Doktor v. Doktor (Lawyers Weekly No. 10-014-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11727 JOSEPH W. DOKTOR vs. DOROTHY A. DOKTOR. Berkshire. October 6, 2014. – January 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Divorce and Separation, Alimony, Modification of judgment, Separation agreement. Statute, Retroactive application. Complaint for divorce filed in the Berkshire Division of the Probate and Family Court Department on March 15, 1991. A complaint for modification, filed on June 21, 2013, was heard by Beth A. Crawford, J. The Supreme Judicial Court granted an application for direct appellate review. Peter C. Alessio for the husband. Janet H. Pumphrey for the wife. DUFFLY, J. Joseph W. Doktor and Dorothy A. Doktor were divorced by a judgment nisi that entered in January, 1992, after a marriage of over twenty years.[1] The judgment incorporated a separation agreement that, among other things, obligated Joseph to pay alimony to Dorothy in the weekly amount of $ 200 until “the death or remarriage of the Wife.” That provision merged with the judgment. In June, 2013, Joseph filed a complaint for modification in the Probate and Family Court, seeking termination of the alimony obligation under G. L. c. 208, § 49 (f), inserted by St. 2011, c. 124 (alimony reform act), which provides that “general term alimony orders shall terminate upon the payor attaining the full retirement age.” He asserted that he had retired, and was past the normal age of full retirement as defined by the alimony reform act. See G. L. c. 208, § 48. Thereafter, he filed an amended complaint for modification, asserting as a further change in circumstances that his former wife was no longer in need of alimony. Following a trial, a Probate and Family Court judge dismissed the complaint for modification, concluding that G. L. c. 208, § 49 (f) (retirement provision), applies prospectively, and therefore that Joseph was required to, but had not, established that there had been a material change in circumstances warranting modification. Joseph appealed, and we granted his petition for direct appellate review. This case again raises a question relative to retroactive application of the retirement provision of the alimony reform act to alimony agreements that merged with judgments of divorce entered prior to March 1, 2012, the effective date of the act. See Chin v. Merriot, ante at ; Rodman v. Rodman, […]
Rodman v. Rodman (Lawyers Weekly No. 10-013-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11726 GEORGE J. RODMAN vs. ROBERTA RODMAN. Norfolk. October 6, 2014. – January 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Divorce and Separation, Alimony, Modification of judgment, Separation agreement. Statute, Retroactive application. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on March 12, 2008. Following the filing of a complaint for modification on November 14, 2013, a question of law was reported by Gregory V. Roach, J. The Supreme Judicial Court granted an application for direct appellate review. David E. Cherny (Thomas D. Ritter with him) for the husband. Michael P. Doherty for the wife. DUFFLY, J. The former husband, George J. Rodman, brought a complaint for modification in the Probate and Family Court, seeking to terminate certain obligations to his former wife, Roberta Rodman, arising under a separation agreement the parties had entered into in connection with their divorce. The divorce judgment nisi, which entered in April, 2008, incorporated and merged into that judgment the provision at issue here, obligating George to pay alimony to Roberta in the amount of $ 1,539 per week.[1] During the pendency of the modification proceeding, George filed a motion seeking immediate termination of the alimony payments on the ground that he had reached “full retirement age” as defined by G. L. c. 208, § 48, which was enacted by St. 2011, c. 124 (alimony reform act or act). The motion asserted that the alimony reform act became effective March 1, 2012, and that George therefore was entitled to termination of the alimony order pursuant to G. L. c. 208, § 49 (f) (retirement provision), which provides that “general alimony orders shall terminate upon the payor attaining the full retirement age.” A Probate and Family Court judge denied the motion and then reported the following question to the Appeals Court: “Whether or not [G. L. c. 208, § 49 (f),] is to be applied retroactively to judgments entered before March 1, 2012.” We granted the plaintiff’s application for direct appellate review. The plaintiff presents an argument that differs somewhat from that in Chin v. Merriot, ante at (Chin), concerning whether, and in what circumstances, the retirement provision may be applied to modify an alimony judgment that was in existence when the alimony […]
