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18-P-600                                            Appeals Court

                           D.B.   vs.   J.B.


                            No. 18-P-600.

           Suffolk.      April 2, 2019. - March 17, 2020.

              Present:   Hanlon, Desmond, & Shin, JJ.


Divorce and Separation, Alimony, Division of property, Child
     custody.


     Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on July 18, 2011.

     The case was heard by Joan P. Armstrong, J.


     Nancy A. Freed for the husband.
     Sandra E. Lundy for the wife.


     HANLON, J.   After a trial, a judge of the Probate and

Family Court issued extensive findings of fact and conclusions

of law, and entered a judgment of divorce nisi dated May 23,

2017.   The plaintiff husband, D.B., now appeals, arguing that

the judge erred in (1) failing to calculate appropriately the

defendant wife's, J.B., need for alimony; (2) failing to credit

the husband for thirty-seven months of pretrial alimony; (3)
                                                                    2


dividing equally the husband's interest in an investment

account; and (4) awarding joint legal custody of the parties'

minor children, while granting the wife final authority for

nonemergency medical decisions.   For the reasons that follow, we

vacate the portion of the judgment that relates to the

durational limit of the husband's alimony payments, and we

affirm the remainder of the judgment.

     Background.   The husband and the wife were married in

October 1998; together they had three children.1    The parties

first separated in July 2011; the husband filed a complaint for

divorce on July 18, 2011.   A short time later, the parties

reconciled.   However, in May 2013, the parties again separated,

and the husband pursued his divorce complaint.2,3   After the


     1 Because the parties' oldest child was eighteen at the time
the judgment issued, she was not included in the custody
determination.

     2 The judge calculated the length of the marriage as 175
months, based on the number of months between the date of the
marriage and May 3, 2013, the date the parties last resided
together. The length of the marriage is not in dispute.

     3 On May 3, 2013, the husband obtained an ex parte abuse
prevention order against the wife. See G. L. c. 209A. He
alleged that the wife had threatened him with a knife in front
of one of the children. Four police officers went to the
marital home to remove the wife while the husband took the
children to a Celtics game. None of the court papers relating
to the abuse prevention order is included in the record. As a
result, it is not clear whether there was a hearing after
notice, or whether the initial abuse prevention order was
extended and, if so, for how long.
                                                                   3


separation, the children resided primarily with the husband in

the marital home; the oldest child resided with the wife for a

short time between September 2015 and January 2016, but then

returned to reside in the husband's home.   In February 2014, by

stipulation of the parties, the husband agreed to pay to the

wife temporary support of $30,000 monthly; the stipulation

characterized the support as alimony, and the parties agreed

that the monthly payments would be "credited against the

applicable durational limit of the Alimony Reform Act of 2011."

The stipulation later entered as a temporary order.

    The wife graduated with a college degree and was employed

prior to the parties' marriage.   However, beginning with the

birth of the parties' oldest child in January 1999, the wife

became a stay-at-home parent; during the marriage she also

hosted dinners and political fundraisers in the marital home for




     However, in an October 10, 2013 stipulation between the
parties (later incorporated into a court order), among other
things, the husband agreed to vacate the provisions of the abuse
prevention order that pertained to the children; the stipulation
instead instituted a "no-contact" requirement -- prohibiting
either party from contacting the other in nonemergency
circumstances by "phone, electronic means or in person." The
stipulation provided that, if the wife violated the no contact
order, the husband could seek a new abuse prevention order and
the wife would not object; there was no reciprocal provision if
the husband failed to comply with the no contact provision.
While a stipulation that would prevent a party from being heard
appropriately in a hearing on an abuse prevention order is
concerning, neither side has raised the issue here and so we do
not address it.
                                                                     4


the purpose of developing the husband's business relationships.

The wife brought with her into the marriage approximately

$500,000; those funds were "incorporated into the marital

enterprise," or used to acquire and grow marital assets.

    The husband was the primary wage earner during the

marriage, and the wife made significant noneconomic

contributions that permitted the husband to focus on his career.

She was the primary caregiver for the children during the early

years of the marriage; the family later employed nannies and

other household staff, and the wife remained intricately

involved in the day-to-day running of the household and in

coordinating the children's needs.    At the time of trial, the

wife's sole source of income was the temporary alimony the

husband paid her.

