COMMONWEALTH OF MASSACHUSETTS.

APPEALS COURT.

No. 2003-P-57.

Worcester County Division.

A. Wayne Sampson,
Plaintiff-Appellee,

v.

Elaine M. Sampson,
Defendant-Appellant.

ON APPEAL FROM A JUDGMENT OF THE PROBATE AND FAMILY COURT DEPARTMENT.

Brief for the Plaintiff-Appellee, A. Wayne Sampson.

i.

TABLE OF CONTENTS

Statement of the Issues Presented for Review...............................................................................1

Statement of the Case......................................................................................................................2

Statement of the Facts................................................................................................................... 16

Argument

The Probate Judge Properly Exercised His Discretion Under G.L.c. 208, Section 34, In Equitably Dividing The Marital Estate Based Upon The Parties' Respective Contributions To The Marital Enterprise, Their Conduct During The Marriage, Their Potential To Earn Further Income And Their Respective Needs..................27

Conclusion......................................................................................................................................50

Statutory and Rule Addendum...................................................................................................Post

ii.

TABLE OF AUTHORITIES .

Cases.

Adoption of Astrid , 45 Mass. App. Ct. 538, 547(1998)...............................................................43

Bak v. Bak , 24 Mass. App. Ct. 608, 620-621 (1987)............................................................. 28;29

Barron v. Barron , 28 Mass. App. Ct. 755, 759-760(1990)..........................................................44

Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736(1995)....................................................30

Belsky v. Belsky , 9 Mass. App. Ct. 852, 853(1980)...........................................................28;32-33

Brash v. Brash , 406 Mass. 101, 105(1990)..................................................................................44

Cabot v. Cabot , 18 Mass. App. Ct. 903, 904-905 (1984).............................................................33

Caccia v. Caccia , 40 Mass. App. Ct. 376, 380 (1996).................................................................27

Canning v. Juskalian , 33 Mass. App. Ct. 202, 206(1992)..........................................................30

Champion v. Champion , 54 Mass. App. Ct. 215, 219 (2002).....................................................48

Daugherty v. Daugherty , 50 Mass. App. Ct. 738, 742(2001)......................................................38

Davidson v. Davidson ,19 Mass. App. Ct. 364, 376(1985)...........................................................28

Delta Materials Corp. v. Bagdon , 33 Mass. App. Ct. 33(1992)..................................................48

Demoulas v. Demoulas Super Markets, Inc. , 424 Mass. 501, 509(1997)...................................35

Denninger v. Denninger , 34 Mass. App. Ct. 429(1993)........................................................28;42

Dewan v. Dewan , 30 Mass. App. Ct. 133, 135(1991) .......................................................... 48-49

Downing v. Downing , 12 Mass. App. Ct. 968, 968(1981) ........................................................ 31

Dwight v. Dwight , 52 Mass. App. Ct.739, 743-744(2001)..........................................................38

Early v. State Board of Retirement , 420 Mass. 836(1995).........................................................47

iii

Early v. Early , 413 Mass. 720, 725-726(1992). ..........................................................................47

Edinburg v. Edinburg , 22 Mass. App. Ct. 199, 203(1986).........................................................44

Fechtor v. Fechtor , 26 Mass. App. Ct.895, 863(1989)...............................................................49

Flaherty v. Flaherty , 40 Mass. App. Ct. 289, 291(1996)............................................................30

Frederick v. Frederick , 29 Mass. App. Ct. 329, 335(1990)........................................................30

Goddard v. Goddard , 322 Mass. 247, 248(1948) .......................................................................44

Goldman v. Goldman , 38 Mass. App. Ct. 603, 613(1990)...............................................28;42;44

Gottsegen v. Gottsegen , 397 Mass. 617, 624 (1986).................................................................. 29

Grubert v. Grubert , 20 Mass. App. Ct. 811, 821-822(1985)..................................................28;44

Guardianship of Clyde , 44 Mass. App. Ct. 767, 774(1998)........................................................43

Hay v. Cloutier ,389 Mass. 248, 254(1983)..................................................................................28

Heacock v. Heacock , 402 Mass. 21, 24(1988).............................................................................27

Heins v. Ledis , 422 Mass. 477, 482(1996)........................................................................27;29;44

Johnston v. Johnston , 38 Mass. App. Ct. 531, 536(1995)..........................................................44

Keller v. O'Brien , 420 Mass. 820,827 n.11(1995).......................................................................29

Kendall v. Salvaggio , 413 Mass. 618, 620-621 (1992)................................................................35

Lauricella v. Lauricella , 409 Mass. 211, 213(1991)...................................................................27

Lighter v. Lumbermans Mutual Casualty Insurance Company , 43 Mass. App. Ct. 415, 418 (1997)..............................................................................................................................................35

Loud v. Loud , 386 Mass. 473, 475-476(1982).............................................................................29

Mancuso v. Mancuso , 12 Mass. App. Ct. 973, 974(1981)......................................................31;33

iv.

Matta v. Matta , 44 Mass. App. Ct. 946, 948 (1998) ...................................................................31

Mayer v. Cohen-Miles Insurance Agency , 48 Mass. App. Ct. 435, 438(2000)..........................44

Moriarty v. Stone , 41 Mass. App. Ct. 151, 157(1996).................................................................27

Nylander v. Potter , 423 Mass. 158, 159 n.5(1996)......................................................................35

Palmer v. Palmer , 23 Mass. App. Ct. 245, 252(1986).................................................................44

Pare v. Pare , 409 Mass. 292, 296 (1991).....................................................................................27

Redding v. Redding , 398 Mass. 102, 107-108(1986).............................................................28;29

Rolde v. Rolde , 12 Mass. App. Ct. 398, 401-402(1981)..............................................................30

Ross v. Ross , 50 Mass. App. Ct 77, 80-81(2000)....................................................14;34;39;42;43

S.L. v. R.L. , 55 Mass. App. Ct. 880, 882-884(2002)...................................................................38

Sarrouf v. New England Patriots Football Club, Inc. , 397 Mass. 542, 550-551(1986).......................................................................................................................................48

Schuler v. Schuler , 382 Mass. 366, 368(1981)...........................................................................30

Williams v. Massa , 431 Mass. 619, 629 (2000)................................................................27;38;48

Yannas v. Frondistou-Yannas, 395 Mass. 704, 714(1985).........................................................49

Zildjian v. Zildjian , 8 Mass. App. Ct. 1, 15-17 (1979)..........................................................28;33

Other Authorities

Mass R. Civ P. 52(a)...............................................................................................................35;43

G.L.c. 208, Section 34.......................................................................................................... passim

C.P. Kindregan & M.L. Inker, Family Law and Practice , Section 1013 at 37(1990)....................................................................................................................................35;43

1

Statement of the Issues Presented For Review.

1. Whether the Probate Judge abused his discretion under G.L.c. 208, Section 34, in dividing the parties' marital estate in the circumstances of this case as he found them to be?

2. Whether the lower court's division of the parties' marital estate “will cause the Wife's standard of living to plunge while the Husband's [standard of living] remains high?”

3. Whether it was clearly erroneous on this record for the Probate Judge to find that the Wife “can, with effort, increase her income” and become self sufficient?

4. Whether the lower court erred in crediting the proof offered by the Husband's expert witness concerning the value of the Wife's robust insurance agency business?

Statement of the Case.

