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-1158
MOLLY COSEL WENDT
vs.
WILLIAM GEORGE WENDT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (father) appeals from a judgment of divorce
nisi (divorce judgment), arguing principally that the judge
erred in (1) awarding primary custody to the plaintiff (mother)
and modifying the parties' existing parenting schedule, (2)
dividing the marital assets, and (3) determining child support.
For the reasons that follow, we vacate so much of the divorce
judgment as set the weekly parenting schedule and remand for
findings reflecting appropriate consideration of the children's
religious development. On all the other issues, we affirm the
divorce judgment.
Background. The trial in this case occurred over four days
in March 2022 and included testimony from fifteen witnesses. We
present the essential facts found by the judge in his extensive written findings, reserving details for our discussion of the
issues raised.
The parties married on March 21, 2014. The mother gave
birth to their first son in 2015, and their second son in 2016.
On February 6, 2020, the mother filed a complaint for divorce on
the grounds of an irretrievable breakdown of the marriage; the
father filed a timely answer and counterclaim. Through the
divorce proceedings, both parties sought custody of the children
and ownership of the marital home and property located in
Tyringham.
1. Custody. The judge found that the mother was a
"caring, responsible and attentive parent," who served as the
lead caregiver for the children throughout their lives. The
judge found that while the "[f]ather is a caring and loving
parent[, he] has not always been able to act in a manner that
supports his children" due to his conflicts with care providers
and grandparents, inattentiveness to the children's schooling,
and his behavior in front of the children. The judge granted
the mother with primary physical custody and fashioned a
parenting schedule, which we discuss in greater detail below.
The judge granted the parties joint legal custody.
2. Parties' assets. The marital home is a property owned
jointly by the parties. In 2016, the mother's parents gave the
property to the couple as an advance on her inheritance. The
2 value of the home at the time that it was gifted was $260,000.
The father's father, Bill Wendt, initially gifted the father and
mother $1.9 million to improve the property. 1 One of the
principal objectives of the project was to create a photography
studio for the father. By February 2019, the father, who had
taken the primary role to improve the property, exhausted the
entire $1.9 million, yet had not completed the project. Bill
Wendt then provided the father with an additional $2 million.
At the time of trial, the value of the unencumbered property was
appraised at $850,000.
The judge ordered that the marital home be retained by the
mother but required that the mother pay the father $250,000 to
create an equitable distribution of the marital estate.
The judge also found that father was the sole beneficiary
of an irrevocable trust established by his parents. The value
of this trust was $5,492,655.62 at the end of 2020.
Mother's assets included her retirement fund ($50,093), a
Roth individual retirement account (IRA) ($3,313), and various
bank accounts totaling less than $10,000 at the time of trial.
3. Occupation, income, and employability. During the
marriage, the father held various compensated positions with his
1 Bill Wendt transferred the funds for this gift from an irrevocable trust of which the father was the beneficiary to a brokerage account controlled by the father.
3 parents' business, Midwest Metal Products, Inc. (Midwest). In
2019, the father received compensation of $100,200 from Midwest,
despite having performed no work or services. The father's
income from Midwest decreased to $48,000 annually during the
pendency of the divorce litigation. In addition, the father
earned more than $100,000 per year as a commercial photographer
prior to the marriage. The court found, based largely on the
father's assertions, that the father had the capacity to earn
$100,000 per year as a commercial photographer.
The mother has been employed as a teacher since 2011. The
judge found her annual earnings to be $64,844. The mother's
prospects for continued employment with the school district are
stable.
Based on his review of the parties' assets and liabilities,
the judge ordered, in accordance with the Massachusetts Child
Support Guidelines, that the father pay $532 in child support to
the mother per week.
Discussion. 1. Custody. We review a judge's ultimate
custody determination for an abuse of discretion. See Schechter
v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody
matters, the touchstone inquiry [is] . . . what is best for the
child" (quotation and citation omitted). Hunter v. Rose, 463
Mass. 488, 494 (2012). See G. L. c. 208, § 28. "The
determination of which parent will promote a child's best
4 interests rests within the discretion of the judge . . . [whose]
findings . . . 'must stand unless they are plainly wrong.'"
