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
23-P-219
WESLEY A. NAGY
vs.
META ELIZABETH NAGY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Wesley Nagy (husband) appeals from a divorce judgment dated
August 12, 2022, as amended by order dated December 8, 2022.
The husband raises two primary issues on appeal. First, he
contends that the judge erred in selecting the date of the
parties' separation in 2017 as the valuation date for the real
estate that was part of the marital estate. Second, he argues
that the judge's allocation of the real estate was an abuse of
discretion because it left him without a place from which to
work. Because we conclude that Savides v. Savides, 400 Mass.
250 (1987), does not justify the approach the judge took here
with respect to the date of valuation of the real estate, we
vacate the portion of the judgment, as amended, related to the
date of valuation of the real estate and remand for further
proceedings and findings. We summarize only the facts pertinent to this appeal,
noting that the judge made extensive additional detailed
findings after a trial held on seven separate days between May
2021 and February 23, 2022, concerning the division of marital
assets and alimony. The parties were married on September 8,
1990 and, over the course of their twenty-six year, seven month
marriage, purchased and improved several properties. At various
times, the properties were used to generate income either
directly through rental income or indirectly to the extent they
were used in connection with the parties' respective business
activities. The parties last lived together on March 18, 2017,
and the husband filed a complaint for divorce a few weeks later,
on April 7, 2017. The judge found that the marriage
"effectively ended" when the parties separated and that, since
the date of their separation, the parties have been economically
independent with little or no contribution to each other's
expenses.
At the crux of this appeal is the division and valuation of
four pieces of real estate jointly owned by the parties on
Martha's Vineyard. The parties agree that the fair market value
of the properties increased significantly between the date of
separation and the date of trial as follows:
2 Property FMV 3/2017-10/2017 FMV 2/9/2021 Difference
25 Averill $610,000 $835,000 $225,000 34 Averill $795,000 $950,000 $155,000 24 Cournoyer $1,275,000 $1,440,000 $165,000 50 Old Lighthouse $510,000 $650,000 $140,000
Total $685,000
They disagreed, however, whether the increase was due (in whole
or part) to the wife's postseparation maintenance and
improvements to the properties, in any part to the husband's
postseparation improvements, or (in whole or part) to market
forces unrelated to either parties' efforts. The judge did not
sort these questions out because, relying on Savides v. Savides,
400 Mass. 250 (1987), the judge selected 2017, the year of
separation,
"as the date as of which to divide the real estate because [the h]usband did not contribute financially to the marriage after this date. Beyond that, as explained above, [the w]ife was responsible for all costs and expenses associated with the properties, while [the h]usband was able to live in multiple of the properties, free of any obligation to pay rent and utilities."
"The determination of the appropriate valuation date [for
the division of marital assets] is left to the discretion of the
trial judge. Except where 'warranted by the circumstances of a
particular case,' however, the valuation date typically is the
date of trial" (citations omitted). Connor v. Benedict, 481
Mass. 567, 576 (2019), quoting Moriarty v. Stone, 41 Mass. App.
Ct. 151, 154 (1996). The date of separation may be used as the
3 date of valuation if the increase in the value of the property
"was solely attributable to" one spouse's efforts and the other
spouse made no contribution to the marriage after that time.
Savides, 400 Mass. at 253. In Savides, the issue was the
division of the husband's automobile business, which had grown
substantially in value after the date of separation due solely
to the husband's efforts and after the wife had stopped
contributing to the marriage. Id. at 251-252. We note that,
unlike the business asset involved in Savides, the real estate
at issue in this case was jointly acquired during the marriage
through the parties' shared efforts and financial contributions.
Here, although the judge found that the husband did not
contribute financially to the marriage after the date of
separation and that the wife bore the costs of maintaining and
improving the real estate after the separation (findings that
have not been shown to be clearly erroneous, see Mass. R. Dom.
Rel. P. 52 [a]), the judge did not find that the $685,000
increase in the fair market value of the real estate was due
solely to the wife's postseparation maintenance and improvement
of them. See Johnson v. Johnson, 53 Mass. App. Ct. 416, 422
(2001) (any appreciation in value of real estate that is due
solely to the efforts of one spouse is not divisible). To the
contrary, there was evidence that market forces may have also
played a role in the increase. In the circumstances, the judge
4 was required to assess whether the postseparation increase in
the fair market value was attributable solely to the wife's
postseparation efforts, or whether it was due in part to market
forces and, if so, to what degree. See Obara v. Ghoreishi, 103
Mass. App. Ct. 549, 552-556 (2023) (appreciation attributable to
efforts of both spouses and to market conditions should be
divided between parties); Willis v. Willis, 27 Mass. App. Ct.
