Jones v. Jones

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21-P-655 Appeals Court

DYLAN JONES vs. JULIANA JONES.

No. 21-P-655.

Essex. September 12, 2022. - September 6, 2023.

Present: Desmond, Sacks, & D'Angelo, JJ.

Divorce and Separation, Division of property, Amendment of
judgment. Trust, Irrevocable trust, Beneficiary,
Distribution, Trustee's discretion, Vested interest. Gift.
Value.

Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on March 2, 2017.

The case was heard by Theresa A. Bisenius, J.

Carolyn Van Tine for the wife.
W. Sanford Durland, III, for the husband.

SACKS, J. Juliana Jones (wife) appeals from an amended

judgment of divorce nisi (divorce judgment), issued by a judge

of the Probate and Family Court after a three-day trial in

September 2019, that, among other things, equally divided the

marital estate between her and Dylan Jones (husband). The wife
2

argues that it was error to include in the marital estate for

purposes of equitable distribution under G. L. c. 208, § 34, her

interests in the following assets that originated in gifts from

her mother: (1) the Juliana Jones Irrevocable Trust (JJIT or

trust); (2) certain real property in Michigan; and (3) a

particular certificate of deposit issued by UBS Financial

Services Inc. (UBS CD). She argues that her interest in the

JJIT is too speculative to constitute marital property, and she

contends that all three assets were gifts to her and should not

have been treated as marital property. The wife also argues

that the judge, in determining the amount the wife was required

to pay to the husband to offset the property she retained as

part of the equitable distribution, abused her discretion by not

accounting for market fluctuations and tax consequences, as the

wife requested in her motion to alter or amend the original

judgment of divorce nisi. We affirm the amended judgment.

Background. We summarize the trial judge's relevant

findings, supplementing them with undisputed facts in the

record, and reserving other facts for later discussion. See

Pierce v. Pierce, 455 Mass. 286, 288 (2009). The parties were

married in Michigan in August 1998, and the husband filed a

complaint for divorce in Massachusetts in March 2017. The

parties had two children together during the marriage (born in

1999 and 2001). During the marriage, both parties were employed
3

outside the home, and they contributed equally to raising the

children.

The wife's mother made a variety of financial gifts and

contributions throughout the years, including, but not limited

to, (1) settling a trust for the wife's benefit (the JJIT),

(2) gifting substantial funds that were deposited into the UBS

CD, and (3) granting the wife a ninety-nine percent interest in

a limited liability company (PHR II) that holds title to the

marital home and a one-third interest in real property located

in Michigan. The wife's mother played a significant role in

shaping the marital lifestyle and financial expectations:

"The [wife's mother] showered the family with gifts,
whether monetary or experiential. [She] created a limited
liability company which purchased the marital home and paid
for its associated real estate taxes and major
repairs/renovations. The parties did not have to budget to
meet those expenses and instead put those funds towards
frequent travel, summer camp and a lifestyle they would not
have otherwise been able to afford. The wife always knew
that there was additional money available to meet the
family's needs and whims, which she used to supplement
their lifestyle. But for [the wife's mother's] generosity
and this money, the parties would not have been able to
maintain the lifestyle they did on their income from
employment alone. [The wife's mother] gifted the funds
during the marriage and the family enjoyed that lifestyle
throughout the marriage. This was not a situation where,
as the wife attempted to maintain, the funds were
completely segregated and never accessed by the parties."

The parties "contributed to retirement only minimally,

likely due to [the] wife's anticipated inheritance and the
4

significant gifts the parties received during the marriage."1

Similarly, the judge found that the parties "did not save

sufficiently during the marriage" to pay the children's college

costs. The judge emphasized that the financial accounts in the

wife's name were "utilized throughout [the] marriage . . . [and]

were woven into the fabric of the marriage." The judge

determined that, "[g]iven the length of the marriage and the

parties' equal contribution, it [was] not equitable for these

assets to be excluded from the marital estate."

Neither party requested alimony, and the judge found that

"in lieu of alimony, an assignment of the marital estate will

enable each party to support themselves and their children,

while maintaining the marital lifestyle." To that end, the

divorce judgment provided, in relevant part, that the wife shall

(1) retain, among other things, her interests in the JJIT and

PHR II; (2) transfer sixty percent of the UBS CD to the husband;

and (3) to effectuate an equal division of assets, pay to the

husband, "[a]s property division and not as an award of alimony,

. . . the total sum of $1,173,166.89," over a period of ten

years, in annual installments, with interest. The judge

explained that "[w]ith the husband's share of the property

1 The wife, for example, reported two individual retirement
accounts (IRAs) valued at a total of $30,562.26, but "ha[d] not
saved toward retirement in any meaningful way otherwise."
5

division, it [will be] possible for him to maintain the

lifestyle of the marriage and reasonable for him to contribute

towards college expenses." The present appeal by the wife

followed.