Chin v. Merriot (Lawyers Weekly No. 10-012-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11715 CHESTER CHIN vs. EDITH E. MERRIOT.[1] Franklin. October 6, 2014. – January 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Divorce and Separation, Alimony, Modification of judgment, Separation agreement. Statute, Retroactive application. Complaint for divorce filed in the Franklin Division of the Probate and Family Court Department on January 11, 2011. A complaint for modification, filed on March 11, 2013, was heard by Beth A. Crawford, J. The Supreme Judicial Court granted an application for direct appellate review. William Sanford Durland, III, for Chester Chin. Leslie H. Powers for Edith E. Merriot. The following submitted briefs amicus curiae: Rachel B. Biscardi for Women’s Bar Association of Massachusetts. Richard M. Novitch, Maureen McBrien, & Charles P. Kindregan, pro se. David H. Lee & Holly A. Hinte, pro se. DUFFLY, J. After twelve years of marriage, Chester Chin and Edith E. Merriot were divorced by a judgment of divorce nisi in August, 2011. At the time of the divorce, Chin was sixty-seven years old and Merriot was sixty-nine. Pursuant to a merged provision of the parties’ separation agreement, Chin was obligated to pay alimony to Merriot in the amount of $ 650 per month until “the death of either party or the wife’s remarriage.” In March, 2013, Chin filed an amended complaint for modification in the Probate and Family Court in which he sought to terminate his alimony obligation. To support his claim for relief, Chin asserted as “changed circumstances” that he had attained the age of sixty-eight, “full retirement age” as defined by G. L. c. 208, § 48. He argued that, pursuant to G. L. c. 208, § 49 (f) (retirement provision), “general term alimony orders shall terminate upon the payor attaining the full retirement age.” Chin thereafter filed an amended complaint asserting, as a further change in circumstances, that Merriot had “been cohabiting with another person . . . and maintaining a common household” for more than three months; cohabitation alone is a basis for termination of alimony under G. L. c. 208, § 49 (d) (cohabitation provision). The retirement and cohabitation provisions on which Chin relies were enacted as part of the Alimony Reform Act of 2011, St. 2011, c. 124 (alimony reform act or act). The act was made effective as of March 1, […]
Bay Colony Railroad Corporation v. Town of Yarmouth, et al. (Lawyers Weekly No. 10-011-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11608 BAY COLONY RAILROAD CORPORATION vs. TOWN OF YARMOUTH & another.[1] Norfolk. October 7, 2014. – January 29, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Railroad. Solid Waste Management. Municipal Corporations, Contracts. Contract, Municipality, Performance and breach, Implied covenant of good faith and fair dealing. Federal Preemption. Statute, Federal preemption. Civil action commenced in the Superior Court Department on January 14, 2008. Motions for summary judgment were heard by John P. Connor, Jr., J.; the remaining issues were tried before him; and a motion for judgment notwithstanding the verdict was considered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph L. Tehan, Jr. (Jackie Cowin with him) for the defendant. Joel G. Beckman (Dana A. Zakarian with him) for the plaintiff. GANTS, C.J. On June 30, 1989, the town of Yarmouth (town) entered into a transportation contract (contract) with the Bay Colony Railroad Corporation (Bay Colony) whereby Bay Colony was to transport solid waste from the town’s waste transfer station to a waste-to-energy facility in Rochester (facility) operated by the SEMASS Partnership (SEMASS). At that time, Bay Colony operated several rail lines in southeastern Massachusetts, including rail lines between the town and Rochester, pursuant to a lease agreement with the Commonwealth. However, in the fall of 2007, the Commonwealth notified Bay Colony that, effective December 31, 2007, it would terminate Bay Colony’s lease of the Cape Cod rail lines, which meant that Bay Colony would no longer be able to transport the town’s waste to the facility by rail. Section 9 of the contract provided that, in the event the Commonwealth terminated Bay Colony’s lease of the rail line, the town agreed to permit Bay Colony either to assign the contract to the railroad company that was awarded the lease of the rail line or to continue to transport the waste “pursuant to the terms of the [contract] either under an arrangement with a successor operator or by other modes of transportation.” Bay Colony notified the town by letter that, in accordance with the provisions of section 9, it intended to continue to transport waste under the contract “by other modes of transportation,” specifically, by truck rather than rail. The town, however, replied by […]
The First Marblehead Corporation, et al. v. Commissioner of Revenue (Lawyers Weekly No. 10-010-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11609 THE FIRST MARBLEHEAD CORPORATION & another[1] vs. COMMISSIONER OF REVENUE. Suffolk. October 7, 2014. – January 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Financial Institution. Taxation, Excise, Apportionment of tax burden. Constitutional Law, Taxation. Notice, Tax taking. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John S. Brown (Donald-Bruce Abrams with him) for the taxpayer. Brett M. Goldberg (Daniel J. Hammond, Assistant Attorney General, with him) for Commissioner of Revenue. Helen Hecht, Bruce Fort, Sheldon Laskin, & Lila Disque, of the District of Columbia, for Multistate Tax Commission, amicus curiae, submitted a brief. BOTSFORD, J. The taxpayers appeal from a decision of the Appellate Tax Board (board) issued pursuant to G. L. c. 58A, § 7, and G. L. c. 62C, § 39 (c); their focus is on the financial institution excise tax (FIET) liability of the taxpayer GATE Holdings, Inc. (Gate), that was at all relevant times a wholly owned subsidiary of the taxpayer The First Marblehead Corporation (FMC).[2] In its decision, the board accepted Gate’s position that it qualified as a “financial institution” under G. L. c. 63, § 1, and was entitled to apportion its income pursuant to G. L. c. 63, § 2A (§ 2A). The board, however, disagreed with Gate that in applying the apportionment rules of § 2A, all of Gate’s taxable property, which consisted of securitized student loans, should be assigned to States outside the Commonwealth. Rather, the board determined that all such property was properly assigned to Massachusetts, resulting in a greater FIET liability than Gate had calculated. We affirm the board’s decision.[3] Facts.[4] At issue here are the tax years ending June 30, 2004; June 30, 2005; and June 30, 2006 (tax years at issue). FMC was a publicly traded Delaware corporation with its principal offices in Boston, and during the tax years at issue was the principal tax-reporting corporation for itself, Gate, and a number of other subsidiaries. FMC was involved in the growing industry facilitating private loans to students seeking to finance the cost of their postsecondary education.FMC did not make any loans directly to student borrowers, but rather brought together various parties involved in lending, including postsecondary schools, banks that issued loans […]
