Cynthia B. MacKenzie v. Ann C. Gauger.

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-641

CYNTHIA B. MACKENZIE

vs.

ANN C. GAUGER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Cynthia B. MacKenzie and Ann C. Gauger began a committed

relationship in 1992, married in 2004, and were divorced in

2021. MacKenzie appeals from the divorce judgment, arguing

error in the division of MacKenzie's pension. We affirm. 1

1Despite Gauger's argument that this appeal warrants
dismissal due to MacKenzie's failure to comply with Mass.
R. A. P. 16 (b) (3), (4), (5), (6), (7), and (9), as appearing
in 481 Mass. 1628 (2019), we exercise our discretion to reach
the merits of the appeal. See Mass. R. A. P. 2, as appearing in
481 Mass. 1603 (2019) (appellate court may "suspend the
requirements or provisions of any of these rules in a particular
case, on such reasonable terms as the court . . . may order");
Doten v. Doten, 395 Mass. 135, 140 (1985) ("dismissal of [an]
appeal . . . is not mandatory, and we are free to consider
whether equity requires that procedural flaws be overlooked").
Discussion. The equitable distribution statute, G. L.

c. 208, § 34, grants a judge the ability to "assign to either

[spouse] all or any part of the estate of the other," and lists

the factors to be considered by the judge when doing so. G. L.

c. 208, § 34. When reviewing a judge's division of property, we

first review the findings to determine whether they accounted

for all relevant factors under § 34, and no irrelevant factors.

See Ravasizadeh v. Niakosari, 94 Mass. App. Ct. 123, 126 (2018).

Next, we determine whether the rationale underlying the judge's

conclusions is apparent in the findings and rulings. See Adams

v. Adams, 459 Mass. 361, 371 (2011). If these criteria are met,

we will affirm the judgment unless it is "'plainly wrong' or

'excessive.'" 2 S.S. v. S.S., 104 Mass. App. Ct. 633, 639 (2024),

quoting D.B. v. J.B., 97 Mass. App. Ct. 170, 177 (2020).

We have no reservations about affirming the judgment at

issue here. When dividing the marital estate, the judge

thoughtfully considered the length of the parties' marriage and

premarital committed relationship; the conduct of the parties

during the marriage and its dissolution; the present and future

needs of the parties' child; and other statutory factors,

2 Our cases sometimes use "and" rather than "or" in this
formulation. See, e.g., Adams, 459 Mass. at 371. Because, as
we discuss, infra, the judgment here was neither wrong nor
excessive, we would affirm in this case whether the "and"
wording or the "or" wording applied.

2
including the parties' ages, health statuses, "station[s],"

occupations, incomes, vocational skills, employability, estates,

future opportunities, and liabilities and needs. 3 See G. L.

c. 208, § 34. The judge also considered the parties'

contributions in the acquisition, preservation, or appreciation

in value of their respective estates, and their contributions as

homemakers to the family unit. See id. It is therefore

apparent that the judge considered all § 34 factors and no

irrelevant ones when dividing the marital estate. See id.;

Adams, 459 Mass. at 371; Ravasizadeh, 94 Mass. App. Ct. at 126.

Additionally, "[a] party's estate for purposes of equitable

division under G. L. c. 208, § 34, 'includes all property to

which a party holds title, however acquired,'" Pfannenstiehl v.

Pfannenstiehl, 475 Mass. 105, 110 (2016), quoting Williams v.

Massa, 431 Mass. 619, 625 (2000), and may include property

acquired before that party's marriage. See Baccanti v. Morton,

434 Mass. 787, 792 (2001); Moriarty v. Stone, 41 Mass. App. Ct.

151, 158 (1996). Thus, even though MacKenzie joined her pension

fund before her marriage to Gauger, 4 we discern no error or abuse

3 The judge did not award alimony, and so did not consider
it in her decision. See G. L. c. 208, § 34. Neither party
challenges the judgment on this basis.

4 We assume that, as MacKenzie argues on appeal, her pension
also vested before the parties married.

3
of discretion in the judge's decision to include the entirety of

that pension in her calculation of the couple's marital estate. 5

We are likewise unpersuaded that the judgment was

inequitable, "plainly wrong," or "excessive." S.S., 104 Mass.

