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COMMONWEALTH OF MASSACHUSETTS. APPEALS COURT. No. 2005-P-329. Barnstable County Division. Alexandra K. Day, v. Henry Pool Tufts,
Brief for the Defendant-Appellee,
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| Jerome J. Forman |
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TABLE OF CONTENTS
Statement of the Case and Facts................................................................................................2 Argument
Request...................................................................................................................................27
Conclusion...............................................................................................................................50 Statutory and Rule Addendum.............................................................................................. Post ii. TABLE OF AUTHORITIES. Cases. Adoption of Astrid, 45 Mass. App. Ct. 538, 547 (1998).........................................................34 Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).....................................................39 Baccanti v. Morton, 434 Mass. 787, 803 (2001)...................................................................49 Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987)...................................................39; 43; 45; 49 Belsky v. Belsky, 9 Mass. App. Ct. 852, 853 (1980)...............................................................41 Brash v. Brash, 406 Mass. 101, 105 (1990)...........................................................................34 Caccia v. Caccia, 40 Mass. App. Ct. 376, 380 (1996)...........................................................41 Capital Bank & Trust Co. v. Richman, Comins v. Comins, 33 Mass. App. Ct. 28, 30-33 (1992).......................................................45 Cooper v. Cooper, 99 N.J. 42, 53-54 (1984).........................................................................27 Cormier v. Carty, 381 Mass. 234, 235-236 (1980)...............................................................33 Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000) .............................................................39 Davidson v. Davidson,19 Mass. App. Ct. 364, 376 (1985)...................................................41 Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 (1992).........................................48 Dewan v. Dewan, 30 Mass. App. Ct. 133, 135 (1991) .........................................................48 Fechtor v. Fechtor, 26 Mass. App. Ct.895, 863 (1989)..................................................48-49 iii. Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996)....................................................47 Freedman v. Freedman, 49 Mass. App. Ct. 519, 522 (2000) .............................................39 Goddard v. Goddard, 322 Mass. 247, 248 (1948)..............................................................35 Goldman v. Goldman, 38 Mass. App. Ct. 603, 613 (1990).......................................... 41; 42 Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986)...........................................................46 Grubert v. Grubert, 20 Mass. App. Ct. 811, 821-822 (1985)..............................................42 Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998)................................................34 Hale v. Hale, 12 Mass. App. Ct. 812, 815-820 (1981).........................................................27 Hay v. Cloutier, 389 Mass. 248, 254 (1983)........................................................................41 Heacock v. Heacock, 402 Mass. 21, 24 (1988)....................................................................41 Heins v. Ledis, 422 Mass. 477, 482 (1996)...............................................................41; 46-47 Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002) ...........................................40 Jenkins v. Jenkins, 304 Mass. 248, 250 (1939)....................................................................39 Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995)..................................................35 Kattar v. Demoulas, 433 Mass. 1, 16 (2000)......................................................................34 Keller v. O'Brien, 420 Mass. 820,827 n.11 (1995)..............................................................29 Kittredge v. Kittredge, 441 Mass. 28, 44 (2004)................................................................44 Lauricella v. Lauricella, 409 Mass. 211, 213 (1991)..........................................................41 Leader v. Hycor, Inc., 395 Mass. 215, 224(1985)..............................................................33 Lewis v. Emerson, 391 Mass. 517, 524 (1984)...................................................................32 v .
Lighter v. Lumbermans Mutual Casualty Insurance Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996)......................................................41 Mulhern v. Roach, 398 Mass. 18, 23 (1986)......................................................................34 Palmer v. Palmer, 23 Mass. App. Ct. 245, 252 (1986).....................................................35 Pare v. Pare, 409 Mass. 292, 296 (1991)..........................................................................41 Richman v. Richman, 28 Mass. App. Ct. 655, 657-663 (1990)..........................................45 Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981).....................................................39; 47 Rood v. Newberg, 48 Mass. App. Ct. 185, 191(1999).......................................................35 Rosenblatt v. Kazlow-Rosenblatt, 39 Mass. App. Ct. 297 (1995).....................................48 Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001)........................................27; 28; 29; 31 Sampson v. Sampson, 62 Mass. App. Ct. 472, 482-483 (2004)........................................48 Schrottman v. Barnicle, 386 Mass. 386 Mass. 627, 640 (1982)........................................33 Schuler v. Schuler, 382 Mass. 366, 368 (1981).................................................................47 Serino v. Serino, 6 Mass. App. Ct. 926 (1978)..................................................................34 Thurlow v. Shaw's Supermarkets, Inc., Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981)...................................................31 Vertees v. Vertees, 24 Mass. App. Ct. 918, 919 (1987)....................................................29 v. Williams v. Massa, 431 Mass. 619, 629 (2000)...........................................................41; 49 Williams v. Pitney, 409 Mass. 449, 455-456 (1991)...................................................29; 30 Yannas v. Frondistou-Yannas, 395 Mass.704 (1985).........................16; 27; 28; 29; 30; 49 Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 15-17 (1979).....................................................42 Zeh v. Zeh, 35 Mass. App. Ct. 260, 266 (1993) ...............................................................45
Mass R. Civ P. 52(a).........................................................................................................33 G.L.c. 208, Section 34............................................................................................... passim C.P. Kindregan & M.L. Inker, Family Law and Practice, 1 Statement of the Issues Presented For Review. 1. Do the Probate Judge's findings of fact exhibit the badge of personal analysis? 2. Where the Wife's reasons for removing the child to Virginia were neither good nor sincere and the close bond between the Husband and his son would be disrupted by the move, do the best interests of the child justify the Probate Judge denying the Wife's request for removal? 4. Did the Probate Judge abuse his discretion under G.L.c. 208, Section 34, in dividing the parties' marital estate in the circumstances as he found them to be?
5. Did the lower court properly award time-limited alimony to the Wife where she possessed marketable skills, had a realistic opportunity for self-sufficiency in the years ahead if she chose to work and where other aspects of the property division left her with sufficient assets to achieve the station in life she enjoyed while married? 6. Did the lower court err in crediting the proof offered by the Husband's expert witness concerning the fair market value of the Husband's interest in Sandyside, the corporation owned his family? Statement of the Case and Facts. On March 1, 2001, the plaintiff-appellant Alexandra Kittredge Day Tufts (“the Wife”) brought this civil action against the defendant-appellee Henry Pool Tufts (“the Husband”) in the Barnstable Division of the Probate and Family Court Department seeking a divorce on the grounds of the irretrievable breakdown of their marriage pursuant to the provisions of G.L.c. 208, Section 1B (App.1; 10). The Wife alleged that the parties were married in Virginia on May 25, 1991, had one child born of their marriage on October 7, 1996 (Henry Kittredge Tufts) (“Henry” or “the child”), and lived together at the martial home at 49 North Sandyside Lane in Yarmouth, Massachusetts (App.10). Claiming that she and the Husband “have lost the ability to communicate with one another” and that there was an irretrievable breakdown of their marriage in July of 2000, the Wife sought a divorce on this ground together with an order awarding her custody of their child, conveying to her “various holdings or real estate including an undeveloped lot in Yarmouthport” and making a division of other property under G.L.c. 208, Section 34 (App.10).
