Case Summary: Valerie R. Downing v. Harry B. Downing

Factual and Procedural Background

This appeal arises from cross actions for divorce in which judgments of divorce nisi were entered. The key facts and procedural posture as stated in the opinion are:

The wife was awarded custody of two minor children.
The husband, whose weekly income was about $109, was ordered to pay child support through the family court officer of the Probate Court: thirty dollars per week plus thirty percent of any income exceeding $120, up to a total weekly payment of eighty dollars, together with certain other payments not detailed in the opinion.
The judgments directed that the husband convey to the wife all his interest in the marital home, subject to a provision that, within one year after the emancipation of the younger child (born in May 1973) or upon sale of the marital home, the wife must pay the husband $4,000. From that $4,000 the husband was to pay the family court officer $2,500 described in the judgments as "arrearage owed as of May 8, 1978, for child support."
The judgments provided that if the husband had previously satisfied the arrearage in whole or in part, any excess payment would be returned to him.
The probate judge made findings of fact and issued the judgments. The husband appealed on several grounds addressed by the Appeals Court in this opinion.

Legal Issues Presented

Whether the probate judge's finding concerning the wife's employment and contributions during the marriage implied prejudice against the husband or otherwise improperly affected the disposition.
Whether the judge's factual finding that, since the 1976 separation, the wife supported the children "without any meaningful assistance from" the husband was supported by the evidence and whether that finding affected the support and property orders.
Whether the valuation and division of the marital real estate (including credit for the wife's family's contribution and the mortgage) and the order vesting title in the wife while providing the husband a $4,000 payment under stated conditions were within the judge's discretion under G.L.c. 208, § 34.
Whether the judge's finding that the husband stipulated to a $2,500 support arrearage as of May 8, 1978, was supported by the record, and if not, whether the matter should be remanded for determination of the correct amount of arrearage.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bianco v. Bianco, 371 Mass. 420, 422-423 (1976)	Cited in connection with consideration of the factors specified in G.L.c. 208, § 34 governing division of marital property.	Used to support the statement that the judge gave consideration to the statutory factors in dividing the marital property.
Rice v. Rice, 372 Mass. 398, 401-403 (1977)	Cited in connection with the statutory factors and principles governing property division under G.L.c. 208, § 34.	Applied as one of a group of authorities showing proper judicial consideration of statutory factors in the judge's property division.
King v. King, 373 Mass. 37, 40 (1977)	Cited with other cases on the exercise of judicial discretion in dividing marital property under the statute.	Referenced to show that division need not be a precise mathematical formula but is an exercise of judicial discretion.
Newman v. Newman, 11 Mass. App. Ct. 903 (1981)	Cited regarding consideration of statutory factors in property division under G.L.c. 208, § 34.	Included among authorities indicating the judge considered the statutory factors when allocating the marital home and other assets.
Melisi v. Melisi, 11 Mass. App. Ct. 1022, 1022-1023 (1981)	Cited in the same context as the other cases about application of G.L.c. 208, § 34 factors.	Relied upon with the other cited cases to support that the probate judge properly exercised discretion in dividing the marital property.
DuMont v. Godbey, 382 Mass. 234, 237-238 (1981)	Referenced as additional authority in the context of property division and judicial consideration of statutory criteria.	Noted as a further supporting authority that the judge considered the statutory factors in making property disposition decisions.
Brady v. Brady, 380 Mass. 480, 482-487 (1980)	Invoked by way of comparison concerning the presence or absence of a lien upon marital realty in the context of an award intended to satisfy arrearages.	The court contrasted the present order (which imposes no lien on the realty and only orders payment of arrears when the husband receives $4,000) with the circumstances discussed in Brady.