    The husband received a bachelor's degree and later a

master's degree in business administration.     He began his

successful career as a consultant with a company, and later

formed an investment firm (firm).    The husband has been employed

by the firm throughout the course of the marriage and was, at

the time of trial, one of the general partners at the firm,

which had a number of employees.     The husband did not receive a

regular salary from the firm, but instead, for the two years

preceding the trial, he opted to take a monthly draw of

$200,000.
                                                                   5


    The firm manages private equity accounts that invest in and

manage various investment portfolio companies.    Partnership

investment entities hold the firm's interests in each of the

portfolio companies.   Each account has a set duration of ten

years; after an account is established, the firm spends the

first five years raising investment capital to fund the entity

(in addition to the firm's initial investment).   Once the

investment goal is met, the account is closed and the management

phase of the account begins.   The following five years are then

focused on the management and growth of the account, in order to

provide a high return for the investors (and for the firm) when

the various entities contained within each account are sold.

    As a general partner of the firm, the husband had a

mandatory capital commitment to establish an account; this

required him to contribute his personal assets.   Relevant here,

the husband was personally obligated to contribute $2.4 million

to a specific account, asset X.   By December 2009, fundraising

for asset X had been completed, and the management phase of

asset X had begun.   At the time of trial, $600,000 of the $2.4

million in capital committed to asset X by the husband had yet

to be funded; because asset X was still in the management phase

at that time, the judge found that the husband's interest in

asset X was "illiquid."   According to the husband, his

commitment obligation to asset X would continue to be
                                                                   6


outstanding until December 2019.4   Based on the husband's

financial statement admitted at trial, the husband's general

partnership interest in asset X was approximately $8.1 million

(or forty percent of the firm's entire share).   The judge found

credible the husband's testimony that he could not at the time

of trial predict the circumstances of any future sale of asset

X, including any profits or losses therefrom.

     By stipulation of the parties, in October 2013, a guardian

ad litem (reporting GAL) was appointed to investigate, evaluate,

and report (with recommendations) to the judge issues relating

to the care, custody, and parenting plan for the children.     A

second GAL (consulting GAL) was appointed for the purpose of

investigating and consulting with the reporting GAL.5   The two

GALs filed with the judge a joint report dated December 18,

2014; however, only the reporting GAL authored the

recommendations section of that report.

     In her findings of fact, the judge concluded, after hearing

the trial testimony of the reporting GAL and the wife's expert,

that both GALs had failed in their investigations to comply with

mandated GAL standards, and had acted outside of their roles as


     4 However, if both one-year extensions were exercised then
his commitment to asset X would end December 2021.

     5 The parties also stipulated to the appointment of a
separate GAL for the purpose of asserting or waiving the
children's psychotherapist-patient privilege.
                                                                    7


objective evaluators.   As a result, the judge concluded that the

GALs' conduct undermined any perception of impartiality and

created the impression that they were biased in favor of the

husband –- which had a detrimental impact on the children.     In

addition, according to the expert testimony, the GAL report

omitted certain information gathered from interviews with the

family and various others, and sometimes misconstrued statements

by collateral witnesses interviewed during their respective

investigations.6

     After fifteen days of trial, the judge found that the wife

had been the primary caretaker of the children during the

marriage and that she had lost economic opportunities during the

two decades she was a stay-at-home parent.   The judge declined

to adopt the reporting GAL's recommendations (due to both GALs'

questionable impartiality); found that "the presumption against

awarding [w]ife shared legal and physical custody ha[d] been




     6 For example, all three children claimed that the husband
was abusive to them during the time of the parties' separation -
- prior to trial while they were in his sole custody; the
reporting GAL dismissed these allegations. Instead, he
concluded that the children's statements were about trivial
incidents that were uncorroborated. The judge acknowledged
explicitly the trial testimony of the mother's expert that it
was absolutely essential that the children's statements be
accurately recorded, and accurately reflected, in the GAL
report.
                                                                   8


