Canisius v. Morgenstern

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14-P-341 Appeals Court

PETER CANISIUS, JR. vs. ERIN JOY MORGENSTERN.

No. 14-P-341.

Suffolk. December 2, 2014. - August 6, 2015.

Present: Rapoza, C.J., Vuono, & Meade, JJ.1

Divorce and Separation, Division of property.

Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on November 1, 2011.

The case was heard by Brian J. Dunn, J.

Michael P. Friedman for the husband.
William Sanford Durland, III, for the wife.

RAPOZA, C.J. Peter Canisius, Jr. (Peter), the former

husband of Erin Joy Morgenstern (Erin), appeals from a judgment

of divorce of the Probate and Family Court. He argues that the

judge erred in treating Erin's vested contractual rights to

future payments resulting from the best-selling novel, The Night

1
Chief Justice Rapoza participated in the deliberation on
this case and authored this opinion prior to his retirement.
2

Circus, which she authored, as too speculative for inclusion in

the divisible marital estate. He also argues that the judge

erred by finding that the parties' contributions to the marital

estate were unequal, and making an unequal division of the

marital estate based on that erroneous finding.

We fail to discern error in the judge's determination that

the parties' contributions to the marital estate were not equal.

We agree with Peter, however, that the judge committed an error

of law by excluding from the marital estate subject to division

under G. L. c. 208, § 34, Erin's contractual rights to future

payments arising from her novel. Our review of this issue is de

novo. As explained more fully, infra, we vacate the judgment,

in part, and remand the matter to the Probate and Family Court

for further proceedings consistent with this opinion.

1. Background. Peter and Erin began to live together in

August, 2004, some two years prior to their marriage. Early on,

they established a pattern that continued throughout their

cohabitation and marriage: Erin handled the cooking for the

couple while Peter performed the cleaning duties. During this

early period, Erin was unhappy with her employment situation and

wished to pursue artistic endeavors. After discussing the issue

with Peter, the parties decided that they would no longer share

equally their living expenses (as they had been) until Erin's

income from the arts would allow her to do so. By June, 2005,
3

Erin had ceased working outside of the creative arts, and by

February, 2006, Peter had begun to pay for virtually all of the

parties' expenses. The parties were married on October 13,

2006.

During the marriage, the parties lived a "simple lifestyle"

on a limited budget. Peter, a chemical engineer, worked long

hours to pay the parties' expenses, including those expenses

directly related to Erin's creative pursuits. He also paid off

Erin's then existing student loan debt. Erin, for her part,

engaged in writing as well as the creation of various pieces of

art. Certain of Erin's writing projects ultimately evolved into

the novel, The Night Circus.2

In May, 2010, Erin obtained an agent (who provided her with

numerous suggestions to improve her novel) and, in November,

2010, the agent negotiated a contract with Doubleday, a division

of Random House, Inc., for the disposition of the publishing

rights to The Night Circus. Other rights, including the right

to make a movie, were optioned to Summit Entertainment (Summit)

in December, 2010.3 Although Summit has retained a screenwriter

2
The seeds for The Night Circus were planted shortly before
the marriage in certain of Erin's writings. The novel was
primarily worked on and completed during the marriage.
3
The judge found that there are many forms and amounts of
payments that Erin may receive under the terms of the Summit
contract. The judge further found that there is "no
participation necessary on the part of [Erin] in regard to . . .
4

and producer for the movie project, the film has no timetable

for production. In 2011, Erin transferred the copyright to The

Night Circus to Night Circus LLC, which she owns. Erin received

substantial initial payments from both Doubleday and Summit.

As The Night Circus began to find success, the parties'

marriage, which had experienced some tension, continued to

deteriorate and, in July, 2011, the parties separated.

Subsequent to the parties' separation, Erin engaged in

significant publicity and promotional work for the novel which,

the judge found, was important to the success of the book. Erin

continues to build her "brand" by marketing herself "through

blurbs and other means, including social media."

