Wesley A. Nagy v. Meta Elizabeth Nagy.

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

23-P-219

WESLEY A. NAGY

vs.

META ELIZABETH NAGY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Wesley Nagy (husband) appeals from a divorce judgment dated

August 12, 2022, as amended by order dated December 8, 2022.

The husband raises two primary issues on appeal. First, he

contends that the judge erred in selecting the date of the

parties' separation in 2017 as the valuation date for the real

estate that was part of the marital estate. Second, he argues

that the judge's allocation of the real estate was an abuse of

discretion because it left him without a place from which to

work. Because we conclude that Savides v. Savides, 400 Mass.

250 (1987), does not justify the approach the judge took here

with respect to the date of valuation of the real estate, we

vacate the portion of the judgment, as amended, related to the

date of valuation of the real estate and remand for further

proceedings and findings.
We summarize only the facts pertinent to this appeal,

noting that the judge made extensive additional detailed

findings after a trial held on seven separate days between May

2021 and February 23, 2022, concerning the division of marital

assets and alimony. The parties were married on September 8,

1990 and, over the course of their twenty-six year, seven month

marriage, purchased and improved several properties. At various

times, the properties were used to generate income either

directly through rental income or indirectly to the extent they

were used in connection with the parties' respective business

activities. The parties last lived together on March 18, 2017,

and the husband filed a complaint for divorce a few weeks later,

on April 7, 2017. The judge found that the marriage

"effectively ended" when the parties separated and that, since

the date of their separation, the parties have been economically

independent with little or no contribution to each other's

expenses.

At the crux of this appeal is the division and valuation of

four pieces of real estate jointly owned by the parties on

Martha's Vineyard. The parties agree that the fair market value

of the properties increased significantly between the date of

separation and the date of trial as follows:

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Property FMV 3/2017-10/2017 FMV 2/9/2021 Difference

25 Averill $610,000 $835,000 $225,000
34 Averill $795,000 $950,000 $155,000
24 Cournoyer $1,275,000 $1,440,000 $165,000
50 Old Lighthouse $510,000 $650,000 $140,000

Total $685,000

They disagreed, however, whether the increase was due (in whole

or part) to the wife's postseparation maintenance and

improvements to the properties, in any part to the husband's

postseparation improvements, or (in whole or part) to market

forces unrelated to either parties' efforts. The judge did not

sort these questions out because, relying on Savides v. Savides,

400 Mass. 250 (1987), the judge selected 2017, the year of

separation,

"as the date as of which to divide the real estate because
[the h]usband did not contribute financially to the
marriage after this date. Beyond that, as explained above,
[the w]ife was responsible for all costs and expenses
associated with the properties, while [the h]usband was
able to live in multiple of the properties, free of any
obligation to pay rent and utilities."

"The determination of the appropriate valuation date [for

the division of marital assets] is left to the discretion of the

trial judge. Except where 'warranted by the circumstances of a

particular case,' however, the valuation date typically is the

date of trial" (citations omitted). Connor v. Benedict, 481

Mass. 567, 576 (2019), quoting Moriarty v. Stone, 41 Mass. App.

Ct. 151, 154 (1996). The date of separation may be used as the

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date of valuation if the increase in the value of the property

"was solely attributable to" one spouse's efforts and the other

spouse made no contribution to the marriage after that time.

Savides, 400 Mass. at 253. In Savides, the issue was the

division of the husband's automobile business, which had grown

substantially in value after the date of separation due solely

to the husband's efforts and after the wife had stopped

contributing to the marriage. Id. at 251-252. We note that,

unlike the business asset involved in Savides, the real estate

at issue in this case was jointly acquired during the marriage

through the parties' shared efforts and financial contributions.

Here, although the judge found that the husband did not

contribute financially to the marriage after the date of

separation and that the wife bore the costs of maintaining and

improving the real estate after the separation (findings that

have not been shown to be clearly erroneous, see Mass. R. Dom.