On April 10, 2001, the plaintiff-appellee A. Wayne Sampson (“the Husband”) brought this civil action against the defendant-appellant Elaine M. Sampson (“the Wife”) in the Worcester Division of the Probate and Family Court Department seeking a divorce on the grounds of the ir-retrievable breakdown of their marriage pursuant to the provisions of G.L.c. 208, Section 1B(A.1;9).

The Husband alleged that the parties were married in Worcester on October 7, 1977, had no children born of their marriage and were still living together at 100 Old Mill Road in Shrewsbury, Massachusetts(A.9). Claiming that there had been an irretrievable breakdown of the marriage on or about January 30, 2001, the Husband sought a divorce on this ground together with an order convey-ing to him the parties' nearby real estate located at 48 Old Mill Road in Shrewsbury(A.9).

The Wife's answer denied that the parties were still living together or that their marriage was irretrievably broken down(A.2;10-11). She admitted the remaining alle-gations of the Husband's complaint(A.10).

With the pleadings in this posture and after some discovery, a trial lasting three non-consecutive days began in the Worcester Division of the Probate and Family Court Department before Hart, J., on February 27, 2002 (A.4;43 -369;Tr.I:1-167;II:1-168;III:1-163). By the time of trial, both parties had filed updated Financial State-ments(A.12;52-68). The principal issue addressed by the parties' proof was the equitable division of their mari-tal estate pursuant to the provisions of G.L.c. 208, Sec-tion 34(A.12-23). The trial was concluded on March 19, 2002(Tr.III:163).

On April 11, 2002, Judge Hart issued his findings of fact, conclusions of law and rationale(A.5;12-24). In a thorough and comprehensive recitation of findings addres-sing all of Section 34 ' s considerations, the lower court first found that the parties were married in Worcester on October 2, 1977; it was the Wife's first marriage and the Husband's second(A.13). There were no children born of this 24-year marriage and neither party has any child-ren(A.13). They last lived together on April 26, 2001, in Shrewsbury(A.13). At the time of trial, the Husband was living at his mother's home, held in a realty trust, at 100 Old Mill Road and the Wife was residing nearby in the marital home at 48 Old Mill Road(A.13).

Both parties are fifty-one years old, enjoy good health and have no impairments which would interfere with their ability to work full-time(A.13). The Husband is the Chief of Police for the Town of Shrewsbury, having held this position for the past 25 years(A.13-14). He has a bachelor's degree in education from Worcester State College; an associate's degree in law enforcement from Quinsigamond Community College; a master's degree from Anna Maria College; and a Juris Doctor degree from Southern New England Law School(A.14). His employability is excellent in the areas of law enforcement and a legal practice(A.14).

The Husband earns $1,543.75 weekly in salary as Police Chief together with an extra weekly amount of $388.93, or 25% of his salary, by virtue of the Quinn Bill, legislation providing financial incentives to po-lice officers for their education level(A.14). This extra weekly amount of $388.93, however, is “uncertain” because it requires annual funding by the Massachusetts Legisla-ture(A.14;19).In 2000, the Husband earned $97,104.42; and he earned $102,444.23 in 2001(A.14).

As for the Wife, since 1986 she has owned an insurance agency known as “The Elaine D'Alonzo Sampson Insurance Agency”(A.14). She graduated from high school in 1969 and completed one year at Quinsigamond Community College (A.14). She was employed as an insurance sales representative for Burr Insurance Agency from 1978 until 1986 when she opened her own agency(A.14). She holds several insurance licenses issued by the Commonwealth (A.14).

The Wife's Financial Statement reflects a gross weekly income of $806.00(A.14). While she testified at trial that she works full time at her agency, the Probate Judge found that the Wife had indicated to the Husband's expert hired to evaluate her business (Mr. Felix Betro) “that she does not consistently work full time”(A.14). Presently, she does not have the skills to operate the agency's computer system; and she has the assistance of a full-time customer service representative(A.14). Her gross yearly income for 2001 was $41,912.00, “although she filed other financial statements during the proceed-ings indicating much lower levels of income”(A.14).

Judge Hart found the Wife's employability to be ex-cellent and commensurate with her developed skills in the insurance field(A.14). He specifically found that the Wife “has the ability to increase her income were she to consistently work full-time at her agency and become fa-miliar with all operations of the business”(A.14).

Finding that during the marriage the parties en-joyed a middle income lifestyle, the Probate Judge then considered the elements of the marital estate(A.14-17). The first asset is their jointly owned marital home at 48 Old Mill Road(A.14-15). They moved there in 1978 and in 2000, they agreed to demolish the structure and construct a new home on the same site(A.15;18). The home was nearly complete at the time of trial and the Wife resides there (A.15). Two appraisals valued the residence at $700,000 and $650,000, respectively(A.15). There is a construction loan of about $274,000 currently burdening the property, leaving available equity of between $380,000 and $430,000(A.15;18). The Husband also has about $12,800 in other construction loans from his brother and another person which he must pay from any proceeds of the sale of the premises(A.15).

The second asset is The Elaine D'Alonzo Sampson In-surance Agency(A.16-17). In August of 2001, the Husband's expert, Felix Betro of Betro & Company, P.C., a special-ist in evaluating insurance agencies, conducted a valu-ation of the Wife's business(A.16). After exhaustive examination of the agency, its prior five-year history of business, the Wife's licenses and qualifications and the extensive computer system she utilized, Betro concluded that the fair market value of the Wife's agency is $175,000(A.16-17). The Wife's expert, on the other hand, had never evaluated an insurance agency and assessed the fair market value of her business at $18,000, focusing primarily on income and cash flow; but then he also testified that she could sell her business for as much as $100,000(A.16-17). Judge Hart found Felix Betro's testi-mony more credible and assigned the Wife's insurance agency business a fair market value of $175,000(A.17).

The third asset consists of the parties' retirement accounts(A.15-16). The Husband's pension through the Commonwealth of Massachusetts has a present value of $762,425(A.15). Even though the Husband had “bought back” time from when he was a part-time officer in order to give him an effective start date for this pension of 1974, i.e., before the parties were married, the Probate Judge considered the entire pension to be a divisible part of the marital estate in view of the marriage's length(A.15). The Husband also has a Deferred Compensa-tion Account with the Town of Shrewsbury in the amount of $31,032.64; an IRA with the Shrewsbury Credit Union for $18,502.06; and another IRA worth $4,902.75(A.16).

The Wife's retirement resources consist of a life insurance IRA in the amount of $7,134.54 and Social Se-curity benefits with a present day value of $59,416 (A.16). While the lower court noted that the Social Security benefits could not be included in the marital estate for purposes of a division under Section 34, “these benefits [were] considered in determining what percentage of Husband's pension should be divided so that each of the parties will have similar opportunities upon retirement”(A.16).

Finally, the parties own either individually or together various items of personal property including inter alia three motor vehicles, a tractor and a motor cycle(A.17). The Wife also owns jewelry and furs in the amount of $17,500; a personal Shrewsbury Bank account with a balance of $500; and two business bank accounts in the total amount of $11,284(A.17). The parties also have a joint Shrewsbury Credit Union Account (“Account 4404 " ) into which they placed funds from various real estate investments made during their marriage, using these monies for the construction of their new home and for loans made to the Wife's brother(A.17).

Addressing the conduct and contribution of each of the parties during the marriage, the Probate Judge found the marriage was irretrievably broken down(A.17). Both worked and financially contributed to the marital part-nership and its acquisition of assets “though the Husband was the primary wage earner”(A.17). No evidence was adduced to show the Wife's contribution, if any, as a homemaker(A.17).

