Armindo Goncalves v. Felicia Jacques-Goncalves.

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

25-P-136

ARMINDO GONCALVES

vs.

FELICIA JACQUES-GONCALVES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 3, 2021, the former husband and petitioner,

Armindo Goncalves, filed a petition to partition the parties'

former marital home located at 3 and 5 Cedar Park in Boston. In

response and pursuant to the parties' divorce agreement, the

former wife and respondent, Felicia Jacques-Goncalves, opted to

exercise her option to buy out the petitioner's share. After a

Land Court judge determined the petitioner's buyout share, the

respondent appealed, challenging (1) the allowance of the

petitioner's motion to amend his petition for partition to

include a triangular parcel that the parties acquired as joint

tenants, and (2) the judge's amended interlocutory decree

determining the petitioner's buyout share price. We affirm.
Background. 1. The divorce agreement. The parties

divorced in May 2011. According to the parties' divorce

agreement, the parties owned the marital home as tenants by the

entirety, though the respondent had the sole right to the use,

possession, and control of the property until the parties'

youngest child reached eighteen years of age. After that point,

the parties would then sell the property and split the net

proceeds. The divorce agreement defines the net proceeds as the

gross sales price less broker's fees, reasonable attorneys'

fees, the balance then due on the mortgage, liens, reasonable

sale price adjustments, reasonable expenses incurred for capital

improvements, and mortgage principal amortization payments paid

by the respondent. The parties also had the option to purchase

the property in its entirety by paying the other party his or

her one-half share of the net proceeds. If a party exercised

the option to purchase the property and the parties could

neither agree upon a purchase price nor agree on the appointment

of an appraiser to set the purchase price, the parties would

each appoint an appraiser who would then designate a third

independent appraiser, whose appraisal "shall be binding and

conclusive on the parties for all purposes."

The parties' youngest child reached eighteen years of age

in June 2017, and the petitioner filed a petition for partition

on November 3, 2021. After the designated appraiser valued the

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property at $1,820,000 on October 4, 2023, the respondent, on

December 14, 2023, confirmed that she was exercising the option

to buy.

2. The triangular parcel. The parties initially acquired

the land containing the triangular parcel in December 2001, when

the parties, together with the owners of a neighboring parcel,

jointly purchased an abutting rectangular parcel from the city

of Boston for one thousand dollars. The deed limited the uses

of the parcel to "open space purposes" such as gardening,

landscaping, and off-street residential parking, and prohibited

structures except "a tool/gardening shed, garage and/or

fencing." The triangular parcel was created from the

rectangular parcel after the parties and their neighbors divided

the newly purchased parcel in a separate partition action, and

the deed for the triangular parcel was recorded on April 13,

2022. The divorce agreement does not explicitly contemplate the

triangular parcel or the rectangular parcel the parties owned

with their neighbors, which was the form of the parcel at the

time of the divorce agreement. The petitioner moved to amend

the petition to include the triangular parcel on September 26,

2022, and, after a hearing, the judge allowed the motion.

Discussion. 1. The motion to amend. "We review the

denial of a motion to amend the complaint for abuse of

discretion" (citation omitted), Doull v. Foster, 487 Mass. 1, 22

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(2022), but "leave should be granted unless there are good

reasons for denying the motion." Id., quoting Mathis v.

Massachusetts Elec. Co., 409 Mass. 256, 264 (1991). "Such

reasons include . . . undue prejudice to the opposing party by

virtue of allowance of the amendment" (quotation omitted).

Doull, supra, quoting Mathis, supra.

The respondent alleges that the allowance of the motion to

amend unduly prejudiced her because the divorce agreement did

not explicitly address the triangular parcel, and including the

triangular parcel in the same partition action as the marital

home denied her the opportunity to sell the parcel to a third

party. We disagree.

As the judge determined, although the divorce agreement did

not explicitly address the triangular parcel, it was reasonable

to partition the triangular parcel in the same action as the

marital home where the parties owned the land containing the

triangular parcel prior to the divorce, the triangular parcel

and the marital home abut each other, and the parties own both

parcels in equal shares. The respondent's sole claim of

prejudice is that she would have preferred to have sold the

triangular parcel through a separate partition action rather

than purchase the petitioner's share, but provides no estimate

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or record support as to the parcel's value.1 Because the

respondent was not unduly prejudiced by the amendment to the

petition for partition, the judge was well within his discretion

to allow the motion. See Doull, 487 Mass. at 22.

2. The buyout share calculation. The respondent argues

that the judge should have calculated the net sale price to the

petitioner by first subtracting the outstanding mortgage and

other unpaid costs associated with selling the property; then,

splitting the net proceeds; and, finally, subtracting payments

the respondent already made.2 There is no support for this

multi-step procedure in the divorce agreement, which calls for

the parties to subtract all costs related to the property from

the gross sale price prior to splitting the net proceeds. See

Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017) ("When

contract language is unambiguous, it must be construed according

to its plain meaning").

What is more, applying the buyout share calculation that

the respondent requests would have the inequitable result of

1 Indeed, considering the deed limitations and restrictions
on the triangular parcel and the one-thousand-dollar price paid
to the city of Boston for the original entire rectangular
parcel, a separate partition action to sell the triangular
parcel to a third party very well may have been, on net, an
additional expense and burden on the respondent herself.

2 Specifically, the respondent's full mortgage principal
payments, capital improvement costs, and costs to partition the
triangular parcel.

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causing the petitioner to bear all of the respondent's costs

associated with the property. While such an arrangement

conceivably could have been provided in a divorce agreement, it

was not here. See Balles, 476 Mass. at 571-572. The

calculation applied by the judge, and contemplated by the

divorce agreement, served to split the respondent's costs evenly

between the parties, because her costs were subtracted from the

price of an asset that the parties shared equally. Because the

judge acted within his discretion to grant the motion to amend

and correctly applied the buyout share price calculation, the

judge did not err in his valuation of the buyout share price.3

Amended interlocutory decree
pursuant to G. L. c. 241,
§ 10, dated November 12,
2024, affirmed.

Order dated March 22, 2023,
affirmed.

By the Court (Desmond, Shin &
Walsh, JJ.4),

Clerk

Entered: March 31, 2026.

3 The parties' requests for appellate attorney's fees and
costs are denied.

4 The panelists are listed in order of seniority.

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