By the time of trial on Peter's complaint for divorce, The

Night Circus had grossed over $3 million in royalties and

between November, 2010, and October 9, 2013 (the last day of

trial), Erin received net income derived from The Night Circus

[that contract] in order for [the] agreement to continue to have
value and [Erin's] participation is unnecessary going forward
with respect to the Summit agreement." With respect to the
Doubleday contract, that instrument provides that if Doubleday
requests Erin's cooperation in promoting The Night Circus, Erin
shall be available for such promotional activities at mutually
agreed upon times and places. Erin testified that she last
attended a book tour event in November, 2012 (although she has
been to certain other events).
5

of $2,853,281.4 Nonetheless, the judge found that the gross

amount of royalties was decreasing as sales were decreasing.

The judge also stated that Erin's future earnings from The Night

Circus are unpredictable. "It may become a highly successful

movie, theater production etc., which will provide a large

income stream for [Erin] for years to come, or it may not, and

[Erin] may have to rely on the past financial success of The

Night Circus to support her for a lifetime."5

Peter earns approximately $95,000 per year as an engineer.

Both parties have retirement plans. They do not own any real

property. Neither party sought alimony from the other at trial.

2. The judge's decision. The judge found that once The

Night Circus was accepted in final form by Doubleday, the

contract with Doubleday had "value and the full economic value

of the contract is dependent only upon how many books are sold

4
This amount does not include royalties from certain sales
that would not be payable to Erin by Doubleday until December,
2013.
5
The judge found that although Erin had done some work
(part of it conceptual) on a second novel, she had "barely
written" during the two years preceding trial. Erin's choice of
genre for a second novel will have a significant impact on the
marketability of that work. The judge found that if Erin can
produce a significant writing sample of a second novel, of the
same "type and quality" as The Night Circus, she has the
potential of earning a larger advance than she received from The
Night Circus. The judge noted, however, that it is not clear
whether Erin will be able to complete a second book and that the
success of any such book is not guaranteed.
6

worldwide. The Night Circus is marital property."

Nevertheless, the judge stated in his "Conclusions of Law" that

"[t]he Court may properly conclude on the evidence that the

present value of future income of intellectual property is too

speculative to consider, as was the case with patents on

artificial skin. See Yannas v. Frondistou-Yannas, 395 Mass.

704, 714 (1985)." Continuing, the judge stated in his

"Rationale:"

"Wife is the author of The Night Circus which has been
hugely financially successful due to her talent. The
financial success of the work was also enhanced by her
efforts and abilities in promoting the book. The book is
the sole creation of Wife. Husband admitted that not a
word of the book is his creation. However, the court notes
that it seems clear from the evidence that this work is not
solely created by the author but rather created by the
author and a team of others. In this case, the team was
her agent, the agent's staff, her editor, her critique
partner, beta readers and the Husband. The value Husband
added, if any, to this editorial process compared to other
members of the team was minimal. However, Husband's
editorial contributions to this book are not his sole value
to this book. Husband's contribution to The Night Circus
began well before a word of this book was written or even
conceived by Wife. Husband worked full-time and
significant overtime to allow the Wife to pursue her dream
of pursuing a successful career in the arts without the
concern for putting a roof over her head or food on the
table. In a sense, Wife was not a starving artist due to
Husband['s] efforts to fully provide for both of their
needs. Husband also served as an emotional support and
companion to Wife during the research and writing process
and his reading of drafts and offering some feedback or
encouragement in difficult times certainly impacted Wife's
on-going efforts to produce a marketable manuscript. It
would not be equitable in any sense of the word to deny
Husband a portion of the fruits of this marriage, which in
this case is The Night Circus.
7

". . .

"The Husband provided Wife with financial and
emotional support in her efforts to pursue the creative
arts. Wife then created the world of The Night Circus from
her imagination and used her skill (and others) to develop
that into a book that has grossed over three million
dollars in royalties. These contributions are not equal.
Therefore, considering all the admissible evidence and
inferences reasonable therefrom, the court is persuaded
that an unequal division of the marital estate is equitable
in this case. I find after careful consideration of the
section 34 factors that payment of [$628,000] from Wife to
Husband would be an equitable division of the marital
estate."6

The judge issued a judgment of divorce on December 19,

2013, which contains provisions that effectuate his stated

rationale, including an order directing Erin to make a lump sum

payment to Peter of $570,000 (which takes into account previous

advancements of attorney's fees to Peter in the amount of

$58,000) as "his share of the royalty and book-related earnings

she has received to date from the publication of [her] novel

. . ." (emphasis supplied).