Rel. P. 52 [a]), the judge did not find that the $685,000

increase in the fair market value of the real estate was due

solely to the wife's postseparation maintenance and improvement

of them. See Johnson v. Johnson, 53 Mass. App. Ct. 416, 422

(2001) (any appreciation in value of real estate that is due

solely to the efforts of one spouse is not divisible). To the

contrary, there was evidence that market forces may have also

played a role in the increase. In the circumstances, the judge

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was required to assess whether the postseparation increase in

the fair market value was attributable solely to the wife's

postseparation efforts, or whether it was due in part to market

forces and, if so, to what degree. See Obara v. Ghoreishi, 103

Mass. App. Ct. 549, 552-556 (2023) (appreciation attributable to

efforts of both spouses and to market conditions should be

divided between parties); Willis v. Willis, 27 Mass. App. Ct.

1144, 1145-1146 (1989) (marital home should have been valued at

time of order of division and not at earlier time where no

evidence appreciation was attributable solely to husband's

efforts). A remand is thus required for further findings on

these points.

The husband also argues that the judge abused her

discretion in awarding three of the four pieces of real estate

to the wife, in part so that she could continue to operate her

medical practice, while awarding only one to the husband. The

husband acknowledges that the judge ordered an equalizing

payment from the wife to the husband to account for the

difference in value between the properties awarded to the wife

and those awarded to the husband. Nonetheless, the husband

argues that the judge abused her discretion because the property

he was awarded was insufficient to accommodate the storage of

tools and equipment necessary for his contracting business. He

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argues that the judge favored the wife's ability to continue her

medical practice over his ability to continue his work.

The husband has not argued, let alone shown, that the

judge's findings concerning his health, employment, and

employability were clearly erroneous. In pertinent part, the

judge found that the husband was sixty-six years old by the end

of the trial, that he had multiple medical issues during the

marriage that had significantly affected his physical health and

his ability to engage in construction work, and that he was

employed at the time of trial as a musician rather than in

construction. In addition, the judge found that the husband

(like the wife) faced future limitations in employment due to

age and health, but that he would be able to continue to earn

income as a musician. There was no evidence that the husband's

work as a musician would be impeded or impaired by awarding him

only one of the pieces of real estate. And, although the

husband argues that the judge should not have discounted the

possibility that he might return to work in construction, he

does not cite any evidence to take that assertion beyond the

realm of speculation. On the other hand, the judge found that

some of the properties were essential for the wife's medical

practice and serious environmental sensitivities. In addition,

the judge considered that 50 Old Lighthouse (the property

awarded to the husband) was capable of generating rental income

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should the husband wish to use it for that purpose. On the

facts as she found them, the judge did not abuse her discretion

in awarding the husband only the property located at 50 Old

Lighthouse while awarding the other three to the wife. See

G. L. c. 208, § 34 (factors to be considered in division of

assets). We note, however, that the equalizing payment the

judge ordered in consideration of the fact that the husband was

to receive only one of the four properties may be affected after

the judge, on remand, determines whether the wife's

postseparation efforts are the sole cause of the increase in

fair market value of the real estate.

So much of the divorce judgment, as amended, that

established 2017 as the year of valuation is vacated. The

matter is remanded on the limited issue of whether and, if so,

to what degree, the increase in fair market value of the real

estate between the date of separation and the date of trial is

due solely to the wife's postseparation efforts. If, on remand,

the judge determines that all or some of the increase is

attributable to market forces, then the judge should consider

the relationship between the amount of increase due to the

market and that due solely to the wife's efforts. If some

portion of the increase is due to the market, then the judge

should consider whether, and to what degree, to award the

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husband a portion of the market-based increase. 1 The judgment is

in all other respects affirmed. 2

So ordered.

By the Court (Wolohojian,
Neyman & Shin, JJ. 3),

Assistant Clerk

Entered: January 29, 2024.

1 In her discretion, the judge may take additional evidence.
2 The wife's request for attorney's fees in connection with this
appeal is denied.
3 The panelists are listed in order of seniority.

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