Eleutherios T. Houvouras v. Phyllis M. Houvouras.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-625

ELEUTHERIOS T. HOUVOURAS1

vs.

PHYLLIS M. HOUVOURAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial on remand in the Probate and Family

Court, Eleutherios T. Houvouras (husband), appeals from a

judgment enforcing his prenuptial and postnuptial agreements

with Phyllis M. Houvouras (wife). We affirm.

Background. Two days prior to their wedding on July 4,

1987, the husband and wife signed a prenuptial agreement and in

the years that followed amended that agreement five times.

Neither spouse worked during the marriage, and the parties each

had two adult children from previous marriages. In 2015, the

1Eleutherios T. Houvouras died during the pending appeal.
Estate Administrators Theodore N. Houvouras and Katina P.
Houvouras obtained permission of this court to be substituted
for the deceased. We continue to refer to the husband and wife
as the parties.
husband suffered two strokes and after returning home from a

rehabilitation facility required twenty-four hour care for a few

months.

The following year, in March 2016, the husband moved to New

Jersey with his ex-wife and two children. In June 2016, the

wife filed a complaint for separate support, and the husband

counterclaimed. One month later, the husband filed a complaint

for divorce and claimed the prenuptial agreement and postnuptial

amendments were "invalid and unenforceable." A judge of the

Probate and Family Court consolidated the complaints for trial.

On December 4, 2017, following a trial, the judge issued a

judgment of divorce nisi and made extensive findings of fact.

The judge carefully examined the prenuptial agreement and the

five postnuptial amendments and concluded that the terms were

fair and reasonable. After specifically addressing the

"significant change" in the husband's health status and

increased medical needs following the last amendment, the judge

concluded that, despite this significant change, enforcement of

the parties' prenuptial and postnuptial agreements would be fair

and reasonable.

The husband appealed that judgment and claimed that his

necessary expenses, including healthcare costs, impaired his

ability to meet his contractual obligations to the wife. This

court remanded the matter primarily to revisit the calculation

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of the husband's weekly expenses, with particular emphasis on

medical expenses. See Houvouras v. Houvouras, 96 Mass. App. Ct.

1109 (2019).

On remand, the judge conducted another trial over five days

and focused on the husband's expenses. In meticulous and

detailed findings, the judge found that the husband, age ninety-

seven, "despite his medical issues," "has the clear ability to

comply with his contractual obligations" to his wife. The judge

also credited the testimony of the wife's expert on health

insurance claims and ordered, among other things, that the

husband comply with the agreements. In part, the judge reasoned

that the husband did not require twenty-four hour care, and his

"failure to make reasonable efforts to avail himself of the

benefits of his health care coverage is the primary reason" that

he lacked sufficient funds to pay alimony as agreed. The

husband now appeals from that judgment as well as the denial of

his motion for relief from judgment and the denial of his motion

to alter and amend the judgment.

During the pendency of this appeal, on a motion by the

wife, the trial judge imposed an appeal bond in the amount of

$220,000, representing the amount of unpaid alimony following

the trial on remand. The husband never satisfied that bond and

sought relief from a single justice of this court. After the

single justice denied relief, the husband filed a notice of

3
appeal. The appeal from the single justice decision has been

consolidated with the appeal from the decisions of the Probate

and Family Court.

Discussion. 1. Findings on necessary healthcare. "Upon

appeal, we accept a trial judge's findings of fact unless they

are clearly erroneous and do not review questions of fact if any

reasonable view of the evidence and the rational inferences to

be drawn therefrom support the judge's findings" (quotation and

citations omitted). Martin v. Simmons Props., LLC, 467 Mass. 1,

8 (2014). "We uphold the findings of a judge who saw and heard

the witnesses unless we are of the definite and firm conviction

that a mistake has been made" (quotation and citations omitted).

Id. Without a specific citation to the record, the husband

contends that the trial judge found in the first trial "that he

needed 24-hour [healthcare] assistance" and in the remand trial

"abused [her] discretion in reversing course" without any

meaningful explanation. We disagree.

The record does not support the contention that the judge

reversed course or otherwise abused her discretion. In her

findings from the first trial the judge indicated that the

husband initially received twenty-four hour care that tapered to

more limited care: "Upon returning to the marital home [from a

rehabilitation facility], Husband received 24-hour care. For

several weeks, a physical therapist, occupational therapist, and

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a nurse came to the marital home to care for Husband.

Commencing in August 2015, Husband no longer had overnight

aides." The wife later hired certified nursing assistants to

provide care "throughout most of the day." These findings are

consistent with the judge's findings following the trial on

remand: "For a few months after his return [from a

rehabilitation facility] Husband received twenty-four (24) hour

care at the former marital home." Thus, we do not see any

inconsistency in these findings or any clear error.

