31 Mass. App. Ct. 534 | Mass. App. Ct. | 1991
The husband appeals from a judgment of divorce, bringing forward three narrow issues arising out of the judge’s division of property under G. L. c. 208, § 34: (1) Was the judge in error by failing to make a present assignment to the husband of certain liquid assets belonging to the wife? (2) Did the judge abuse his discretion by deferring the husband’s receipt of marital property? (3) Were there discrepancies in the figures used to calculate the division of property?
We conclude the judge was within his authority in transferring the marital home to the wife and postponing payment of marital property, in some reasonable measure, to a later
The husband relies on Dewan v. Dewan, 399 Mass. 754 (1987), and Hanify v. Hanify, 403 Mass. 184 (1988), for the proposition that a present division of property is required as matter of law to the extent that the assets are liquid and can be easily valued. Since there was no finding, the argument goes, that the valuation of the wife’s securities was uncertain, or that the distribution of her securities to the husband was impractical, it was an error of law for the judge not to have ordered, at the very least,
Dewan involved the division of a spouse’s future benefits from a pension plan; Hanify involved the division of the future benefits, if any, from pending lawsuits. Dewan recognizes a preference for an immediate settlement of future pension rights because “it avoids continued strife and uncertainty between the parties.” Dewan at 757. Hanify, af
We see no basis for concluding that the judge’s order was either not sound or not wise. He put it this way at á hearing on October 11, 1989: “In the best of all possible worlds, he [the husband] would get the money. Now, to pay him his present interest there is no way I can do that without impacting adversely on the children. As so often happens in a divorce context, the husband doesn’t get his interest for some time.”
. No doubt the judge had in mind his unchallenged findings that, deprived of her securities, the wife’s sole liquid assets would have been $1,550 in cash, while her debts (exclusive of mortgage obligations) would be $100,965. The precariousness of that financial position is obvious.
We note also that the $240,000 obligation is well secured by a mortgage on the marital home,
We conclude that the judge acted within his discretion in not ordering the present assignment of the wife’s securities to the husband, it follows, too, that the judge did not abuse his discretion in deferring the husband’s receipt of a portion of his share of the marital property until the occurrence of a specified event rationally related to the circumstances of the parties. Contrast Yee v. Yee, 23 Mass. App. Ct. 483, 484-485 (1987) (realization of husband’s share of proceeds of sale of house contingent on wife’s subjective determination).
Finally, the husband raises material questions with regard to the judge’s calculations, namely: (i) the judge denied the wife’s motion for counsel fees in the amount of $31,465.37, while including that amount in the wife’s debts and thus as an offset against the wife’s share of marital property. The effect of doing so is to require the husband to pay half the fees he was previously relieved from paying. Was that the result intended by the judge? (ii) There is an inconsistency between the Fidelity Magellan/IRA listed in the wife’s financial statement at $4,145.41 and the documentation underlying that item which shows the account to be $11,190.57. The judge adopted the figure in the financial statement without explanation. Was that an error? (iii) The wife’s financial statement, adopted by the judge, shows the Fidelity brokerage account at $88,115.28. Documentation supporting that item, however, shows $103,814.84. Did the judge intend to adopt the lower figure?
The wife offers no reconciliation of these apparent discrepancies, and the aggregate of these items is material to the financial outcome of the division of property. Further findings are required. The judgment insofar as it concerns the division of property is vacated; in all other respects it is affirmed. The case is remanded to the trial judge for the lim
So ordered.
The judge found that if the marital home were sold, the disruption to the wife and children “would be great,” the adverse tax implications would be serious, and the husband’s move “will be less disruptive for him than alternative arrangements would be for the . . . [wife] and minor children.”
It appears that the husband vacated the marital home in November, 1989, and the transfer of the house to the wife is not an issue on appeal.
There is no contention here that the judge did not fairly consider all the factors relevant under § 34, or that he considered irrelevant matters, or that he did not adequately state the reasons for his conclusions. See Redding v. Redding, 398 Mass. 102, 107 (1986), citing Ross v. Ross, 385 Mass. 30, 37-38 (1982).
The husband also argued for a distribution of the balance of $78,000 (to be financed by a second mortgage on the marital home) — an argument we need not discuss in view of our opinion rejecting his argument for a distribution of the wife’s securities.
Even though the value of the wife’s securities exceed her debts, the judge could reasonably have concluded that the excess was a necessary reserve against unforeseeable contingencies.
We note also that the husband was, at the time of the trial, a tenured professor of history at Brandéis University and a frequent recipient of research grants and fellowships.
The judge found that the outstanding first mortgage was $166,796, leaving an equity of over $900,000 to secure the $240,000 obligation.