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SJC-12031

         CURT F. PFANNENSTIEHL   vs.   DIANE L. PFANNENSTIEHL.



            Norfolk.     April 5, 2016. - August 4, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,
                                 JJ.1


            Divorce and Separation, Division of property.



     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on September 22, 2010.

     The case was heard by Angela M. Ordoñez, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Robert J. O'Regan for the husband.
     Jillian B. Hirsch for the wife.
     Martha R. Bagley, pro se, amicus curiae, submitted a brief.
     William H. Schmidt, pro se, amicus curiae, submitted a
brief.


     DUFFLY, J.    In this appeal from a judgment of divorce, we

are asked to determine whether the present value of the


     1
       Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                     2


husband's beneficial interest in a discretionary spendthrift

trust (2004 trust) may be included in the parties' divisible

marital estate.    See G. L. c. 208, § 34, as amended by St. 2011,

c. 124, §§ 1, 2.   As part of the judgment of divorce in 2012, a

judge in the Probate and Family Court awarded Diane L.

Pfannenstiehl2 sixty per cent of her husband Curt F.

Pfannenstiehl's interest in the present value of the 2004 trust.

At that time, the trust was valued at $2,265,474.31.   Curt

appealed, arguing that the judge abused her discretion by

including the 2004 trust in the marital estate.   In a divided

opinion, the Appeals Court affirmed.   See Pfannenstiehl v.

Pfannenstiehl, 88 Mass. App. Ct. 121, 124 (2015).   We granted

Curt's application for further appellate review, limited to

issues concerning the 2004 trust.

     We conclude that Curt's interest in the 2004 trust is "so

speculative as to constitute nothing more than [an]

expectanc[y]," and thus that it is "not assignable to the

marital estate."   See Adams v. Adams, 459 Mass. 361, 374 (2011),

S.C., 466 Mass. 1015 (2013).   Although Curt's expectancy of

future acquisition of income from the 2004 trust is not part of

the marital estate, on remand, the judge, pursuant to G. L.

c. 208, § 34, may consider that expectancy as part of the

     2
       Because the parties share the same last name, we refer to
Curt F. Pfannenstiehl and Diane L. Pfannenstiehl by their first
names.
                                                                      3


"opportunity of each [spouse] for future acquisition of capital

assets and income," in the judge's determination of a revised

equitable division of the marital property.3    See Williams v.

Massa, 431 Mass. 619, 629 (2000); Drapek v. Drapek, 399 Mass.

240, 245 (1987).

     1.    Facts.   "We recite the facts from the judge's findings

and the uncontradicted evidence" in the record.     Baccanti v.

Morton, 434 Mass. 787, 788 (2001).    Curt and Diane were married

on February 5, 2000.     They have two children, a son and a

daughter.     Curt filed his complaint for divorce on September 13,

2010.     The parties were married for twelve years, but had been

separated for nearly two years at the time of trial.     Pursuant

to G. L. c. 208, § 48, the length of the marriage thus was ten

years and seven months.     An amended divorce judgment was entered

on August 27, 2012.     At that time, Curt was forty-two years old

and Diane was forty-eight years old; each was in generally good

health.     Their son was then eleven years old and their daughter

was eight years old.4

     During the marriage, Curt was employed primarily as an

assistant bookstore manager for a subsidiary of his father's

     3
       We acknowledge the amicus briefs submitted by Martha R.
Bagley and William H. Schmidt.
     4
       The judge awarded shared legal custody of the children to
both parents, and primary physical custody to Diane. The judge
incorporated in the judgment of divorce the parties' stipulation
as to the amount of child support Curt was to pay Diane.
                                                                     4


corporation, Educor, Inc.,5 earning approximately $170,000 per

year Curt's total annual income was approximately $190,000 at

the time of trial, including his earnings at other part-time

jobs.6   Prior to and during the first few years of the marriage,

Diane served in the United States Army Reserves, which obligated

her to participate in two weeks of training twice per year.     In

2004, Diane retired from the Army Reserves, two years short of

the twenty years of service that would have entitled her to a

pension.   The judge found that she made the decision to retire

after pressure from Curt and his family following the birth of

their daughter, who has Down syndrome.   From 2004 through the

time of trial, Diane worked one day per week as an ultrasound

technician.   At the time, Diane was earning a gross annual

income of $22,672.   She also received $7,428 per year in rental

income.7

     During the marriage, the parties lived an upper middle

class lifestyle.   They owned a home valued at in excess of


     5
       The corporation manages a number of for-profit
institutions of higher education in Massachusetts and Indiana.
The parties suggest that Curt has continued to be employed in
the same capacity in his father's corporation since the divorce.
     6
       Curt also worked part time as an on-call fire fighter, and
occasionally as a snow plow driver for the town of Dover and for
private clients.
     7
       The rental income was from a two-family house held in
Diane's name alone.
                                                                       5