rebutted;"7 and found that the wife was in need of support, due

to her absence from the workforce for nearly two decades and a

diagnosed medical condition.   The judgment of divorce nisi that

issued, relevant here, (1) awarded the parties joint legal and

physical custody of the children, and granted the wife final

decision-making authority with regard to the children's medical

care, due to the parties' inability to work collaboratively in

those matters in the children's best interests; (2) ordered the

husband to pay to the wife general term alimony in the amount of

$60,000 each month (representing thirty-four percent of his

gross income) until September 1, 2027; and (3) awarded the wife




     7 The judge found that the "knife incident constitute[d] a
'serious incident of abuse' in that [w]ife's behavior that
evening placed [h]usband in 'reasonable fear of imminent serious
bodily injury.'" Nonetheless, she concluded that the statutory
presumption that it was not in the children's best interest to
be placed in the custody of the parent who had committed the
serious abuse had been rebutted. See G. L. c. 208, § 31A. She
concluded, "There is no dispute that [the two minor children]
are intelligent, mature and capable of articulating their wishes
and desires. Both . . . have clearly and consistently expressed
that they would prefer to reside primarily with [w]ife. There
was ample evidence presented at trial that the limitations
placed on [w]ife's relationship with the children has had a
negative impact on each member of [this] family. . . . [Based
on their ages, the two minor children's] preferences should be
given significant weight. The children have also been thriving
while residing primarily with [h]usband, and the [c]ourt finds
no reason to limit his contact with them going forward. Due to
the children's full and active lifestyles, the [c]ourt finds
that a flexible, non-rigid parenting schedule is appropriate for
[this] family. Enabling the children to enjoy liberal parenting
time with both [p]arties within the parameters of the children's
respective schedules is of paramount concern."
                                                                      9


fifty percent of all distributions received by the husband

derived from his interests in asset X.    The husband appealed.

    Discussion.   1.   Wife's need for alimony.   The husband

first argues that the judge erred when she calculated the amount

of his alimony obligation.    For support, he cites the Alimony

Reform Act of 2011 (act), St. 2011, c. 124, which provides, in

pertinent part, "[e]xcept for reimbursement alimony or

circumstances warranting deviation for other forms of alimony,

the amount of alimony should generally not exceed the

recipient's need or 30 to 35 per cent of the difference between

the parties' gross incomes established at the time of the order

being issued" (emphasis added).   G. L. c. 208, § 53 (b).     The

husband's argument focuses particularly on the word "or," which,

he contends, "is critical."   In his view, the award must satisfy

both criteria.   And, he argues, the wife does not need the

amount of alimony that the judge ordered him to pay.     As to that

second portion of his argument, we are not persuaded.

    The act did not change the fundamental purpose of alimony,

which "is to provide for postdivorce economic support of a

spouse who was financially dependent during the marriage."

Hassey v. Hassey, 85 Mass. App. Ct. 518, 524 (2014), citing

Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).     "[W]here the

supporting spouse has the ability to pay, 'the recipient

spouse's need for support is generally the amount needed to
                                                                   10


allow that spouse to maintain the lifestyle he or she enjoyed

prior to termination of the marriage'" (emphasis added).       Young

v. Young, 478 Mass. 1, 6 (2017), quoting Pierce v. Pierce, 455

Mass. 286, 296 (2009).   In determining the amount and duration

of an alimony award, the judge must consider certain statutory

factors, "and such other factors as the court considers relevant

and material."   G. L. c. 208, § 53 (a).    Although the act

created express guidelines to aid judges in fashioning alimony

awards, "it [did] not alter the principle that the central issue

relevant to a financial award is the dependent spouse's 'need

for support and maintenance in relationship to the respective

financial circumstances of the parties.'"    Hassey, supra at 524-

525, quoting Partridge v. Partridge, 14 Mass. App. Ct. 918, 919

(1982).

    We look to our cases establishing a child support order in

higher income cases for some guidance in determining a spouse's

need for alimony in a case where a party earns a substantial

income.   That is, we have held that "consistent with principles

underlying the [Massachusetts Child Support Guidelines

(guidelines)], children's needs are to be defined, at least in

part, by their parents' standard of living and that children are

entitled to participate in the noncustodial parent's higher

standard of living when available resources permit."     Brooks v.

Piela, 61 Mass. App. Ct. 731, 737 (2004).    If there exists a
                                                                   11


"material disparity in the standard of living in the respective

parents' households," the ordered child support should, in

furtherance of the principles of the guidelines, "provide the

standard of living the child would have enjoyed had the family

been intact."    Smith v. Edelman, 68 Mass. App. Ct. 549, 554

(2007), quoting Brooks, supra (modification of child support

denied as noncustodial parent's increased income postdivorce did

"not result[] in a material disparity in the parties' respective

lifestyles").

