Dilanian v. Dilanian

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17-P-173 Appeals Court

DAVID M. DILANIAN vs. TRAUTE L. DILANIAN.

No. 17-P-173.

Norfolk. July 12, 2018. - November 21, 2018.

Present: Blake, Sacks, & Ditkoff, JJ.

Divorce and Separation, Division of property, Pension benefits,
Alimony, Relief from judgment. Corporation, Valuation.
Value.

Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on January 11, 2011.

The case was heard by Jennifer M.R. Ulwick, J., and motions
for reconsideration and for postjudgment relief or amendment of
the final judgment were heard by her.

Matthew Bove for the husband.
L. Richard LeClair, III, for the wife.

DITKOFF, J. David M. Dilanian (husband) appeals from the

amended judgment of divorce nisi entered by a Probate and Family

Court judge and the subsequent denials of his postjudgment

motions. The most significant issue revolves around a pension

plan that the judge found belonged entirely to the husband but
2

that the husband alleges belonged partially to his now-deceased

father and thus now belongs partially to his sister. We discern

no clear error in the judge's factual findings, and we conclude

that the sister's interests are not impaired by the judgment

transferring sixty per cent of the pension plan to Traute L.

Dilanian (wife), as the remaining portion is more than

sufficient to satisfy any claim by the sister. Further

discerning no clear error in the judge's findings regarding the

value of the husband's business and the husband's income, and

concluding that the judge acted within her discretion in denying

the husband's motion for relief under Mass. R. Dom. Rel. P.

60 (b), we affirm.

1. Background. The husband and wife were married in 1981,

had three children together, and lived a comfortable upper-

middle class lifestyle. During their thirty-one year marriage,

the wife was the homemaker while the husband was self-employed,

running a successful business. The marriage began to break down

in 2005, and the husband filed for divorce in January 2011,

after five years of counseling and a three-month trial

separation. Their children were all of adult age and

emancipated, and the parties were able to resolve amicably the

disposition of the marital home. Much of the trial concerned

the value of the husband's business and the husband's share in

various assets and an inheritance from his father.
3

a. M.E. Dilanian Co., Inc. Since 1984, the husband has

worked at M.E. Dilanian Co., Inc. (M.E. Dilanian), a family-

controlled company that purchases food products from wholesalers

and then sells the products to supermarkets. The husband and

his father operated the company as coowners until approximately

1998 or 1999, when the husband became the sole stockholder in

the company. The husband's father, however, continued to work

at the company until his death in March 2011.

By the time of the divorce proceedings, therefore, the

husband was the sole owner of the business with control over

both the company accounts and his own compensation. To avoid

double taxation on corporate income,1 the husband took a base

salary and then paid himself a bonus out of the year-end

profits. Accordingly, he would generally pay out year-end

bonuses so that the company would be left with only $5,000 to

$10,000 of retained earnings for the year. The husband's

financial statement reported that his net income increased from

$204,500 in 2008 to $388,000 in 2010. Once the divorce

proceedings began, the husband decreased his pay to $217,000 in

2011 and $215,000 in 2012. At the same time, and contrary to

prior practice, the amount of cash left in M.E. Dilanian

1 The company is a C corporation and, therefore, is subject
to the corporate income tax on any profits retained.
4

accounts increased by over $294,000 from July 2011 to June 2012.

The husband also routinely received additional compensation from

M.E. Dilanian in the form of interest payments, pension

contributions, lease payments for an automobile, and expense

reimbursements.

b. M.E. Dilanian retirement plans. M.E. Dilanian

established a defined contribution retirement plan in 1989 and a

defined benefit plan at some point between 2002 and 2011. The

husband testified that he and his father were the only

participants in both plans.

Under the defined contribution plan, the company was

supposed to contribute twenty-five per cent of a participating

employee's income each year to the plan. At some point,

however, the company ceased contributing to the plan. As a

defined contribution plan, the money contributed toward each

participant's retirement belonged to that participant, assuming

he met the vesting requirements, and was to be paid out

accordingly upon retirement or death. The plan set the

retirement age at sixty-five years of age.2 The husband and his

father were the only trustees of the plan until the father's

death, when the husband became the sole trustee.

