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-1226
KAMBIZ NEGAHBAN
vs.
SEYEDEHSHABNAM NEGAHBAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (husband) appeals from a judgment of divorce
nisi entered following a trial in the Probate and Family Court.
The husband asserts the judge erred in the division of the
marital estate because he engaged in inequitable "double
dipping," erred in the valuation of the husband's ophthalmology
practice, and abused his discretion with respect to so much of
the judgment as relates to a second mortgage on the marital
home. We affirm.
1. Property division. "If a judge has made findings
consistent with his obligations under G. L. c. 208, § 34 . . . ,
indicating that he has fairly considered all factors relevant
under § 34 and has not considered any irrelevant matter, his determinations as to . . . property division may not be reversed
unless 'plainly wrong and excessive.' . . . The judge's reasons
for his conclusions, however, must be apparent in his findings
and rulings." Redding v. Redding, 398 Mass. 102, 107-108
(1986).
"Under G. L. c. 208, § 34, judges possess broad discretion
to divide marital property equitably." Dalessio v. Dalessio,
409 Mass. 821, 830 (1991). "[T]he purpose of § 34 is to
'empower the courts to deal broadly with property and its
equitable division incident to a divorce proceeding'"
(alteration omitted). Lauricella v. Lauricella, 409 Mass. 211,
213-214 (1991), quoting Davidson v. Davidson, 19 Mass. App. Ct.
364, 371 (1985). "No specific formula need be followed to
fashion an equitable judgment [under § 34]" (citation omitted).
Dalessio, supra.
a. "Double dipping." "Commentators use the phrase 'double
dipping' to describe the seeming injustice that occurs when
property is awarded to one spouse in an equitable distribution
of marital assets and is then also considered as a source of
income for purposes of imposing support obligations." Champion
v. Champion, 54 Mass. App. Ct. 215, 219 (2002). "Double
dipping" is not prohibited as a matter of law; "[r]ather, . . .
the judge must look to the equities of the situation to make her
determination." Croak v. Bergeron, 67 Mass. App. Ct. 750, 759
2 (2006). "[W]hile Massachusetts has looked with disfavor at so-
called 'double dipping,' . . . what constitutes 'double dipping'
is not easily defined, and whether it is improper in a
particular case must be carefully assessed" (quotation omitted).
Wasson v. Wasson, 81 Mass. App. Ct. 574, 579 (2012), quoting
Adams v. Adams, 459 Mass. 361, 394 (2011). Courts will not
conclude there is "double dipping" "where it is possible to
'identify separate portions of a given asset of a divorcing
spouse as the separate bases of the property assignment and any
alimony or support obligations.'" Adlakha v. Adlakha, 65 Mass.
App. Ct. 860, 865 (2006), quoting Dalessio, 409 Mass. at 828.
The husband maintains that it was inequitable "double
dipping" to award him his ophthalmology practice (practice) and
also consider it as a source of income for support purposes. We
disagree. The judge valued the practice using the
capitalization of earnings method and deducted a reasonable
salary expense for the husband. 1 Thus, the judge properly
"distinguish[ed] the income of the business from the reasonable
salary of the owner-operator, which was deducted as an expense
from the business income." Adlakha, 65 Mass. App. Ct. at 865
(no "double dipping" where valuation of spouse's business
included deduction for reasonable salary expense of owner-
1 To the extent the husband argues that the deduction should have been higher, we discern no clear error.
3 operator spouse). Even if we were to conclude that the judge
engaged in "double dipping," it was not inequitable because it
would be to the detriment of the husband, who was the higher
earner. See, e.g., Champion, 54 Mass. App. Ct. at 222.
b. Valuation of the practice. "Valuation of a business is
a question of fact." Bernier v. Bernier, 449 Mass. 774, 785
(2007). "Thus, the standard is whether the judge's findings
were clearly erroneous." Id. "When the opinions of valuation
experts differ, a judge may 'accept one reasonable opinion and
reject the other.'" Id., quoting Fechtor v. Fechtor, 26 Mass.
App. Ct. 859, 863 (1989). Alternatively, the judge can "reject
expert opinion altogether and arrive at a valuation on other
evidence." Fechtor, supra.
The husband maintains that the judge's valuation of the
practice was erroneous because the judge failed to provide the
value of the husband's normalized 2020 salary and did not
articulate the capitalization rate used in his calculations. We
are not persuaded. The judge concluded that the husband's 2020
salary "should not be adjusted" because that year's decreased
salary "was reflective of a decrease in the amount that he was
working that year" because of the COVID-19 pandemic. The
evidence supports this conclusion.