    So, too, in calculating alimony, it is appropriate to view

the need of a recipient spouse in light of the affluence of the

family as a whole, keeping in mind the ability of the other

spouse to pay.   See C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 159

(2008) ("An award of alimony may be appropriate, even if the

receiving spouse can generate income from the estate awarded her

by the divorce, because '[m]any considerations shape the

structure of an award.'    Johnston v. Johnston, 38 Mass. App. Ct.

531, 537 [1995]").    Cf. Zeh v. Zeh, 35 Mass. App. Ct. 260, 267

(1993) ("The fact that the judgment provisions may meet the

wife's basic needs does not preclude assessment of the fairness

of the division of the assets of this long-term marriage, given

both the apparent failure to weigh the effect of the wife's

contribution as a homemaker and the size of the marital estate,

as enhanced by the husband's inheritance from his father");
                                                                   12


Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903, 904 (1992) ("When

the entire marital estate is as large as it is in this case

. . . , need, even as related to station in life, recedes as a

consideration").

    It is apparent from the judge's findings in this case that

she carefully addressed each of the considerations outlined in

§ 53 and concluded that the wife had a "significant" need for

support from the husband in order to maintain the "upper-middle

class to upper-class lifestyle" enjoyed by the parties during

the marriage.   See Zaleski v. Zaleski, 469 Mass. 230, 236 (2014)

("we examine a judge's findings to determine whether the judge

considered all the relevant factors under G. L. c. 208,

§ 53 [a]").   The judge acknowledged that the wife had a college

degree, but she properly took into account the fact that the

wife had been out of the workforce for almost two decades, and

also that she was not in the best of health.   The judge further

considered, among other factors, the wife's noneconomic

contributions to the marriage, as well as the economic

opportunities she had lost due to the parties' agreement that

she would stay at home to parent their children.   See G. L.

c. 208, § 53 (a).   As a result, given the husband's substantial

ability to pay, and the wife's limited income and stated need

for support, the judge permissibly determined that the wife

needed the alimony in order "to maintain the lifestyle she
                                                                   13


enjoyed prior to the termination of the marriage."    Young, 478

Mass. at 7.   By contrast, an award on these facts that focused

on need for bare necessities alone would have produced a

material disparity in the parties' postdivorce lifestyles.

     It is true, as the husband argues, that the judge

criticized the wife's statement of financial need.8   Further, the

judge noted that it was "incumbent upon [the w]ife to adjust her

expectations following the divorce to reflect the reality of one

income being shared between two households."   However, the judge

also noted that, during the marriage, the wife earned no income,

and that, at the time of trial, her income derived exclusively

from temporary support paid by the husband ($6,976.74 weekly).

For this reason, she concluded that the wife had "no ability to

maintain the marital lifestyle without continued support from

[the h]usband."

     As noted, a dependent spouse's "need" for postdivorce

support is but one of the many factors to be considered by the

judge in fashioning an alimony order.   G. L. c. 208, § 53 (b).

Here, although the judge was unable to determine the wife's

"true need" based on her financial statement, given the

discretion afforded by the act, it was permissible for her


     8 Specifically, the judge found that the wife's failure to
complete her financial statement appropriately made it
"impossible for the [c]ourt to precisely determine her true need
as of the time of trial."
                                                                      14


instead (or in addition) to consider the various mandatory and

discretionary factors as prescribed by § 53 (a) to fashion an

alimony award that would be appropriate in providing the wife

the means to maintain the marital lifestyle.     This is precisely

what the judge did here, and in so doing, "the judge quite

clearly and directly considered the alimony calculation in

relationship to the respective financial circumstances of the

parties."    C.D.L., 72 Mass. App. Ct. at 159.   The alimony award

was neither "plainly wrong" nor "excessive."     Zaleski, 469 Mass.

at 236, quoting Heins v. Ledis, 422 Mass. 477, 481 (1996).

Ordering an alimony amount that constituted thirty-four percent

of the disparity between the parties' determined gross incomes

was well within her broad discretion.    See G. L. c. 208,

§ 53 (b).    See also Young, 478 Mass. at 5-6; J.S. v. C.C., 454

Mass. 652, 660 (2009) (support awards reviewed for abuse of

discretion).

