Molly Cosel Wendt v. William George Wendt.

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-1158

MOLLY COSEL WENDT

vs.

WILLIAM GEORGE WENDT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (father) appeals from a judgment of divorce

nisi (divorce judgment), arguing principally that the judge

erred in (1) awarding primary custody to the plaintiff (mother)

and modifying the parties' existing parenting schedule, (2)

dividing the marital assets, and (3) determining child support.

For the reasons that follow, we vacate so much of the divorce

judgment as set the weekly parenting schedule and remand for

findings reflecting appropriate consideration of the children's

religious development. On all the other issues, we affirm the

divorce judgment.

Background. The trial in this case occurred over four days

in March 2022 and included testimony from fifteen witnesses. We

present the essential facts found by the judge in his extensive
written findings, reserving details for our discussion of the

issues raised.

The parties married on March 21, 2014. The mother gave

birth to their first son in 2015, and their second son in 2016.

On February 6, 2020, the mother filed a complaint for divorce on

the grounds of an irretrievable breakdown of the marriage; the

father filed a timely answer and counterclaim. Through the

divorce proceedings, both parties sought custody of the children

and ownership of the marital home and property located in

Tyringham.

1. Custody. The judge found that the mother was a

"caring, responsible and attentive parent," who served as the

lead caregiver for the children throughout their lives. The

judge found that while the "[f]ather is a caring and loving

parent[, he] has not always been able to act in a manner that

supports his children" due to his conflicts with care providers

and grandparents, inattentiveness to the children's schooling,

and his behavior in front of the children. The judge granted

the mother with primary physical custody and fashioned a

parenting schedule, which we discuss in greater detail below.

The judge granted the parties joint legal custody.

2. Parties' assets. The marital home is a property owned

jointly by the parties. In 2016, the mother's parents gave the

property to the couple as an advance on her inheritance. The

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value of the home at the time that it was gifted was $260,000.

The father's father, Bill Wendt, initially gifted the father and

mother $1.9 million to improve the property. 1 One of the

principal objectives of the project was to create a photography

studio for the father. By February 2019, the father, who had

taken the primary role to improve the property, exhausted the

entire $1.9 million, yet had not completed the project. Bill

Wendt then provided the father with an additional $2 million.

At the time of trial, the value of the unencumbered property was

appraised at $850,000.

The judge ordered that the marital home be retained by the

mother but required that the mother pay the father $250,000 to

create an equitable distribution of the marital estate.

The judge also found that father was the sole beneficiary

of an irrevocable trust established by his parents. The value

of this trust was $5,492,655.62 at the end of 2020.

Mother's assets included her retirement fund ($50,093), a

Roth individual retirement account (IRA) ($3,313), and various

bank accounts totaling less than $10,000 at the time of trial.

3. Occupation, income, and employability. During the

marriage, the father held various compensated positions with his

1 Bill Wendt transferred the funds for this gift from an
irrevocable trust of which the father was the beneficiary to a
brokerage account controlled by the father.

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parents' business, Midwest Metal Products, Inc. (Midwest). In

2019, the father received compensation of $100,200 from Midwest,

despite having performed no work or services. The father's

income from Midwest decreased to $48,000 annually during the

pendency of the divorce litigation. In addition, the father

earned more than $100,000 per year as a commercial photographer

prior to the marriage. The court found, based largely on the

father's assertions, that the father had the capacity to earn

$100,000 per year as a commercial photographer.

The mother has been employed as a teacher since 2011. The

judge found her annual earnings to be $64,844. The mother's

prospects for continued employment with the school district are

stable.

Based on his review of the parties' assets and liabilities,

the judge ordered, in accordance with the Massachusetts Child

Support Guidelines, that the father pay $532 in child support to

the mother per week.

Discussion. 1. Custody. We review a judge's ultimate

custody determination for an abuse of discretion. See Schechter

v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody

matters, the touchstone inquiry [is] . . . what is best for the

child" (quotation and citation omitted). Hunter v. Rose, 463

Mass. 488, 494 (2012). See G. L. c. 208, § 28. "The

determination of which parent will promote a child's best

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interests rests within the discretion of the judge . . . [whose]

findings . . . 'must stand unless they are plainly wrong.'"

