J.K.S. v. D.S.S.

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-1182

J.K.S.

vs.

D.S.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal from a judgment of divorce nisi, D.S.S.

(husband), the former spouse of J.K.S. (wife), challenges the

property division favoring the wife. He argues that the judge

(1) adopted verbatim an excessive number of the wife's proposed

findings of fact, (2) erroneously assigned no value to the

wife's term life insurance policy, (3) erroneously allowed the

wife to introduce illegally obtained and improperly

authenticated evidence, and (4) failed to consider all the

relevant factors and thus ordered a property division that was

plainly wrong and excessive. We affirm.

Background. The parties were married in June 1988, had

three children together during the marriage (all of whom were
adults at the time of trial), and separated in January 2019.

The wife filed a complaint for divorce a few months later. The

wife's health began to decline during the marriage. At the time

of trial, she was fifty-seven and described herself as

wheelchair bound. She resided in an assisted living facility

and suffered from serious health problems, including multiple

sclerosis (MS) and several types of cancer (then in remission).

The judge found that she was fully disabled and had no future

ability to earn income or acquire assets.

The husband was fifty-six at the time of trial. In 2008,

he began soliciting prostitutes, of whom he patronized about 200

during the period 2011-2014 alone. He became financially

entangled with certain of the women, including by making

substantial loans to them. Because of these financial

relationships, he was ultimately charged with various Federal

crimes. He entered into a plea agreement and completed all but

the supervised release portion of his sentence in 2021.

The judge divided the marital estate unevenly, in favor of

the wife. He awarded sixty percent of the retirement assets to

the wife and about seventy-three percent of the nonretirement

assets to the wife. The judge's rationale cited, among other

things, the wife's severe health issues, inability to support

herself, and extensive living expenses, i.e., the fees charged

by her assisted living facility. The judge acknowledged that

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the husband's earning prospects were limited by his status as a

convicted felon. The judge gave considerable weight, however,

to the impact of the husband's conduct during the marriage in

depleting the marital estate. This included his "avoid[ance of]

gainful employment from 2013 onward," and his dissipation of

over $1 million in marital funds, comprised of about $700,000 on

prostitution, related travel, and bad loans, and nearly $500,000

on his criminal defense and forfeiture.

Discussion. 1. Adoption of proposed findings of fact.

The husband first argues that the judge adopted so many of the

wife's proposed findings of fact that we should scrutinize his

findings more strictly than under the "clearly erroneous"

standard prescribed by Mass. R. Dom. Rel. P. 52 (a). "A finding

is 'clearly erroneous' when although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006),

quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976). But

"stricter scrutiny may be warranted in cases where the judge's

findings fail to evidence a badge of personal analysis"

(quotation omitted). Judge Rotenberg Educ. Ctr., Inc. v.

Commissioner of the Department of Mental Retardation (No. 1),

424 Mass. 430, 451 (1997). We are not persuaded.

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After a nine-day trial, the wife submitted 512 proposed

findings, the husband submitted 1,101, and the judge made 767

findings. The husband claims that of the wife’s proposed

findings, the judge adopted "[576] sentences verbatim, or nearly

verbatim, and incorporated them into [425] of his findings."

The husband does not explain or provide the data underlying

these sweeping assertions, and we decline to undertake such a

line-by-line comparison ourselves. Instead, the husband

provides a few examples of what he claims are clearly erroneous

findings adopted from the wife that were prejudicial to his

position on division of the marital estate.

The husband has not shown that the indicia of independent

judicial analysis are absent here. See Anthony's Pier Four,

Inc. v. HBC Assocs., 411 Mass. 451, 465 (1991) (findings are

product of judge's independent judgment where judge deleted

specific language from submissions, incorporated some of

opposing counsel's proposed findings, and drafted findings and

conclusions of his own). Even if findings are recited verbatim

from a party's proposal, they are "not to be rejected out-of-

hand, and they will stand if supported by evidence" (quotation

omitted). Care & Protection of Olga, 57 Mass. App. Ct. 821,

823-824 (2003). Moreover, the judge's careful and detailed

eleven-page rationale "recited his own consideration of the

evidence and of the consequences that, in his view, the evidence

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commanded." Id. at 824. That the judge did not adopt as many

of the husband's 1,101 proposed findings as the husband might

wish, including his 136 proposed findings on the wife's alleged

misconduct and dissipation, does not evince lack of independent

judgment.