    2.      Duration of husband's alimony obligation.   The husband

next argues that the judge erred when she failed to credit him,

as the parties had agreed, with the payment of temporary support

for the thirty-seven months preceding trial.     We agree this was

error.

    "While Probate and Family Court judges enjoy considerable

discretion, that discretion does not extend to vitiating a

contract that was negotiated at arm's length and entered into
                                                                    15


freely and voluntarily" by the divorcing parties.   DeMarco v.

DeMarco, 89 Mass. App. Ct. 618, 623-624 (2016) (enforcing

provisions of parties' surviving settlement agreement pertaining

to alimony).   It is "important to respect the parties' 'freedom

to contract' and that such agreements may serve a 'useful

function' in permitting the parties to arrange their financial

affairs 'as they best see fit.'"   Ansin v. Craven-Ansin, 457

Mass. 283, 288-289 (2010), quoting DeMatteo v. DeMatteo, 436

Mass. 18, 30 (2002) (enforcing contracted terms from postnuptial

agreement).

    On February 20, 2014, the parties entered into a

stipulation that later entered as a temporary order.     Relevant

here, one of the agreed-upon terms in the stipulation provided

that "[c]ommencing on March 1, 2014 and on the first day of each

month hereafter, the [h]usband shall pay $30,000 monthly as

[t]emporary [s]upport to the [w]ife.   Said payments shall be

characterized as alimony and shall continue until further order

of the [c]ourt . . . and shall be credited against the

applicable durational limit of the [act]."

    As part of the May 23, 2017 divorce judgment, the judge

ordered the husband to pay general term alimony for 123 months

(based on 175 months of marriage, see note 2, supra), to

terminate on September 1, 2027; this order ignored the parties'

agreement to include the temporary support payments in the
                                                                   16


durational calculation.   See G. L. c. 208, § 49 (b) (3).    The

judge reasoned that the Supreme Judicial Court's holding in

Holmes v. Holmes, 467 Mass. 653, 660 (2014), made it clear that

"durational limits set forth in G. L. c. 208, § 49[,] appl[ied]

to general term alimony awards only and [did] not apply to

temporary alimony awards."9    For that reason, given the Holmes

court's conclusion that the Legislature's intent was not to

include in "the maximum presumptive duration of 'general term

alimony,' . . . the time period where temporary alimony was

paid," Holmes, supra, the judge here concluded that she was

"bound by the ruling in Holmes when setting the duration of any

general term alimony award."

     We conclude, however, that the procedural history in Holmes

is distinguishable from what occurred here.    In 2006, when the

Holmes parties agreed that there would be temporary alimony, the

act had not been enacted.10    Holmes, 467 Mass. at 654.   As a


     9 On April 2, 2014, the Supreme Judicial court decided
Holmes, holding that, in that case, the husband's payment of
temporary alimony did not afford him a credit against the
maximum presumptive duration of general term alimony ordered in
the judgment of divorce nisi. Holmes, 467 Mass. at 659-660.
Eight days later, the wife in the present case filed a motion to
modify the provision of the temporary order that had
incorporated the 2014 stipulation, requesting that the duration
of the husband's temporary support payments be excluded from the
duration of general term alimony; that motion was denied.

     10The act was passed in 2011 and went into effect on March
1, 2012. See St. 2011, c. 124, § 7.
                                                                     17


result, the parties there had no reason to address the language

of the act or to attempt to counter its effects by agreeing to

any sort of credit to the husband's future general term alimony

obligation for his pretrial alimony payments.     See id. at 655.

