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
22-P-1182
J.K.S.
vs.
D.S.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal from a judgment of divorce nisi, D.S.S.
(husband), the former spouse of J.K.S. (wife), challenges the
property division favoring the wife. He argues that the judge
(1) adopted verbatim an excessive number of the wife's proposed
findings of fact, (2) erroneously assigned no value to the
wife's term life insurance policy, (3) erroneously allowed the
wife to introduce illegally obtained and improperly
authenticated evidence, and (4) failed to consider all the
relevant factors and thus ordered a property division that was
plainly wrong and excessive. We affirm.
Background. The parties were married in June 1988, had
three children together during the marriage (all of whom were adults at the time of trial), and separated in January 2019.
The wife filed a complaint for divorce a few months later. The
wife's health began to decline during the marriage. At the time
of trial, she was fifty-seven and described herself as
wheelchair bound. She resided in an assisted living facility
and suffered from serious health problems, including multiple
sclerosis (MS) and several types of cancer (then in remission).
The judge found that she was fully disabled and had no future
ability to earn income or acquire assets.
The husband was fifty-six at the time of trial. In 2008,
he began soliciting prostitutes, of whom he patronized about 200
during the period 2011-2014 alone. He became financially
entangled with certain of the women, including by making
substantial loans to them. Because of these financial
relationships, he was ultimately charged with various Federal
crimes. He entered into a plea agreement and completed all but
the supervised release portion of his sentence in 2021.
The judge divided the marital estate unevenly, in favor of
the wife. He awarded sixty percent of the retirement assets to
the wife and about seventy-three percent of the nonretirement
assets to the wife. The judge's rationale cited, among other
things, the wife's severe health issues, inability to support
herself, and extensive living expenses, i.e., the fees charged
by her assisted living facility. The judge acknowledged that
2 the husband's earning prospects were limited by his status as a
convicted felon. The judge gave considerable weight, however,
to the impact of the husband's conduct during the marriage in
depleting the marital estate. This included his "avoid[ance of]
gainful employment from 2013 onward," and his dissipation of
over $1 million in marital funds, comprised of about $700,000 on
prostitution, related travel, and bad loans, and nearly $500,000
on his criminal defense and forfeiture.
Discussion. 1. Adoption of proposed findings of fact.
The husband first argues that the judge adopted so many of the
wife's proposed findings of fact that we should scrutinize his
findings more strictly than under the "clearly erroneous"
standard prescribed by Mass. R. Dom. Rel. P. 52 (a). "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). But
"stricter scrutiny may be warranted in cases where the judge's
findings fail to evidence a badge of personal analysis"
(quotation omitted). Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Department of Mental Retardation (No. 1),
424 Mass. 430, 451 (1997). We are not persuaded.
3 After a nine-day trial, the wife submitted 512 proposed
findings, the husband submitted 1,101, and the judge made 767
findings. The husband claims that of the wife’s proposed
findings, the judge adopted "[576] sentences verbatim, or nearly
verbatim, and incorporated them into [425] of his findings."
The husband does not explain or provide the data underlying
these sweeping assertions, and we decline to undertake such a
line-by-line comparison ourselves. Instead, the husband
provides a few examples of what he claims are clearly erroneous
findings adopted from the wife that were prejudicial to his
position on division of the marital estate.
The husband has not shown that the indicia of independent
judicial analysis are absent here. See Anthony's Pier Four,
Inc. v. HBC Assocs., 411 Mass. 451, 465 (1991) (findings are
product of judge's independent judgment where judge deleted
specific language from submissions, incorporated some of
opposing counsel's proposed findings, and drafted findings and
conclusions of his own). Even if findings are recited verbatim
from a party's proposal, they are "not to be rejected out-of-
hand, and they will stand if supported by evidence" (quotation
omitted). Care & Protection of Olga, 57 Mass. App. Ct. 821,
823-824 (2003). Moreover, the judge's careful and detailed
eleven-page rationale "recited his own consideration of the
evidence and of the consequences that, in his view, the evidence
4 commanded." Id. at 824. That the judge did not adopt as many
of the husband's 1,101 proposed findings as the husband might
wish, including his 136 proposed findings on the wife's alleged
misconduct and dissipation, does not evince lack of independent
judgment.
