25 Mass. App. Ct. 918 | Mass. App. Ct. | 1987
Except for some real property, the parties have few assets of significant value.
The trial judge’s solution was otherwise. He awarded Janet the Glendale Street home and one of the vacant lots of her choosing. Wesley received the Arlington Street property and the remaining Ware lot. He was also ordered to pay Janet $25 per week in alimony and to assume all but the Avco liability, for which Janet was to be responsible.
Once due consideration has been accorded to the § 34 factors of G. L. c. 208, a judge has broad discretion in fashioning a judgment, and his determination will not be set aside unless it is without foundation. Rice v. Rice, 372 Mass. 398, 402 (1977). See also Rolde v. Rolde, 12 Mass. App.
The judge in the instant case faced a familiar Solomonic decision: dividing limited assets between two whose needs are indisputably acute. See Anthony v. Anthony, 21 Mass. App. Ct. 299, 304-305 (1985). We cannot say that the probate judge sliced the marital estate unreasonably. His underlying findings are neither internally inconsistent, Beninati v. Beninati, 18 Mass. App. Ct. 529, 536 (1984), nor plainly wrong. King v. King, 373 Mass. 37, 40 (1977). Rolde v. Rolde, supra at 401. See also Mass.R.Dom. Rel.P. 52(a) (1975).
Although one wishes that the judge had explained how he determined Wesley’s wages to be $350 per week, his failure to do so is not fatal. Bianco v. Bianco, 371 Mass. 420,422-423 (1976). Rice v. Rice, 372 Mass. 398, 401-402 (1977). When the case was presented, Wesley’s weekly earnings were, in fact, $350. Even if that sum represented earnings from a short-term project, and there was expectation of higher weekly income in the near future, $350 per week stood as a reasonable indicator of Wesley’s long-term average income. It was in the nature of his trade that Wesley’s earnings might fluctuate widely, depending upon the availability of carpentry work. There was evidence that in some years Wesley earned $12,000, while in others he earned significantly more. The judge was entitled to consider the likelihood of lean weeks or months in estimating Wesley’s income.
Janet’s reliance on Grubert v. Grubert, 20 Mass. App. Ct. 811 (1985), is misplaced. In the Grubert case the wife faced a dramatic decline in life-style upon divorce, while that of the husband was comparatively opulent.
Neither of those factors is visible in the instant case. The judge’s alimony award,- in light of Wesley’s significant debts, does not permit Wesley to enjoy a self-indulgent life-style at Janet’s expense. Nothing in the record suggests that Wesley has hidden income or secret assets which went untapped below. Compare also Bak v. Bak, 24 Mass. App. Ct. 608,622-623 (1987).
The statutory authority to grant alimony lies in one spouse’s need for support and the other spouse’s ability to pay. Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). That consideration properly informed the judge’s alimony award and distribution of the couple’s real estate holdings. Although Janet proposed to pay off all the various liens and encumbrances if she were awarded both homes, the trial judge was of opinion that Janet “presents
In an absolute sense, the award to Janet is not adequate. The alimony order reflects the parties’ mutually straitened circumstances and should not be regarded as immune from modification. See G. L. c. 208, § 37. Schuler v. Schuler, 382 Mass. 366,370-371 (1981). Should Wesley’s income change for the better or his debts be significantly reduced, a concomitant increase in Janet’s alimony may be in order.
Judgment affirmed.
The couple owns two houses and two undeveloped lots. The trial judge fixed the value of these properties as follows:
Single family home on Glendale St., Easthampton, Massachusetts, valued at $74,000.
Two family home on Arlington St., Easthampton, Massachusetts, valued at $62,000.
Two building lots on Doane and Belchertown Roads, Ware, Massachusetts, valued at $5,000 each.
At the time of trial the parties had the following joint liabilities:
To Whom Owed Amount Secured
Avco Financial $9,357,20 mortgage
Town of Easthampton (taxes) $5,600.00 lien
Town of Ware $1,650.00 tax taking
Town of Easthampton $ 200.00 lien
In addition, Wesley LaValley has the following liabilities:
H. Floyd $15,917.41 judgment/execution
D. Williams $ 2,253.85 judgment/execution
AdvogueCarpet $ 3,500.00 attachment
L. Allard $ 3,000.00 attachment
In Grubert there was evidence that the husband’s income after taxes in 1980 exceeded $100,000 and that profits from his wholly-owned electronic components company were steadily increasing. In addition, the evidence showed that Grubert owned a $42,000 pleasure boat, a $22,000 Cadillac automobile and that he enjoyed “other indicia of a high standard of living.” Grubert, at 822.