Discussion. 1. The JJIT. In 2015, the wife's mother

established an irrevocable grantor retained annuity trust

(GRAT), a vehicle for transferring money while avoiding Federal

gift taxes. See Freedman v. Freedman, 445 Mass. 1009, 1009

(2005). Upon the annuity termination date,2 the GRAT assets

remaining after the payment of the annuity were to be divided

into equal shares and placed in separate trusts for the wife and

her brother. The judge found that the wife's remainder interest

in the GRAT accrued during the marriage and was a "completed

gift." In March 2018 (during the pendency of the divorce

proceedings), the wife's separate trust (the JJIT) was funded

with 22,905 shares of Bank of Nova Scotia common stock from the

GRAT. The JJIT is governed by Michigan law and managed by an

independent trustee.3 Funds from the JJIT were used to pay

2 The annuity termination date fell on the second
anniversary of the date on which the assets were first
transferred to the original trust.

3 The trust provides that Michigan law "govern[s] [its]
validity, construction and all rights and obligations" set forth
therein, and that the trustee "shall have all powers conferred
by Michigan law, including all powers granted under Michigan
Statutes sections 700.7816 through 700.7819."
6

Federal and Michigan State taxes in June 2019; however, at the

time of trial in September 2019, the wife had not received any

outright distributions from the trust. The judge found that the

value of the JJIT was $1,285,263.27, as of July 2019.4

One of the central disputed issues at trial was whether the

wife's interest in the JJIT was includable in the marital estate

for purposes of equitable distribution under G. L. c. 208, § 34.

The judge found that although the JJIT is a "discretionary

trust, with a spendthrift provision," "the wife's interest in

the JJIT is a fixed and enforceable property right" that is

includable in the marital estate because the wife is "entitled

to the whole trust property," her "share is not susceptible to

reduction, . . . and the primary intent of the trust is" to

benefit the wife. The wife contends that this was error,

asserting that her interest in the JJIT is a mere expectancy and

is thus too remote and speculative for inclusion in the marital

estate. We are unpersuaded.

"A party's estate for purposes of equitable distribution

under G. L. c. 208, § 34, 'includes all property to which a

party holds title, however acquired.'" Levitan v. Rosen, 95

Mass. App. Ct. 248, 253 (2019), quoting Pfannenstiehl v.

4 This figure comprised the market value of the 22,905 Bank
of Nova Scotia stock shares ($1,222,668.90) and cash
($62,594.37).
7

Pfannenstiehl, 475 Mass. 105, 110 (2016). "Because we are not

'bound by traditional concepts of title or property' in

considering whether a particular interest is to be included in

the marital estate, we 'have held a number of intangible

interests (even those not within the complete possession or

control of their holders) to be part of a spouse's estate for

purposes of [G. L. c. 208,] § 34'" (citation omitted).

Pfannenstiehl, supra at 111. "Whether a trust may be included

in the . . . marital estate requires close examination of the

particular trust instrument to determine whether the interest is

a 'fixed and enforceable' property right, . . . or 'whether the

party's interest is too remote or speculative' to be included."

Levitan, supra, quoting Pfannenstiehl, supra at 111-112. "The

question turns 'on the attributes' of the specific trust at

issue, . . . [requiring] evaluation of the facts and

circumstances of each case." Levitan, supra, quoting

Pfannenstiehl, supra at 112.5

a. Attributes of the trust. Our inquiry thus begins by

examining the "attributes" of the JJIT. Levitan, 95 Mass. App.

5 "If an interest in a trust is determined after such
examination to be speculative or remote rather than fixed and
enforceable, and thus more properly characterized as an
expectancy, the interest is to be considered under the G. L.
c. 208, § 34, criterion of 'opportunity of each [spouse] for
future acquisition of capital assets and income.'" Levitan, 95
Mass. App. Ct. at 253, quoting Pfannenstiehl, 475 Mass. at 112.
8

Ct. at 253, quoting Pfannenstiehl, 475 Mass. at 112. Although

Massachusetts law governs our ultimate determination whether the

wife's trust interest may properly be included in the marital

estate under § 34, we look to Michigan law when examining the

trust to ascertain the nature of the wife's interest therein.

See Levitan, supra at 251, 253.6 "When interpreting the meaning

of a trust, [we] must ascertain and abide by the intent of the

settlor." In re Miller Osborne Perry Trust, 299 Mich. App. 525,

530 (2013). "[T]he settlor's intent regarding the purpose of

the trust's creation and its operation . . . [is] determined by

examining the trust instrument," and we "must attempt to

construe the instrument so that each word has meaning." In re

Kostin Estate, 278 Mich. App. 47, 53 (2008). See Bill & Dena

Brown Trust v. Garcia, 312 Mich. App. 684, 694 (2015).