3. Discussion. a. Future payments/marital estate. Peter

argues that the judge erred in treating Erin's "vested

contractual rights" to future payments resulting from her

successful novel as too speculative for inclusion in the marital

estate. Put another way, he states that it was "clear error for

6
The judge also stated, seemingly with reference to Erin's
other (often undeveloped) projects, that it would be inequitable
forever to wed Erin with Peter as a business partner.
8

the judge to exclude from the divisible marital estate all

future compensation received by [Erin] after the trial and into

the future under the Doubleday and Summit contracts."7,8

General Laws c. 208, § 34, as amended through St. 1990,

c. 467, provides, in part, that the "court may assign to either

husband or wife all or any part of the estate of the other,

including but not limited to, all vested and nonvested benefits,

rights and funds accrued during the marriage . . . ." In S.L.

v. R.L., 55 Mass. App. Ct. 880, 882-883 (2002), we summarized

the general principles bearing upon the inclusion of an asset or

interest in, or the exclusion of an asset from, the marital

estate:

"General Laws c. 208, § 34, defines the scope of a
trial judge's discretion to assign interests in the marital
estate to the wife or husband, based on a number of

7
We construe the judge's findings, conclusions, and
judgment, as do the parties in their briefs, as excluding from
the divisible marital estate Erin's interest in contractual
rights to future payments.
8
Peter does not seek any interest in the copyright to The
Night Circus. In this regard, he cites to Rodrigue v. Rodrigue,
218 F.3d 432, 435 (5th Cir. 2000), cert. denied, 532 U.S. 905
(2001) (conclusion that "an author-spouse in whom a copyright
vests maintains exclusive managerial control of the copyright
but that the economic benefits of the copyrighted work belong to
the community while it exists and to the former spouses in
indivision thereafter," is consistent with both Federal
copyright law and Louisiana community property law). See Berry
v. Berry, 127 Haw. 243, 256-263 (2012). Peter has expressly
waived any right in other artistic works created by Erin during
the marriage. His appeal, as he states, is limited to his claim
to vested interests arising out of The Night Circus.
9

specified factors. . . . Separate from the division of
assets within the estate is the question whether certain
assets properly are considered a part of the estate. In
making the determination of what to include in the estate,
the judge is not bound by traditional concepts of title or
property. 'Instead, we have held a number of intangible
interests (even those not within the complete possession or
control of their holders) to be part of a spouse's estate
for purposes of § 34.' Baccanti v. Morton, 434 Mass. 787,
794 (2001), quoting from Lauricella v. Lauricella, 409
Mass. 211, 214 (1991). 'When the future acquisition of
assets is fairly certain, and current valuation possible,
the assets may be considered for assignment under § 34.'
Williams v. Massa, [431 Mass. 619,] 628 [2000]. Interests
considered too remote or speculative for inclusion within
the estate are instead weighed under the § 34 criterion of
'opportunity of each [spouse] for future acquisition of
capital assets and income' in dividing the marital
property."

See D.L. v. G.L., 61 Mass. App. Ct. 488, 492-493 (2004).

With respect to the possibility of current valuation

referenced in S.L. v. R.L., supra, case law indicates that the

uncertainty of value of a party's interest does not necessarily

require its exclusion from the marital estate. See, e.g.,

Hanify v. Hanify, 403 Mass. 184, 188 (1988) (fact that "pending

lawsuits" are of uncertain value does not require their

exclusion from the marital estate); Lauricella v. Lauricella,

409 Mass. at 217 (fact that valuation of interest may be

difficult does not alter its character as divisible asset);

