995 N.E.2d 1138
Mass. App. Ct.2013Background
- Robert and Jean Waxman married in 1995; during their 11-year marriage they held a condo as tenants by the entirety and several joint and individual financial accounts, including IRA 768 owned by Robert with Jean as beneficiary and trading access.
- Robert primarily funded IRA 768; over 11 years deposits were mostly Robert’s, with some from Jean and joint accounts; Jean managed the account for a period but withdrawal authority was withdrawn by Robert in 2007.
- Divorce proceedings commenced in probate court in January 2007; an automatic restraining order (ARO) prohibited changes to retirement plan beneficiaries without court approval; Robert and Jean sold the condo and placed proceeds in escrow.
- Robert substituted his three children as beneficiaries of IRA 768 in January 2007, three days before the divorce complaint filing; Robert died in January 2008 before final divorce judgment.
- Jean filed a Superior Court action seeking ownership of (i) escrowed condo sale proceeds, (ii) the jointly owned automobile, and (iii) IRA 768, and requested constructive trust or equitable substitution; the trial court ruled for her on condo and car but for the children on IRA 768.
- The appellate court affirmed, holding condo proceeds revocable to Jean (survivorship), car ownership to Jean, and the IRA 768 ownership to the children after analysis of ARO timing and equitable considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do condo sale proceeds vest in Jean as survivorship property? | Jean wins under tenancy by the entirety survival. | Children argue for postmortem division or partial entitlement. | Jean wins; proceeds pass by survivorship. |
| Did Lee's possession convert the automobile to Jean’s ownership? | Jean entitled to car as joint property; Lee converted it. | Lee's possession valid; no conversion to Jean. | Jean wins; conversion found and car awarded to her. |
| Did Robert’s January 2007 change of IRA 768 beneficiaries violate the ARO and give Jean an equitable remedy? | ARO violated; Jean entitled to constructive trust or substitution. | Change occurred before filing; ARO not violated; no equitable remedy. | No violation as a matter of law; no constructive trust or substitution; propriety affirmed against Jean. |
| Should Jean recover appellate or trial costs and were the cross-appeal arguments frivolous? | Jean seeks costs as prevailing party; argues appellate frivolity. | Children prevailed on IRA 768; costs and fees allocated to prevailers. | Costs awarded to the children; no appellate fees due to lack of frivolous appeal. |
Key Cases Cited
- Smith v. Tipping, 349 Mass. 590 (Mass. 1965) (proceeds of real estate held by entirety parcels; survivorship context)
- Campagna v. Campagna, 337 Mass. 599 (Mass. 1958) (tenancy by entirety; division on divorce)
- Bernatavicius v. Bernatavicius, 259 Mass. 486 (Mass. 1927) (divorce effects on survivorship rights in property)
- Finn v. Finn, 348 Mass. 443 (Mass. 1965) (separation agreement may preserve joint ownership beyond divorce)
- Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581 (Mass. App. Ct. 1986) (ante mortem agreements overriding survivorship rules)
- Gleed v. Noon, 415 Mass. 498 (Mass. 1993) (protecting beneficiary changes under certain circumstances)
- Kittredge v. Kittredge, 441 Mass. 28 (Mass. 2004) (dissipation concept in marital estates)
- Ross v. Ross, 385 Mass. 30 (Mass. 1982) (dissipation; marital expenditure misconduct criteria)
- Johnston v. Johnston, 38 Mass. App. Ct. 531 (Mass. App. Ct. 1995) (dissipation and equitable considerations in divorce)
- Avery v. Steele, 414 Mass. 450 (Mass. 1993) (frivolous appeal standard in appellate fees)
- Smith & Zobel Rules Practice, No official reporter; practice guide (N/A) (filing and filing-date concepts for ARO and related rules)
- McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997) (federal rule analogies to state-law summary judgment scenarios)