The Husband's answer admitted that their marriage was irretrievably broken down (App.2;11-12). In a counterclaim, the Husband alleged most of the same facts and requested an order from the court awarding him custody of their child, a suitable amount of child support from the Wife, and the conveyance to him of “the real estate located at various holdings of real estate,” including the undeveloped lot in Yarmouth Port (App.11-12). The Wife replied to the counterclaim by requesting an order denying his request for custody of their child, instead awarding custody to her; denying his request for child support; and denying his request for the awarding of real estate to him, instead making awards consistent with her original complaint (App.2;13-14). With the pleadings in this posture, discovery ensued and the Wife's claims concerning custody evolved into one not only for primary physical custody of Henry but also for permission to remove him to the State of Virginia (Add.19). The Husband opposed the Wife's request for removal and sought sole legal and physical custody of his son (Add.19).
Before trial, the parties were able to stipulate to certain facts (App.A.95-97). Besides agreeing that they were married in Virginia on May 25, 1991; that they last lived together in April of 2001; that Henry was born to them on October 7, 1996; and their marriage is irretriev-ably broken, the Wife and the Husband agreed that their child, then approaching seven years of age, spends about half of his time with each parent since the pendency of the divorce (App.A.95). The Wife, age 41, has a Massachusetts General Contractor's license and the Husband, age 44, is a physician engaged in the private practice of internal medicine as a sole proprietor sharing offices and staff with three other physicians, having had a primary care practice for about twelve years before that with admission privileges to Cape Cod Hospital (App.A.95).
It was also agreed that the Wife has work experience as both a designer and draftsperson and, more recently, has been employed in construction work by Sandscape Building Company (App.A.95). In the past, she performed general management, contracting, design, drafting and maintenance work for Sandyside Corporation (“Sandyside”), the Husband's family's corporation (App.A. 95). Sandyside is owned by the Husband and various mem-bers of his family; the Husband's interest in Sandyside is slightly less than 20% (App.A.95). The primary assets of Sandyside consist of a compound of dwellings located on about 20 acres located off Route 6A in Yarmouth Port (App.A.97). The compound was built in the late 19 th century by an ancestor of the Husband and consists of a “main house,” the “carriage house” and the “cottage” (App.A.97).
As a result of a prior stipulation by the parties as well as orders entered by the Court in this action, the Wife was given “primary physical custody” of the child but the parties share visitation with him on an even basis (App.A.97). In addition, on October 31, 2002, the Court ordered a parenting schedule which essentially equalizes the time the parties spend with their child (App.A.96). At the time of trial, the Husband pays $3,225 to the Wife as unallocated support (App.A.96).
Finally, it was agreed that the Wife was born in Virginia; and this is where her family as well as the Husband's mother and his siblings live(App.A.96). Because the custody, visitation and removal of the parties' child were issues in this case, the Court appointed Kenneth D. Herman, Ph.D.,J.D., as guardian ad litem(“the GAL”)(App. A.97). During the course of the trial, the parties also stipulated concerning telephone messages left by the Wife on the Husband's voice mail in 2002 and 2003 (App.A.98-105). The following are excerpts of some of the messages left by the Wife for the Husband:
“Remember I have nothing to lose by going to Court because they're not going to take Henry away from me....They're never going to give you full custody....
“ You want all this stuff to stop? Give me a fair settlement, tell me whether I get to move to Virginia and I will get off your case and we'll get on with our lives. Until then, it's going to be a bloody nightmare and continue being a bloody nightmare.”
“...You basically don't exist in my eyes anymore, not even as a person, less than a person. You're just despicable to me.”
“ I'm hoping to (unintelligible) our son to know what a coward you really are and how low you've stooped .”
“I hate you for what you have done to our ability to be a good co-parenting together. You're a stingy little shit, not paying, refusing to pay for your own son's needs, and withholding money, you greedy bastard! I'm gonna pick you dry whether it takes me all my life to get money out of you, you shit! I am so sick of fighting over stupid little things with you...so I can get on with my god damn life and I don't have to deal with you every second, let me go!! (unintelligible) You can't have everything. You are a physician, you owe us a living! I am so sick of you! I hate you!”
“I am going to take everything. Everything the Court will give me, everything, so it screws your whole life, including your inheritance too, I can get part of that too or I can at least tie it up long enough.”
“... I won't get along with you and I don't intend to get along with you , and I don't intend to have anything to do with you that my being involved with you is entirely different than your son's involvement with you and when your son is old enough he will know the truth .” (App.A. 98-105)(emphasis supplied). On February 25, 2004, Judge Scandurra issued his findings of fact and rationale on the issues of the Wife's request for removal, the parties' competing requests for custody as well as the present and future needs of the child (App.7; Add.19-25). He found that both parties both grew up in Virginia and first met each other in elementary school (Add.19). Although dyslexic, the Wife was able to earn an Associate's Degree at Endicott College in Massachusetts (which has a special program for dyslexic students) and then spent two years at a fine arts school in Massachusetts (Add.19). By 1985, she had finished her education and worked at various jobs here (Add.19). Under personal stress at the time, she even-tually moved back with her family in Virginia in the late 1980's (Add. 19). The Wife has a troubled psychiatric history; her mother committed suicide when the Wife was four years old and she struggled with anorexia and bulimia over the years (Add.19).
