Connor v. Benedict

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SJC–12551

LAYNE C. CONNOR vs. WILLIAM P. BENEDICT.

Middlesex. November 6, 2018. - March 7, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Divorce and Separation, Alimony, Division of property.

Marriage.

Complaint for divorce filed in the Middlesex Division of

the Probate and Family Court Department on June 2, 2014.

The case was heard by Kevin R. Connelly, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Robert Clark for the husband.

Marc G. Bellerose for the wife.

LENK, J. Layne C. Connor (wife) filed a complaint for

divorce in June 2014 against William P. Benedict (husband), to

whom she had been married for a little more than two years, and

with whom she had lived for much of the prior twelve years.

Following a trial, a judge of the Probate and Family Court

2

issued a judgment of divorce nisi that awarded general term

alimony to the wife and, among other things, divided the marital

estate such that fifty-five percent of the over-all assets were

awarded to the husband and forty-five percent to the wife.

Although the legal marriage lasted 2.25 years, for purposes of

determining the amount of alimony pursuant to the Alimony Reform

Act of 2011, St. 2011, c. 124, the judge considered the marriage

to have been of slightly more than eight years' duration. In

doing so, the judge took into account an approximately six-year

period from 2005 to 2011, during which he found that the parties

had lived together and had engaged in an economic marital

partnership. The husband appealed, and we transferred the case

to this court on our own motion.

The husband challenges the alimony award on two grounds.

First, he claims that, as a matter of law, the wife was

precluded from entering an economic marital partnership with him

during much of the six-year period because she received alimony

payments from her former spouse during that time. In the

alternative, the husband claims that, even if the wife could

have entered into an economic marital partnership, the judge did

not make sufficient findings to support a determination that she

had done so. The husband also challenges the division of the

marital estate on the grounds that the judge selected the wrong

valuation date; made an incorrect determination of the assets in

3

the marital estate; improperly assigned liabilities to the

husband; and did not clarify the distribution of the retirement

accounts. We affirm.

1. Background. We summarize the judge's findings of fact,

supplemented by undisputed facts in the record and reserving

certain facts for later discussion. See Pierce v. Pierce, 455

Mass. 286, 288 (2009).

a. Early years (2000 to 2004). When the parties met in

August 2000, the wife owned a single-family house. In July

2001, she sold that property and used the proceeds to make a

down payment on a house in Maynard. The parties began living

together in the Maynard house in August 2001, along with the

wife's minor son.1 At the time, the husband recently had filed

for bankruptcy; his name did not appear on the deed or mortgage.

Nonetheless, the parties shared the mortgage payments, as well

as the costs of utilities, groceries, and other household

expenses. At some point in 2001, the wife became disabled and

unable to work.2 In 2003, she began receiving disability

payments.

1 Each party had a son from a prior marriage. The husband's

son did not live with the couple.

2 Due to her disability, the wife remains incapable of

working and is not expected to be able to work in the future.

4

b. Australia (2004 to 2005). From March 2004 to September

2005, the wife relocated to Australia with her son in order to

receive medical treatment. The parties arranged for the husband

to live in the house in Maynard while he coordinated with a

realtor to sell it. In September 2004, after the house had been

sold, the husband moved to a rental townhouse in Shirley. Some

of the proceeds from the sale were used to pay the wife's

medical bills; $5,000 went to the husband for improvements he

had made to the house while the wife was away; the wife received

the remainder.

c. Reunification (2005 to 2012). The wife returned to the

United States in October 2005, when her Australian medical visa

expired. In November 2005, the wife moved into the townhouse in

Shirley and the parties resumed living together, sharing rent

and utility expenses. The husband provided for the wife's

health insurance through his employer's "domestic partner

benefits program."

In November 2006, the parties jointly purchased a house in

Townsend (marital home).3 They each contributed at least $44,000

3 The parties dispute the current value of the marital home

and provided no evidence to support their varying estimates.

The judge declined to make a finding as to the value of the

house; he ordered the parties to sell the house and to share the

sale proceeds equally.