Davidson v. Davidson, 19 Mass. App. Ct. 364, 372 (1985) ("We do

not think that either the uncertainty of value or the

inalienability of the interest, in themselves, are sufficient to

preclude consideration of the interest as subject to division").
10

In such circumstances, an asset may be divided on an "if and

when received" basis. Hanify v. Hanify, 403 Mass. at 188. See

Adams v. Adams, 459 Mass. 361, 379 & n.14 (2011); S.L. v. R.L.,

55 Mass. App. Ct. at 885. As the Supreme Judicial Court has

stated, while a "'present division of all assets ordinarily is

preferable,' because it provides an immediate settlement of the

distribution without entangling the parties in future

litigation, and the continued strife and uncertainty it

entails," Adams v. Adams, 459 Mass. at 379 n.14, quoting from

Hanify v. Hanify, 403 Mass. at 188, "where a present valuation

of [an asset] is uncertain or impractical, the better practice

is to order that any future recovery or payment be divided, if

and when received, according to a formula fixed in the property

assignment." Ibid. See S.L. v. R.L., 55 Mass. App. Ct. at 884-

885.

We have also indicated that an "expansive," rather than a

restrictive, approach to what constitutes marital property is

appropriate. D.L. v. G.L., 61 Mass. App. Ct. at 493, and cases

cited. Whether a party's interest in certain property is part

of the marital estate for purposes of G. L. c. 208, § 34, has

been said to present a question of law that we are in as good a

position as the probate judge to answer. See Lauricella v.
11

Lauricella, 409 Mass. at 213.9 But compare Adams v. Adams, 459

Mass. at 378.

In the instant matter, The Night Circus was created

essentially during the marriage and the Doubleday and Summit

contracts were executed during the marriage. Erin's rights in

those contracts, as Peter points out, are present and

enforceable and, with respect to value, dependent, in the case

of the Doubleday contract, on the number of books sold worldwide

and, in the case of the Summit contract, on whether Summit

chooses to exercise the option for the rights it acquired

through its contract with Erin. The contracts have already

generated extraordinary payments for Erin and have the potential

for generating additional payments in the future.

Notwithstanding the foregoing, Erin suggests in her brief

that case law supports the judge's determination to exclude from

the divisible marital estate as too speculative "future royalty

9
"This determination involves neither an exercise of
discretion nor consideration of the enumerated § 34 factors."
Lauricella v. Lauricella, 409 Mass. at 213 n.2. See D.L. v.
G.L., 61 Mass. App. Ct. at 495-497, where, after stating that
the question whether a party's interest in trust property is
part of the estate for purposes of § 34 presents a question of
law, we concluded on the evidence that the husband's interest in
the trust principal "properly may be characterized as 'too
remote or speculative' to be included within the martial
estate." Id. at 497.
12

income."10 She points to several cases. In Cabot v. Cabot, 18

Mass. App. Ct. 903, 904 (1984), we held that a probate judge

properly may decline to treat as a marital asset the present

value of future earning potential. We reasoned that future

earnings were too speculative and subject to variables, the

least of which being that they may never be achieved because of

death, illness, or simply market factors. Similarly, in Drapek

v. Drapek, 399 Mass. 240, 243-244 (1987), a case that involved

the question whether the husband's medical degree and resulting

increased earning capacity should be treated as part of the

marital estate subject to division, the Supreme Judicial Court

stated that the present value of future earned income is not

subject to equitable assignment under G. L. c. 208, § 34. "To

adopt a rule that would subject such an item to distribution

upon divorce would foreclose consideration of the effect of

future events on the individual's earning capacity. Unlike

alimony, a property settlement is not subject to modification."

399 Mass. at 244. Finally, in Yannas v. Frondistou-Yannas, 395

Mass. at 706, the husband in the divorce proceeding was a world-

renowned scientist who was the coinventor of an artificial skin

designed for the treatment of severe burn victims. In

10
Erin states that the judge properly could consider the
future royalty income in the context of her future opportunities
to acquire assets and income.
13

addressing the division of the marital estate, the court stated:

"[The judge] was not obliged to place a value on the husband's

royalties, patents or copyrights. He was warranted in declaring

uncertain the value of the husband's patents on artificial skin.

