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16-P-106                                               Appeals Court

                  JOHANNE FAZIO   vs.   KEITH FAZIO.


                           No. 16-P-106.

      Plymouth.      November 7, 2016. - February 24, 2017.

            Present:    Cypher, Massing, & Sacks, JJ.


Federal Servicemembers Civil Relief Act. Practice, Civil, Stay
     of proceedings. Parent and Child, Child support. Divorce
     and Separation, Child support, Division of property.


     Complaint for divorce filed in the Plymouth Division of the
Probate and Family Court Department on November 17, 2006.

    The case was heard by Catherine P. Sabaitis, J.


    David P. Sorrenti for the husband.
    Leonard F. Zandrow, Jr., for the wife.


    MASSING, J.    In this appeal from an amended judgment of

divorce nisi, Keith Fazio (husband), a major in the Army

National Guard who repeatedly saw active duty over the course of

the divorce proceedings, contends that the Probate and Family

Court judge violated the Federal Servicemembers Civil Relief
                                                                    2


Act, 50 U.S.C. app. §§ 501 et seq. (2006) (SCRA),1 by issuing

certain temporary orders in his absence.    He also claims that

the judge abused her discretion by disproportionately allocating

marital assets to Johanne Fazio (wife).    Although we conclude

that the husband's request for a stay did not satisfy the SCRA

requirements, the temporary orders nonetheless failed to comply

with the applicable provisions of the Massachusetts child

support guidelines (guidelines), and we remand the case for

further proceedings regarding the subject matter of these

orders.   We discern no abuse of discretion in the allocation of

the marital estate.

     Background.   The husband and the wife married in 1992, had

three daughters together, and permanently separated in late

2006, when this divorce action was filed.    The husband was a

commissioned officer of the Army National Guard, eventually

rising to the rank of major.   He was deployed to active duty six

times between 2003 and 2012.   Recognizing that the husband's

military service was "selfless and honorable," the judge found

that his frequent long-term deployments were "a major factor in

the deterioration of the family and the marriage."

     1
       The Office of the Law Revision Counsel of the United
States House of Representatives has eliminated the Appendix to
title 50 of the United States Code and has editorially
reorganized its provisions. The SCRA is now found in the online
version of the United States Code at 50 U.S.C. §§ 3901 et seq.
The reorganization of the printed version is planned to be
effective with supplement III to the 2012 edition.
                                                                    3


    The wife was the primary caretaker of the children, who all

lived with her since the separation.   She also was their sole

caregiver when the husband was on active duty status.    Although

both parties contributed to the purchase and the maintenance of

the marital home, the wife assumed financial responsibility for

the home after the separation.   The judge found that the parties

enjoyed a middle-income life-style during the marriage, but that

their station in life was "more modest" by the time of trial,

which was held in April and May of 2013.   The judge explained

that it took six and one-half years to bring the case to trial

in part because of the husband's unavailability, further delayed

and complicated by difficulties in obtaining and verifying his

financial information, as well as the parties' inability to

cooperate with each other.

    The amended judgment of divorce nisi gave sole legal and

physical custody of the children to the wife, obligated the

husband to pay $397 per week in child support, and otherwise

divided the child-related expenses in a manner acceptable to

both parties.   No alimony payments were ordered.2   The judge

allocated the marital home (with an equity value of $352,137 at

the time of trial) to the wife and the husband's townhouse

    2
       The judge found that "[t]he parties' educational levels
and ability to earn income are reasonably equivalent, with a
slight advantage to Husband, as demonstrated by his historical
earnings."
                                                                    4


(equity value $32,000 at the time of trial) to the husband.       The

parties each kept their own home furnishings, personal property,

and bank and retirement accounts, with two exceptions:    the

judge ordered the wife to convey thirty percent of the value of

her largest retirement account3 to the husband, and ordered the

husband to convey fifty percent "of the gross amount of his

military pension" to the wife.

