Zanauskas v. Zanauskas

By the Court (Green, Rubin & Hanlon, JJ.), Clerk

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).

The husband appeals from a judgment nisi, challenging certain of the trial judge's findings as internally inconsistent or otherwise erroneous, and contending that the division of marital property and arrangements for custody and visitation of the parties' children constitute an abuse of discretion. We discern no cause to disturb the judgment, and affirm.

As a threshold matter, we reject the husband's challenges to findings of fact nos. 39, 40, and 41. Contrary to the husband's assertion, the judge's finding (no. 39) "that there was a pattern of serious incidents of domestic violence by [h]usband toward [w]ife and that the children were exposed to his abusive behavior" was not inconsistent with his finding (no. 34) that "[t]here were also occasional incidents of physical abuse by [h]usband toward [w]ife during the marriage." As the wife observes in her brief, the judge also found (in finding no. 32) that the "[h]usband had a history of alcohol abuse during the marriage, and was frequently verbally and emotionally abusive to [w]ife during the marriage." That the husband's physical abuse of the wife was occasional does not derogate from the judge's conclusion that, considered together with the husband's frequent verbal and emotional abuse, there was a pattern of abuse directed toward the wife. Taken together with the judge's other findings concerning specific episodes of abuse, and the husband's conduct furnishing context for those episodes, finding no. 39 is supported by the evidence, is consistent with the judge's findings taken as a whole, and is not clearly erroneous.

As explained in the judge's memorandum of decision, finding no. 39 warrants application of a rebuttable presumption, under G. L. c. 208, § 31A, that shared legal or physical custody is not in the children's best interests. In the absence of evidence to rebut the statutory presumption, we discern no error of law or abuse of discretion in the judge's order awarding sole physical and legal custody of the children to the wife. We likewise discern no abuse of the judge's considerable discretion in the visitation schedule established in the judgment.

We also reject the husband's challenge to the division of the marital estate. "Faced with a battle of experts, the fact finder may accept one reasonable opinion and reject the other. . . . Or the judge may reject expert opinion altogether and arrive at a valuation on other evidence. . . . Unless clearly erroneous, the trial judge's determination of value will stand." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989). The judge's determination of value, at approximately the average between the appraisals submitted by the parties' respective experts, was well within the judge's considerable discretion. See Ross v. Ross, 50 Mass. App. Ct. 77, 82 (2000).

Finally, we reject the husband's contention that the judge displayed improper bias against the husband, for substantially the reasons explained by the wife in her brief at pages twenty-two to twenty-three.

Though we conclude that the husband's challenges to the judgment furnish no cause to disturb the judgment, in the exercise of our discretion we decline to award appellate attorney's fees to the wife.

Judgment affirmed.

By the Court (Green, Rubin & Hanlon, JJ.),

Clerk Entered: October 1, 2015.