We also disagree with the husband's premise that the judge

was bound by her findings from the first trial. When remanding

the case, this court did not restrict the judge's consideration

of the evidence in a second trial. Also, during the second

trial, the judge heard conflicting evidence on the need for

twenty-four hour care. The husband's expert, a rehabilitation

counselor, testified that twenty-four hour care was necessary,

but the wife's expert, a neurologist, testified that the husband

had "intermittent needs for assistance during the day" and "does

not require round-the-clock care." The judge did not credit the

testimony of the husband's expert and concluded that he "did not

have a full understanding" of the husband's "acts of daily

living" and developed a life care plan that was "largely

speculative." The judge credited the testimony of the wife's

expert and concluded, "while Husband may desire or benefit from

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around-the-clock care, it is not a medical necessity." "The

judge's evaluation of competing expert testimony involved an

assessment of credibility and weight, both of which were within

the province of the judge." FOD, LLC v. White, 99 Mass. App.

Ct. 407, 414-415 (2021). See North Adams Apartments Ltd.

Partnership v. North Adams, 78 Mass. App. Ct. 602, 607 (2011)

("Deference is also given to the trial judge's credibility

assessments of experts"). We discern no abuse of discretion.

See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Health insurance claims expert. The husband next

contends that the court erred in qualifying the neurologist

hired by the wife as an expert on health insurance claims. "A

trial judge has wide discretion to qualify an expert witness and

to decide whether the witness's testimony should be admitted."

Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). "The

crucial issue, in determining whether a witness is qualified to

give an expert opinion, is whether the witness has sufficient

education, training, experience and familiarity with the subject

matter of the testimony" (quotations and citations omitted).

Id. "The admission of expert testimony will be reversed only

where it constitutes an abuse of discretion or other error of

law." Id. We discern no abuse of discretion or error of law.

Here, the witness testified that he was a medical doctor

specializing in neurology with formal education in "health

6
insurance" as part of his residency training. His background

included treating over 10,000 stroke victims as well as

conducting research at the National Institute of Health about

strokes and neural regeneration. His practice included

developing patient care plans to manage and treat the

consequences of a stroke. He also did research about providing

cost-effective care to patients through Medicare. As a resident

and fellow, he learned "to understand what insurance will cover

and won't cover." He further testified that without such

knowledge, "you cannot otherwise, in today's day and age, take

care of patients unless you understand how insurance claims

work." In his role as a practicing physician, he needed to

"understand whether a procedure is covered or not because it

will make a difference" in treatment. As an example, he said

that if a claim is denied, he will engage in "peer to peer"

review with an insurance company representative, most often a

neurologist, and discuss the treatment options. He also worked

as a healthcare fraud investigator on false health insurance and

Medicare claims. Based upon this testimony, the judge had a

"reasonable basis" to qualify the expert, and we discern no

error. Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990).

3. Evidence at remand trial. Without any citation to the

record showing instances where the judge specifically excluded

evidence, the husband claims that the trial judge prevented him

7
from presenting evidence of his "actual medical condition." "An

issue not raised or argued below may not be argued for the first

time on appeal." Rabinowitz v. Schenkman, 103 Mass. App. Ct.

538, 542 (2023), quoting Century Fire & Marine Ins. Corp. v.

Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2

(1989).

Even if considered, the claim lacks any support in the

record. The husband's contention that the judge generally

excluded such evidence or failed to consider his medical

condition at the time of trial is belied the volume of evidence

presented on this topic as well as by the judge's extensive

findings of fact. For example, the judge heard testimony from

the husband, his medical expert, his certified public

accountant, and his children. As the judge summarized in her

findings, she considered this testimony along with 176 exhibits,

including 106 exhibits from the first trial, and she considered

the parties' stipulation of uncontested facts from the first

trial. The judge also noted the central focus of the remand

trial: "[T]he Court on remand reviewed the Husband's reasonable

living and health-related expenses, especially given his

disability, and assess[ed] whether or not he can pay his own

expenses if the Postnuptial agreement is enforced." At bottom,

the judge gave the parties a full and fair opportunity to

present evidence supporting their respective positions and made

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findings that were unfavorable to the husband's contentions. We

discern no error.

4. Appeal bond. Finally, the husband asserts that the

judge erred in ordering him to post an appeal bond without an

evidentiary hearing. Given our consideration of the appeal

despite the husband's failure to post the bond as ordered, we

conclude that this claim is moot. See DiMasi v. Secretary of

the Commonwealth, 491 Mass. 186, 190 (2023) (issue moot where no

actual controversy remains or party claiming grievance ceases

having personal stake in outcome); Rasten v. Northeastern Univ.,

432 Mass. 1003, 1003 (2000), cert. denied, 531 U.S. 1168 (2001)

(appeal moot where "hearing that [petitioner] sought to have

continued took place as scheduled").2 Accordingly, the appeal

2 We need not, and do not, reach the new claims raised by
the husband in his reply brief. See Spinosa v. Tufts, 98 Mass.
App. Ct. 1, 16 (2020).

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from the orders of the single justice concerning the appeal bond

is dismissed as moot.

Judgment affirmed.

Orders denying motions for
relief from judgment and to
alter and amend judgment
affirmed.

By the Court (Ditkoff,
Singh & Hodgens, JJ.3),

Clerk

Entered: September 20, 2024.

3 The panelists are listed in order of seniority.

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