
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 96-1845                                IN RE DAVID C. RAUH,                                       Debtor,                                                                            DAVID J. NOONAN, TRUSTEE,                                Plaintiff, Appellant,                                         v.                                   KUEI FONG RAUH,                                Defendant, Appellee.                                                                        APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                                           Before                               Boudin, Circuit Judge,                             Cyr, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                                                   Claudia  J. Reed,  with  whom  David J.  Noonan  and  Cohen,          Rosenthal P.C. were on brief for appellant.               Joseph I.  Schindler, with  whom Jonathan  S. Schindler  and          Klieman, Lyons,  Schindler,  Gross &  Pabian  were on  brief  for          appellee.                                                                                        July 18, 1997                                                                        CYR, Senior Circuit Judge.  Appellant David J.  Noonan,          trustee in  bankruptcy of  David C.  Rauh ("Debtor"),  challenges          various                  bankruptcy court rulings    later affirmed by the district          court    declining to set aside certain prepetition transfers  to          Kuei Fong Rauh, the Debtor's wife, and disallowing the  Trustee's          postjudgment                       motion to amend the complaint, findings, and judgment          relating to three fraudulent-conveyance claims belatedly asserted          against Mrs. Rauh.  We affirm the judgment, as amended to reflect          an additional voidable transfer to Mrs. Rauh.                                           I                                     BACKGROUND                    In  1976,  the Debtor,  Gary  Stahelski,  and  a  third          individual no longer involved in the case, founded a partnership,          Environmental                       Water Systems ("E.W.S."), which was to engage in the          plumbing  and  heating  business.   Six  years  later,  the  same          individuals formed a corporation, E.W.S. Realty, Inc. ("Realty"),          which developed real property  for sale or lease.  The  principal          lenders                  for                      the                         various                                 real estate development projects undertaken          by Realty  were Commerce Bank &  Trust Co. ("Commerce Bank")  and          Country Bank for Savings ("Country Savings").  The loans obtained          to finance the Realty  projects were secured by mortgages on  the          various                  properties                            under                                  development and were guaranteed by Realty,          as  well as  by  the Debtor  and  Stahelski in  their  individual          capacities.  During 1988, the Debtor, Stahelski, and Vincent  and          Ernest Osterman engaged  in a real estate development project  in          their individual capacities.   Around the  same time, these  four                                          2          individuals                      formed                            Pioneer Valley Partners No. 1, Inc. ("Pioneer"),          a            corporation                        which                             was                                 to develop a shopping mall known as Pioneer          Plaza.   The Pioneer Plaza project  financing came from the  real          estate sellers  and Commerce  Bank.   The loans  were secured  by          mortgages on the Pioneer Plaza real estate and guaranteed by  the          various corporations, the Debtor, Stahelski, and the Ostermans.                     For                        a                          time,                               E.W.S.                                      and                                          Realty were reasonably successful,          especially during 1986, 1987 and 1988.  As the Massachusetts real          estate market  slumped in 1989,  however, the Debtor's  financial          position                   deteriorated,                                due to difficulties in obtaining lessees for          space                in                   the                      Pioneer                              Mall, a slowdown in the construction business,          and the heavy indebtedness incurred with E.W.S. and/or Realty for          services performed in connection with the Pioneer Plaza  project.          E.W.S.                 and                     Realty in turn became deeply indebted to third parties.          By May 1989, the Debtor  realized that he and Stahelski would  be          unable                 to                    meet                        the                            $200,000 mortgage payment due the sellers of the          Pioneer Plaza real estate  in June and an additional payment  due          Country Savings around the same time.                    Between  June  1  and  September  2,  1989,  Mrs.  Rauh          unilaterally  withdrew  $127,758  from  various  joint   accounts          maintained                     in the names of both spouses and deposited the proceeds          in             accounts                      she                         either                                held jointly with her daughter or in her own          name as trustee for  her son.    The bankruptcy court found  that          these                transfers                         were                              made by Mrs. Rauh with actual intent to remove          the monies in  the joint spousal accounts  from the reach of  the          Debtor's creditors.                                            3                    On June  28, 1989, the  Debtor suddenly absconded  wit          $9,000 withdrawn from an unspecified joint spousal account.  