The judge could have concluded on the evidence that the present

value of the husband's future income from this source was too

speculative to consider. The asset was not one which obviously

has current value but is difficult to appraise (such as a close

corporation)." Id. at 714. The court later summarized its

holding in the Yannas case as follows: "Similarly, in Yannas

. . . we declined to characterize the present value of a grant

of a patent as a divisible asset because any enhanced earning

potential the patent created was merely speculative" (emphasis

added).11 Adams v. Adams, 459 Mass. at 374.

In subsequent decisions, the Supreme Judicial Court has

indicated that cases such as Drapek and Yannas, which implicate

future earning potential or enhanced future earning potential,

involve "expectancies." See Hanify v. Hanify, 403 Mass. at 188;

Lauricella v. Lauricella, 409 Mass. at 216; Adams v. Adams, 459

11
A "patent" has been described as a "bundle of legal
rights granted to an inventor by [F]ederal law" which "consist
in essence of the right to exclusive use of the invention for a
limited period of time." 2 Turner, Equitable Distribution of
Property, § 6:77 (3d ed. 2005). The Yannas decision contains no
discussion of the evidence that was before the probate judge
concerning the patents there in issue.
14

Mass. at 374. Our courts "have drawn a line around certain

interests that are so speculative as to constitute nothing more

than expectancies, and thus, are not assignable to the marital

estate." Ibid. See Hassey v. Hassey, 85 Mass. App. Ct. 518,

531 n. 22 (2014). "Expectancies . . . do not embody either a

present or future enforceable proprietary right . . . ;" they

have only theoretical value. Adams v. Adams, 459 Mass. at 374-

375, 377. See Hanify v. Hanify, 403 Mass. at 188 ("Expectancies

. . . embody no enforceable rights accruing during the

marriage").

Here, Erin's contractual rights to future royalty and other

payments do not, in our view, involve mere expectancies as

described in the foregoing cases. While the amount of the

royalty and other payments to be received by Erin in the future

cannot yet be ascertained, the right to receive those royalties

and other payments was contractually established at the time of

the divorce.12 Indeed, Erin's interests in the present case are,

12
A weakness in Erin's position, and her reliance upon
cases such as Cabot v. Cabot, 18 Mass. App. Ct. at 904, is
manifest in her statement in her brief that her future novel-
related payments may never be achieved due to "death, illness,
or simply market factors." While such a statement would make
sense in the scenario presented in Cabot (where the wife sought
to offer the opinion of an actuary of the present value of the
earning capacity of the husband and wife, respectively, until
each reached the age of sixty-five), it makes little sense in
the context of this case where Erin has vested contractual
rights.
15

in certain respects, analogous to a party's interest in the

payment of pension rights which has been recognized as marital

property subject to division. See Dewan v. Dewan, 399 Mass.

754, 755, 757-758 (1987); D.L. v. G.L., 61 Mass. App. Ct. at 493

n.9. See also Mahoney v. Mahoney, 425 Mass. 441, 444 (1997)

("An employee who participates in a pension plan has an

enforceable contractual right to receive future benefits from

the plan"). We are also mindful of the proposition, set out by

the Supreme Judicial Court in Adams, that "we are unwilling to

deny one spouse, who contributed to the acquisition or

appreciation of property during the marital enterprise, 'the

right to share in what may be the most valuable asset between

the spouses' on the basis of the uncertainty or future

contingencies bound up in that asset." Adams v. Adams, 459

Mass. at 376, quoting from Baccanti v. Morton, 434 Mass. at 796

(quotation omitted). "To hold otherwise would frustrate the

intent of the Legislature in so broadly drafting § 34." Ibid.

We note that the courts of a number of jurisdictions have

determined that, in appropriate circumstances, an interest in

future book royalties can be included in the parties' divisible

marital estate. See, e.g., Gallo v. Gallo, 184 Conn. 36, 48

(1981) (award to plaintiff of twenty percent of defendant's

royalties for period of five years upheld where right to receive

royalties was contractually established and was neither
16

indefinite nor speculative); Lynch v. Lynch, 135 Conn. App. 40,

51-52 (2012); In re Marriage of Heinze, 257 Ill. App. 3d 782,

783-789 (1994) (distinguishing Yannas case, supra; where

contract right to future book royalties was acquired during

marriage, future book royalties are "fruit of the shared

enterprise of marriage" and should be divided as marital

property); In re Marriage of White, 537 N.W.2d 744, 746-747

(Iowa 1995). See also Young v. Kelly, 334 P.3d 153, 160 n.34

(Alaska 2014). See and compare Morenberg v. Morenberg, 65 So.