Court's Reasoning and Analysis

The Appeals Court reviewed the probate judge's findings and the resulting judgments and addressed the husband's several grounds of appeal in sequence. The court's analysis, as stated in the opinion, proceeds as follows:

On the judge's finding about the wife's employment and contributions during the marriage: the judge found the wife had been consistently employed, contributed toward mortgage obligations, and maintained obligations when the husband was unemployed. The Appeals Court perceived no implication of prejudice against the husband in that finding, and noted the wife did not contend that the husband failed to make available for family expenses pay or unemployment compensation received prior to the parties' separation on June 22, 1976. The court concluded the finding did not demonstrate judicial bias.
On the sufficiency of the husband's support since separation: the judge found that since the 1976 separation the wife had supported the children "without any meaningful assistance from" the husband. The record showed the husband mostly made $20/week payments (which, because the wife was receiving welfare, were effectively payments to welfare). The Appeals Court observed that compared to the wife's total weekly expenses the husband's contributions were not substantial. The judge increased the husband's weekly payment to $30 as of the date of the judgments; no argument was made that this rate was unreasonably high nor that the judge's view of prior contributions improperly influenced the property division under G.L.c. 208, § 34.
On valuation and division of the marital real estate: the judge's valuation of the property at $35,000, subject to a mortgage of about $13,000, was deemed warranted. The land on which the house was built came from the wife's parents; their contributions in land and work were reasonably valued at $6,000. After subtracting the mortgage and the in-kind contribution, a balance of $16,000 remained. The court found it reasonable for the judge to place title to the marital home in the wife (who would need it during the children's minority) and to award the husband a monetary share ($4,000 payable under specified conditions) rather than an immediate division of the property. The Appeals Court emphasized that division of such an asset need not be a precise mathematical operation but should be an honest exercise of judicial discretion, and it concluded the judge had given consideration to the statutory factors in G.L.c. 208, § 34 (citing several cases supporting that point). The court also noted that the order did not impose a lien on the marital realty but only directed payment of arrears from the husband's eventual $4,000.
On the finding of a stipulation of arrearage: the judge's final finding referred to a stipulation by the husband of a $2,500 arrearage as of May 8, 1978. At oral argument it was suggested that any such stipulation might have occurred during an unreported bench conference. The Appeals Court held that, as the record stood, the finding that the husband stipulated to the $2,500 arrearage was not supported by the evidence. Consequently, the court ordered that the case be remanded solely to determine the amount of the arrearage as of May 8, 1978. If the parties cannot agree on that amount, the court directed that a further hearing be held limited to that issue.
Final disposition: subject to resolving the arrearage issue and modifying orders to reflect the judge's findings on that point, the Appeals Court affirmed the judgments below.

Holding and Implications

Core Ruling: Subject to a determination of the amount of the support arrearage as of May 8, 1978, the judgments of the Probate Court are affirmed; the case is remanded solely on the issue of the amount of the arrearage.

Direct consequences for the parties

The wife retains custody of the two minor children and title to the marital home as ordered by the probate judge.
The husband remains obligated to pay child support under the structure set out in the judgments (thirty dollars per week plus thirty percent of income over $120 up to a maximum weekly payment of eighty dollars), and other payments ordered by the probate court remain in effect as stated in the judgments nisi.
When the conditional $4,000 payment to the husband becomes payable (within one year after the younger child's emancipation or upon sale of the house), the husband is to pay $2,500 of that sum to the family court officer to satisfy the arrearage described in the judgment unless the remand establishes a different amount or the arrearage has already been satisfied in whole or in part; any excess is to be returned to the husband under the judgment's terms.
If the parties cannot agree on the amount of arrearage as of May 8, 1978, the matter will be the subject of a further hearing limited to that issue.

Broader implications

The opinion affirms the probate judge's exercise of discretion in valuing and dividing the marital property and in structuring conditional payment rather than immediate partition of the home, consistent with prior authorities cited concerning G.L.c. 208, § 34. The Appeals Court did not announce a new rule of law; its decision remands only to resolve a factual deficiency in the record (the unsupported finding of a stipulation concerning the arrearage). The direct legal effect is limited to affirmance of the judgments subject to clarification and modification to reflect the determined amount of arrearage.

So ordered.

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VALERIE R. DOWNING vs. HARRY B. DOWNING.