2 The husband's father was approximately sixty-five years
old when the defined contribution plan was established.
5

Upon the father's death on March 1, 2011, the husband

allocated $663,961 of the defined contribution plan's $1,416,769

balance to his father's estate. The husband allocated $46,690

of the defined benefit plan's balance to his father's estate.

With one exception, however, the husband failed to produce any

documents to substantiate contributions made by M.E. Dilanian to

the defined contribution plan on the father's behalf that

predate the beginning of divorce proceedings. Similarly,

although the husband testified that the defined benefit plan was

created in or around 2002, the only documents he produced

showing the establishment of a defined benefit plan reflect that

it was established after the father's death.

The husband did produce Federal tax forms 5500-EZ that

predated the divorce proceedings. These documents, however,

vary. They state that the defined contribution plan had one

participant in 2007; two in 2008; three in 2009; three at the

beginning of 2010, but only one at the year's end; and two

participants in 2011.

c. Inheritance. The husband's father's estate was

administered by the husband and his sister as joint executors.

On its estate tax returns, the estate reported assets of

$4,165,798. That amount included $710,651 from the M.E.

Dilanian pension plans. The estate also included $847,415

previously placed in the Dilanian Family IRA Spray Trust (spray
6

trust).3 There is no dispute that the balance of the estate,

consisting of cash, a brokerage account, and the assets of two

other trusts, will be divided evenly between the husband and his

sister.

By its terms, the spray trust divides its assets among the

children of the husband and his sister. Absent the untimely

demise of all of the husband's and his sister's descendants, the

trust assets would not be distributed to the husband. Even

though the husband was one of the trustees of the spray trust,

he testified at trial (in what he later asserted was a mistake)

that he and his sister were the only beneficiaries of the

father's estate and that he would inherit half of the $4 million

estate. His testimony, therefore, assigned to himself the

approximately $423,700 that will instead go to his children.

d. Findings and rulings. At trial, the husband valued

M.E. Dilanian at $200,000. The judge ultimately credited this

valuation, except that she found that the business value of M.E.

Dilanian also includes the value of a $150,000 note payable to

3 Apparently because the beneficiaries of the trust did not
have an "immediate and unrestricted right to possess" the trust
assets, it remained in the father's estate for estate tax
purposes. See Wooley v. United States, 736 F. Supp. 1506, 1509
(S.D. Ind. 1990).
7

the husband for a personal loan made to the company.4

Accordingly, the judge valued the company at $350,000. The

judge also found that the company held cash assets with a value

of $634,061.06.5 The judge awarded ownership of the company to

the husband.

Regarding the husband's income, the judge found that the

husband had artificially lowered his income. The judge found

that the husband's real annual income was approximately

$325,000. The judge found that the wife's imputed annual income

was $20,000. The judge then imposed an alimony obligation of

$2,000 per week until the husband reaches full retirement age

"as defined in G. L. c. 208, § 48."

The judge found that the husband was the only participant

in both the defined contribution and the defined benefit plans.6

Noting that the father would have been seventy-eight years old

when the defined benefit plan was purportedly created and that

the records produced by the husband showed that the plan was

executed after the father's death, the judge did not credit the

4 Although the judge noted that the husband listed this note
as a personal asset, there is no indication that the judge
double counted the $150,000.

5 The wife makes no claim on appeal that the judge
undervalued the company.

6 The husband raises no challenge on appeal to the judge's
ruling regarding the defined benefit plan.
8

husband's claim that the father was a participant in the defined

benefit plan. Similarly, based primarily on the husband's

failure to produce documents substantiating his claims "despite

receiving request for production, trial subpoenas and a court

order," the judge did not credit the husband's testimony that

the father was a participant in the defined contribution plan.

The judge considered the husband's entitlement to half of

his father's estate as a factor supporting his "optimistic

outlook of financial stability." The judge, however, found that

the inherited assets "were received late in the marriage and

were not woven into the fabric of the marriage" and thus should

remain with the husband. She ordered the husband to transfer

sixty per cent of both the defined contribution plan and the

defined benefit plan to the wife.7 She ordered the husband to

transfer the full amount of two smaller retirement plans to the

wife, gave the husband the right to buy out the wife's interest

in the marital home and another piece of real estate, divided

the joint bank accounts equally, and ordered the husband to pay

the wife $150,000. Shortly thereafter, the judge issued an

amended judgment of divorce nisi, changing only the time at

which alimony commenced. The husband filed a timely appeal.