During the marriage, the parties made profits from their real estate ventures; and over the years they took $130,000 from their joint Account 4404 to loan the Wife's brother for his businesses(A.18). Judge Hart chose not to believe the Wife's testimony that these transfers of money to her brother were merely “gifts” rather than loans; instead he found that this money was intended as a loan for which the parties expected repayment(A.18). Thus he found that the Husband could pursue this claim against the Wife's brother and upon any recovery, the Wife would be entitled to an equitable share(A.18). Finally, it was found that the marriage “was a part-nership and that both equally contributed,” thereby war-ranting an approximately equal division of the marital estate(A.18).

Turning to the parties' liabilities and needs, it was found that they are jointly liable for $282,800 in construction loans for their new home at 48 Old Mill Road(A.18). The Husband is also individually liable for $34,200, monies which were loaned to him to finance the renovation of his mother's home at 100 Old Mill Road and for the purchase of his motor cycle(A.18). His current weekly expenses total $934.50, including $306.75 per week towards the construction loan; he has no rental expense because he resides in his family's home at 100 Old Mill Road(A.19).

Other than the joint liabilities with the Husband already identified, the Wife has no liabilities(A.18-19). Her weekly expenses, which the trial judge found to be “somewhat inflated,” totaled $816.00, including $76.00 for pet care costs(A.18-19). She has no rent as the Hus-band is paying the construction loan payments for the home at 48 Old Mill Road where she resides(A.18-19).

Finally, it was found that each party “has the ability to acquire assets and income in the future through their employment”(A.19). However, the Husband's extra weekly income under the Quinn Bill is uncertain since it is not guaranteed and is subject to funding by the Legislature annually(A.19). He has a pension with the Town of Shrewsbury which will provide him with income upon retirement(A.19). He already received an inheri-tance from his mother's estate and “there is no indica-tion of any future inheritance” for him(A.19).

The Wife has a small amount of Social Security bene-fits which will increase by continued employment in her insurance agency and provide her with a small income upon retirement(A.19). The Probate Judge further found that, in contrast to the Husband, the Wife “has not yet re-ceived an inheritance from her family and therefore has that potential for future acquisition of assets”(A.19). This spare finding about the Wife's future prospects for the acquisition of capital assets and income does not identify the factual basis for this finding(A.19). However, it is: (1) her one-half beneficial interest (with her brother)in her mother's home, held in a realty trust; and (2) her interest as the trustee and a putative beneficiary in additional, very valuable family property on Belmont Street in downtown Worcester, property en-hanced by the Husband's money and effort over time and commercial land worth a significant portion of the parties' marital property combined.

Upon these findings, then, the Probate Judge equita-bly divided the parties' marital estate(A.24). He first deducted from the marital home's value all outstanding debts as well as the Husband's $175,000 set-off to reflect the value of the Wife's insurance agency which she will retain free and clear of any claim by him(A.20;24). He then divided the remaining net equity of $242,200 equally so that each receives $121,100 from this asset(A.24). The Wife was then given outright ownership of her business valued at $175,000(A.24). Accordingly, the division of these two principal assets of the marriage (totaling $592,200 in value) is precisely equal (A.24).

That is, the Wife receives $121,100 from the equity in the marital home as well as outright ownership of her insurance agency business, valued at $175,000, free and clear of any interest from the Husband, assets totaling $296,100(A.24). The Husband likewise receives $121,100 from the equity in the marital home as well as $175,000 to offset the value of the Wife's business, assets totaling $296,100(A.24).

With regard to the other principal asset of the marriage, the Husband's pension, the lower court equally divided 93% of this asset, thereby accommodating the Wife's receipt of $59,000 of Social Security benefits upon her retirement, or 7% of the Husband's pension funds (A.24). Together with the allocation of the other assets of the marriage, including the assignment to the Wife of two of the Husband's IRA accounts totaling $23,500, then, the Wife receives 50.3% of the marital estate worth $767,620; and the Husband receives 49.7% of the marital property worth $757,730(A.24).

In explaining the rationale for this equitable division, Judge Hart noted first that the Husband was “clearly the primary wage earner and financial contrib-utor” to the marital enterprise(A.20). While the Wife worked in her insurance agency business for most of the marriage, “she did not devote the same energy or time as did the Husband”(A.20). In addition, “there was no evi-dence presented that the Wife contributed to the marriage as a homemaker”(A.20)(emphasis supplied). Even so, the Probate Judge thought that an equal division of the marital estate was called for, one which would enable each party to “move forward and begin to plan for the future financially”(A.20).

Because the Wife is not able to afford the large home the parties built at 48 Old Mill Road, the Probate Judge ordered that it be sold with the Husband receiving the first $175,000 from the net proceeds in order to offset the value of the Wife's insurance agency business “which she shall retain free of any interest or claim by the Husband”(A.20). The remaining proceeds of the home's sale are to be divided equally(A.20).

In addition, in order to equalize the standard of living for both parties upon retirement, Judge Hart ordered that the Husband would retain the first 7% of his pension of $762,000, representing the Social Security benefits which the Wife would receive upon her retirement, and then the remaining 93% would be equally divided between them(A.20-21). The Husband will also have the right to pursue a claim against the Wife's brother for the $135,000 in loans the parties made to him with the Wife receiving her equitable share of any recovery (A.21;26).

With regard to alimony, the lower court ordered the Husband to pay the Wife $200 weekly in alimony for a period of three years(A.21;25). In addition, the Husband was to maintain medical and dental insurance as well as a $30,000 life insurance policy for the benefit of the Wife for the same three-year period(A.25). If the Wife thereafter wishes to continue such medical and dental insurance coverage with the Husband, “she shall reimburse him, monthly, for any cost to him in excess of the cost of insuring himself”(A.25).

In his rationale for the alimony award, Judge Hart found that both parties have the ability to continue working in their respective fields of employment ”and will likely do so until retirement”(A.21-22). Heeding this Court's admonition in Ross v. Ross , 50 Mass. App. Ct 77, 80-81(2000), that any award of rehabilitative alimony be preceded by a careful consideration of the recipient spouse's realistic prospects for self-sufficiency, the Probate Judge found that this three-year period

will give the Wife time to adjust to this divorce and position herself financially. Although the Husband has been the primary wage earner..., the Wife has the ability to increase her income in the coming years and is fully capable of supporting herself . She has been in the insurance field for a number of years, holds several licenses and owns an insurance agency valued at $175,000. She currently employs a customer representative at her agency, and there was testimony that she does not consistently work full time. I find it possible, therefore, that, with effort, she can earn additional income in the future. The Court also notes that this was not a traditional marriage in the sense that the Wife's primary role was not as a homemaker. She had the full opportunity, during the marriage, to develop her career, and I find that she has a reasonable prospect for self-sufficiency ....

Moreover,...a sizable portion of [the Husband's] income (25%) is through the Quinn Bill [and]...is not certain or guaranteed from year to year.

....This amount [of alimony] will enable the Wife to meet her expenses while she increases her income to that which she is capable of earning .

(A.21-22;23)(emphasis supplied).

On April 11, 2002, a judgment of divorce nisi enter-ed consistent with these findings and rulings(A.5;25-27). The Wife's post-trial motion to alter and amend the judgment was eventually denied and this appeal ensued (A.5-8;28-42).

Statement of the Facts .

