Sherryann Quindley v. Patrick Tormey Burke.

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-926

SHERRYANN QUINDLEY

vs.

PATRICK TORMEY BURKE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The husband, Patrick Tormey Burke, appeals from the amended

judgment of divorce nisi entered by a Probate and Family Court

judge, as well as from the denials of (1) his complaint seeking

to hold the wife, SherryAnn Quindley, in contempt of court and

(2) his motion to amend the judgments. We conclude that further

factual findings are required to support treating the wife's

Federal Employees Retirement System pension as a stream of

income instead of as a divisible marital asset. Further

concluding that the trial judge acted within his discretion in

resolving the issues arising from the wife's withdrawals from

her Thrift Savings Plan (TSP) without finding her in contempt

and in ordering the parties to file a joint 2020 tax return, we

affirm in part and vacate in part and remand the case for

further proceedings.
1. Standard of review. "[A] judge 'has considerable

discretion in determining how to divide [marital] assets

equitably.'" Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110

(2016), quoting Baccanti v. Morton, 434 Mass. 787, 792 (2001).

"Although we review the propriety of the legal standards applied

by the judge, the discretionary determinations of property

division 'will not be reversed unless plainly wrong and

excessive.'" Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 510

(2018), quoting Hassey v. Hassey, 85 Mass. App. Ct. 518, 524

(2014). "[F]indings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the credibility of

the witnesses." Mason v. Coleman, 447 Mass. 177, 186 (2006),

quoting Mass. R. Dom. Rel. P. 52 (a).

2. Pension. The husband and the wife were married in

2005, and the divorce judgment nisi entered in 2021. The wife

worked as a Federal agent for more than thirty years, from May

1990 to July 2020. She retired during the divorce proceedings

and began receiving her Federal pension. The pension was

$1,343.77 per week in April 2021. In the divorce judgment, the

judge awarded no alimony and treated the wife's pension payments

as income for the wife, not as a marital asset. The husband

challenges that decision, arguing that the wife's pension was an

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asset of the marital estate accrued during marriage, which,

accordingly, should have been shared with the husband.1

"The majority of our cases have treated retirement benefits

and pensions as marital assets subject to equitable

distribution." Casey v. Casey, 79 Mass. App. Ct. 623, 629-630

(2011). But this treatment is not invariably compelled. See

Andrews v. Andrews, 27 Mass. App. Ct. 759, 761 (1989). Rather,

"[a]limony and equitable division are interrelated remedies; the

combination must make sense." Id. Two cases illustrate this

interrelationship.

First, in Andrews, 27 Mass. App. Ct. at 761, we upheld the

trial judge's decision to treat the husband's pension as a

stream of income because that treatment justified an award of

alimony, which could be altered if the wife's health changed,

and "the total award to the wife was not inadequate." See id.

("Unlike equitable division, which cannot be altered, alimony is

subject to modification" [citations omitted]). At the time of

the divorce, the wife was suffering from a major suicidal

depression, and she was on a leave of absence from her work as

an elementary school teacher. Id. at 760. Her future health

and therefore future financial needs were uncertain. Id. The

husband, meanwhile, was retired with no income other than his

1 We note that the wife had worked as a Federal agent for over
fifteen years before marrying the husband.

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pension. Id. The judge treated the wife's pension as a stream

of income for her, assigned her approximately sixty-five percent

of the nonpension assets, and awarded her alimony of thirty

percent of the husband's monthly pension receipts and health

insurance provided by the husband, both until her pension

reached pay status. Id. This award was equitable; if the

pensions had instead been treated as marital assets, this same

division would have equated to the wife's having received

approximately 48.61% of the marital estate (representing a

difference of just over $40,000), plus health coverage at the

husband's expense for about 6.5 years. Id. at 759-760.

On the other hand, in Casey, 79 Mass. App. Ct. at 626, 629,

we held that treating the husband's military pension as a stream

of income where the husband was otherwise employed, there was no

alimony award to the wife, and the remaining marital assets were

divided equally resulted in an award that was not equitable to

the wife. The trial judge reasoned that "[t]reating the

military pension as a source of income entitles Wife to a

greater child support amount." Id. at 633. This additional

payment to the wife, however, did not come close to bridging the

gap between what the wife likely would have received if the

pension had been treated as part of the marital estate and the

increase in child support payments. See id. at 632, 635 n.18.

Instead, it widened the gap between the parties' post-divorce

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financial positions. See id. at 626-627. Apart from the

pension, the husband commanded a significantly higher salary

than the wife, earning almost twice as much as the wife's

imputed income. Id. at 626. With the pension as a stream of

income, the husband earned nearly three times as much as the

wife. Id. Because there was no reason to justify such an

unequal division, the result was inequitable. Id. at 632.

