NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-927
BETH A. FORTES
vs.
EUGENE B. FORTES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Eugene B. Fortes (husband) appeals from a judgment of
divorce from Beth A. Fortes (wife) issued by a judge of the
Probate and Family Court.1 He argues that the judge erred by
(1) dividing the proceeds from the sale of the former marital
home equally, and (2) valuating his pension as of the date of
1The husband filed a notice of appeal from the judgment entered on March 20, 2024. Thereafter, the judge, who had reserved the right to prepare a supplemental judgment, rationale, and findings should either party file an appeal, did so on May 20, 2024. The amended judgment corrects an error related to the calculation of the proceeds from the sale of the marital home that remained in the escrow account. Although the husband did not file an appeal from the amended judgment itself, we exercise our discretion and review the divorce judgement dated May 20, 2024, and entered May 21, 2024. See generally Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019). the divorce judgment, rather than at an earlier time when, he
alleges, the wife's contribution to the marital partnership
ended. We affirm.
Background. We summarize the facts from the judge's
findings and the uncontradicted evidence in the record. The
parties were married in 2004 and had been married for
approximately twenty years at the time of trial. This was the
second marriage for the husband and the first for the wife.
Both parties have children from previous relationships, and in
2008, the husband adopted the wife's minor son.
During the marriage, the parties maintained a middle-class
lifestyle. The parties did not vacation much, but they
entertained regularly at the home they owned together in Roxbury
(the marital home). The husband worked as a firefighter for the
city of Boston and was the primary wage earner in the marriage.
The wife worked as a dental assistant and as an emergency
medical technician until 2013, when she stopped working due to
her health and to care for her mother. The wife is currently
receiving social security disability insurance and is unable to
work.
The parties stipulated, and the judge found, that as of
February 2, 2016, there had been an irretrievable breakdown of
the marriage. At that point, the husband voluntarily moved out
2 of the marital home and soon thereafter, on February 25, 2016,
the wife filed a complaint for divorce.
Due to restrictions imposed by the COVID-19 pandemic and
for other reasons that are not clear from the record, the trial
in this case commenced eight years after the complaint for
divorce was filed. During that time, the following events of
note occurred. On May 9, 2016, the parties executed an
agreement which, in part, granted the wife sole physical custody
of their minor child, allowed her to have sole use and occupancy
of the marital home, and required the husband to pay expenses
for the marital home in lieu of child support. Two years later,
on May 24, 2018, the parties filed a joint stipulation related
to the sale of the marital home in which they agreed to list the
property for sale by June 29, 2018. However, the house was not
listed by that date and was not sold until September 2021, at
which time the proceeds of the sale ($249,941.78) were placed in
escrow.
In light of the length of the marriage, the parties' mutual
contributions to the marital partnership, and after
consideration of all the statutory factors set forth in G. L.
c. 208, § 34, the judge divided the remaining equity from the
marital home equally between the parties.2 In addition, the
2 After adjusting for various advances taken by the parties, home and legal expenses, and disparities between the husband's
3 judge concluded that the wife was entitled to fifty percent of
the marital coverture portion of the husband's firefighter
pension from the date of the marriage to the date of the
judgment.3 The judge also awarded the wife $398.00 per week in
alimony and found that she was entitled to retroactive alimony.
Discussion. Our review of a judgment pursuant to the
equitable distribution statute, G. L. c. 208, § 34, proceeds
under a two-step analysis. "First, we examine the 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." Ravasizadeh v. Niakosari, 94 Mass.
App. Ct. 123, 126 (2018), quoting Hassey v. Hassey, 85 Mass.
App. Ct. 518, 524 (2014). A judge's determinations as to
equitable distribution will not be reversed unless they are
"plainly wrong and excessive" (citation omitted). Adams v.
Adams, 459 Mass. 361, 371 (2011). "[A] judge's discretionary
decision constitutes an abuse of discretion where we conclude
payment of voluntary spousal support and the award of retroactive alimony, the judge ultimately awarded the remaining proceeds from the sale of the marital home as follows: $55,652.96 for the wife and $70,719.39 for the husband. Neither party disputes these calculations.
3 At the time of trial, the husband's pension was not yet in payout status.
4 the judge made 'a clear error of judgment in weighing' the
factors relevant to the decision, such that the decision falls
outside the range of reasonable alternatives." Hoegen v.
Hoegen, 89 Mass. App. Ct. 6, 9 (2016), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
1. Proceeds from the sale of the marital home. The
husband first argues that the judge erred by dividing the
proceeds from the sale of the marital home equally. He contends
that he is entitled to a larger portion of the proceeds because
(1) the wife's contributions toward the marital enterprise ended
on April 6, 2017, when their son turned eighteen and she was no
longer responsible for his care, (2) the husband alone was
required to pay for all the expenses associated with the home
until it was sold, and (3) the wife caused the delay in the sale
of the home as she "refused to cooperate pertaining to the sale
of the former marital home for a period of time in excess of
three (3) years."
