Obara v. Ghoreishi

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22-P-1032 Appeals Court

KAYOKO OBARA vs. JAVAD GHOREISHI.

No. 22-P-1032.

Norfolk. September 18, 2023. – November 16, 2023.

Present: Milkey, Blake, & Sacks, JJ.

Divorce and Separation, Amendment of judgment, Division of
property, Modification of judgment.

Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on March 23, 2011.

Following review by this court, 89 Mass. App. Ct. 1110
(2016), the case was heard by Paul M. Cronan, J.

James A. Reidy for the wife.
Javad Ghoreishi, pro se.

BLAKE, J. The wife, Kayoko Obara, and the husband, Javad

Ghoreishi, both dentists, were divorced in 2013, after

approximately twenty years of marriage. As relevant here, the

judge who presided over the 2013 trial (trial judge) divided

five pieces of real property between the parties, assigning two

to the wife, two to the husband, and one to the parties jointly.
2

The husband appealed, principally claiming that the trial judge

erred in awarding the parties' joint dental practice, including

the office condominium units (office space), to the wife. The

office space had been renovated to accommodate the husband as he

uses a wheelchair due to multiple sclerosis. In an unpublished

memorandum and order issued pursuant to our former Rule 1:28, a

panel of this court vacated, in pertinent part, so much of the

2013 judgment that ordered the division of the real property,

and remanded the case for further proceedings. See Obara v.

Ghoreisha,1 89 Mass. App. Ct. 1110 (2016). Following a trial

after remand in 2020, a different judge (remand judge) issued a

judgment that redistributed the real property between the

parties, assigning two properties to the wife and two properties

to the husband (including the office space), while effectively

allowing the husband to retain one hundred percent of the

proceeds from a fifth property sold in 2018 (2020 judgment). In

redistributing the marital estate, the remand judge used the

2013 property values despite evidence that the values had

1 There is no doubt that the husband's surname is
"Ghoreishi," but the panel in the first case used an alternate
spelling, noting that "we have docketed the appeal under the
title given to the action in the Probate and Family Court." See
Obara, 89 Mass. App. Ct. at 1110. Based on the materials before
us in this appeal, it appears that the spelling has been
corrected in the probate court.
3

increased significantly since 2013. See Johnson v. Johnson, 53

Mass. App. Ct. 416, 421-422 (2001) (requiring remand judge to

consider postdivorce appreciation of property and extent to

which appreciation attributable to one party or some other

cause).

On appeal, the wife principally contends that the remand

judge erred in using 2013 values for the real property,

resulting in a disproportionate division favoring the husband

inconsistent with the judge's stated intention to make an

"approximately equal division of the marital estate." We

conclude that the remand judge failed to adequately explain his

rationale for rejecting uncontroverted evidence of the

postdivorce property values, and we therefore vacate that

portion of the 2020 judgment pertaining to the division of real

property. We remand for further proceedings to allow the remand

judge to (1) explain his rationale, and amend his findings,

where appropriate, regarding property values; (2) make

supplemental findings pursuant to Johnson, 53 Mass. App. Ct. at

421-422, where necessary; and (3) reallocate the real property

distribution, if necessary, to achieve an equal division

consistent with the judge's findings as amended and supplemented

on remand.

Background. Because the issue on appeal involves five

pieces of real property and their values, we set them out in
4

some detail. The parties presented stipulated values for all

five properties at the 2013 trial. The trial judge divided the

five properties (all of which are in Brookline) so that the wife

received 52.66 percent and the husband received 47.34 percent of

the total 2013 stipulated value of these assets. The trial

judge found this disparate division to be equitable. The wife

was awarded her residence (wife's residence), with an equity

value of $357,923, and the office space, with a value of

$660,000. The husband was awarded the former marital residence

(husband's residence), with a value of $525,000, and a

condominium unit (Unit 406), with a value of $390,000. The

parties also owned a condominium unit, an income-producing

property (rental property), that the trial judge ordered them to

retain to be used to fund their daughter's college education.

The 2013 judgment provided that after a date certain, the rental

property would be sold with the net proceeds shared equally

between the parties.