The JJIT contains the following relevant provisions. The

wife, who is the sole beneficiary of the JJIT, is entitled to

receive two types of distributions: (1) discretionary

distributions of trust income and principal that the trustee, in

his "sole and absolute discretion, considers to be necessary for

6 Interpretation of the trust, and the determination whether
the wife's interest is includable in the marital estate, are
questions of law we review de novo. See Levitan, 95 Mass. App.
Ct. at 251-253. See also In re Theodora Nickels Herbert Trust,
303 Mich. App. 456, 458 (2013); In re Reisman Estate, 266 Mich.
App. 522, 526 (2005).
9

the [wife's] best interests and welfare";7 and (2) a "[m]andatory

[d]istribution" of the entire trust corpus that the trustee

"shall pay" after the wife's mother's death (effectively

terminating the JJIT).8 The JJIT grants the wife a power of

appointment, allowing her to appoint the trust corpus to the

beneficiaries of her will if she were to die before receiving

the mandatory distribution. In lieu of "outright

distribution[s]" to the wife, the trustee is authorized to

instead "expend . . . amounts for the [wife's] benefit" to avoid

the reach of her creditors and "to give [her] the maximum

possible benefit and enjoyment of all of the trust income and

principal to which [she] is entitled."

The JJIT also contains two additional provisions designed

to avoid the reach of creditors: (1) a spendthrift provision

prohibiting assignment of the wife's interest in the trust

7 Article IV, paragraph A, of the JJIT, entitled
"Distribution Standard," provides that "[t]he [t]rustee may pay
to [the wife] (or apply for [her] benefit) such amounts of trust
net income and principal (including all, part or none) . . . as
the [t]rustee, in the [t]rustee's sole and absolute discretion,
considers to be necessary for the [wife's] best interests and
welfare. . . . In making distribution decisions, the [t]rustee
may, but shall not be required to, consider [the wife's] other
financial resources."

8 Article IV, paragraph B, of the JJIT, entitled "Mandatory
Distribution," provides that "[u]pon the death of [the wife's
mother], the [t]rustee shall pay to [the wife] . . . the entire
balance of the trust assets upon the written request of [the
wife]."
10

(except in connection with the exercise of her power of

appointment);9 and (2) a "Postponement of Distributions"

provision (postponement provision). The latter provides, in

relevant part:

"Notwithstanding any other provision of the trust, the
[t]rustee shall have the power to postpone any principal or
income distribution otherwise required to be made from the
trust . . . upon or after the . . . death of a third person
(and to postpone to that extent the termination of such
trust which might otherwise be required) if the [t]rustee,
in the [t]rustee's sole and absolute discretion, determines
that there is a compelling reason to postpone such
distribution, such as a beneficiary's serious disability,
drug or alcohol abuse, a beneficiary's failure to enter
into an appropriate prenuptial agreement, the possibility
of divorce, failure to pursue a college education or
vocation commensurate with the ability of such beneficiary,
potential or pending creditor claims (possibly relating to
such distribution), a serious tax disadvantage to such
beneficiary (or his or her family) if such distribution
were made, or similar substantial cause. Any such
postponement of distribution may be continued by such
[t]rustee, in whole or in part, from time to time, up to
and including the entire lifetime of the beneficiary.
While such postponement continues, all of the other
provisions previously applicable to such trust shall
continue in effect, except that such beneficiary shall only
receive distributions from time to time of such amounts
from such principal and the net income therefrom as the
[t]rustee, in the [t]rustee's sole and absolute discretion,

9 The JJIT's spendthrift provision provides that "[t]o the
extent permitted by law, no beneficiary's interest shall be
subject to liabilities or creditor claims or to assignment or
anticipation. However, this paragraph shall not prevent the
exercise of any power of appointment granted in this [trust]."
See Mich. Comp. Laws § 700.7103(j) ("'Spendthrift provision'
means a term of a trust that restrains either the voluntary or
involuntary transfer of a trust beneficiary's interest"). See
also Mich. Comp. Laws § 700.7502.
11

deems necessary or appropriate for the best interests of
such beneficiary." (Emphases added.)

The wife claims error in the judge's determination that she

"will ultimately receive the whole of the trust property,"

contending that the judge disregarded the broad discretion

afforded to the trustee. It is true that the JJIT contains a

"discretionary trust provision," Mich. Comp. Laws

§ 700.7103(d),10 granting the trustee "sole and absolute

discretion" to make distributions of income and principal

"necessary for the [wife's] best interests and welfare," and

that, under Michigan law, a beneficiary "has no right to any

amount of trust income or principal that may be distributed only

in the exercise of the trustee's discretion." Mich. Comp. Laws

§ 700.7815(1). See In re Johannes Trust, 191 Mich. App. 514,

517 (1991). See also Levitan, 95 Mass. App. Ct. at 253, 254

("[i]nterests in discretionary trusts generally are treated as

. . . too remote for inclusion in a marital estate . . . because

. . . the beneficiary must rely on the trustee's exercise of

10"'Discretionary trust provision' means a provision in a
trust, regardless of whether the terms of the trust provide a
standard for the exercise of the trustee's discretion and
regardless of whether the trust contains a spendthrift
provision, that provides that the trustee has discretion . . .
to determine [one] or more of the following: (i) [w]hether to
distribute to or for the benefit of an individual . . . the
income or principal or both of the trust"; "(ii) [t]he amount,
if any, of the income or principal or both of the trust to
distribute to or for the benefit of an individual." Mich. Comp.
Laws § 700.7103(d).
12

discretion . . . and cannot compel distributions" [citation

omitted]). Nevertheless, even if "a trustee's discretion is

'uncontrolled,'" that fact "does not necessarily preclude a

trust's inclusion in the marital estate." Id. at 254. Here,

moreover, while the trust clearly contains discretionary

components, the wife largely ignores the mandatory distribution

language and the limits on the trustee's discretion to postpone

such a distribution. We turn to the issue of the trustee's

discretion regarding the mandatory distribution.