Our conclusion is confirmed by our review of the specific

examples the husband cites to support his claim. The husband's

first example is the judge's finding 406, which appears

identical to the wife's proposed finding 169. The sole flaw the

husband cites in this detailed, four-sentence finding is that

the judge found the wife created a revocable trust in 2019

after, rather than before, funds from the husband's mother's

estate were deposited in the parties' joint checking account.

Although the single word "thereafter" in the judge's finding

appears clearly erroneous, the husband fails to persuade us that

there was anything nefarious about the timing of these events,

which occurred after the parties separated, or that the judge's

error had the slightest effect on the property division. The

husband argues that the wife's deposit of her mother-in-law's

estate proceeds into the revocable trust "turned what might have

been claimed as [the husband's] individual asset into a 'marital

asset.'" But it does not appear the husband argued to the judge

that the estate proceeds should be treated as his alone. Nor

does he explain how the timing of what he characterizes as the

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wife's secret scheme prevented the judge from awarding the value

of those funds to him, if doing so were otherwise equitable.

The judge was empowered to "assign to either husband or wife all

or any part of the estate of the other." G. L. c. 208, § 34.

The judge's one-word error, on a matter of little if any

importance to the ultimate property division, is an insufficient

basis to subject the judge's findings as a whole to more

searching scrutiny.

The husband next points to the judge's findings 443 through

449, which, like the wife's proposed findings 183 through 186,

refer to a certain Fidelity charitable account as "Giving Grace

II," when the account's correct name was "Given Grace II."

Again, such a minor error on a matter of no significance to the

ultimate property division does not cause us to question the

judge's findings as a whole.

The husband also cites the judge's findings 443 and 444,

which, like the wife's proposed finding 183, state that "the

parties" opened and funded the Fidelity charitable account. The

husband argues that he alone opened and funded the account, yet

he fails to show that the judge's contrary findings are clearly

erroneous. At trial the husband testified (with emphasis added)

that "we opened it in 2000"; "we then called [it] Given Grace

II"; upon the sale of his business in 2012, "we received about

three million for our household, and I put 300,000 into the

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. . . account"; and, "we had put other money in before then."

The wife testified to the same effect. The husband further

testified that, as of the time he began to serve his sentence,

"we had given away . . . up to around 220,000." 1

Not only do the husband's challenges to these findings

fail, his claim in his brief that those findings led the judge

to "award[] the entirety of the Given Grace II account to [the

wife]" is, intentionally or not, significantly misleading to

this court. It is undisputed that the parties could not

withdraw funds from the account for their own use; their rights

were essentially limited to directing how the funds were

invested and requesting that Fidelity make donations from the

account to particular charitable organizations. It is also

undisputed that Fidelity revoked the husband's rights in the

account in January 2020, and that what the judge awarded the

wife was not the value of the account for her own use but only

1 The husband also challenges the judge's finding 449,
parallelling part of the wife's proposed finding 185, that the
wife changed the password on the account because the husband
could no longer participate in it. Fidelity terminated the
husband's rights regarding the account in January 2020.
Although the husband cites evidence that his password was
"blocked on May 21, 2019," and "re-established on May 23, 2019,"
even if it were the wife who caused those actions, that would
not contradict the judge's finding regarding the password change
in January 2020. We add that the husband fails to explain how
this issue is of any significance to the judgment.

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the continued and sole right to request that Fidelity make

particular charitable donations from it.

Finally, the husband claims that the judge's findings 330,

331, 332, and 676 regarding the husband's work history and

income in 2014-2016 -- adopting the wife's proposed findings

147, 148, 149, and 279 -- are internally inconsistent. We

reject this argument. The judge's finding that the wife

believed the husband worked on only one consulting job in 2014

does not imply that the husband did no such work in 2015 or

2016, and the judge found that he did do some such work,

although the amounts he earned were small. 2 The husband's claim

on appeal that the judge "came to the wrong conclusion that

husband failed to earn income during that time" is baseless.

In sum, the husband has not identified any finding on any

material issue that was clearly erroneous. Nor has he shown

that the judge, in making those findings, failed to exercise

independent judgment.

2. Wife's life insurance policy. The husband argues that

the judge erred in assigning no value to the wife's term life

insurance policy, thereby rejecting the husband's actuary's

2 Thus, unlike the husband, we see no error in the judge's
finding 326, mirroring the wife's proposed finding 146, that the
husband "has been voluntarily unemployed or underemployed since
September 2013."

