Sometimes, a Massachusetts Appeals Court Rule 1:28 Memorandum and Order (a/k/a “unpublished opinion”) addresses an issue or cluster of issues that make it noteworthy, despite its paucity of detail and lack of formal precedential value.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:
- The factor future opportunities in property division;
- Illiquidity as a factor of equitable distribution; and
- Intent in automatic restraining order violations.
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.
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.
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.