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
25-P-571
MICHAEL J. BASSICHIS & others1
vs.
WILLIAM H. von THADEN & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge held a jury-waived trial and found
in favor of the appellee, Kimberly C. von Thaden, on all claims.3
The plaintiffs claim the judge erred in concluding that the
transfer of assets from defendant William von Thaden (William)
to defendant Kimberly von Thaden (Kimberly) was not a fraudulent
transfer. We affirm.
Background. The plaintiffs' complaint sought damages
against the defendants for breach of contract and violations of
1 Sylvia E. Freed, Max Makowsky, and Lower Cape Plastering, LLC.
2 Kimberly C. von Thaden.
Defendant William H. von Thaden defaulted in this action 3
below and did not participate in this appeal. G. L. c. 142A, G. L. c. 93A, § 9, and the Uniform Fraudulent
Transfer Act, G. L. c. 109A. William was defaulted in the
action pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822
(1974), and prior to an assessment of damages, he filed a
petition under Chapter 7 of the United States Bankruptcy Code.
The bankruptcy court discharged William's debts in April 2019.
A Superior Court judge (the judge) presided over a jury-
waived trial on the plaintiffs' claims against Kimberly in which
twenty-one exhibits were accepted into evidence and two defense
witnesses testified. The plaintiffs called no witnesses. The
judge found for Kimberly on all claims and dismissed the claims
for fraudulent transfer and to reach and apply the defendants'
assets as to both Kimberly and William. Thereafter, he denied
the plaintiffs' motion for new trial and to amend and make
additional findings of fact.
Facts. The judge found the following facts. William owned
a residential construction business from 1984 to 2016. Kimberly
and William were married in 1991 and divorced in 2017 after a
trial in the Probate and Family Court.
During their approximately twenty-five-year marriage,
William and Kimberly acquired significant real estate holdings
that were held in trust. William and Kimberly were each
cotrustees and fifty percent beneficiaries of the trust, which
2 eventually held four Orleans properties. William had a
substance use disorder and gave up his construction business in
2016. Additionally, he withdrew and spent $896,084.80 from the
couple's retirement and college-fund accounts and encumbered the
couple's real estate with $509,572.38 of debt.
At the time of the Probate and Family Court trial, the net
value of the marital estate was $775,793.13. The Probate and
Family Court judge awarded the entirety of the remaining marital
estate to Kimberly.
After the divorce judgment entered, the trust conveyed
ownership of one of the four Orleans properties to Kimberly.
However, at no time before or after the Probate and Family Court
trial did Kimberly meet or discuss with William that they would
collude or conspire to avoid creditors.4 Additionally, at the
time of the divorce, all four of the properties in the trust
were subject to real estate attachments, secured incident to
several civil actions pending against William and his business.
In 2017, after three of the properties held in the trust
were sold, William filed his petition for relief pursuant to
4 Kimberly had been forced to sell real and personal property to support herself and their children. She began to work fulltime for the first time in twenty-three years, needed to work overnight shifts of eight-to-twelve hours in duration, and even with that income she did not generate enough income to feed her family and pay her bills.
3 Chapter 7 of the United States Bankruptcy Code. The plaintiffs
filed an adversary proceeding in the bankruptcy court
challenging the discharge of William's debts due to his alleged
fraudulent conveyances to Kimberly. Seven months later, the
plaintiffs dismissed the adversary proceeding, and thereafter
the bankruptcy court discharged William's debts in April 2019.
The plaintiffs, in their Superior Court complaint, sought
to reach and apply assets held in Kimberly's name. They
asserted an entitlement to the funds based, inter alia, on a
building contract between one of the plaintiffs and William's
company and a default judgment from the District Court against
William's company.
Discussion. We are bound by the judge's findings of fact
after a jury-waived trial unless they are clearly erroneous, and
we review his rulings on questions of law de novo. U.S. Bank
Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014). After a
review of the evidence, we conclude that the judge's findings of
fact were amply supported by the credible evidence and discern
no error.
The plaintiffs argue that the judge erred by adopting the
findings of the Probate and Family Court judge and also that,
because William defaulted in the Superior Court action, the
allegations submitted in the complaint against him are deemed
4 true and necessitated a finding in the plaintiffs' favor on
their claims for fraudulent transfer and to reach and apply
assets held in Kimberly's name. We do not agree.
