Massachusetts divorce lawyer Jason V. Owens reviews a rare Massachusetts Appeals Court decision vacating a Probate & Family Court judge’s division of marital assets.
This blog has observed in other contexts that multi-part legal standards featuring numerous “prongs” and “steps” often collapse under the weight of their own complexity, leaving lawyers and litigants with little real guidance. The Massachusetts asset division statute, Ch. 208, s. 34, provides a perfect example. Section 34 purports to require probate court judges to “consider” fourteen “factors” when determining the division of assets in a Massachusetts divorce. Which Section 34 factor is most important? Should judges assign a numerical score to each factor? Should judges rank the factors in order of importance? The statute does not say. Interpreting the statute is largely a matter of preference for individual probate court judges.
Massachusetts appellate courts only rarely reverse a probate court judge’s decision under Section 34. This is probably because the appellate standard of review is nearly as amorphous Section 34 itself:
In reviewing a judge’s decision under G. L. c. 208, § 34, we use a two-step analysis. We first determine whether the judge considered all the § 34 factors, and no others. We then evaluate whether the conclusions follow from the findings and rulings. (Citations omitted.)
In the recent case of Obara v. Ghoreisha (2016), we see a rare example of the Appeals Court reversing a Massachusetts probate court judge’s decision on the division of assets. In Obara, the husband and wife had been married more than 20 years. The parties co-owned a dental practice from a condominium in the same complex as their home. The husband was a paraplegic who had been bound to a wheel chair much of the marriage. The parties’ dental office had been retrofitted and renovated extensively to enable the husband to perform dental work from a wheel chair.
Following the divorce trial, the probate judge awarded ownership of the dental office to the wife, because the husband had “two definite and fixed sources of income (Social Security disability and private insurance disability) as well as rental income” that he could rely on after the divorce, while the wife’s career as a dentist “would be interrupted for an unknown time period” if husband were awarded the practice.
Notably absent from the judge’s findings is any consideration of the impact of the husband’s relocation on his “employability” and his “opportunity . . . for future acquisition of capital assets and income,” both of which are mandatory factors under G. L. c. 208, § 34… Because the judge’s findings do not meaningfully address those two factors, a remand is necessary “for that reason alone.”
Moreover, it is difficult to perceive how, on this record, the award of the handicap-accessible office to the able-bodied wife could be deemed equitable. It is especially perplexing since the husband was awarded the handicap-accessible home located in the very same condominium complex as the dental office. Here, we cannot say that the judge’s “reasons for his conclusions are `apparent and flow rationally’ from his findings and rulings.” (Citations omitted.)
Accordingly, we vacate so much of the divorce judgment that orders division of property and remand the matter for further proceedings and findings, and if appropriate, redistribution of the dental practice, permitting revisitation of the distribution of other assets to the extent necessary to effectuate an equitable division on remand.
Reversals of this nature are quite rare, where most probate court judges recognize that “considering” the Section 34 factors can largely be accomplished by simply listing each factor and offering a few words as written findings for each factor. To the extent that division of assets decisions are reversed or remanded, this is generally the result of the probate court judge applying an incorrect valuation method, inappropriately excluding assets from division or basic math or writing problems with the judgment.
In Obara, the probate court judge probably entered findings dealing with the husband’s “employability” and his “opportunity … for future acquisition of capital assets and income”, but the Appeals Court found the findings failed to specifically consider the impact of the dental practice decision on these factors. This is rare. In the vast majority of appeals, the Appeals Court grants the probate court judge very broad discretion to interpret Section 34 and order the division of marital assets as that particular judge sees fit.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.