3d 1199, 1200-1201 (Fla. App. 2011) (husband required to share

equally in royalties he receives from two books he wrote and

revised during marriage, but not future royalties on book

edition he revised after petition for dissolution). See

generally, American Law Institute, Principles of the Law of

Family Dissolution Analysis & Recommendations § 4.08 (2002).13

13
As for Erin's argument that no evidence was introduced at
trial regarding the present value of future payments, as we have
discussed, where valuation of an interest is uncertain or
impractical a judge is not precluded from dividing an asset on
an "if and when received" basis. Peter requested this form of
division in his proposed findings and judgment. Erin also
appears to argue that even assuming that her contractual rights
should have been included in the § 34 division, any future
royalty payments she receives will be income to her and the
payment of any portion of that income to Peter must be treated
as the payment of alimony, which is precluded by Peter's waiver
of alimony. This argument was not raised below and, indeed,
Erin proceeded in her proposed findings, conclusions, and
rationale on the theory that her future earning potential and
postdivorce royalty and book-related income could not be treated
under Massachusetts law as marital property (citing to Drapek v.
17

Based on all of the foregoing, we conclude that the judge

erred in excluding from the marital estate subject to equitable

division Erin's interest in future payments to be received by

her subsequent to the divorce under the Doubleday and Summit

contracts.14

In view of the decision we reach on this issue, we are

constrained to vacate the order directing Erin to pay to Peter

the lump sum of $570,000 as his share of the royalty and book-

related earnings she has received to date from the publication

of The Night Circus. In fixing that specific monetary award,

the judge indicated that he had considered carefully the G. L.

c. 208, § 34, factors, which would presumably include the

opportunity of each party to acquire capital assets and income

in the future and may encompass Erin's interests in future

Drapek, 399 Mass. at 243-244) and was too speculative. While a
party "may defend a judgment on any ground based on the record
so long as raising the argument is not unfair to its opponent,"
Perseus of N.E., MA, Inc. v. Commonwealth, 429 Mass. 163, 168
(1999), it is doubtful in the circumstances presented that the
fairness aspect of the principle has been met as to Erin's
waiver of alimony argument. In any event, on the limited issue
presented, we do not consider that argument to be persuasive.
See e.g., § 71(b) of the Internal Revenue Code, 26 U.S.C.
§ 71(b) (2012); Kindregan, McBrien and Kindregan, Family Law and
Practice § 16:2 (4th ed. 2013).
14
That Erin might conceivably be called upon by Doubleday
to perform some promotional activity in the future (see note 3,
supra), would not, in the circumstances presented in this case,
preclude her interest in future contractual payments from being
considered part of the marital estate.
18

royalty and other payments. See S.L. v. R.L., 55 Mass. App. Ct.

at 883 ("Interests considered too remote or speculative for

inclusion within the estate are instead weighed under the § 34

criterion of 'opportunity of each [spouse] for future

acquisition of capital assets and income' in dividing the

marital property"). As we are unable to determine the weight

accorded by the judge to this § 34 factor in fixing the monetary

award, and as we now hold that Erin's interest in future

proceeds under the Doubleday and Summit contracts is to be

considered part of the marital estate subject to equitable

division under § 34, the lump sum monetary award must be

reexamined.

b. The parties' contributions. Peter argues next that the

judge erred by finding the parties' contributions to the marital

estate to be unequal and making an unequal division of the

marital estate based on this erroneous finding. Although we

have concluded that the order directing Erin to pay Peter the

lump sum of $570,000 must be vacated, we address Peter's claim

of error with respect to the parties' contributions.

Among the G. L. c. 208, § 34, factors a judge may consider

in fashioning an equitable division is the contribution of each

of the parties to 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. Indeed,
19

we have stated that the "parties' respective contributions to

the marital partnership remain the touchstone of an equitable

division of the marital estate." Moriarty v. Stone, 41 Mass.