In each of these cross actions for divorce, a judgment of divorce nisi was entered. The wife was awarded custody of two minor children. The husband, whose weekly income was about $109, was ordered to pay, through the family court officer of the Probate Court, thirty dollars a week plus thirty percent of any income of his exceeding $120, up to a total weekly payment of eighty dollars, plus certain other payments not here relevant. The judgments also directed that the husband convey to the wife all his interest in the marital home, subject to the provision that, within one year after the emancipation of the younger child or on the sale of the marital home, the wife must pay to the husband $4,000 from which he is to pay to the family court officer $2,500 "as arrearage owed as of May 8, 1978, for child support." It was further provided that if the husband had theretofore satisfied the arrearage in whole or in part, any excess payment was to be returned to the husband. The probate judge made findings. We discuss the several grounds on which the husband appeals.

1. The judge found that the wife, "consistently employed during . . . [the] marriage, contributed towards the mortgage obligations related to . . . [the] marital home, and maintained . . . [the] obligations" during periods when the husband was unemployed. We perceive no implication in this finding, and the wife does not contend, that the husband failed to make available for family expenses whatever pay or unemployment compensation he received prior to June 22, 1976, when the parties became separated. The finding does not indicate to us any prejudice on the part of the judge against the husband.

2. The judge found that, since the 1976 separation, the wife has been responsible for the support of the children "without any meaningful assistance from" the husband. The evidence indicates that, apart from not very large gifts to the children, the husband made payments of only twenty dollars each week for child support. Inasmuch as the wife was receiving welfare assistance of about sixty-six dollars a week, these payments were made to "welfare." Compared with the wife's total weekly expenses, the husband's payments were not substantial although, doubtless, they were "meaningful" from the husband's standpoint. The judge, in the judgments nisi, only increased the husband's weekly payments, as of the date of the judgments, to thirty dollars. It has not been argued that this rate was unreasonably high or that the judge's view of the significance of the husband's prior contributions influenced in any way the division of marital property under G.L.c. 208, § 34.

3. The judge was warranted in finding the marital real estate to be worth $35,000, subject to a mortgage of about $13,000. The land on which their house was built was contributed by the wife's parents. The contribution of the wife's family, in land and in work done on the house, reasonably had a value of $6,000. After the mortgage and the wife's family's contribution, there was thus a balance of $16,000. Of this the husband is to receive $4,000 from the wife, within one year after she sells the house or after the children (the younger was born in May, 1973) are emancipated. In the circumstances, the judge reasonably could determine that it was sensible to place title to the marital home in the wife who would need it during the minority of the couple's children, and to give to the husband only a money payment when the conditions for such a payment are satisfied. Division of such an asset need not proceed on any precise mathematical formula, but should be an honest exercise of judicial discretion. The judge's findings show that he gave consideration to each of the factors specified in G.L.c. 208, § 34, as appearing in St. 1977, c. 467. See Bianco v. Bianco, 371 Mass. 420, 422-423 (1976); Rice v. Rice, 372 Mass. 398, 401-403 (1977); King v. King, 373 Mass. 37, 40 (1977); Newman v. Newman, 11 Mass. App. Ct. 903 (1981); Melisi v. Melisi, 11 Mass. App. Ct. 1022, 1022-1023 (1981). See also DuMont v. Godbey, 382 Mass. 234, 237-238 (1981). The judge's order imposes no lien upon the marital realty, but merely orders payment of support arrears by the husband when he receives his $4,000. Compare Brady v. Brady, 380 Mass. 480, 482-487 (1980).

4. The judge's final finding refers to a stipulation by the husband of a support arrearage of $2,500 as of May 8, 1978. At the arguments, it was suggested that this stipulation may have occurred during an unreported bench conference. As the record stands, this finding of a stipulation is not supported by the evidence. The case must be remanded on the sole issue of the amount of the arrearage as of May 8, 1978. If the parties cannot agree on the amount, a further hearing must be held on that issue alone.

5. Subject to a determination of the issue referred to in the preceding paragraph and modification of the orders to reflect the judge's finding, the judgments below are affirmed.

So ordered.

DOWNING v. DOWNING