Mrs.           auh               sought                     an                        explanatio                                                                          h          R                      n from Stahelski, who described the dismal          financial                    picture                           confronting him and the Debtor and suggested that          the  Debtor might  have  left with  another  woman.   The  Debtor          resurfaced approximately two weeks later, however, and  Stahelski          terminated                     the Debtor's employment with Realty shortly thereafter.          At about the same time, the E.W.S. partnership was dissolved.                    The Debtor sued  Stahelski to recover the value of  his          interests  in E.W.S. and  Realty.  Mrs.  Rauh joined the  action,          claiming                   damages                          for                              emotional distress caused by her dealings with          Stahelski following  the Debtor's  disappearance.   The suit  was          settled on July  23, 1991 (the "Stahelski Settlement"), with  the          Debtor receiving vehicles and equipment of little value in return          for              relinquishing all interests in E.W.S. and Realty to Stahelski;          Mrs. Rauh received $15,000 in cash and a $40,000 promissory  note          payable                  to                     Realty.1  She continued to receive all payments made on          the $40,000  note until well after  the Debtor filed a  voluntary          chapter 7 petition on March 24, 1992.                    In  due course,  the  Trustee  commenced  an  adversary          proceeding  to  set  aside   several  transfers  to  Mrs.   Rauh,          individually and  as next friend  of the Rauh  children.  As  the          challenged transfers  all  occurred  more than  one  year  before          bankruptcy,  see  Bankruptcy Code  S  548,  the  Trustee  invoked                  1Meanwhile,  the Debtor  had deeded  his  tenancy-by-the-          entireties                     interest                             in                                the marital home to Mrs. Rauh on January 28,          1991, for nominal consideration.                                            4          Bankruptcy Code S  544(b) and chapter  109A of the  Massachusetts          General Laws ("ch. 109A")    the Massachusetts Uniform Fraudulent          Conveyance Act ("UFCA")    as grounds for avoiding them.2                    At                       trial,                              the Trustee managed to persuade the bankruptcy          court                to                   set                      aside                            only                                 the transfer of the Debtor's joint interest          in             the                 marital                        home                             and                                 the transfer of the $40,000 promissory note          to  Mrs.  Rauh  in  connection  with  the  Stahelski  Settlement.          Thereafter,                      the                         Trustee                                 moved to amend the complaint, findings, and          judgment to  conform with the  evidence.  See  Fed. R. Bankr.  P.          7015(b), 7052(b), 9023(a);  Fed. R. Civ. P. 15(b), 52(b),  59(a).          The proposed  amended  complaint  alleged  additional  fraudulent          transfers.                                           Nearly a year after trial, the bankruptcy court denied          the              postjudgment                          motion                                 on the mistaken ground that the Trustee had          failed                 to                    file a motion to amend the complaint to conform with the          evidence.  See infra Section II.B.                     In addition to the ruling at  trial    refusing to  set          aside Mrs.  Rauh's withdrawals  from the joint  accounts      the          Trustee                  now                      challenges the bankruptcy court's postjudgment rulings          refusing                   to                      set                         aside:                                                                 the $15,000 cash payment Mrs. Rauh received          in the Stahelski  Settlement; a $6,565.31  deposit, on March  27,          1992, to Mrs. Rauh's own bank account, comprised of three  checks          dated two weeks prior to the Debtor's chapter 7 petition, payable          to the Debtor  and endorsed over to  Mrs. Rauh; and $3,786.76  in               2The  Uniform Fraudulent Transfer Act ("UFTA") did not  take          effect in Massachusetts until well after these transactions.  See          Mass. Gen.  Laws ch. 109A  (1997), amended by  St. 1996, ch.  157          (approved July 8, 1996) (replacing UFCA provisions with UFTA).                                          5          deposits to Mrs.  Rauh's own bank account, between September  17,          1991 and February 12, 1992, consisting of several checks from the          Debtor's customers made payable to Mrs. Rauh.                                           II                                      DISCUSSION          A.   The Joint-Account Withdrawals                     The                        threshold                                  matter                                        for                                            our consideration is whether the          Trustee adequately preserved  the claims asserted  on appeal.   A          thorough review of  the entire record  discloses that the  theory          advanced by the trustee on appeal in support of his claims to the          various amounts withdrawn from  the joint accounts is  altogether          different                    than                        that                             litigated below.  Accordingly, we conclude that          these claims were abandoned below.                    