With particular reference to the issues raised by the Wife on this appeal, the Husband testified that throughout the marriage, the parties maintained a “middle income” standard of living(Tr.I:14). Both of his parents have passed away and he is sole trustee of his late mother's property at 100 Old Mill Road, a residence held in a realty trust for the benefit of him and his siblings(Tr.I:17). They also owned other family property in Dennisport which was sold to his sister in 2001; he received a check for $10,000 from this sale and he de-posited this money in the parties' joint Account 4404 (Tr.I:19-20). He plans to buy from his siblings his late mother's property at 100 Mill Road for $175,000; since his share of the home as a beneficiary is worth $25,000, the actual purchase price will be $150,000 (Tr.I:21-22). The Husband spent $18,972.75 of his own funds improving this home whose current value is $217,500 (Tr.I:23-25). The Wife did nothing during the marriage to contribute to the value of this home(A.Tr.I:25).

The Husband receives a net weekly salary of about $916 as Police Chief and incurs as much in weekly living expenses which include his payments on the mortgage and real estate taxes on their newly constructed home at 48 Old Mill Road where the Wife now lives(A.52-53;Tr.I:28-31). The Wife has never paid these expenses on the marital home at 48 Old Mill Road(Tr.I:31;34-35).

They bought this property in 1978 for $45,0000 and lived there until 2000 when they moved to the Husband's mother's house at 100 Old Mill Road while construction of their new home took place(Tr.I:36-38). The $274,000 in loan proceeds were deposited in Account 4404 and funded this construction; and the Husband also deposited his own savings into this joint account(Tr.I:37-38;48-49). Thus from May, 2000 to February 25, 2002, a total of $697,607 (a sum which includes the $274,000 in construction loan proceeds) was deposited in this account(Tr.I:48-49). As the Husband testified, this $423,607 of additional funds

would represent my savings over my career. It would include a home that my brother and I owned prior to the marriage that I sold and put that money in there. It would include some property that we owned jointly, that [the Wife] and I owned jointly over the years, that when we sold it, the money was deposited into this account.

(Tr.I:49-50).

As construction of the new house unfolded, the Husband spent $670,018 from this Account 4404 to pay the bills; and he spent another $27,760 from this account in order to pay capital gains taxes on property that had been sold before, for a total of $697,770(Tr.I:53-55). He also found it necessary to borrow funds from his brother and another person in order to meet the bills associated with this ongoing construction(Tr.I:98-99;118-120).

The parties invested in real estate throughout their marriage. In 1982, they bought a lot on Grove Street in Shrewsbury for $72,000; in the same year, they purchased a three-family unit at 488 Burncoat Street in Worcester for $65,000; and in 1989, they bought vacant land on Ireta Road in Shrewsbury for $75,000(Tr.I:57-59).Both Grove Street and Ireta Road were purchased partly with the Husband's savings and a remortgaging of the marital home at 48 Old Mill Road(Tr.I:59). The Burncoat Street purchase was financed through a mortgage(Tr.I:59).

In 1996, the parties sold the Ireta Road property for $75,000 and then deposited this money in Account 4404 (Tr.I:60). As for the Burncoat Street property, it sold in 2000 for $155,000 and they netted $105,000 as a result of the sale, depositing it in Account 4404(Tr.I:63-64). Beginning in 1998, the Grove Street lot was subdivided into three individual building lots and sold off one at a time for $75,000 each(Tr.I:60). The first $75,000 was given to the Wife who deposited it into her own personal account; the remaining $150,000 went into Account 4404 (Tr.I:61-62;127-128). The Wife then gave this $75,000 to her brother “to help construct a family business” (Tr.I:62). As the Husband explained, the Wife's “family has owned a gas station at 310 Belmont Street in Worcester...for almost 50 years”(Tr.I:63). In addition, the Husband agreed “that we'd lend them the money”(Tr.I: 129)(emphasis supplied).

In February of 1998, the Husband bought a piece of land at Four Natick Street abutting the Wife's family gas station in Worcester for the Wife's brother for $145,000 (Tr.I:64-66;128;II:86). In order to finance the purchase, he took $55,000 from his own savings account and obtained a mortgage loan from the Shrewsbury Credit Union for $90,000(Tr.I:65-67). He then transferred the property “to Helen D'Alonzo [the Wife's mother] and Elaine D'Alonzo Sampson, trustee of Jim's Arco Realty Trust”(Tr.I:66-67;78). The Husband is neither a trustee nor a bene-ficiary of this trust; the Wife is trustee “and she still controls the trust”(Tr.I:67). The Wife's family then obtained a construction loan from Flagship Bank and paid off the Husband's mortgage of $90,000 (Tr.I:67-68). However, the Husband never received his remaining $55,000 from the Wife's family (Tr.I:67).

The Husband has a history of helping the Wife's brother. In the late 1970 ' s, the brother was operating the Wife's family gas station business at 310 Belmont Street (Tr.I:78-79). He wanted to start a towing business and the Husband with his own funds bought two tow trucks for him “and worked those tow trucks with him” (Tr.I:79). The brother eventually downsized the operation and the Husband sold the trucks and was repaid his investment (Tr.I:79). In the early 1980 ' s, the Husband invested the parties' money in purchasing an auto rental franchise for the brother; he also purchased some vehicles for him to rent out(Tr.I:79). However, “[a]fter a couple of years, it became too much for [the brother] and [the Husband] sold the franchise and the remaining vehicles” (Tr.I:79).

The Husband also worked at the brother's gas station doing everything from pumping gas to small repairs; he helped out in the brother's new convenience store on the site, opening it in the morning and working mainly on weekends(Tr.I:80-81). The Husband was never paid by the brother or by the Wife's family for any of this work (Tr.I:80-81).

He also performed legal services for the Wife's family without charge, services which included preparing all of the contracts and financing for the new construc-tion at the Wife's family business at 310 Belmont Street; creating the realty trust for this land for the Wife's family; and helping the Wife's mother with her Social Security benefits and a lawsuit she had pending(Tr.I:88-89).

In contrast, the Wife never assisted the Husband's family other than occasionally making a meal from left-overs for the Husband's mother which he would take to her home(Tr.I:89; 132). The Wife was not close to his family and saw the Husband's mother maybe two or three times in the last two years of her life(Tr.I:132). As for the Wife's financial contribution to paying the marital bills, the three-year period from 1998 to 2001 is illustrative: during this time, the Husband paid $64,700 in marital bills while the Wife contributed just $4,200, joint money which she took out of rents she collected from the Burncoat Street property(Tr.I:142-143;II:31-32; 127).

Finally, the Husband testified that the extra weekly pay he receives as a result of the Quinn Bill is not guaranteed at all since the money has to come from both the state and the town(Tr.II:24). Thus both the Legis-lature and the Town of Shrewsbury have to appropriate that money on an annual basis(Tr.II:25;41-43). In addi-tion, he “absolutely will not practice law” when he re-tires as Police Chief(Tr.II:26). While the Husband has no opportunity to inherit assets in the future, the Wife does have that opportunity(Tr.I:93).

In her testimony, the Wife admitted that the Husband paid almost every marital bill over the length of their marriage, including her 2001 federal and state income taxes(Tr.II:62-63;105-106;131-132;143-146). She conceded that the Husband provided money to her brother but claimed that these transfers of $75,000 and then $55,000 to him and her family trust were really “gifts” for which no repayment was expected(Tr.II:84-86;89-91;135;137-138). While she first claimed that buying the Natick Street property behind her family's service station on Belmont Street was the Husband's idea, she later admitted that her broker friend first telephoned her about the availability of the property(Tr.II:136-137).