1144, 1145-1146 (1989) (marital home should have been valued at
time of order of division and not at earlier time where no
evidence appreciation was attributable solely to husband's
efforts). A remand is thus required for further findings on
these points.
The husband also argues that the judge abused her
discretion in awarding three of the four pieces of real estate
to the wife, in part so that she could continue to operate her
medical practice, while awarding only one to the husband. The
husband acknowledges that the judge ordered an equalizing
payment from the wife to the husband to account for the
difference in value between the properties awarded to the wife
and those awarded to the husband. Nonetheless, the husband
argues that the judge abused her discretion because the property
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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
23-P-219
WESLEY A. NAGY
vs.
META ELIZABETH NAGY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Wesley Nagy (husband) appeals from a divorce judgment dated
August 12, 2022, as amended by order dated December 8, 2022.
The husband raises two primary issues on appeal. First, he
contends that the judge erred in selecting the date of the
parties' separation in 2017 as the valuation date for the real
estate that was part of the marital estate. Second, he argues
that the judge's allocation of the real estate was an abuse of
discretion because it left him without a place from which to
work. Because we conclude that Savides v. Savides, 400 Mass.
250 (1987), does not justify the approach the judge took here
with respect to the date of valuation of the real estate, we
vacate the portion of the judgment, as amended, related to the
date of valuation of the real estate and remand for further
proceedings and findings. We summarize only the facts pertinent to this appeal,
noting that the judge made extensive additional detailed
findings after a trial held on seven separate days between May
2021 and February 23, 2022, concerning the division of marital
assets and alimony. The parties were married on September 8,
1990 and, over the course of their twenty-six year, seven month
marriage, purchased and improved several properties. At various
times, the properties were used to generate income either
directly through rental income or indirectly to the extent they
were used in connection with the parties' respective business
activities. The parties last lived together on March 18, 2017,
and the husband filed a complaint for divorce a few weeks later,
on April 7, 2017. The judge found that the marriage
"effectively ended" when the parties separated and that, since
the date of their separation, the parties have been economically
independent with little or no contribution to each other's
expenses.
At the crux of this appeal is the division and valuation of
four pieces of real estate jointly owned by the parties on
Martha's Vineyard. The parties agree that the fair market value
of the properties increased significantly between the date of
separation and the date of trial as follows:
2 Property FMV 3/2017-10/2017 FMV 2/9/2021 Difference
25 Averill $610,000 $835,000 $225,000 34 Averill $795,000 $950,000 $155,000 24 Cournoyer $1,275,000 $1,440,000 $165,000 50 Old Lighthouse $510,000 $650,000 $140,000
Total $685,000
They disagreed, however, whether the increase was due (in whole
or part) to the wife's postseparation maintenance and
improvements to the properties, in any part to the husband's
postseparation improvements, or (in whole or part) to market
forces unrelated to either parties' efforts. The judge did not
sort these questions out because, relying on Savides v. Savides,
400 Mass. 250 (1987), the judge selected 2017, the year of
separation,
"as the date as of which to divide the real estate because [the h]usband did not contribute financially to the marriage after this date. Beyond that, as explained above, [the w]ife was responsible for all costs and expenses associated with the properties, while [the h]usband was able to live in multiple of the properties, free of any obligation to pay rent and utilities."
"The determination of the appropriate valuation date [for
the division of marital assets] is left to the discretion of the
trial judge. Except where 'warranted by the circumstances of a
particular case,' however, the valuation date typically is the
date of trial" (citations omitted). Connor v. Benedict, 481
Mass. 567, 576 (2019), quoting Moriarty v. Stone, 41 Mass. App.
Ct. 151, 154 (1996). The date of separation may be used as the
3 date of valuation if the increase in the value of the property
"was solely attributable to" one spouse's efforts and the other
spouse made no contribution to the marriage after that time.
Savides, 400 Mass. at 253. In Savides, the issue was the
division of the husband's automobile business, which had grown
substantially in value after the date of separation due solely
to the husband's efforts and after the wife had stopped
contributing to the marriage. Id. at 251-252. We note that,
unlike the business asset involved in Savides, the real estate
at issue in this case was jointly acquired during the marriage
through the parties' shared efforts and financial contributions.
