Tiffany Dinota v. Larry Dinota, Jr.

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

24-P-715

TIFFANY DINOTA

vs.

LARRY DINOTA, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Tiffany DiNota (wife), appeals from a

judgment of divorce nisi (judgment) entered by a judge of the

Probate and Family Court. She contends that the judge erred in

dividing the marital estate, awarding physical custody of the

child to the defendant, Larry DiNota, Jr. (husband), and

granting the husband a divorce on the grounds of cruel and

abusive treatment.1 We affirm.

1The wife claims that the judgment was obtained through
fraud on the court perpetuated by the husband and his counsel
during trial. She did not, however, file a motion for relief
from judgment for reason of fraud, misconduct, or
misrepresentation pursuant to Mass. R. Dom. Rel. P. 60(b)(3).
We decline to consider this issue raised for the first time on
appeal. See Picciotto v. Chief Justice of the Superior Ct., 446
Mass. 1015, 1016 n.2 (2006).
Background. We summarize the relevant facts found by the

judge, supplementing them with undisputed evidence in the

record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009). The

parties were married on September 8, 2015, and had one child

together. They last lived together in the marital home on or

around October 27, 2020. The wife filed for divorce on February

24, 2021, and the husband filed a counterclaim for divorce on

the grounds of cruel and abusive treatment. The judge found

that this was a short-term marriage. The wife was employed full

time throughout the marriage as an engineer, and her total gross

weekly income was $2,791.49 per week or $145,157.48 per year.

The wife was primarily responsible for managing the household's

finances and paying its bills, and the husband was financially

dependent on her. The husband had an associate's degree and was

unemployed, having unsuccessfully sought employment in retail in

2017. At the time of the trial, he had returned to school to

earn his bachelor's degree.

The husband was the primary caregiver for the child after

the wife returned to work following maternity leave and was

responsible for maintaining the marital home. After the parties

separated, the husband continued as a caregiver promoting the

child's development, including by playing with him, teaching him

how to read and write, and encouraging him to develop social

relationships. The judge credited the husband's testimony that

2
the child has his "undivided attention" and is "the sole focus"

of "everything that [he is] doing with [his] life."

Both parties were generally healthy, despite the husband

having struggled with his mental health and sobriety in the

past. The judge found these issues had no significant impact on

his ability to work or care for the child. The husband was

sober since December 26, 2017. While the husband's alcohol use

was hard on the wife, she was not fully supportive of his

sobriety; the judge credited the husband's testimony that the

wife repeatedly told him that she "liked [him] better" when he

was drinking.

Both parties regularly and heavily consumed cannabis; when

the wife encouraged the husband to grow it in the marital home

for themselves, the husband began to grow cannabis in the

basement with the goal of starting a commercial cultivation

operation with his brother. The enterprise failed, and he

eventually stopped working towards it. The wife paid for the

growing supplies, recommended new strains for the husband to

grow, and consumed the home-grown cannabis herself, including

before driving herself to work and while breastfeeding the

child. The judge credited the husband's testimony that he no

longer consumed cannabis at the time of the trial. The parties

also used psychedelic drugs while attending music festivals.

3
The judge found that the parties abused one another during

the marriage. Generally, the judge credited the husband's

claims that the wife was verbally, physically, emotionally and

financially abusive, as well as the wife's claims that the

husband was verbally and physically abusive. The judge credited

the wife's testimony that the husband's abuse of her increased

as the marriage progressed, and is what ultimately led her to

file for divorce and seek an abuse prevention order in October

2020.2 The judge credited the husband's testimony that the wife

began to physically abuse him shortly after the marriage began,

and that she at times kicked him, knocked him down, and struck

him. The judge also credited the husband's testimony that, in

March 2019, the wife pushed him down and caused him to split his

head on a coffee table, and that on another occasion in the

summer 2020, the wife attacked him with a kitchen knife.

