Sam Chiu v. Lianxiang Fu.

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-1102

SAM CHIU

vs.

LIANXIANG FU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Sam Chiu (husband), the former spouse of Lianxiang Fu

(wife), appeals from a judgment of divorce nisi (divorce

judgment)1 issued by a judge of the Probate and Family Court

after a trial that concluded in January 2021. The husband

challenges (1) rulings related to alleged assets of the wife;

1In his May 2022 notice of appeal, the defendant purports
to appeal from an October 15, 2019 contempt judgment, among
other things. However, there is nothing in the record showing
that the husband filed a timely notice of appeal within thirty
days of the entry of the October 2019 contempt judgment. See
Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).
The docket also contains an entry dated May 9, 2022, which
states, in relevant part, "[a]ppeal references rulings made
beyond the [thirty] day docket requirement. No motion to file
late appeal filed." Accordingly, the husband's untimely appeal
from the October 2019 contempt judgment is not properly before
us.
(2) the division of the parties' assets pursuant to G. L.

c. 208, § 34; and (3) the judge's decision not to award any

general term alimony to the husband. We vacate the portions of

the divorce judgment relating to property division and alimony,

and remand the case for further proceedings consistent with this

decision. The divorce judgment is affirmed in all other

respects.

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 China in 1992. They have one

child who was born in 1996.2 While the parties lived together in

China when they first got married, they lived apart from one

another throughout the majority of their twenty-three year

marriage. Between 2003 and 2006, the wife lived primarily in

Zhuhai, China, while the husband lived 100 miles away in

Shenzhen with their child. In 2009, the husband and the child

moved to the United States, living first in Missouri, and later

settling in Massachusetts. The wife moved to the United States

in 2013, and lived with the husband and child in Massachusetts,

during which time she slept on a mattress in the child's room.

2 The parties' son was emancipated at the time that the
divorce judgment issued.

2
In January 2016, the wife purchased a home in Lexington using

funds from her brother (Lexington property).3 The parties and

the child lived together in the Lexington property from

approximately April 2016 to January 2017, during which time the

parties slept in separate bedrooms. The husband was abusive and

controlling toward the wife throughout the marriage, and, in

January 2017, the wife obtained a G. L. c. 209A abuse prevention

order against him.

In April 2017, the husband filed a complaint for divorce in

the Probate and Family Court. In his complaint, he requested

conveyance of the Lexington property.4 Pursuant to a May 2018

temporary order, the wife was ordered to pay the husband

temporary alimony of $300 per week. Subsequently, a discovery

master was appointed in July 2018. In a March 27, 2019 order,

3 The wife asserted in her financial statements that
although she is the titleholder of the Lexington property she
purchased the property on behalf of her brother, who she claimed
was the actual owner. Concerning this arrangement, she
represented that she and her brother have a written agreement,
the details of which are outlined in the explanatory notes to
her financial statement. While the judge credited the wife's
assertion that she purchased the home with funds from her
brother, the judge did not make any finding that the wife
purchased the Lexington property on behalf of her brother, or
that the wife was the titleholder of the property in name only.

4 The husband listed the Lexington property as his residence
and the parties' residence in his complaint. In her answer and
counterclaim to the complaint, the wife likewise listed the
Lexington property as her residence.

3
the discovery master denied the wife's objections to the

husband's revised request for interrogatories and production of

documents. The husband later filed a motion to compel the wife

to produce the requested documents, which the discovery master

allowed in October 2019.

Sometime in 2019, the husband traveled to China, entered an

apartment that the wife claimed belonged to her brother, and

obtained documents without permission. The husband asserted

that the documents, which he stored in a laundry basket (laundry

basket documents), contained evidence of the wife's alleged

undisclosed assets in China. On August 29, 2019, after a

hearing, the judge issued an order directing the husband to

"produce [an] itemized list [and] copies of all items taken out

of [the wife's] brother's home in China forthwith." On

September 6, 2019, the wife filed a complaint for contempt

alleging that the husband failed to comply with the August 29

order. Following a hearing on October 3, 2019, the judge found

the husband in contempt and a contempt judgment entered on

October 3, 2019.