In an effort to portray herself as somehow impoverished, the Wife's serial Financial Statements were pockmarked by incredible, inexplicably inflated weekly expenses, admittedly nonexistent payments, undervalued (or unvalued ) marital assets and understated income from her insurance agency business(A.61-78;Tr.II:103-105;108-117;122-123;163-164). She also “didn't have a clue” as to the value of her own insurance agency, a business she's been operating successfully since 1986(Tr.II:119-120).

The Wife further admitted that when she moved her business to the first floor of the Burncoat Street prop-erty in 1986, she paid no rent and, in addition, took personal “draws” of money from the rent which she col-lected there(Tr.II:52-54;126-128). According to the Wife, her computer skills are “zero;” she “rarely” works on the computer; and her employee does all of that work(Tr.II: 97). She claims to work at her agency five days a week from 7:00 A.M. until 5:00 P.M. and on weekends when need-ed(Tr.II:97-98). She professes to have no expertise in marketing even though she's been working in the insurance industry since at least 1971, primarily in sales; and she denied she is even close to CPCU certification(A.14; Tr. II:98;101-103).

Finally, with regard to her opportunities to inherit assets in the future, the Wife admitted that she is the beneficiary of a realty trust which holds her mother's residence in Sherbrook Avenue in Worcester(Tr.II:92-93; 141). In addition, until 1997, she was a beneficiary of her family's realty trust holding the very valuable 310 Belmont Street property as well as the abutting Four Na-tick Street land which the Husband purchased for the Wife's family(Tr.II:92-93;140). According to the Wife, she resigned as a beneficiary of this trust in 1997 “in accordance with [her] mother's wishes”(Tr. II:139-140). The Wife is now only the “trustee” of this trust and claims to have no reasonable expectation of someday owning this valuable commercial property in the midst of downtown Worcester, land worth more than $1 million dollars, even though her brother, her only sibling, has no children(Tr.II:140-141).

The parties then adduced their respective expert witnesses concerning the worth of the Wife's business. The Husband's expert was Felix Betro, a CPA, lawyer and a certified valuation analyst since 1997, having evaluat-ed over 40 insurance agencies since 1976(Tr.III:6-9).As part of his analysis, he interviewed the Wife and asked her to respond to a questionnaire about the nature and financial history of the agency(Tr.III:13-14).

Betro testified that during his interview, the Wife told him that she works part time, perhaps “two to three days a week”(Tr.III:31;144-145). Her one employee, a customer service representative (CSR), works three days a week(Tr.III:31). However, Betro opined that the Wife's computer system, one on the best in the insurance industry, is very easy to use and, in fact, the Wife “can do everything that the CSR is doing”(Tr.III:69-70).

As far as his evaluation of the Wife's agency was concerned, Betro uses an income approach to determine the fair market value of an insurance agency business, i.e., “what a willing buyer and a willing seller would pay for this business, neither being compelled to buy or sell, both informed sufficiently to make a decision as to the price and whether to buy or to sell”(A.311;Tr.III:15-16). First, Betro looks at the customer list owned by the agency because it is “the essence of value...in an in-surance agency”(Tr.III:15-16).

Betro found that the Wife's agency has a very valu-able customer list, principally writes auto and home-owners' insurance and does so for very high quality in-surance companies(Tr.III:20-21;39;41). It was therefore his opinion that given the agency's volume of business and income over the past five years, the Wife's agency's “book of business” or value is $175,000(Tr.III:17).

In order to confirm this value, Betro next applied a multiplier of one and one-half to two times the gross commissions of the agency, the standard multiplier used in Massachusetts in order to determine value(Tr.III:21-24;71;102-103). Since the Wife's reported gross commis-sions were $125,000-130,000, Betro's evaluation of $175,000 had a solid foundation confirmed by two differ-ent methods of analysis(A.320;326;Tr.III:17;24;37-38).

In addition, Betro thought that given her sophis-ticated computer system, the Wife's business has an annu-al growth rate of 7%, above the average of 4-6%(Tr.III: 34-37). Betro's opinion was that the Wife's agency “could easily double in commission volume and not increase oper-ating expenses significantly;” “had a very high quality book of business;”and had “contracts with three very good companies”(A.327;Tr.III: 39;41). As he put it, “what [the Wife] has done is put the agency in a position for long-term growth and long-term development...”(Tr.III:36).

The Wife's expert, a CPA who valued only one other insurance agency, testified that her agency was worth just $18,000 but then testified that if she did decide to sell the business, she might be able to receive $100,000 (Tr.III:120;148-151;159).

Argument.

The Probate Judge Properly Exercised His Discretion Under G.L.c. 208 , Section 34 , In Equitably Dividing The Marital Estate Based Upon The Parties ' Respective Contri-butions To The Marital Enterprise, Their Conduct During The Marriage , Their Potential To Earn Further Income And Their Respective Needs.

Whether characterized as a finding of fact or a conclusion of law, Judge Hart'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). Laur-icella v. Lauricella, 409 Mass. 211, 213(1991).

In fashioning an equitable division under G.L.c. 208, Section 34, 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), this Court reaffirmed that the parties' respective con-tribution to the marriage “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). Indeed, Section 34's express purpose is to provide a mechanism for the Probate Judge to distribute the marital estate in such a way as to provide for a balanced disposition and economic justice for each spouse no matter how the property was acquired or held. Hay v. Cloutier ,389 Mass. 248, 254 (1983). See Davidson v. David-son ,19 Mass. App. Ct. 364, 376 (1985).

Judge Hart's division did not have to be math-ematically precise as 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). But a division not reflecting these values of contribution will be deemed plainly wrong or excessive and outside the bounds of the discretion afforded the Probate Judge. Redding v. Redding , 398 Mass. 102, 107-108(1986). Bak v. Bak , 24 Mass. App. Ct. 608, 620-621 (1987).

This Court will also vacate a division not ra-tionally supported by the trial judge's findings of fact, Denninger v. Denninger , 34 Mass. App. Ct. 429,430-431 (1993), or one which leaves one of the spouses percept-ibly worse off than the other spouse in terms of standard of living, financial security or any other measure of economic justice. Id . at 433. 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 an economic inequality in the treatment of a spouse, without adequate explanation in the findings for doing so, signifies a division which lies outside the bounds of discretion provided by Section 34. Redding, supra . Loud v. Loud , 386 Mass. 473, 475-476(1982).

Accordingly, if the Probate Judge makes findings consistent with Section 34, indicating that he has con-sidered all the statutory factors, and those findings provide a coherent rationale for the division, the as-signment will not be reversed unless “plainly wrong and excessive.” Redding , 398 Mass. at 107-108. Bak v. Bak , 24 Mass. App. Ct. 608, 620-621 (1987).

The same considerations which support a property division under Section 34 begin the analysis of whether to award alimony under the same statute. The justifica-tion for awarding alimony is grounded in 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). Thus the occupations, vocational skills and em-ployability of both parties must be considered in de-ciding to award alimony. Heins v. Ledis , 422 Mass. 477, 484(1996). As the Heins Court observed,

[t]he evaluation of vocational skills takes into account a party's age, health, and reasonable employment prospects. “The fact that both parties have vocational skills and are capable of being self-supporting and maintaining individually their marital station in life suggests that an order which separates the economic the lives of the parties as much as possible after the divorce may be appropriate.”