$700,000, as well as other real estate,8 took several vacations

each year, and belonged to a country club.     The income to

support this lifestyle was derived largely from Curt's earnings,

augmented by support from Curt's father, as well as by

distributions to Curt from the 2004 trust.     The judge found that

Diane made significant contributions as a homemaker and

caretaker of the children, while also contributing her earnings

and rental income to the marital estate.

     2.   Discussion.   a.   The 2004 trust.   The irrevocable trust

at issue was established by Curt's father in 2004, a few years

after Curt and Diane married.9    The trust benefits an open class

of beneficiaries,10 composed of any one or more of the then

living issue of Curt's father.    "Issue" is defined in the trust

as the "lawful blood descendants in the first, second, or any


     8
       The judge found that the total value of the parties'
marital estate, which included real estate, bank accounts,
retirement accounts, insurance proceeds, deferred compensation,
and personal property, was $4,305,379.28. The parties
stipulated to the value of the real estate, and, by the time of
trial, had divided the majority of the assets other than the
2004 trust, the valuation and division of which were the key
issues at trial.
     9
       The 2004 trust provides that it is governed in accordance
with the laws of the Commonwealth.
     10
       An open class of beneficiaries is one in which the
interests of currently living beneficiaries are subject to
partial reduction in favor of persons born after the creation of
the trust who, under its terms, are entitled to share as
members. See H.S. Shapo, G.G. Bogert, & G.T. Bogert, Trusts and
Trustees § 182, at 404 (3rd ed. 2012).
                                                                   6


other degree of" Curt's father.   The 2004 trust is funded

through shares of two for-profit education corporations, several

life insurance policies, and a cash account.   The trustees are

Curt's brother, who is also a trust beneficiary, and a family

attorney who is not a beneficiary.

     The 2004 trust provides that distributions to beneficiaries

may be made only with the approval of both trustees, who

     "shall pay to, or apply for the benefit of, a class
     composed of any one or more of the Donor's then living
     issue such amounts of income and principal as the Trustee,
     in its sole discretion, may deem advisable from time to
     time, whether in equal or unequal shares, to provide for
     the comfortable support, health, maintenance, welfare and
     education of each or all members of such class."

The 2004 trust also contains a spendthrift provision, pursuant

to which "[n]either the principal nor income of any trust

created hereunder shall be subject to alienation, pledge,

assignment or other anticipation by the person for whom the same

is intended, nor to attachment, execution, garnishment or other

seizure under any legal, equitable or other process."11


     11
       A spendthrift provision has the effect of prohibiting a
creditor or assignee from reaching a beneficiary's interest in a
trust, unless the beneficiary receives such distribution and the
creditor then pursues a claim against the beneficiary
individually. G. L. c. 203E, § 502 (c). See Pemberton v.
Pemberton, 9 Mass. App. Ct. 9, 19-20 (1980); Newman, Spendthrift
and Discretionary Trusts: Alive and Well Under the Uniform
Trust Code, 40 Real Prop. Prob. & Tr. J. 567, 569 (2005). In
the absence of a spendthrift provision, a "court may authorize a
creditor or assignee of the beneficiary to reach the
beneficiary's interest by attachment of present or future
distributions . . . or other means." G. L. c. 203E, § 501.
                                                                    7


     The judge found that, at the time of trial, there were

eleven living beneficiaries -- children and grandchildren of

Curt's father B- and no great-grandchildren.   The judge

determined the total present value of the 2004 trust to be

$24,920,217.37 at that time.   Based on her finding that Curt had

a one-eleventh interest in the trust, she determined the value

of Curt's interest in the trust to be $2,265,474.31.