The  Trustee argued  before the  bankruptcy court  that          Massachusetts law establishes  a rebuttable presumption that  the          spouse whose  funds  are deposited  in  a joint  spousal  account          ("contributing spouse")  is presumed to  have intended that  each          spouse                 own                     a                      one-half                               interest in the deposited funds.  See Gibbons          v. Gibbons, 4 N.E.2d 1019, 1020 (Mass. 1936).  Thus, the  Trustee          contended                    throughout the proceedings below that the Debtor was the          contributing spouse; that  he owned one-half the monies in  these          joint  accounts;  that  Mrs.  Rauh,  the  party  challenging  the          aforementioned  presumption, had  not  carried  her  burden,  see          Blanchette v. Blanchette,  287 N.E.2d 459,  463 (Mass. 1972),  of          establishing  that the  contributing  spouse intended  to  retain                                          6          ownership of all monies  deposited;3 and, therefore, that  either          Mrs.               Rauh                    had converted the Debtor's one-half share, or the Debtor          had              conveyed                      his                          one-half share to Mrs. Rauh in fraud of creditors.          Accordingly, the Trustee  claimed, the Debtor's "transfers"  were          voidable under Bankruptcy Code S 544(b) and ch. 109A.                    The bankruptcy court instead ruled that a joint spousal          account creates  a very different  presumption; namely, that  the          contributing spouse intended to give the noncontributing spouse a          beneficial interest  in all  monies deposited  to their  account,          subject  only to  the contributing  spouse's coequal,  unilateral          right, at any time, to withdraw all monies on deposit, see Noonan          v. Rauh (In re  Rauh), 164 B.R. 419,  423 (Bankr. D. Mass.  1994)          (citing, e.g., Blanchette,  287 N.E.2d at  463).  The  bankruptcy          court also held that the party challenging the presumption (viz.,          the Trustee)  may rebut  it only  by adducing  evidence that  the          contributing  spouse intended  to  convey no  present  beneficial          interest to the  noncontributing spouse.  See id. (citing,  e.g.,          Ross v. Ross,  314 N.E.2d 888, 893  (Mass. App. Ct. 1974),  cert.          denied, 420 U.S. 947 (1975)).  The bankruptcy court further noted          that the  Trustee had neither  alleged nor  established that  the          Debtor                 intended                         to                            convey no beneficial interest in these monies to               3Mrs. Rauh contended at trial that the  funds in these joint          accounts                   derived from assets owned by her alone; she was therefore          the contributing spouse; and she had intended that all the  funds          remain her property.  The Trustee, on the other hand,  introduced          evidence                   that                        the                           funds                                 in these accounts derived from the earnings          and              investments                          of                            the                                Debtor or represented proceeds from jointly-          held               assets.                        The bankruptcy court found, however, that the Debtor          was the sole contributing spouse.                                           7          Mrs. Rauh.  See id.                    The bankruptcy court reasoned  as follows:  (1)  either          spouse has the unilateral  legal right to withdraw all monies  in          their                joint                      spousal account, thereby divesting the other spouse of          any  beneficial interest,  see id.  at 424  (citing Heffernan  v.          Wollaston                    Credit                          Union,                                 567 N.E.2d 933, 937 (Mass. App. Ct. 1991));          thus, in 1989 Mrs.  Rauh simply withdrew her own 100%  beneficial          interest in the  funds; (2) consequently,  any "transfer" of  the          Debtor's beneficial interest in the deposited monies to Mrs. Rauh          had occurred not at the time  of the withdrawals by Mrs. Rauh  in          1989,                but                    much                        earlier                                (v                                 iz., not later than the dates on which the          Debtor made the respective deposits to their accounts); (3) since          the              withdrawals by Mrs. Rauh in 1989 consisted entirely of her own          funds, no "transfer" of  property of the Debtor could have  taken          place;                 and                     (4) a fortiori, no conversion or conveyance, fraudulent          or otherwise, occurred at that time.  See id.                    The position adopted by the Trustee on appeal bears  no          resemblance to his  litigation stance below,  as the Trustee  now          contends that he did  rebut the legal presumption posited by  the          bankruptcy                     court.                         4                                                                                   The                                 Trustee relies for support upon Mrs. Rauh's                                                                 4               The                    Trustee                           also                                points out that the expert witness presented          by Mrs.  Rauh testified  that all monies  in these joint  spousal          accounts                   were                        assets                              of                                 the Debtor.  However, this expert testimony          was offered to prove that  the Debtor was not "insolvent," as  of          1988,                for                    purposes of ch. 109A, S 4.  There has been no attempt by          the Trustee to explain  how this expert testimony bears upon  the          Debtor's donative intent in establishing the joint accounts.  