Here, although the judge found that the husband did not
contribute financially to the marriage after the date of
separation and that the wife bore the costs of maintaining and
improving the real estate after the separation (findings that
have not been shown to be clearly erroneous, see Mass. R. Dom.
Rel. P. 52 [a]), the judge did not find that the $685,000
increase in the fair market value of the real estate was due
solely to the wife's postseparation maintenance and improvement
of them. See Johnson v. Johnson, 53 Mass. App. Ct. 416, 422
(2001) (any appreciation in value of real estate that is due
solely to the efforts of one spouse is not divisible). To the
contrary, there was evidence that market forces may have also
played a role in the increase. In the circumstances, the judge
4 was required to assess whether the postseparation increase in
the fair market value was attributable solely to the wife's
postseparation efforts, or whether it was due in part to market
forces and, if so, to what degree. See Obara v. Ghoreishi, 103
Mass. App. Ct. 549, 552-556 (2023) (appreciation attributable to
efforts of both spouses and to market conditions should be
divided between parties); Willis v. Willis, 27 Mass. App. Ct.
1144, 1145-1146 (1989) (marital home should have been valued at
time of order of division and not at earlier time where no
evidence appreciation was attributable solely to husband's
efforts). A remand is thus required for further findings on
these points.
The husband also argues that the judge abused her
discretion in awarding three of the four pieces of real estate
to the wife, in part so that she could continue to operate her
medical practice, while awarding only one to the husband. The
husband acknowledges that the judge ordered an equalizing
payment from the wife to the husband to account for the
difference in value between the properties awarded to the wife
and those awarded to the husband. Nonetheless, the husband
argues that the judge abused her discretion because the property
he was awarded was insufficient to accommodate the storage of
tools and equipment necessary for his contracting business. He
5 argues that the judge favored the wife's ability to continue her
medical practice over his ability to continue his work.
The husband has not argued, let alone shown, that the
judge's findings concerning his health, employment, and
employability were clearly erroneous. In pertinent part, the
judge found that the husband was sixty-six years old by the end
of the trial, that he had multiple medical issues during the
marriage that had significantly affected his physical health and
his ability to engage in construction work, and that he was
employed at the time of trial as a musician rather than in
construction. In addition, the judge found that the husband
(like the wife) faced future limitations in employment due to
age and health, but that he would be able to continue to earn
income as a musician. There was no evidence that the husband's
work as a musician would be impeded or impaired by awarding him
only one of the pieces of real estate. And, although the
husband argues that the judge should not have discounted the
possibility that he might return to work in construction, he
does not cite any evidence to take that assertion beyond the
realm of speculation. On the other hand, the judge found that
some of the properties were essential for the wife's medical
practice and serious environmental sensitivities. In addition,
the judge considered that 50 Old Lighthouse (the property
awarded to the husband) was capable of generating rental income
6 should the husband wish to use it for that purpose. On the
facts as she found them, the judge did not abuse her discretion
in awarding the husband only the property located at 50 Old
Lighthouse while awarding the other three to the wife. See
G. L. c. 208, § 34 (factors to be considered in division of
assets). We note, however, that the equalizing payment the
judge ordered in consideration of the fact that the husband was
to receive only one of the four properties may be affected after
the judge, on remand, determines whether the wife's
postseparation efforts are the sole cause of the increase in
fair market value of the real estate.
So much of the divorce judgment, as amended, that
established 2017 as the year of valuation is vacated. The
matter is remanded on the limited issue of whether and, if so,
to what degree, the increase in fair market value of the real
estate between the date of separation and the date of trial is
due solely to the wife's postseparation efforts. If, on remand,
the judge determines that all or some of the increase is
attributable to market forces, then the judge should consider
the relationship between the amount of increase due to the
market and that due solely to the wife's efforts. If some
portion of the increase is due to the market, then the judge
should consider whether, and to what degree, to award the
7 husband a portion of the market-based increase. 1 The judgment is
in all other respects affirmed. 2
So ordered.
By the Court (Wolohojian, Neyman & Shin, JJ. 3),
Assistant Clerk
Entered: January 29, 2024.
1 In her discretion, the judge may take additional evidence. 2 The wife's request for attorney's fees in connection with this appeal is denied. 3 The panelists are listed in order of seniority.