We are similarly unpersuaded by the assertion that the
judge had to recite the capitalization rate. The judge reasoned
4 that the wife's valuation expert "reduced his capitalization
rate by 2.6% to account for sustainable growth," but that the
practice's "earnings do not historically reflect that rate of
growth." Accordingly, and favorably to the husband's interests,
the judge declined to adopt the expert's proposed valuation of
$1,158,970, which the expert reached by using a capitalization
rate of 15.91%. The judge instead found a valuation of
$996,175. This valuation and the supporting rationale fell
within the judge's discretion and are not clearly erroneous.
2. Second mortgage. Finally, the husband asserts that the
judge abused his discretion by discrediting the promissory note
underlying the second mortgage and ordering the husband to take
steps to remove the second mortgage. We discern no error.
After hearing testimony from the husband and wife, and
reviewing the promissory note and supporting evidence, the judge
determined that the promissory note was "not credible," so the
second mortgage was "not a legitimate encumbrance on . . . the
marital home." This finding was adequately supported by the
evidence. As the judge reasoned, the promissory note was "not
notarized, and neither Husband's mother nor his sister testified
to corroborate the details of execution." The judge found that
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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-1226
KAMBIZ NEGAHBAN
vs.
SEYEDEHSHABNAM NEGAHBAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (husband) appeals from a judgment of divorce
nisi entered following a trial in the Probate and Family Court.
The husband asserts the judge erred in the division of the
marital estate because he engaged in inequitable "double
dipping," erred in the valuation of the husband's ophthalmology
practice, and abused his discretion with respect to so much of
the judgment as relates to a second mortgage on the marital
home. We affirm.
1. Property division. "If a judge has made findings
consistent with his obligations under G. L. c. 208, § 34 . . . ,
indicating that he has fairly considered all factors relevant
under § 34 and has not considered any irrelevant matter, his determinations as to . . . property division may not be reversed
unless 'plainly wrong and excessive.' . . . The judge's reasons
for his conclusions, however, must be apparent in his findings
and rulings." Redding v. Redding, 398 Mass. 102, 107-108
(1986).
"Under G. L. c. 208, § 34, judges possess broad discretion
to divide marital property equitably." Dalessio v. Dalessio,
409 Mass. 821, 830 (1991). "[T]he purpose of § 34 is to
'empower the courts to deal broadly with property and its
equitable division incident to a divorce proceeding'"
(alteration omitted). Lauricella v. Lauricella, 409 Mass. 211,
213-214 (1991), quoting Davidson v. Davidson, 19 Mass. App. Ct.
364, 371 (1985). "No specific formula need be followed to
fashion an equitable judgment [under § 34]" (citation omitted).
Dalessio, supra.
a. "Double dipping." "Commentators use the phrase 'double
dipping' to describe the seeming injustice that occurs when
property is awarded to one spouse in an equitable distribution
of marital assets and is then also considered as a source of
income for purposes of imposing support obligations." Champion
v. Champion, 54 Mass. App. Ct. 215, 219 (2002). "Double
dipping" is not prohibited as a matter of law; "[r]ather, . . .
the judge must look to the equities of the situation to make her
determination." Croak v. Bergeron, 67 Mass. App. Ct. 750, 759
2 (2006). "[W]hile Massachusetts has looked with disfavor at so-
called 'double dipping,' . . . what constitutes 'double dipping'
is not easily defined, and whether it is improper in a
particular case must be carefully assessed" (quotation omitted).
Wasson v. Wasson, 81 Mass. App. Ct. 574, 579 (2012), quoting
Adams v. Adams, 459 Mass. 361, 394 (2011). Courts will not
conclude there is "double dipping" "where it is possible to
'identify separate portions of a given asset of a divorcing
spouse as the separate bases of the property assignment and any
alimony or support obligations.'" Adlakha v. Adlakha, 65 Mass.
App. Ct. 860, 865 (2006), quoting Dalessio, 409 Mass. at 828.