See          United States  v. Zannino,  895 F.2d  1, 17  (1st Cir.)  ("issues          adverted to in a perfunctory manner, unaccompanied by some effort          at             developed                       argumentation, are deemed waived"), cert. denied, 494          U.S. 1082 (1990).                                             8          trial                testimony                          that                              the                                  Rauhs always paid their household expenses          from  their   joint  accounts  (i.e.   the  accounts  were   mere          "convenience"                        accounts),                                  and argues that her testimony conclusively          rebutted                   any                      presumption                                  that the Debtor intended to give Mrs. Rauh          a beneficial interest in the deposited funds.                      Thus,                          the                              Trustee utterly abandons the interpretation of          Massachusetts law which formed the bulwark on which he based  his          claims before the bankruptcy court:   that (1) the creation of  a          joint spousal account by the Debtor triggered a legal presumption          that the Debtor intended to give Mrs. Rauh only a 50% interest in          the deposited funds; and (2) that Mrs. Rauh    not  the Trustee            bore the burden of rebutting that presumption.  Indeed, on appeal          the              Trustee                      implicitly acknowledges the validity of the bankruptcy          court's divergent interpretation of Massachusetts law (viz.,  the          presumption that all deposited  funds were intended as a gift  to          Mrs.  Rauh),  simply  arguing  instead  that  he  did  rebut  the          presumption,                       as                         identified by the bankruptcy court, by establishing          that  the Rauhs  used  their  joint spousal  accounts  to  defray          household  expenses.   As  the  Trustee has  not  challenged  the          bankruptcy court's delineation  of the underlying presumption  on          appeal, we can only conclude that he has abandoned the original            and              much                   broader                                                                                                               legal theory relied on below.  Consequently, we          express no  opinion on  the validity  vel non  of the  bankruptcy          court's ruling.5  See Baybank-Middlesex v. Ralar Distribs.,  Inc.                                                                 5               Nor                    do                      we                         consider                                  a quite different argument never raised by          the              Trustee                                               that even if Mrs. Rauh had a right to withdraw 100%          of these funds, a voidable transfer of a property interest of the                                          9          (In re Ralar Distribs., Inc.),  69 F.3d 1200, 1204 n.5 (1st  Cir          1995) (noting that theories neither briefed nor argued on  appeal          are deemed waived);  Executive Leasing Corp. v. Banco Popular  de          Puerto Rico, 48 F.3d 66, 68 (1st Cir.) (On appeal, "[w]e will not          rely               upon                    arguments and allegations that are developed only in the          [trial] court pleadings."), cert. denied, 116 S. Ct. 171  (1995);                    Taglienti                                                                          .          Nelson v.           (In re Nelson), 994 F.2d 42, 45 n.6 (1st Cir.          1993); see also Carducci v.  Regan, 714 F.2d 171, 177 (D.C.  Cir.          1983) (judicial system assumes  assistance of counsel in  framing          arguments and citing authority).                     Nor need we decide the only claim actually presented by          the Trustee on appeal; viz., that Mrs. Rauh's "household expense"          or "convenience  account"  testimony  conclusively  rebutted  any          presumption that the Debtor intended to donate all monies in  the          joint spousal accounts to  her.6  As the bankruptcy court  itself          correctly                    noted, the Trustee never contended below that the Debtor          had  created  these  accounts with  intent  to  pass  no  present          beneficial interest to Mrs. Rauh.                    A                      party                            may                               not                                   raise                                         new arguments for the first time on          Debtor (i.e. his putative  coequal, unilateral right to  withdraw          100%               of                  these                       funds,                              or                                 his ownership interest in 50% of the funds)          nonetheless occurred at  the time Mrs.  Rauh exercised her  legal          right to withdraw the funds.                                                                  6               For                    one thing, Mrs. Rauh's trial testimony was not as clear,          in             context,                      as the Trustee suggests.  When asked from what account          the Rauhs' household expenses were paid, she responded:  "We only          have [sic] one checking account at  that time.  So it [sic]  paid          from               the                   checking account."  The record reveals, however, that the          Rauhs                had                    many joint accounts in 1989.  Consequently, it cannot be          ascertained from the record which was the checking account.                                         10          appeal.  