     At that point, only Curt and his two siblings had received

any distributions from the 2004 trust; no distributions had been

made to any of the grandchildren.   Between 2004 and 2007, there

were no distributions from the trust.   From April, 2008, until

August, 2010, Curt and his siblings received regular, tax-free

distributions from the trust.12   During that period, Curt

received regular monthly distributions for a total of $800,000

in distributions.   Since the complaint for divorce was filed in

September, 2010, Curt has not received any distributions from

the 2004 trust.   The judge found that the distributions to Curt

ceased when he filed the complaint for divorce because the

trustees deemed it too risky to distribute funds to Curt at a

time when he might be required to share the funds with Diane, a

nonbeneficiary.   The trustees continued to make distributions to

Curt's two siblings.

     12
       Under the terms of the 2004 trust, distributions are not
taxable to the beneficiaries, because Curt's father is
responsible for taxes on any income earned by the trust.
                                                                   8


     The judge determined that distributions from the 2004 trust

"augmented" Curt and Diane's income and lifestyle during the

marriage.   The judge concluded that Curt's interest in the

2004 trust should be included as part of the marital estate, and

awarded sixty per cent of that estate to Diane.13   The judge

based the award on her findings concerning Diane's "past,

present and future contributions and her lessened ability to

acquire capital assets and work full-time," which she contrasted

with Curt's "high salary, flexible work hours and beneficiary

status in his father's estate planning."   To effectuate the

division of the 2004 trust, the judge ordered Curt to pay Diane

the sixty per cent of Curt's interest that she had been awarded

in twenty-four monthly instalments of $48,699.77, for a total

payment of $1,168,794.41, which included a three per cent

interest rate.14


     13
       The judge decided that, because Curt's "share of the 2004
Trust is being divided," the judge would "not use any future
stream of income from distributions in assessing alimony," and
ordered that "[n]either party is awarded alimony at this time."
Because we conclude that the 2004 trust should not have been
included in the divisible marital estate, it may be appropriate
on remand for the judge and the parties to revisit whether
alimony is now appropriate, and, if so, in what amount, on the
basis of the factors the judge may deem relevant pursuant to
G. L. c. 208, § 53 (a).
     14
       Although Curt initially complied with the order
obligating him to make these payments, in January, 2013, Diane
filed a complaint for contempt, asserting that Curt had that
month stopped making the required payments. See Pfannenstiehl
v. Pfannenstiehl, 88 Mass. App. Ct. 121, 135 (2015). After a
                                                                    9


    b.   Equitable division of the marital estate.   General Laws

c. 208, § 34, vests broad authority in judges of the Probate and

Family Court to make equitable division of the property included

in the marital estate of divorcing parties, taking into account

    "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 and the opportunity of each for future acquisition
    of capital assets and income. . . . The court may also
    consider the contribution of each of the parties in the
    acquisition, preservation or appreciation in value of their
    respective estates."

See Rice v. Rice, 372 Mass. 398, 401 (1977); Bianco v Bianco,

371 Mass. 420, 422 (1976).

    Although a judge "has considerable discretion in

determining how to divide [marital] assets equitably,"   Baccanti

v. Morton, 434 Mass. 787, 792 (2001), the question we address

here, whether an interest in a trust is sufficiently similar to

a property interest that may be included in a marital estate and

thus subject to equitable division under G. L. c. 208, § 34, is

a question of law.   See Lauricella v. Lauricella, 409 Mass. 211,


hearing, Curt was adjudicated in contempt. Id. at 136.
Concluding that Curt "at least ostensibly tried" to obtain funds
from the trust to make the payments to Diane, but that the
trustees refused to distribute the funds, the Appeals Court set
aside the judgment of contempt, see id., commenting that Curt
had not "wilfully and intentionally violated a clear and
unequivocal order." Although the judgment of contempt is not
before us in this limited grant of further appellate review,
based on our conclusion that the 2004 trust should not have been
included in the marital estate, we would agree that the judgment
of contempt must be set aside.
                                                                  10


213 (1991).

    General Laws c. 208, § 34, further provides 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 and which shall include, but
    not be limited to, retirement benefits, . . . pension,
    profit-sharing, annuity, deferred compensation and
    insurance."

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."   Williams v. Massa, 431 Mass. 619, 625

(2000).   In light of the plain language of G. L. c. 208, § 34,

and the Legislature's explicit intent to grant judges broad

discretion to effectuate an equitable distribution incident to

divorce, we have interpreted this provision to permit inclusion

in the marital estate of a broad range of property interests.

See Lauricella v. Lauricella, supra at 213-214.   A divorcing

spouse's enforceable right to an asset generally permits that

asset to be included in the marital estate.   See Mahoney v.