     As a result, the wife received approximately two-thirds of

the marital assets.4   The judge explained that the property

division was based on "the parties' respective monetary and non-

monetary contributions to the marital estate, as well as their

respective efforts to preserve the marital estate."    Although

their "contributions" to the estate were "reasonably

equivalent," the judge found that the wife "played a far more

significant role in the preservation of the estate by her

management of the family's income and assets during Husband's

absence."




     3
       As discussed infra, the husband disputes how the judge
valued this account.
     4
       This percentage is only approximate because it does not
include the value of the husband's military pension in the
estate, nor account for its allocation between the parties. The
judge found that it was not possible to calculate the dollar
value of the husband's retirement points accumulated during the
marriage.
                                                                     5


     Discussion.   1.   Request for stay under SCRA.   The husband

contends that the judge violated the SCRA5 by denying his request

for a stay, holding a hearing, and issuing orders in his

absence.6,7




     5
       The Massachusetts Soldiers' and Sailors' Civil Relief Act,
St. 1943, c. 57, has no application in divorce or child custody
matters; it applies only in the context of mortgage
foreclosures. See HSBC Bank USA, N.A. v. Matt, 464 Mass. 193,
195 n.3 (2013).
     6
       The husband's SCRA claim concerns the pretrial hearings
held on March 21, 2007; September 3, 2008; and October 7, 2010.
We address only the October 7, 2010, hearing. He did not
request a SCRA stay of either the March 21, 2007, or the
September 3, 2008, hearing. Moreover, he was represented by
counsel at the March 21, 2007, hearing, and the husband's
contentions with respect to the September 3, 2008, hearing,
described in a single paragraph of the facts section of his
brief, and mentioned only in the title of the relevant argument
section, do not rise to the level of appellate argument. See
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Cameron
v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).
     7
       The husband timely filed a notice of appeal from the
amended judgment of divorce nisi dated July 16, 2014, which
incorporated the judge's temporary order from the October 7,
2010, hearing. The notice of appeal did not specify that he was
also appealing from the interlocutory order of March 21, 2007,
discussed infra. See Mass.R.A.P. 3(c), as appearing in 430
Mass. 1602 (1999) (notice of appeal "shall, in civil cases,
designate the judgment, decree, adjudication, order, or part
thereof appealed from"). The wife, however, briefed the case as
if the husband had properly appealed from both the amended
judgment and the interlocutory orders, and she has not claimed
that she was misled by the notice of appeal. Accordingly, we
proceed as if the notice of appeal were sufficient. See Carter
v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 117 n.3 (1978);
Palriwala v. Palriwala Corp., 64 Mass. App. Ct. 663, 667-669
(2005).
                                                                      6


     Under the SCRA, a person in military service is entitled to

a continuance in "any civil action or proceeding, including any

child custody proceeding," 50 U.S.C. app. § 522(a) (2006 & Supp.

IV 2011)8 upon a showing that military service prevents the

person from appearing in court.    "While the act does not

arbitrarily stay all trials, it should be liberally construed so

as to protect the civil rights of those serving in our armed

forces during the tenure of their service."      State v. Wilson,

234 Minn. 570, 572 (1951).

     The husband sought a stay of the October 7, 2010, hearing

by sending a letter by facsimile to the Probate and Family Court

on the afternoon of October 6.    The letter, written by the

husband's commanding officer,9 stated that the husband's unit

"will be conducting pre-deployment training from 1 October

through 28 November 2010 in preparation for our mobilization

which will occur on 29 November 2010."    The commanding officer

stated that the deployment would last approximately one year and

"request[ed] that court hearings be postponed due to the


     8
         To be renumbered as 50 U.S.C. § 3932.   See note 1, supra.
     9
       The letter, signed by "Gerard D. Walsh, MAJ, IN,
Commanding," is written on United States Department of the Army
stationery from an Army reserve center in Warwick, Rhode Island.
Major Walsh states in the letter that the husband is "a member
of the Army Reserve unit that [he] command[s]." We reject the
wife's contention that Major Walsh must have misrepresented his
status as commanding officer because the husband also had
attained the rank of major.
                                                                   7


[husband's] inability to defend his interests, in accordance

with the stipulations of the Servicemembers' Civil Relief Act."