Id . at 484-485 quoting C.P. Kindregan & M.L. Inker, Fam-ily Law and Practice , Section 1013 at 37(1990) citing Rolde v. Rolde , 12 Mass. App. Ct. 398, 401-402(1981). Importantly, in awarding alimony, Judge Hart was not bound by either party's actual earnings but could con-sider each party's potential earning capacity. Heins , 422 Mass. at 485 citing Schuler v. Schuler , 382 Mass. 366, 374(1981). This flows from the principle that the attribution of income commensurate with a person's earn-ing capacity is appropriate if the trial judge deter-mines upon proper findings that a party's depressed income is the result of a voluntary, deliberate choice. Schuler v. Schuler , 382 Mass. at 371-372. Flaherty v. Flaherty , 40 Mass. App. Ct. 289, 291(1996). Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736(1995). Canning v. Juskalian , 33 Mass. App. Ct. 202,206 (1992).

In this respect, a party's evasiveness or trans-parency about her financial situation is alone grounds for attributing to her income reasonably justified by all the other evidence. See Canning , 33 Mass.App. Ct. at 210-211; Frederick v.Frederick ,29 Mass. App. Ct.329,335(1990); Mancuso v. Mancuso ,12 Mass. App. Ct.973,974(1981).

Proceeding from “an honest exercise of judicial dis-cretion,” Downing v. Downing , 12 Mass. App. Ct. 968, 968(1981), and meticulously addressing all of Section 34 ' s factors, Matta v. Matta , 44 Mass. App. Ct. 946, 948 (1998), Judge Hart found that this marriage was a part-nership and that both parties contributed equally (A.18;20;22). Accordingly, he fashioned a judgment which “provides for an approximately equal division of the marital assets,” one which “will enable both parties [who have no children] to move forward and begin to plan for the future financially”(A.18;20;22).

In order to accomplish this, the lower court divided equally the two principal assets of the marriage, i.e., the jointly held marital home at 100 Old Mill Road and the jointly owned insurance agency business which the Husband had underwritten financially and supported throughout the marriage, assets having a total net value of $592,200(A.24). It first deducted from the marital home's fair market value all outstanding debts as well as the Husband's $175,000 set-off to reflect the value of the financially robust insurance agency which the Wife retains free and clear of any claim by the Husband (A.20;24). He then divided the home's remaining net equity of $242,200 equally so that each receives $121,100 from this asset(A.24). The Wife was then given outright ownership of her business valued at $175,000(A.24). Thus the division of these two principal assets, totaling $592,200, is precisely equal with each party receiving $296,100 in marital property (A.24).

The Wife further receives two of the Husband's IRAs totaling $23,500; two cars worth $14,100; her jewelry and furs worth conservatively $17,300; her own IRA worth $7,100; and 46.5% of the Husband's pension benefits which together with her own Social Security benefits total $409,520 in expected benefits upon her retirement(A.24). Counting pension benefits, the Wife's total assignment amounts to $767,620 or 50.3% of the marital estate(A.24).

Besides his equal assignment of $296,100, the Husband received his deferred compensation account worth $31,000; two small bank accounts; and his motorcycle and tractor, assets which together with 53.5% of his pension total $757,730 or 49.7% of the marital estate(A.24).

Having been assigned liquid assets of the marriage worth $358,100, or 53% of all such assets, the Wife is in a better position concerning the liquidity of funds than the Husband who received just $315,250, or 47% of such assets. Indeed, as in Belsky v. Belsky , 9 Mass. App. Ct. 852,853 (1980), ”this is certainly not a case where the wife is left ‘at most only marginally independent.'” Id . See Cabot v. Cabot , 18 Mass. App. Ct. 903, 904-905 (1984); Mancuso, supra . Compare Zildjian , 8 Mass. App. Ct. at 15.

The reasons for this approximately equal division are contained in Judge Hart's findings and rationale(A. 14;17-22). The Husband was clearly the primary wage earner and financial contributor to this 24-year marriage (A.17;20). His savings, industry and generosity through-out the marriage fueled the parties' real estate ven-tures, investments which allowed them to accumulate some assets, provide loans and other help to the Wife's family businesses, maintain a middle income lifestyle for them-selves and allow the Wife to become an independent, self-sufficient business person(A.13-14;17-18;20-21).

The Wife presented no evidence about her contribu-tion to the marriage as a homemaker(A.17;20). However, the Wife's employability as a self-sufficient insurance agent for a thriving business is excellent; and even though she has voluntarily decided to work less than full-time, she “has the ability to increase her income were she to consistently work full-time at her agency and become familiar with all operations of the business” (A.14). Furthermore, unlike the Husband, the Wife has the prospect for the further acquisition of assets through her own family's realty trusts(A.14;17;19).

These same findings buttress the Wife's realistic prospects for self-sufficiency in the years ahead and support the lower court's award of rehabilitative alimony for three years in the amount of $200 weekly(A.14;21-22). Consistent with Ross v. Ross , 50 Mass. App. Ct. at 80, Judge Hart found that although the Husband has been the primary

wage earner..., the Wife has the ability to increase her income in the coming years and is fully capable of supporting herself . She has been in the insurance field for a number of years, holds several licenses and owns an insurance agency valued at $175,000. She currently employs a customer representative at her agency, and there was testimony that she does not consistently work full time. I find it possible, therefore, that, with effort, she can earn additional income in the future. The Court also notes that this was not a traditional marriage in the sense that the Wife's primary role was not as a homemaker. She had the full opportunity, during the marriage, to develop her career, and I find that she has a reasonable prospect for self-sufficiency ....

Moreover,...a sizable portion of [the Husband's] income (25%) is through the Quinn Bill [and]...is not certain or guaranteed from year to year.

....This amount [of alimony] will enable the Wife to meet her expenses while she increases her income to that which she is capable of earning .

(A.21-22;23)(emphasis supplied).

None of these findings is clearly erroneous within the meaning of Mass. R. Civ. P. 52(a), as amended, 423 Mass. 1402(1996), so as to leave this Court on review of the entire evidence “with the definite and firm convic-tion that a mistake has been committed.” 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). Kendall v. Salvaggio , 413 Mass. 618, 620-621 (1992). See Demoulas v. Demoulas Super Markets, Inc. , 424 Mass. 501, 509(1997). In fact, the record is uncontradicted that the Husband consistently provided his money, encouragement and support not only to the Wife and her business but also to the Wife's entire family throughout this 24-year marriage.

Besides underwriting financially the Wife's in-surance business since 1986 with rent-free offices, financial autonomy, a ready access to cash and his consistent encouragement and support, the Husband under-wrote various businesses of the Wife's family with both money and his labor. He gave the Wife's brother loans, business inventory and peripheral support for his ventures. He worked at the brother's gas station doing everything from pumping gas to small repairs; he helped out in the brother's new convenience store on the site, opening it in the morning and working mainly on weekends(Tr.I:80-81). The Husband was never paid by the brother or by the Wife's family for any of this work(Tr.I:80-81). Nor was he ever paid back for the $130,000 in loans he made to the Wife's brother and the Wife's family to enhance their properties and their estate.

He also performed legal services for the Wife's family without charge, services which included preparing all of the contracts and financing for the new construc-tion at the Wife's family business at 310 Belmont Street; creating a realty trust for this land; and helping the Wife's mother with her Social Security benefits and a pending lawsuit(Tr.I:88-89).

The Wife, on the other hand, never assisted the Husband's family other than occasionally making a meal for the Husband's mother which he would take to her home(Tr.I:89; 132). She saw the Husband's mother perhaps two or three times in the last two years of the mother's life(Tr.I:132). She did not contribute as a homemaker; and she admitted that the Husband paid almost every marital bill , including her 2001 federal and state income taxes(Tr.II:62-63;105-106;131-132;143-146). She conceded that the Husband provided $130,000 to her family but called these transfers “gifts”(Tr.II:84-86;89-91;135;137 -138). While she claimed that the Husband's purchase of the Natick Street property behind her family's service station on Belmont Street was the Husband's idea, she then admitted that her broker friend first telephoned her about the availability of the property(Tr.II:136-137).