Mahoney, 425 Mass. 441, 444 (1997) (dividing pension plan but

not Social Security benefits because employee has "enforceable

contractual right" to pension but not to "governmental safety

net" of Social Security [citation omitted]); Hanify v. Hanify,

403 Mass. 184, 186-188 (1988) (enforceable right to proceeds

from successful lawsuit); Baccanti v. Morton, supra (enforceable

right to delayed compensation from stock options).
                                                                    11


    Because we are not "bound by traditional concepts of title

or property" in considering whether a particular interest is to

be included in the marital estate, 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 [G. L. c. 208,] § 34."     Baccanti v.

Morton, supra, quoting Lauricella v. Lauricella, supra at 214.

See, e.g., Adams v. Adams, 459 Mass. 361, 372-373 (2011);

Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375 (1985);

Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).     When

interests are properly characterized as mere expectancies,

however, they may not be included in the divisible estate of the

divorcing parties.   We 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."   Adams v. Adams, supra at 374.    Because

"[e]xpectancies . . . embody no enforceable rights accruing

during marriage," Hanify v. Hanify, supra at 188, they more

properly are characterized as "anticipated" but "indefinite"

opportunities for the future acquisition of assets or income.

Mahoney v. Mahoney, 425 Mass. 441, 444, 446 (1997).     This is

because expectancies have "only theoretical value," and do not

create a fixed entitlement to income.      Adams v. Adams, supra

at 376.    See, e.g., Drapek v. Drapek, 399 Mass. 240, 244 (1987)
                                                                    12


(future earned income from professional degree); Yannas v.

Frondistou-Yannas, 395 Mass. 704, 714 (1985) (anticipated future

income from patents); Davidson v. Davidson, 19 Mass. App. Ct. at

374 (husband's interest in inheritance from living testator who

could have altered will).

    Whether a trust may be included in the divisible marital

estate requires close examination of the particular trust

instrument to determine whether the interest is a "fixed and

enforceable" property right, D.L. v. G.L., 61 Mass. App.

Ct. 488, 499 (2004) (citation omitted), or "whether the party's

interest is too remote or speculative" to be included.     Id. at

496-497.   The question turns "on the attributes" of the specific

trust at issue, rather "than on principles of general

application," Lauricella v. Lauricella, supra at 216, and

therefore requires evaluation of the facts and circumstances of

each case.   See id.   See also Williams v. Massa, supra at 628-

629; S.L. v. R.L., 55 Mass. App. Ct. 880, 883-884 (2002); Ruml

v. Ruml, 50 Mass. App. Ct. 500, 511-512 (2000).   If an interest

in a trust is determined after such examination to be

speculative or remote rather than fixed and enforceable, and

thus more properly characterized as an expectancy, the interest

is to be considered under the G. L. c. 208, § 34, criterion of

"'opportunity of each [spouse] for future acquisition of capital

assets and income,' in determining what disposition to make of
                                                                    13


the property that [i]s subject to division" [citation omitted].

Williams v. Massa, supra at 629.

     c.   Curt's interest in the 2004 trust.   Curt contends that

because the 2004 trust permits the trustees to distribute funds

to beneficiaries in their "sole discretion," as they "may deem

advisable from time to time," he has no control over when and

whether he receives distributions, and, therefore, the 2004

trust is a "discretionary" trust which creates "nothing more

than an eligibility for distributions."15   Curt contends further

that because the class of beneficiaries is open, it was error

for the judge to conclude that he had a one-eleventh interest in

the 2004 trust on the basis of the then-living beneficiaries.

In addition, he maintains that, considering the trust instrument

as a whole, see Dana v. Gring, 374 Mass. 109, 117 (1977), and in

light of his father's intent, the 2004 trust may not be used to

benefit Diane.   See Morse v. Kraft, 466 Mass. 92, 98 (2013)

(when interpreting trust, intent of settlor is paramount).

     Interests in discretionary trusts generally are treated as

expectancies and as too remote for inclusion in a marital

estate, because the interest is not "present [and] enforceable";


     15
       "A discretionary trust is one in which the settlor gives
the trustee authority over the trust . . . [including the
authority] to use discretion in the timing and amount of income
payments to the beneficiary." H.S. Shapo, G.G. Bogert, & G.T.
Bogert, Trusts and Trustees § 228. See Restatement (Second) of
Trusts § 155 (1959).
                                                                  14


the beneficiary must rely on the trustee's exercise of

discretion, does not have a present right to use the trust

principal, and cannot compel distributions.   See Lauricella v.