     The judge, who in early 2009 had entered an SCRA stay until

the husband's return from a tour of duty in Iraq, and also had

appointed "military counsel" to represent him, expressed

frustration at the last-minute request for another continuance.

She declined to stay the proceedings and entered an order, at

the wife's request, requiring the husband's basic allowance for

housing (BAH) to be deposited in the wife's checking account.10

     The SCRA provides for a mandatory11 stay of at least ninety

days upon a proper request by a qualifying servicemember.   See

50 U.S.C. app. § 522(b)(1) (2006) ("the court may on its own

motion and shall, upon application by the servicemember, stay

the action for a period of not less than 90 days, if the

conditions in paragraph [2] are met").   To make a proper

request, the servicemember must set forth the factual basis for

the request -- that is, "the manner in which current military

     10
       The judge also, sua sponte, gave the wife sole legal and
physical custody of the couple's three children during the
husband's deployment.
     11
       Prior to the 2003 amendments, the Federal statute, then
known as the Soldiers' and Sailors' Civil Relief Act of 1940,
gave judges the discretion to determine whether military service
materially affected a servicemember's ability to litigate the
case. 50 U.S.C. app. § 521 (2000). As amended, the SCRA
provides for automatic stays, but requires the servicemember to
justify the stay with specific information and to inform the
court when the case might proceed. See, e.g., Hernandez v.
Hernandez, 169 Md. App. 679, 690 n.3 (Md. Ct. Spec. App. 2006).
                                                                     8


duty requirements materially affect the servicemember's ability

to appear" -- and the date the servicemember will next be

available.    50 U.S.C. app. § 522(b)(2)(A) (2006).   In addition,

the request must include the commanding officer's statement

"that the servicemember's current military duty prevents

appearance and that military leave is not authorized for the

servicemember at the time of the letter."     50 U.S.C. app.

§ 522(b)(2)(B) (2006).12


     12
       The relevant provision, in its entirety, reads as
follows:

     "(b) Stay of proceedings.

             "(1) Authority for stay. At any stage before final
             judgment in a civil action or proceeding in which a
             servicemember described in subsection (a) is a party,
             the court may on its own motion and shall, upon
             application by the servicemember, stay the action for
             a period of not less than 90 days, if the conditions
             in paragraph (2) are met.

             "(2) Conditions for stay. An application for a stay
             under paragraph (1) shall include the following:

                 "(A) A letter or other communication setting
                 forth facts stating the manner in which current
                 military duty requirements materially affect the
                 servicemember's ability to appear and stating a
                 date when the servicemember will be available to
                 appear.

                 "(B) A letter or other communication from the
                 servicemember's commanding officer stating that
                 the servicemember's current military duty
                 prevents appearance and that military leave is
                 not authorized for the servicemember at the time
                 of the letter."
                                                                    9


    Whether the request is adequate under the SCRA is a

question of law, subject to de novo review on appeal.   See

Matter of Marriage of Bradley, 282 Kan. 1, 5 (2006).    We detect

no error in the judge's denial of the stay.   The commanding

officer's communication provided no details about the husband's

predeployment training and did not explain how the requirements

of the training mission prevented the husband from taking part

of one day to attend a court hearing.   Nor did the commanding

officer state that the husband could not obtain leave to appear

at the hearing at any time during the two months prior to

mobilization.   See id. at 5-6 (denial of request for SCRA stay

of child custody hearing affirmed where servicemember's request

did not state when he would be available to appear and lacked

statement from commanding officer establishing requisites of

SCRA); King v. Irvin, 273 Ga. App. 64, 67 (2005) (request for

stay of personal injury case denied where request did not

include necessary information under SCRA).    Although the judge,

in her discretion, could have allowed the stay notwithstanding

the incomplete request, she did not abuse her discretion in

denying a stay of the October 7, 2010, hearing.