7 At the end of 2012, the defined contribution plan had a
value of $1,573,389.67, and the defined benefit plan had a value
of $494,414.05.
9

2. Defined contribution plan and adjudication of third-

party rights. Judges are granted "a broad degree of discretion

in assigning 'to either husband or wife all or any part of the

estate of the other, including . . . retirement benefits, . . .

pension, profit-sharing, annuity, [and] deferred compensation.'"

Adams v. Adams, 459 Mass. 361, 372–373 (2011), quoting G. L.

c. 208, § 34. Although we review the propriety of the legal

standards applied by the judge, the discretionary determinations

of property division "will not be reversed unless plainly wrong

and excessive." Hassey v. Hassey, 85 Mass. App. Ct. 518, 524

(2014).

On appeal, the husband argues that M.E. Dilanian's defined

contribution plan belonged partially to his now-deceased father

and thus now belongs partially to his sister. It is undisputed

that the husband was a participant in and beneficiary of the

defined contribution plan. At trial, the husband supported his

contention that he was not the sole participant with his own

testimony, documents created after the divorce proceedings

began, and the inconclusive tax forms he disclosed. The husband

produced no evidence tracking the individual contributions for

any participant. The husband testified that this information

was available to him as the plan's trustee, but he was either

unable or unwilling to submit it to the court as evidence at

trial. As the judge could infer that the documentation either
10

contradicted the husband's assertions or did not exist at all,

the judge could reasonably disbelieve the husband's testimony

and the documentation created after the divorce proceedings

began. See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496

(2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536

(1995) (trial judge's credibility findings upheld "except on the

most compelling of showings").

This lack of evidence was exacerbated by the defined

contribution plan's tax forms showing anywhere from one to three

plan participants between 2007 and 2011. Even if the judge

credited the husband's expert that Form 5500-EZ, Annual Return

of One-Participant (Owners and Their Spouses) Retirement Plan,

may be properly filed when one of the participants is the

nonowner father of the owner, there was no testimony to account

for the shifting number of participants from year to year. Cf.

Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 774 (2014) ("The

judge was not required to accept the opinion of the experts, and

was entitled to credit all, part, or none of their testimony").

It is true that, since the divorce filing and the husband's

father's death, the husband has consistently taken the position

that his father was a participant in the defined contribution

plan, and the husband has created documents reflecting this

position. The fact, however, that no such documents can be

produced that predate the divorce filing is strong evidence upon
11

which the judge could reasonably conclude that the division of

the defined contribution plan was a postdivorce filing

invention. Accordingly, the judge was not required to credit

the allocation of $663,961 to the father's estate, nor was it

clearly erroneous to find the husband was the sole participant

and beneficiary of the plan. See Caveney v. Caveney, 81 Mass.

App. Ct. 102, 115 (2012) (discerning no error where trial judge

did not credit husband's testimony in light of inconsistent

evidence).

Nonetheless, because the judge ordered the husband to

transfer sixty per cent of the defined contribution plan to the

wife, we must consider the asserted interest of the husband's

sister in that defined contribution plan. In Amrhein v.

Amrhein, 29 Mass. App. Ct. 336 (1990), we considered a judicial

order that the husband execute a mortgage for the benefit of the

wife on property he claimed was held in trust for the benefit of

his children. Id. at 339-340. Although the judge had "ample

reason to doubt the reality of the trust" and find that the

property was held by the husband himself, id. at 338,8 we

concluded that such an order could not be entered without

8 In Amrhein, the transfer of the property from the husband
individually to the trust was likely fraudulent and used "as a
vehicle to conceal the husband's income and assets." 29 Mass.
App. Ct. at 338.
12

joining the children and the husband in his capacity as trustee

of the purported trust. Id. at 340-341. As we explained, the

judge's finding that the husband was the owner was binding upon

him but could not be allowed to "adversely affect the interests

of third persons who are not bound by that finding" without

their being heard by being brought into the action. Id. at 340.

