Opinion
15-P-55
02-18-2016
GUISEPPE BALISTRERI v. JANINE MARIE BALISTRERI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a four-day trial, a judge of the Probate and Family Court entered a divorce judgment that divided the parties' assets and ordered the husband to pay the wife alimony for seventy months. For the reasons set forth below, we conclude that a remand regarding the duration of alimony is necessary, but otherwise affirm the judgment.
Length of marriage/duration of alimony. By statute, the duration of alimony is presumptively capped by formulas keyed to the "length of the marriage." G. L. c. 208, § 49(b), inserted by St. 2011, c. 124, § 3. "Length of the marriage" in turn is defined as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support duly filed in a court of the commonwealth or another court with jurisdiction to terminate the marriage [subject to a proviso not here applicable]." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. In the case before us, the following dates are uncontested: (a) the parties were married on March 26, 1995, (b) the wife filed a complaint for separate support on January 11, 2005, and (c) the husband filed a complaint for divorce on April 14, 2011. Thus, the length of marriage would be approximately 117 months if measured to the date of the filing of the complaint for separate support, or 192 months if measured to the date of the filing of the complaint for divorce. In her brief, the wife understandably assumes that the judge used the earlier end date, and she makes various arguments as to why this was error. However, there are also indications that the judge agreed with the wife that it was proper to use the later end point in determining the length of the marriage. Specifically, in his findings of fact, rationale, and conclusions of law, the judge stated:
If the length of the marriage were deemed 117 months, then the statute presumptively would limit alimony to no more than seventy months (sixty percent of 117), the duration of alimony set by the judge. See G. L. c. 208, § 49(b)(2). If, instead, the length of marriage were deemed 192 months, then the statute presumptively would limit alimony to no more than 154 months (eighty percent of 192). See G. L. c. 208, § 49(b)(4).
Some of the wife's arguments are that the judge committed clear error in his fact finding. For example, she argues that the judge's finding that the parties last lived together in 2005 is contradicted by admissions that the husband made at trial (that he moved back to the marital home in approximately 2009 or 2010 for a period of time, "[m]aybe a month and a half, two months").
"The Court took into consideration the length of the marriage i.e., the date of marriage to the date the complaint for divorce was filed and the remaining factors as outlined in Chapter 208 Section 53a. The fact that the parties were legally separated does not rise to a different end date as the alimony statute specially states 'the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce OR separate support.'"Causing additional confusion is footnote 14 in the judge's findings of fact, rationale, and rulings of law. That footnote's placement suggests that its role is to explain how the judge set the duration of alimony; it appears to have remained a work in progress when the order was issued. We cannot tell from the judge's explanation why he selected seventy months for the duration of alimony, and we therefore are not in a position to review his reasoning. Further explanation is required. See Zaleski v. Zaleski, 469 Mass. 230, 244 (2014).
The language of the footnote does not scan, and it includes both an unanswered question that appears to be posed to the judge and a reference to a fact that does not appear to apply to this case (a statement that the husband earns $1 million per year).
JB Fish Company. As the judge found, the husband works as "a self-employed fish wholesaler, wherein he purchases fish from fishing boats and fish markets and sells them to retailers and restaurants." In or about 2005, the husband formed a company named JB Fish Company (JB Fish). However, he is the only employee of JB Fish, and the only physical asset that the company owns is a truck that has no equity value. The judge concluded that the only additional asset "perhaps" held by JB Fish was a customer list. However, neither party put in any evidence, expert or otherwise, of the value of such an intangible asset. In these circumstances, the judge did not err in assigning JB Fish negligible value and letting the husband retain it. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 714 (1985) (finding no error in failing to place a value on husband's royalties, patents, or copyrights because their value was uncertain). See generally Champion v. Champion, 54 Mass. App. Ct. 215, 218-219 (2002) (determining value is a question of fact subject to reversal only if clearly erroneous). We also note that the judge assigned the wife sixty percent of the value of the marital home. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 537 (1995) ("adequacy and reasonableness" of a division of assets "must be viewed in its entirety").
On appeal, the wife argues that based on the imputed annual income the judge assigned to the husband and on "the well-known capitalization of income method of determining valuation," one can compute that JB Fish is worth some $1 to $2 million. Neither the arguments nor the materials on which they are based were before the trial judge. Therefore, these arguments have been waived and cannot be raised for the first time on appeal. See Tsomides v. Tsomides, 3 Mass. App. Ct. 750, 750-751 (1975). We also note that the application of a capitalization of income method to a sole proprietorship is hardly as straightforward as the wife suggests.
In a related argument, the wife claims that the judge erred in not compelling a particular expert to testify as to JB Fish's value. The wife had retained that expert for a period that concluded before she (the expert) had formed an opinion of the company's worth. The circumstances of this case do not present an instance in which an expert witness can be compelled to testify to an opinion she already has formed. Compare Ramacorti v. Boston Redev. Authy., 341 Mass. 377, 379-380 (1960) (compelling an expert witness to testify should be used sparingly, as necessary for the "purposes of justice"). The judge did not abuse his discretion in declining to order the wife's former expert to testify.
Finally, the wife argues that the judge erred by not having the court retain its own expert to value JB Fish. Assuming arguendo that the judge had authority to do so, the wife cannot show that the judge abused his discretion in not exercising such authority. This is especially so where there has been no showing that the wife ever asked the judge to do so. See Tsomides v. Tsomides, 3 Mass. App. Ct. 750, 750-751 (1975) (If a party did not bring an issue to the attention of the trial judge, then that issue is waived on appeal).
Conclusion. We vacate the portion of paragraph 8 of the judgment that sets forth the duration of alimony and remand that issue for reconsideration. The judgment is otherwise affirmed.
We are cognizant that the trial judge has retired and that this matter will need to be reassigned.
So ordered.
By the Court (Grainger, Meade & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.