Hunter, supra, quoting Custody of Kali, 439 Mass. 834, 845
(2003). While there is no "definitive list of criteria" for the
judge to consider when assessing the children's best interests,
"[certain] constants are revealed in our [cases]," including
"the need for stability," "the decision-making capabilities of
each parent to address the child's needs, and the living
arrangements and lifestyles of each parent and how such
circumstances may affect the child" (citation omitted). El
Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010).
The father sets forth numerous arguments that the judge
abused his discretion and made clearly erroneous factual
findings in his custody determination. We address each one in
turn below.
a. Relevant factors in determining custody. The father
first contends the judge failed to consider multiple, relevant
factors in determining custody. We disagree. In consideration
of the best interests of the children, the judge addressed the
ability for the parents to provide stability, the decision-
making of each parent, and the impact of the parents' lifestyles
on the children. For example, in finding that the father could
not provide the same level of stability that the mother could,
the judge cited that the father brought the children to school
5 late on numerous occasions and was combative with the children's
caretakers. See E.K. v. S.C., 97 Mass. App. Ct. 403, 405-406,
409 (2020) (affirming grant of sole legal and primary physical
custody to father in part due to mother's problematic
interactions with school and for frequently bringing children to
school late). The judge also carefully considered, and
ultimately rejected, the father's claim that the mother's
relationship with her new partner placed the children in danger.
We discern no error with these findings. See Adoption of
Cadence, 81 Mass. App. Ct. 162, 166 (2012) ("In recognition of
the trial judge's superior position to evaluate witness
credibility and weigh the evidence, we review her findings with
substantial deference and will not disturb those findings unless
clearly erroneous" [citation omitted]).
b. Nexus to the father's parenting. The father next
argues that most of the behavior and incidents that the judge
referenced when making the custody determination do not reflect
on the father's ability to be a good parent. We find this
argument unpersuasive because the judge's findings and rationale
established a clear link between the father's behavior and his
parenting abilities. For example, the judge credited the
mother's testimony that the father, during an argument with the
mother in the presence of the children, threatened to slit the
6 throat of the mother's new partner. 2 The detrimental impact this
threat of violence would have on young children is implied in
the judge's findings.
The judge cited other concerns, including that the father
sent a child to school with only blueberries for lunch, that he
frequently brought a child to school late, that he forgot to
pick the children up from school one day, and that on occasion
he was inattentive to his children's needs at school. 3 These
instances could be reasonably perceived to reflect adversely on
the father's parenting ability. See Smith v. McDonald, 458
Mass. 540, 547 (2010) ("The judge is afforded considerable
freedom to identify pertinent factors in assessing the welfare
of the child and weigh them as [he] sees fit").
c. Alleged improper punishment of the father. At trial,
the father asserted that the mother had exposed the children to
dangerous mold, conspired with the special education department
to assess their youngest child with a disability, and exposed
the children to her new partner in unhealthy ways. On appeal,
2 While we recognize that the husband denied making this threat in his trial testimony, we do not conclude the judge's credibility finding on this issue to be plainly wrong or clearly erroneous. See Adoption of Cadence, 81 Mass. App. Ct. at 166.
3 For instance, the judge found that "[o]n special school days (beach day and Halloween), Father has sent the children without the requested items. The boys were the only children without the items."
7 the father alleges that the judge granted primary physical
custody to the mother to punish the father for making these
arguments. This contention is without merit. The judge's
analysis of the father's claims of the mother's unfitness
reflects a close examination of the evidence, assessments of the
witnesses' respective credibility, and careful consideration of
both the mother's and father's ability as a parent, all through
the lens of the best interests of the children. See Hunter, 463
Mass. at 494.
The father also argues that the judge improperly cited the
father restricting the children's time with the maternal
grandparents as a rationale in the custody determination. The
father alleges that this is a violation of the father's
constitutionally protected rights to decide with whom his
children associate. The father misconstrues the constitutional
protection afforded to parental decision-making. The protection
does not go so far as to prevent a judge from considering any
interactions with grandparents in a custody determination.
Instead, it prevents a court from requiring grandparent
visitation where an otherwise fit parent has made the opposite
decision. See Troxel v. Granville, 530 U.S. 57, 72 (2000)
(order requiring visitation with children's grandparents "was an
unconstitutional infringement on [parent's] fundamental right to
make decisions concerning the care, custody, and control of
8 [their children]"). In the instant case, the judge did not
require any visitation with the grandparents. Instead, the
judge's discussion of the father's antagonistic interaction with
the grandparents related to his assessment of the father's
inability to maintain positive relationships with the children's
caregivers. 4
d. Religious development of the children. The father
challenges the order that provides the mother custody of the
children each week from Saturday at 4:00 P.M. until Thursday at
4:00 P.M. for three weekends per month during the school year.