The Husband is the youngest of five siblings and his upbringing and early life were fairly stable (Add.19). He spent his summers at his family “compound” in Yarmouth Port and after high school, he completed college and then medical school at George Washington University in Wash-ington, D.C.(Add.19-20). The parties renewed their acquaintance in 1989 while the Husband was completing his medical internship and a residency in Washington(Add.20). They became engaged in 1990 and after considering the Husband's professional options, decided to move to Yarmouth Port on Cape Cod where the Husband's family had maintained a residence for many years(Add.20). After sitting for his medical boards, in 1990 in Massachusetts, the Husband began practicing medicine on the Cape in 1990(Add.20). After marrying in 1991, the couple lived in a cottage on the Husband's family's property in Yarmouth Port; the Wife was actively involved in renovating the cottage and for a while she worked part-time for an architectural firm (Add.20). Her passion, however, was horseback riding and she is an avid and accomplished equestrian; she even had brought her own horse to Massachusetts from Virginia (Add.20). “By her own representations, her primary motivation for working before Henry was born was to subsidize the cost of equestrian competitions with which she was involved”(Add. 20).
By 1996, the parties decided to have a child (Add.20). The Wife was concerned about the child being dyslexic or schizophrenic; and she wanted to have the freedom to ride horses (Add.20). The pregnancy was a difficult one and the Probate Judge found that this is when the parties began to drift apart (Add.20). They discussed raising their child in Virginia and the Husband interviewed for a position at the University of Virginia Hospital, an opportunity that did not materialize (Add. 20). That same year, the Husband resigned his position at Cape Cod Hospital and opened a private practice in Hyannis where he practices to this day (Add.20). The Probate Judge found that the Wife had a difficult time adjusting to motherhood even after being assisted by a friend and then by a nanny as well as the Husband (Add.20). She continued with her equestrian activities and worked part-time for Sandyside supervising the renovations of properties within the compound while Henry remained home with the nanny or the Husband as his caretakers until he was two years old (Add.20). He was then enrolled in pre-school three days a week and was cared for by the nanny the other two days (Add.20).
Before separating in April of 2001, counsel for the parties met and negotiated a custody agreement whereby they agreed to share legal custody of Henry while the Wife was given primary physical custody (Add.20-21). As Judge Scandurra found, however, “[t]he Husband agreed to this schedule to minimize the discord between the parties”(Add.21). Henry spends Monday and Tuesday with the Wife; Wednesday and Thursday with the Husband; and he alternates weekends with each parent (Add.21). This sche-dule became a temporary order of the Court in October of 2002 (Add.21). Upon their separation, the Husband remained in the cottage and the Wife moved into a small ranch-type home on nearby Monomoy Road which the parties had bought as an investment (Add.20). At first, the parties moved in and out of the cottage (which had been the marital home) in accordance with their visitation schedule so that Henry did not have to move (Add.21). Eventually, this system became unworkable in November of 2001 when the Wife decided to live full time at the ranch home (Add.21).
At the time of the separation, the Wife was spending a good deal of time with her boyfriend, one Steven Lucas; and it was found their
(Add.21). While the Husband never publicly expressed his displeasure with the Wife's behavior to anyone, it was found that the Wife complained “frequently and loudly” about the Husband to postal workers, postal customers, and parents of Henry's schoolmates (Add.21). She disparag-ed the Husband relentlessly to others, calling him a “rat” and complaining about her support allowance (Add. 21). She made these unsolicited public complaints about the Husband in Henry's presence and regardless of whether others wanted to hear them (Add.21). Judge Scandurra credited the GAL's conclusion that the Wife's frequent complaining in public about the Husband in Henry's pre-sence “affects the child's ability to freely and easily relate to both parents”(Add.21).
The Probate Judge further credited the insights of the family's therapist, Dr. Marian Incarnacion (Add.22). After working with the parties and Henry together, she thought that
(Add.22)(emphasis supplied). The GAL observed the same parenting dynamic by the parties as Dr. Incarnacion but expressed it as “two quarterbacks...using unrelated playbooks and with no common language”(Add.22). He also echoed every other percipient witness—as well as the parties themselves—in concluding that communication between the parties “was virtually nonexistent”(Add.22). However, in recommending that the Wife be allowed to move to Virginia with Henry, the GAL found more credible the Wife's surmise that if she were allowed to do so, the Husband would follow them to Virginia rather than remain in Massachusetts and see his son only intermittently (Add.22).
The Probate Judge could not accept this recommen-dation, one which put at risk the best interests of the child (Add.22). As the lower court determined,
(Add.22-23). Measuring the evidence presented under the “real advantage” test of Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1981), a standard to determine the best in-terests of the child incident to a request for removal, the Probate Judge could see no “real advantage” for the Wife's proposed move to Virginia with Henry (Add.23). As he found, the Wife does not have professional or personal ties to Virginia strong enough to justify removal: she has identifed no career opportunity there and “has not even applied for any jobs in Virginia;” and although some of her family resides there, by her own admission she is not close to her family (Add.23). In fact, the most benign reason the lower court could find for the Wife's move is so that she can live in “horse country,” a reason not amounting to a “real advantage” under Yannas (Add. 23).
The Probate Judge, however, saw another reason for the Wife's removal request, i.e., in order to punish the Husband by depriving him of his son because he breached an alleged agreement with her to move back to Virginia at some indefinite point in their marriage (Add.23). Finding her expectation that the Husband would abandon his established medical practice on Cape Cod so that she pursue her equestrian interests in Virginia to be “totally unrealistic,” the trial judge referenced some of the hostile phone messages, described above, which the Wife left on the Husband's voice mail to conclude that the Wife “has no use for the Husband” and that her real motive in seeking removal was to deprive the Husband of his son's companionship in any way she could (Add.23-24). He justifiably concluded that “such a motivation is not a sincere reason for wanting to remove a child from the Commonwealth”(Add.23). He thereupon denied the Wife's request to remove Henry to Virginia (Add.23). Judge Scandurra then granted the Husband's request for sole legal custody of his son (Add.24-25). As the Probate Judge found, the parties' admitted inability to work together in the best interests of Henry was driven in large part by the Wife's unrelenting hostility to the Husband, exemplified by the phone messages, her inappropriate public disparagement of him to third parties in front of Henry, even telling the GAL that she thought the Husband was a “sub-human” and an “emotional terrorist” (Add.24). Her unwillingness to see the impact which her extreme hostility toward the Husband has on Henry “raises grave doubts about her well-reasoned decisions about Henry's well being....[Awarding the Husband sole legal custody] will ensure that the most important decisions in Henry's life can be made without any undue protraction” (Add.25). As for the equitable division of the parties' property under G.L.c. 208, Section 34, the lower court addressed all of the statutory factors and, for the purposes of the issues raised by the Wife on appeal, found that while the Husband (44 years of age) is in excellent health, she is 41 years old, suffers from depression for which she takes Prozac, and has a history of anorexia (Add.1). She also takes Paxil and Lorazepam daily for stress and anxiety (Add.1-2). The GAL testified that she displays symptoms of a person who may suffer from Borderline Personality Disorder; and he confirmed that the Wife's volatility and irritability is the consequence of her chronic minor depression (Add.2).