App. Ct. 151, 157-158 (1996). We may set aside a judge's

findings of fact when they are clearly erroneous. Mass. R. Dom.

Rel. P. 52(a).

Here, Peter asserts that the judge expressly rested his

unequal division of the marital estate on his conclusion that

his (Peter's) contributions were not equal to Erin's

contributions of her talent, imagination, and skill to the

creation of The Night Circus. Peter states that the notion that

one spouse's direct contribution of skills or talent to a

marital asset should outweigh the different but equivalent

marital contributions of the other spouse was rejected in

deCastro v. deCastro, 415 Mass. 787, 792-795 (1993) (rejecting

claim that husband's "genius" in cofounding and developing

highly successful corporation was factor under § 34, and stating

that concept of equitable division must be read to apply in

broad sense to value of all contributions of respective spouses

towards marital enterprise). Peter further asserts that it is

clear that the parties in this case made distinct but equal

contributions to their marital partnership. In short, Peter

argues that there was simply "no basis or adequate explanation
20

in the judge's findings or rationale for his conclusion that the

parties' marital contributions were not equal."

In fashioning his argument, Peter relies in part on the

following two sentences that are contained in the judge's

rationale: "The Husband provided Wife with financial and

emotional support in her efforts to pursue the creative arts.

Wife then created the world of The Night Circus from her

imagination and used her skill (and others) to develop that into

a book that has grossed over three million dollars in

royalties." Peter notes, correctly, that the judge then stated,

"These contributions are not equal." Viewed in isolation, the

sentences to which Peter points provide some support for his

position that the judge may have unduly emphasized Erin's

extraordinary talent and writing skills (while minimizing

Peter's contributions that may have allowed Erin the luxury of

writing her novel).

However, we think Peter reads too narrowly the judge's

findings and rationale. The judge considered the G. L. c. 208,

§ 34, factors and made findings concerning, for example, the

parties' contributions both before and after their separation.

Among other things, the judge found that Erin traveled to and

appeared at about seventy book signings, readings, and similar

events throughout the United States and Canada and took part in

one-half dozen European and United Kingdom promotional visits.
21

These activities took place primarily between mid-September and

early November, 2011 -- after the parties' had separated. Erin

continued to do publicity and marketing work in 2012 (after the

release of the paperback edition of The Night Circus) and 2013.

The judge, as we have indicated, specifically stated in his

rationale that the financial success of The Night Circus was

enhanced by Erin's efforts and abilities in promoting the book.15

Viewing the findings and rationale in their entirety, and giving

due consideration to Erin's efforts through the date of the

divorce, we cannot say that the judge's findings are clearly

erroneous or that he otherwise erred in determining that the

parties' contributions were not equal.

15
Erin emphasizes in her brief her significant
postseparation contributions to the enhancement of the value of
The Night Circus, and the "complete absence" of any contribution
by Peter to the novel after the parties' separation. In his
reply brief, Peter does not appear to argue that the judge could
not consider the postseparation contributions of Erin. Rather,
he asserts that the judge's unequal property division cannot be
upheld based on his finding that Erin's promotional activities
enhanced the financial success of The Night Circus "in the
absence of any findings or rationale which factored the
correlative value of the husband's post-separation marital
contributions into the decisional calculus." Notwithstanding
Peter's argument, the judge did, in fact, make findings that
Peter had gone with Erin to several local book signings and
accompanied her on one international trip. The judge also made
findings concerning the parties' postseparation interactions and
circumstances (Erin has reestablished herself in New York City),
the expenses they pay, the fact that each is self-supporting,
and the fact that they have not spoken to each other in almost
two years. The judge noted that Peter had kept Erin on his
health insurance policy.
22

4. Disposition. The matter must be remanded to the

Probate and Family Court with instructions that Erin's interest

in future proceeds under the Doubleday and Summit contracts

arising from her novel, The Night Circus, is to be considered a

part of the marital estate for G. L. c. 208, § 34, purposes. In

the circumstances presented, that interest would seem

particularly suited to division on an "if and when received"

basis, with the judge determining the percentages of any future

payments to be assigned to Erin and Peter.16 See e.g., Gallo v.