b. Mandatory distribution. The JJIT is not a pure

discretionary trust, see Coverston v. Kellogg, 136 Mich. App.

504, 508-510 (1984), because it also provides for a "mandatory

distribution" of the entire trust corpus that the trustee "shall

pay" to the wife upon her mother's death, see Black's Law

Dictionary 1151 (11th ed. 2019) (defining "mandatory" as "[o]f,

relating to, or constituting a command; required, preemptory");

Black's Law Dictionary 1653 (defining "shall" as "[h]as a duty

to; more broadly, is required to"). See also In re Kostin

Estate, 278 Mich. App. at 54 (where trust does not define

essential term, "we look to a dictionary definition").11

11The Michigan trust code does not provide a general
definition for "mandatory distribution." See Mich. Comp. Laws
§ 700.7103.
13

Notwithstanding this mandatory distribution clause, the

wife asserts that "the trustee's discretion includes the power

to defeat the [w]ife's interest in the trust by not making any

distributions to her." We conclude otherwise. While the

trustee does have the "power to postpone" the wife's enjoyment

and possession of the mandatory distribution (pursuant to the

postponement provision),12 the trustee does not have the power to

divest the wife of her interest in the trust corpus. Compare

Black's Law Dictionary 1413 (defining "postpone" as "[t]o put

off to a later time"), with Black's Law Dictionary 601 (defining

"divestment" as "[t]he complete or partial loss of an interest

in an asset"). Even if the trustee is permitted to postpone the

mandatory distribution indefinitely for the wife's "entire

lifetime," his power is limited to determining the timing of the

mandatory distribution -- but not the wife's ultimate

entitlement to it. See Coverston, 136 Mich. App. at 509-510.

The wife retains the power to appoint the trust corpus to the

beneficiaries of her estate, even if she dies before the

12By its terms, the postponement provision applies,
notwithstanding any other trust provision, to all
"distribution[s] otherwise required" (including any
distributions upon the death of a third person or that would
terminate the trust). Although the term "mandatory
distribution" is not specifically used in the postponement
provision, we think it reasonable to infer that the preceding
language regarding an "otherwise required" distribution
encompasses the mandatory distribution.
14

mandatory distribution is made. See id. at 510.13 The wife's

interest in the trust corpus is therefore vested and "fixed."

Levitan, 95 Mass. App. Ct. at 253.

c. Enforceability. Moreover, the wife's right to receive

the mandatory distribution is "enforceable." Levitan, 95 Mass.

App. Ct. at 253. The trustee may postpone the mandatory

distribution only for a "compelling reason." The postponement

provision lists several circumstances that could qualify as a

"compelling reason":

"[the wife's] serious disability, drug or alcohol abuse,
[the wife's] failure to enter into an appropriate
prenuptial agreement, the possibility of divorce,[14] [the
wife's] failure to pursue a college education or vocation
commensurate with [her] ability . . . , potential or
pending creditor claims (possibly relating to such
distribution), a serious tax disadvantage to [the wife] (or

13 Under Michigan law, trust property subject to a
testamentary general power of appointment is treated as a
property interest reachable by the beneficiary's creditors upon
the beneficiary's death. See Mich. Comp. Laws § 556.123(3) ("If
a donee has at the time of his or her death a general power of
appointment, whether or not he or she exercises the power, the
personal representative or other legal representative of the
donee may reach on behalf of creditors any interest that the
donee could have appointed to the extent that the claim of a
creditor has been filed and allowed in the donee's estate but
not paid because the assets of the estate are insufficient").

14 There has not been any postponement here on these or any
other grounds. Nor was there any evidence that the wife ever
requested, or would need to request, a distribution in order to
make any of the payments to the husband required by the amended
judgment of divorce. To the extent the "possibility of divorce"
provision was intended to preclude the husband from obtaining
any of the trust assets themselves, or assets directly traceable
thereto, the amended judgment of divorce has not been shown to
contravene that intent.
15

. . . her family) if such distribution were made, or
similar substantial cause."

In short, the trustee may postpone the mandatory

distribution to the wife only if he determines that one of the

listed compelling reasons (or a "similar substantial cause")

exists. While this determination is left to the trustee's "sole

and absolute discretion," the discretion is nevertheless

narrower than that afforded to the trustee when making regular

distributions.15 See Restatement (Third) of Trusts § 87 comment

a (2007) ("a power is discretionary except to the extent its

exercise is directed by the terms of the trust or compelled by

the trustee's fiduciary duties").