50 U.S.C. app. § 522 (2006).
                                                                   10


     2.   Review of temporary orders.13   The husband challenges

the temporary order entered on March 21, 2007, raising his child

support payment obligation from $450 to $1,000 per week,14 and

the order entered on October 7, 2010, requiring the husband's

total BAH to be transferred directly from his military paycheck

into the wife's checking account.15   Both orders are problematic.

     The judge clearly possessed the power to issue temporary

child support orders during the pendency of the divorce action.

See G. L. c. 208, § 19; Diver v. Diver, 402 Mass. 599, 602

(1988).   "The method for calculating and modifying child support

     13
       In general, temporary orders are interlocutory and not
immediately reviewable. See McDonnell v. McDonnell, 39 Mass.
App. Ct. 932, 932-933 (1995) ("The case falls within the general
rule that the correctness of an interlocutory order will not be
reviewed on appeal before a final judgment has been entered").
See also Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979) ("A
party need not claim an appeal from an interlocutory order to
preserve his right to have such order reviewed upon appeal from
the final judgment"); Borman v. Borman, 378 Mass. 775, 779-780
(1979) (appeal from interlocutory order of probate judge under
G. L. c. 215, § 9, lies dormant until appeal from final
judgment); Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 403 (1980)
(husband's appeal from increase in amount of temporary support
order premature; assembly of record vacated, "leaving the claim
of appeal intact for consideration, if necessary," upon final
judgment).
     14
       This order remained in effect until April 17, 2008, when
the child support obligation was reduced back to $450 upon the
husband's return from active duty.
     15
       The judge found that between the date of the latter order
(October 7, 2010) and the date of trial, "the sum of $29,227.08
was garnished from Husband's paycheck." In the property
division, the judge allowed the wife to deduct from the funds to
be transferred to the husband an amount equaling "fourteen
month[s] of BAH payments at the rate of $2,379 per month."
                                                                    11


orders is governed by statute and the guidelines."     Morales v.

Morales, 464 Mass. 507, 509-510 (2013).     The guidelines "are

formulated to be used . . . in setting temporary, permanent or

final orders for current child support."     Massachusetts Child

Support Guidelines, preamble (2006).

     Under G. L. c. 119A, § 13(c), a rebuttable presumption

exists that a child support order resulting from application of

the guidelines is appropriate.     A judge may deviate from the

guidelines calculation, "provided the judge makes written

findings specifying that 'the guidelines amount' would be unjust

or inappropriate, that departure from the guidelines is

justified by the facts of the case, and that departure is

consistent with the child's best interests."     Morales, supra at

510 n.6, citing G. L. c. 119A, § 13(c), and Massachusetts Child

Support Guidelines, IV (2009).16

     The judge allowed the wife's motion for a modification of

the husband's child support obligation at the March 21, 2007,

     16
       The guidelines effective February 15, 2006, also require
"[a] specific, written finding that the guidelines would be
unjust or inappropriate and that the best interests of the child
have been considered" in all cases of deviation from the
guidelines calculation. Massachusetts Child Support Guidelines,
preamble (2006). See Report of the Child Support Guidelines
Task Force 17 (Oct. 2008), available at
http://www.mass.gov/courts/docs/child-support/task-force-
report.pdf [http://perma.cc/G3K3-6LYD] (2006 guidelines
"clarified that the Court must make written findings for all
orders that provide an amount different than the presumptive
payment under the guidelines").
                                                                   12


hearing based on the fact that the husband's salary had

increased and his personal expenses decreased, as a result of

his active duty.   The wife argued that "it isn't a guideline

situation because it's so unusual."   The judge issued an order

of $1,000 per week, which plainly exceeded the presumptive

payment from the 2006 guidelines.17   Yet "[t]he judge made no

finding that the application of the guidelines would be unjust

or inappropriate in this case."   Fleming v. Fleming, 62 Mass.

App. Ct. 103, 107-108 (2004).   Accordingly, the temporary child

support order constituted an abuse of discretion.18   See Wasson

v. Wasson, 81 Mass. App. Ct. 574, 579 (2012).