5

to the down payment.4 They made substantial improvements to the

house, including installing hardwood floors, retiling several

rooms, and building a gymnasium in the basement. The wife

purchased most of the furniture, using credit cards; the husband

paid at least some of the credit card bills. The parties also

bought additional household items, such as a dining room set,

together. Throughout the time they lived in the marital home,

they shared the costs of the mortgage, utilities, and other

household expenses.

In December 2008, the husband's employer terminated the

wife's health insurance due to a change in company policy

concerning "domestic partners." In response, the wife obtained

COBRA insurance at a monthly cost of $500, and the husband began

contributing "slightly more" to the household expenses.

The wife's minor son lived with the parties in the marital

home and became close to the husband. When the husband's father

passed away in 2011, the husband named the wife's son in the

obituary as a grandson of the deceased.

4 The judge found that the wife used $50,000 from the sale

of her former house toward the down payment on the marital home.

At another point in the decision, however, the judge noted that

the wife contributed $44,000 toward the down payment on that

house. It is not clear whether the amount of $44,000 represents

a portion of the funds from the sale of the wife's former house,

or whether it represents an additional payment on the marital

home.

6

d. Receipt of alimony from prior spouse. The wife and her

prior spouse had divorced in 2001. After that divorce, the wife

received regular child support and alimony payments. By 2006,

the husband was "at least somewhat aware" of the alimony

payments, which ceased in 2011.

e. Marriage and separation (2012 to 2014). The parties

were married on February 18, 2012. Thereafter, the wife again

received health insurance through the husband's employer, at

that point as his spouse.

The trial judge found that, throughout the course of the

marriage (including at least the 6.33-year period in which they

lived together immediately prior to their legal marriage), the

parties enjoyed an "upper-middle-income lifestyle." They dined

out two to three times per week, and traveled together several

times per year to destinations such as Switzerland, the Bahamas,

and California. The husband purchased diamond earrings,

pendants, rings, and bracelets for the wife.

During 2013, however, the parties had a series of

disagreements. The wife testified to incidents of abuse and

harassment by the husband, and both parties suggested that the

other had used intoxicating substances to excess. Ultimately,

the judge found that the parties suffered from "a great deal of

marital discord." The wife and her minor son left the marital

7

home on May 25, 2014, and began renting an apartment, while the

husband and his adult son lived in the marital home.5

f. Divorce. The wife filed a complaint for divorce in the

Probate and Family Court on June 2, 2014; the husband accepted

service on June 13, 2014. In July 2014, the wife sought a

number of temporary orders, and the motion judge, who was not

the trial judge, ordered the husband to pay temporary alimony

and all expenses related to the marital home. At trial, the

husband and wife testified as the only witnesses, and submitted

individual financial statements.

A judgment of divorce nisi issued on August 25, 2016. The

trial judge determined that, at the time of trial, the wife was

receiving disability payments, child support, and disability

benefits for her child, totaling approximately $1,375 per week.

The husband remained in good health and had been able to

maintain his job at a large corporation, where he earned $2,832

per week,6 as well as retirement, medical, and other benefits.

The judge ordered the husband to maintain payments on the wife's

5 The wife describes this situation as "essentially

subsidizing the husband and his son's lifestyle while she

simultaneously went into debt."

6 Because of the commissions the husband received on complex

financial products, his income fluctuated greatly from year to

year. For instance, the husband's reported salaries during the

eight years preceding the divorce ranged from lows of

$124,623.50 in 2008 and $128,558.72 in 2015 to highs of

$362,838.68 in 2011 and $305,153.51 in 2014.

8

health insurance and to maintain a life insurance policy in her

name. The judge also ordered the husband to pay alimony in the

amount of $511 per week for a period of sixty-one months. With

respect to the division of property, the judge awarded fifty-

five percent of the assets to the husband and forty-five percent

to the wife, with the exception of the marital home, which was

to be sold and the proceeds divided evenly.