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testimony that the present value of the policy was $845,000.

After oral argument, we directed the judge to clarify certain of

his findings regarding this issue. The judge did so promptly

and in detail, and the parties accepted our invitation to file

supplemental memoranda addressing the revised findings. 3

The heart of the matter is revised finding 430 -- that the

evidence "has not . . . established" that "there is a market to

purchase" the policy. 4 The judge found that the husband's

actuary "did not provide any credible evidence that there are

prospective buyers of term life insurance policies," and that,

although the husband "stated that he spoke with multiple

companies that have an interest in purchasing life insurance

from patients with MS, no further information, nor credible

evidence, was provided to support this proposition." This was

3 Although the husband criticized the judge's original
findings on this issue tracking those the wife proposed, the
revised findings are plainly the product of the judge's
independent judgment. The husband maintains that the judge's
revised finding 435, in referring to the American Academy of
Actuaries rather than the Society of Actuaries, retains an error
originally adopted from the wife's proposed finding 498. Yet
neither the judge's original nor his revised finding 435 refers,
even implicitly, to the American Academy of Actuaries. Revised
finding 435 is clear and fully supported by the actuary's
testimony.

4 We are unpersuaded by the husband's claims that the judge,
in revising finding 430, exceeded the scope of our order for
clarified findings, and that the revised finding "inadvertently
acknowledge[es]" that the wife has the option to sell the
policy.

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echoed in revised finding 437 -- "no prospective market has been

identified." These findings were fully supported by the

evidence, and we defer to the judge's credibility

determinations. See Johnston v. Johnston, 38 Mass. App. Ct.

531, 536 (1995).

With the wife having no proven ability to sell the policy,

the parties' disagreement about its value if it could be sold,

and the accuracy of the judge's findings on that issue, are

beside the point. The judge's revised finding 437, that the

value of the policy was "$0.00," is supported by the wife's

financial statement, and is not clearly erroneous.

3. Evidentiary issue. The husband argues that the judge

erroneously allowed the wife to introduce evidence that was

illegally obtained and improperly authenticated. The illegality

claim would fail even if we were to accept for purposes of

argument the husband's assertion -- unsupported by the

transcript citations he provides -- that the "[wife's] counsel

admitted accessing numerous [electronic] files without [the

husband's] knowledge or permission." The claim fails because

the husband has not identified either (1) what law was violated

by counsel's obtaining access to these records, or (2) what law

requires illegally obtained evidence (if there were any) to be

excluded from a civil divorce proceeding.

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The husband's improper authentication claim is likewise

unavailing. The claim focuses on exhibit 157, an Excel workbook

maintained by the husband, which he called a "special task

file," recording the specific details of his sexual and

financial involvement with prostitutes from 2009 to 2014. The

wife offered and the judge admitted exhibit 157 based on the

husband's testimony that it was the spreadsheet into which he

had entered his activities with prostitutes, that the entries in

it were the same ones he had referred to at his Federal

sentencing proceeding, and that it was the subject of a

stipulation at his deposition in this case. The stipulation

recited in substance that the husband would assert his privilege

against self-incrimination in response to questions asking him

to confirm, as to each spreadsheet, that he created it, he was

the only person to enter data into it, he had personal knowledge

of all of the data, and that the data was accurate. From this

stipulation, the judge could draw the inference adverse to the

husband that he would have answered each question in the

affirmative. See Mass. G. Evid. § 525 (a) & note (2024). The

husband further testified that he believed the text contained in

the version of exhibit 157 produced at trial had been entered by

him.

The husband's testimony and the adverse inferences from the

stipulation were sufficient to authenticate exhibit 157. "To

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satisfy the requirement of authenticating or identifying an item

of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it

is." Mass. G. Evid. § 901 (a) (2024). The wife offered exhibit

157 as "the spreadsheet that [the husband] entered [his]

activities with prostitutes into," and the testimony and

inferences amply supported a finding that the spreadsheet was

just that.