In January 2020, the remand judge conducted a two-day trial

(remand trial). The parties submitted evidence in the form of

sworn financial statements pursuant to Supplemental Probate and

Family Court Rule 401 (2012) and testimony that reflected that

all five properties had increased in value since the 2013

divorce. The evidence of increased values for three of the five
5

properties was uncontroverted.2 For the office space, the

parties agreed that the value had increased, although the

husband believed the increase was more significant than did the

wife.3 Finally, with respect to Unit 406, the husband testified

that it sold in 2018 for $719,000.4

Soon after the trial concluded, the remand judge issued the

2020 judgment and findings of fact and rationale that were dated

August 12, 2020, but not docketed until April 15, 2021. The

2020 judgment allowed the parties to retain their respective

residences, assigned to the husband the office space and Unit

406 (the latter having been sold two years earlier), and

assigned to the wife the rental property. Unlike the trial

judge, the remand judge found that an equal division of the real

property was appropriate and ordered the husband to make a cash

payment to the wife in order to effectuate that division.5

2 The equity value of the wife's residence was $626,190, the
value of the husband's residence was $900,000, and the value of
the rental property was $539,000.

3 The husband reported the value on his financial statement
as $1,035,400, and the wife reported the value as $985,600.

4 The husband apparently retained the proceeds, although
they were not reported on his financial statement filed during
the remand proceedings. The remand judge declined to credit the
husband's testimony that he did not know what happened to the
proceeds.

5 The remand judge did not award attorney's fees to either
party. That portion of the judgment is not at issue in this
appeal.
6

However, instead of using the 2020 property values, the remand

judge used the 2013 property values, concluding in a footnote

that there was a "lack of credible evidence . . . regarding the

properties' current values." Accordingly, while the wife was

awarded fifty percent of the total 2013 property values, she

received only approximately forty-three percent of what the

evidence at the remand trial suggested were the total 2020

property values (or approximately $527,333 less than the

husband).

Discussion. Valuing the marital estate as of the date of

division of the assets is appropriate in cases where the

parties' contributions to the marital enterprise continue up

until the date of division. See, e.g., Wheeler v. Wheeler, 41

Mass. App. Ct. 743, 745 (1996) (continuing to care for minor

child during separation was wife's "contribution[] to the

marital partnership" entitling her to share in assets acquired

by husband during separation but prior to division). Where,

however, the parties' contributions to the marital partnership

ended before the date of division, the judge may use an earlier

valuation date. See Savides v. Savides, 400 Mass. 250, 252–253

(1987) (assets valued as of date of separation, several years

before divorce; wife not entitled to share in postseparation

appreciation of assets where she made no contribution to marital
7

partnership after separation and appreciation was due solely to

husband's efforts).

The same principles apply when the marital estate is

divided in a postdivorce proceeding. If the postdivorce

appreciation is attributable to one party's sole efforts, the

appreciation is not divided between the parties (effectively

valuing the property as of the date of the divorce); if,

however, the postdivorce appreciation is not attributable to the

postdivorce efforts of one spouse alone, the appreciation is

divided between the parties (effectively valuing the property as

of the date of division). See Johnson, 53 Mass. App. Ct. at

421. "Where property division takes place . . . after the

divorce, the property is valued at the time of the [postdivorce]

proceeding, but [G. L. c. 208,] § 34[,] factors are assessed as

of the time of divorce." Heins v. Ledis, 422 Mass. 477, 483 n.3

(1996). If a property's value has increased between the time of

the divorce and the division, and the property's "postdivorce

appreciation is not fairly attributable to one spouse alone,

[the] correct procedure is to value the divisible property as of

the date of the order of division and apportion [the]

postdivorce appreciation in the value of the property between

the parties." Child v. Child, 58 Mass. App. Ct. 76, 79-80

(2003), citing Pare v. Pare, 409 Mass. 292, 296 n.4 (1991).

Accord Heins, supra at 483, citing Pare, supra at 297 (any
8

postdivorce "increased value of real estate resulting from

market conditions should be divided between both parties");

Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985) ("Where

the division of property under § 34 takes place . . . after the

divorce, the property subject to division is to be valued as of

the date of the order for division. . . . Thus, the parties

equitably share in any appreciation or depreciation in the value

of the property").

Similarly, where, as here, the property division was

vacated and remanded for a new trial, "[t]his resulted in the

case standing as if no judgment had been entered with respect to

the [property] division." Johnson, 53 Mass. App. Ct. at 420.

Accordingly, the remand judge "was charged with dividing the

property anew, applying the [G. L. c. 208,] § 34[,] factors as

of the date of divorce." Johnson, supra at 421. The remand

judge "then was required to consider whether there had been any

appreciation or depreciation with respect to the property, and

if so, the extent to which such appreciation was attributable to

one or the other of the parties or to some independent cause."