The judge ordered that the laundry basket documents be

provided to the discovery master to determine whether they

should be allowed in evidence. On November 25, 2019, the

discovery master issued an order denying the husband's request

to place the laundry basket documents on the trial exhibit list

4
because: (1) they were written in Chinese and were not

accompanied by any English translations, which was prejudicial

to the wife; and (2) the husband had failed to produce copies of

these documents pursuant to the August 29 order. The husband

filed a motion contesting the discovery master's November 25

order, which the judge denied in December 2019.

In November 2020, after the trial had commenced, the

husband sought to introduce documents, obtained and translated

by his counsel in China,5 that purported to show that the wife

transferred various Chinese assets to her brother after the

husband filed his complaint for divorce in 2017. The husband

also filed a motion for sanctions, alleging that the wife failed

to comply with the discovery master's orders by not producing

these documents. The judge denied the motion for sanctions.

The wife filed a motion in limine to preclude the husband from

introducing documents obtained by the husband's counsel in

China. The judge allowed the wife's motion, noting the

husband's failure to meet the long-expired discovery deadline,

the late timing of the husband's request after trial was

underway, and the prejudicial effect on the wife.

The wife also moved to strike certain witness testimony of

Sumiao Chen, who owned a Cambridge restaurant in which the wife

5 The husband initiated separate divorce proceedings in
China in June 2019.

5
had invested. At trial, Chen testified to the wife's statements

regarding a potential capital investment in the restaurant, her

ability to make a total initial investment of $300,000. The

judge sustained the wife's objection, noting the husband's

opposition, on hearsay grounds and struck Chen's testimony

describing the content of her conversations with the wife.

On April 5, 2022, the judge issued the divorce judgment

along with findings of fact, rationale, and conclusions of law.

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

would retain all assets held in her individual name6 (having a

combined value of over $1 million),7 while the husband would

6 With respect to the husband's allegation that the wife
owned assets in China, the judge concluded that he failed to
prove this allegation by a preponderance of the evidence. The
judge did, however, find that the wife was a part owner of a
family-run catering business in China, but had transferred her
interest in the business to her brother when she moved to the
United States. The judge also determined that the husband did
not contribute to the acquisition of the business or its daily
operations.

7 The wife's assets included (1) the Lexington property
(approximately $1 million equity value); (2) a one-third
interest ($51,666 equity value) in a Florida condominium; (3)
ownership interest in the Cambridge restaurant (investment of
$200,000); (4) two bank accounts ($10,800 combined balance); and
(5) the wife's car (no value specified by the judge). The judge
found that the wife acquired the interest in the Cambridge
restaurant on behalf of her brother, but did not make a similar
finding with respect to any other property held in the wife's
name.

6
retain all assets held in his individual name8 (having a known

combined valued of under $3,000). Ultimately, the judge found

that the assets standing in each party's individual name "were

never commingled into the fabric of the marriage," and the

parties "did not acquire any joint marital assets throughout the

marriage."9 The judgment also terminated the wife's temporary

alimony obligation and awarded no general term alimony to the

husband. This appeal ensued.

Discussion. 1. Evidentiary issues. We review a judge's

evidentiary decisions for an abuse of discretion. Commonwealth

v. Thomas, 476 Mass. 451, 465 (2017).10

8 The husband's assets included (1) two bank accounts
($2,150 combined balance); (2) the husband's contracting
business (no value given); and (3) the husband's car (no value
given).

9 The judge found that the husband did not contribute
"financially or otherwise to the Lexington property," to the
purchase price or condominium fees for the Florida property, or
to the investment in the Cambridge restaurant. The judge also
found that the husband did not pay for the mortgage, real estate
taxes, insurance, or maintenance on the Lexington property.

10"[A] 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 . . .
such that the decision falls outside the range of reasonable
alternatives" (citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).