Where the trustee's exercise of discretion is governed by a

specific standard (sometimes expressed as an "ascertainable

standard"16), the standard is judicially enforceable and the

trustee must adhere to it. See In re Mendelson Estate, 391

Mich. 706, 711 (1974). See also Mich. Comp. Laws § 700.7801

15We note that the circumstances qualifying as a
"compelling reason" set forth in the postponement provision may
be temporary in nature or within the wife's control, further
limiting the scope of the trustee's power to postpone.

16The Michigan trust code defines "[a]scertainable
standard" as "a standard relating to an individual's health,
education, support, or maintenance within the meaning of [§]
2041(b)(1)(A) or 2514(c)(1) of the [I]nternal [R]evenue [C]ode
of 1986, 26 [U.S.C. §§] 2041 and 2514." Mich. Comp. Laws
§ 700.7103(b). See also G. L. c. 203E, § 103 (defining
"[a]scertainable standard").
16

("the trustee shall administer the trust . . . in accordance

with its terms"); Mich. Comp. Laws § 700.7815(1)(c) (trustee's

failure to exercise judgment "in accordance with the terms and

purposes of the trust" is abuse of discretion);17 Estate of

Weinstein v. United States, 820 F.2d 201, 205 (6th Cir. 1987)

(under Michigan law, "trustee must . . . exercise his discretion

in accordance with any standards set forth in the trust

instrument or reasonably inferable from its terms"). And the

presence of terms such as "uncontrolled discretion" or "sole

discretion" is not inconsistent with the establishment of an

enforceable interest. In re Mendelson Estate, supra. See

Estate of Weinstein, supra (same).18 Here, the requirement that

17Michigan also provides statutory remedies for a trustee's
breach of trust. See Mich. Comp. Laws § 700.7901.

18Despite the discretion conferred on the trustee, we
conclude that the JJIT sets forth a judicially enforceable
standard with specific parameters guiding the trustee's exercise
of discretion. See A. Newman, G.G. Bogert, & G.T. Bogert,
Trusts and Trustees § 560 (3d ed. 2010); Restatement (Third) of
Trusts § 87 comment d (2007). We note for comparison that in
Massachusetts, "even very broad discretionary powers are to be
exercised . . . with reasonable regard for usual fiduciary
principles," and "[a] fair reading of the whole of most trust
instruments will reveal a 'judicially enforceable . . .
standard' for the exercise of even broadly expressed fiduciary
powers" (citations omitted). Briggs v. Crowley, 352 Mass. 194,
200-201 (1967) The difference between language conferring
"extended discretion" (e.g., "sole and absolute" or "absolute
and uncontrolled" discretion) and language conferring "simple
discretion" is "one of degree more than of kind" (quotation
omitted). Morse v. Kraft, 466 Mass. 92, 98 n.9 (2013).
17

a trustee make a mandatory distribution unless there is a

"compelling reason" not to do so provides a standard to guide

the trustee, one that courts will enforce, and thus the wife has

an enforceable interest.19 Cf. Matter of the Estate of Kettle,

73 A.D.2d 786, 786 (N.Y. 1979) (under New York law, where trust

provided that stock should not be sold in absence of "compelling

reason," and trustee sold stock without showing compelling

reason, beneficiary successfully brought action against trustee

to restore stock to trust).

In summary, the wife is the sole beneficiary (in a closed

beneficiary class) of an irrevocable trust; her interest in the

trust is not susceptible to reduction or divestment; she is

eligible to receive discretionary distributions of income and

19In an unpublished decision involving a postponement
provision remarkably similar to the postponement provision in
the JJIT, the Court of Appeals of Michigan held that the
trustee's "power to postpone" could not be invoked in the
absence of a "compelling reason," and there were "only limited
circumstances . . . that would amount to a 'compelling reason'
or 'substantial cause' by which the trustee could postpone, but
not deny," a distribution. In re Ernest W. Hamady Trust, Nos.
319900, 319901, slip op. at 5-6 (Mich. Ct. App. July 30, 2015)
(Hamady). In Michigan, "an unpublished opinion has no
precedential value," but it may be followed if a court "finds
the reasoning persuasive." Zaremba Equip., Inc. v. Harco Nat'l
Ins. Co., 280 Mich. App. 16, 42 n.10 (2008). Although we
recognize that Hamady is not binding on the Michigan courts or
on us, its reasoning is persuasive and, in the absence of
published Michigan case law on the specific issue before us, it
is the best indication we have of Michigan law on that issue.
Cf. Mich. Ct. R. 7.215(C)(1) (2023) (permitting citation of
unpublished decisions if party explains reason for citing and
relevance of decision).
18

principal that the trustee deems in her "best interests and

welfare," and she may also have payments made on her behalf by

the trustee (in lieu of outright distributions); her right to

receive a mandatory distribution of the entire trust corpus upon

her mother's death is vested and fixed; and she has the power to

appoint trust assets to the beneficiaries of her estate if she

dies before receiving the mandatory distribution. To the extent

that the trustee has the discretion to "postpone" distributions

for a "compelling reason," that discretion is subject to

judicially enforceable limits.