2. Discussion. The husband contends that the judge erred

in calculating the duration of the marriage for purposes of

awarding alimony, and also that the judge erred in his division

of the marital estate.

a. Payment of alimony. In determining the length of

alimony payments to be awarded, the judge found that the parties

had been legally married for 2.25 years. See G. L. c. 208,

§ 48. A judge, however, may "increase the length of the

marriage if there is evidence that the parties' economic marital

partnership began during their cohabitation period prior to the

marriage." See id. Here, the judge determined that the parties

had cohabited and engaged in an economic marital partnership for

approximately 6.33 years, from November 2005, when they lived

together in Shirley, to the date of their marriage in February

2012. The judge therefore increased the duration of the

9

marriage to include that period,7 and ordered payment of alimony

for 5.148 years, the corresponding presumptive maximum duration

under the statute.8

The husband argues that it was error to consider the 6.33

years as an economic marital partnership, because, as a matter

of law, the wife was precluded from entering an economic marital

partnership during the time when she was receiving alimony from

a former spouse, and, even if she could have entered into an

economic marital partnership, the judge's findings of fact are

insufficient to support a determination that she had done so.

i. Durational limits on alimony. Alimony is "the payment

of support from a spouse, who has the ability to pay, to a

spouse in need of support for a reasonable length of time." See

G. L. c. 208, § 48. "The purpose of alimony is to provide

adequate support for a spouse who needs it." See Williams v.

Massa, 431 Mass. 619, 634 (2000). General term alimony, in

7 At trial, the parties disputed whether the period from

August 2001 to February 2004, during which they cohabited in

Maynard, also should qualify as a period of economic marital

partnership. The judge declined to increase the length of the

marriage to include that period of time. See note 14, infra.

8 Combining the 2.25-year legal marriage and the 6.33-year

economic marital partnership, the judge calculated the duration

of the marriage to be 8.58 years. Pursuant to G. L. c. 208,

§ 49 (b), because the total duration of the marriage fell

between five and ten years, the presumptive maximum duration of

alimony payments is sixty percent of 8.58 years, i.e., 5.148

years.

10

particular, aims to support one spouse who has become

"economically dependent" on the other. See G. L. c. 208, § 48.

"A judge has broad discretion when awarding alimony under

the statute." Zaleski v. Zaleski, 469 Mass. 230, 235 (2014).

Nonetheless, the "reasonable length of time" for which alimony

payments may be ordered is constrained by the Alimony Reform Act

of 2011, which sets presumptive durational limits on general

term alimony. See G. L. c. 208, § 49. The limits are premised

on the length of the parties' marriage; the longer the marriage,

the longer the maximum permissible duration of alimony, up to a

maximum cap.9 G. L. c. 208, § 49 (b). See 2 C.P. Kindregan,

Jr., M. McBrien, & P.A. Kindregan, Family Law and Practice

§ 53:1, at 1134 (4th ed. 2013) ("The longer a marriage lasts the

more likely it is that there will be a closer economic union and

dependence on support"). In order to determine the duration of

an award of general term alimony, therefore, a judge first must

calculate the length of the parties' marriage. See G. L.

c. 208, § 49 (b) (1)-(4); Duff-Kareores v. Kareores, 474 Mass.

528, 535 (2016).

9 "The legislative history clearly shows that the broad

discretion judges historically have had in making awards of

alimony was not affected by the Alimony Reform Act of 2011, St.

2011, c. 124 . . . ." See Zaleski v. Zaleski, 469 Mass. 230,

235 n.13 (2014). Judges also may deviate from the presumptive

maximum durations "in the interests of justice," upon a written

finding. See G. L. c. 208, § 49 (b).

11

General Law c. 208, § 48, defines the "[l]ength of the

marriage" as "the number of months from the date of legal

marriage to the date of service of a complaint or petition for

divorce . . . duly filed in a court." The parties were married

on February 18, 2012, and the husband accepted service of the

complaint for divorce on June 13, 2014. There was no error in

the judge's calculation that the parties had been married for

2.25 years.

As stated, the statute also provides that "the court may

increase the length of the marriage if there is evidence that

the parties' economic marital partnership began during their

cohabitation period prior to the marriage." G. L. c. 208, § 48.

A period of "cohabitation" and "economic marital partnership"

"resembles, but is not equivalent to, a legal marriage." See

Duff-Kareores, 474 Mass. at 534-535. During such a period, the

parties act like a married couple, and form the financial

dependencies, crystalized in marriage, for which alimony later

may compensate.

"[I]n order to ascertain whether the parties were

participating in an economic marital partnership," "a judge must

consider the factors set forth in G. L. c. 208, § 49 (d) (1)."

