Opinion
12-P-372
04-12-2013
DANA JILL GORDON v. STEPHEN ANDREW PITNER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Stephen Andrew Pitner (husband) appeals from a divorce judgment of the Probate and Family Court insofar as it divides the marital property and sets the terms of a parenting plan. Pitner maintains that the judge selected an incorrect valuation date in valuing investments, and that the failure to include the terms of a stipulation regarding summer and vacation visitation in the final judgment was an abuse of discretion.
Valuation. Dana Jill Gordon (wife) brought significant assets to the marriage in the form of investment accounts that were funded by her parents. Pitner, who had worked as a plumber for his uncle before the marriage, eventually acquired the plumbing business during the marriage using funds borrowed from (and partially repaid to) his mother and aunt. The judge ruled that Gordon would keep the investment accounts, and that Pitner would retain the business, a ruling which is not challenged here. However, he also found that the increase in value of the investment accounts during the marriage should be divided equally. 'We begin by noting that the Legislature has given probate judges broad authority with respect to the division of marital property.' Cesar v. Sundelin, 81 Mass. App. Ct. 721, 722 (2012), citing Kittredge v. Kittredge, 441 Mass. 28, 43-44 (2004), and G. L. c. 208, § 34. We are bound by the judge's selection of a valuation date unless it is clearly erroneous. See Champion v. Champion, 54 Mass. App. Ct. 215, 218-219 (2002); Caveney v. Caveney, 81 Mass. App. Ct. 102, 109 (2012).
No statement of the investment account as of the date of the marriage (May 24, 1997) was submitted in evidence. The sole statements presented to the judge were dated April 30, 1997, and December 31, 1997. The judge selected the December 31, 1997, statement, with the result that the investment gains between May 24 and December 31 were not divided, and remained with Gordon. The judge did not err in declining to select a valuation date that preceded the marriage. Having decided that the investment assets that were held by Gordon before the marriage would not themselves be subject to division, it was not clearly erroneous to rely on the one postmarriage valuation that was in evidence. Moreover, this allocation of investment assets must be considered in the context of an overall division in which the husband and wife shared the increased value of the investments, but the husband retained all of the interest in his business, which he bought and operated during the marriage. These were markedly different assets, not susceptible to easy valuation or formulaic division. It is clear from the record that the judge considered all of the assets in formulating the over-all division of marital property, and did not abuse his discretion.
Parenting plan. Before trial the parties stipulated to a temporary parenting plan that provided, among other things, that the husband would pay a certain amount in child support, primary physical custody would be with the wife, and the husband would have the minor children once during the week and every other weekend. That stipulation was entered as a temporary order on February 4, 2010, pending trial. At the conclusion of the trial, which was held in November of 2010, the judge engaged in an extended discussion with both counsel concerning a parenting plan that also involved alternating holidays and vacations, '[u]nless you work out something differently.' He concluded by saying that 'if you guys could agree on the vacation schedule and visitation as I've suggested, that's great. If not, I'm going to order essentially what I've told you.' The parties then agreed to a stipulation, which was entered as a temporary order on November 22, 2010.
The judge referenced with approval the February 4 and the November 22, 2010, orders in his findings and rulings. The judgment incorporates the weekly portion of the parenting plan as provided in the February 4 temporary order, but, contrary to the judge's findings and rulings, the judgment is silent with respect to Pitner's additional parenting time during vacations and holidays as provided in the November 22 temporary order. Moreover, the judgment offers no guidance to the parties and no explanation is offered as to the reason for the omission. Pitner raised this point, among others, in his motion pursuant to Mass.R.Dom.Rel.P. 59(e) to alter or amend the judgment. The motion was denied without opinion.
Several relevant findings follow:
'69. The Court finds that the parties agree that the current parenting plan and custodial arrangement dated November 22, 2010 has been and will continue to be in the best interest of their children and works well for the parties' work, social and other obligations.
'70. . . . The Court finds that the current parenting plan does not need to be further adjusted, given the children's ages, matriculation at school, chosen activities, the parties' schedules, and each party's respective acknowledgement that the current plan works well. . . .
'72. The Court finds that, given the fact the parties have been able to work together in their children's best interests and have adapted well to the schedule set forth in the Temporary Orders dated February 4, 2010 and November 22, 2010, it is fair, reasonable and in the best interests of the children and both parents to continue the parenting plan as is. The Court further finds that each party agrees that the current parenting plan and custodial arrangement is in the children's best interests and works well for both parties.'
The judgment states only that the '[h]usband shall have parenting time with the minor children, every other weekend from Friday after school until Monday morning and each Tuesday evening over night until Wednesday morning.'
Both parties agree that the entry of this judgment, without any explanation to the contrary, extinguished the temporary order of November 22, 2010. Both parties further agree that the effect of the judgment, in the absence of mutual agreement, is that Gordon alone has the legal right to physical custody of the children during the entirety of all vacations and major holidays, subject to the ordinary weekly visitation schedule, and contrary to the judge's stated intention in his findings and rulings. Pitner argues that the judge therefore abused his discretion in failing to incorporate the temporary order of November 22, 2010, into the judgment.
A judge has significant discretion in formulating a parenting plan, and we will not disturb a judge's order absent an abuse of discretion. See Austin v. Austin, 62 Mass. App. Ct. 719, 722 (2004); B.B.V. v. B.S.V., 68 Mass. App. Ct. 12, 19 (2006); Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 486 & n.11 (2012); G. L. c. 208, § 28. There may be good reasons, consistent with the exercise of discretion, for the absence, in a final judgment, of a highly detailed order such as the November 22, 2010, temporary order. The omission from that judgment of any reference to the sharing of holiday and vacation time contradicts, however, the findings and rulings of the judge, and the judge's representations to the parties at the conclusion of trial. Under these circumstances, this inconsistency prevents us on review from being able to discern whether the judgment was intended to (1) foster the continued cooperation of the parties and agreement for shared parenting time, consistent with the judge's statements, findings, and rulings, (2) deny Pitner any additional time, or (3) some other outcome. Consequently, in the absence of any reasons expressed by the judge for this omission, the contradictory inferences that it creates compels us to vacate so much of the order denying Pitner's rule 59(e) motion as pertains to the parenting plan, and to remand the case for further proceedings on that issue consistent with this decision. The order and the judgment are otherwise affirmed.
Pitner also argues that the stipulation is a binding contract which must be honored. We do not reach this question because, in the case's current posture, there is no suggestion that the contract, if there is one, has been breached, or that that breach has been brought before a court. There is no such justiciable controversy before us. See generally Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 661 (1996).
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So ordered.
By the Court (Fecteau, Hanlon & Sullivan, JJ.),