After a three-day bench trial, the judge issued a judgment

of divorce nisi on May 15, 2024. The judge granted the wife a

divorce on the grounds of irretrievable breakdown of the

marriage, and the husband a divorce on the grounds of cruel and

abusive treatment. As relevant here, the judgment provided

that: the parties share legal custody of the child; the husband

The wife moved to vacate the order after approximately
2

twelve days.

4
was awarded physical custody of the child subject to parenting

time with the wife; the wife was ordered to pay the husband $556

per week in child support;3 neither party was ordered to pay

spousal support to the other; and the wife was ordered to

maintain and pay for the child's health, dental, and vision

insurance, as well as the husband's, unless and until such

insurance became available to him through employment. The

parties were also ordered to equally share the cost of the

routine out-of-pocket and uninsured medical, dental, and vision

expenses for the child after the husband paid the first $250 of

each year. The wife was awarded possession of the marital home

if she refinanced the property and bought out the husband's

interest in it. The parties were awarded ownership of their

respective bank accounts. The husband was awarded fifty percent

of the wife's retirement funds as of the first date of the

trial. The wife was ordered to pay $1,357.50 for her share of

debts against the husband's Amazon credit card.

The judge found that both parties made unilateral decisions

with respect to the child's housing, health care, and education,

without the consent of the other. The wife was found in

contempt for vaccinating the child against COVID-19 without the

3 The wife does not challenge the award of child support on
appeal. See Mass. R. A. P. 16 (a) (9) (A).

5
husband's consent;4 the husband was found in contempt for

enrolling the child into a preschool program without the wife's

consent.

Discussion. 1. Division of the marital estate. The wife

argues that the judge erred in dividing the marital estate.5 We

disagree. "We review the judge's findings to determine whether

she considered all the relevant factors under G. L. c. 208,

§ 34, and whether she relied on any irrelevant factors."

Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). "We then

determine whether the reasons for [her] conclusions are

'apparent and flow rationally' from [her] findings and

rulings.'" Baccanti v. Morton, 434 Mass. 787, 790 (2001),

quoting Williams v. Massa, 431 Mass. 619, 631 (2000). "The

weight to be accorded each of the § 34 factors in a particular

case is committed to the judge." Early v. Early, 413 Mass. 720,

727 (1992), quoting Ross v. Ross, 385 Mass. 30, 37 (1982). "We

will not reverse a judgment with respect to property division

unless it is plainly wrong and excessive" (quotation and

citation omitted). Zaleski, supra at 245. See Rice v. Rice,

4 The wife does not challenge the finding of contempt on
appeal. See Mass. R. A. P. 16 (a) (9) (A).

5 The wife's arguments that the judge erred in excluding
certain evidence of the husband's finances are unpreserved, see
Mass. G. Evid. § 103(a) (2025), and we therefore decline to
address them for the first time on appeal. See Abraham v.
Woburn, 383 Mass. 724, 726 n.1 (1981).

6
372 Mass. 398, 401 (1977) (judge has broad discretion to

equitably divide marital property).

Here, the judge considered all the statutory factors in

dividing the marital estate. She found that the parties equally

contributed to the marriage: the wife was the primary wage

earner and the husband, who was and is the primary caretaker,

was financially dependent on the wife.6 Further, the wife does

not allege that any of the judge's findings of fact are clearly

erroneous.7 See Adoption of Querida, 94 Mass. App. Ct. 771, 777

(2019) ("As it is within the purview of the judge to weigh the

evidence, assess the credibility of witnesses, and, accordingly,

make findings of fact, the judge's subsidiary findings will

remain undisturbed unless shown to be clearly erroneous"). The

judge thus did not err in dividing the marital estate.8

6 The judge credited the wife's testimony that the husband's
family made financial contributions to the marriage, including
$50,000 for a down payment for the marital home and a $10,000
loan, but found there was insufficient evidence "with respect to
any future inheritances or other windfalls" for the purposes of
dividing the marital estate.

