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Divorce Mediation Blog

Three Important Factors Converge With Unusual Clarity in the Appeals Court’s Heystek v. Duncan

Wednesday, January 18, 2017

Sometimes, a Massachusetts Appeals Court Rule 1:28 Memorandum and Order (a/k/a “unpublished opinion”) addresses an issue or cluster of issues that make it noteworthy, despite its paucity of detail and lack of formal precedential value. The Appeals Court’s Heystek v. Duncan is one of those cases, tackling 3 significant issues in understated but significant ways:

  1. The factor future opportunities in property division;
  2. Illiquidity as a factor of equitable distribution; and
  3. Intent in automatic restraining order violations.

Future Opportunities

A phrase search for M.G.L., ch. 208, §34’s “opportunities… for future acquisition of income and assets” in a data base will turn up many Massachusetts cases. But, they predominantly concern exclusion of trust interests as divisible marital assets, relegating them as “mere expectancies” that the court may nonetheless consider as a future economic opportunity.

Rare, however, is the appellate discussion of how strongly the trial court should weigh it, a topic approached part way, at least, by Heystek v. Duncan, a case in which the Appeals Court emphasized that with an established course of gifting from the husband’s mother, while not an enforceable right:

    …the foundational reality of the of the parties’ financial circumstances throughout their marriage was that their life-style relied to a significant degree on a fairly steady stream of such largess, and it would ignore that reality to anticipate that the husband would not continue to benefit from similar generosity following dissolution of the marriage. 

While in litigation, and in divorce mediation, we see the issue surface regularly, the focus and clarity of the statement is significant for its strength. The lack of factual detail limits the direct impact of the case on future deliberations, but one may certainly expect to see this kind of persuasive characterization in other cases.

Illiquidity

As a practical matter, the relative liquidity of asset distributions is a part of most divorce negotiations when there are diverse assets to divide. Most frequently, it arises in three contexts: closely held businesses, wherein disposable cash is scarce from which to fund a payout to the non-owner; cases in which a primary residence is the predominant asset; and where retirement funds present qualification, penalty and age/timing challenges. But, we recall few cases that broadly present illiquidity as an indicator of comparative “economically straitened circumstances". This window into the appellate panel’s thinking reflects a sophisticated view of family economics that is refreshing.

Rule 411

Supplemental Probate Court Rule 411, the so-called automatic restraining order, has precious little case law development. In Heytek v. Duncan, the wife removed $40,000 from the marital estate without the benefit of an authorizing order,or agreement. Nor could she excuse the withdrawal as a permitted usage (legal fees, business expense or investment cost), under the rule’s parameters. The husband sought enforcement by civil contempt and, in defense, wife argued that she did not intend to violate the order.

Finding no requirement of intent in a civil enforcement action, the Appeals Court upheld the trial judge’s contempt adjudication. With the order deemed unequivocal and the violation undoubted, the judge and the Appeals Court deemed wife's state of mind immaterial. While this unpublished opinion is not precedent, it surely is a warning shot to those who pay too little heed to the automatic restraining order, including counsel.

 

A Prenup Head Shaker from the Appeals Court: Stacy v. Stacy

Wednesday, January 04, 2017

In a Rule 1:28 Memorandum and Order, a panel of the Massachusetts Appeals Court ruled that a pre-marital agreement applied to the death of a spouse, based on contract language that described its scope. Here is that term, fully as reported in the opinion, but broken down by clause:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G.L., c. 208, §34, as amended, in the event of divorce.

Yet, here is how the Appeals Court must have read it:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters[.]

    [ ]

    [ ]

The appellate panel tossed out two of the three clauses, which spoke only of divorce, consigned as surplusage, unworthy of consideration, despite the “agreement’s caption referring to G.L., c. 208, §34”, the divorce property division statute.

Now,, let’s cast the provision in the way that is consistent with the maxim that words in a contract are to be accorded meaning within customary everyday usage, with the law of pre-marital agreements that requires that waivers be explicit and the highly probable intent of the parties:

    … a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, in the event of divorce [,] including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G.L., c. 208, §34, as amended[.]

Do you think that the parties’ might have used the word “death” somewhere, if they intended to cover that contingency? Or “estate”? Bequest”? Maybe, “inheritance”? Even “survivor”?

The result is that a widow, with no hint of pending divorce, or even marital strain, must now answer to her sister-in-law (the estate’s personal representative) for “several furnishings and personal belongings” that she removed from her marital home, in part, for alleged violation of a premarital agreement that was to all appearances, extinguished by her husband’s death.

We have no quarrel with the Appeals Court remand on the grounds that a violation of G. L. c. 190B, § 3-709 may have occurred, or that the alleged facts were also sufficient to state claims of a conversion, an unjust enrichment, and a constructive trust. But the Appeals Court is makes unnecessary mischief by inferring intent that doesn’t appear in, or even between the lines of, the contract.

 



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