The Wife also has dyslexia but the Probate Judge expressly found that her condition did not interfere with her completing 3 1/2 years of college, studying for her contractor's license, studying the State Building Code, passing the State contractor examination and examining various record at the Registry of Deeds (Add.2). “The Wife can certainly read, write, draw, create plans, and perform other normal activities associated with reading and writing, albeit a little slower than others”(Add.2). She has never sought specialized schooling or treatment which would help her deal with her dyslexia (Add.2). As for the parties' station during the marriage, it was found that although they have substantial assets, they lived conservatively(Add.2). Their luxuries were two boats, the Wife's horses, her $70,000 worth of jewelry given her by the Husband, and a nanny (Add.2). Besides the jewelry, the Husband has paid $23,400 annually to support the Wife's horse interests (Add.2). Together they also bought the Monomoy Road property in South Yarmouth (where the Wife now lives) as an investment for $190,000 (Add.2-3). The Husband continues to live in what was the marital home, the so-called “cottage,” with a fair market value of $650,000 (Add.3).
Judge Scandurra found that while the Wife's lifestyle has “changed significantly” since their sepa-ration, it is due mostly to her decision to reside at the Monomoy Road property, a far different home than the cottage (Add.3). She also has had difficulty in providing upkeep for her two horses (Add.3). The parties each have their own automobiles and share joint ownership of a Jeep (Add.3). While the Wife owns two horses, the Husband has a motorcycle and two boats (Add.3). The Wife has already retained the personal property items she wanted from the marital home (Add.3). The Husband is employed full-time as a Board Certified internist sharing space with three other physicians; the Wife acknowledged that “he works hard, is a good phy-sician, and cares about his patients”(Add.3-4). The Probate Judge rejected the contention that he is inten-tionally underemployed; “[h]e has spent time for counsel-ing, shared time with his son, and the like”(Add.4).
The Wife “consciously chooses not to be employed at the present time” even though she possesses a state general contractor's license and has valuable work experience as a building designer, draftsperson, and retail salesperson and is employable in these areas despite her dyslexia (Add.4). Because of her employable talents and her decision not to work, the lower court found it proper to attribute income to the Wife albeit not to the level of the Husband (Add.4). Nor does the Wife's dyslexia stand in the way of her employment; she admitted that given extra time to read, she can accomplish most tasks; and “[t]here is nothing stated in the Bridges Association assessment of the Wife that prohibits her from becoming gainfully employed”(Add.4). The Probate Judge found that the Husband's work as a physician together with his investments and the rental income he could receive from the cottage he rents for only $200 monthly gives him an annual income of $143,000 (Add.5). While he possibly might be able to earn more as an internist, it was found that “given the increased time that the Husband has with his son, this is really not probable”(Add.5). His investment income was halved (by about $20,000) because he is now sharing that income with the Wife (Add.5). As for the Wife, it was found that her income consists of $20,000 of investment income, another $25,000 in attributed income from prospective employment; and she will also receive child support and alimony from the Husband (Add.6).
The parties' liabilities consist of the margin debt on their the Wachovia account which was used to buy the Wife's home on Monomoy Road and to meet their ongoing living expenses; and they both owe substantial legal fees (Add.6). The Wife's needs are principally to permit her to live a lifestyle comparable to the Husband's lifestyle (Add.6). In order to accomplish this, the Probate Judge framed a division which awards her one-half of the net value of their Wachovia account less the margin debt, or $456,634; an additional $200,000 from this Wachovia account minus an advance of $8,948.00 already given the Wife, or $191,052; and $63,530, the entirety of another Wachovia joint investment account (Add.6;15; App.22). From this $265,000, the Wife is obligated to pay $25,000 in attorney's fees, leaving her with a net sum of $230,000 in additional funds beyond her half share of the parties' principal Wachovia account (Add.6;15; App.22). The Wife is also awarded other assets including sole ownership of the Monomoy Road property so that “[i]f she wished, the Wife could sell her present residence and augment the proceeds of that sale with these funds in order to purchase a home more in line with her lifestyle, that being in the area of approximately $500,000, with no mortgage”(Add.6)(emphasis in original).
In addition, the Wife is awarded $36,400 per year in alimony and child support, of which $26,000 is allocated as alimony which will last five years (Add. 6; App. 21). Together with her $20,000 in investment income already awarded, the Wife will have a gross income of $56,400 annually and she is not yet employed (Add.6). When her attributed income of $25,000 is added to this amount, her gross income would be $81,400 annually; and the Probate Judge reasoned that she “should meet her needs quite adequately on this amount”(Add.6). The parties' net estate totaled $2,667,460 (Add.7). In its calculation, the lower court credited the Hus-band's expert who valued his 19.32% interest in Sandy-side, his family's corporation which holds as its assets the compound of dwellings in Yarmouth Port, to be worth $465,500 or $371,003 after tax consequences (Add.8). He found that the two properties gifted to him by his family (one in Yarmouth Port and one in Warrenton) and his interest in Sandyside, his family's corporation, “never became part of the fabric of the marriage”(Add.8-9).
In describing the parties' conduct during the marriage, the Probate Judge adverted to his other find-ings concerning removal and custody and then found inter alia that the parties were equal caregivers to their son and though the temporary order describes the Wife as having primary physical custody, “[i]n the true sense of the word, since the parties' separation, the Wife has not really had ‘physical custody,'” since the parties share equal time with Henry (Add.11). Addressing contribution, it was found that the Wife came to the marriage with $290,000 in investments and the Husband with $600,000, money which composed the principal Wachovia account which the Husband managed with success until the recent decline in the stock market (Add.12). The Wife inherited $36,000 in the 1990's; and the Husband's family made several substantial cash gifts to him during the marriage, all of this money going into their joint Wachovia account (Add.12). Since 1979, well before the marriage, and then after the marriage, his family gifted him stock in Sandyside and an interest in two Virginia companies(Add.12). While all of the income from the Husband's employment and investments were used for the marital enterprise, “[t]he Wife did not appreciably con-tribute economically to the family unit,” as her life was involved with horseback riding, artwork etc.(Add.12). The Husband paid for all of the Wife's significant horse-related expenses over the years (Add.12).