     As noted, a hearing was scheduled for October 7, 2010,

regarding the wife's motion for further temporary orders.     When

the husband did not appear, but instead sent an eleventh-hour

facsimile requesting a stay, the tenor of the hearing changed.

     17
       The parties have not provided us with the documents
concerning the husband's salary on which they and the judge
relied at the hearing; however, based on the information
available to us, if we indulge all inferences about the parties'
gross income and expenses in favor of the wife -- including
considering all of the BAH as income -- our calculation of the
guidelines amount results in a weekly payment of no more than
$700.
     18
       Because the guidelines and case law require findings, and
the necessary findings were not made, we cannot assume from a
silent record that the judge considered all the required
factors. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014) (judge's discretionary decision constitutes abuse of
discretion where she made clear error of judgment in weighing
relevant factors such that decision falls outside range of
reasonable alternatives).
                                                                   13


Rather than press the wife's request for the specific relief in

the temporary order, counsel targeted the husband's BAH and

suggested that "the only way we're going to be able to force

[the husband] to appear in this court is to give [the wife] an

order where she can have that basic allowance [of] housing," and

that such an order "will get his attention."    Although the judge

did express respect for the husband's service, she nonetheless

allowed the wife's request for an order directing the BAH to be

paid directly from his paycheck to her.

    In the absence of findings to justify this action,

garnishment of the entire BAH was an abuse of discretion.     To be

sure, the guidelines define income broadly.    See, e.g., Zaleski

v. Zaleski, 469 Mass. 230, 243 n.20 (2014); Whelan v. Whelan, 74

Mass. App. Ct. 616, 625 (2009).   Indeed, the guidelines in

effect as of the date of this hearing specifically included

"military pay, allowances and allotments."    Massachusetts Child

Support Guidelines, I.A.10 (2009).   Accordingly, the judge would

have been warranted in modifying the husband's child support

obligation by increasing his income to account for his BAH and

determining the new guidelines amount.    See Morales, 464 Mass.

at 511; Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 8 (2016).
                                                                    14


However, nothing apparent on the record justifies the action

taken here.19

     3.   Asset distribution.   In dividing the marital assets in

the judgment of divorce nisi, the judge valued the assets as of

the time of trial.   However, the judgment was silent regarding

whether the wife's largest retirement account -- thirty percent

of which she was directed to convey to the husband -- was to be

valued as of the date of separation or the date of trial.20    The

wife subsequently filed a motion for relief from judgment, in


     19
       In their briefs, the parties argue whether the BAH is
intended for the husband's expenses or for those of his family
members. This issue was not developed at trial. The judge
simply noted in her rationale the husband's argument that
"approximately 80% of that sum was meant for his own support,"
but that she was "not inclined to retroactively modify that 3-
year-old order, and thus, Husband is responsible for payment of
same." On remand, the judge is free to consider the parties'
arguments and to resolve the issues accordingly -- but must
provide a written explanation to exceed the guidelines.

     In addition, the judge noted that $29,227.08 was garnished
from the husband's paycheck after the October 7, 2010, order.
In ordering the wife to convey thirty percent of her retirement
account to the husband, she allowed the wife to deduct "fourteen
month[s] of BAH payments at the rate of $2,379 per month." Not
only did the judge erroneously allocate the entire BAH to the
wife, it is possible that this amount was allocated to the wife
twice. On remand the judge should clarify the amount of BAH
payments the wife already received and whether the husband is
entitled to any reimbursement.
     20
       In her findings of fact, the judge noted that the wife's
retirement account "was valued at $453,509 as of 2006 (the date
of separation)" and "was valued at $623,416.69 as of the time of
trial." The judgment, however, stated only that the "Wife shall
convey to Husband a sum equal to 30% . . . of her 401(k)
account," without specifying the valuation date.
                                                                    15


which she called this ambiguity to the judge's attention.     The

wife argued that the account should be valued as of the date of

separation because she was the sole contributor to the account,

she was solely responsible for maintenance of the household

postseparation, and the delay in adjudication of the divorce was

attributable to the husband.    The husband did not file an

opposition or request a hearing.   The judge then ordered the

entry of an amended judgment specifying that the account should

be valued as of "the time that this Complaint was filed."