See Duff-Kareores, 474 Mass. at 535. These factors include, but

are not limited to, economic dependence or interdependence,

collaborative conduct in furtherance of a shared life, benefits

12

derived, and representations made or reputations acquired

regarding the relationship. See G. L. c. 208, § 49 (d) (1) (i)-

(vi). Here, the judge determined that the period from November

2005 to February 2012 constituted an economic marital

partnership.

ii. Receipt of alimony from third party. The husband

argues that, as a matter of law, the wife could not have entered

into an economic marital partnership with him from 2005 to 2011,

because she was receiving alimony payments from a previous

marriage during that period. He maintains that the word

"marital" in the phrase "economic marital partnership" imbues

the phrase with a requirement of monogamy, and permits either an

alimony relationship with a former spouse or an economic marital

partnership with a current partner, but not both. He contends

that to permit otherwise would be to endorse "financial

infidelity," "financial bigamy," or "financial polyandry."

Our jurisprudence recognizes, however, that the receipt of

alimony, without more, does not place an individual in an

economic marital partnership with a former spouse. While an

economic marital partnership "resembles . . . a legal marriage,"

a court-ordered obligation to pay alimony does not. See Duff-

Kareores, 474 Mass. at 534-535, 537.

"While it often may be the case that there is some measure

of mutual dependence and benefit enjoyed by formerly

married parties where one party is paying the other court-

13

ordered alimony, that alone would not convert court-ordered

payments into an economic marital partnership."

Id. at 537. An economic marital partnership is premised, in

part, on the parties' conduct "in furtherance of their life

together" and their "community reputation . . . as a couple."

See id. at 534, quoting G. L. c. 208, § 49 (d) (1). By

contrast, "[a] judgment requiring payment of alimony does not

contemplate a shared life," nor does it create a reputation of a

romantic pair within the community. See Duff-Kareores, supra at

537.

There is no indication that, between 2005 and 2011, the

wife and her former spouse shared a primary residence, presented

themselves to the public as husband and wife, or planned their

schedules and vacations together. Contrast Duff-Kareores, 474

Mass. at 537, 539 (once-married couple resumed economic marital

partnership after divorce). The transfer of payments, itself,

does not create a marriage-like relationship, and it does

nothing to preclude the recipient from seeking out and entering

into an economic marital partnership.

Indeed, the Legislature expressly contemplated that an

individual who receives alimony payments may enter a new

romantic relationship, see G. L. c. 208, § 49 (a), (d), and the

formation of a new economic marital partnership is not

prohibited by the statute. Rather, if an alimony recipient

14

cohabits and forms a "common household"10 with a new partner for

a period of at least three months, a former spouse's obligation

to pay alimony may be "suspended, reduced or terminated." See

G. L. c. 208, § 49 (d). Where an individual who receives

alimony enters an economic marital partnership, therefore, it is

the alimony -- not the economic marital partnership -- which may

give way. See id. Cf. G. L. c. 208, § 49 (a) (remarriage

terminates alimony).

Here, the former spouse's continued payment of alimony did

not prevent the wife from becoming economically interdependent

with the husband, nor did it diminish the extent to which the

new pair functioned as a couple and invested in a shared future

during the period from November 2005 to February 2012.11 It was

these mutual actions on which the husband's obligation to pay

alimony now rests, without regard to the burdens once borne by

the former spouse.

10The factors delineated in G. L. c. 208, § 49 (d) (1), are

used to determine both whether two individuals have engaged in a

"common household" and whether they have entered into an

"economic marital partnership." See Duff-Kareores v. Kareores,

474 Mass. 528, 534 (2016).

11The husband is not disadvantaged by the wife having

received alimony payments during the period of economic marital

partnership. If anything, the wife's receipt of alimony helped

fund the husband and wife's common enterprises, including

renovating, furnishing, and maintaining a home together.

15

The judge was aware that the wife had received alimony from

her former spouse, a fact that appears repeatedly throughout his

findings. In accordance with G. L. c. 208, § 49 (d) (1) (vi),

the judge was permitted to consider this and "other relevant and

material factors." Nothing in the record suggests that he

neglected to do so.

iii. Sufficiency of factual findings. The husband

contends that the evidence is insufficient to support a

determination that the parties cohabited and entered an economic

marital partnership. We do not agree.

