Barron v. Barron

556 N.E.2d 111, 28 Mass. App. Ct. 755, 1990 Mass. App. LEXIS 348
CourtMassachusetts Appeals Court
DecidedJuly 2, 1990
Docket88-P-1080
StatusPublished
Cited by6 cases

This text of 556 N.E.2d 111 (Barron v. Barron) 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
Barron v. Barron, 556 N.E.2d 111, 28 Mass. App. Ct. 755, 1990 Mass. App. LEXIS 348 (Mass. Ct. App. 1990).

Opinion

Perretta, J.

This divorce proceeding dissolved a twelve-year marriage during which the parties lived together for ten and one-half years. It was a second marriage for both the husband and wife, whose children from their prior marriages are now all emancipated. At the time of trial on this divorce, the husband was sixty-six years of age and the wife fifty-six. Each has a potentially disabling health condition. Other than to award the wife $40,000, as a division of property, the judge left the parties’ individual estates undisturbed. The husband was ordered to contribute to the wife’s legal expenses ($20,000), to maintain health insurance for her during the nisi period, and to pay her weekly support in the amount of $300 for five years. On the wife’s appeal, we conclude that the property division and alimony, unsecured and limited in duration, do not make adequate provision for the *756 needs of the wife. We vacate the judgment as it pertains to health insurance and alimony.

I. The Findings.

We recite the pertinent facts as the judge found them. When the parties married in 1976, the husband moved into the wife’s home, which became the marital residence. Her youngest child lived with them until his emancipation. The husband invested $30,000 in renovating the residence, which was also the business address for his company.

In 1953, the husband had established his own company in the food industry, Primarque Products Co., Inc. (Primarque). For many years, he was the sole employee of the company. Primarque was firmly established at the time of the parties’ marriage. The wife made little economic contribution to the business. She was a homemaker. She had an associate’s degree and some experience as a secretary. She did minor bookkeeping and telephone work for Primarque.

At the time of their marriage, as put by the judge, their “life style was set.” Whatever their earlier station might have been, during their marriage, they “owned their own home . . . had their own automobiles . . . took regular vacation trips [domestic and foreign],” were members of a country club, and dined out about twice a week on a regular basis. The husband worked about sixty hours a week to maintain this life-style. Further, the judge found that the husband “gave generously” to the wife, “i.e., a new automobile, fur coat, jewelry.”

In 1981, the husband had a tumor removed from the lining of his brain which resulted in some memory loss. This loss did not, however, interfere with his ability to continue to operate Primarque successfully until 1986, when he decided to transfer control of the company to his son and retire. This decision resulted in marital discord, and the parties ultimately separated.

We describe the financial arrangements of the sale. The husband established a purchase price of $300,000 for Primarque. The corporation was caused to issue its promissory note for $200,000 to the husband. The remainder, *757 $100,000, was treated as advancement on the son’s inheritance. 1 Although not set out in the judge’s findings, the son testified that, by the terms of the note, Primarque is to pay only interest on the note for fourteen years. Payment on the principal is not due until the husband attains the age of seventy-nine. Prior to the sale, the husband had life insurance somewhat in excess of $200,000. Primarque now owns that insurance and pays the premiums. In the event of the husband’s death, the insurance proceeds will be paid to Primar-que which, in turn, will pay the note with those proceeds to the husband’s estate. 2

In addition to the note, the husband has annuities, bonds, and other investments. The judge found the husband’s assets to have a value of $654,565. These assets, along with Social Security and disability benefits, provide the husband with a gross weekly income of $1,017.45. The judge also found that the husband receives “help from his son.” Although this “help” is neither detailed nor described in the findings, our review of the record, which includes documentary evidence, shows that the husband receives income, health insurance, use of an automobile, and travel expenses from Primarque. In 1987, by way of example, the husband received almost $20,000 in fringe benefits from Primarque.

At the time of the divorce, the wife worked in “retail sales,” that is, she was a sales person in a clothing store receiving $126 a week in base pay. The judge attributed an additional dollar per week to her “overtime, commissions, tips, bonuses, and part-time job.” Her investment income ($132.12) and alimony ($300) bring her to a gross weekly income of $559.12, which will be reduced by half in April of 1993, or sooner in the event of the husband’s death, by reason of the alimony provision in the judgment. The wife has been diagnosed as suffering from emphysema. However, the judge found that her condition “has not appreciably affected her day to day life.”

*758 As for the wife’s estate, the judge found it to be “substantial.” In addition to the former marital residence, which has a fair market value of about $174,000, the wife owns two condominium units which produce rental income and contribute to her gross weekly income. Although the judge recognized her joint ownership of this property with her brother in setting a value on it, he neglected to take into account the mortgages, which reduce the value of her estate by about $20,000. Moreover, because of the joint ownership, she does not have unfettered control of the property. 3 Further, the: $40,000 total value of her 1985 automobile, furnishings, china, crystal, and silver is a somewhat artificial credit to her estate in terms of her future security. These items, unlike annuities and bonds, produce no income and have no appreciable resale value. Indeed, the 1985 automobile will become a liability when its obsolescence will require its replacement. Even putting aside all these considerations, the wife’s estate was found to have a value of $338,795.

II. The Alimony Award.

In making the property and alimony award under G. L. c. 208, § 34, it was the judge’s rationale (see Bowring v. Reid, 399 Mass. 265, 267-268 [1987]) that the wife’s estate, if prudently managed, would provide her with sufficient income to meet her needs after receiving support for five years from the husband. Although we see no abuse of the judge’s broad discretion in determining that the parties would keep their individual assets, we see no support for his finding and conclusion that the wife could maintain herself without assistance from the husband. The only explanation for the limited duration of the alimony award is: “[The husband] has sufficient income to meet his own needs and. to provide support for the wife for a limited period of time. The wife has substantial liquid assets and real estate interests. She will need support from the husband for a limited period of time.”

At the time of the divorce, the wife’s salary and investments were providing her with about $260 a week. Even with *759

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Bluebook (online)
556 N.E.2d 111, 28 Mass. App. Ct. 755, 1990 Mass. App. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barron-v-barron-massappct-1990.