Lauricella, 409 Mass. 211, 216 (1991); Randolph v. Roberts, 346

Mass. 578, 579 (1964).   Diane attempts to distinguish the 2004

trust from a "pure" discretionary trust,16 however, by noting

that distributions from the 2004 trust are subject to an

"ascertainable standard" which governs the trustee's discretion.

See Dana v. Gring, 374 Mass. 109, 116-117 (1977).

     Under § 103 of the Uniform Trust Code, an "ascertainable

standard" refers to a trust provision that requires a trustee to

distribute funds to support a beneficiary's needs "relating to

an individual's health, education, support or maintenance."17

See G. L. c. 203E, § 103.   This standard limits the discretion

of the trustee, who is obligated to make distributions with an

eye toward maintaining the beneficiary's standard of living in

existence at the time the trust was created.18   See Dana v.


     16
       "Pure" discretionary trusts permit a trustee's "sole,"
"uncontrolled," or otherwise unlimited exercise of discretion,
and do not provide a governing standard for trust distributions.
H.S. Shapo, G.G. Bogert, & G.T. Bogert, Trusts and Trustees
§ 228. See Restatement (Second) of Trusts § 155(1) (1959);
Amann, 6 Est. Plan. & Community Prop. L.J. 181, 184-185 (2014).
     17
        General Laws c. 203E, § 814 (b) (1), provides that,
unless otherwise indicated, the "ascertainable standard" is
incorporated into the distribution provisions of every trust
governed by Massachusetts law.
     18
        The Internal Revenue Service (IRS) also uses the term
                                                                   15


Gring, supra, discussing Woodberry v. Bunker, 359 Mass. 239,

241-243 (1971).

    The trustee of a trust that contains an ascertainable

standard must engage in a detailed inquiry into each

beneficiary's needs and finances, and must "give serious and

responsible consideration both as to the propriety of the

amounts and as to their consistency with the terms and purposes

of the trust."    See Old Colony Trust Co. v. Rodd, 356 Mass. 584,

588-589 (1970).   Such consideration must be "viewed in light of

[the beneficiaries'] assets and needs, when measured against the

assets of the trust" (citation omitted).    Marsman v. Nasca, 30

Mass. App. Ct. 789, 796 (1991).   See G. L. c. 203E, § 803 (if

trust has more than one beneficiary, trustee must give "due

regard to the beneficiaries' respective interests").

    Diane argues that, because the trustees of the 2004 trust

must take Curt's standard of living into account when

determining whether to make distributions, Curt has a present

enforceable property right to compel distributions when he needs


"ascertainable standard" in the context of trusts and estates.
Under IRS regulations, a beneficiary's interest in a trust is
included in that beneficiary's taxable estate if the beneficiary
has a general power of appointment through which he or she
controls the distribution of the trust principal, but is
excluded from the taxable estate if the discretion to distribute
trust principal is limited by an "ascertainable standard
relating to health, education, support, or maintenance." 26
U.S.C. § 2041(a)(2), (b)(1)(A). See Dana v. Gring, 374 Mass.
109, 110-111 (1977); Woodberry v. Bunker, 359 Mass. 239, 240
(1971).
                                                                     16


them.   Her argument relies in large part on the Appeals Court's

decision in Comins v. Comins, 33 Mass. App. Ct. 28, 30-31

(1992), in which an interest in a discretionary trust with an

ascertainable standard was deemed sufficiently certain to

include the trust in the marital estate.    In that case, the wife

was the sole beneficiary of the trust.     Id. at 30 n.4.   She

received all of the trust income and held power of appointment

over the trust upon her death.   Id.

    Unlike the spouse in Comins, however, Curt is one of eleven

living beneficiaries among an open class of beneficiaries.        The

trustees of the 2004 trust are required to take into account the

trust's long-term needs and assets, unpredictability in the

stocks that fund it (which the judge found at times in the past

have provided no income or have incurred a loss), the changing

needs of the eleven current beneficiaries, and the possibility

of additional beneficiaries.   Curt's present right to

distributions from the 2004 trust is speculative, because the

terms of the trust permit unequal distributions among an open

class that already includes numerous beneficiaries, and because

his right "to receive anything is subject to the condition

precedent of the trustee having first exercised his discretion"

in determining the needs of an unknown number of beneficiaries

(citation omitted).   See Pemberton v. Pemberton, 9 Mass. App.