See also G. L. c. 208, § 49 (b).      Both the stipulation and the

divorce judgment in Holmes provided for the alimony payments to

continue "until the death of the husband or the wife, or the

wife's remarriage."   Id. at 654.11    In contrast here, the parties

specifically had agreed that the husband would earn credit

toward the durational alimony limits prescribed by the act for

any pretrial support payments made to the wife.     Because neither

party challenges the validity of the agreement contained in the

2014 stipulation (and subsequent court order), the contracted

terms are enforceable.   Compare Ansin, 457 Mass. at 291 (minimum




    11 In the Holmes case, "[a]fter the effective date of the
. . . act, the judge issued a modified judgment . . . [and]
modified the duration of alimony, ordering that the husband's
payment obligation continue until the death of either party, the
wife's remarriage, the husband's attainment of full social
security retirement age, or October 7, 2020, whichever came
first. In setting the termination date, the judge calculated
the length of the marriage (fifteen years and seven days) and
the maximum presumptive duration of general term alimony under
the . . . act for a marriage of this length (twelve years), and
ordered alimony to continue, subject to other contingencies, for
the maximum presumptive duration. The judge did not subtract
the time period in which temporary alimony was paid (two years,
three months, and twenty-five days) from her calculation of the
maximum presumptive duration of general term alimony." Holmes,
467 Mass. at 655.
                                                                      18


criteria showing marital agreement made with consent of parties

and not under duress).

    The long-standing policy of allowing divorcing parties to

enter into agreements that "may secure with finality the

parties' respective rights and obligations concerning the

division of marital assets, among other things," remains

unchanged under the act (citation omitted).      DeMarco, 89 Mass.

App. Ct. at 623.    See St. 2011, c. 124, § 4 (c) ("Under no

circumstances shall said sections 48 to 55, inclusive, of said

chapter 208 provide a right to seek or receive modification of

an existing alimony judgment in which the parties have agreed

that their alimony judgment is not modifiable, or in which the

parties have expressed their intention that their agreed alimony

provisions survive the judgment and therefore are not

modifiable").    As a result, the reasoning in Holmes does not

apply to this case, and the contracted terms of the 2014

stipulation are enforceable.     The husband must be credited with

thirty-seven months toward the durational limit of the general

term alimony award.

    3.      Property division.   The husband further contends that

the judge erred when she equated his interest in asset X to

stock options, and therefore when she divided equally with the

wife that interest on an "if, as, and when" received basis.      We

disagree.
                                                                      19


     Under G. L. c. 208, § 34, a judge has broad discretion to

divide the marital property equitably.     Brower v. Brower, 61

Mass. App. Ct. 216, 221 (2004).    "According [this] broad

discretion to the judge's division of property pursuant to the

§ 34 factors 'is necessary in order that the courts can handle

the myriad of different fact situations which surround divorces

and arrive at a fair financial settlement in each case.'"          Adams

v. Adams, 459 Mass. 361, 371 (2011), quoting Rice v. Rice, 372

Mass. 398, 401 (1977).    If the judge's conclusions are "apparent

and flow rationally" from the record, we must uphold the

division.     Williams v. Massa, 431 Mass. 619, 631 (2000).    "A

judgment may be vacated only where the award is plainly wrong

and excessive."    Id.

     The husband does not dispute that his interest in asset X

is a marital asset subject to distribution under § 34.        He

challenges the judge's equal division of all distributions, when

received, because, he claims, at the time of divorce there was

an "agreed-upon, ascertainable, value" of the husband's

interest.12    However, the judge found that the husband's interest

in asset X, which was in the management phase at the time of




     12The judge declined to permit the husband to "buy out" the
wife's share of the estimated value of asset X after the judge
determined that the husband's financial statement did not
support his claim that he was financially capable of doing so at
the time of trial.
                                                                   20


trial, was illiquid.   In addition, at that time, less than

seventy percent of the committed investment funds had been

"called," and seven of the ten companies comprising the initial

investment remained in the account; asset X was not due to close

until December 2019, or December 2021 if the potential

extensions were exercised.    As the judge found, the husband's

interest in asset X was tied inextricably to the portfolio

companies within that account.    Because, as the husband

testified at trial, there was no way to predict the

circumstances of any future sale of those companies, the timing

of any sale of those companies, or the profits or losses

resulting therefrom, the husband's interest in asset X could not

be determined until the various sales of the companies held by

the account were completed.   See Haskell v. Versyss Liquidating

Trust, 75 Mass. App. Ct. 120, 125 (2009) ("As valuation is a

question of fact, the judge's determination of value will stand,

unless clearly erroneous").

    We discern no error in the judge's determination that the

value of asset X was not ascertainable at the time of trial.