7
a. Chinese documents.11 The husband contends that the

judge erred in excluding two sets of documents relating to

alleged assets in China: (1) the laundry basket documents that

he took without permission from the apartment in China; and (2)

the documents obtained by the husband's counsel in China. We

disagree.

Trial judges retain broad discretion to decide discovery

disputes and the admission of evidence. See Commonwealth v.

Chilcoff, 103 Mass. App. Ct. 48, 57 (2023). Regarding the

laundry basket documents, the husband has not cited any

authority mandating their admission. Rather, the cases cited

are nonbinding authority and inapposite,12 as none address a

judge's discretion to exclude non-translated documents at

trial.13

11To the extent that the husband attempts to relitigate the
October 2019 contempt judgment, we reiterate that he did not
timely appeal from this judgment. Thus, the issue is not
properly before us. See note 1, supra. Furthermore, nothing in
the record establishes that the wife had possession, custody, or
control over the documents. More importantly, as discussed
below, the record reveals no error in the judge's conclusion
that the husband failed to comply with the discovery master's
orders as approved by the judge.

12The cases husband relies upon include an unpublished
Appeals Court decision addressing the admissibility of non-
translated documents in an administrative agency proceeding, and
unpublished decisions from other jurisdictions pertaining to
discovery requests.

13Our case law contemplates situations where non-English
evidence is inadmissible without translation. Commonwealth v.

8
Furthermore, both the discovery master and the judge

determined that the husband had failed to produce the documents

pursuant to the August 29, 2019 order. Concerning the laundry

basket documents, the husband made general statements to the

effect that the documents showed the wife's undisclosed assets

in China. These statements did not constitute a specific and

sufficient offer of proof as to what the excluded documents

showed that might have affected the result. General statements

were not enough. Furthermore, when asked to produce an itemized

list and copies of the documents, the husband failed to comply.

"A judge has wide latitude to make such orders in regard to the

failure [to comply with a discovery order] as are just"

(quotations and citations omitted). Atlas Tack Corp. v.

Donabed, 47 Mass. App. Ct. 221, 224 (1999). Therefore, on the

record before us we cannot say that the judge abused her

discretion in excluding the laundry basket documents.14

Portillo, 462 Mass. 324, 328-329 (2012) (statements recorded in
another language require English transcript). See Romano v. De
Vito, 191 Mass. 457, 457 (1906) (libel in another language
requires translation and proof that translation is correct).

14We are likewise unpersuaded by the husband's claim of
error with respect to the exclusion of the documents obtained by
his counsel in China, which he sought to introduce long after
discovery had closed and trial had commenced. Furthermore, the
husband failed to make a sufficient offer of proof at trial
regarding the content and import of the excluded documents. We
thus discern no abuse of discretion in the judge's ruling. See
Atlas Tack Corp., 47 Mass. App. Ct. at 224. See also Cronin v.
Strayer, 392 Mass. 525, 535-536 (1984) (scope and timing of

9
Finally, the evidentiary requirement of authentication

necessitates that a judge determine whether sufficient evidence

exists for a fact finder to find by a preponderance of the

evidence that the matter in question is what its proponent

claims. Mass. G. Evid. § 901 (a) (2024). See Commonwealth v.

Welch, 487 Mass. 425, 440 (2021). Thus, a judge, especially

when acting as the fact finder, is entitled to understand the

content of the evidence proffered at trial in order to rule on

its admissibility and to evaluate the content, credibility, and

weight thereof. See, e.g., Commonwealth v. Portillo, 462 Mass.

324, 328 (2012); Romano v. De Vito, 191 Mass. 457, 457 (1906).

Here, without English translations of these documents, the judge

was unable to perform this role.

b. Witness testimony. The husband next contends that the

judge erred in excluding Ms. Chen's testimony as inadmissible

hearsay, where the husband sought to introduce the testimony as

statements made by a party opponent. A statement made by an

opposing party -- one which the adverse party gives the

appearance of adopting or believing to be true -- is not

discovery is matter of judicial discretion and judges should not
hesitate to exercise appropriate control over discovery
process). However, in making this determination we note that we
are unpersuaded by the discovery master's additional rationale
that the failure to provide a certified translation of the
Chinese documents "severely prejudices the [wife]."