Before the judge's order, the father had regularly celebrated
Catholic Mass with the children either on Saturdays at 4:00 P.M.
or on Sunday mornings. The father argues that the judge's
schedule prevents him from pursuing the Catholic faith with his
children because it conflicts with the prescribed times
Catholics celebrate weekly Mass. The father requests that the
custody determination be reconsidered on remand because the
impact on the children's religious development was not
considered.
4 The judge noted that the father had "approached [the mother's father] in an angry manner [and] was yelling, [with] spit . . . emanating from his mouth." After this interaction the father "forbade the children from going up to their grandparents' home."
9 Religion is one of the many relevant factors that a judge
considers in making a custody determination based on the best
interests of the children. See Opinion of the Justices to the
Senate, 427 Mass. 1201, 1204 & n.2 (1998). Where, as here, the
parties have shared legal custody, both parents are responsible
for and involved in making major decisions about the children's
welfare, including their religious development. See G. L.
c. 208, § 31. The parties do not dispute that the children were
raised Catholic and that the father was the only parent who
regularly took the children to church. Notably, both the mother
and the father had submitted posttrial proposed judgments
indicating the children would be raised Catholic, with the
father responsible for bringing the children to Mass on a weekly
basis; both parties' proposed parenting plans would have allowed
the father to take his children to Mass most weekends. 5
Instead of adopting either of the proposed parenting
schedules, the judge created a new plan, which requires that the
5 We note that the parties agreed about the children's religious upbringing and neither sought an order curtailing the father's right to practice religion or limiting the children's exposure to the father's religion. Contrast Kendall v. Kendall, 426 Mass. 238, 250 (1997), cert. denied, 524 U.S. 953 (1998) (divorce judgment precluded father from sharing certain aspects of his religious beliefs with children); Felton v. Felton, 383 Mass. 232, 237 (1981) (modification judgment ordered father to "refrain[] from giving his children any religious training or education which shall be in conflict or contrary with the religious training and beliefs of the custodial parent").
10 children be in their mother's custody during times that conflict
with Mass for three out of four weeks per month during the
school year. The judge's findings do not address the parties'
shared view that the father should continue bringing the
children to Mass, nor is there any basis apparent in the judge's
findings for declining to adopt it. 6 We therefore cannot
ascertain whether the judge, in fashioning the parenting
schedule, considered the children's religious development as a
factor relevant to determining their best interest.
Accordingly, we vacate so much of the divorce judgment as set
the weekly parenting schedule and remand for the judge to make
findings reflecting appropriate consideration of the children's
religious development. See Ventrice v. Ventrice, 87 Mass. App.
Ct. 190, 196 (2015), quoting Rosenberg v. Merida, 428 Mass. 182,
191 (1998) (appellate court will not sustain custody
determination "unless all relevant factors in determining the
best interests of the child have been weighed").
e. Judge's findings. The father next argues that four
specific facts in the judge's findings were unsupported, and
when taken as a whole, should leave this court "with the
6 Instead, he judge concluded the parenting schedule to be in the best interests of the children by reasoning that "[the mother] is in a better position to supervise the minor children during the school week in assuring they were on time for school and properly prepared."
11 definite and firm conviction that a mistake has been committed"
(citation omitted). Guardianship of Clyde, 44 Mass. App. Ct.
767, 774 (1998). Specifically, the father alleges that the
judge's findings concerning (1) the father's past dispute with
the children's school, (2) the father sending one child to
school with only blueberries for lunch, (3) the father
forgetting to pick the children up from school, and (4) the
father dictating the parenting schedule, are all erroneous.
Affording due deference to the judge's assessment of the
credibility of witnesses and weight of the evidence, we are
satisfied that none of these challenged findings were either
unsupported or clearly erroneous. See Adoption of Paula, 420
Mass. 716, 730 (1995) ("We do not sit as a trial court to review
de novo the evidence presented by the parties").
