Brad S. Richard v. Tricia A. Richard.

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-919

BRAD S. RICHARD

vs.

TRICIA A. RICHARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The wife appeals from a judgment of divorce nisi and from

orders denying her postjudgment motions to amend the judge's

findings. She argues that the judge abused her discretion by

(1) failing to consider the husband's past substance use in

determining the parties' respective ability to parent their two

minor children, and (2) failing to include in the marital estate

the value of the home that the parties occupied, assertedly

under a rent-to-own agreement. Seeing no abuse of discretion,

we affirm.

1. Child custody. a. Background. As the judge found

after trial, the parties were married in 2008 and have two minor

children. During the early years of their marriage, both
parties used cocaine, alcohol, and marijuana excessively. The

husband stopped using these substances to excess after two years

of marriage, although he continued to use marijuana and alcohol

regularly, and has no history of substance use treatment or

hospitalization. The wife, however, continued to use alcohol

excessively and has been hospitalized for alcohol use treatment

and related health issues. Her alcohol use jeopardized the

children's safety and wellbeing and ultimately led to the

breakdown of the marriage. During the pendency of this case,

she denied being an alcoholic and lied to the court about her

ongoing alcohol use.

Earlier in the marriage, the wife was the primary caregiver

of the two children. However, her alcohol use eventually

interfered significantly with her ability to fill that role, and

by the time of trial, the husband had been the primary caregiver

for several years, meeting the children's academic, social, and

emotional needs. The husband facilitated the children's visits

with the wife, when she was sufficiently sober for visits to be

safe. Based on the wife's continuing problems with alcohol use,

the judge found that it was in the children's best interests to

remain in the primary care of the husband. The judge awarded

legal custody to the parties jointly and physical custody to the

husband, with a detailed plan for parenting time for the wife,

subject to alcohol monitoring.

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b. Discussion. The wife requests no specific relief

regarding custody. Her brief requests a new trial on the issue,

yet she did not file any motion for a new trial before taking

this appeal, nor does she identify any particular error

occurring at trial that would make a new trial appropriate.1

Rather, she appears to argue that the judge abused her

discretion by giving insufficient consideration to certain

factors bearing on custody. We are unpersuaded.

The wife first argues that the judge failed to connect the

wife's problems with alcohol use to her ability to parent. Yet

the judge's findings describe instances in which the wife's

intoxication impaired her ability to supervise her children and

keep them safe. She passed out from alcohol use while the

children were in her care, and on another occasion one of the

children glued his eyes together while the wife was under the

influence.

The wife also asserts that the judge failed to assess

whether the husband was addressing his own alcohol addiction and

how it affected his husband's parenting ability. This claim is

1 The wife also filed a postjudgment motion to amend two
findings of fact concerning her alcohol use and other health
issues. The judge denied the motion, and the wife appealed from
that order, but her brief makes no argument concerning the
order. The issue is therefore waived, and we do not discuss it
further.

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unavailing. The judge found that the husband, although

continuing to use alcohol and marijuana, did not have any

current problems with substance use or addiction, and that he

was meeting the needs of the children as their primary

caretaker.

A judge "must settle custody in a manner that advances the

best interests of the children." Bak v. Bak, 24 Mass. App. Ct.

608, 616 (1987). Reviewing the custody determination "only for

abuse of discretion," we see none here. See Murphy v. Murphy,

82 Mass. App. Ct. 186, 193 (2012).

2. Ownership of marital home. a. Background. During the

marriage, the parties lived in a home owned by the husband's

mother. In her April 2022 pretrial memorandum, the wife

asserted that the mother had purchased the property specifically

for the parties' use and their eventual acquisition through a

rent-to-own agreement, but that the property had never been

conveyed to them. The wife's memorandum listed the valuation

and division of the property as triable issues. She

acknowledged, however, that neither she nor the husband had

listed any interest in the property on their financial

statements.2 Her memorandum further stated that she "has or will

2 Our review of the issue is hampered by the wife's failure
to include the financial statements in her record appendix.
This violates the "fundamental and long-standing rule of
appellate civil practice" that the appellant has an obligation

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file an [e]quity [c]omplaint to address the constructive or

resulting trust created by this transaction and breach." The

judge declined to include the matter in the list of contested

issues for trial.

In June 2022, the wife filed a separate action against the

mother in District Court, seeking to recover the value of her

asserted investment in the marital home, either through the

imposition of a constructive or resulting trust or through an

award of damages. The wife later amended her complaint to name

the husband as an additional defendant, and the case was

transferred to Superior Court. We take judicial notice of these

filings. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court

may take judicial notice of court records in related case).

In November 2022, in the divorce action, the wife filed a

motion in limine to add to the list of issues for trial the

parties' interests in the property. The judge denied the

motion. As a result, the wife contends, she was unable to

introduce evidence to show that the property was part of the

marital estate.

"to include in the appendix those parts of the . . . [record
that] are essential for review of the issues raised on appeal."
Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371,
372-373 (1991), S.C., 411 Mass. 807 (1992).