Upon examining the trust instrument as a whole, see Bill &

Dena Brown Trust, 312 Mich. App. at 694, it is apparent that the

settlor's intent, and the overriding purpose of the trust, is to

benefit the wife rather than "subsequent generations," Levitan,

95 Mass. App. Ct. at 254, and to ensure that she receives "the

maximum possible benefit and enjoyment of all of the trust

income and principal to which [she] is entitled" by shielding

trust assets from creditors.20 The wife contends that including

20In addition to the spendthrift provision, the
postponement provision is clearly designed to shield trust
assets from creditor claims. Michigan law permits creditors to
reach an undistributed mandatory distribution after the
distribution date unless it is subject to the trustee's exercise
of discretion. See Mich. Comp. Laws § 700.7507 (allowing
creditors to reach undistributed mandatory distributions after
distribution date, unless distribution is subject to exercise of
trustee's discretion -- even if "[t]he direction is expressed in
the form of a standard of distribution," or "[t]he terms of the
19

the trust in the marital estate disregards the settlor's intent

for the trust to solely benefit her, because its inclusion

indirectly benefits the husband in contravention of the

settlor's intent. However, the fact that the trust is primarily

intended to benefit the wife undermines her argument that her

interest in the trust is too speculative to constitute a

property interest for purposes of § 34. See Levitan, 95 Mass.

App. Ct. at 254-255 (settlor's primary intent for trust to

benefit beneficiary spouse, rather than subsequent generations,

weighed in favor of treating spouse's trust interest as property

subject to equitable distribution under § 34). Moreover, the

settlor's intent to benefit the wife does not prevent the JJIT's

inclusion in the marital estate so long as the wife, rather than

the husband, retains the trust interest (to avoid running afoul

of the spendthrift provision). See id. at 255.

d. Trust case law. The wife's interest in the JJIT shares

attributes with other trust interests that our courts have

deemed sufficiently fixed and enforceable for inclusion in the

marital estate. See, e.g., Levitan, 95 Mass. App. Ct. at 254-

255 (wife's trust interest includable in marital estate because

she was sole beneficiary, beneficiary class was closed, her

share was "not susceptible to reduction," "the 'primary intent'

trust authorizing a distribution use language of discretion and
language of direction").
20

of the trust [was] to provide for the wife rather than for

subsequent generations," and although "trustee's discretion

[was] not guided by an ascertainable standard, there [was] some

degree of predictability built into the trust by virtue of the

wife's annual right to withdraw five percent of the trust

principal, albeit subject to the spendthrift provision"

[citation omitted]); Comins v. Comins, 33 Mass. App. Ct. 28, 30-

31 & n.4 (1992) (wife's interest in discretionary trust with

ascertainable standard deemed sufficiently certain to include in

marital estate where she was sole beneficiary and had power to

appoint recipients of trust corpus upon her death).21

By contrast, the trust interests that our courts have

deemed too remote or speculative for inclusion in the marital

estate are readily distinguishable from the trust interest at

issue here. See, e.g., Pfannenstiehl, 475 Mass. at 114

21See also Lauricella v. Lauricella, 409 Mass. 211, 216-217
(1991) (husband's vested, one-half beneficial interest in trust
was includable under § 34 as husband occupied two-family house
owned by trust, beneficiary class was closed, and husband was
likely to outlive trust's natural termination date and receive
share of trust property); S.L. v. R.L., 55 Mass. App. Ct. 880,
883-884 & n.10 (2002) (wife's one-fifth remainder interests in
four trusts were includable in marital estate as wife's interest
was fixed at minimum of one-fifth and could increase if certain
events occurred); Davidson v. Davidson, 19 Mass. App. Ct. 364,
371-372 (1985) (husband's remainder interest in father's
testamentary trust, which granted trustees "uncontrolled
discretion" and contained spendthrift provision, was part of
marital estate because husband's remainder interest was fixed at
time of divorce, even though value was uncertain).
21

(beneficiary husband's "right to distributions . . . [was]

speculative, because the terms of the trust permit[ted] unequal

distributions among an open class that already include[d]

numerous beneficiaries, and because his right 'to receive

anything [was] subject to the condition precedent of the trustee

having first exercised his discretion' in determining the needs

of an unknown number of beneficiaries" [citation omitted]); D.L.

v. G.L., 61 Mass. App. Ct. 488, 498-500 (2004) (husband's

contingent remainder interest in trust too remote or speculative

for inclusion in marital estate because he would receive his

share only if he were still alive on April 10, 2011, and his

father had died before that particular date).