We discern no basis for disturbing the judge's decision
regarding the division of the proceeds of the marital home. The
judge made findings consistent with his obligation under the
statute, he considered the relevant § 34 factors, and his
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-927
BETH A. FORTES
vs.
EUGENE B. FORTES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Eugene B. Fortes (husband) appeals from a judgment of
divorce from Beth A. Fortes (wife) issued by a judge of the
Probate and Family Court.1 He argues that the judge erred by
(1) dividing the proceeds from the sale of the former marital
home equally, and (2) valuating his pension as of the date of
1The husband filed a notice of appeal from the judgment entered on March 20, 2024. Thereafter, the judge, who had reserved the right to prepare a supplemental judgment, rationale, and findings should either party file an appeal, did so on May 20, 2024. The amended judgment corrects an error related to the calculation of the proceeds from the sale of the marital home that remained in the escrow account. Although the husband did not file an appeal from the amended judgment itself, we exercise our discretion and review the divorce judgement dated May 20, 2024, and entered May 21, 2024. See generally Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019). the divorce judgment, rather than at an earlier time when, he
alleges, the wife's contribution to the marital partnership
ended. We affirm.
Background. We summarize the facts from the judge's
findings and the uncontradicted evidence in the record. The
parties were married in 2004 and had been married for
approximately twenty years at the time of trial. This was the
second marriage for the husband and the first for the wife.
Both parties have children from previous relationships, and in
2008, the husband adopted the wife's minor son.
During the marriage, the parties maintained a middle-class
lifestyle. The parties did not vacation much, but they
entertained regularly at the home they owned together in Roxbury
(the marital home). The husband worked as a firefighter for the
city of Boston and was the primary wage earner in the marriage.
The wife worked as a dental assistant and as an emergency
medical technician until 2013, when she stopped working due to
her health and to care for her mother. The wife is currently
receiving social security disability insurance and is unable to
work.
The parties stipulated, and the judge found, that as of
February 2, 2016, there had been an irretrievable breakdown of
the marriage. At that point, the husband voluntarily moved out
2 of the marital home and soon thereafter, on February 25, 2016,
the wife filed a complaint for divorce.
Due to restrictions imposed by the COVID-19 pandemic and
for other reasons that are not clear from the record, the trial
in this case commenced eight years after the complaint for
divorce was filed. During that time, the following events of
note occurred. On May 9, 2016, the parties executed an
agreement which, in part, granted the wife sole physical custody
of their minor child, allowed her to have sole use and occupancy
of the marital home, and required the husband to pay expenses
for the marital home in lieu of child support. Two years later,
on May 24, 2018, the parties filed a joint stipulation related
to the sale of the marital home in which they agreed to list the
property for sale by June 29, 2018. However, the house was not
listed by that date and was not sold until September 2021, at
which time the proceeds of the sale ($249,941.78) were placed in
escrow.
In light of the length of the marriage, the parties' mutual
contributions to the marital partnership, and after
consideration of all the statutory factors set forth in G. L.
c. 208, § 34, the judge divided the remaining equity from the
marital home equally between the parties.2 In addition, the
2 After adjusting for various advances taken by the parties, home and legal expenses, and disparities between the husband's
3 judge concluded that the wife was entitled to fifty percent of
the marital coverture portion of the husband's firefighter
pension from the date of the marriage to the date of the
judgment.3 The judge also awarded the wife $398.00 per week in
alimony and found that she was entitled to retroactive alimony.
Discussion. Our review of a judgment pursuant to the
equitable distribution statute, G. L. c. 208, § 34, proceeds
under a two-step analysis. "First, we examine the 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." Ravasizadeh v. Niakosari, 94 Mass.
App. Ct. 123, 126 (2018), quoting Hassey v. Hassey, 85 Mass.
App. Ct. 518, 524 (2014). A judge's determinations as to
equitable distribution will not be reversed unless they are
"plainly wrong and excessive" (citation omitted). Adams v.
Adams, 459 Mass. 361, 371 (2011). "[A] judge's discretionary
decision constitutes an abuse of discretion where we conclude
payment of voluntary spousal support and the award of retroactive alimony, the judge ultimately awarded the remaining proceeds from the sale of the marital home as follows: $55,652.96 for the wife and $70,719.39 for the husband. Neither party disputes these calculations.
3 At the time of trial, the husband's pension was not yet in payout status.
4 the judge made 'a clear error of judgment in weighing' the
factors relevant to the decision, such that the decision falls
outside the range of reasonable alternatives." Hoegen v.
