LENK, J.
The wife, Donna Wolcott, appeals from that portion of the parties' divorce judgment that divides the marital assets, essentially arguing that the judge abused his discretion in awarding the husband, Jeffrey Wolcott, what amounts to ninety percent of the marital estate. She also appeals from the judge's denial of her request for attorney's fees. We affirm.
Background. What follows are the relevant facts on appeal, drawn from the judge's findings and supported by evidence that the judge deemed credible.
The judge heard testimony, which he credited, about several unusual incidents that took place in 2006. The wife's former coworker, Jill Scibelli, testified as to a conversation she had with the wife on February 23, 2006, during which the wife indicated she was unhappy with her husband and asked if Scibelli's husband could "take care of a problem" for her by "get[ting] rid of something." When Scibelli responded that her husband was simply a chef and could not help with that sort of "problem," the wife asked Scibelli if her husband was related to someone who could help. The judge found that Scibelli believed the wife was seeking assistance in having the husband killed.
Both parties testified about an incident that occurred on March 3 and 4, 2006, with the judge largely crediting the husband's testimony about this and other matters. The husband and wife had traveled to Texas on holiday with their children. They rented a houseboat, where they planned to stay for three days while other family members cared for the children. The husband had been ill for several days and had not consumed much food. Although he had been abstaining from alcohol for several years, the wife made alcoholic beverages for them both to drink on the houseboat, and the husband consumed them willingly.
At a certain point, the wife went below deck and the husband was left alone above deck. The husband next remembers standing on the lower deck near the cabin entrance, feeling cold and wet. The husband then found himself in the water, where he had to swim one mile to shore and walk for several hours before he
The husband suffered severe injuries from the fall, including a broken nose, upper jaw, and right wrist; four broken teeth; and a "blown out" knee. He was initially treated in a Texas hospital, but returned to Massachusetts on March 9, 2006. Upon return from Texas, but before his corrective surgery, the husband slept on the couch because the sound of his breathing bothered the wife. Shortly thereafter, the wife asked him to move out of the family home altogether. Because the husband was still recovering from his injuries and on pain medication, he had difficulty transporting himself from the family home (where he would spend his days) to his mother's home (where he slept). The judge credited the husband's testimony that he would have preferred to stay at the family home during recovery.
The wife's cousin, John Jamroz, also testified credibly at the divorce proceeding regarding a conversation he had with the wife on March 11, 2006, days after the parties had returned from Texas. Specifically, Jamroz testified that the wife had approached him and told him she did not want to be married and she wanted her husband to "disappear." She asked Jamroz if he knew anyone in the "Mafia" or anyone who needed money, and said she wanted something done permanently. Jamroz went to the State police and reported this incident, and criminal charges were eventually brought against the wife. On June 29, 2007, a jury convicted the wife of solicitation to commit murder,
The judge made several other findings that are relevant to the
Discussion. 1. Distribution of assets. When dividing the marital estate, "a judge must make findings indicating that he has considered all factors relevant under [G. L. c. 208,] § 34, and has not considered any irrelevant factors."
The judge had broad discretion as to the division of property, Kittredge v. Kittredge, 441 Mass. 28, 43-44 (2004), and we will only disturb his rulings if they are plainly wrong and excessive. Redding v. Redding, 398 Mass. 102, 107 (1986). In support of her argument that the judge abused his broad discretion, the wife points both to the disproportionate distribution of assets as well as to the judge's statement that the "conviction of a spouse of the crime of soliciting the murder of the other spouse" was "exceptional" conduct that shocked the conscience of the court and would "have an impact on the `conduct' factor under [§ 34] irrespective of `economic impact.'"
"`Conduct' that has harmed the marriage or the marital estate may be viewed negatively, and considered as a factor that would diminish that spouse's equitable share of marital property"; however, "[a]n equitable division of marital property" is not intended "to punish `bad' behavior or enforce the criminal laws" (emphasis supplied). Kittredge v. Kittredge, 441 Mass. at 38. In this case, while the judge's harsh tone regarding the wife's criminal conviction may have been unnecessary to resolve the division of marital assets, it is nonetheless clear from his award and findings that he gave appropriate weight to each § 34 factor, including the wife's egregious conduct.
Although this case is highly unusual due to the gravity of the marital misconduct involved, we cannot say the judge erred in considering the effect that the wife's bad actions had on the emotional health of the marriage and family. Consideration of much less egregious conduct under § 34 has been approved.
Moreover, the judge did not consider the wife's misconduct solely for its negative emotional impact on the marriage. Specifically, the judge noted that the wife's effort to have her husband murdered — about which the judge heard live testimony, rather than simply relying on the fact of her conviction — "caused [the husband] to take on total responsibility for the children's care"; "makes [the husband] totally responsible for maintaining the parties' home"; and will "always" adversely affect the husband as it "diminishes his ability to be totally focused on life and work issues." Along with the wife's responsibility for the misguided $14,000 land use expenditure, these were the factors that the judge considered "primary." The judge explained
Although the judge did give much weight to the wife's misconduct, this is also not a case in which the award was based "purely on the basis of the blameworthy conduct of one of the spouses." Putnam v. Putnam, 5 Mass.App.Ct. 10, 16 (1977). The judge considered "[t]he parties' respective contributions to the marital partnership," Moriarty v. Stone, 41 Mass.App.Ct. 151, 157 (1996), including the wife's role as a homemaker during the day and the husband's responsibility for child care after work. The judge also considered the wife's responsibility for the husband's facial injuries, her callousness during his recovery, her plastic surgery expenditures, the cost associated with her poor landscaping decision, the length of the marriage, and the fact that neither spouse had any significant outstanding debts.
Neither does the disproportionate division of assets necessarily indicate, as the wife argues, that the division is inequitable. See Williams v. Massa, 431 Mass. 619, 632 (2000), quoting from Bacon v. Bacon, 26 Mass. App. Ct. at 118-119 ("[A]n imbalance in contributions may have an effect on the distribution"). Section 34 allows that the judge "may assign to either husband or wife all or any part of the estate of the other, including but not limited to, ... rights and funds accrued during the marriage...." G. L. c. 208, § 34, as amended by St. 1990, c. 467. We are mindful that "[a]mong the objectives of a financial award is providing means, to the extent the marital assets allow, which enable the parties to approximate the standard of living enjoyed during marriage." Denninger v. Denninger, 34 Mass.App.Ct. 429, 430 (1993). However, we have affirmed a division of property which left one spouse unable "to live in totally the same way on his present assets" as he did during the marriage. Bacon v. Bacon, 26 Mass. App. Ct. at 122.
Lastly, the judge did not err, as the wife asserts, by failing to award the wife any antique furniture from the home or the jewelry the wife claims is in the husband's possession (but about which there was no trial testimony). "A judge has broad discretion in dealing with the division of property incident to a divorce, including items of a personal nature," and the judge's failure to award the wife any furniture or jewelry here was not "plainly wrong." Ruml v. Ruml, 50 Mass. App. Ct. at 514 (judge was not plainly wrong in failing to award husband "his personal property, including clothes, shoes, and diplomas").
2. Attorney's fees. The wife complains that the judge's failure to award her additional attorney's fees was an abuse of his discretion. Brooks v. Brooks, 65 Mass.App.Ct. 129, 132 (2005) ("We will not disturb an order awarding attorney's fees except upon a showing of an abuse of that discretion"). A judge has broad discretion in awarding attorney's fees under G. L. c. 208, § 38, and, it follows, broad discretion to deny an award. Ross
Here, during the proceedings the wife received some $13,000 from the marital estate for her legal fees.
Judgment affirmed.