See Adams, 459 Mass. at 376, quoting Baccanti v. Morton, 434

Mass. 787, 796 (2001) ("we are unwilling to deny one spouse, who

contributed to the acquisition or appreciation of property

during the marital enterprise, the right to share in what may be

the most valuable asset between the spouses on the basis of the
                                                                    21


uncertainty or future contingencies bound up in that asset"

[quotations omitted]).   See also Canisius v. Morgenstern, 87

Mass. App. Ct. 759, 765 (2015), quoting Adams, supra at 379 n.14

("where a present valuation of [an asset] is uncertain or

impractical, the better practice is to order that any future

recovery or payment be divided, if and when received, according

to a formula fixed in the property assignment").

     4.   Custody of the children.   The husband finally argues

that an award of joint legal custody of the children was error

based on "overwhelming" evidence that the wife was unable to

communicate effectively with the husband as to issues relating

to the children.   He also claims that the custody award was

"entirely at odds" with the GALs' findings.

     In deciding the issues of custody and parenting time, the

best interests of the children are paramount.    See G. L. c. 208,

§ 31.   "The determination of which parent will promote a child's

best interests rests within the discretion of the judge."

Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v.

Merida, 428 Mass. 182, 191 (1998).    "[A] judge may consider any

factors found pertinent to those interests in the circumstances

of the dispute."   Custody of Zia, 50 Mass. App. Ct. 237, 243

(2000).   "The judge's findings in a custody case 'must stand

unless they are plainly wrong,' or 'clearly erroneous'"
                                                                   22


(citations omitted).    Loebel v. Loebel, 77 Mass. App. Ct. 740,

747 (2010).

     Here, the judge acknowledged that, historically, the

parties had had difficulty prioritizing the children's needs

above their own, but she also found that, eventually, they were

able to work out a flexible parenting plan.    The judge also

found disingenuous the husband's accusation that the wife

refused to communicate with him regarding the children in light

of his abuse prevention order and the later no contact order.

Finally, the recommendations in the GAL report, that the husband

have sole legal and physical custody of the minor children, were

permissibly rejected based on the judge's findings of

"troubling" conduct by the GALs in acting "outside of their

prescribed roles."

     While a judge may consider a GAL's recommendations, the

judge is required, as she did here, to draw her own conclusions

in deciding the case.    See Sagar v. Sagar, 57 Mass. App. Ct. 71,

79 (2003).    In particular, the judge found that, during the

marriage, the wife was the primary care provider for the

children, and that at the time of trial both of the minor

children wanted to live with her.13   Both children had




     13The judge also found troubling the husband's apparent
reason for involuntarily admitting the eldest child to a
psychiatric hospital; he alleged she was "out of control" and
                                                                    23


significant health issues, and when she was caring for them, the

wife diligently had employed both homeopathic and western

medicine options in providing for the children's health and

wellbeing.   Both children had significant food allergies and

sensitivities that the wife consistently took steps to mitigate

and to prevent allergic reactions.14   In addition, the judge

found credible the wife's testimony that the husband was

disinterested in learning how to use the "Epi Pen" prescribed

for the children due to their extensive food allergies.     After

careful review, we discern no error in the award of joint legal

custody, with final decision-making authority granted to the

wife for the children's medical needs.

     Conclusion.   So much of the judgment of divorce nisi, as

supplemented by the first and second supplemental judgments of

divorce dated November 15, 2017, as pertains to the duration of

the husband's alimony obligation is vacated, and the matter is

remanded for the entry of an amended judgment reflecting a

reduction in the duration of the husband's alimony obligation by




"out of touch[] with reality" because she wanted to live with
the wife.

     14Among other steps, the wife taught the children how to
read food labels and purchase food that would not trigger their
allergies. She also prepared and maintained "Remedy Bag[s]"
containing "homeopathic remedies, Epi Pens, an inhaler and
traditional first aid[] items."
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thirty-seven months.15   In all other respects, the judgment of

divorce nisi, as supplemented by the first and second

supplemental judgments of divorce dated November 15, 2017, is

affirmed.16

                                    So ordered.




     15On remand, the judge may consider that the amount of
temporary alimony, for which the husband received a credit for
purposes of the durational limits, is approximately one-half of
the amount of alimony the wife is receiving pursuant to the
divorce judgment. We express no opinion whether the amount of
alimony awarded after remand should or should not be adjusted as
a result of our determination that the 2014 stipulation of the
parties controlled.

     16The husband's request for appellate attorney's fees is
denied; the wife's request for appellate attorney's fees and
double costs is denied.