It is true that, upon default, "the factual allegations of
a complaint are accepted as true" against the defaulting party
(citation omitted). See Danca Corp. v. Raytheon Co., 28 Mass.
App. Ct. 942, 943 (1990). But that principle does not require
the outcome the plaintiffs seek here. William's decision to
default did not obviate the plaintiffs' burden of proving their
case against another party nor preclude that party from mounting
a defense. See Christakis v. D'Arc Credit Union, 471 Mass. 365,
372 (2015) (entry of default "does not mean that the party in
default is deemed to have admitted the plaintiff's conclusions
of law"). Cf. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass.
544, 550 (2002) (judge may remedy unfairness to one party's
ability to prosecute or defend claim which has been prejudiced
by another party's destruction of evidence). William's deemed
admissions do not establish liability for Kimberly.
We are also mindful that William's deemed admissions are
only a portion of the evidence considered by the judge. The
judge also admitted William and Kimberly's judgment of divorce
and Kimberly's trial testimony. This evidence substantiates the
judge's findings that William dissipated marital assets, 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
25-P-571
MICHAEL J. BASSICHIS & others1
vs.
WILLIAM H. von THADEN & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge held a jury-waived trial and found
in favor of the appellee, Kimberly C. von Thaden, on all claims.3
The plaintiffs claim the judge erred in concluding that the
transfer of assets from defendant William von Thaden (William)
to defendant Kimberly von Thaden (Kimberly) was not a fraudulent
transfer. We affirm.
Background. The plaintiffs' complaint sought damages
against the defendants for breach of contract and violations of
1 Sylvia E. Freed, Max Makowsky, and Lower Cape Plastering, LLC.
2 Kimberly C. von Thaden.
Defendant William H. von Thaden defaulted in this action 3
below and did not participate in this appeal. G. L. c. 142A, G. L. c. 93A, § 9, and the Uniform Fraudulent
Transfer Act, G. L. c. 109A. William was defaulted in the
action pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822
(1974), and prior to an assessment of damages, he filed a
petition under Chapter 7 of the United States Bankruptcy Code.
The bankruptcy court discharged William's debts in April 2019.
A Superior Court judge (the judge) presided over a jury-
waived trial on the plaintiffs' claims against Kimberly in which
twenty-one exhibits were accepted into evidence and two defense
witnesses testified. The plaintiffs called no witnesses. The
judge found for Kimberly on all claims and dismissed the claims
for fraudulent transfer and to reach and apply the defendants'
assets as to both Kimberly and William. Thereafter, he denied
the plaintiffs' motion for new trial and to amend and make
additional findings of fact.
Facts. The judge found the following facts. William owned
a residential construction business from 1984 to 2016. Kimberly
and William were married in 1991 and divorced in 2017 after a
trial in the Probate and Family Court.
During their approximately twenty-five-year marriage,
William and Kimberly acquired significant real estate holdings
that were held in trust. William and Kimberly were each
cotrustees and fifty percent beneficiaries of the trust, which
2 eventually held four Orleans properties. William had a
substance use disorder and gave up his construction business in
2016. Additionally, he withdrew and spent $896,084.80 from the
couple's retirement and college-fund accounts and encumbered the
couple's real estate with $509,572.38 of debt.
At the time of the Probate and Family Court trial, the net
value of the marital estate was $775,793.13. The Probate and
Family Court judge awarded the entirety of the remaining marital
estate to Kimberly.
After the divorce judgment entered, the trust conveyed
ownership of one of the four Orleans properties to Kimberly.
However, at no time before or after the Probate and Family Court
trial did Kimberly meet or discuss with William that they would
collude or conspire to avoid creditors.4 Additionally, at the
time of the divorce, all four of the properties in the trust
were subject to real estate attachments, secured incident to
several civil actions pending against William and his business.
In 2017, after three of the properties held in the trust
were sold, William filed his petition for relief pursuant to
4 Kimberly had been forced to sell real and personal property to support herself and their children. She began to work fulltime for the first time in twenty-three years, needed to work overnight shifts of eight-to-twelve hours in duration, and even with that income she did not generate enough income to feed her family and pay her bills.