Hoegen, 89 Mass. App. Ct. 6, 9 (2016), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
1. Proceeds from the sale of the marital home. The
husband first argues that the judge erred by dividing the
proceeds from the sale of the marital home equally. He contends
that he is entitled to a larger portion of the proceeds because
(1) the wife's contributions toward the marital enterprise ended
on April 6, 2017, when their son turned eighteen and she was no
longer responsible for his care, (2) the husband alone was
required to pay for all the expenses associated with the home
until it was sold, and (3) the wife caused the delay in the sale
of the home as she "refused to cooperate pertaining to the sale
of the former marital home for a period of time in excess of
three (3) years."
We discern no basis for disturbing the judge's decision
regarding the division of the proceeds of the marital home. The
judge made findings consistent with his obligation under the
statute, he considered the relevant § 34 factors, and his
reasons for his decision are apparent in his findings.4 See
4 The factors the judge must consider are "the length of the marriage, the conduct of the parties during the marriage, the
5 Adams, 459 Mass. at 371; Ravasizadeh, 94 Mass. App. Ct. at 126.
In making his determination, the judge took into account that
the wife's poor health affects her ability to maintain
employment while the husband had no similar impairments. The
judge also considered that the wife was limited in her ability
to acquire assets and income in the future while the husband,
who continues to work as a firefighter, was not so limited. In
addition, the judge specifically "[did] not find that the [w]ife
alone delayed the sale" of the home and, in fact, concluded that
both parties were responsible for various delays in the
proceedings. "There is no mathematical formula to determine
what weight a judge should accord to any of the factors in
§ 34." Williams v. Massa, 431 Mass. 619, 631 (2000). Based on
our review of the record, the equal division of the proceeds
from the sale of the home was well supported, and by no means
"plainly wrong and excessive." Id.
2. The husband's pension. Next, relying on Savides v.
Savides, 400 Mass. 250, 252-253 (1987), the husband argues that
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 sections 48 to 55, inclusive." G. L. c. 208, § 34. The judge "may also consider 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." Id.
6 the judge abused his discretion by measuring the marital
coverture portion of his pension from the date of the marriage
to the date of divorce judgment, March 20, 2024, rather than to
April 6, 2017, the date on which their son turned eighteen.5
As an initial matter, we note that at trial the husband
asserted that the operative termination date of the coverture
period was September 13, 2021, the date the marital home was
sold, or, in the alternative, May 24, 2018, the date the parties
agreed to sell the marital home. The judge did not consider,
nor was he asked to consider, the date of the son's emancipation
as the operative termination date. Accordingly, this argument
is waived. See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 86
(2014) (issue raised for first time on appeal waived).
Next, as noted, the judge specifically found that both
parties were responsible for the delay in selling the house.
The husband does not contend that this finding is clearly
erroneous and, in any event, even if he did so argue, the
finding has support in the record. Thus, the only question
before us is whether the judge abused his discretion by
concluding that the proper valuation date was the date of the
judgment rather than the date the marital home was sold.
5 In contesting the valuation dates for his pension, the husband does not dispute the judge's decision to award the wife fifty percent of the marital coverture portion.
7 We acknowledge that while a judge has discretion to choose
a valuation date that precedes the date of trial or judgment,
"the marital estate is typically determined as of the date of
the divorce trial." Moriarty v. Stone, 41 Mass. App. Ct. 151,
154 (1996). Here, unlike in Savides, 400 Mass. at 251, where
the judge found that the marriage had "effectively" ended on the
date of the parties separation, which occurred ten years prior
to the divorce hearing, the judge in this case made no findings
suggesting that the valuation date should not bear a
relationship to the date of the divorce judgment. Although the
husband and the wife separated in February 2016 and the house
was eventually sold in September 2021, the judge found that
"both parties were responsible for various delays in the
proceedings including failing to comply with multiple court
orders." This specific finding, coupled with the judge's
overall consideration of the § 34 factors, leads us to conclude
there was no abuse of discretion. See Trethewey v. Trethewey,
104 Mass. App. Ct. 114, 121 (2024) (judge did not err in setting
date of valuation of marital estate as end of divorce trial
given well-established practice of doing so and broad discretion
afforded to judge as to date of valuation).
3. Attorney's fees. The wife has requested an award of
appellate attorney's fees and "reasonable" costs. While we have
not been persuaded by the husband's arguments, we do not believe
8 sanctions are warranted as we cannot say that the appeal was
frivolous or initiated in bad faith. See generally Avery v.
Steele, 414 Mass. 450, 455 (1993). Accordingly, we decline to
exercise our discretion to award appellate attorney's fees and
costs beyond those costs normally provided under Mass. R. A. P.
26, as appearing in 481 Mass. 1655 (2019). See Oxford Global
Resources, LLC v. Hernandez, 480 Mass. 462, 478 (2018).
Judgment affirmed.
By the Court (Vuono, Henry & Wood, JJ.6),
Clerk
Entered: July 28, 2025.
6 The panelists are listed in order of seniority.