Here, however, contrary to the husband's argument, the

judge's order will not adversely affect the interests of third

persons. The plan documents establish that the beneficiaries of

any portion of the defined contribution plan that belonged to

the husband's father are the husband and his sister, in equal

shares. The sister, as coexecutor of the estate, signed an

estate tax return taking the position that $663,961 of the plan

belonged to the father. Accordingly, half of that amount

($331,981) could be claimed by the sister. Once sixty per cent

of the plan is transferred to the wife, the remaining amount

will be well in excess of the amount the sister claimed in the

estate tax return and appears able to claim.9

9 The husband's retained forty per cent of the defined
contribution plan was $629,355.87 (as valued at the end of
2012). Even if the claimed share of the father is given a
prorated share of the increase in value between the father's
death and the end of 2012, the sister's share would appear to be
no more than $369,000.
13

Because the portion of the plan remaining with the husband

is adequate to satisfy any claim by the sister, the judge's

allocation will not impair her interests. If the sister claims

a share of the plan, she may pursue it against the husband and

file a suit, if necessary. That this theoretically may result

in the husband's receiving less than forty per cent of the plan

is of no moment. "A finding by the judge in these circumstances

that a particular asset is owned by a party individually . . .

is binding on the parties to the action but not on persons not

served." Amrhein, 29 Mass. App. Ct. at 339. Having failed to

substantiate his position that he was not the sole participant

in the plan, the husband is bound, for purposes of this divorce

action, by the judge's findings.

3. Business valuation. The valuation of a business

interest for purposes of the division of marital assets is a

question of fact. Adams, 459 Mass. at 380. We review the trial

judge's findings for clear error. Caveney, 81 Mass. App. Ct. at

109.

Contrary to the husband's assertions, the trial judge did

not value M.E. Dilanian based on the cash held in company

accounts at the time of trial. The judge expressly found M.E.

Dilanian "has a business value of $350,000" based on the

husband's valuation of $200,000, plus the $150,000 note payable

to him by the company. That the judge also mentioned that the
14

company possessed "cash held with a value of $634,061.06" (after

subtracting the $150,000 note payable to the husband) and that

"the company maintains over $500,000 in the business accounts"

does not negate the judge's specific finding that the company

has a value of $350,000.10

We discern no clear error in this valuation. The judge was

entitled to credit the husband's valuation of his own company.

See Prenaveau, 81 Mass. App. Ct. at 496. Considering that the

husband was the sole owner of the company, there is nothing

unreasonable in disregarding the $150,000 note payable to the

husband and considering that property part of the value of the

company. Cf. Adams, 459 Mass. at 373 (properly assigning "the

present value of a spouse's interest in a [business] to the

divisible marital estate").11

4. Alimony. As with the division of marital property,

"[a] judge has broad discretion when awarding alimony." Zaleski

v. Zaleski, 469 Mass. 230, 235 (2014). Accord Ludwig v. Lamee-

10The amount of cash held by M.E. Dilanian was relevant to
the wife's claim that the husband was purposefully leaving cash
and income in the company to reduce his income artificially.

11The husband's argument that the judge erred in finding
that M.E. Dilanian had any value at all "due to its speculative
nature" fails, as the husband testified that the value of the
company was $200,000, and, as we have noted, the judge was
entitled to credit his testimony. See Prenaveau, 81 Mass. App.
Ct. at 496.
15

Ludwig, 91 Mass. App. Ct. 36, 40 (2017) (within judge's

discretion to consider employee spouse's stock options "as a

source of income in the alimony calculation"). In that regard,

"[a] judgment will not be disturbed on appeal unless 'plainly

wrong and excessive.'" Zaleski, supra at 236, quoting Heins v.

Ledis, 422 Mass. 477, 481 (1996).

In this case, the husband reported that his gross income

increased in the years prior to the divorce from $204,500 in

2008 to $388,000 in 2010 but then decreased to $217,000 in 2011

and $215,000 in 2012. He neglected, however, to include

additional compensation received from the company for those

years in the form of interest and expense reimbursements. The

judge properly considered all of the husband's income from the

company, finding a total compensation of approximately $475,000

in 2011 and $266,000 in 2012. See Hassey, 85 Mass. App. Ct. at

525 (alimony determined from parties' gross income).