The wife here suggests that treating the pension as a

stream of income is justified because it is coupled with no

alimony award, which otherwise, she asserts, would have been

required. If the judge's decision to leave the entire pension

with the wife was in lieu of an award of alimony, we would be

unlikely to find an abuse of the trial judge's discretion. See

Warnajtys v. Warnajtys, 97 Mass. App. Ct. 690, 693 (2020),

quoting Ross v. Ross, 50 Mass. App. Ct. 77, 81 (2000)

("Mathematical precision is not required of equitable division

of property"). Nonetheless, the trial judge did not provide

this explanation, and we do not know whether this was the trial

judge's reasoning.

We cannot reach this conclusion on our own. The trial

judge made well-supported findings that "[b]oth Parties are in a

good position to acquire future income, through their respective

skill sets," and "it is likely that each Party is waiting until

this matter is finalized before exploring further

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employment/business opportunities." We do not know what income,

if any, the trial judge imputed to the parties, or how that

imputed income potentially impacts alimony.2 Accordingly, we

must remand the issue to the trial judge for further

consideration. Although we remand only the treatment of the

pension, because the asset division and the treatment of the

pension may be interrelated, the judge is free on remand to

adjust the division of other marital assets or even to award

alimony if that best achieves an equitable result.3

3. TSP withdrawals. Under the so-called automatic

restraining order in divorce proceedings,

"(1) Neither party shall sell, transfer, encumber, conceal,
assign, remove or in any way dispose of any property, real
or personal, belonging to or acquired by, either party,
except: (a) as required for reasonable expenses of living;
(b) in the ordinary and usual course of business; (c) in
the ordinary and usual course of investing; (d) for payment
of reasonable attorney's fees and costs in connection with
the action; (e) written agreement of both parties; or
(f) by order of the court."

Rule 411 (a) (1) of the Supplemental Rules of the Probate Court

(2022). "[I]n order to find a defendant in civil contempt there

must be a clear and unequivocal command and an equally clear and

2 By treating the wife's pension as a stream of income, the
wife's weekly income is $1,725. The husband's weekly income is
$1,926.05.
3 We do not mean to suggest that, with proper supporting

findings, the judge could not reach the same result, both as to
the pension and the rest of the marital estate. We merely mean
to leave the judge with maximum flexibility to achieve an
equitable result.

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undoubted disobedience." Hoort v. Hoort, 85 Mass. App. Ct. 363,

365 (2014), quoting Larson v. Larson, 28 Mass. App. Ct. 338, 340

(1990). "We review a judge's ultimate finding of contempt for

an abuse of discretion, and we subject questions of law to

plenary review." Department of Revenue Child Support

Enforcement v. Grullon, 485 Mass. 129, 134 (2020). Here, the

trial judge acted within his discretion in finding that all but

one of the wife's withdrawals from her TSP were permissible

under the automatic restraining order and in fashioning a remedy

addressing the impermissible final withdrawal.

The trial judge found that all but one of the withdrawals

"were used for living expenses, repairs, and the like." This

finding is supported by the wife's testimony, which the trial

judge was permitted to credit.4 See Hunter v. Rose, 463 Mass.

488, 497-498 (2012). Based on this finding, the trial judge

permissibly found that these withdrawals were proper. See

Connor v. Benedict, 481 Mass. 567, 579-580 (2019) (affirming

trial judge's decision to split debt from purchases despite

4 The wife testified that she spent the February 9 $100,000
withdrawal on taxes associated with that withdrawal, car
repairs, a rental car, a mattress, and attorney's fees for this
divorce action; the November 4 $120,000 withdrawal on taxes
associated with that withdrawal and paying off a home equity
line of credit, which she had borrowed from to pay her living
expenses; and the December 17 $12,000 withdrawal on taxes
associated with that withdrawal and a service dog.

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automatic restraining order where "wife's purchase of furniture

was not unreasonable").

As for the remaining withdrawal of $250,000, the trial

judge found that the TSP was valued at just under $1,250,000

before that withdrawal and used the prewithdrawal value in the

asset division calculation. Using the prewithdrawal amount

penalized the wife by counting that withdrawal against her and

then treating the $200,000 promissory note that she obtained by

spending the post-tax amount of the withdrawal as an asset

subject to division. This was a sufficient remedy for any

impropriety by the wife.

The husband argues in his reply brief, however, that the

trial judge's finding that the value of the TSP before this

final withdrawal was just under $1,250,000 was incorrect. This

argument was not properly raised before us, see Allen v. Allen,

86 Mass. App. Ct. 295, 302 n.11 (2014), quoting Pasquale v.

Casale, 72 Mass. App. Ct. 729, 738 (2008) ("Any issue raised for

the first time in an appellant's reply brief comes too late, and

we do not consider it"), but, regardless, the evidence before

the trial judge was ambiguous as to the value of the TSP before

and after the last withdrawal, and the trial judge's conclusion

that it was valued at just under $1,250,000 before the $250,000

withdrawal was not clearly erroneous.