See, e.g., Juniper  Dev. Group v. Kahn (In re  Hemingway          Transp., Inc.), 993 F.2d  915, 935 (1st Cir.), cert. denied,  510          U.S. 914 (1993).7  The Trustee's waiver cannot be excused  simply          because the  raw  facts he  now  considers determinative  of  his          newfound legal theory may have been before the bankruptcy  court.          See Un ited States  v. Slade,  980 F.2d  27, 31  (1st Cir.  1992)          (irrelevant that party  is debuting only "new arguments" and  not          "new  facts" on appeal).   Nor was  the newfound theory  properly          preserved below merely by the Trustee's generalized argumentation          as             to                the                   ownership                             of                                the Rauhs' joint accounts.  See id. at 30-31          (noting                  that                      appellant                                must have articulated the specific arguments          below);                  McCoy                                             v.                          Massachu                                 setts Inst. of Tech., 950 F.2d 13, 22 (1st          Cir. 1991) ("Overburdened  trial judges cannot be expected to  be          mind               readers.                                                If                           claims                                  are merely insinuated rather than actually          articulated in the trial court, we will ordinarily refuse to deem          them               preserved for appellate review."), cert. denied, 504 U.S. 910          (1992).                                     As                      the bankruptcy court was never afforded an opportunity          to  consider the  theory  and  authorities now  advanced  by  the          Trustee,8 nor to make any predicate factual findings, we  decline          the invitation to do so on appeal.  See In re Mark Bell Furniture               7We  consider arguments raised for the first time on  appeal          only               in                  exceptional circumstances threatening a "clear miscarriage          of justice."  See Playboy Enter., Inc. v. Public Serv. Comm'n  of          Puerto                 Rico,                      906                          F.2d                               25, 40 (1st Cir.), cert. denied, 498 U.S. 959          (1990).   We  discern no  such exceptional  circumstances in  the          present case.                  8Even in  the Trustee's postjudgment  motion to amend  the          findings and  judgment,  there is  no  mention of  the  perceived          relevance of Mrs. Rauh's testimony regarding the Rauhs' household          expenditures.                                         11          Warehouse, Inc.          little          531 (1st Cir. 1993)).                    After the bankruptcy  court entered  final judgment  in          Febr                          v.                                              e                                 d 7, 9 (1st Cir. 1993) ("'If lawyers could           ursue                 on                    appeal issues not properly raised below,  there would be                 incentive to  get it right  the first time  and no end  of          retrials.'") (quoting Poliquin v. Garden Way, Inc., 989 F.2d 527,                               9          B.   Amendments to Complaint                                        uary 1994,  see       p.  5, the Trustee  moved to amend  the          complaint to conform to the  evidence at trial, and to amend  the          judgment, to set aside, inter alia, a $15,000 cash transfer  Mrs.          Rauh received in the Stahelski Settlement, and transfers to  Mrs.          Rauh of several checks from the Debtor's customers.10                     Rule                         7015(b)                                 of                                   the                                       Federal Rules of Bankruptcy Procedure                    Fed. R. Civ. P. 15(b) to adversary proceedings)  state                             D.M.  Reid Assocs. (In re Mark Bell  Furnitur          Warehouse,                     Inc.                       ),                           992                               F.2          p          (applying                                                       s                 We                                supra                                       e          au          the Trustee cites on appeal do not appear to  support              newfound  theory.       Levy v.                 9    note in passing,  however, without deciding, that  th            thorities          the                    See          Levy,  35 N.E.2d 659,  661-62          (Mass.  1941); Zak v.  Zak, 25 N.E.2d  169, 170-71 (Mass.  1940);          Rosman                                v.                    Ros                      man, 19 N.E.2d 41, 42 (Mass. 1939); Cram v. Cram, 160          N.E. 337, 339-40 (Mass. 1928); Moore v. Mansfield, 142 N.E.  792,          793-94 (Mass. 1924); Hutchinson v. Hutchinson, 383 N.E.2d 82,  87          (Mass. App. Ct. 1978).  In each instance, the contributing spouse          either averred or testified that he never intended to donate  any          beneficial interest  in the  account to  the other  spouse.   The          Trustee alludes  to no comparable  averment or  testimony in  the          present                  record.  Moreover, we have found no Massachusetts decision          holding that mere evidence that household expenses were paid from          joint                accounts was necessarily relevant to, let alone conclusively          rebutted, a presumption of donative intent.  Finally, the Trustee          adduced no competent evidence that the Rauhs used all their joint          accounts to pay household expenses.  See supra note 6.               10 We review the bankruptcy court's denial of the motion  to          amend the complaint only for  abuse of discretion.  See Lynch  v.          Dukakis, 719 F.2d 504, 509 (1st Cir. 1983).                                         