Finally, the father alleges that the judge's findings with
respect to the custody decision are "belittling and suggestive
of gender bias." The father points to two parts of the judge's
findings to make this point. First, the judge's finding that
"[b]y Mother taking on [the majority of the physical labor and
cognitive labor], it allowed Father to pursue his hobbies of
cycling and playing the saxophone." And second, the judge's
findings as to the father's financial dependency on his parents.
We conclude that neither of these findings suggest gender bias,
but instead are appropriate considerations in the judge's
12 determination of custody and the division of marital assets.
See Smith, 458 Mass. at 547. Moreover, we conclude the entirety
of the judge's findings and rationale to be free from bias and
belittlement.
2. Division of marital assets. The husband argues that
the judge abused his discretion in determining the division of
marital assets, and that the division falls "outside the range
of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014). This court employs a two-step analysis in
our review under the equitable distribution statute, G. L.
c. 208, § 34. See Adams v. Adams, 459 Mass. 361, 371 (2011),
S.C., 466 Mass. 1015 (2013). First, we examine whether the
judge considered all relevant § 34 factors in his findings. See
id. The mandatory factors are:
"[T]he length of the marriage, the conduct of the parties during the marriage, the 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."
G. L. c. 208, § 34. Notably, "[w]hat weight any of the factors
in § 34 shall receive rests within the broad discretion of the
judge." Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168
(1989).
Second, we "determine whether the reasons for the judge's
conclusions are apparent in [the judge's] findings and rulings"
13 (quotation omitted). See Adams, 459 Mass. at 371. "A division
of marital property which is supported by findings as to the
required factors will not be disturbed on appeal unless plainly
wrong and excessive" (quotation omitted). Passemato v.
Passemato, 427 Mass. 52, 57 (1998).
The father first argues that the judge gave unnecessary and
excessive weight to the father's ability to acquire future
income and assets. The judge, as discussed further infra in our
review of the child support analysis, reasonably found that the
father could resume his career as commercial photographer and
earn $100,000.
Regarding the trust of which the father is the sole
beneficiary, the judge acknowledged that the father "has no
right to demand distributions," but reasonably determined based
in part on the evidence of the father's reliance on his parents
that the trust "gives [f]ather a secure safety net."
The father next argues that the judge disregarded the
length of the marriage and the financial and nonfinancial
contributions made by both parties to the marriage.
"Mathematical precision is not required of equitable division of
property," Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861
(1989), and "[t]here 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). Where the
14 father argues that the judge failed to "meaningfully consider"
the length of marriage, we first point out that the weight the
judge assigns to each factor is within the judge's broad
discretion. See Handrahan, 28 Mass. App. Ct. at 168. See also
Hanify v. Hanify, 403 Mass. 184, 191 (1988) (where wife and
husband were married for six years, and had two children, trial
judge equitably divided estate based on wife's "dire financial
circumstances").
The father's argument that the judge did not adequately
consider the contributions of the parties to the marriage also
falls short. While this factor is discretionary under G. L.
c. 208, § 34, the judge carefully analyzed the parties'
contributions and found that "[e]ach party contributed earned
and unearned income to further support the marital enterprise."
The father argues that his parents' significant financial
contribution toward renovating the marital home should be more
heavily considered. However, the record in this case reveals
that the father spent a substantial portion of these funds to
erect a photography studio for his own use. Ultimately, the
multimillion dollar investment led to only a $590,000 increase
in the property's value. Taken together, the judge's division
of the marital assets was neither "highly disparate," nor
inadequate as to the consideration of these contributions to the
marital partnership.
15 The father criticizes the judge's findings as showing
"apparent disdain" for the father, and as exhibiting "bias
toward [the father's] unemployment." To substantiate these
allegations the father points toward the judge's language where
he describes the father's interest in art, outdoor sports, and
the saxophone, that the father has been substantially supported
by his parents, and that the mother's lead effort in taking care
of the children allowed the father to pursue his hobbies. We
conclude that these findings do not exhibit any elements of
disdain against the father and are instead relevant
considerations for purposes of the divorce. See G. L. c. 208,
§ 34 ("The court may also consider . . . the contribution of
each of the parties as a homemaker to the family unit").
The father argues that "no justification can reasonably be
inferred to support" the judge's decision to defer receipt of
father's $250,000 share of the marital estate. We disagree, as
it is reasonable to infer that the judge ordered the deferred
payment based on his evaluation of the information bearing on
the mother's ability to satisfy this payment. As a result, we
find that the judge's decision to award the father with a
deferred payment was not outside the range of reasonable
alternatives and is an appropriate exercise of the judge's
discretion. See L.L., 470 Mass. at 185 n.27.