10
hearsay. Mass. G. Evid. § 801 (d) (2) (2024). See Commonwealth

v. Mendes, 441 Mass. 459, 467 (2004).

Although the context of Ms. Chen's testimony and the

proffer made by the husband's counsel at trial are not entirely

clear, we will assume, arguendo, that the testimony was

admissible as a statement by a party opponent, and thus the

judge erred in excluding it at trial. That notwithstanding, the

absence of the testimony did not prejudice the husband's case.

Much of what Ms. Chen's testimony described was already in

evidence, including the wife's initial investment in the

restaurant that she reported on her financial statements. The

judge also made a credibility determination that the wife made

the investment in the Cambridge restaurant on her brother's

behalf. In the present circumstances, and in the context of a

bench trial, we cannot say that the alleged error caused any

prejudice or impacted the judge's conclusions.

2. Property division. The husband claims that the judge

erred in applying G. L. c. 208, § 34, by failing to consider all

the relevant factors in distributing the marital estate. We

agree.

"Our review of a judgment pursuant to the equitable

distribution statute, G. L. c. 208, § 34, proceeds under a two-

step analysis. 'First, we examine the judge's findings to

determine whether all relevant factors in § 34 were

11
considered.'"15 Adams v. Adams, 459 Mass. 361, 371 (2011),

quoting Bowring v. Reid, 399 Mass. 265, 267 (1987). "The second

tier of our review requires us to determine whether the reasons

for the judge's conclusions are 'apparent in his findings and

rulings.'" Adams, supra, quoting Redding v. Redding, 398 Mass.

102, 108 (1986). "A judge's determinations as to equitable

distribution will not be reversed unless 'plainly wrong and

excessive.'" Adams, supra, quoting Redding, supra at 107.

Here, the judge, in assigning the wife approximately

ninety-nine percent of the parties' total assets,16 stated that

the property division reflected her consideration of "the

respective contributions of the parties to the marital

partnership." However, the judge's findings, which focused

solely on the parties' respective economic contributions to the

15The judge is required to consider "the length of the
marriage, the conduct of the parties during the marriage, the
age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities and needs
of each of the parties, [and] the opportunity of each for future
acquisition of capital assets and income." G. L. c. 208, § 34.
The judge may also "consider the contribution of each of the
parties in the acquisition, preservation or appreciation in
value of their respective estates and the contribution of each
of the parties as a homemaker to the family unit." Id.

16Excluding the interest in the Cambridge restaurant that
the judge found the wife had acquired on behalf of her brother.
See note 6, supra.

12
marital estate,17 failed to address the husband's contribution as

the child's primary caregiver for much of the marriage

(including the periods in which the parties lived separately

prior to the divorce). This was error.

"Once a judge gives weight to the discretionary statutory

factor of spousal contributions, [the judge] is obliged to

consider . . . child raising . . . and to make apparent in [the]

findings and rulings their effect, if any, upon [the] decision"

(quotations and citations omitted). Wheeler v. Wheeler, 41

Mass. App. Ct. 743, 746 (1996). "This must be done both for the

period the parties are living together and during any period of

separation prior to a divorce." Id. Here, the husband's role

as the child's primary caregiver during the periods in which the

parties lived apart was an ongoing contribution to the marital

partnership. See Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 574

(2023); Wheeler, supra at 745-746. However, the judge's

findings and ultimate distribution of property do not reflect

adequate consideration of this contribution.

17We are unpersuaded by the husband's contention that the
judge erred in failing to make findings concerning his purported
financial contributions to the assets acquired by the wife
during the marriage. As counsel for the husband acknowledged at
oral argument, the husband made no proffer before or during
trial showing that he made any noteworthy financial
contributions to those assets.