Our conclusion is confirmed by our review of the specific
examples the husband cites to support his claim. The husband's
first example is the judge's finding 406, which appears
identical to the wife's proposed finding 169. The sole flaw the
husband cites in this detailed, four-sentence finding is that
the judge found the wife created a revocable trust in 2019
after, rather than before, funds from the husband's mother's
estate were deposited in the parties' joint checking account.
Although the single word "thereafter" in the judge's finding
appears clearly erroneous, the husband fails to persuade us that
there was anything nefarious about the timing of these events,
which occurred after the parties separated, or that the judge's
error had the slightest effect on the property division. The
husband argues that the wife's deposit of her mother-in-law's
estate proceeds into the revocable trust "turned what might have
been claimed as [the husband's] individual asset into a 'marital
asset.'" But it does not appear the husband argued to the judge
that the estate proceeds should be treated as his alone. Nor
does he explain how the timing of what he characterizes as the
5 wife's secret scheme prevented the judge from awarding the value
of those funds to him, if doing so were otherwise equitable.
The judge was empowered to "assign to either husband or wife all
or any part of the estate of the other." G. L. c. 208, § 34.
The judge's one-word error, on a matter of little if any
importance to the ultimate property division, is an insufficient
basis to subject the judge's findings as a whole to more
searching scrutiny.
The husband next points to the judge's findings 443 through
449, which, like the wife's proposed findings 183 through 186,
refer to a certain Fidelity charitable account as "Giving Grace
II," when the account's correct name was "Given Grace II."
Again, such a minor error on a matter of no significance to the
ultimate property division does not cause us to question the
judge's findings as a whole.
The husband also cites the judge's findings 443 and 444,
which, like the wife's proposed finding 183, state that "the
parties" opened and funded the Fidelity charitable account. The
husband argues that he alone opened and funded the account, yet
he fails to show that the judge's contrary findings are clearly
erroneous. At trial the husband testified (with emphasis added)
that "we opened it in 2000"; "we then called [it] Given Grace
II"; upon the sale of his business in 2012, "we received about
three million for our household, and I put 300,000 into the
6 . . . account"; and, "we had put other money in before then."
The wife testified to the same effect. The husband further
testified that, as of the time he began to serve his sentence,
"we had given away . . . up to around 220,000." 1
Not only do the husband's challenges to these findings
fail, his claim in his brief that those findings led the judge
to "award[] the entirety of the Given Grace II account to [the
wife]" is, intentionally or not, significantly misleading to
this court. It is undisputed that the parties could not
withdraw funds from the account for their own use; their rights
were essentially limited to directing how the funds were
invested and requesting that Fidelity make donations from the
account to particular charitable organizations. It is also
undisputed that Fidelity revoked the husband's rights in the
account in January 2020, and that what the judge awarded the
wife was not the value of the account for her own use but only
1 The husband also challenges the judge's finding 449, parallelling part of the wife's proposed finding 185, that the wife changed the password on the account because the husband could no longer participate in it. Fidelity terminated the husband's rights regarding the account in January 2020. Although the husband cites evidence that his password was "blocked on May 21, 2019," and "re-established on May 23, 2019," even if it were the wife who caused those actions, that would not contradict the judge's finding regarding the password change in January 2020. We add that the husband fails to explain how this issue is of any significance to the judgment.
7 the continued and sole right to request that Fidelity make
particular charitable donations from it.
Finally, the husband claims that the judge's findings 330,
331, 332, and 676 regarding the husband's work history and
income in 2014-2016 -- adopting the wife's proposed findings
147, 148, 149, and 279 -- are internally inconsistent. We
reject this argument. The judge's finding that the wife
believed the husband worked on only one consulting job in 2014
does not imply that the husband did no such work in 2015 or
2016, and the judge found that he did do some such work,
although the amounts he earned were small. 2 The husband's claim
on appeal that the judge "came to the wrong conclusion that
husband failed to earn income during that time" is baseless.
In sum, the husband has not identified any finding on any
material issue that was clearly erroneous. Nor has he shown
that the judge, in making those findings, failed to exercise
independent judgment.
2. Wife's life insurance policy. The husband argues that
the judge erred in assigning no value to the wife's term life
insurance policy, thereby rejecting the husband's actuary's
2 Thus, unlike the husband, we see no error in the judge's finding 326, mirroring the wife's proposed finding 146, that the husband "has been voluntarily unemployed or underemployed since September 2013."