Hunter, supra, quoting Custody of Kali, 439 Mass. 834, 845

(2003). While there is no "definitive list of criteria" for the

judge to consider when assessing the children's best interests,

"[certain] constants are revealed in our [cases]," including

"the need for stability," "the decision-making capabilities of

each parent to address the child's needs, and the living

arrangements and lifestyles of each parent and how such

circumstances may affect the child" (citation omitted). El

Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010).

The father sets forth numerous arguments that the judge

abused his discretion and made clearly erroneous factual

findings in his custody determination. We address each one in

turn below.

a. Relevant factors in determining custody. The father

first contends the judge failed to consider multiple, relevant

factors in determining custody. We disagree. In consideration

of the best interests of the children, the judge addressed the

ability for the parents to provide stability, the decision-

making of each parent, and the impact of the parents' lifestyles

on the children. For example, in finding that the father could

not provide the same level of stability that the mother could,

the judge cited that the father brought the children to school

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late on numerous occasions and was combative with the children's

caretakers. See E.K. v. S.C., 97 Mass. App. Ct. 403, 405-406,

409 (2020) (affirming grant of sole legal and primary physical

custody to father in part due to mother's problematic

interactions with school and for frequently bringing children to

school late). The judge also carefully considered, and

ultimately rejected, the father's claim that the mother's

relationship with her new partner placed the children in danger.

We discern no error with these findings. See Adoption of

Cadence, 81 Mass. App. Ct. 162, 166 (2012) ("In recognition of

the trial judge's superior position to evaluate witness

credibility and weigh the evidence, we review her findings with

substantial deference and will not disturb those findings unless

clearly erroneous" [citation omitted]).

b. Nexus to the father's parenting. The father next

argues that most of the behavior and incidents that the judge

referenced when making the custody determination do not reflect

on the father's ability to be a good parent. We find this

argument unpersuasive because the judge's findings and rationale

established a clear link between the father's behavior and his

parenting abilities. For example, the judge credited the

mother's testimony that the father, during an argument with the

mother in the presence of the children, threatened to slit the

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throat of the mother's new partner. 2 The detrimental impact this

threat of violence would have on young children is implied in

the judge's findings.

The judge cited other concerns, including that the father

sent a child to school with only blueberries for lunch, that he

frequently brought a child to school late, that he forgot to

pick the children up from school one day, and that on occasion

he was inattentive to his children's needs at school. 3 These

instances could be reasonably perceived to reflect adversely on

the father's parenting ability. See Smith v. McDonald, 458

Mass. 540, 547 (2010) ("The judge is afforded considerable

freedom to identify pertinent factors in assessing the welfare

of the child and weigh them as [he] sees fit").

c. Alleged improper punishment of the father. At trial,

the father asserted that the mother had exposed the children to

dangerous mold, conspired with the special education department

to assess their youngest child with a disability, and exposed

the children to her new partner in unhealthy ways. On appeal,

2 While we recognize that the husband denied making this
threat in his trial testimony, we do not conclude the judge's
credibility finding on this issue to be plainly wrong or clearly
erroneous. See Adoption of Cadence, 81 Mass. App. Ct. at 166.

3 For instance, the judge found that "[o]n special school
days (beach day and Halloween), Father has sent the children
without the requested items. The boys were the only children
without the items."

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the father alleges that the judge granted primary physical

custody to the mother to punish the father for making these

arguments. This contention is without merit. The judge's

analysis of the father's claims of the mother's unfitness

reflects a close examination of the evidence, assessments of the

witnesses' respective credibility, and careful consideration of

both the mother's and father's ability as a parent, all through

the lens of the best interests of the children. See Hunter, 463

Mass. at 494.

The father also argues that the judge improperly cited the

father restricting the children's time with the maternal

grandparents as a rationale in the custody determination. The

father alleges that this is a violation of the father's

constitutionally protected rights to decide with whom his

children associate. The father misconstrues the constitutional

protection afforded to parental decision-making. The protection

does not go so far as to prevent a judge from considering any

interactions with grandparents in a custody determination.

Instead, it prevents a court from requiring grandparent

visitation where an otherwise fit parent has made the opposite

decision. See Troxel v. Granville, 530 U.S. 57, 72 (2000)

(order requiring visitation with children's grandparents "was an

unconstitutional infringement on [parent's] fundamental right to

make decisions concerning the care, custody, and control of

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[their children]"). In the instant case, the judge did not

require any visitation with the grandparents. Instead, the

judge's discussion of the father's antagonistic interaction with

the grandparents related to his assessment of the father's

inability to maintain positive relationships with the children's

caregivers. 4

d. Religious development of the children. The father

challenges the order that provides the mother custody of the

children each week from Saturday at 4:00 P.M. until Thursday at

4:00 P.M. for three weekends per month during the school year.