Ct. 9, 20 (1980).
                                                                   17


     "[P]ower lodged in the trustee to invade principal 'in its

uncontrolled discretion' for the maintenance, support and

education of [beneficiaries] does not give to the petitioners an

enforceable claim against the trust for their support."

Spalding v. Spalding, 356 Mass. 729, 729 (1969).   Curt's share

of the trust is subject to reduction in order to benefit the

needs of the remaining ten current beneficiaries, as well as any

future beneficiaries.   Contrast S.L. v. R.L., 55 Mass. App. Ct.

at 884 & n.10 (dividing wife's one-fifth interest in trust with

closed class of five beneficiaries because death of beneficiary

could increase wife's interest, but her interest was not subject

to reduction).19   The judge found that distributions from the

2004 trust have not been equal from year to year and from

beneficiary to beneficiary, with Curt receiving no distributions

in some years.20   In addition, although the existence of a

spendthrift provision alone does not bar equitable division of a

trust, see Lauricella v. Lauricella, supra at 211-212, 216-217,

in light of the provisions in the 2004 trust, discussed supra,

an order dividing it to benefit Diane cannot create a right in

     19
       "Unlike alimony, a property settlement is not subject to
modification." Drapek v. Drapek, 399 Mass. 240, 244 (1987).
Thus, Curt would be unable to modify a property division that
included the value of his interest in the 2004 trust even if
future beneficiaries or events reduce that interest. See id.
     20
       As noted, Curt received distributions from the trust,
which was established in 2004, only during the period from
April, 2008, through August, 2010.
                                                                    18


Curt to compel distributions in her favor, when he does not

otherwise have a right to compel distributions.   See Burrage v.

Bucknam, 301 Mass. 235, 236 (1938); Pemberton v. Pemberton,

9 Mass. App. Ct. at 19-20.

    Curt's remainder interest in the 2004 trust is equally

speculative.   The 2004 trust benefits future generations, and,

consistent with their fiduciary obligations, the trustees are

unlikely to terminate the trust and distribute the remainder of

its principal in Curt's lifetime.   See Dana v. Gring, 374 Mass.

109, 117-118 (1977) (trustees must comply with "evident intent

to preserve trust principal for lineal descendants" and, unless

trust expressly states otherwise, must administer trust with eye

to future generations); D.L. v. G.L., 61 Mass. App. Ct. 488, 497

(2004) (considering generational nature of trust in concluding

interest in trust remainder was too remote for inclusion in

marital estate).   The judge found that termination of the 2004

trust, and distribution of its remaining principal, would be

contingent on the trust no longer holding any stock in one of

the for-profit higher education corporations that fund it.    The

judge found also that the trustees do not intend to sell those

shares, and that Curt does not have the ability to compel them

to do so.   Therefore, the possibility that the 2004 trust will

be terminated and the principal distributed to the remainder
                                                                    19


beneficiaries is remote.21    Cf. Lauricella v. Lauricella, supra

at 212, 216 n.6; S.L. v. R.L., 55 Mass. App. Ct. 880, 884 & n.10

(2002).

     Considering the language of the 2004 trust, and the

particular circumstances here, the ascertainable standard does

not render Curt's future acquisition of assets from the trust

sufficiently certain such that it may be included in the marital

estate under G. L. c. 208, § 34.       Cf. Lauricella v. Lauricella,

supra at 216;    Williams v. Massa, 431 Mass. at 628-629.    As

noted, however, the trust may be considered as an expectancy of

future "'acquisition of capital assets and income' in

determining what disposition to make of the property that [i]s

subject to division."22    See Williams v. Massa, supra at 629,

quoting G. L. c. 208, § 34; Drapek v. Drapek, 399 Mass. 240, 245

(1987).

     Conclusion.    The order dividing Curt's interest in the 2004

trust is vacated and set aside.    The matter is remanded to the

Probate and Family Court for further proceedings consistent with

this opinion.

                                       So ordered.

     21
       Under its terms, if the 2004 trust were to be terminated,
the principal would be distributed to Curt and any of his
siblings over the age of thirty, or, if any sibling were
deceased at the time of termination, held in trust until the
children of that sibling reach the age of thirty.
     22
          See notes 8 and 13, supra.