Moreover, the husband was the sole owner of M.E. Dilanian,

his compensation was tied to the profitability of the company,

and the husband paid himself out of company accounts based on

its year-end earnings. Although "[a] corporation may reasonably

choose to retain income" to maintain its current business or

expand its operations, Halpern v. Rabb, 75 Mass. App. Ct. 331,

337 (2009), the judge was not required to credit the husband's

reasons for the increase of over $294,000 held in company
16

accounts at year end from 2011 to 2012. Holding excess cash in

the company accounts, in addition, was contrary to the husband's

prior practice of maintaining only $5,000 to $10,000 in retained

earnings annually to avoid double taxation on corporate income.

In sum, contrary to the husband's assertion, the evidence

supported the finding that the husband's reported income was

increasing until he filed for divorce in 2011, and that the

husband intentionally reduced his own salary while amassing

corporate earnings usually directed toward his personal income.

Given this evidence and the husband's furtive financial

disclosures, including his failure to prepare a 2012 financial

statement for M.E. Dilanian, the trial judge could reasonably

conclude the husband artificially reduced his income to alter

his financial condition in light of the impending divorce. See

Caveney, 81 Mass. App. Ct. at 114 (discerning no error in

finding husband's representations of business financials

"clearly false" in light of incomplete and contradictory

evidence). Cf. J.S. v. C.C., 454 Mass. 652, 663 (2009)

("corporate structures should not be used to shield available

income that could and should serve as available sources" of

marital support). Specifically, at the end of the 2012 fiscal

year, the account used to pay the husband's salary held an extra

$76,000, and the judge could reasonably impute those retained

earnings to the husband as income for purposes of calculating
17

alimony. See id. at 664 ("the judge should weigh affirmative

evidence of an attempt to shield income by means of retained

earnings[;] . . . [i]n that regard, the corporation's history of

retained earnings and distributions may be relevant"). Accord

Halpern, 75 Mass. App. Ct. at 337. Including the excess $76,000

with the husband's $266,180 in gross income in 2012, it was "not

'plainly wrong'" to find the husband's income was closer to

$325,000 than $200,000. Vedensky, 86 Mass. App. Ct. at 775,

quoting Redding v. Redding, 398 Mass. 102, 107 (1986). There

was no error, see Caveney, supra at 115, nor a basis to merit

reconsideration.

5. Inheritance. Within a year of the amended judgment of

divorce nisi, the husband filed a motion for relief from

judgment under Mass. R. Dom. Rel. P. 60 (b) (1) and 60 (b) (6).12

The motion stated that "[r]ecently it was discovered" that the

husband was not a beneficiary of the spray trust. At the

hearing, when asked why the husband had misunderstood the

provisions of the spray trust, his counsel stated that the

husband told him that he had been relying on the advice of the

attorney handling the estate. No affidavit, testimony, or other

12Although the husband styled the motion as being made
pursuant to the Massachusetts Rules of Civil Procedure, this
case is governed by the Massachusetts Rules of Domestic
Relations Procedure. See Mass. R. Dom. Rel. P. 1.
18

evidence was presented to substantiate this assertion. The

judge denied the motion, and the husband has appealed from that

denial as well.

Under Mass. R. Dom. Rel. P. 60 (b) (1), "upon such terms as

are just, the court may relieve a party . . . from a final

judgment, order, or proceeding for . . . mistake, inadvertence,

surprise, or excusable neglect," provided the motion is "made

within a reasonable time" and within one year.13 In deciding a

rule 60 (b) (1) motion, whether under Mass. R. Civ. P.

60 (b) (1), 365 Mass. 828 (1974), or Mass. R. Dom. Rel. P.