The Wife performed various services for Sandyside for which she was paid a salary (Add.13). She also contributed to renovating some Sandyside property (Add.13). The Husband performed “at least an equal share” of the homemaking duties (Add.14). He bathed Henry, put him to bed, arose with him in the morning, prepared his breakfast, and spent time with him in his daily activities (Add.14). Upon all of these findings, Judge Scandurra framed a division which awarded the Husband $1,522,274 or about 57% of the martial estate and the Wife $1,145,186 or approximately 43% (Add.14-15). As he observed,
(Add.14). The Husband is therefore left with one-half of the principal Wachovia account minus the margin debt; his modest retirement accounts; his interests in the family-owned and gifted assets, including the Sandyside properties; his automobile, motorcycle, boats and home furnishings (Add.14-15). The Wife is awarded the other half of the principal Wachovia account; the unencumbered Monomoy Road property; the entirety of another Wachovia investment account; modest retirement accounts and savings accounts; some other investments; her Porsche and the Jeep with no car payments; her jewelry; her horses; her health insurance paid; and a gross income of $56,400 annually even before she finds employment (Add.14-15; 17-18; App. 20-25).
Following the entry of an amended judgment reflect-ing these rulings, the Wife moved for a new trial or, in the alternative, for supplemental findings (App.6-7; 27; App. 20-25). Upon the denial of these post-trial motions, the Wife pursued this appeal (App.7-9; 28). Argument. 1. Henry's Move To Virginia Would Not Have Been In His Best Interests And The Probate Judge Did Not Abuse His Discretion In Denying The Wife ' s Removal Request. Consistent with G.L.c. 208, Section 30, Henry could not be removed from the Commonwealth without the assent of both of his parents “unless the court upon cause shown otherwise orders.” This language incorporates the “real advantage” test which the lower court employed when it considered the Wife's request to remove Henry to Virginia over the objections of the Husband. As explained in Yannas v. Frondistou-Yannas, 395 Mass. at 710, Hale v. Hale, 12 Mass. App. Ct. 812, 815-820 (1981), and most recently in Rosenthal v. Maney, 51 Mass. App. Ct. 257, 265-271(2001), the “real advantage” test makes paramount the bests interests of the child in any proposed move outside the Commonwealth. However, “because the best interests of the child are so interwoven with the well being of the custodial parent, the determination of the child's best interests requires that the custodial parent be taken into account.” Yannas, supra , quoting Cooper v. Cooper, 99 N.J. 42, 53-54 (1984). The emphasis of the inquiry under Yannas is whether the Wife's proposed move to Virginia is likely to improve the quality of the “new family unit,” i.e., the custodial parent and the child. Rosenthal, 51 Mass. App. Ct. at 266.
The Yannas Court identified the factors for a Probate Judge to analyze in deciding whether to allow removal. Id . at 711. The first inquiry is whether there is a good reason for the move, a “real advantage” for the custodial parent. Id . If a good, sincere reason for wanting to remove the child to another jurisdiction is shown, then the following factors must be considered collectively in deciding the best interests of the child: (1) the interests of the child; (2) the interests of the custodial parent; and (3) the interests of the noncus-todial parent. Id . Rosenthal, 51 Mass. App. Ct. at 266-272. Assuming for the sake of argument that the Wife is the “custodial parent,” her proof failed to clear even the first hurdle of Yannas' “real advantage” test. Her asserted reasons for the move to Virginia with Henry were neither good nor sincere. She claimed that there was an agreement in place with the Husband for them to return to Virginia eventually in order for her to pursue her eques-trian interests; and she seemed to assert that there were job opportunities for her in Virginia as well as family ties which justified the move (Add. 22-23; Tr. II: 52; 121-123; IV: 45-46; V:39-40;Wife's Brief at 19-21). But none of this was ever proved in fact. As the Probate Judge twice found from all the evidence, there was no agreement to return to Virginia and her expectation that the Husband would do so thereby abandoning his medical practice was “totally unrealistic”(Add.9; 23). Nor has the Wife even applied for employment in Virginia; and by her own admission, she is not close to her family there(Add. 23; Tr. IV: 69; 146; V:33-34; 56-58).
Stripped to its essentials, the Wife's reason for the move was so that she could live in “horse country” (Add. 23; Tr. IV: 146; V: 32). This is not a good, sincere reason justifying Henry's move. In Yannas, removal was allowed where the mother had already found employment in Greece and the children would be close to their relatives, solidifying their extended family. 395 Mass. at 707; 712. In Rosenthal, there was good reason for the move to Providence, the locus of the new husband's employment and her new job. 51 Mass. App. Ct. at 267. In Williams v. Pitney, 409 Mass. 449, 455-456 (1991), the mother's health, better employment prospects and the proximity of supportive relatives were good, sincere reasons for the move to California. Id . In Vertees v. Vertees, 24 Mass. App. Ct. 918, 919 (1987), the mother proved the move to Illinois would put her nearer her supportive family and provided better job opportunities for her). Here, in contrast, the Wife has neither investigated nor identified job opportunities in Virginia and she is not close to the relatives she has there. Without good, sincere reasons for the move, bottomed on concrete advan-tages for the Wife, the inference arises that the move is motivated by an intent to deprive the Husband of contact with his son. See Williams, 409 Mass. at 455. This intent is confirmed by the Wife's unrealistic reliance on an unformed arrangement with the Husband to return to Virginia at some point; her repeated threats on the phone to deprive the Husband of contact with Henry as revenge for asserting his rights as a father; and her unrea-sonable hatred for the Husband generally. The Probate Judge found as much below and those findings were not clearly erroneous (Add.23). “That the move is in the best interests of the custodial parent does not mean that it is automatically in the best interests of the child.” Yannas, 395 Mass. at 711. The Wife's desire to return to “horse country,” without more, is insufficient as a matter of law to justify moving Henry to Virginia. The “uprooting of a child... should be done only for compelling reasons.” Rosenthal, 51 Mass. App. Ct. at 262 quoting Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981). The Probate Judge did not abuse his discretion in concluding that the Wife's reasons for the move lacked any compelling quality whatsoever and were neither good nor sincere.
Even if the lower court had proceeded to consider the collective factors inherent in the “real advantage” test, the result would not have changed. The Wife adduced no persuasive proof that Henry's life would be improved by the change; she offered no serious assessment of enhanced schooling opportunities or psychological support services for him in Virginia; and, except for being in “horse country,” she left unarticulated how the quality of her life would improve. What was clear, however, was that the close bond between the Husband and his son would be disrupted by a lack of regular contact and the Probate Judge found this as a fact (Add.22). Where the Wife has belittled and disparaged the Husband to third parties in Henry's presence and exhibits an intent to punish the Husband in any way she can, the Husband's consistent presence in Henry's life is crucial to maintaining the strong bond they enjoy and is central to Henry's growth and develop-ment. The “real advantage” test is ultimately an exam-ination of the best interests of the child and the Probate Judge thoughtfully applied this test to conclude that the Wife's requested move would not further those interests and, in fact, would undercut them. There was no abuse of discretion.