Before the judge's order, the father had regularly celebrated

Catholic Mass with the children either on Saturdays at 4:00 P.M.

or on Sunday mornings. The father argues that the judge's

schedule prevents him from pursuing the Catholic faith with his

children because it conflicts with the prescribed times

Catholics celebrate weekly Mass. The father requests that the

custody determination be reconsidered on remand because the

impact on the children's religious development was not

considered.

4 The judge noted that the father had "approached [the
mother's father] in an angry manner [and] was yelling, [with]
spit . . . emanating from his mouth." After this interaction
the father "forbade the children from going up to their
grandparents' home."

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Religion is one of the many relevant factors that a judge

considers in making a custody determination based on the best

interests of the children. See Opinion of the Justices to the

Senate, 427 Mass. 1201, 1204 & n.2 (1998). Where, as here, the

parties have shared legal custody, both parents are responsible

for and involved in making major decisions about the children's

welfare, including their religious development. See G. L.

c. 208, § 31. The parties do not dispute that the children were

raised Catholic and that the father was the only parent who

regularly took the children to church. Notably, both the mother

and the father had submitted posttrial proposed judgments

indicating the children would be raised Catholic, with the

father responsible for bringing the children to Mass on a weekly

basis; both parties' proposed parenting plans would have allowed

the father to take his children to Mass most weekends. 5

Instead of adopting either of the proposed parenting

schedules, the judge created a new plan, which requires that the

5 We note that the parties agreed about the children's
religious upbringing and neither sought an order curtailing the
father's right to practice religion or limiting the children's
exposure to the father's religion. Contrast Kendall v. Kendall,
426 Mass. 238, 250 (1997), cert. denied, 524 U.S. 953 (1998)
(divorce judgment precluded father from sharing certain aspects
of his religious beliefs with children); Felton v. Felton, 383
Mass. 232, 237 (1981) (modification judgment ordered father to
"refrain[] from giving his children any religious training or
education which shall be in conflict or contrary with the
religious training and beliefs of the custodial parent").

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children be in their mother's custody during times that conflict

with Mass for three out of four weeks per month during the

school year. The judge's findings do not address the parties'

shared view that the father should continue bringing the

children to Mass, nor is there any basis apparent in the judge's

findings for declining to adopt it. 6 We therefore cannot

ascertain whether the judge, in fashioning the parenting

schedule, considered the children's religious development as a

factor relevant to determining their best interest.

Accordingly, we vacate so much of the divorce judgment as set

the weekly parenting schedule and remand for the judge to make

findings reflecting appropriate consideration of the children's

religious development. See Ventrice v. Ventrice, 87 Mass. App.

Ct. 190, 196 (2015), quoting Rosenberg v. Merida, 428 Mass. 182,

191 (1998) (appellate court will not sustain custody

determination "unless all relevant factors in determining the

best interests of the child have been weighed").

e. Judge's findings. The father next argues that four

specific facts in the judge's findings were unsupported, and

when taken as a whole, should leave this court "with the

6 Instead, he judge concluded the parenting schedule to be
in the best interests of the children by reasoning that "[the
mother] is in a better position to supervise the minor children
during the school week in assuring they were on time for school
and properly prepared."

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definite and firm conviction that a mistake has been committed"

(citation omitted). Guardianship of Clyde, 44 Mass. App. Ct.

767, 774 (1998). Specifically, the father alleges that the

judge's findings concerning (1) the father's past dispute with

the children's school, (2) the father sending one child to

school with only blueberries for lunch, (3) the father

forgetting to pick the children up from school, and (4) the

father dictating the parenting schedule, are all erroneous.

Affording due deference to the judge's assessment of the

credibility of witnesses and weight of the evidence, we are

satisfied that none of these challenged findings were either

unsupported or clearly erroneous. See Adoption of Paula, 420

Mass. 716, 730 (1995) ("We do not sit as a trial court to review

de novo the evidence presented by the parties").

Finally, the father alleges that the judge's findings with

respect to the custody decision are "belittling and suggestive

of gender bias." The father points to two parts of the judge's

findings to make this point. First, the judge's finding that

"[b]y Mother taking on [the majority of the physical labor and

cognitive labor], it allowed Father to pursue his hobbies of

cycling and playing the saxophone." And second, the judge's

findings as to the father's financial dependency on his parents.

