Hanify v. Hanify

Liacos, J.

(concurring in part and dissenting in part, with whom Lynch, J., joins). While I agree with, and concur in, *192the court’s decision pertaining to the husband’s claims of error as to the assignment of an automobile and as to the order pertaining to child support, I write to express my disagreement with the court’s decision on the major issue in this appeal. That issue pertains to whether an interest in a pending lawsuit should be considered subject to division as part of the marital estate under G. L. c. 208, § 34 (1986 ed.). In my view, the court has not distinguished persuasively our prior cases dealing with the division of expectancies.

It is true, as the court states, that “Massachusetts law [G. L. c. 208, § 34] vests in a judge broad powers of discretion regarding the division of marital estates.” Ante at 187. Nevertheless, there are limits on what may be considered marital property. Recently, we held that “the present value of future earned income is not subject to equitable assignment under G. L. c. 208, § 34.”Drapek v. Drapek, 399 Mass. 240, 244 (1987) (professional degree or license not a marital asset subject to division). Our concern in Drapek was the speculative nature and uncertain future of expectancy interests. Id. We reached a similar conclusion in Yannas v. Frondistou-Yannas, 395 Mass. 704, 714 (1985) (judge could conclude that present value of future income from patents too speculative to consider).

Also, the Appeals Court has held that § 34 does not encompass the expectancy interest in a will where, at the time of divorce, the testator was still alive and could have changed the inheritance provisions. Davidson v. Davidson, 19 Mass. App. Ct. 364, 374 (1985).1 The court noted that practical *193reasons govern the general rule excluding such expectancies from the statutory definition of property subject to division: “An attempt at some determination of the usual speculative quantum of an expectancy might well involve the lengthy trial of issues collateral to the § 34 action: the validity of a will, current and future testamentary capacity, valuation of the estates of others, familial relationships, and so forth. See Krause v. Krause, 174 Conn. 361, 365 (1978).” Id.

When inchoate choses in action are involved, a danger exists of conducting, in effect, a trial on the merits of the pending lawsuits, perhaps before all of the evidence that eventually will be offered at trial either is known or is available. I find the court’s position to the contrary on this point to be unpersuasive. Neither the outcome nor the length of the pending litigation is predictable. Unlike a vested pension benefit or a vested inheritance, there is no guarantee that the husband will receive anything from these lawsuits. He may lose the cases or decide to withdraw his complaints. We should be mindful that, “[ujnlike alimony, a property settlement is not subject to modification.”2 Drapek, supra at 244, and authorities cited. A final and equitable property division under § 34 should not be based on speculative assets.3 Nor can the settlement be left open indefinitely, pending resolution of the lawsuits.4

Where the acquisition of assets is certain, and current valuation is possible, the assets may be considered for assignment under § 34. See, e.g., Dewan v. Dewan, 399 Mass. 754, 757 (1987) (assignment of percentage interest in current value of vested future pension benefits). See also Earle v. Earle, 13 Mass. App. Ct. 1062, 1063 (1982) (judge can consider vested inheritance from estate of husband’s father in property settlement); Davidson, supra at 371-372 (reaches same result as to vested remainder interest arising from estate of husband’s father).

Other jurisdictions are divided on such matters but essentially seem to hold, as have we, that vested interests are to be treated differently from speculative or contingent interests. For a summary of the holdings in other States, see Davidson, supra at 372 n.11.

Nothing I state today would preclude a petition for modification as to alimony or child support should the husband prevail in the Martha’s Vineyard lawsuits. See G. L. c. 208, § 37 (1986 ed.).

In Heacock v. Heacock, 402 Mass. 21, 25 n.3 (1988), the court stated, as to a pending tort claim of the wife against the husband for assault and battery, that “[w]e think that it is appropriate to require, in future divorce actions, that the parties list the existence of such claims, although of unascertainable market value, in financial statements filed with the Probate Court.” The existence of a pending lawsuit may be relevant to the determination of alimony and child support and, depending on the nature of the pending claims or expectancy, to the division of the marital estate. Such matters are properly a part of the required financial statements to be considered, by the Probate Court judge, although, on reflection, this information may not be considered a part of the marital estate subject to division.

The views I express here apply to Lyons v. Lyons, post 1003 (1988). Hence I do not agree with the court’s rescript opinion in that case.