Gradeless-Blasko v. Blasko

91 Mass.App.Ct. 1126

86 N.E.3d 510 (Table)

Angela M. GRADELESS-BLASKO

v.Ryan A. BLASKO.

15-P-382

Appeals Court of Massachusetts.

Entered: June 9, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The husband appeals from a judgment of divorce nisi dated April 27, 2015; from a judgment of contempt of even date; and from the order denying his motion for relief from a contempt judgment dated April 1, 2014. We affirm.

Discussion. 1. Divorce judgment. We begin by addressing the husband's procedural challenges to the divorce trial. The husband rested his case without calling the wife as a witness, and the wife then rested without calling any witnesses. The judge, who has wide latitude with respect to the management of the trial, did not abuse his discretion by not permitting the husband to reopen his case. See Drake v. Goodman, 386 Mass. 88, 92 (1982) ; Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805 (2002). In any event, the husband has not explained precisely what he would have proven by questioning the wife or how he was prejudiced by his inability to do so, arguing in only the vaguest terms that he was deprived of "the ability to cross-examine her and to give the court accurate information about the important financial issues."

We are more troubled by the judge's verbatim adoption of the wife's proposed findings, which suggests that the judge did not conduct a thorough review or exercise independent judgment. We have consistently criticized this practice. See Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 416 (1980) ; Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003). However, because the record supports the findings, we are able to conclude that the judge did not clearly err or abuse his discretion in adopting them. See Markell, supra at 431-432; Care & Protection of Olga, supra at 824.²

The husband also faults the judge for failing to make express findings regarding the application of the G. L. c. 208, § 34, factors. See Pestana v. Pestana, 74 Mass. App. Ct. 779, 781-782 (2009). While the findings are not exemplary in this regard, we see no utility in remanding the case for further proceedings or findings.

"We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ " Zaleski v. Zaleski, 469 Mass. 230, 245 (2014), quoting from Baccanti v. Morton, 434 Mass. 787, 793 (2001). The husband maintains in his brief that "it would have been fair and reasonable to divide equally all the equity in the marital home and the retirement account of Husband, as all was a result of the 'implied partnership' of the marriage and all of the marital estate resulted from that partnership." The judge indeed endeavored to order an even distribution of the home and the husband's retirement account. Express findings on the § 34 factors, merely to justify an even division, would be superfluous in this case.

More specifically, the husband attacks valuation of the marital home and the judge's failure to factor in a loan against his 401(k) account, which was used to make a down payment on the home. We discern no reversible error. At one point the judge found that the property "has $8,950.00 in equity pursuant to the Husband's financial statement filed on the date of trial and which includes both mortgages." The judge allocated one-half of this to the wife ("the Wife shall retain the equity in the home in the approximate amount of $4,475.00"). Elsewhere, the judge found that "the house has no equity." Based on the husband's handwritten annotations to his financial statement made during the course of the trial, the equity in the house was a negative$8,900 (fair market value of $450,000, minus first mortgage balance of $420,000, minus second mortgage or home equity loan balance of $38,900). In prior proceedings, the husband had testified that the home had no equity value and that he "wanted it to go into foreclosure." In short, the judge did not clearly err or abuse his discretion where the husband's monetary contribution to the home was part of the "implied partnership" of the marriage, and the home itself ultimately had no value to distribute.

The judge also divided the husband's 401(k) account evenly, but then subtracted from the husband's share amounts the husband owed to the wife as the result of a prior contempt judgment, child support arrears, and other outstanding obligations. The judge further noted that the husband's share would be insufficient to satisfy his outstanding obligations to the wife. Again, the husband argues that the judge erred by failing to account for the outstanding loan, which he testified at trial was approximately $37,000. To the extent the loan should have been subtracted from the value of the 401(k) account before it was distributed—and surely the fund manager will not distribute the funds without first doing so³ —there would be even less money left in the husband's one-half share to satisfy his debts to the wife. Any error ultimately inures to his benefit.

Finally, a qualified domestic relations order (QDRO) was proper to enforce the husband's obligations to the wife, including attorney's fees. See Silverman v. Spiro, 438 Mass. 725, 732-736 (2003) (judges have authority to enter QDROs relating to child support, alimony, marital property, and attorney's fees incurred to establish party's right to such payments).

2. April 27, 2015, contempt judgment. The husband contends that the judge erred by finding him in contempt without proof that he wilfully failed to comply with the court orders, claiming that his disobedience was due to an inability to pay. He also claims that the contempt judgment was punitive rather than remedial. We disagree.

"[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 532 (2016), quoting from K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). The defendant must also have the ability to comply with the order. Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013). However, "our c...