12          that                    When issues not  raised by the pleadings  are                    tried by express  or implied  consent of  the                    parties,                             they shall be treated in all respects                    as if they had been raised in the  pleadings.                    Such  amendment of  the pleadings  as may  be                    necessary  to cause  them to  conform to  the                    evidence                             and                                 to raise these issues may be made                    upon motion  of any party  at any time,  even                    after judgment; but failure so to amend  does                    not affect the result  of the trial of  these                    issues. . . .          Fed.               R.                  Bankr. P. 7015(b).  Under Rule 7015(b), motions to amend a          complaint  to conform  to  the  evidence admitted  at  trial  are          liberally allowed.  See, e.g., Brandon v. Holt, 469 U.S. 464, 471          & n.19  (1985)  (permitting amendment  to pleadings  pursuant  to          Federal Rule of  Civil Procedure 15(b)  even after Supreme  Court          mandated remand).                    A post-trial  motion  to conform  the judgment  to  the          evidence                   should not be allowed, however, unless the opposing party          expressly or impliedly agreed to try the matter in question.  See          Luria Bros. & Co. v. Alliance Assurance Co., 780 F.2d 1082,  1089          (2d Cir. 1986).  Even so, amendment should not be allowed if  the          opposing                   party demonstrates "unfair prejudice."  See DCPB, Inc. v.          City of  Lebanon, 957  F.2d 913, 917  (1st Cir.  1992); Lynch  v.          Dukakis, 719 F.2d 504, 509 (1st Cir. 1983); Scully Signal Co.  v.          Electronics  Corp. of Amer.,  570 F.2d 355,  362 (1st Cir.  1977)          ("Although  Rule 15(b)  by its  terms requires  amendment of  the          pleadings whenever an issue has been tried by express or  implied          consent, courts have  refused to grant such motions if  amendment          would prejudice  one of  the parties,  such as  by requiring  the                                         13          presentation                       of additional evidence."), cert. denied, 436 U.S. 945          (1978);                  see                                          a                      lso Morgan and Culpepper, Inc. v. Occupational Safety          & Health Review Comm'n, 676 F.2d 1065, 1066 (5th Cir. 1982).  The          term  "unfair prejudice" refers  to whether a  party "had a  fair          opportunity to defend  and whether he could offer any  additional          evidence if the case were  to be retried on a different  theory."          See                          Browning                      Debenture                                Holders' Comm. v. DASA Corp., 560 F.2d 1078,          1086 (2d Cir.  1977) (quoting 3 James  Wm. Moore et al.,  Moore's          Federal Practice q 15.13[2], at 993 (2d ed. 1966)).               1.   The Stahelski Settlement Transfer                    The stated  basis for denying  the Trustee's motion  to          amend the  judgment to conform  with the  evidence introduced  at          trial,                 in                    relation                            to                               certain cash transfers from Stahelski to Mrs.          Rauh, was the mistaken understanding by the bankruptcy judge that          the Trustee had never filed such a motion and that any  amendment          therefore would have been unfair because Mrs. Rauh had not had an          opportunity to present  a defense.   The bankruptcy court  docket          sheet                reveals, however, that the Trustee did file such a motion on          April 19,  1994, and that Mrs. Rauh later filed a reply.  As  the          denial                 therefore                          constituted an "abuse of discretion," the judgment          must be amended provided the motion was meritorious.  See Webb v.          Hiykel, 713  F.2d 405, 407-08  (8th Cir.  1983) (appellate  court          reverses trial  court  and orders  judgment where  plaintiff  was          entitled  to relief  on unpled  theory and  defendants would  not          experience undue prejudice).                     At trial,  without  objection, the  Trustee  introduced                                         14          competent evidence of the $15,000 cash payment Mrs. Rauh received          from Stahelski.   See Conjugal Partnership  of Jones v.  Conjugal          Partnership of Pineda, 22 F.3d 391, 400-01 (1st Cir. 1994)  ("One          sign               of                  implied consent is that issues not raised by the pleadings          are presented  and argued  without proper  objection by  opposing          counsel. . . . Under Rule 15(b), lack of consent is manifested by          an objection on  the ground that the  evidence is not within  the          issues                 raised by the pleadings.") (citation and internal quotation          marks omitted).  Mrs. Rauh contends on appeal, however, that  she          did              not                  object at trial because the Trustee introduced the $15,000          cash               payment                       only to prove that her receipt of the promissory note          had              been                   fraudulent.  See DCPB, Inc., 957 F.2d at 917 ("Consent to          the              trial                    of                       an issue may be implied if, during the trial, a party          acquiesces in the introduction of evidence which is relevant only          to that issue.") (emphasis added); Luria Bros. & Co., 780 F.2d at          1089               ("That                     such                          evidence, relevant to both pled and unpled issues,          was              introduced                        without                                objection does not imply consent to trial of          the unpled issues, absent some obvious attempt to raise  them.");          Ellis v. Arkansas Louisiana Gas Co., 609 F.2d 436, 440 (10th Cir.          1979)                ("Implied                         consent                                 may not be inferred merely because evidence          relevant                   to                      a properly pleaded issue incidentally tends to prove a          fact  not within  the pleadings."),  cert. denied,  445 U.S.  964          (1980).  