The judge found that the parties cohabited between October

2005 and February 2012; during that time, they lived together in

Shirley and Townsend. As to their economic marital partnership,

the judge properly considered the factors set forth in G. L.

c. 208, § 49 (d) (1). With respect to economic interdependence,

the judge found that the wife had become disabled and relied on

the husband's health insurance during this period. The wife

also relied, at least in part, on the husband's salary, as she

was unable to work. In furtherance of building a life together,

the parties shared in the purchase of a house in 2006, the cost

of the mortgage, and the work required to perform renovations.

During the same period, the husband repeatedly represented his

16

wife to his employer as his "domestic partner."12 Moreover, the

husband held out the wife's son as his own in a 2011 obituary.

The judge determined that "[t]he parties acted as a married

couple in all respects."13

The judge's factual findings, supported by the record, also

support his conclusion that the parties engaged in an economic

marital partnership from November 2005 to February 2012.14

Accordingly, the judge did not abuse his discretion in including

the entire seventy-six month period in his calculation of the

duration of the marriage.

12The husband's employer defined "domestic partners" as

"two adults of the same or opposite sex who are in an ongoing

and committed spouse-like relationship. They reside together

and are jointly responsible for each other's welfare and

financial obligations."

13The husband argues, "Functionally, the parties' financial

transactions were undistinguishable from similar transactions

engaged in by unrelated roommates, and the parties' romantic

involvement did nothing to alter their financial arrangements."

We do not agree. It is the confluence of economic

interdependence, contemplation of a shared life, and reputation

or representation as a couple which suggest a marriage-like

economic marital partnership, pursuant to G. L. c. 208,

§ 49 (d) (1).

14To the extent that the judge also made findings that the

parties engaged in an economic marital partnership from

August 2001 to February 2004, he nonetheless retained discretion

not to extend the length of the marriage to include this period.

See G. L. c. 208, § 48 ("the court may increase the length of

the marriage"). Because the wife explicitly waives this issue

on appeal, we need not address it further. See Popp v. Popp,

477 Mass. 1022, 1023 n.1 (2017) (waiving claim of error in

judge's decision not to include specific period in length of

marriage).

17

b. Division of assets. The husband argues further that

the judge made several errors in dividing the parties' assets:

(i) selecting an improper date of valuation of the marital

estate; (ii) not properly defining the marital estate;

(iii) assigning some of the wife's liabilities to the husband;

and (iv) not clarifying the method of distribution of the

retirement accounts. Evaluating each in turn, we ascertain no

error.

i. Valuation date. The husband contends that the judge

erred by valuing the parties' marital assets based upon their

then most recent financial statements, that were filed at trial

on March 14, 2016, rather than valuing the assets as of June

2014, when the parties first separated, or upon the issuance of

temporary orders of support in July 2014.

The determination of the appropriate valuation date is left

to the discretion of the trial judge. See Savides v. Savides,

400 Mass. 250, 252-253 (1987) (no abuse of discretion where

judge used date of separation as valuation date); Moriarty v.

Stone, 41 Mass. App. Ct. 151, 154 (1996) (no abuse of discretion

where judge used date of trial as valuation date). See also

Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 n.9 (1985)

(determination of date is "best left to a case-by-case

analysis"). Except where "warranted by the circumstances of a

18

particular case," however, the valuation date typically is the

date of trial. See Moriarty, supra.

Only two years passed between the date of separation and

the date of trial. Contrast Savides, 400 Mass. at 250-253

(trial took place approximately ten years after separation, and

value of marital estate had increased significantly due to

husband's exclusive contributions). This case is not one in

which either party obtained significant assets following the

separation, distinct from accounts they had maintained during

the marriage, such that the inclusion of those assets in the

valuation would be rendered "contrary to the marital partnership

concept on which [G. L. c. 208, § 34,] is founded." Contrast

Davidson, 19 Mass. App. Ct. at 370-376 (part of trust and

expectancy under will not subject to property division where it

was obtained after divorce).15 It was not an abuse of discretion

for the judge to decide upon the date of trial as the date of

valuation in the circumstances here.

ii. Defining the marital estate. The husband argues that

the judge did not properly "define the marital estate" because

he did not indicate which assets were acquired during the

15To the contrary, the husband argues only that he

continued to contribute to his retirement account and to pay

household expenses, including the mortgage -- all of which were

obligations existing during the period of the marriage or

ordered by the court as temporary payments during the course of

the divorce proceedings.