We therefore conclude that the wife's interest in the JJIT

is sufficiently "fixed and enforceable" to constitute a property

interest (rather than "too remote or speculative"). Levitan, 95

Mass. App. Ct. at 253, quoting Pfannenstiehl, 475 Mass. at 111-

112. Accordingly, the judge permissibly included the JJIT in

wife's estate, and assigned it to her, for purposes of equitable

distribution under G. L. c. 208, § 34. See Levitan, supra at

255.

2. Michigan real property. The wife argues that the judge

should have applied Michigan law in determining whether the

wife's $72,633 indirect interest in certain Michigan real
22

property22 was includable in the marital estate. Under Michigan

law, according to the wife, the property was separate from the

marital estate and not subject to distribution. The argument

misses the mark.

As we have previously stated, the Massachusetts equitable

distribution statute, G. L. c. 208, § 34 -- not Michigan law --

governs the property division in this case. Section 34 permits

a judge to assign property owned by either spouse "whenever and

however acquired," Rice v. Rice, 372 Mass. 398, 400 (1977),

including real property located outside Massachusetts, see id.

at 399, 402 (affirming award of husband's interest in Canadian

real property to wife); Rolde v. Rolde, 12 Mass. App. Ct. 398,

399 (1981) (affirming property division that included order

requiring wife to convey interest in Maine real property to

husband). See also 2A C.P. Kindregan, Jr., M. McBrien, & P.A.

Kindregan, Family Law and Practice § 56:4 (4th ed. 2013) ("the

power of the court to hold the person in contempt if he or she

fails to comply with the order is the ultimate basis of the

22At the time of trial, the wife held a ninety-nine percent
interest (apparently transferred to her by her mother) in a
Michigan limited liability company, PHR II LLC, which in turn
held a one-third interest in another Michigan entity, RJP3
Investment Company, LLC, which in turn held a $220,100 equity
interest in an office building and surrounding land in Troy,
Michigan. The judge found that the value of the wife's interest
in PHR II was $72,633.
23

court's jurisdiction to order an assignment of out-of-state

property"). Thus, the wife's indirect interest in the Michigan

real property was properly included in the marital estate for

the purposes of equitable division.23

3. Source of assets. The wife argues that the judge erred

by including three particular assets in the marital estate,

where those assets originated with the wife's mother, were kept

separate from other marital assets, and assertedly were not

relied upon by the parties in maintaining their lifestyle during

the marriage. The three assets at issue are the wife's interest

in the JJIT, the Michigan real property, and the UBS CD.24 But

the wife points to no reason why these assets could not be so

included. See Levitan, 95 Mass. App. Ct. at 253 (party's estate

for purposes of equitable distribution includes all property to

which party holds title, however acquired). Indeed, the judge's

inclusion of the three assets in the estate, for potential

division, appears unassailable. See Williams v. Massa, 431

Mass. 619, 625 (2000) ("no question that [assets gifted to or

23The judge did not order the interest itself divided or
transferred to the husband. The wife retains "all right, title
and interest" in the two intermediary entities through which she
holds her indirect interest in the property.

24The UBS CD was funded with a total of $300,000 in gifts
from the wife's mother to the wife, which the parties had
neither added to nor withdrawn from during the marriage. At the
time of trial, the account was valued at $310,683.54.
24

inherited by husband from his parents] comprised part of the

marital estate for purposes of possible division under G. L.

c. 208, [§] 34").

The wife asserts that Williams supports her position. In

Williams, however, the judge considered the source of certain

assets not for the purpose of determining what to include in the

marital estate, but only to determine how to equitably divide

that estate. Id. at 626. The wife's reliance on Williams is

misplaced.

The wife also suggests that the judge should have treated

the three assets as "kept outside the marital partnership by

tacit agreement of the parties." Bak v. Bak, 24 Mass. App. Ct.

608, 621 (1987). The judge found, however, that the

availability of gifts from the wife's mother, both present and

anticipated, allowed the parties to enjoy an otherwise

unaffordable lifestyle and to forgo saving for anticipated

future expenditures such as retirement. Even if the parties did

not actually have occasion during the marriage to draw upon the

three specific assets the equitable division of which the wife

now challenges, the judge could reasonably conclude that their

existence was "woven into the fabric of the marriage" and

enabled a higher current standard of living for both parties.25

25Bak is distinguishable for a second reason. There, a
judge left the husband in possession of certain real estate,
25

4. Market fluctuations. The wife argues that the judge

abused her discretion by equitably dividing several of the

wife's assets without taking into account how market

fluctuations in stock prices could affect the value of those

assets.26 The wife suggests that the judge should have divided

those assets by percentage, rather than by using values computed

as of a date several months before trial, but which rose by the

time of trial and then fell sharply after the entry of judgment

nisi. See generally Gazelle vs. Gazelle, 102 Mass. App. Ct.

