Bacon v. Bacon

524 N.E.2d 401, 26 Mass. App. Ct. 117, 1988 Mass. App. LEXIS 400
CourtMassachusetts Appeals Court
DecidedJune 16, 1988
Docket87-927
StatusPublished
Cited by18 cases

This text of 524 N.E.2d 401 (Bacon v. Bacon) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bacon v. Bacon, 524 N.E.2d 401, 26 Mass. App. Ct. 117, 1988 Mass. App. LEXIS 400 (Mass. Ct. App. 1988).

Opinions

Greaney, C.J.

In Bacon v. Bacon, 23 Mass. App. Ct. 1000 (1987), we vacated the judgment in this divorce case insofar as it concerned financial matters and remanded the case to the probate judge so that he could articulate the rationale for his division of property under G. L. c. 208, § 34.1 See Bowring v. Reid, 399 Mass. 265, 268 (1987). The property under consideration for division consists principally of assets in the wife’s sole name, which had a value at the time of the divorce of [118]*118$3,020,552, and the jointly owned marital home, which had an equity at that time of $865,621. The judge considered the parties’ memoranda and entered an explanation of the theory underlying the division, which he did not change. Another judgment entered, which again ordered the husband to convey his interest in the marital home to the wife and ordered her to pay $200,000 to him2 and $20,000 in attorney’s fees to his counsel.3 The judgment also ordered the wife to assume the college education expenses of the two children of the marriage.4 The husband has appealed. We affirm.

The judge found that the assets to be distributed under G. L. c. 208, § 34, were assets acquired by the wife through gift or inheritance. He concerned himself basically with two issues: (1) the treatment of the assets in light of the factors set forth in G. L. c. 208, § 34, and especially the fact that the husband had contributed little to the marriage, and (2) the effect to be given to the parties’ standard of living, which was influenced by the income derived from the wife’s assets.

We reject the husband’s arguments (phrased in a variety of ways) that we should set the property division aside and order, a new division. The judge recognized that “[t]he underpinning of any order for division of property under § 34 is . . . consideration of the contributions, in the statutory terms, of each spouse, as well as other factors in existence at the dissolution of the partnership which have been traditionally applied in determining alimony.” Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985), and authorities cited. See Redding v. Redding, 398 Mass. 102, 108-109 (1986). He was also cognizant of the principles that contributions to the marital partnership encompass differing considerations and that an imbalance in [119]*119contributions may have an effect on the distribution. As has been said of this point:

“Disparity of contribution^] within the marriage may be addressed by a close judicial examination of particular facts on the case presented. Such an examination should reveal whether the marriage has been a true partnership characterized by team effort, or whether the burdens have been unequally allocated. An imbalance in the assumption of responsibilities and burden[s] is an indication that one spouse has failed to contribute. The discretion to make an equitable rather than an equal division of property enables the trial judge to deal flexibly with the problem of imbalance . . . .”

Inker & Glower, Towards a New Justice in Marital Dissolution: The Massachusetts Statutory Scheme and Due Process Analysis, 16 Suffolk U.L. Rev. 907, 935-936 (1982). See Savides v. Savides, 400 Mass. 250, 252-253 (1987); Heacock v. Heacock, 402 Mass. 21, 24 (1988); Putnam v. Putnam, 5 Mass. App. Ct. 10, 15 (1977); Davidson v. Davidson, supra at 369-370. The judge was also faced with the fact of the wife’s considerable wealth and the need to consider the husband’s future ability to maintain a reasonable standard of living.

Based on the evidence which he deemed credible, the judge considered the following. Apart from the marital home, the wife had substantial assets as a result of property acquired for her benefit by her family prior to the marriage. At the time of the marriage, the wife was the beneficiary of a trust that provided her with income of about $20,000 a year. The trust terminated in 1973, and at that time the wife received distributions of approximately $500,000. From 1973 to the time of the divorce, the value of the assets increased greatly, primarily due to inflation and the fact that income and dividends were added to principal. Investment decisions were made for the most part on the advice of the wife’s father. The husband played little role in the appreciation of the assets.

The same generally holds true for the marital home. That property was purchased with the wife’s funds, and she paid for [120]*120most of the renovations to the property which cost about $200,000. Apart from inflation, the present value of the property, therefore, is due in large part to the wife’s expenditure of her own funds.

The judge also considered these additional facts. At times, early in the marriage, the husband was abusive to the wife. The husband used the incpme that he earned during the marriage (when he was employed, which was not all the time) largely for his own purposes and basically relied upon the wife to support him. The husband, therefore, had the advantage of spending (and did spend) the income from the wife’s assets during the marriage. The judge found that the husband took $34,000 from the family checking account when he left the marriage. The husband bears no significant responsibility for the financial support of the children of the marriage, which may include considerable college expenses. We note that the marriage was of medium length, the parties having lived together for twelve years.

As for the husband’s needs, the judge considered that the husband presently has a position as an assistant dean for administration and planning at Harvard University which allows him to support himself adequately. (The husband’s salary at the time of the divorce was $38,400.) The position carries retirement benefits. In addition, the husband has approximately $7,000 in annual interest income. By virtue of a position as a senior tutor, the husband also has a two-bedroom apartment in Eliot House at Harvard which he presently occupies rent free. The accommodations are adequate for the husband and were found by the childrens’ guardian ad litem to be “entirely suitable'and appropriate for raising [the children].”

“If a judge has made findings consistent with his obligations under G. L. c. 208, § 34 (Rice v. Rice, 372 Mass. 398, 402-403 [1977]), indicating that he has fairly considered all factors relevant under § 34 and has not considered any irrelevant matter, his determinations as to alimony and property division may not be reversed unless ‘plainly wrong and excessive. ’ ” Redding v. Redding, 398 Mass. at 107, and cases cited. The judge did not have to follow any specific formula, Belsky v. [121]*121Belsky, 9 Mass. App. Ct. 852, 853 (1980); Downing v. Downing, 12 Mass. App. Ct. 968, 969 (1981); Caldwell v. Caldwell, 17 Mass. App. Ct. 1032, 1032 (1984), and the weight to be accorded to each of the § 34 factors was committed to his discretion. See Ross v. Ross, 385 Mass. 30, 37 (1982); Caldwell v. Caldwell, 17 Mass. App. Ct. at 1032. The judge has complied with our order of remand. The financial orders reflect that the judge sought to make an equitable, rather than an equal, division which was based on the judge’s appraisal of contributions, entitlements, and realistic needs.

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Bacon v. Bacon
524 N.E.2d 401 (Massachusetts Appeals Court, 1988)

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Bluebook (online)
524 N.E.2d 401, 26 Mass. App. Ct. 117, 1988 Mass. App. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bacon-v-bacon-massappct-1988.