14 Mass. App. Ct. 966 | Mass. App. Ct. | 1982
It is clear that the husband’s new attorney exercised poor judgment in accepting the engagement in this case and, again, in not withdrawing voluntarily when the wife first obj ected to his appearance. The posture of the case was such that the trial judge could not feasibly recuse himself because of the pendency of two matters (the entry of findings and the motion for an allowance of counsel fees) which in the normal course should have been acted on by the judge who presided over the trial. The dilemma was not satisfactorily solved by making the findings without granting a hearing and by arranging for the second judge to act on the motion for counsel fees. The wife was entitled to a consideration of her motion for a further evidentiary hearing uncomplicated by the fact that the trial judge could not preside at such a hearing nor even act on the motion itself. It was error to deny the motion for withdrawal of the husband’s new attorney, but that error cannot now be rectified by simply vacating all orders entered since his appearance. The findings of fact entered while he was the husband’s counsel must be vacated, and it would be unfair to the judge and the parties to expect the judge to enter new findings at this stage.
In the circumstances we are of opinion that the portions of the judgment relative to alimony and support must be vacated and the case remanded for retrial on those issues. The portion of the judgment which granted a divorce to the husband was considered and approved by the first panel which heard the appeal, and that portion of the judgment may stand. The portions relative to custody and visitation have not been contested on appeal. All matters relative to equitable division of the marital assets may be considered in connection with the related matters of alimony and support. The parties are reminded that particular properties may be ordered transferred from one spouse to the other based on traditional alimony principles but that an equitable division should normally encompass all of the marital property. Putnam v. Putnam, 5 Mass. App. Ct. 10, 13, 17 (1977).
On the appeal filed May 1, 1979, the portions of the judgment relative to divorce, custody, visitation and child support are affirmed. The portions of the judgment relative to alimony and mixed alimony and child
So ordered.