Robbins v. Robbins

453 N.E.2d 1058, 16 Mass. App. Ct. 576, 1983 Mass. App. LEXIS 1447
Massachusetts Appeals Court·Decided September 1, 1983·Published·Cited by 27 cases

Opinion

Warner, J.

This action for divorce was referred for hearing to a master, who made subsidiary and “ultimate” findings of fact. Both parties filed motions to sustain their objections to the report, which were denied by the probate judge except for one objection made by the defendant which is not here relevant. The judge adopted the report as modified. The evidence was not reported.1

The master’s “ultimate findings,” which were no more than recommendations,2 suggested that the plaintiff be granted a divorce, that the defendant pay her alimony of $48,000 annually ($4,000 monthly), that he pay an additional $10,000 to the plaintiff for the purchase of an automobile, that he maintain the plaintiff’s medical insurance coverage, and that he assign to the plaintiff a portion of his estate consisting of stock of two closely held corporations.3 The judgment of divorce nisi incorporated the master’s recommendations except for the following: the defendant was ordered (1) to pay the plaintiff $12,000 for the purchase of an automobile; (2) to “keep in force arid maintain his ex[578] isting insurance policy ... in the amount of one hundred fifty thousand . . . dollars for the benefit of [the] plaintiff”; and (3) to pay to the plaintiff’s counsel $40,000 for counsel fees.4 Both parties filed motions under Mass.R.Dom.Rel.P. 60(b), (1975), for reliefIrom the judgment. After "separate hearings the judge denied both motions. Both parties appealed from the judgment of divorce nisi and the denials of the motions for relief from the judgment.

The plaintiff argues that the division of property, pursuant to G. L. c. 208, § 34, was inadequate in view of the defendant’s substantial assets. Specifically, she says that she should have received a larger portion of the stocks of the defendant’s closely held corporations5 or a larger award of alimony. She,,also contends that the judge erred in not granting her rule 60(b) motion on the ground that there was newly discovered evidence of a tax settlement with the Internal Revenue Service which significantly increased the value of the defendant’s assets. The defendant argues that the judge erred in not following the recommendations of the master pertaining to the orders with respect to the automobile and life insurance and in awarding counsel fees.

1. “General Laws c. 208, § 34, confers broad powers on the court to make an equitable division of property incident to a divorce proceeding.” Loud v. Loud, 386 Mass. 473, 474 (1982). See Rice v. Rice, 372 Mass. 398, 400-401 (1977); Ross v. Ross, 385 Mass. 30, 36 (1982); Newman v. Newman, 11 Mass. App. Ct. 903 (1981); Mancuso v. Mancuso, 12 Mass. App. Ct. 973, 974 (1981). No specific formula need be followed to fashion an equitable judgment. Belsky v. Belsky, 9 Mass. App. Ct. 852, 853 (1980). In adopting the master’s findings, the judge made findings on [579] all of the mandatory and discretionary factors enumerated in § 34. See Ross v. Ross, supra at 35 & n.3, 36. Mass.R.Dom.Rel.P. 52(a) (1975). The weight to be given to each of the § 34 factors is for determination by the judge. Id. at 37. The master, and we may assume the judge, very appropriately gave consideration to the tax impact of orders for alimony and the transfer of stock. See Sheskey v. Sheskey, ante 159 (1983). Contrast Bennett v. Bennett, 15 Mass. App. Ct. 999 (1983). While we might be inclined as an original matter to reach different results, we cannot say that the orders entered were not within the broad discretion conferred upon the judge. See Loud v. Loud, supra at 474-475; Ross v. Ross, supra at 36-37; Belskey v. Belskey, supra; Earle v. Earle, 13 Mass. App. Ct. 1062,1063 (1982). Compare Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 2, 14-17 (1979) (award leaving wife “at most only marginally independent” considered insufficient in view of husband’s assets).

2. The judge’s order requiring the defendant to pay the plaintiff $12,000 so that she could purchase an automobile was also within his discretion. The master’s findings stated that the plaintiff had the use of two automobiles, which he described by make and year, neither of which belonged to her. Although the master recommended the payment of $10,000 for the purchase of an automobile, the judge was not required to adopt his recommendations. See Ross v. Ross, supra at 38; Hardiman v. Hardiman, 11 Mass. App. Ct. 626, 628 (1981). The judge could draw on his own knowledge and experience in determining the approximate cost of an automobile which would be comparable to those the plaintiff had been accustomed to driving. See Richmond v. Richmond, 340 Mass. 367, 369 (1960).

It was also within the judge’s discretion to require the defendant to maintain a life insurance policy for the plaintiff’s benefit, even though this had not been recommended by the master. See Ross v. Ross, supra at 38. The master found that the plaintiff, “to maintain [her] home, travel, make gifts to her children as was her custom in the past, ... to [580] pay prospective income taxes on alimony to be awarded, and to maintain premiums on one of the life insurance policies owned by her on her husband’s life, . . . will need approximately $48,000.00 per year . . . .” This finding did not limit the judge’s discretion to order the maintenance of the life insurance policy in addition to the payment of $48,000 as alimony. Under § 34, need is only one of several factors to be considered in determining the amount of alimony. See Ross v. Ross, supra at 35 & n.3, 36.

3. The defendant’s motion for relief from the judgment did not assign any reason permitted by Mass.R.Dom.Rel.P. 60(b) (1975), or any other rule. It sought relief from all orders in the judgment except for that granting the divorce. As such it appears to be a motion for reconsideration and was timely filed. See Mass.R.Dom.Rel.P. 59(e) (1975). On appeal, the defendant questions only the orders which differ from the master’s recommendations, which we have dealt with in part 2 above, and the award of counsel fees to the plaintiff. The matter of counsel fees will be discussed below.

4. The plaintiff’s rule 60(b) motion, filed ten days after the judge denied the defendant’s motion for reconsideration stated grounds under rule 60(b)(2), (3) and (6). Only the grounds under rule 60(b)(2), newly discovered evidence, are argued on this appeal.6. The alleged newly discovered evidence consisted of the plaintiff’s discovery that a tax settlement between Sunshine Art Studios, Inc. (Sunshine) (see note 5, supra) and the Internal Revenue Service, which appeared to be very favorable to Sunshine, had been finally approved. This settlement, argues the plaintiff, left Sunshine, of which the defendant owned approximately eighty percent, with a net book value of over $8,000,000.

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Robbins v. Robbins, 453 N.E.2d 1058, 16 Mass. App. Ct. 576, 1983 Mass. App. LEXIS 1447 (Mass. Ct. App. 1983).

453 N.E.2d 1058 (Robbins v. Robbins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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