We conclude that neither of these findings suggest gender bias,

but instead are appropriate considerations in the judge's

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determination of custody and the division of marital assets.

See Smith, 458 Mass. at 547. Moreover, we conclude the entirety

of the judge's findings and rationale to be free from bias and

belittlement.

2. Division of marital assets. The husband argues that

the judge abused his discretion in determining the division of

marital assets, and that the division falls "outside the range

of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014). This court employs a two-step analysis in

our review under the equitable distribution statute, G. L.

c. 208, § 34. See Adams v. Adams, 459 Mass. 361, 371 (2011),

S.C., 466 Mass. 1015 (2013). First, we examine whether the

judge considered all relevant § 34 factors in his findings. See

id. The mandatory factors are:

"[T]he length of the marriage, the conduct of the parties
during the marriage, the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the
parties, the opportunity of each for future acquisition of
capital assets and income, and the amount and duration of
alimony, if any."

G. L. c. 208, § 34. Notably, "[w]hat weight any of the factors

in § 34 shall receive rests within the broad discretion of the

judge." Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168

(1989).

Second, we "determine whether the reasons for the judge's

conclusions are apparent in [the judge's] findings and rulings"

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(quotation omitted). See Adams, 459 Mass. at 371. "A division

of marital property which is supported by findings as to the

required factors will not be disturbed on appeal unless plainly

wrong and excessive" (quotation omitted). Passemato v.

Passemato, 427 Mass. 52, 57 (1998).

The father first argues that the judge gave unnecessary and

excessive weight to the father's ability to acquire future

income and assets. The judge, as discussed further infra in our

review of the child support analysis, reasonably found that the

father could resume his career as commercial photographer and

earn $100,000.

Regarding the trust of which the father is the sole

beneficiary, the judge acknowledged that the father "has no

right to demand distributions," but reasonably determined based

in part on the evidence of the father's reliance on his parents

that the trust "gives [f]ather a secure safety net."

The father next argues that the judge disregarded the

length of the marriage and the financial and nonfinancial

contributions made by both parties to the marriage.

"Mathematical precision is not required of equitable division of

property," Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861

(1989), and "[t]here is no mathematical formula to determine

what weight a judge should accord to any of the factors in

§ 34." Williams v. Massa, 431 Mass. 619, 631 (2000). Where the

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father argues that the judge failed to "meaningfully consider"

the length of marriage, we first point out that the weight the

judge assigns to each factor is within the judge's broad

discretion. See Handrahan, 28 Mass. App. Ct. at 168. See also

Hanify v. Hanify, 403 Mass. 184, 191 (1988) (where wife and

husband were married for six years, and had two children, trial

judge equitably divided estate based on wife's "dire financial

circumstances").

The father's argument that the judge did not adequately

consider the contributions of the parties to the marriage also

falls short. While this factor is discretionary under G. L.

c. 208, § 34, the judge carefully analyzed the parties'

contributions and found that "[e]ach party contributed earned

and unearned income to further support the marital enterprise."

The father argues that his parents' significant financial

contribution toward renovating the marital home should be more

heavily considered. However, the record in this case reveals

that the father spent a substantial portion of these funds to

erect a photography studio for his own use. Ultimately, the

multimillion dollar investment led to only a $590,000 increase

in the property's value. Taken together, the judge's division

of the marital assets was neither "highly disparate," nor

inadequate as to the consideration of these contributions to the

marital partnership.

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The father criticizes the judge's findings as showing

"apparent disdain" for the father, and as exhibiting "bias

toward [the father's] unemployment." To substantiate these

allegations the father points toward the judge's language where

he describes the father's interest in art, outdoor sports, and

the saxophone, that the father has been substantially supported

by his parents, and that the mother's lead effort in taking care

of the children allowed the father to pursue his hobbies. We

conclude that these findings do not exhibit any elements of

disdain against the father and are instead relevant

considerations for purposes of the divorce. See G. L. c. 208,

§ 34 ("The court may also consider . . . the contribution of

each of the parties as a homemaker to the family unit").