3 Chapter 7 of the United States Bankruptcy Code. The plaintiffs
filed an adversary proceeding in the bankruptcy court
challenging the discharge of William's debts due to his alleged
fraudulent conveyances to Kimberly. Seven months later, the
plaintiffs dismissed the adversary proceeding, and thereafter
the bankruptcy court discharged William's debts in April 2019.
The plaintiffs, in their Superior Court complaint, sought
to reach and apply assets held in Kimberly's name. They
asserted an entitlement to the funds based, inter alia, on a
building contract between one of the plaintiffs and William's
company and a default judgment from the District Court against
William's company.
Discussion. We are bound by the judge's findings of fact
after a jury-waived trial unless they are clearly erroneous, and
we review his rulings on questions of law de novo. U.S. Bank
Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014). After a
review of the evidence, we conclude that the judge's findings of
fact were amply supported by the credible evidence and discern
no error.
The plaintiffs argue that the judge erred by adopting the
findings of the Probate and Family Court judge and also that,
because William defaulted in the Superior Court action, the
allegations submitted in the complaint against him are deemed
4 true and necessitated a finding in the plaintiffs' favor on
their claims for fraudulent transfer and to reach and apply
assets held in Kimberly's name. We do not agree.
It is true that, upon default, "the factual allegations of
a complaint are accepted as true" against the defaulting party
(citation omitted). See Danca Corp. v. Raytheon Co., 28 Mass.
App. Ct. 942, 943 (1990). But that principle does not require
the outcome the plaintiffs seek here. William's decision to
default did not obviate the plaintiffs' burden of proving their
case against another party nor preclude that party from mounting
a defense. See Christakis v. D'Arc Credit Union, 471 Mass. 365,
372 (2015) (entry of default "does not mean that the party in
default is deemed to have admitted the plaintiff's conclusions
of law"). Cf. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass.
544, 550 (2002) (judge may remedy unfairness to one party's
ability to prosecute or defend claim which has been prejudiced
by another party's destruction of evidence). William's deemed
admissions do not establish liability for Kimberly.
We are also mindful that William's deemed admissions are
only a portion of the evidence considered by the judge. The
judge also admitted William and Kimberly's judgment of divorce
and Kimberly's trial testimony. This evidence substantiates the
judge's findings that William dissipated marital assets, that
5 Kimberly received an equitable share of the marital estate via
the judgment of divorce, and that the divorce judgment did not
constitute a fraudulent conveyance "because William received a
reasonably equivalent value in exchange for the transfer of
property."5
We need not and do not address the propriety of the judge's
incorporation of the Probate and Family Court judge's findings.
Kimberly's testimony, along with the judgment of divorce -- the
admission of which has not been challenged by the plaintiffs --
were sufficient to substantiate the judge's decision. Matter of
Hernandez, 101 Mass. App. Ct. 856, 870 (2022), citing Howe v.
Prokop, 21 Mass. App. Ct. 919, 920 (1985) (determining that in
light of other evidence substantiating judge's decision, judge's
reliance on challenged finding was unnecessary to decision and
may be disregarded).
Like the judge, we conclude that the transfer of assets to
Kimberly by means of the divorce judgment did not constitute a
5 We also note, as did the judge, that the Probate and Family Court judge awarded William $183,000 to pay creditors.
6 fraudulent conveyance because William received a reasonably
equivalent value in exchange for the transfer of the property.6,7
Judgment entered September 9, 2024, affirmed.
By the Court (Walsh, Hershfang & D'Angelo, JJ.8),
Clerk
Entered: July 24, 2026.
6 The plaintiffs' reach-and-apply claims, which are predicated on the theory that Kimberly "participated in a fraudulent transfer," were also properly dismissed. As stated supra, the trust assets were fairly provided to Kimberly in the Probate and Family Court action.
7 We grant the appellee's request for an award of attorney's fees pursuant to G. L. c. 211A, § 15, and Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that this appeal was frivolous. See Avery v. Steele, 414 Mass. 450, 455 (1993) ("An appeal is frivolous when the law is well settled, when there can be no reasonable expectation of a reversal" [quotation and citation omitted]).
Within fourteen days of the issuance of this decision, the appellee may file a submission detailing and supporting the amount of their attorney's fees and costs incurred on appeal. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The appellants will be allowed fourteen days to respond.
8 The panelists are listed in order of seniority.