Gallo, 184 Conn. at 48; In re Marriage of Heinze, 257 Ill. App.

3d at 785-787.

We recognize that the division of future royalty and other,

similar payments may present special challenges to the probate

judge. Among other things, the future book sales, upon which

the royalties are based, may be enhanced by the postdivorce

efforts of the writer-spouse through promotion, marketing, brand

building, and the creation of subsequent works (which may

generate interest in an earlier work). See In re Marriage of

Heinze, 257 Ill. App. 3d at 788. Future promotional and other

16
We do not rule out the possibility that other cases may
present facts that would support a judge's decision not to
divide future royalty payments on an if and when received basis.
For example, there may be circumstances, including those in
which there has been a history of modest royalty payments, where
the judge might assign to the writer-spouse's side of the ledger
the entire interest in future royalty payments.
23

efforts by a writer-spouse, even if not required by contract,

may also contribute to the success of a motion picture or

theatrical production which may, in turn, enhance the sales of

the underlying work on which the movie or other production is

based. The point we make here is, with the passage of time, the

respective contributions of the parties to the marital

partnership, which allowed for the creation of the work, may

become attenuated. A judge properly may consider such factors,

in conjunction with all of the G. L. c. 208, § 34, factors, in

determining the percentages of any future payments to be

allocated between the parties. See ibid. (petitioner's

continuing efforts entitled her to larger share of future

royalties). See and compare Baccanti v. Morton, 434 Mass. at

798-799.17

We recognize, in addition, that royalty payments,

particularly on a highly successful work, have the potential of

extending well into the future, perhaps beyond the death of one

or both of the parties. That the future royalty, and other,

17
Such other matters as may be relevant can be considered
and addressed in the Probate & Family Court. We point out that
Peter took the position in his proposed judgment that, in the
circumstances of this case, an if and when received division
should be of the "net" proceeds Erin receives, i.e., the total
amount of monies paid to Erin less amounts deducted for certain
commissions and management and business expenses as well as
income taxes paid in conjunction with the receipt of such
monies.
24

payments in the present case are to be divided on an if and when

received basis does not require that such payments continue

indefinitely. Cf. Gallo v. Gallo, 184 Conn. at 48. For the

reasons we have expressed concerning the potential attenuation

of the parties' contributions to the marital partnership, as

well as our concern for future administrative costs and other

possible hardships, a judge reasonably may limit the duration

of, and the amount to be received under, the if and when

received division.18

As we have discussed, the judge's order directing Erin to

pay to Peter a lump sum of $570,000 as his share of the royalty

and book-related earnings she has received to date must be

vacated. The judge may recalculate, if necessary, the lump sum

owed in light of our decision that Erin's contractual interest

in the future royalty (and other) payments is to be included in

the marital estate. Any amounts Peter has received from the

order for payment of the $570,000 shall be considered an advance

against the property division established in the amended

judgment that is to be entered, which may or may not have to be

repaid.

18
We do not exclude the possibility of creative approaches
by the probate judge, including, for example, a sliding scale of
decreasing percentages, which has a specific termination date.
25

As neither the judge nor the parties had the benefit of the

principles we enunciate in this opinion, as a matter of fairness

we think that the parties should be afforded the opportunity to

present, and the judge to consider, additional evidence bearing

on the amount of the royalty and other payments to be received

by Erin under the Doubleday and Summit contracts. The judge

shall hold additional hearings as may be necessary to receive

such evidence. An amended judgment containing new orders shall

be supported by findings of fact and a rationale.

Accordingly, we vacate so much of the judgment as

implicitly excludes from the marital estate subject to division

under G. L. c. 208, § 34, Erin's interest in future proceeds

under the Doubleday and Summit contracts arising from the novel,

The Night Circus, and remand the case for further proceedings

consistent with this opinion. We also vacate the order for

payment of the sum of $570,000. The judgment is otherwise

affirmed.

Erin's request for appellate costs and attorney's fees is

denied.

So ordered.