13
To be sure, this was a nontraditional marriage during which

the parties led mostly separate lives. However, it was also a

long-term marriage of over twenty years that produced a child,

whom the husband was primarily responsible for raising while the

parties lived apart. That notwithstanding, the judge's failure

to consider the husband's contribution as the child's primary

caregiver was plainly wrong. See Adams, 459 Mass. at 371;

Redding, 398 Mass. at 107. See also Charrier v. Charrier, 416

Mass. 105, 112 (1993) (error to award "the sole marital asset of

significance" to the husband where judge "focused on the narrow

issue of which spouse [financially contributed to the asset]"

and "overlooked . . . the value of all the contributions of the

spouses to the marriage, such as child care"); Wheeler, supra at

745-746. See also C.P. Kindregan, Jr., M. McBrien, & P.A.

Kindregan, Family Law and Practice, § 56:17 (4th ed. 2013)

(Unlike other States, "Massachusetts does not exclude 'separate'

property from the assignable assets" comprising the marital

estate for purposes of G. L. c. 208, § 34); T.E. v. A.O., 82

Mass. App. Ct. 586, 598 (2012).

Accordingly, so much of the divorce judgment pertaining to

property division must be vacated and remanded for further

findings reflecting appropriate consideration of the husband's

role as the child's primary caregiver, and, if appropriate,

redistribution of the marital estate.

14
3. Alimony. The husband next contends that the judge

erroneously declined to award him general term alimony by

"misapplying" certain statutory factors.18 Alimony is governed

by the Alimony Reform Act (act), G. L. c. 208, §§ 48-55. Emery

v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017). "Section

53 (a) [of the act] sets forth the factors judges must consider

when determining whether . . . to award alimony"; a judge may

not "deny a request for alimony without making a fact-specific

inquiry into the parties' circumstances, as evaluated through

the application of these mandatory statutory factors." Cavanagh

v. Cavanagh, 490 Mass. 398, 408-409 (2022). See G. L. c. 208,

§ 53 (a). Accordingly, in reviewing a judge's decision

regarding alimony (including a decision to award no alimony),

"we examine a judge's findings to determine whether the judge

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

§ 53 (a), and whether the judge relied on any irrelevant

18Although the husband refers to the factors set forth in
G. L. c. 208, § 34, the factors that the judge must consider
when deciding whether to award alimony are set forth in G. L.
c. 208, § 53 (a). See Cavanagh v. Cavanagh, 490 Mass. 398, 407-
409 (2022). These mandatory factors include "the length of the
marriage; age of the parties; health of the parties; income,
employment and employability of both parties, including
employability through reasonable diligence and additional
training, if necessary; economic and non-economic contribution
of both parties to the marriage; marital lifestyle; ability of
each party to maintain the marital lifestyle; [and] lost
economic opportunity as a result of the marriage." G. L.
c. 208, § 53 (a).

15
factors." Zaleski v. Zaleski, 469 Mass. 230, 236 (2014). "[I]t

is important that the record indicate clearly that the judge

considered all the mandatory statutory factors, and that the

reason for [the judge's] conclusion is apparent in [the judge's]

findings" (quotation and citation omitted). Id. "A judgment

will not be disturbed on appeal unless 'plainly wrong and

excessive.'" Id., quoting Heins v. Ledis, 422 Mass. 477, 481

(1996).

The husband challenges the judge's treatment of the

statutory factors pertaining to his earning capacity and the

marital lifestyle, see G. L. c. 208, § 53 (a), asserting that

the judge erroneously attributed income to him and failed to

properly consider his ability to maintain the marital lifestyle.

With respect to the husband's income, the judge was "not limited

to [considering the husband's] actual earnings" -- she was

permitted to instead "consider [his] potential earning

capacity." Heins, 422 Mass. at 485. See Davae v. Davae, 100

Mass. App. Ct. 54, 57 (2021) (if party "is both underemployed

and capable of earning more with reasonable effort," judge

"should consider potential earning capacity" and attribute

income to that party [quotations and citation omitted]). The

judge was required to "consider a nonexclusive list of factors,"

16
set forth in the Child Support Guidelines,19 "to the extent known

and presented to the [judge], focused on the [husband's]

particular circumstances" (quotations and citation omitted).