19

marriage, and because his division did not flow rationally from

the parties' contributions to the marital estate.

As to the assets included in the marital estate, a judge is

not limited to dividing assets acquired during the period of the

marriage. See G. L. c. 208, § 34 (permitting division of "all

or any part of the estate of the other"). A judge may divide

"all property to which a party holds title, however acquired."16

See Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110 (2016).

See also Rice v. Rice, 372 Mass. 398, 400-401 (1977) (permitting

assignment of property "whenever and however acquired"). This

includes acquisitions made outside the period of the legal

marriage or a period of marital economic partnership. See,

e.g., Brower v. Brower, 61 Mass. App. Ct. 216, 218 (2004)

(dividing assets acquired during period of cohabitation before

legal marriage); Moriarty, 41 Mass. App. Ct. at 156 (permitting

division of "the pension, retirement and other benefits accrued

prior to the marriage"). The assets considered in this case

included the marital home, financial accounts, vehicles,

jewelry, retirement accounts, and personal property. As the

parties "held title" to each, it was not improper for the judge

16There is no requirement, as the husband would have it,

that the judge delineate "which assets were acquired during the

marriage and which were not."

20

to consider any of these assets, regardless of when they were

acquired.

General Laws c. 208, § 34, sets forth the factors which a

judge must consider in dividing the parties' assets. These

include

"the 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, awarded . . . . The court may also

consider the contribution of each of the parties in the

acquisition, preservation or appreciation in value of their

respective estates and the contribution of each of the

parties as a homemaker to the family unit."

G. L. c. 208, § 34. Trial judges retain "broad discretion" in

weighing and balancing the factors described in G. L. c. 208,

§ 34. See Kittredge v. Kittredge, 441 Mass. 28, 43 (2004). See

also Adams v. Adams, 459 Mass. 361, 372-373 (2011), S.C., 466

Mass. 1015 (2013).

In reviewing a trial judge's division of property, we

conduct a two-step analysis. See Bernier v. Bernier, 449 Mass.

774, 794 (2007). First, "[w]e review the judge's findings to

determine whether he [or she] considered all the relevant

factors under [G. L. c. 208, § 34,] and no irrelevant factors."

See Baccanti v. Morton, 434 Mass. 787, 790 (2001). Second, if

the judge has done so, we will not reverse a judgment unless it

21

is "plainly wrong and excessive" (citations omitted). See

Bernier, supra; Baccanti, supra at 793.

Contrary to the husband's position, "[t]he judge did make

findings as to these [assets]; he simply did not make the

findings sought by the husband." See Baccanti, 434 Mass.

at 791. The judge meticulously defined each of the assets

within the marital estate, tracking them over the period from

2001 through 2014. After "fixing the nature and value of the

property" pursuant to G. L. c. 208, § 34, he explicitly

considered the requirements of the statute; he took into account

that the husband "contributed significantly more to the

acquisition of marital assets," and weighed that against the

wife's "health problems and lack of employability," as well as

his determination that the "parties contributed equally to the

marriage." The judge decided that a division of assets favoring

the husband, fifty-five percent to forty-five percent, was

appropriate, but that the marital home should be divided evenly

in recognition that the parties had "contributed equally" to its

purchase and maintenance. We cannot say that, having considered

the appropriate factors, the judge was "plainly wrong and

excessive" in his distribution of the parties' assets. See

Bernier, 449 Mass. at 794; Baccanti, supra at 793.

iii. Liabilities. The husband maintains that the judge

erred in allocating a portion of the wife's "post-separation

22

consumer debt" to the husband. The husband relies on Rule

411(a) of the Supplemental Rules of the Probate and Family

Court, Massachusetts Rules of Court, at 815-816 (LexisNexis

2018), which establishes an "automatic restraining order" on

both parties after one party files a complaint for divorce.17

The rule admonishes that

"[n]either party shall incur any further debts that would

burden the credit of the other party, including but not

limited to further borrowing against any credit line

secured by the marital residence or unreasonably using

credit cards or cash advances against credit or bank

cards."