In addition, her serial Financial Statements con-tain patently incredible weekly expenses, admittedly non-existent obligations, undervalued (or unvalued ) marital assets and understated income from her insurance agency business(A.61-78;Tr.II:103-105;108-117;122-123; 163-164). She claims to work at her agency five days a week from 7:00 A.M. until 5:00 P.M. and on weekends when needed (Tr.II:97-98). She professes to have no expertise in mar-keting even though she's been working in the insurance industry since at least 1971, primarily in sales; and she denied she is even close to CPCU certification(A.14;Tr. II:98;101-103). Finally, she “didn't have a clue” about the value of her own insurance agency, a business she's been operating successfully since 1986 (Tr.II:119-120).

The Husband accordingly submits that if marriage is a test of generosity, he has passed. If contribution is the hallmark of a just division, Denniger v. Denniger , 34 Mass. App. Ct. at 434, then this judgment, founded on the notion that the marriage was a partnership and that both parties contributed equally (A.18; 20;22), gives the Wife more than she was entitled to under the evidence .

Indeed, this assignment and alimony award leaves un-addressed the dramatic difference in opportunity that each party has to inherit substantial assets in the future. While the Husband has no such prospects, the Wife stands to inherit part ownership of not only her mother's home but also the valuable 310 Belmont Street in down-town Worcester, commercial land which the Husband enhanc-ed by his purchase for the Wife's family of abutting land at Four Natick and by his work over time helping the Wife's family with their service station/convenience store located there(A.19;Tr.I:67;93;Tr.II:92-93;139-141). See S.L. v. R.L. , 55 Mass. App. Ct. 880,882-884(2002) citing Williams v. Massa , 431 Mass. at 628-629. Cf. Dwight v. Dwight , 52 Mass. App. Ct.739,743-744(2001). Contrast Daugherty v. Daugherty , 50 Mass. App. Ct. 738, 742(2001).

Even with these significant omissions about the worth of the Wife's putative inheritance, the Husband submits that the Probate Judge's equitable division of the marital estate which addressed all of Section 34 ' s factors was not an abuse of discretion and was not “plainly wrong or excessive.” Accord, Ross v. Ross ,50 Mass. App. Ct. at 81-82. This Court should therefore affirm the judgment below in all respects.

Addressing the Wife's arguments seriatim :

The Parties' Standard of Living.

In order to diminish the fairness of the division, the Wife, as she did below, exaggerates her weekly expenses, understates her ability to generate income for herself through her vibrant insurance agency business, and then imposes upon the marriage a standard of living unsupported by the evidence(Wife's Brief at 12-18).

In the first place, while the Probate Judge chari-tably found from the evidence that the Wife had “somewhat inflated” her expenses, the Wife's actual testimony on this score was wholly contrived. Her serial Financial Statements were pockmarked by incredible, inexplicably inflated weekly expenses, admittedly non-existent pay-ments, and undervalued (or unvalued ) marital assets(A. 61-78;Tr.II:103-105;108-117;122-123;163-164). Moreover, Felix Betro's testimony supports the inference that some of her business expenses are unnecessary to support the volume of work, especially the CSR who is paid an annual salary of $25,000-30,000 (A.320). As Betro testified, the CSR is unnecessary and the Wife “can do everything the CSR is doing”(Tr.III:33;69). For this reason alone, the Wife has the ability to earn more income for herself by this amount yearly ; and her claimed expenses, both per-sonal and business, could be trimmed substantially with-out sacrificing her standard of living.

Second, the Wife ignores Judge Hart's clearly sup-ported finding of fact that she does not work full time and “has the ability to increase her income were she to consistently work full-time at her agency and become fa-miliar with all the operations of the business”(A.14). This finding makes her claim about impoverished circum-stances on a “pre-tax income of $41,912 " (Wife's Brief at 12-13) an already stale argument at odds with her dynamic income associated with full-time employment in a robust business with a bright future. Her dire calculations based upon this clearly erroneous and obsolete income figure are therefore unsupported by the evidence.

In fact, from all the evidence, the Probate Judge could have found that the Wife works at most three days a week and earns about $41,000 yearly doing so, employing a CSR whom she does not need at a cost of at least $25,000 annually. Based upon these figures, if the Wife decided to work five days per week and assume the responsi-bilities of the CSR, she could earn approximately $93,333 annually or about $1794 weekly, a salary commensurate with the Husband's weekly pay. In contrast to the Wife's self-serving description of the division at page 17 of her Brief , then, the Husband responds with the actual result:

In short, the Wife has no present home but does possess $358,100 or 53% of the liquid assets of the marriage; a weekly income of at least $1800 from her business, if she works full time; an alimony award which boosts her income to about $2,000 per week; sole ownership of a vibrant insurance agency business worth at least $175,000 with an annual growth rate of 7%; the likelihood of a substantial inheritance of her family's residential and commercial property in Worcester, worth well over $1 million dollars; and substantial retirement benefits contingent only upon the Husband's surviving his retirement.

The Husband, on the other hand, has the expectancy of purchasing from his siblings a modest home in Shrewsbury; receives just $315,250, or 47% of the marriage's liquid assets; has a static weekly income of $1,543 which is qualified by an annual Quinn Bill non-guaranteed increase of $388.93; equally substantial retirement benefits if he survives retirement; alimony payments of $200 weekly for three years; absolutely no prospect for future inheritance; and a law degree he will not use.

Third, the standard of living described by the Wife's Brief at 14-15 is a fiction exposed by the Probate Judge's finding that the parties instead experienced “a middle income lifestyle”(A.14). That it was punctuated by moments of celebration or occasional gifts does not disturb the fact that the parties lived a financially modest existence with a routine work life, normal vaca-tions and conscientious savings. Compare Ross v. Ross , 50 Mass. App. Ct. at 78; Denniger v. Denniger , 34 Mass. App. Ct. at 431-433; Goldman v. Goldman , 28 Mass. App. Ct. 603, 608(1990).

Finally, the Wife overstates the medical insurance expense. For the next three years, she is insulated from that expense while the Husband pays for her coverage. At that time, she can elect to be continued under his plan at cost , on its face a less expensive alternative to buying her own insurance plan as an individual(A.25). Nothing in this portion of the judgment is inconsistent or unfair, considering the Wife's found ability to generate more income for herself through her vibrant insurance agency as the years pass.

The Alimony Award .

The Wife argues that the lower court's finding that she “can, with effort, increase her income” was clearly erroneous and that rehabilitative alimony for only three years was not called for on this record(Wife's Brief at 18-23). A finding of fact is “clearly erroneous” under Rule 52(a) when there is no evidence in the record to support it. Adoption of Astrid , 45 Mass. App. Ct. 538, 547(1998). Guardianship of Clyde , 44 Mass. App. Ct. 767, 774(1998).Here Judge Hart chose to disbelieve the Wife's testimony that she works full time and instead credited Betro's testimony that the Wife told him that she works part time, perhaps “two to three days a week”(Tr.III:31; 144-145). It was then found that she “has the ability to increase her income were she to consistently work full-time at her agency and become familiar with all operations of the business”(A.14).