Id. at 421-422. "[I]f the postdivorce increase . . . is

attributable only to the postdivorce efforts of one spouse," the

remand judge should treat the "postdivorce increase . . . in the

value of the property . . . as an after-acquired asset, not

subject to division." Id. at 421. However, "[w]here
9

postdivorce appreciation . . . is not attributable to the

postdivorce efforts of one spouse alone after the divorce," the

appreciation should be treated as part of the marital estate and

divided accordingly. Id.

Despite the largely uncontroverted evidence presented by

the parties of significant postdivorce appreciation for all five

properties, the remand judge ultimately valued the properties as

of the 2013 divorce. He found, without explanation, that there

was no credible evidence of any postdivorce appreciation despite

the agreement of the parties to the value of at least three

properties, and thus failed to perform the second step of the

Johnson analysis, i.e., determining the extent to which the

postdivorce appreciation was attributable to one party's

efforts, to both parties' efforts, or to some independent cause.

See Johnson, 53 Mass. App. Ct. at 421-422.

The remand judge was "plainly wrong" in finding no credible

evidence of postdivorce appreciation for the sale of Unit 406

for $719,000, given that he apparently credited the husband's

testimony that the property had been sold for that amount, yet

he offered no explanation as to why he rejected it as credible,

direct evidence of a bona fide sale establishing the property's

most recent fair market value (citation omitted). Zaleski v.

Zaleski, 469 Mass. 230, 237 (2014). See Tigar v. Mystic River

Bridge Auth., 329 Mass. 514, 517 (1952) ("Fair market value
10

'means the highest price which a hypothetical willing buyer

would pay to a hypothetical willing seller in an assumed free

and open market'" [citation omitted]). We see no basis in the

record for the judge's decision to reject this uncontroverted,

direct evidence of the property's postdivorce value.

Accordingly, the judge's valuation of Unit 406 as of 2013,

rather than as of the 2018 sale, was clearly erroneous. See

Martin v. Martin, 70 Mass. App. Ct. 547, 549 (2007) (finding is

"clearly erroneous when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed"

[quotation and citation omitted]).

The 2018 sale price of Unit 406 reflects a postdivorce

appreciation of $329,000, one hundred percent of which the

husband retained as a result of the 2020 judgment. The remand

judge, however, made no findings indicating that this

appreciation was attributable solely to the husband's efforts,

nor is there any uncontroverted evidence in the record

compelling such a conclusion. In the absence of such findings,

it was error to allow the husband to retain the entirety of the

postdivorce appreciation of Unit 406. See Johnson, 53 Mass.

App. Ct. at 421. Accordingly, on remand, the judge must make

findings as required by Johnson, supra, addressing whether the

postdivorce appreciation of Unit 406 in the amount of $329,000
11

was attributable to one party's sole efforts, to both parties'

efforts, or to some other cause (such as passive appreciation

attributable to market conditions), and divide such appreciation

accordingly.

As to the other four properties, both parties submitted

evidence of 2020 property values, reflecting a total increase of

more than $1.5 million since 2013.6 This was competent evidence

on which the remand judge could rely. See Williams v. Massa,

431 Mass. 619, 629-630 (2000). Where it was undisputed that all

four properties had appreciated considerably since 2013, and the

remand judge's reasons for rejecting this undisputed evidence

are not readily apparent, he should have explained his rationale

for declining to credit the 2020 values submitted by the

parties. Cf. Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct.

525, 532 (2016) (remanding to allow judge to "explain his

rationale, or make an alternate disposition," where basis for

judge's decision was unclear). Accordingly, on remand, the

judge should explain his rationale for rejecting the

uncontroverted evidence of 2020 property values. The remand

6 The value of the wife's residence increased by $268,267
(from $357,923 to $626,190); the value of the husband's
residence increased by $375,000 (from $525,000 to $900,000); the
value of the office space increased by approximately $325,600
(from $660,000 to at least $985,600); the value of the rental
property increased by $234,000 (from $305,000 to $539,000); and
the value of Unit 406 increased by $329,000 (from $390,000 to
$719,000).
12

judge may, in the alternative, amend his findings to use 2020

property values where warranted by the evidence. To the extent

that his findings on remand reflect postdivorce appreciation for

any or all of the four properties, the remand judge should

(a) make findings addressing whether such postdivorce

appreciation is attributable to one party's efforts, both

parties' efforts, or to some other cause (such as passive

appreciation); and (b) divide such postdivorce appreciation

accordingly. See Johnson, 53 Mass. App. Ct. at 421-422.