8 testimony that the present value of the policy was $845,000.
After oral argument, we directed the judge to clarify certain of
his findings regarding this issue. The judge did so promptly
and in detail, and the parties accepted our invitation to file
supplemental memoranda addressing the revised findings. 3
The heart of the matter is revised finding 430 -- that the
evidence "has not . . . established" that "there is a market to
purchase" the policy. 4 The judge found that the husband's
actuary "did not provide any credible evidence that there are
prospective buyers of term life insurance policies," and that,
although the husband "stated that he spoke with multiple
companies that have an interest in purchasing life insurance
from patients with MS, no further information, nor credible
evidence, was provided to support this proposition." This was
3 Although the husband criticized the judge's original findings on this issue tracking those the wife proposed, the revised findings are plainly the product of the judge's independent judgment. The husband maintains that the judge's revised finding 435, in referring to the American Academy of Actuaries rather than the Society of Actuaries, retains an error originally adopted from the wife's proposed finding 498. Yet neither the judge's original nor his revised finding 435 refers, even implicitly, to the American Academy of Actuaries. Revised finding 435 is clear and fully supported by the actuary's testimony.
4 We are unpersuaded by the husband's claims that the judge, in revising finding 430, exceeded the scope of our order for clarified findings, and that the revised finding "inadvertently acknowledge[es]" that the wife has the option to sell the policy.
9 echoed in revised finding 437 -- "no prospective market has been
identified." These findings were fully supported by the
evidence, and we defer to the judge's credibility
determinations. See Johnston v. Johnston, 38 Mass. App. Ct.
531, 536 (1995).
With the wife having no proven ability to sell the policy,
the parties' disagreement about its value if it could be sold,
and the accuracy of the judge's findings on that issue, are
beside the point. The judge's revised finding 437, that the
value of the policy was "$0.00," is supported by the wife's
financial statement, and is not clearly erroneous.
3. Evidentiary issue. The husband argues that the judge
erroneously allowed the wife to introduce evidence that was
illegally obtained and improperly authenticated. The illegality
claim would fail even if we were to accept for purposes of
argument the husband's assertion -- unsupported by the
transcript citations he provides -- that the "[wife's] counsel
admitted accessing numerous [electronic] files without [the
husband's] knowledge or permission." The claim fails because
the husband has not identified either (1) what law was violated
by counsel's obtaining access to these records, or (2) what law
requires illegally obtained evidence (if there were any) to be
excluded from a civil divorce proceeding.
10 The husband's improper authentication claim is likewise
unavailing. The claim focuses on exhibit 157, an Excel workbook
maintained by the husband, which he called a "special task
file," recording the specific details of his sexual and
financial involvement with prostitutes from 2009 to 2014. The
wife offered and the judge admitted exhibit 157 based on the
husband's testimony that it was the spreadsheet into which he
had entered his activities with prostitutes, that the entries in
it were the same ones he had referred to at his Federal
sentencing proceeding, and that it was the subject of a
stipulation at his deposition in this case. The stipulation
recited in substance that the husband would assert his privilege
against self-incrimination in response to questions asking him
to confirm, as to each spreadsheet, that he created it, he was
the only person to enter data into it, he had personal knowledge
of all of the data, and that the data was accurate. From this
stipulation, the judge could draw the inference adverse to the
husband that he would have answered each question in the
affirmative. See Mass. G. Evid. § 525 (a) & note (2024). The
husband further testified that he believed the text contained in
the version of exhibit 157 produced at trial had been entered by
him.
The husband's testimony and the adverse inferences from the
stipulation were sufficient to authenticate exhibit 157. "To
11 satisfy the requirement of authenticating or identifying an item
of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it
is." Mass. G. Evid. § 901 (a) (2024). The wife offered exhibit
157 as "the spreadsheet that [the husband] entered [his]
activities with prostitutes into," and the testimony and
inferences amply supported a finding that the spreadsheet was
just that.