The Wife challenges the findings below by suggesting that the Probate Judge adopted wholesale the Husband's requested findings of fact, failed to credit the Wife's testimony about her sincere wish to move, and without basis ignored the GAL's decision recommending the move (Wife's Brief at 15-24). None of these arguments provides a persuasive reason to undo the wise exercise of discretion by Judge Scandurra in identifying the best interests of Henry on this record and deciding the matter in view of this controlling consideration. In the first place, the trial judge's findings do not deserve special scrutiny by this Court simply because he adopted some of the Husband's requested findings. This was a trial of eight non-consecutive days implicating many exhibits and chalks, expert and otherwise. The trial court justifiably relied upon both parties to marshal the proof and submit requested findings. See Lewis v. Emerson, 391 Mass. 517, 524 (1984) (trial judge should consider parties' submissions if they will be of assistance). Its thoughtful findings on removal and custody as well as its meticulous attention to detail in its decision and judg-ment dividing the marital estate unmistakably display the badge of personal analysis and belie the kind of ill ad-vised adoption of a party's requested findings, prepared after judgment had been rendered, which was considered in Cormier v. Cart, 381 Mass. 234, 235-236(1980). See Leader v. Hycor, Inc., 395 Mass. 215, 224 (1985)(remand necessary for more findings); Schrottman v. Barnicle, 386 Mass. 386 Mass. 627, 640 (1982)(same).
The Wife's real complaint is that the trial judge did not adopt her suggested findings; that he did not believe her ; and that he found against her on the evidence—-but complaints like these have never been reasons to give special scrutiny to a trial judge's findings and such heightened scrutiny is undeserved. In the second place, the believable evidence was more than sufficient to support the denial of the Wife's removal request because her motivation for moving was neither good nor sincere. This Court will not set aside Judge Scandurra's findings of fact on this score unless they are clearly erroneous within the meaning of Mass. R. Dom. Rel. P. 52(a), as amended, 423 Mass. 1402 (1996). Kattar v. Demoulas, 433 Mass. 1, 16 (2000). Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175, 177 (2000). A finding of fact is “clearly erroneous” when there is no evidence in the record to support it. Mulhern v. Roach, 398 Mass. 18, 23 (1986). Adoption of Astrid, 45 Mass. App. Ct. 538, 547 (1998). Even if there is some evidence to support a finding, it still will be characterized as clearly erroneous if this Court is “left with the definite and firm conviction that a mistake has been committed.” Guardianship of Clyde, 44 Mass. App. Ct. 767, 774 (1998). Lighter v. Lumbermans Mutual Casualty Insurance Company, 43 Mass. App. Ct. 415, 418 (1997) quoting Nylander v. Potter, 423 Mass. 158, 159 n.5(1996). In deciding whether the Probate Judge's considera-tion of the evidence was justified, due regard is given to his opportunity to weigh the truthfulness of the testimony he heard because by virtue of his firsthand view of the evidence and the parties themselves, he is in the best position to judge its credibility and to assign it appropriate weight in his findings. Brash v. Brash ,406 Mass. 101, 105 (1990). Serino v. Serino, 6 Mass. App. Ct. 926 (1978). See Capital Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 519 (1985).
Indeed, where a Probate Judge's findings and conclusions about crucial issues rest upon the credibility of a witness or party, that determination
Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) (emphasis supplied) citing Goddard v. Goddard, 322 Mass. 247, 248 (1948) and Palmer v. Palmer, 23 Mass. App. Ct. 245, 252 (1986). See also Rood v. Newberg, 48 Mass. App. Ct. 185, 191 (1999). Given this standard, the Husband submits that there is credible record support for the trial judge's crucial findings of fact that there was no agreement between the parties to relocate to Virginia; that the Wife's reasons for moving there were neither good nor sincere; and that her real motivation for the proposed move was “to punish the Husband for his breach of their so-called agreement, by depriving him of his son”(Add.23). As for the claimed agreement, the Husband testified without contradiction that while he discussed with the Wife the possibility of relocating to Virginia at different times during their marriage, these discussions never materialized into a plan (Tr.VI: 29-32; 189). Moreover, once his medical prac-tice became established, it would not have made economic sense to make such a commitment, one at odds with the financial interests of his family (Tr.VI: 181;189). As the Probate Judge justifiably found, the Wife's expectation that her desire to ride horses in Virginia should cause the Husband to abandon his established medical practice on the Cape was “totally unrealistic” (Add.23).
That the Husband against his economic interests would move to Virginia to be closer to his son if removal were allowed, does not render the Probate Judge's reasons for denying the move “illusory,” as the Wife argues (Wife's Brief 23-24). Rather it confirms the strong bond between the Husband and his son, one core reason the trial judge denied removal in the first place. Nor could the Wife's sincerity about the move be believed when she failed to identify any employment op-portunities and admitted that she is not close with her family there (Tr. IV: 69; 146; V: 33-34; 56-58). Furthermore, the Wife's credibility was irrevocably compromised after the admission into evidence of her hostile, threatening phone messages left on the Husband's voice mail, messages which repeatedly expressed unremitting hatred for the Husband, promised revenge by denying him access to his son, and threatened to alienate Henry from the Husband “once he gets old enough to understand”(App.A.98-105). The Wife's Brief contains no reference at all to this vile material, damaging evidence which undermines her challenge to Judge Scandurra's findings on her sincerity. Finally, the report and testimony of the GAL was no reason to deflect the Probate Judge from deciding the removal issue consonant with Henry's best interests. The Wife leaps upon snippets of the report to argue that the Husband's testimony was not to be believed. But the GAL's report and testimony were littered with unsubstantiated and sometimes opaque value judgments in defense of his advocacy for the Wife (Imp.App.29-31; 82-85; 88-90; 91-92; Tr. I: 67-68; 97-104; III: 13-14; 17-19; 145-147). He sanitized her reprehensible conduct at every turn, including her vitriolic voice mails; and, in a remarkable interchange, he even defended as benign his description of the Wife's view of the Husband as “sub-human”(Imp.App.87-88; Tr. I: 70-71; 85; 106-107; 113; 114-115; III: 4-6; 13-14; 17-19; 60; 69; 109-115; 145-147).