We disagree.                      At  trial, the  Trustee maintained  that the  Stahelski          Settlement proceeds received by Mrs. Rauh constituted  fraudulent          conveyances under ch. 109A because (1) the Debtor, with intent to                                         15          keep assets from his creditors, diverted to Mrs. Rauh the bulk of          the              consideration                           he                              otherwise would have received in settlement of          his  claims against  Stahelski; and  (2) none  of the  settlement          proceeds                   received by Mrs. Rauh were attributable to the settlement          of her own tort claim for infliction of emotional distress.   See          supra  p. 4.   Accordingly, the only  conceivable purpose of  the          Trustee's                    evidentiary proffer relating to the $15,000 cash payment          was to establish the amount of the Stahelski Settlement  transfer          which was voidable.  The evidence offered by the Trustee was  not          even remotely probative  of whether the  Debtor had conveyed  the          $40,000 promissory note with  fraudulent intent, nor whether  the          transfer                   of                      the promissory note constituted consideration for Mrs.          Rauh's relinquishment of her tort claim.                     Furthermore, Mrs. Rauh  has not  demonstrated that  any          "unfair  prejudice" would  result  from the  postjudgment  relief          requested                    by                       the Trustee.  See DCPB, Inc., 957 F.2d at 917; Scully          Signal Co.,  570 F.2d  at 362.   At trial,  the bankruptcy  court          expressly rejected her  contention that the  Stahelski-Settlement          payments                   were                       in                          satisfaction of her emotional distress claim.  The          court  found  instead   that  the  Debtor  thereby   fraudulently          transferred his interests in E.W.S. and Realty indirectly to Mrs.          Rauh, see supra p. 4, a  finding Mrs. Rauh does not challenge  on          appeal.                                     Nor                       has Mrs. Rauh suggested that her contention in regard          to  the  Trustee's  $15,000  fraudulent-transfer  claim  differed          significantly from her  defense to the  surrender of the  $40,000          promissory                     note, see supra p. 4, which took place in the identical                                         16          circumstances                      .  See Modern Elec., Inc. v. Ideal Elec. Sec. Co., 81          F.3d               240,                    247                       (D.C.                             Cir.                                  1996) (complaint amended to include unjust          enrichment claim, after parties had tried similar quantum  meruit          claim);                  Morgan                        and                            Culpepper, Inc., 676 F.2d at 1068 ("Federal Rule          of Civil Procedure 15(b)  contemplates amendments in cases  where          relevant issues have been litigated."); Cunningham v. Quaker Oats          Co.            ,               107                  F.R.D.                         66,                             70-71 (W.D.N.Y. 1985) (new plaintiff allowed to          be             named                   in                      complaint, where defense to original plaintiff's claim          was primarily legal in nature, the defense had already been tried          and it applied to both the original and new plaintiff).                      As                       Mrs.                            Rauh                                 implicitly consented to try the fraudulent-          conveyance                     claim                          relating to the $15,000 cash transfer she received          in             the                 Stahelski Settlement, and she has not shown that any unfair          prejudice would result from the postjudgment relief requested  by          the Trustee, the motion to conform the complaint and the judgment          with the evidence should have been allowed.           2.   Checks from Debtor's Customers                    The                        bankruptcy                                  court                                        likewise denied the Trustee's motion          to             amend                   the                       judgment to set aside alleged fraudulent transfers of          several checks from the Debtor's business customers made  payable          directly,  or endorsed  over, to  Mrs.  Rauh.   See 11  U.S.C.  S          548(a)(2) (transfers by insolvent  within one year of  bankruptcy          petition); id.  S  549 (postpetition  transfers).   Although  the          bankruptcy court once again acted on the mistaken belief that the          Trustee had filed no postjudgment motion to amend the  complaint,          see supra Section  II.B, we may affirm  its ruling on any  ground                                         17          supported by the record.  See Max Sugarman Funeral Home, Inc.  v.          A.D.B.                 Investors                        ,                           926                               F.2d 1248, 1253 n.9 (1st Cir. 1991).  As Mrs.          Rauh did not agree to try  this issue, we decline to disturb  the          bankruptcy court ruling.                     The record discloses  that Mrs. Rauh was never on  fair          notice of these claims.  The checks in question were material  to          count VI of  the complaint as amended  prior to trial, see  DCPB,          Inc.             ,                957                    F.2d at 917; Luria Bros. & Co., 780 F.2d at 1089; Ellis,          609 F.2d at 440, wherein the Trustee alleged that funds presently          in             Mrs.                  Rauh's various bank and mutual fund accounts were property          of             the                 chapter                        7                          estate,                                  either because Ms. Rauh had converted them          from the Debtor, or the Debtor had fraudulently conveyed them  to          her.                               See                                      sup                      ra pp. 5-6.  Count VI focused on transfers from joint          accounts                   to                      accounts held in Mrs. Rauh's name alone (e.g. "between          November,                    1988 and November, 1989, the Defendant and/or the Debtor          transferred funds . . . at various times from jointly owned  bank          accounts to other bank accounts.").  See supra Section II.A.   In          her answer  Mrs. Rauh asserted  that "these accounts  contain[ed]          monies                 which                       were earned or derived solely by her efforts and were          not monies earned or derived from any effort of the debtor."                    The  dispute at  trial likewise  concerned whether  the          monies in the joint accounts had derived solely from Mrs.  Rauh's          own efforts, or from the Debtor's.  See supra note 3.   Mrs. Rauh          testified that  she was  the sole source  of these  monies.   The          Trustee, in turn, used the Debtor-customer checks made payable to          Mrs. Rauh to impeach her credibility by way of demonstrating that                                         18          the Debtor    not Mrs. Rauh    was the source of those particular          deposits to their joint accounts.                    T          c                      ence, nor the Trustee's examination of the                     fairly  signaled an  intention to  establish that  th                     hus,                          neither                                 the                                     Trustee's introduction of these Debtor-           ustomer                   checks                         into                              evid          witnesses,                                                      e          Debtor had transferred  these specific checks  to Mrs. Rauh  with          fraudulent                     intent,                            within the meaning of 11 U.S.C. SS 548(a)(2) and          549.   Rather,  it was  not until  after trial  that the  Trustee          mentioned                    these                         specific                                  transfers to Mrs. Rauh's accounts from the          Debtor's business customers.  As the Trustee thus failed to alert          Mrs.               Rauh                    to                       his intention, her failure to object at trial did not          connote  implicit consent to  try the unpled  issue.  See  Modern          Elec., Inc., 81 F.3d at 247; United States v. 890 Noyac Road, 945          F.2d 1252, 1257 (2d  Cir. 1991); Luria Bros.  & Co., 780 F.2d  at          1089.                    Although  the Trustee's  unpled  claims may  well  have          prevailed                    at                       trial, we cannot assume that Mrs. Rauh would not have          been able to establish her present contention    that the  checks          were               not                   property of the chapter 7 estate    had she been afforded          fair               notice                     and                         opportunity to resist the unpled claims at trial.11          See 890  Noyac Road,  945 F.2d at  1259 (although opposing  party          already may have presented all the evidence she had, "[g]iven the                                                                 11                For                     example, at trial Mrs. Rauh testified that she had used          personal funds  to defray various  business expenses because  the          Debtor's  checking  account had  been  attached.    Further,  she          represented that she had overpaid some of the Debtor's  suppliers          and              that                   their                        checks                               accordingly represented reimbursements of her          overpayments.                                         19          confused context in  which this proof was presented, however,  we          decline to speculate  about how [the defendant] might have  dealt          with               the                   issue . . . had it been squarely presented."); Morgan and          Culpepper,  Inc.,  676  F.2d  at  1068  ("We  deem  improper  the          Commission's prejudgment of possible defenses which a company may          assert. . .  . Where amendment of  pleadings is permitted on  the          basis of the second half of Fed. R. Civ. P. 15(b), the Commission          may              not                  deny                      the                          petitioner the opportunity to present new defenses          by stating the ex parte conclusion that all possible defenses are          meritless.").                                                 As                           Mrs.                                Rauh was not afforded fair notice that these          newly                minted                      Debtor-customer check claims were being interjected by          the              Trustee                      at trial, the Trustee was not entitled to amend either          the complaint or the judgment.                                         III                                     CONCLUSION                    Accordingly, the judgment is  amended to set aside  the          $15,000 cash  payment  received by  Mrs.  Rauh in  the  Stahelski          Settlement.  In all other respects, the judgment is affirmed.  No          costs.                    SO ORDERED.                                         20