App. Ct. at 639. "Once [a] judge decides to include premarital

assets as part of [a marital] estate, [the judge] has

considerable discretion in determining how to divide the assets

equitably." Baccanti, 434 Mass. at 792. Moreover, when

5 We likewise are not persuaded that the judge's decision to
include MacKenzie's entire pension in the couple's marital
estate "punished . . . [MacKenzie] for a same sex relationship,"
as MacKenzie argues on appeal. The question whether assets
obtained before marriage may be treated as part of a marital
estate upon divorce is not rare, see, e.g., Rice v. Rice, 372
Mass. 398, 400 (1977), and such assets are routinely included in
the marital estates of heterosexual couples, see Adams, 459
Mass. at 379-380; Baccanti, 434 Mass. at 792-793; Moriarty, 41
Mass. App. Ct. at 157-158. To the extent MacKenzie argues that
the judge failed to consider extra costs MacKenzie incurred
supporting Gauger when the parties were in a committed
relationship but unable to avail themselves of the legal and
financial benefits of marriage, see Obergefell v. Hodges, 576
U.S. 644, 681 (2015); United States v. Windsor, 570 U.S. 744,
774-775 (2013); Goodridge v. Department of Pub. Health, 440
Mass. 309, 344 (2003), the record suggests otherwise. The judge
acknowledged that, before the parties married, MacKenzie
"arranged . . . to have Ms. Gauger covered as her domestic
partner under her employer's medical insurance plan," thereby
taking on a financial burden. The judge also found that the
parties married immediately after obtaining the right to do so,
demonstrating that MacKenzie did not continue to take on this
financial burden when there was a legal alternative available to
her. By acknowledging these facts, the judge did consider the
circumstances surrounding MacKenzie's premarital support of
Gauger when calculating the couple's marital estate, and she
applied the same standards that are applicable to all divorcing
spouses.

4
dividing marital estates, judges are "not required to achieve

financial parity between the parties." Zatsky v. Zatsky, 36

Mass. App. Ct. 7, 15 (1994), citing Cabot v. Cabot, 18 Mass.

App. Ct. 903, 905 (1984). As reflected in the judge's decision

here, when dividing the marital estate (and, by extension, the

entirety of MacKenzie's pension), the judge considered how both

parties contributed financially to the marriage. For example,

the judge considered Gauger's contributions to the couple's

homemaking and child rearing, but also considered Gauger's

potential future inheritance, MacKenzie's role as the primary

caretaker of the parties' child, and MacKenzie's financial

support of Gauger while the latter pursued education. Notably,

the judge also considered the fact that the parties were in a

committed relationship when MacKenzie began her participation in

the pension fund, and that MacKenzie indicated her intent to

provide pension benefits to Gauger as early as 1998. The

judge's discretionary division of MacKenzie's pension as part of

the marital estate was therefore not "plainly wrong" or

"excessive," S.S., supra, nor was it inequitable, particularly

where the judge awarded Gauger only forty percent of the total

pension benefit.

Finally, the fact that MacKenzie's pension is protected by

ERISA does not impact this determination. It is true that the

protections afforded by ERISA include antiassignment provisions,

5
see 29 U.S.C. § 1056(d)(1), but a qualified domestic relations

order (QDRO) "provides an exception to the [anti-assignment]

. . . provision[] of ERISA . . . by authorizing State courts to

assign pension interests . . . when entering a judgment or order

relating to marital property rights." Early v. Early, 413 Mass.

720, 722 n. 3 (1992), citing 29 U.S.C. § 1056 (d)(3). Thus,

because MacKenzie's pension was assigned through a QDRO, it is

not protected by the antiassignment provision of ERISA. See

Early, supra. Contrary to MacKenzie's argument on appeal,

nothing in Obergefell v. Hodges, 576 U.S. 644 (2015), or United

States v. Windsor, 570 U.S. 744 (2013), suggests otherwise.

Judgment affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ. 6),

Clerk

Entered: March 10, 2025.

6 The panelists are listed in order of seniority.

6