These same findings buttress the Wife's realistic prospects for self-sufficiency in the years ahead and support the lower court's award of rehabilitative alimony for three years in the amount of $200 weekly(A.14;21-22). Consistent with Ross , 50 Mass. App. Ct. at 80, Judge Hart found that

..., the Wife has the ability to increase her income in the coming years and is fully capable of supporting herself . She has been in the insurance field for a number of years, holds several licenses and owns an insurance agency valued at $175,000.

(A.21(emphasis supplied).

None of these findings is clearly erroneous. Judge Hart was in the best position to judge the credibility of the parties' testimony and to give it appropriate weight in his findings. Brash v. Brash , 406 Mass. 101, 105 (1990). Edinburg v. Edinburg , 22 Mass. App. Ct. 199, 203(1986) See Mayer v. Cohen-Miles Insurance Agency , 48 Mass. App. Ct. 435, 438(2000)(trial judge was not bound to believe any particular testimony). In fact, this Court has stated that where a Probate Judge's findings of fact rest upon the credibility of a witness or party, that determination “is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston , 38 Mass. App. Ct. 531, 536(1995) citing Goddard v. Goddard , 322 Mass. 247, 248(1948) and Palmer v. Palmer , 23 Mass. App. Ct. 245, 252(1986).

Considering the Wife's equivocal testimony, the lower court was entitled to find that she was under-employed, that she could increase her income and become self-sufficient if she worked full time and then to frame a time-limited alimony award on that basis. Contrast Bar-ron , 28 Mass. App. Ct. at 759-760; Goldman , 28 Mass. App. Ct. 608-611; Grubert , 20 Mass. App. Ct. 820-821. As the Heins Court observed, the “fact that both parties have vocational skills and are capable of being self-supporting and maintaining individually their marital station in life suggests that an order which separates the economic the lives of the parties as much as possible after the divorce may be appropriate.” Id . at 484-485 quoting C.P. Kindregan & M.L. Inker, Family Law and Practice , Section 1013 at 37(1990). The judgment below wisely accomplishes that objective.

The Wife's “Gender Baiting.”

It ill suits the Wife, a successful business person owning 53% of the liquid assets of the marriage including her financially robust insurance agency, to attempt to pass herself off as a victim of gender discrimination on this record(Wife's Brief at 19).It is a predatory posture completely at odds with the evidence. At every turn, the Husband generously supported the Wife, her financial independence, the Wife's family and her family's busi-nesses with his money as well as his time and effort. His generosity was not reciprocated and the Husband submits that under any theory of contribution, the Wife received more than she was entitled to by this judgment.

The Wife's Recalculation of the Division and Her Treatment of the Husband's Pension As a Cash Asset of the Marriage .

The Wife's recalculation of the division at pages 23-34 is wrong on several fronts. First, the property of the Husband's mother at 100 Old Mill Road is not part of the marital estate and was not subject to division. The property is held in a realty trust for the benefit of the Husband and his siblings with the Husband as trustee (Tr.I:17). He plans to buy it someday from his siblings for $175,000(Tr.I:21-22). He spent $18,972.75 of his own funds improving this home whose current value is $217,500(Tr.I:23-25). The Wife did nothing during the marriage to contribute to its value (A.Tr.I:25). Contrary to the Wife's contentions, there is no logical or legal basis to include this property expectancy in a division. Second, despite being assigned $358,100 worth of property or 53% of the liquid assets of the marriage, the Wife asks for even more cash from the marital estate by having this Court assign to the Husband a portion of his pension's “present value” as a setoff for that cash( Id . at 25-30). She misunderstands the contingent nature of these pension benefits. They do not become realizable assets, i.e., real elements of the marital estate, until the Husband actually retires– -and he must survive the rest of his career as a police officer in order to do so. Assigning him a portion of his pension now as an excuse for giving the Wife more cash, gives him nothing at all; it merely puts a dollar value on a bare expectancy. Such a skewed division would be unfair to the Husband in view of his overwhelming contribution to this marriage.

The Wife should also know that once the Husband retires, regardless of his remarriage, she is irrevocably entitled to 46.5% of Option A benefits and regardless of any DRO, those pension benefits will cease upon his death in any event. See Early v. State Board of Retirement , 420 Mass. 836,841-842(1995). See also Early v. Early , 413 Mass. 720, 725-26(1992). Furthermore, any claimed death benefits are subject to defeat by a surviving spouse under state law and a DRO cannot change this since it may not dispose of such benefits in a manner unauthorized by statute. Early, 420 Mass. at 839.

Finally, there was no “double counting” of the Wife's future income by assigning a value of $175,000 to her business and then giving the Husband credit for that asset in computing his alimony obligation, as claimed by the Wife at 31-34 of her Brief. Instead,the Probate Judge could have found from all the evidence that the Wife works at most three days a week and earns about $41,000 annually doing so, employing a CSR whom she does not need at a yearly cost of at least $25,000. Based upon these figures, if the Wife decided to work five days per week and assume the responsibilities of the CSR, she could earn approximately $93,333 annually or about $1794 week-ly. A three-year alimony award of $200 weekly would boost her income to $2000 weekly, more than the Husband's static weekly salary, even assuming his continued receipt of non-guaranteed Quinn Bill benefits.

None of this calculus implicates “double dipping” within the sense of Champion v. Champion , 54 Mass. App. Ct. 215, 219 (2002), just a common sense calculation by the trial judge aimed at giving the Wife “time to adjust to this divorce and position herself, financially... [i.e., enabling her] to meet her expenses while she increases her income to that which she is capable of earning”(A.21-22). Any other result would have been inequitable to the Husband in any event. Id . at 222.

The Lower Court's Use of the Experts' Valuations .

Like any other finding of fact, the valuation of a marital asset will not be disturbed unless it is clearly erroneous. Wiliams v. Massa, supra . Sarrouf v. New Eng-land Patriots Football Club, Inc. , 397 Mass. 542, 550-551(1986). Faced with divergent expert opinion about the worth of a 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.895, 863(1989); or it could reject the expert proof altogether and arrive at a valua-tion based on some other evidence. Yannas v. Frondistou-Yannas, 395 Mass. 704, 714(1985).

Betro thought that the Wife's agency has a very valuable customer list, principally writes auto and home-owners' insurance and does so for very high quality in-surance companies(Tr.III:20-21;39;41). It was his opinion that given the agency's volume of business and income over the past five years , the Wife's agency's “book of business” or value is $175,000(Tr.III:17). Confirming this value, Betro next applied a multiplier of one and one-half to two times the gross reported commissions of the agency, the standard multiplier in Massachusetts in order to determine value(Tr.III:21-24; 71;102-103). Since the Wife's gross commissions were $125,000-130,000, Betro's evaluation of $175,000 had a solid foundation confirmed by two different methods of analysis(A.320; 326;Tr.III:17;24;37-38). All of this reliable expert evi-dence justified the Probate Judge's assigning a value of $175,000 to the Wife's insurance agency.

The Husband's Loan of Money to the Wife's Brother.

The short answer to the Wife's claim that the Probate judge erroneously included within the marital estate the money loaned to the Wife's family is that (1) he did not do so ; and (2) as fact finder, Judge Hart was in the best position to gauge the believability of the testimony he heard; and that the Husband himself testi-fied at one point “that we'd lend them the money”(Tr.I: 129)(emphasis supplied). The trial judge was therefore justified as a matter of restitution in giving the parties the opportunity to recoup their investment from the Wife's family.

Conclusion.

For all the reasons identified herein, this Court should affirm summarily the judgment below, award the Husband the attorney's fees 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,