The husband maintains that it was inequitable "double
dipping" to award him his ophthalmology practice (practice) and
also consider it as a source of income for support purposes. We
disagree. The judge valued the practice using the
capitalization of earnings method and deducted a reasonable
salary expense for the husband. 1 Thus, the judge properly
"distinguish[ed] the income of the business from the reasonable
salary of the owner-operator, which was deducted as an expense
from the business income." Adlakha, 65 Mass. App. Ct. at 865
(no "double dipping" where valuation of spouse's business
included deduction for reasonable salary expense of owner-
1 To the extent the husband argues that the deduction should have been higher, we discern no clear error.
3 operator spouse). Even if we were to conclude that the judge
engaged in "double dipping," it was not inequitable because it
would be to the detriment of the husband, who was the higher
earner. See, e.g., Champion, 54 Mass. App. Ct. at 222.
b. Valuation of the practice. "Valuation of a business is
a question of fact." Bernier v. Bernier, 449 Mass. 774, 785
(2007). "Thus, the standard is whether the judge's findings
were clearly erroneous." Id. "When the opinions of valuation
experts differ, a judge may 'accept one reasonable opinion and
reject the other.'" Id., quoting Fechtor v. Fechtor, 26 Mass.
App. Ct. 859, 863 (1989). Alternatively, the judge can "reject
expert opinion altogether and arrive at a valuation on other
evidence." Fechtor, supra.
The husband maintains that the judge's valuation of the
practice was erroneous because the judge failed to provide the
value of the husband's normalized 2020 salary and did not
articulate the capitalization rate used in his calculations. We
are not persuaded. The judge concluded that the husband's 2020
salary "should not be adjusted" because that year's decreased
salary "was reflective of a decrease in the amount that he was
working that year" because of the COVID-19 pandemic. The
evidence supports this conclusion.
We are similarly unpersuaded by the assertion that the
judge had to recite the capitalization rate. The judge reasoned
4 that the wife's valuation expert "reduced his capitalization
rate by 2.6% to account for sustainable growth," but that the
practice's "earnings do not historically reflect that rate of
growth." Accordingly, and favorably to the husband's interests,
the judge declined to adopt the expert's proposed valuation of
$1,158,970, which the expert reached by using a capitalization
rate of 15.91%. The judge instead found a valuation of
$996,175. This valuation and the supporting rationale fell
within the judge's discretion and are not clearly erroneous.
2. Second mortgage. Finally, the husband asserts that the
judge abused his discretion by discrediting the promissory note
underlying the second mortgage and ordering the husband to take
steps to remove the second mortgage. We discern no error.
After hearing testimony from the husband and wife, and
reviewing the promissory note and supporting evidence, the judge
determined that the promissory note was "not credible," so the
second mortgage was "not a legitimate encumbrance on . . . the
marital home." This finding was adequately supported by the
evidence. As the judge reasoned, the promissory note was "not
notarized, and neither Husband's mother nor his sister testified
to corroborate the details of execution." The judge found that
the wife testified credibly that the husband did not raise
financial concerns about buying the marital home and that, while
she knew some of the funds originated in Iran, the wife was not
5 aware that the husband's mother was involved, or that there was
a promissory note, until discovery in the divorce case.
Further, the judge noted that the "promissory note was not
recorded as a second mortgage on the Marital Home until
September 20, 2019, nearly a decade after the promissory note
was allegedly executed and on the eve of divorce." The judge
acted well within his discretion in rejecting the legitimacy of
the promissory note. See B.B.V. v. B.S.V., 68 Mass. App. Ct.
12, 18-19 (2006).
The judge ordered that, "[t]o the extent necessary for
sale, Husband shall take steps to release the second mortgage
from the Marital Home prior to sale, pursuant to the terms of
the Judgment of Divorce." Contrary to the husband's assertion,
this order is directed to the husband, not a third party. The
language in the judgment for divorce is no more helpful to the
husband's argument: "Within seven (7) days of the date of this
Judgment, Husband shall initiate the process required to remove
the illegitimate second mortgage from the Marital Home so that
6 it can be placed on the market for sale." Here, again, the
judge directs only the husband to act. 2 There was no error. 3
Judgment affirmed.
By the Court (Blake, C.J., Henry & Hershfang, JJ. 4)
Clerk
Entered: December 1, 2025.
2 After the entry of the judgment for divorce, the wife filed a complaint for contempt alleging the husband had not complied with the order to remove the second mortgage and sell the marital home. The appeal from the resulting contempt judgment remains pending before a different panel of this court, no. 25-P-1118, and we express no opinion on the merits of that case.
3 The wife's request for appellate attorney's fees is denied.
4 The panelists are listed in order of seniority.