Davae, supra at 58. See Child Support Guidelines § 1(E)(3)

(Jun. 2018) (listing factors for judge to consider when

attributing income).

Here, the judge's findings reflect appropriate

consideration of the factors for attribution of income that were

in evidence. Specifically, the judge found that the husband

"has the ability to work and financially support himself. He is

presently voluntarily self-employed earning a weekly income of

$540.00," but he has "the education, work experience, and skills

to earn more than minimum wage."20 Additionally, the judge

concluded that the husband presented no evidence of a disability

that prevented or limited his ability to work. Although the

judge's findings could have been more detailed on this issue, we

19The principles for attribution of income set forth in the
Child Support Guidelines are applicable to both child support
and alimony. See Davae, 100 Mass. App. Ct. at 57-58; Emery, 91
Mass. App. Ct. at 508-509. See also G. L. c. 208, § 53 (b)
(income for purposes of alimony defined as set forth in child
support guidelines).

20The judge found that the husband, a college graduate, had
been employed as an engineer, business owner, and semiconductor
hardware research and development manager in China between 1993
and 2009, before he moved to the United States to pursue a
graduate degree.

17
discern no abuse of discretion in the judge's ultimate

assessment of the husband's earning capacity. See Davae, supra

at 57 (attribution of income reviewed for abuse of discretion).

With respect to the marital lifestyle statutory factor, the

judge made a general finding that the parties "lived a middle-

class lifestyle" during the marriage. The husband claims that

the judge failed to adequately consider his ability to maintain

the marital lifestyle; which is, in essence, an assertion that

the judge failed to adequately ascertain his need for alimony.21

See Cavanagh, 490 Mass. at 407-408, quoting Young v. Young, 478

Mass. 1, 6 (2017) ("the recipient spouse's need for support is

generally the amount needed to allow that spouse to maintain the

[marital] lifestyle" [emphasis omitted]). However, because the

parties lived separately for most of the marriage, there was

little evidence of "the typical way [they] regularly allocated

their income during the marriage." Openshaw v. Openshaw, 493

Mass. 599, 605 (2024). As such, we cannot fault the judge for

not making more specific findings concerning the marital

lifestyle or the husband's ability to maintain it. We therefore

discern no error on this record with respect to the judge's

consideration of the marital lifestyle factor.

21The judge found that the husband "presented no testimony
of his ongoing need for alimony." The husband does not
specifically challenge this finding in his brief.

18
While the judge did not err in considering the husband's

earning capacity or the marital lifestyle, the judge did err (as

discussed supra) in failing to consider the husband's

noneconomic contribution as the child's primary

caretaker -- which is a mandatory factor set forth in § 53 (a).

Because of this omission, and because alimony and property

division "are interrelated remedies that cannot be viewed apart"

(citation omitted), Sampson v. Sampson, 62 Mass. App. Ct. 366,

369 (2004),22 we must vacate the portion of the divorce judgment

pertaining to alimony and remand the matter for further findings

and reconsideration of both alimony and property division. Id.

at 371.

Conclusion.23 So much of the divorce judgment as pertains

to property division and alimony is vacated, and the case is

remanded for further proceedings consistent with this memorandum

22A judge "may make a judgment for either of the parties to
pay alimony to the other under [G. L. c. 208, §§ 48-55]. . . .
In addition to or in lieu of a judgment to pay alimony, the
[judge] may assign to either [party] all or any part of the
estate of the other." G. L. c. 208, § 34.

23 The husband's request for attorney's fees and costs is
denied.

19
and order. The divorce judgment is affirmed in all other

respects.

So ordered.

By the Court (Green, C.J.,
Neyman & Englander, JJ.24),

Clerk

Entered: August 15, 2024.

24 The panelists are listed in order of seniority.

20