16 Lastly, the father argues that the judge incorrectly found
that Bill Wendt gifted, rather than loaned, the father and
mother $2 million to improve the marital estate. We conclude
that this finding is not plainly wrong. See Zaleski v. Zaleski,
469 Mass. 230, 237 (2014). The judge noted how the father
waited until seven months after the mother told the father that
she wanted to divorce to inform his parents. Once informed of
this news in November 2019, Bill Wendt was upset, and he
immediately stopped further funding of the ongoing project at
the marital home. In December 2019, the father's parents
prepared a loan agreement, signed by the father, which required
that he repay the moneys advanced in February 2018 toward the
marital home's renovation. The judge found that there had been
no discussion about entering into a lender-debtor relationship
prior to November 2019. Further, the judge found mother was
never informed of the agreement. After the loan agreement was
created, the father failed to make any payments on the loan or
raise any defenses once the father's parents sued in relation to
the loan.
In concluding this alleged loan amounted to "a sham
obligation," the judge relied on numerous adverse credibility
determinations as to the testimony of the father and his
parents. See Adoption of Cadence, 81 Mass. App. Ct. at 166.
17 3. Child support. The father argues that the judge abused
his discretion by (1) attributing income to the father, and (2)
ordering child support based on attributed and actual income.
"We review the judge's decision to consider attributed income
[in determining child support], rather than actual income, for
an abuse of discretion." Davae v. Davae, 100 Mass. App. Ct. 54,
57 (2021).
"Income may be attributed where a finding has been made
that either party is capable of working and is unemployed or
underemployed." See Massachusetts Child Support Guidelines:
Child Support Guidelines § I(E)(1) (Aug. 2021) (Guidelines).
"If the [c]ourt makes a determination that either party is
earning less than he or she could through reasonable effort, the
[c]ourt should consider potential earning capacity rather than
actual earnings in making its child support order." Guidelines
§ I(E)(2). The judge found that the father "has the capacity to
earn $100,000 per annum," relying on evidence of the father's
past earnings as both a commercial photographer and consultant
for his parents' business. This finding is based in large part
on the father's testimony and evidence that (1) he currently is
working simultaneously as a commercial photographer and as a
consultant for his parents' business; and (2) he historically
earned $100,000 per year when working in each of those roles
separately. Accordingly, we cannot say the judge abused his
18 discretion in concluding that the father is capable of earning
the same amount while simultaneously working in those roles.
See L.L., 470 Mass. at 185 n.27.
The judge appropriately considered the father's actual
income at the time of the trial and concluded that he could earn
more with reasonable effort. We reject the father's argument
that he should not have to pay $532 weekly because child support
can only be calculated based on either attributed income or
actual income. We have held that "a judge should determine by
specific and detailed findings of fact whether an individual
will be able to earn additional income with reasonable effort
before attributing income." Wasson v. Wasson, 81 Mass. App. Ct.
574, 580-581 (2012), quoting Flaherty v. Flaherty, 40 Mass. App.
Ct. 289, 291 (1996). Here, the judge determined that the father
could earn additional income with reasonable effort, and
reasonably calculated the father's attributed income to include
both his earnings from Midwest and his commercial photography
pursuit because the father is capable of earning all of such
income simultaneously. Thus, the judge did not err by
calculating child support based on the father's earning
capacity. See, e.g., id. at 581.
Conclusion. We vacate so much of paragraph I(b)(ii) of the
divorce judgment as pertains to the weekly parenting schedule,
and remand for further proceedings consistent with this
19 memorandum and order. Pending further order or judgment of the
Probate and Family Court, the existing provisions of the divorce
judgment regarding the weekly parenting schedule shall remain in
effect as a temporary order. We affirm the divorce judgment in
all other respects. 7
So ordered.
By the Court (Meade, Singh & Smyth, JJ. 8),
Assistant Clerk
Entered: May 15, 2024.
7 The plaintiff requests an award of costs pursuant to Mass. R. A. P. 26, as appearing in 481 Mass. 1655 (2019). We are not persuaded that costs are appropriate in this case.
8 The panelists are listed in order of seniority.