The father argues that "no justification can reasonably be

inferred to support" the judge's decision to defer receipt of

father's $250,000 share of the marital estate. We disagree, as

it is reasonable to infer that the judge ordered the deferred

payment based on his evaluation of the information bearing on

the mother's ability to satisfy this payment. As a result, we

find that the judge's decision to award the father with a

deferred payment was not outside the range of reasonable

alternatives and is an appropriate exercise of the judge's

discretion. See L.L., 470 Mass. at 185 n.27.

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Lastly, the father argues that the judge incorrectly found

that Bill Wendt gifted, rather than loaned, the father and

mother $2 million to improve the marital estate. We conclude

that this finding is not plainly wrong. See Zaleski v. Zaleski,

469 Mass. 230, 237 (2014). The judge noted how the father

waited until seven months after the mother told the father that

she wanted to divorce to inform his parents. Once informed of

this news in November 2019, Bill Wendt was upset, and he

immediately stopped further funding of the ongoing project at

the marital home. In December 2019, the father's parents

prepared a loan agreement, signed by the father, which required

that he repay the moneys advanced in February 2018 toward the

marital home's renovation. The judge found that there had been

no discussion about entering into a lender-debtor relationship

prior to November 2019. Further, the judge found mother was

never informed of the agreement. After the loan agreement was

created, the father failed to make any payments on the loan or

raise any defenses once the father's parents sued in relation to

the loan.

In concluding this alleged loan amounted to "a sham

obligation," the judge relied on numerous adverse credibility

determinations as to the testimony of the father and his

parents. See Adoption of Cadence, 81 Mass. App. Ct. at 166.

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3. Child support. The father argues that the judge abused

his discretion by (1) attributing income to the father, and (2)

ordering child support based on attributed and actual income.

"We review the judge's decision to consider attributed income

[in determining child support], rather than actual income, for

an abuse of discretion." Davae v. Davae, 100 Mass. App. Ct. 54,

57 (2021).

"Income may be attributed where a finding has been made

that either party is capable of working and is unemployed or

underemployed." See Massachusetts Child Support Guidelines:

Child Support Guidelines § I(E)(1) (Aug. 2021) (Guidelines).

"If the [c]ourt makes a determination that either party is

earning less than he or she could through reasonable effort, the

[c]ourt should consider potential earning capacity rather than

actual earnings in making its child support order." Guidelines

§ I(E)(2). The judge found that the father "has the capacity to

earn $100,000 per annum," relying on evidence of the father's

past earnings as both a commercial photographer and consultant

for his parents' business. This finding is based in large part

on the father's testimony and evidence that (1) he currently is

working simultaneously as a commercial photographer and as a

consultant for his parents' business; and (2) he historically

earned $100,000 per year when working in each of those roles

separately. Accordingly, we cannot say the judge abused his

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discretion in concluding that the father is capable of earning

the same amount while simultaneously working in those roles.

See L.L., 470 Mass. at 185 n.27.

The judge appropriately considered the father's actual

income at the time of the trial and concluded that he could earn

more with reasonable effort. We reject the father's argument

that he should not have to pay $532 weekly because child support

can only be calculated based on either attributed income or

actual income. We have held that "a judge should determine by

specific and detailed findings of fact whether an individual

will be able to earn additional income with reasonable effort

before attributing income." Wasson v. Wasson, 81 Mass. App. Ct.

574, 580-581 (2012), quoting Flaherty v. Flaherty, 40 Mass. App.

Ct. 289, 291 (1996). Here, the judge determined that the father

could earn additional income with reasonable effort, and

reasonably calculated the father's attributed income to include

both his earnings from Midwest and his commercial photography

pursuit because the father is capable of earning all of such

income simultaneously. Thus, the judge did not err by

calculating child support based on the father's earning

capacity. See, e.g., id. at 581.

Conclusion. We vacate so much of paragraph I(b)(ii) of the

divorce judgment as pertains to the weekly parenting schedule,

and remand for further proceedings consistent with this

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memorandum and order. Pending further order or judgment of the

Probate and Family Court, the existing provisions of the divorce

judgment regarding the weekly parenting schedule shall remain in

effect as a temporary order. We affirm the divorce judgment in

all other respects. 7

So ordered.

By the Court (Meade, Singh &
Smyth, JJ. 8),

Assistant Clerk

Entered: May 15, 2024.

7 The plaintiff requests an award of costs pursuant to Mass.
R. A. P. 26, as appearing in 481 Mass. 1655 (2019). We are not
persuaded that costs are appropriate in this case.

8 The panelists are listed in order of seniority.

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