false statements, and we express no view as to the accuracy of the husband's claim. We do, however, caution the husband that the overheated rhetoric and frequent name calling in his brief and at oral argument is unlikely to advance his own interests, let alone the interests of the parties' three minor children in a fair, calm, and orderly resolution of the current and any future disputes between the now-divorced parties.

6.   The judge's amended finding states both that the “[w]ife and her sister co-own this life insurance policy” and that they “paid the premiums on [the] policy as trustees for an irrevocable trust established by her parents.” The portion of the amended finding referring to the wife's and her sister's role as trustees was made in the judge's original findings. It is unclear whether that reference, which is in some tension with the amended finding that the wife and her sister themselves coown the policy, was an inadvertent carryover from the original finding. The issue need not be resolved; despite the husband's extended argument in this appeal that the judge inappropriately considered the policy to be held by a trust, we think it clear that the judge, in revisiting the issue of division of marital assets, correctly considered the policy to be coowned by the wife and her sister.

7.   We do not consider the husband's challenge to the finding regarding the intended use of the policy proceeds. That finding was left undisturbed by the first appeal, and thus the judge was not required to address it on remand.

8.   Relatedly, the husband erroneously attacks the judge for “refus[ing] to acknowledge [his] involvement with the premium payments” and instead “consistently [saying] that only [the wife] and her sister paid the premium, which is clearly erroneous.” The judge's amended findings on remand acknowledge that “marital assets were used to pay” the premiums, but had been fully reimbursed.

9.   Moreover, the wife's expected inheritance benefited the husband in a second way. As the panel in the first appeal noted, “the judge declined to award alimony to the wife, despite the husband's superior earning potential, and noted that the expected inheritance would likely reduce any future alimony award.”

10.   The husband's request for attorney's fees is denied.