The husband argued to the judge, and repeats on appeal,
that other parts of his testimony called the exhibit's
authenticity into question. He testified that the exhibit was
missing information from the period from 2009 to 2011 and was
also missing other worksheets concerning his health, his medical
issues, and his loans. He stated that there were "errors and
modifications in this worksheet . . . it had been changed or
modified or corrupted or whatever over time." But even if the
judge credited this testimony, which he was not required to do,
it did not establish that the exhibit was not what the wife
claimed it to be: the spreadsheet into which the husband had
entered his activities with prostitutes. The husband does not
argue that the wife claimed it to be a complete record of those
activities or that the judge admitted it on that understanding.
The husband's authentication argument therefore fails.
12 4. Property division. Finally, the husband argues that
the judge's property division failed to properly consider the
factors set forth in G. L. c. 208, § 34. In reviewing a
property division, we first "examine the judge's findings to
determine whether all relevant factors in § 34 were considered,"
and then "determine whether the reasons for the judge's
conclusions are apparent in his findings and rulings"
(quotations omitted). Adams v. Adams, 459 Mass. 361, 371
(2011). "The weight to be accorded each of the § 34 factors in
a particular case is committed to the judge, who has broad
discretion in fashioning a judgment under § 34" (citation and
quotation omitted). Ross v. Ross, 385 Mass. 30, 37 (1982). We
leave the judge's property division undisturbed unless it is
"plainly wrong and excessive" (quotation omitted). Adams,
supra.
Here, the judge's rationale discussed the § 34 factors, and
carefully considered four different scenarios for an equitable
property division. We conclude that it meets the standards
outlined above and, in particular, that the property division is
not plainly wrong or excessive. We proceed to consider the
husband's specific claims of error.
a. Wife's needs. The husband asserts that the judge
"neglected to consider that [the wife] failed and refused to
13 exercise accessible options to reduce her . . . needs." 5
Specifically, he claims, the judge should have taken into
account that the wife could have applied for MassHealth or
Medicare benefits in order to reduce the amount of property she
would need in the future to pay for her medical care and
assisted living facility expenses. He further claims that
during the marriage, as the wife's illness progressed, "the
parties developed a plan" that relied primarily on MassHealth
and Medicare, rather than marital assets, to deal with her
future needs if the husband predeceased her.
At oral argument, however, the husband could cite no
evidence that the wife ever agreed to any such plan, and no
evidence regarding the level of benefits the wife could expect
to obtain from Medicare or MassHealth if and when she qualified
for either program. Although the judge commented at trial that
the wife should try to qualify for MassHealth, the husband
supplied no evidence of the extent to which MassHealth would
actually help meet the wife's financial need. The husband's
claimed plan assumed that the wife might need $250,000 to cover
her costs for five years, after which she would be "good to go"
5 The husband's argument also refers to the wife's "liabilities," but he fails to identify what they are. The wife's financial statement listed no liabilities, and the judge found that she had no debt.
14 under MassHealth. 6 Yet the claimed plan was made before the wife
actually entered assisted living, which the judge found cost
$7,000 per month at the time of trial and would "likely increase
in the future." For these reasons, if no others, we do not
fault the judge for declining to reduce the wife's projected
needs from the marital estate based on speculation about her
future receipt of government benefits.
b. Husband's contributions. The husband next argues that
the judge's findings failed to recognize the husband's
significant role in contributing to the wife's care and
treatment and in rearing the children. We see no basis for this
assertion. The judge's findings 131-139, 147, and 689 addressed
in detail the husband's assistance with the wife's medical care.
Similarly, findings 655, 657, 664-667, and 682-685, among
others, recognized the husband's contributions to the children's
upbringing, both while he was still employed and during his
periods of under- and unemployment.
Although the husband claims that the judge "discount[ed] or
ignore[d] [the husband's] contribution," he cites nothing
specific in the judge's findings or rationale to support this
6 The husband testified that the plan involved putting all remaining marital assets into an irrevocable trust, because otherwise it would be "wasted." The husband apparently viewed any expenditures by the wife in excess of what was needed to cover her assisted living costs as wasteful.