60 (b) (1), a judge considers several factors, including

"(1) whether the offending party has acted promptly after entry

of judgment to assert his claim for relief therefrom;

(2) whether there is a showing either by way of affidavit, or

otherwise apparent on the record, that the claim sought to be

revived has merit; (3) whether the neglectful conduct occurs

before trial, as opposed to during, or after the trial;

(4) whether the neglect was the product of a consciously chosen

course of conduct on the part of counsel; (5) whether prejudice

has resulted to the other party; and (6) whether the error is

chargeable to the party's legal representative, rather than to

13The husband's motion invoked both rule 60 (b) (1) and
60 (b) (6), but he raises only rule 60 (b) (1) on appeal.
19

the party himself; for 'the courts have been reluctant to

attribute to the parties the errors of their legal

representatives.'" Berube v. McKesson Wine & Spirits Co., 7

Mass. App. Ct. 426, 430-431 (1979), quoting Barber v.

Tuberville, 218 F.2d 34, 36 (D.C. Cir. 1954). See Sahin v.

Sahin, 435 Mass. 396, 398 n.4 (2001) (proper to apply standards

applicable to Mass. R. Civ. P. 60 to motions under Mass. R. Dom.

Rel. P. 60; text of two rules is identical). "Relief is not

justified under rule 60(b)(1) for 'any garden-variety

oversight.'" Freitas v. Freitas, 26 Mass. App. Ct. 196, 197 n.2

(1988), quoting Goldstein v. Barron, 382 Mass. 181, 186 (1980).

"A motion for relief under rule 60(b) is directed to the

sound discretion of the motion judge, and we review the judge's

ruling for abuse of discretion." Ulin v. Polansky, 83 Mass.

App. Ct. 303, 308 (2013), quoting Nortek, Inc. v. Liberty Mut.

Ins. Co., 65 Mass. App. Ct. 764, 775 (2006). Accord Dalessio v.

Dalessio, 409 Mass. 821, 833 (1991). A judge has "considerable

discretion in ruling on [a] motion for relief under rule

60 (b) (1)." Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010).

We discern no abuse of discretion here.

"A party's estate for purposes of equitable division under

G. L. c. 208, § 34, 'includes all property to which a party

holds title, however acquired.'" Pfannenstiehl v.

Pfannenstiehl, 475 Mass. 105, 110 (2016), quoting Williams v.
20

Massa, 431 Mass. 619, 625 (2000). The trial judge, therefore,

properly considered the husband's substantial inheritance in

determining the division of marital assets in this case.14 See

Adams, 459 Mass. at 378 (§ 34 vests judge with discretion to

consider acquisition of assets by parties' respective estates in

dividing marital property). Accord E.H. v. S.H., 59 Mass. App.

Ct. 593, 597 n.7 (2003), quoting Davidson v. Davidson, 19 Mass.

App. Ct. 364, 374–375 (1985) (future inheritance "may be

considered 'under the § 34 criterion of "opportunity of each for

future acquisition of capital assets and income"' in determining

what disposition to make of the property which is subject to

division").

That the husband's actual inheritance is lower than that

found by the judge is beyond serious dispute. Nonetheless, the

error was caused by the husband's own testimony. The husband

was a trustee and executor of his father's estate and a trustee

of the spray trust. He had a legal duty to be aware of the

obligations and expectancies of both entities, and it was

reasonable for the judge to credit without further investigation

the husband's testimony that he and his sister were the sole

14The wife conceded she was not entitled to share in the
father's estate, and she was not awarded any part of the
husband's inheritance in the divorce judgment. Cf. Davidson v.
Davidson, 19 Mass. App. Ct. 364, 374-375 (1985) (error to divide
husband's after-acquired property in § 34 action, but potential
inheritance may be considered in dividing marital property).
21

beneficiaries of the estate he was charged with administering.

Indeed, the husband personally signed the estate tax forms

assigning the spray trust $847,415 prior to trial and should

have known his share of the inheritance would accordingly be

reduced by the time he testified. Moreover, the amount of the

inheritance was not integral to the judge's division of the

marital estate but rather went to supporting the judge's finding

that the husband "has a far more optimistic outlook of financial

stability" than the wife, a finding that holds even with the

smaller inheritance. The judge could reasonably attribute the

omission of that fact in the husband's testimony to the

husband's own negligence, and find that the exact amount of the

inheritance was not particularly important to the division of

assets. Under such circumstances, the trial judge acted within

her discretion in denying the husband relief.

6. Conclusion. The amended judgment of divorce nisi is

affirmed, as are the orders denying the husband's postjudgment

motions.

So ordered.