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Nevertheless, at trial in February 2023, the wife elicited

some testimony on the issue from the husband. The judge, in

finding of fact number 56 (finding 56), credited that testimony

and concluded that the parties paid rent to the husband's

mother, and hoped and planned to purchase the property from her

one day, but never did so. The property was held in the name of

the husband's mother, and the judge concluded it was not a

marital asset. The remainder of the parties' assets were

divided according to their separation agreement, which was

incorporated in the judgment.

After judgment entered, the wife moved to amend the judge's

findings by deleting finding 56, or in the alternative for a new

trial. The wife argued that finding 56 was erroneous in that

there was not merely a hope and a plan to purchase the home, but

an agreement to so do. Although the motion stated that attached

thereto were numerous supporting exhibits, the wife's record

appendix omits several of those exhibits, including the mother's

deposition testimony, her interrogatory answers, a "notarized

agreement," and an affidavit from the husband. See note 2

supra. The judge denied the motion to amend the findings, and

the wife has appealed from that order.

b. Discussion. On appeal, the wife first argues that the

judged abused her discretion by excluding evidence of the

parties' rent-to-own interest in the marital home and by

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excluding the value of that interest from the divisible estate.

The wife contends that such evidence would have shown what was

the value of the parties' interest and that it was recoverable

through a claim against the mother. The wife asserts that the

value of the claim should have been included in the marital

estate and divided on an "if and when received" basis.

"A divorcing spouse's enforceable right to an asset

generally permits that asset to be included in the marital

estate." Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 111

(2016). Where a loss affects both spouses, the value of "an

enforceable, ripened, and pending claim for money damages"

brought by one spouse against a third party may be included in

the marital estate. Hanify v. Hanify, 403 Mass. 184, 188

(1988). Such a claim is a "chose in action" and, if its present

valuation is uncertain, a judge in a divorce case may "order

that any future recovery or payment be divided, if and when

received, according to a formula fixed in the property

assignment." Id.

Here, however, unlike in Hanify, the wife did not seek her

share of potential future damages, or an interest in property,

that would otherwise accrue to the husband on a claim he alone

had asserted. Compare Hanify, 403 Mass. at 188-189. Here, it

is the wife herself who brought the claim, even while failing to

list it as marital property in her financial statement. To be

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sure, she named the husband as a defendant, but if her

allegations of a rent-to-own agreement are proven in the

Superior Court case, the husband presumably will share in the

recovery. A Superior Court judge is as capable as the judge in

this divorce case of determining, based on whatever evidence may

be presented at trial, whether and how any recovery should be

equitably divided.

Notably, the judge here did not determine what would be the

most equitable division of the parties' other property, or any

part of it. She had no occasion to do so, because the parties

themselves divided it all in their separation agreement. Thus

this is not a case where a judge could simply have ordered that

proceeds of the pending claim, "if and when received," be

divided in the same proportion as the rest of the estate.

Hanify, 403 Mass. at 189. Similarly, this is not a case where

any future division of the proceeds by a Superior Court judge

might upset some equitable division scheme already settled upon

by the divorce judge.

Tellingly, the wife here does not propose any formula for

dividing any proceeds of her pending claim. Nor does she point

to any principle of divorce law that might require a different

division of any recovery than contract or property law might

require. We do not intimate that any particular division, or

any division at all, would be required. That issue may depend

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on the resolution of factual issues that could not be settled in

binding fashion in this divorce action, because the mother -- a

party to the claimed rent-to-own agreement, and a defendant in

the Superior Court case -- is not a party here.

For all of the foregoing reasons, the judge did not abuse

her discretion in declining to include the parties' interest in

the home in the marital estate, thus leaving it to the Superior

Court to do so if and when necessary.

As for the wife's appeal from the order denying her motion

to amend the findings or for a new trial, the wife has not shown

that the finding in question was erroneous, and she has not

included in her record appendix the documents that she claims

bear on that question. It follows that she cannot show an abuse

of discretion in the denial of the motion. "We grant

considerable deference to a judge's disposition of a motion for

a new trial, especially where [she] was the trial judge, and we

will reverse the ruling only for an abuse of discretion." Gath

v. M/A-Com, Inc., 440 Mass. 482, 492 (2003).

We comment briefly on the wife's suggestion that leaving

finding 56 intact unfairly prejudices her by creating questions

of claim or issue preclusion in the Superior Court. On this

record, we are unpersuaded. Claim preclusion "bars further

litigation of all matters that were or should have been

adjudicated in the [earlier] action." Heacock v. Heacock, 402

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Mass. 21, 23 (1988). None of the wife's claims against the

mother in Superior Court were asserted here, nor does it appear

that they could have been asserted, because the mother was not a

party. Issue preclusion applies only where, among other things,

the issue "actually was litigated and determined in a prior

action between the parties or their privies." Id. at 25. Here,

finding 56 said nothing about the existence or content of the

asserted rent-to-own agreement, nor is it apparent that anything

stated in that finding would be inconsistent with any of the

wife's Superior Court claims.

Judgment affirmed.

Orders dated May 5, 2023,
denying defendant's
posttrial motions affirmed.

By the Court (Sacks,
Ditkoff & Toone, JJ.3),

Clerk

Entered: October 7, 2024.

3 The panelists are listed in order of seniority.

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