15 claim. The same is true of his sweeping claims that the judge
"cast aside . . . as irrelevant" the husband's testimony
regarding having contributed a total of $500,000 to the marital
estate from 2014-2018, and that the judge "failed to consider
the [parties'] disparate financial contributions to the marriage
prior to this period." The husband has simply failed to
identify with any specificity how the judge erred or abused his
discretion in dealing with those topics.
c. Wife's conduct. The husband next faults the judge for
giving insufficient consideration to the wife's various actions
that led to financial losses to the marital estate; in the
husband's view, the wife dissipated marital assets. To whatever
extent the wife was more responsible for these losses than the
husband, the judge was not required to view them as the result
of dissipation or any other inequitable conduct vis-à-vis the
husband. See generally Kittredge v. Kittredge, 441 Mass. 28,
36-41 (2004) (discussing varying concepts of dissipation and
treatment of financial losses caused by one spouse). The
husband's claim that the judge failed to weigh the wife's
disparate use of marital assets during the pendency of the
divorce is belied by the very passage of the judge's decision
the husband cites. The judge reasoned that the wife's
expenditures, although exceeding the husband's, differed from
his in that hers "were neither frivolous nor in pursuit of
16 illicit or criminal activity" but consisted of her "assisted
living expenses and counsel fees."
The husband further challenges the judge's finding that the
wife did not act inappropriately in using the husband's power of
attorney (POA) in connection with the sale of the marital
residence and with certain proceeds of the husband's mother's
estate. Even if those two uses of the POA had been improper,
however, the husband has not shown how they prejudiced him in
the property division.
With respect to the sale of the marital residence, the
husband argues that the wife's use of the POA to facilitate the
sale, over the husband's objection, led to the home being sold
for $700,000 below its appraised value. The short answer to
this contention is that the judge found "the home was sold for
fair market value by a commissioner[,] eliminating the parties
from the process," and the husband has not shown that that
finding is clearly erroneous. 7 The judge further found that the
net proceeds were deposited in an escrow account, from which
7 The docket suggests the sale was conducted by a court- appointed special master. The husband asserts that there was no evidence the sale price was reasonable, but he has failed to support this assertion with record citations. Nor has he explained why, after walking through the house with a realtor of his choice before a pending offer was accepted, he did not seek to stop the sale by the presumptively disinterested special master. Nor, as the judge found, did he offer any different opinion of the home's value at the next hearing.
17 court-authorized disbursements were made to the parties during
the pendency of the case, and the remainder was included in the
equitable division of property. The husband has thus shown no
prejudice from the wife's use of the POA preparatory to the sale
of the home.
Similarly, that the wife transferred the estate proceeds
into a trust in her own name did not place those proceeds beyond
the power of the judge to include them in the marital estate and
to divide them equitably. The judge found that the trust was
created "to protect the funds from further dissipation by [the
husband]." He also made detailed findings regarding how the
wife used the funds she transferred into the trust, including
"to pay the children's school expenses, repairs to the home,
overall living expenses and attorney's fees." The husband has
not shown that any of these findings are clearly erroneous, that
any of the specific expenditures were inappropriate, or that any
funds remaining in the trust were not equitably divided by the
judge. 8
d. Other issues. Finally, we comment briefly on the
husband's claims that miscellaneous errors and internal
8 The husband's brief identifies additional allegedly improper conduct by the wife that, according to the husband, the judge failed to consider. This argument is unavailing because, among other reasons, the husband fails to identify how such conduct prejudiced him in the property division.
18 inconsistencies in the judge's findings call into question
whether he properly considered the § 34 factors.
There is some internal tension in the findings regarding
how the husband's health might affect his future ability to earn
income and acquire assets. But the judge plainly recognized
that the husband had at least some such ability, whereas the
wife had none, and on appeal the husband does not challenge this
conclusion.
The husband criticizes certain of the judge's findings as
failing to recognize some of the time periods in which the
husband held family meetings, and when he assisted with the
wife's medical care. Yet the judge recognized those other time
periods elsewhere in his findings.
The husband cites minor date discrepancies in the judge's
findings regarding the husband's criminal case, yet he fails to
explain how the discrepancies were prejudicial. The husband
also faults the judge for a finding attributing certain of the
wife's business losses to the husband's incarceration, but the
husband fails to address the preceding finding, that the husband
himself attributed those losses to his arrest.
We need not discuss the husband's remaining assertions
regarding erroneous or inconsistent findings. We have
19 considered them and conclude that they are no more meritorious
than those we have just addressed. 9
Judgment affirmed.
By the Court (Milkey, Sacks & Smyth, JJ. 10),
Clerk
Entered: August 21, 2024.
9 The wife's request that she be awarded her appellate attorney's fees is denied.
10 The panelists are listed in order of seniority.