See Rule 411(a)(2) of the Supplemental Rules of the Probate and

Family Court, supra at 816.

Subsequent to the separation, the wife purchased furniture

on credit for the apartment in which she and her son were

living. The wife appears to have used her own credit cards for

17 As to the "restraining order," the rule requires:

"Neither party shall sell, transfer, encumber, conceal,

assign, remove or in any way dispose of any property, real

or personal, belonging to or acquired by, either party,

except: (a) as required for reasonable expenses of living;

(b) in the ordinary and usual course of business; (c) in

the ordinary and usual course of investing; (d) for payment

of reasonable attorney's fees and costs in connection with

the action; (e) written agreement of both parties; or

(f) by order of the court."

Rule 411(a) of the Supplemental Rules of the Probate and Family

Court, Massachusetts Rules of Court, at 815 (LexisNexis 2018).

The use of funds to purchase furniture satisfies the first

exception, "as required for reasonable expenses of living."

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the purchases, and there is no indication that the credit cards

were in the husband's name, or that the debt encumbered the

marital home. As such, the wife does not appear to have

incurred "any further debts that would burden the credit of" the

husband. Id. Moreover, the wife's purchase of furniture was

not unreasonable. After the separation, the husband retained

use of the marital home and the furnishings therein; the wife

and her son moved into an apartment and required furniture of

their own. The judge was aware of the debt the wife incurred,

and considering the purpose for which the furniture was

purchased, the judge allocated liabilities such that the wife

was responsible for fifty-five percent of the debt and the

husband was responsible for the remainder. There was no error

in so doing. The "ultimate goal of G. L. c. 208, § 34," is "an

equitable, rather than an equal, division of property." Adlakha

v. Adlakha, 65 Mass. App. Ct. 860, 864 (2006), quoting Williams,

431 Mass. at 626.

iv. Retirement accounts. The judge ordered that "[t]he

parties' retirement assets shall be divided between the parties,

such that Wife receives [forty-five percent] of the total value

in the accounts and Husband receives [fifty-five percent]." The

husband contends that the distribution ordered was impermissibly

vague with respect to the date of segregation, the effect of

market gains or losses prior to the date the account is divided,

24

and the means by which to divide the accounts. He argues that,

because a qualified domestic relations order (QDRO) was not

issued, the division of the retirement accounts could constitute

"early distribution" that would trigger a tax penalty.

A QDRO is an appropriate method by which to facilitate the

distribution of child support, alimony, or marital property

rights. See, e.g., Silverman v. Spiro, 438 Mass. 725, 736

(2003). The parties concede that a QDRO would resolve any tax

concerns here. At oral argument, in response to a question

whether a QDRO from the Probate and Family Court would be the

appropriate resolution to the tax concerns, counsel for the

husband responded, "It very easily would be, and I think that's

really more of a housekeeping matter than anything else."

Counsel for the wife represented that there "is an unequivocal

agreement that a QDRO has to be done." Nothing in the judgment

nisi or anything in this opinion precludes the parties from

returning to the Probate and Family Court to seek such an order.

As to the husband's other concerns, as discussed, the

valuation date for the parties' assets -- including the

retirement accounts -- was set as March 14, 2016, the second day

of trial. The only open question is how to account for fair

market adjustments. The husband argues that the judge neglected

to "specify whether the wife's portion would be subject to

market gains or losses" after the valuation date. This judgment

25

does not preclude the parties from returning to the Probate and

Family Court to pursue a QDRO, or from seeking clarification on

the issue of how to account for market adjustments.18

Judgment affirmed.

18The wife seeks attorney's fees and double costs, on the

ground that the husband's arguments are frivolous. "We are

hesitant to deem an appeal frivolous and grant sanctions except

in egregious cases." Symmons v. O'Keeffe, 419 Mass. 288, 303

(1995). Because we do not determine that the law was

sufficiently well settled, such that "there [could] be no

reasonable expectation of a reversal," we decline to allow the

wife's request (citation omitted). See id.