Anne M. Leone v. Edward T. Patten.

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

22-P-746

ANNE M. LEONE

vs.

EDWARD T. PATTEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the Superior Court, the former

husband, Edward T. Patten (husband), was found in breach of

contract for failing to make alimony payments to the former

wife, Anne M. Leone (wife), in accordance with their separation

agreement. In this appeal, the husband claims that the judge

erred in (1) rejecting his claim that the wife fraudulently

reported her income at the time of divorce and (2) failing to

provide the husband with an opportunity to be heard before

correcting a scrivener's error. 1 We affirm.

1. Background. This case involves a contentious divorce.

The husband and wife were married in 1988 and in 2005 a judgment

1 To the extent that we do not specifically address other points
made by the husband in his briefing, those points "have not been
overlooked. We find nothing in them that requires discussion."
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
of divorce nisi entered. The wife testified that, under the

separation agreement, 2 she was to receive from the husband

monthly alimony payments of $1,720. In 2016, the wife filed a

complaint in the Superior Court, alleging that the husband

breached the separation agreement by failing to make alimony

payments as of September 2014. The husband's defense was that

the contract was rendered void due to the wife's fraudulent

misrepresentation of her income to the Probate and Family Court

at the time of their divorce.

On October 26, 2021, a jury-waived trial was conducted, and

the husband and wife agreed to waive detailed findings of fact

and rulings of law. 3 See Rule 20(2)(h) of the Rules of the

Superior Court (2018). That rule also allows the parties to

submit special questions to the judge on the elements of each

claim equivalent to that of a jury verdict form. Both husband

and wife agreed to limit the scope of the trial to whether the

separation agreement was breached and whether the agreement was

rendered void due to fraud. The parties also agreed to the

special verdict slip.

2 The separation agreement, "incorporated but not merged" with
the divorce judgment (with the exception of provisions related
to child support), provided that it "shall survive [the divorce
judgment] and be thereafter forever binding" on the parties "as
a . . . contract."

3 The husband, a practicing attorney, represented himself at
trial.

2
The evidence at trial consisted of the testimony from one

witness, the wife, and two exhibits, the parties' 2005

separation agreement and certain short form financial statements

introduced by the wife.

On October 29, 2021, the judge determined that the husband

had breached the separation agreement by failing to pay alimony

and failed to prove that the wife had committed fraud in

reporting her income at the time of the divorce. The judge

awarded damages to the wife in the amount of the unpaid alimony

payments from September 2014 to the date of the verdict, as well

as prejudgment interest. On November 4, 2021, the judge ordered

the verdict slip be amended because "there was a scrivener's

error" regarding whether the husband breached the separation

agreement, and the judge signed an amended verdict slip to

reflect that the husband did breach the separation agreement. 4

2. Discussion. Where, as here, the parties agreed to

waive detailed findings of fact under Superior Court

rule 20(2)(h), "appellate review of the court's decision and of

the judgment entered shall be according to the standard of

review that would apply to a verdict by a jury in a case tried

to a jury and to the judgment entered thereon." Rule 20(8)(b) of

4 The original verdict slip was in error in that question 1,
asking if the husband had breached the separation agreement, was
checked off "no."

3
the Rules of the Superior Court. In other words, the verdict, and

the judgment entered thereon, will be upheld so long as

"anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

reasonable inference could be drawn in favor of the" prevailing

party. Rabassa v. Cerasuolo, 97 Mass. App. Ct. 809, 814 (2020)

(quotation omitted).

Based upon a review of the evidence at trial, we conclude

that the judge's findings -- that the husband breached the

separation agreement when he stopped paying alimony to the wife

and that the wife did not make fraudulent misrepresentations at

the time the parties entered into the separation

agreement -- are supported by sufficient evidence. The judge

was permitted to credit the wife's testimony, who attested to

the fact that the husband stopped paying alimony in September of

2014. Throughout the trial, the husband never challenged the

wife's claims that he failed to pay alimony: his defense was

that his contractual obligation to pay alimony was void due to

fraud committed by the wife when reporting her income. 5

5 At the beginning of the trial, the judge made it clear that the
issue at trial was "whether or not [the wife] committed fraud
such that her actions would make the contract void." The
husband did not object to the judge's framing of the issue. The
judge clarified further, indicating that the other issues raised
by the husband already had been litigated in the Probate and
Family Court and affirmed on appeal. The husband agreed with
the judge that the issue at trial was the husband's allegations

4
As to the judge's finding that the husband failed to

establish fraud, we again discern no error in the judge's

evaluation of the wife's trial testimony. The wife testified

that her annual income (of between $30,000 to $38,000) as

reported to the Probate and Family Court at the time of the

divorce was accurate.

The husband argues that the wife's trial testimony was not

truthful because she claimed a monthly income of over $17,000 in

mortgage applications made soon after the divorce judgment

entered and that therefore she severely and fraudulently

underreported her income to the Probate and Family Court. At

trial, the husband failed to introduce the mortgage applications

into evidence and the only evidence at trial was from the wife,

who admitted that while she signed the mortgage documents she

did not review them thoroughly because it "was all done by the

attorney and the mortgage initiator" and "they told me to sign."

The wife also specifically testified that her income as shown on

the mortgage documents was "not correct." The fact that a

mortgage application, a document wholly unrelated to the

separation agreement, reported a substantially higher income for

the wife does not establish fraud. The issue for the judge to

determine at trial was whether, at the time the parties entered

that the wife had engaged in fraud and misrepresentations of her
income and that that impacted the amount of alimony to be paid.

5
into the separation agreement, the wife fraudulently reported

her income. Whether the wife fraudulently or mistakenly

reported her income in a mortgage application after her divorce

is not determinative as to whether the wife fraudulently

reported her income to the Probate and Family Court in the

divorce proceedings.

"[T]he judge, who has a 'firsthand view of the presentation

of evidence, is in the best position to judge the weight and

credibility of the evidence.'" Demoulas v. Demoulas Super Mkts.

Inc., 424 Mass. 501, 509-510 (1997), quoting New England Canteen

Serv. Inc. v. Ashley, 372 Mass. 671, 675 (1977). It was

entirely within the judge's role as a finder of fact to weigh

the credibility of the witness's testimony and to believe that

the wife's annual income was accurate when the divorce judgment

entered in 2005. It is the judge's role in a jury-waived trial

to make such credibility determinations. "Where there are two

permissible views of the evidence, [the judge's] choice between

them cannot be clearly erroneous." Demoulas, supra at 510

(quotation omitted).

Finally, the husband has failed to provide the court with

any legal authority supporting his contention that he was

entitled to a hearing regarding the scrivener's error in the

verdict slip. No hearing was required to correct a clerical

error. The judge who conducted the jury-waived trial and

6
awarded the wife damages for the husband's breach was the same

judge who corrected the verdict slip and the record is clear,

without a hearing, that a clerical mistake occurred. The

husband's attempt to relitigate the issue of fraud by claiming

he has a right to be heard due to a scrivener's error is without

merit. The initial notation on the verdict slip indicating that

there was no breach of the separation agreement was simply a

clerical mistake, one properly corrected by the judge.

Judgment affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ. 6),

Clerk

Entered: October 30, 2023.

6 The panelists are listed in order of seniority.

7