The husband argued to the judge, and repeats on appeal,

that other parts of his testimony called the exhibit's

authenticity into question. He testified that the exhibit was

missing information from the period from 2009 to 2011 and was

also missing other worksheets concerning his health, his medical

issues, and his loans. He stated that there were "errors and

modifications in this worksheet . . . it had been changed or

modified or corrupted or whatever over time." But even if the

judge credited this testimony, which he was not required to do,

it did not establish that the exhibit was not what the wife

claimed it to be: the spreadsheet into which the husband had

entered his activities with prostitutes. The husband does not

argue that the wife claimed it to be a complete record of those

activities or that the judge admitted it on that understanding.

The husband's authentication argument therefore fails.

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4. Property division. Finally, the husband argues that

the judge's property division failed to properly consider the

factors set forth in G. L. c. 208, § 34. In reviewing a

property division, we first "examine the judge's findings to

determine whether all relevant factors in § 34 were considered,"

and then "determine whether the reasons for the judge's

conclusions are apparent in his findings and rulings"

(quotations omitted). Adams v. Adams, 459 Mass. 361, 371

(2011). "The weight to be accorded each of the § 34 factors in

a particular case is committed to the judge, who has broad

discretion in fashioning a judgment under § 34" (citation and

quotation omitted). Ross v. Ross, 385 Mass. 30, 37 (1982). We

leave the judge's property division undisturbed unless it is

"plainly wrong and excessive" (quotation omitted). Adams,

supra.

Here, the judge's rationale discussed the § 34 factors, and

carefully considered four different scenarios for an equitable

property division. We conclude that it meets the standards

outlined above and, in particular, that the property division is

not plainly wrong or excessive. We proceed to consider the

husband's specific claims of error.

a. Wife's needs. The husband asserts that the judge

"neglected to consider that [the wife] failed and refused to

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exercise accessible options to reduce her . . . needs." 5

Specifically, he claims, the judge should have taken into

account that the wife could have applied for MassHealth or

Medicare benefits in order to reduce the amount of property she

would need in the future to pay for her medical care and

assisted living facility expenses. He further claims that

during the marriage, as the wife's illness progressed, "the

parties developed a plan" that relied primarily on MassHealth

and Medicare, rather than marital assets, to deal with her

future needs if the husband predeceased her.

At oral argument, however, the husband could cite no

evidence that the wife ever agreed to any such plan, and no

evidence regarding the level of benefits the wife could expect

to obtain from Medicare or MassHealth if and when she qualified

for either program. Although the judge commented at trial that

the wife should try to qualify for MassHealth, the husband

supplied no evidence of the extent to which MassHealth would

actually help meet the wife's financial need. The husband's

claimed plan assumed that the wife might need $250,000 to cover

her costs for five years, after which she would be "good to go"

5 The husband's argument also refers to the wife's
"liabilities," but he fails to identify what they are. The
wife's financial statement listed no liabilities, and the judge
found that she had no debt.

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under MassHealth. 6 Yet the claimed plan was made before the wife

actually entered assisted living, which the judge found cost

$7,000 per month at the time of trial and would "likely increase

in the future." For these reasons, if no others, we do not

fault the judge for declining to reduce the wife's projected

needs from the marital estate based on speculation about her

future receipt of government benefits.

b. Husband's contributions. The husband next argues that

the judge's findings failed to recognize the husband's

significant role in contributing to the wife's care and

treatment and in rearing the children. We see no basis for this

assertion. The judge's findings 131-139, 147, and 689 addressed

in detail the husband's assistance with the wife's medical care.

Similarly, findings 655, 657, 664-667, and 682-685, among

others, recognized the husband's contributions to the children's

upbringing, both while he was still employed and during his

periods of under- and unemployment.

Although the husband claims that the judge "discount[ed] or

ignore[d] [the husband's] contribution," he cites nothing

specific in the judge's findings or rationale to support this

6 The husband testified that the plan involved putting all
remaining marital assets into an irrevocable trust, because
otherwise it would be "wasted." The husband apparently viewed
any expenditures by the wife in excess of what was needed to
cover her assisted living costs as wasteful.