Lost in the GAL's zealous advocacy for the Wife was an appreciation of what his recommendation entailed: having already determined that the parties could not work together as a unit (Imp.App.82), he recommends the reloca-tion of this dysfunctional situation to Virginia where the Wife has no job, the Husband has no immediate job prospects and Henry is adrift in a new environment. As the Husband justifiably wondered, after this upheaval in his family, one promoted by the GAL, what happens to Henry when the Wife and her boyfriend decide that the “horse country” of Virginia is not to their liking? (Tr. VI:131-133). Henry's best interests are served with a predict-able, settled environment where he can receive the love and affection of both parents. The GAL's recommendation made this less rather than more likely and the Probate Judge was right to reject it. In the end, the Probate Judge had the right, indeed the duty, to harmonize the parties' wishes so that Henry's best interests are served. He did so. There was no abuse of discretion. 2. The Unimpaired Findings Of Fact By The Trial Court Justify Its Ruling That The Husband Is Entitled To Sole Legal Custody Of His Son.
The determination of child custody is a decision based upon the best interests of the child. Custody of Zia, 50 Mass. App. Ct. 237, 243(2000). Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981). The determina-tion of whether one or both parents will promote the best interests of the child “is a subject peculiarly within the discretion of the judge.” Ardizoni, supra, quoting Bak v. Bak, 24 Mass. App. Ct. 608, 616(1987) and Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). It is the duty of the lower court to consider the welfare of the child in reference not only to present events but also to probable future events. Custody of Zia, supra, quoting Rolde, 12 Mass. App. Ct. at 403. To the exercise that discretion, appellate courts give deference, recognizing that the Probate Judge has had the opportunity to observe and appraise both parents in custody matters. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000). The Husband submits that the lower court did not abuse that discretion in awarding him sole legal custody of Henry. The Wife in her own pleadings and testimony as well as in her phone messages, the Husband in his testimony, and the GAL in his report and testimony, have all confirmed the fact that the parties cannot communicate effectively with each other about Henry's well being (App.10; App.A.103-104; Imp.App.82; Tr. I: 126-129; III: 25-28; 29; 53; VI: 135-137; 196-197).
After seeing and hearing the parties at trial and considering the evidence already described, the lower court found that this “inability to work together is driven in large part by the Wife's hostility to the Hus-band”(Add.24). Like the wife in Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002), the Wife has demon-strated that she is incapable of separating her own needs and interests from those of Henry. She has unnecessarily poisoned with her vitriol any post-separation communication she may have had with the Husband. Henry's best interests are therefore served by making the Husband sole legal custodian who can make important decisions about the child's welfare without undue disruption. 3. The Probate Judge Equitably Divided The Parties ' Marital Estate Based Upon Their Respective Contributions , Their Conduct During The Marriage , Their Potential To Earn Further Income And Their Respective Needs. Judge Scandurra's division of the marital estate is subject to this Court's review for its equity and fairness. Williams v. Massa, 431 Mass. 619, 629 (2000). Pare v. Pare, 409 Mass. 292, 296 (1991). Lauricella v. Lauricella, 409 Mass. 211, 213 (1991). In framing an equitable division, the Probate Judge has broad discretion, Caccia v. Caccia, 40 Mass. App. Ct. 376, 380 (1996); and in Moriarty v. Stone , 41 Mass. App. Ct. 151, 157 (1996), it was stated that the parties' respective contribution “remain the touchstone of an equitable division....” Id . citing Heacock v. Heacock , 402 Mass. 21, 24 (1988); Heins v. Ledis, 422 Mass. 477, 482 (1996). Section 34 ' s express purpose is to provide for a balanced disposition which gives each spouse economic justice. Hay v. Cloutier, 389 Mass. 248, 254 (1983). See Davidson v. Davidson,19 Mass. App. Ct. 364, 376 (1985). Judge Scandurra's division did not have to be mathematically precise so long as the financial and non-financial contributions of the spouses were addressed. Goldman v. Goldman, 38 Mass. App. Ct. 603, 613 (1990). Belsky v. Belsky, 9 Mass. App. Ct. 852, 853 (1980). However, a division not reflecting contribution or one which leaves one of the spouses perceptibly worse off in terms of standard of living, financial security or other measure of economic justice, will be reversed. Goldman, 28 Mass. App. Ct. at 611. Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 15-17 (1979). Thus if the findings show that all the statutory factors were addressed and they provide a coherent rationale for the division, the assignment will be sustained unless “plainly wrong and excessive.” Bak v. Bak, 24 Mass. App. Ct. at 620-621.
Meticulously addressing all of Section 34 ' s factors, Judge Scandurra divided the $2,667,460 marital estate with particular attention to restoring the Wife to a lifestyle commensurate with the Husband's and, at the same time, respecting the fact that the Husband's 19.32% ownership of Sandyside, his family's holding company, never became part of the fabric of their marriage (Add.9). To provide the Wife with sufficient assets to achieve the lifestyle maintained by the Husband, the Probate Judge awarded her one-half of the net value of their Wachovia account less the margin debt, or $456,634; an additional $200,000 from this Wachovia account minus an advance of $8,948.00 already given the Wife, or $191,052; and $63,530, the entirety of another Wachovia joint investment account (Add.6;15;App.22). This division left her with $230,000 beyond her half share of the parties' principal Wachovia account (Add.6;15; App.22).
The Wife is also awarded other assets including sole ownership of the Monomoy Road property so that “[i]f she wished, the Wife could sell her present residence and augment the proceeds of that sale with these funds in order to purchase a home more in line with her lifestyle, that being in the area of approximately $500,000, with no mortgage”(Add.6) (emphasis in original). The Wife therefore is awarded $1,145,186 in assets, four times the assets with which she entered the marriage and enough to maintain a lifestyle commensurate with the Husband's lifestyle. In addition, the Wife receives $36,400 per year in alimony and child support, of which $26,000 is allocated as alimony which will last five years (Add.6;App.21). Together with $20,000 in investment income already awarded, the Wife will have a gross income of $56,400 annually and she is not yet employed (Add.6). When her attributed income of $25,000 is included, her gross income is $81,400 annually; and she “should meet her needs quite adequately on this amount”(Add.6). The Husband is awarded the other half of the net value of their Wachovia account less the margin debt, or $456,634, and sole ownership of his 19.32% interest in the family's corporation which holds as assets the com-pound of dwellings in Yarmouth Port, worth $465,500, or $371,003 after tax consequences, as well as the two properties gifted to him by his family (one in Yarmouth Port and one in Warrenton) (Add.8-9).