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According to the wife's financial statement, the TSP was

valued at "$1,247,211.29." Two footnotes follow this valuation:

The first states, "Balances are as of April 3, 2021," and the

second states, "The Wife has a Promissory Note from Stepstone

Connect which promises to pay the sum of $200,000.00 with

interest from April 16, 2021, on the unpaid principal at the

rate of 12% per annum. The total amount of the Promissory Note

plus interest is due payable in full on April 19, 2023." At

trial, the wife testified inconsistently regarding the date of

the $1,247,211.29 value. Faced with ambiguous testimony, the

trial judge permissibly credited the evidence that the value of

the TSP in the wife's financial statement was, as the financial

statement reported, from before the $250,000 withdrawal. See

Hunter, 463 Mass. at 497-498.

We acknowledge that, apparently shortly after he received

the judge's findings, the husband requested and obtained a

document from the manager of the TSP that appears to contradict

this testimony and then submitted the document to the judge

nearly three months later. Although the trial judge could have

considered this evidence (and presumably still could choose to

consider it on remand), he acted well within his discretion in

not amending the judgments based on evidence provided so late

without an adequate excuse. See Dilanian, 94 Mass. App. Ct. at

516.

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4. Tax returns. Generally, a trial "judge should consider

the tax consequences arising from a [divorce] judgment." L.J.S.

v. J.E.S., 464 Mass. 346, 350 (2013). But "[i]f parties do not

request the judge to consider particular tax consequences and do

not introduce reasonably instructive evidence bearing on those

tax issues, the probate judge is not bound to grapple with the

tax issues." Ross, 50 Mass. App. Ct. at 83, quoting Fechtor v.

Fechtor, 26 Mass. App. Ct. 859, 866 (1989). See E.J. Dockter,

Financial Aspects of Divorce in Massachusetts § 3.4 (2d ed.

2023) ("it is imperative that the practitioner investigate tax

consequences prior to settling a case or in advance of the

commencement of trial"). "The [trial] judge has 'considerable

discretion' to make [tax consequence] determinations." L.J.S.,

supra at 352, quoting Pierce v. Pierce, 455 Mass. 286, 293

(2009).

It could hardly come as a surprise to the husband that the

judge's order would include a provision about taxes. Both

parties testified that they historically filed their taxes

jointly, and the husband testified that they had not yet filed

their 2020 taxes.5 The trial judge reasonably concluded that the

5 There was a substantial amount of additional testimony and
evidence on taxes. The husband included tax information in
several parts of his financial statement; the wife testified
that the husband was historically responsible for paying real
estate taxes with money from their joint checking account; the
husband testified to how the Polish taxes were paid; the husband

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parties should file a joint 2020 tax return, consistent with

their historical practice.6 See C.P. Kindregan, Jr., M. McBrien,

& P.A. Kindregan, Family Law and Practice § 16:5 (4th ed. 2013)

("In general, 'married filing jointly' provides the best tax

situation for couples not yet divorced").

The husband moved to amend the judgments, arguing that

requiring the parties to file a joint tax return would "result[]

in higher combined income taxes" and submitting hypothetical tax

returns aimed at demonstrating this. The husband did not

explain the assumptions he made in filling out Form 1116

(foreign tax credit) or Form 2555 (foreign earned income) or

provide the Foreign Earned Income Tax Worksheet from page 35 of

the 2020 General Instructions that, presumably, was used to

calculate line 16 of Form 1040. The husband did not provide an

opinion from a disinterested certified public accountant7 to

support his assertions, and the trial judge was not required to

testified that he had not received any income or tax reporting
documents from his wife yet for the 2020 taxes; and the husband
testified that they had received a refund in 2019, and that part
of that refund was applied toward 2020 taxes.
6 The husband's argument that Federal law prohibits requiring a

joint return was not raised before the trial judge and therefore
is waived. See Carey v. New England Organ Bank, 446 Mass. 270,
285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of
New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989)
("An issue not raised or argued below may not be argued for the
first time on appeal").
7 The husband, although licensed as a certified public

accountant, testified that he had not practiced since 1995.

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credit the husband's personally-prepared, unexplained tax

returns. Under these circumstances, the judge acted well within

his discretion in not amending the judgments to remove the

requirement of joint filing.8

5. Conclusion. The judgment on the husband's complaint

for contempt is affirmed. Paragraph six of the amended judgment

of divorce nisi is vacated, and the matter is remanded for

further proceedings in accordance with this decision. The

amended judgment is otherwise affirmed, as is the order denying

the motion to amend.9

So ordered.

By the Court (Ditkoff,
Englander & Walsh, JJ.10),

Assistant Clerk

Entered: February 20, 2024.

8 We do recognize that the use of the Foreign Earned Income Tax
Worksheet to calculate tax due is one of the rare situations in
which, in theory, filing separately can be more advantageous
than filing jointly. On remand, the judge is free (in his
discretion) to reconsider this requirement on proper request,
especially if a disinterested accountant's opinion is provided.
9 The wife's request for attorney's fees is denied. The
husband's appeal is not frivolous. See Vera V. v. Seymour S.,
98 Mass. App. Ct. 315, 320 n.9 (2020).
10 The panelists are listed in order of seniority.

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