7 To the extent that the wife argues that the judge erred in
crediting the husband's testimony, credibility is
"quintessentially the domain of the trial judge" in a bench
trial, and the judge's "assessment is close to immune from
reversal on appeal except on the most compelling of showings"
(citation omitted). Prenaveau v. Prenaveau, 81 Mass. App. Ct.
479, 496 (2012). No such showing was made here.

8 The wife argues that the husband wasted marital assets and
failed to participate in discovery, thereby obfuscating the

7
2. Physical custody. The wife, disagreeing with the

judge's weighing of the evidence, next argues that the judge

erred in awarding physical custody of the child to the husband.9

We are not persuaded. We review custody determinations for an

abuse of discretion. See Schechter v. Schechter, 88 Mass. App.

Ct. 239, 245 (2015). "In custody matters, the touchstone

inquiry [is] . . . what is 'best for the child.'" Hunter v.

Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439

Mass. 834, 840 (2003). See G. L. c. 208, § 28. "The

determination of which parent will promote a child's best

interests rests within the discretion of the judge . . . [whose]

findings . . . 'must stand unless they are plainly wrong.'"

Hunter, supra, quoting Custody of Kali, supra at 845. See

Schechter, supra at 245 ("The judge's factual findings must be

left undisturbed absent a showing that they are plainly wrong or

clearly erroneous"). "[T]he judge's assessment of the weight of

the evidence and the credibility of the witnesses is entitled to

deference." Schechter, supra, quoting Custody of Two Minors,

valuation of assets. Because neither issue was raised or argued
in the Probate and Family Court, they are not properly before
us, and we decline to address them for the first time on appeal.
See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

9 The wife's argument that the judge incorrectly excluded
evidence of the child's exposure to the husband's cannabis
cultivation is unpreserved, see Mass. G. Evid. § 103(a) (2025),
and we therefore decline to address it for the first time on
appeal. See Abraham v. Woburn, 383 Mass. at 726 n.1.

8
396 Mass. 610, 618 (1986). "[The] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made 'a clear error of judgment in weighing' the

factors relevant to the decision." Schechter, supra, quoting

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

Here, there was no error in the judge's determination that

the award of physical custody to the husband was in the child's

best interests. As the child's primary caregiver, the husband

was active in promoting the child's growth and development. By

contrast, the evidence was that the mother's judgment with

respect to the child's bests interests was questionable. This

included her consumption of cannabis while breastfeeding and her

unwillingness to sacrifice partying for the benefit of a

pregnancy. The wife's "dissatisfaction with the judge's

weighing of the evidence and [her] credibility determinations"

is "no basis for disturbing the judge's view of the evidence."

Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). There was

no clear error in awarding physical custody of the child to the

husband.

3. Cruel and abusive treatment. The wife claims that the

judge erred in granting husband a divorce on the grounds of

cruel and abusive treatment pursuant to G. L. c. 208, § 1,

because the judge failed to consider evidence of past abuse as

well as the totality of the circumstances of the relationship

9
between the parties. Assuming without deciding that the judge

was obligated to consider these two factors in awarding the

divorce on these grounds, we disagree, as the judge made

findings of fact with respect to occasions of abuse that

occurred throughout the marriage -- of the husband by the wife,

and of the wife by the husband -- and the history of the

relationship between the wife and the husband, crediting and

discrediting evidence from both parties. Moreover, because

evidence of even "a single act of cruelty may constitute

sufficient ground for divorce" on the grounds of cruel and

abusive treatment, Collis v. Collis, 355 Mass. 25, 27 (1968),

the findings of abuse support the judgment. See Mooney v.

Mooney, 317 Mass. 433, 434-436 (1944) (husband's striking,

10
knocking down, and beating wife sufficient to grant divorce on

grounds of cruel and abusive treatment).10

Judgment of divorce nisi
affirmed.

By the Court (Blake, C.J.,
Henry & Hershfang, JJ.11),

Clerk

Entered: December 19, 2025.

10The parties' requests for attorney's fees are denied.
See Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1628
(2019) (request for attorney’s fees requires citation to
authority in brief).

11 The panelists are listed in order of seniority.

11