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claim. The same is true of his sweeping claims that the judge

"cast aside . . . as irrelevant" the husband's testimony

regarding having contributed a total of $500,000 to the marital

estate from 2014-2018, and that the judge "failed to consider

the [parties'] disparate financial contributions to the marriage

prior to this period." The husband has simply failed to

identify with any specificity how the judge erred or abused his

discretion in dealing with those topics.

c. Wife's conduct. The husband next faults the judge for

giving insufficient consideration to the wife's various actions

that led to financial losses to the marital estate; in the

husband's view, the wife dissipated marital assets. To whatever

extent the wife was more responsible for these losses than the

husband, the judge was not required to view them as the result

of dissipation or any other inequitable conduct vis-à-vis the

husband. See generally Kittredge v. Kittredge, 441 Mass. 28,

36-41 (2004) (discussing varying concepts of dissipation and

treatment of financial losses caused by one spouse). The

husband's claim that the judge failed to weigh the wife's

disparate use of marital assets during the pendency of the

divorce is belied by the very passage of the judge's decision

the husband cites. The judge reasoned that the wife's

expenditures, although exceeding the husband's, differed from

his in that hers "were neither frivolous nor in pursuit of

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illicit or criminal activity" but consisted of her "assisted

living expenses and counsel fees."

The husband further challenges the judge's finding that the

wife did not act inappropriately in using the husband's power of

attorney (POA) in connection with the sale of the marital

residence and with certain proceeds of the husband's mother's

estate. Even if those two uses of the POA had been improper,

however, the husband has not shown how they prejudiced him in

the property division.

With respect to the sale of the marital residence, the

husband argues that the wife's use of the POA to facilitate the

sale, over the husband's objection, led to the home being sold

for $700,000 below its appraised value. The short answer to

this contention is that the judge found "the home was sold for

fair market value by a commissioner[,] eliminating the parties

from the process," and the husband has not shown that that

finding is clearly erroneous. 7 The judge further found that the

net proceeds were deposited in an escrow account, from which

7 The docket suggests the sale was conducted by a court-
appointed special master. The husband asserts that there was no
evidence the sale price was reasonable, but he has failed to
support this assertion with record citations. Nor has he
explained why, after walking through the house with a realtor of
his choice before a pending offer was accepted, he did not seek
to stop the sale by the presumptively disinterested special
master. Nor, as the judge found, did he offer any different
opinion of the home's value at the next hearing.

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court-authorized disbursements were made to the parties during

the pendency of the case, and the remainder was included in the

equitable division of property. The husband has thus shown no

prejudice from the wife's use of the POA preparatory to the sale

of the home.

Similarly, that the wife transferred the estate proceeds

into a trust in her own name did not place those proceeds beyond

the power of the judge to include them in the marital estate and

to divide them equitably. The judge found that the trust was

created "to protect the funds from further dissipation by [the

husband]." He also made detailed findings regarding how the

wife used the funds she transferred into the trust, including

"to pay the children's school expenses, repairs to the home,

overall living expenses and attorney's fees." The husband has

not shown that any of these findings are clearly erroneous, that

any of the specific expenditures were inappropriate, or that any

funds remaining in the trust were not equitably divided by the

judge. 8

d. Other issues. Finally, we comment briefly on the

husband's claims that miscellaneous errors and internal

8 The husband's brief identifies additional allegedly
improper conduct by the wife that, according to the husband, the
judge failed to consider. This argument is unavailing because,
among other reasons, the husband fails to identify how such
conduct prejudiced him in the property division.

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inconsistencies in the judge's findings call into question

whether he properly considered the § 34 factors.

There is some internal tension in the findings regarding

how the husband's health might affect his future ability to earn

income and acquire assets. But the judge plainly recognized

that the husband had at least some such ability, whereas the

wife had none, and on appeal the husband does not challenge this

conclusion.

The husband criticizes certain of the judge's findings as

failing to recognize some of the time periods in which the

husband held family meetings, and when he assisted with the

wife's medical care. Yet the judge recognized those other time

periods elsewhere in his findings.

The husband cites minor date discrepancies in the judge's

findings regarding the husband's criminal case, yet he fails to

explain how the discrepancies were prejudicial. The husband

also faults the judge for a finding attributing certain of the

wife's business losses to the husband's incarceration, but the

husband fails to address the preceding finding, that the husband

himself attributed those losses to his arrest.

We need not discuss the husband's remaining assertions

regarding erroneous or inconsistent findings. We have

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considered them and conclude that they are no more meritorious

than those we have just addressed. 9

Judgment affirmed.

By the Court (Milkey, Sacks &
Smyth, JJ. 10),

Clerk

Entered: August 21, 2024.

9 The wife's request that she be awarded her appellate
attorney's fees is denied.

10 The panelists are listed in order of seniority.

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