Insofar as the remand judge also cited "the length of time

that has passed between the divorce trial and the remand trial"

as a consideration for valuing the properties as of 2013 (the

date of divorce) instead of 2020 (the date of division), the

passage of time alone is an insufficient basis for selecting an

earlier valuation date. The date for valuing marital assets is

typically the date of division -- regardless of whether the

division occurs at the time of the divorce, or in a postdivorce

proceeding. See Child, 58 Mass. App. Ct. at 79. While a judge

has discretion to choose a valuation date that precedes the date

of division in certain circumstances, see, e.g., Savides, 400

Mass. at 252–253; Daugherty v. Daugherty, 50 Mass. App. Ct. 738,

741–742 (2001), the valuation date is generally tied to the date

on which the parties ceased their joint efforts in contributing

to the marital enterprise. See Child, supra at 79-80, and cases
13

cited. In other words, the valuation date must bear some

relationship to the end of the marital partnership. See id.

Here, because the remand judge rejected all evidence of

postdivorce appreciation without explanation, he did not make

findings addressing whether any postdivorce appreciation of the

properties was passive or due to the efforts of one or both

parties. This inquiry not only involves consideration of a

party's postdivorce "contributions to the upkeep and improvement

of the property,"7 but also consideration of other relevant

contributions, such as a party's care and support of a dependent

child,8 in determining whether postdivorce appreciation is

attributable to one or both parties. Johnson, 53 Mass. App. Ct.

at 422-423. See Pare, 409 Mass. at 297, quoting Putnam v.

Putnam, 5 Mass. App. Ct. 10, 17 (1977) ("By focusing on the

narrow issue of which spouse paid more toward the house, the

judge overlooked the principle that '[t]he concept of property

7 As an example, the remand judge could have –- but did not
-- consider what the parties paid in taxes, condominium fees,
and upkeep of the properties following the 2013 judgment. The
evidence reflects that between 2013 and 2020, the wife was
responsible for managing three of the four properties divided in
the remand judgment. In October 2013, the wife took over
management of the rental property. The wife also appeared to be
responsible for maintaining the office space, as it was
originally assigned to her in the 2013 judgment, along with her
residence.

8 Here, the wife was granted primary physical custody of the
parties' child, who was seventeen at the time of the 2013
judgment.
14

assignment . . . must be read to apply in a broad sense to the

value of all contributions of the respective spouses towards the

marital enterprise'"). In the absence of evidence about the

parties' contributions to the postdivorce appreciation of the

marital estate property, "the correct procedure is to value the

divisible property as of the date of the order of division," --

here, 2020 -- "and apportion postdivorce appreciation in the

value of the property between the parties." Child, 58 Mass.

App. Ct. at 79-80. Similarly, if the appreciation in the value

of the real property was due solely to market forces, that

increase is divisible between the parties. See Pare, supra at

297-298; Johnson, supra at 421.

By valuing the marital estate as of the 2013 judgment,

rather than the 2020 division, the 2020 judgment has the

unintended consequence of disparately dividing the assets,

despite the remand judge's stated goal of dividing the property

equally. Because the remand judge's conclusions are not

apparent and do not flow rationally from his findings, we are

constrained to remand the case for further proceedings

consistent with this opinion.9 See Bowring v. Reid, 399 Mass.

265, 267-268 (1987).

9 The judge need not take additional evidence, but may do so
in his discretion.
15

Conclusion.10 So much of the 2020 judgment as divides the

real property and requires the husband to make a cash payment to

the wife is vacated, and the case is remanded for further

proceedings consistent with this opinion. In all other

respects, the 2020 judgment is affirmed.

So ordered.

10 We briefly address the wife's claim that the remand
judge, in awarding the office space to the husband, erred by
failing to consider its effect on the wife's employment and
ability to earn future income. She contends that she lost her
sole source of income when the husband was awarded the office
space. This claim was not raised in the Probate and Family
Court, and therefore it is waived. See Trapp v. Roden, 473
Mass. 210, 220 n.12 (2015). We do note, however, that
consistent with the parties' financial statements and trial
testimony, the remand judge made findings, pursuant to G. L.
c. 208, § 34, as to the parties' needs, other assets, income,
expenses, and liabilities, as well as their abilities to acquire
future assets and income, none of which are clearly erroneous.
See Martin, 70 Mass. App. Ct. at 549.