This division is equitable, reflects the respective contribution of the parties to the marital enterprise and respects the fact that the assets of the holding company owned by the Husband's family were never part of this marriage. First, while all of the income from the Husband's employment and investments were used for the marital enterprise, it was found that “[t]he Wife did not appreciably contribute economically to the family unit,” as her life was involved with horseback riding, artwork etc. (Add.12). In addition, the Husband performed “at least an equal share” of the homemaking duties with the Wife (Add.14). The 57-43% split of the marital estate therefore could be justified on grounds of contribution alone. Kittredge v, Kittredge, 441 Mass. 28, 44 (2004). Johnson v. Johnson, 53 Mass. App. Ct. 416, 423 (2001). Bacon v. Bacon, 26 Mass. App. Ct. 117, 119-120 (1988). Richman v. Richman, 28 Mass. App. Ct. 655, 657-663(1990). Second, this Court has held where property owned by one of the spouses, e.g., as a result of a gifting by the spouse's parent(s) before or during the marriage, has been kept separate from the marriage by that spouse, a division not including this asset as part of the marital estate is a proper exercise of discretion under Section 34 since that property did not become part of the fabric of the marriage. Bacon v. Bacon, 26 Mass. App. Ct. at 118-119. Bak v. Bak, 24 Mass. App. Ct. at 620-621. Compare Zeh v. Zeh, 35 Mass. App. Ct. 260, 266 ((1993); Comins v. Comins, 33 Mass. App. Ct. 28, 30-33 (1992). As Judge Scandurra found in making this 57-43% split,
(Add.14)(emphasis supplied). The Probate Judge also found that the Husband's interest in Sandyside and the Yarmouth Port and Warrenton properties never became part of the fabric of the marriage (Add.9). He further determined that the Wife was paid a salary for renovating the Sandyside property during the marriage and was recompensed with free rent and support for renovating the property before the marriage (Add.4;12;13).
The Husband therefore submits that Judge Scandurra's equitable division of the marital estate addressed all of Section 34' s factors, was not an abuse of discretion and was not “plainly wrong or excessive.” 4. The Award Of Time - Limited Alimony Was Justified In The Circumstances Of This Case. The same considerations supporting a property division are part of a decision to award alimony, an award based on the recipient spouse's need for support and the supporting spouse's ability to pay. Keller v. O'Brien, 420 Mass. 820,827 n.11(1995) quoting Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). The occupation, skills and employability of both parties must be considered in deciding alimony awards. Heins v. Ledis, 422 Mass. 477, 484 (1996). As the Heins Court observed,
Id. at 484-485 quoting C.P. Kindregan & M.L. Inker, Family Law and Practice, Section 1013 at 37 (1990) citing Rolde v. Rolde, 12 Mass. App. Ct. at 401-402. In awarding alimony to the Wife for five years, Judge Scandurra was not bound by either party's actual earnings but could consider each party's potential earning capacity. Heins, 422 Mass. at 485 citing Schuler v. Schuler, 382 Mass. 366, 374 (1981). His attribution of income commensurate with the Wife's earning capacity was right if he determined that her depressed income was the result of a voluntary choice. Schuler v. Schuler, 382 Mass. at 371-372. Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996). The trial court found that the Wife “consciously [chose] not to be employed at the present time” even though she possesses a state general contractor's li-cense, has valuable work experience as a building de-signer, draftsperson, and retail salesperson and is employable despite her dyslexia (Add.4). It attributed $25,000 annual income to the Wife. Together with investment income of $20,000 and the Husband's support payments of $36,400, the Wife has a gross income of $81,400; and she “should meet her needs quite adequately on this amount” (Add.6).
None of this imposes a “disparate” lifestyle on the Wife, as she now argues. If the Wife decides to work, she can be financially independent, especially in view of the $1,145,186 already awarded her in assets. There is no need to deplete her assets in order to achieve a life-style commensurate with the Husband as in Sampson v. Sampson, 62 Mass. App. Ct. 472, 482-483 (2004). The Probate Judge's division has already ensured the Wife a station she enjoyed during the marriage. Contrast Sampson, supra; Rosenblatt v. Kazlow-Rosenblatt, 39 Mass. App. Ct. 297, 300(1995); Goldman v. Goldman, 38 Mass. App. Ct. 603, 610-611 (1990). The time-limited alimony award of five years encourages the Wife to become self-sufficient consistent with her talents; to be independent finan-cially; and to separate herself economically as much as possible from the Husband. There was no error. 5. The Trial Court Properly Credited The Husband's Expert Faced with divergent expert opinion about the worth of an alleged marital asset, the lower court was free to adopt one opinion and reject the other, Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333, 335 (1992); Dewan v. Dewan, 30 Mass. App. Ct. 133, 135 (1991); Fechtor v. Fechtor, 26 Mass. App. Ct. at 863; or it could reject expert proof altogether and arrive at a valuation based on some other evidence. Yannas, 395 Mass. at 714. Here the Probate Judge was right to credit the Husband's expert on the valuation of the Husband's 19.32% interest in Sandyside, a closed family corporation in the nature of a holding company, at $465,500 or $371,003 after tax consequences (Add.8). First, the Wife's objection now to the competency of this proof comes too late. She failed to raise this issue either in her requests for rulings of law or, after judgment, in her motion for new trial and therefore has waived the right to raise the issue on appeal. Baccanti v. Morton, 434 Mass. 787, 803 (2001). Williams v. Massa, 431 Mass. 619, 629-630 (2000) citing Bak, 24 Mass. App. Ct. at 611 n.3. Second, by failing to include in his valuation the encumbered marketability and lack of control of the Husband's minority interest in his family's closely held corporation, the Wife's expert committed “the sort of fundamental—hence clear—error which would require rejection of [his] valuation.” Fechtor, 26 Mass. App. Ct. at 863-864. Third, the Husband's expert, employing Revenue Ruling 59-60, appropriately discounted the fair market value of the Husband's interest in Sandyside by not only the lack of marketability associated with this family holding company but also by the lack of control which his minority interest entailed (Add.8;Ch.167-229). The Probate Judge did not err in adopting his valuation.
Conclusion. For all the reasons identified herein, this Court should affirm summarily the judgment below, award the Husband the attorney's fees and costs which he has incurred upon this frivolous appeal by the Wife or provide him with such other relief as is fair and just in the circumstances.
Respectfully submitted,
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