    The husband argues that the judge erred in valuing the

wife's retirement account -- and only that account -- as of the

date of separation rather than the time of trial.    As a result

of the order, approximately $170,000 was effectively awarded to

the wife.   Because the husband was entitled to thirty percent of

the value of this account, the effect of the amended judgment

was to deprive him of approximately $51,000.

    Although "the marital estate is typically determined as of

the date of the divorce trial," Moriarty v. Stone, 41 Mass. App.

Ct. 151, 154 (1996), the trial judge has the discretion to

choose another date when warranted by the circumstances and the

relevant factors set forth in G. L. c. 208, § 34.    See Savides

v. Savides, 400 Mass. 250, 252-253 (1987); Caffyn v. Caffyn, 70

Mass. App. Ct. 37, 43 (2007).    "The trial judge has a certain

flexibility in determining the exact date at which assets must
                                                                  16


be considered and valued."   Child v. Child, 58 Mass. App. Ct.

76, 79 (2003).

    Here, although the judge did not provide a revised

rationale for the amended judgment, her action clearly implied

that she accepted the wife's reasoning, which was consistent

with the judge's prior findings and rationale that "[a]ll

contributions to this account were made by Wife," that the wife

"played a far more significant role" in the preservation of the

estate after the separation, and that the case would have been

resolved sooner if the husband had been available.   See G. L.

c. 208, § 34, as appearing in St. 1989, c. 287, § 59 ("The court

may also consider the contribution of each of the parties in the

acquisition, preservation or appreciation in value of their

respective estates and the contribution of each of the parties

as a homemaker to the family unit").   The judge did not abuse

her discretion in valuing the account as of the time of

separation.   See Savides, supra at 253 ("In considering the

increase in value of property after separation, it was not error

for the judge to exclude the wife's participation in that

increase where she made no contribution to the marriage after

that time and the increase in value was solely attributable to

the husband's efforts").

    Finally, the husband generally challenges the judge's asset

distribution, which the parties agree resulted in an allocation
                                                                   17


of approximately two-thirds of the marital estate to the wife

and one-third to the husband.   We review the judge's findings to

determine whether she considered all the relevant factors under

§ 34 and did not rely on any irrelevant factors.   See Redding v.

Redding, 398 Mass. 102, 107 (1986); Zaleski, 469 Mass. at 245.

"We then determine whether the reasons for [her] conclusions are

'apparent and flow rationally' from [her] findings and rulings."

Baccanti v. Morton, 434 Mass. 787, 790 (2001) (citation

omitted).   "We will not reverse a judgment with respect to

property division unless it is 'plainly wrong and excessive.'"

Zaleski, supra (citation omitted).   As noted, the judge found

that the parties contributed equally to creation of the marital

estate prior to separation, but that the wife "played a far more

significant role in the preservation of the estate" after the

separation.   The judge's subsidiary findings, which the husband

does not challenge, support her rationale.   Reversal of the

property division is not warranted.21

     Conclusion.   We vacate so much of the amended judgment as

incorporates the temporary orders requiring the husband to pay

$1,000 in weekly child support from March 21, 2007, to April 17,

2008, and his entire BAH to the wife starting in October, 2010.


     21
       We note that the percentage of the marital estate that
the husband receives is likely to increase if adjusted after
remand to account for his overpayment of child support and the
BAH.
                                                                  18


We remand the matter to provide the judge an opportunity either

to make findings to explain her deviations from the guidelines

or to further amend the amended judgment to comply with the

guidelines.   See Murphy v. Murphy, 82 Mass. App. Ct. 186, 195

(2012).   In all other respects, the amended judgment is

affirmed.

                                    So ordered.