764, 766-767, 769 (2023) (determination of appropriate valuation

date for marital property left to judge's sound discretion; no

error in valuing property as of date of appraisals conducted

which had long been used by his family, in part so that the
property could serve "as security for the payments of alimony"
the husband was ordered to make to the wife. Bak, 24 Mass. App.
Ct. at 621. Here, in contrast, neither party requested nor did
the judge order alimony. Rather, the judge ordered a property
division "in lieu of alimony" that would allow the husband, as
well as the wife, to continue to enjoy the standard of living
each enjoyed during the marriage. Under § 34, "the court may
assign to one party in a divorce proceeding all or part of the
separate nonmarital property of the other in addition to or in
lieu of alimony." Rice, 372 Mass. at 401. The Alimony Reform
Act of 2011 amended § 34 to expressly direct the court to
consider, in addition to other factors, "the amount and duration
of alimony, if any, awarded under sections 48 to 55, inclusive."
G. L. c. 208, § 34, as amended by St. 2011, c. 124, § 2.
26The assets at issue are the JJIT, which consists largely
of shares of stock in the Bank of Nova Scotia; and PHR II, which
the wife's brief asserts is heavily invested in stock in the
same bank.
26

before trial, notwithstanding fluctuations in value during trial

and at time of divorce judgment).

The short answer to this argument is that the wife has not

included in the record appendix the proposed judgment using

percentage values that she says was submitted to the judge. Her

brief cites only to her motion to alter or amend the judgment

under Mass. R. Dom. Rel. P. 59(e), and although that motion

refers to a previously submitted proposed judgment containing

percentages, we do not have the proposed judgment itself. It is

"a fundamental and long-standing rule of appellate civil

practice" that the appellant, here the wife, has an obligation

"to include in the appendix those parts of the [record that] are

essential for review of the issues raised on appeal." Shawmut

Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373

(1991), S.C., 411 Mass. 807 (1992). On the inadequate record

the wife has supplied, we cannot say that the judge abused her

discretion in declining to follow whatever approach the wife

proposed.27

27We add that the wife has not established that the amended
judgment nisi requires the sale at any particular time of any of
the wife's assets that are subject to fluctuations in market
value. Moreover, from all that appears, such fluctuations may
inure to the wife's benefit. At the time any sales are
required, it may turn out that fewer shares must be liquidated
in order to make the required payment to the husband than if the
judgment had awarded him a percentage, rather than a fixed
amount, of the value of the assets in question. Finally, the
wife misplaces reliance on Baccanti v. Morton, 434 Mass. 787
27

5. Tax consequences. Finally, the wife argues that the

judge abused her discretion by not considering the adverse tax

consequences to the wife of the order to pay the husband

$1,173,166.89 over a ten-year period. The wife's motion to

alter or amend the judgment requested, among other things, that

the judge minimize the tax consequences of the asset sales the

wife would have to undertake in order to make the payments to

the husband. The judge allowed the motion in some respects but

made no amendments to address tax issues.

In dividing marital assets, "where the issue of tax

consequences has been raised and the judge has been provided

with appropriate evidence in the record, . . . the judge should

consider the tax consequences arising from a judgment" (citation

and quotation omitted). L.J.S. v. J.E.S., 464 Mass. 346, 350

(2013). "In some circumstances, tax consequence issues may be

raised during trial; in others, the issues may be more

appropriately raised in a postjudgment motion to amend the

judgment under Mass. R. Dom. Rel. P. 59 (e) . . . ." Id. at

350-351. But "[i]f parties do not request the judge to consider

particular tax consequences and do not introduce reasonably

(2001). That case involved how to divide assets, such as
unvested stock options, where their "present valuation is
uncertain or impractical." Id. at 802. There was nothing
uncertain about the present value of the bank stock at issue
here. The wife's brief furnishes exact share values as of dates
prior to trial, at trial, and after the entry of judgment.
28

instructive evidence bearing on those tax issues, the probate

judge is not bound to grapple with the tax issues." Fechtor v.

Fechtor, 26 Mass. App. Ct. 859, 866 (1989).

Here, the wife's postjudgment motion offered no evidentiary

support for her claim that she would be obligated to liquidate

assets, and pay corresponding taxes, in order to make the

payments to the husband. Her motion did assert that she had

already paid all of the taxes due on her assets for the year in

which the case was tried (2019), and she asked that her required

payment to the husband be reduced by one-half of the amount of

those tax payments. But she failed to assert (let alone offer

evidence of) what specific amounts she had actually paid in

taxes, giving the judge insufficient information with which to

amend the judgment.

As for future taxes, she requested in general terms that

she "be permitted to transfer assets valued at the yearly payout

amounts to [the husband] and he should then be responsible for

the taxes associated with any transfer or liquidation." But she

failed to specify what taxes she anticipated would need to be

paid. This deprived the husband of the information necessary to

evaluate the consequences to him of her proposal, and it

deprived the judge of the information necessary to determine

whether her proposal was equitable. The wife's motion stated

that a proposed order was submitted therewith, but she has not
29

included any such proposed order in the record appendix. See

Shawmut Community Bank, N.A., 30 Mass. App. Ct. at 372-373. In

these circumstances, the wife has not shown that the judge

abused her discretion in denying the motion to alter or amend

the judgment to take account of tax consequences.

Amended judgment of divorce
nisi affirmed.