Categories: News Tags: 1001015, Commissioner, Corporation, First, Lawyers, Marblehead, Revenue, Weekly
Commonwealth v. Fujita (Lawyers Weekly No. 10-009-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11578 COMMONWEALTH vs. NATHANIEL FUJITA. Middlesex. May 6, 2014. – January 27, 2015. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Constitutional Law, Jury, Public right, Access to court proceedings. Jury and Jurors. Practice, Criminal, Jury and jurors, Record. Impoundment. Supreme Judicial Court, Superintendence of inferior courts. Indictments found and returned in the Superior Court Department on August 4, 2011. Following entry of an order on a posttrial motion for access to the jury list by Peter M. Lauriat, J., review of the order was sought by a nonparty from a single justice of the Appeals Court. The matter was reported to a panel of the Appeals Court by Mark V. Green, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jonathan M. Albano for Globe Newspaper Company, Inc. Eva M. Badway, Assistant Attorney General, for the Attorney General, intervener. CORDY, J. This appeal arises out of a Superior Court judge’s ruling on a motion by the Globe Newspaper Company, Inc. (Globe), seeking postverdict access to the “jury list” containing the names and addresses of the jurors who served at the trial of Nathaniel Fujita on charges of murder in the first degree and assault and battery by means of a dangerous weapon. The trial began on February 11, 2013. On March 1, while the trial was ongoing, the Globe filed its motion to obtain the names and addresses of the jurors immediately following entry of the verdict, for the purpose of ascertaining their willingness to discuss the trial.[2] On March 7, 2013, the jury returned verdicts of guilty. Seven days later, the trial judge held a hearing on the Globe’s motion. On March 26, he ruled that he would send letters to the jury asking if they were “amenable” to speaking to the press, and would permit disclosure only of the names and addresses of those jurors who responded affirmatively to his letter. On April 16, 2013, presumably at the judge’s direction, the Superior Court clerk’s office provided the Globe with the names and addresses of two jurors willing to speak to the press, along with instructions that the Globe was to “use this information only for the purpose stated in [its] motion” and “not to disseminate this juror […]
Commonwealth v. Russell (Lawyers Weekly No. 10-008-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11602 COMMONWEALTH vs. GERALD RUSSELL. Essex. November 3, 2014. – January 26, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Reasonable Doubt. Practice, Criminal, Reasonable doubt, Instructions to jury, Lesser included offense. Supreme Judicial Court, Superintendence of inferior courts. Rape. Indecent Assault and Battery. Indictments found and returned in the Superior Court Department on September 18, 1990. The cases were tried before Richard E. Welch, III, J. The Supreme Judicial Court granted an application for direct appellate review. Eric S. Brandt, Committee for Public Counsel Services, for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Alex G. Philipson, amicus curiae, submitted a brief. Bruce Ferg, amicus curiae, submitted a brief. CORDY, J. “Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined.” Commonwealth v. Webster, 5 Cush. 295, 320 (1850). So begins the venerable Webster charge on reasonable doubt. The Webster charge informs the jury that a reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge” (emphasis supplied). Id. For more than 150 years, this charge has delivered the preferred language for explaining reasonable doubt to jurors sitting on criminal trials in the Commonwealth. Yet, it has never been required and, in this case, it was eschewed in favor of an instruction that permitted a conviction if the jury were “firmly convinced” of the defendant’s guilt. The defendant was acquitted on eighteen counts of statutory rape, but convicted on seven counts of the lesser included offense of indecent assault and battery on a child under the age of fourteen. He appeals his convictions on grounds that the charge on reasonable doubt was constitutionally inadequate and that the lesser included offenses should not have been submitted to the jury. With respect to the former, he argues that, even if the charge was constitutionally sound, we should exercise our general superintendence power to require the Webster charge in all criminal trials. We granted the defendant’s application for direct appellate review and now conclude that the judge’s instruction on reasonable doubt passed constitutional muster and that there was no error in the submission of the lesser included offenses to the jury. Nonetheless, we […]
Commonwealth v. Strickland (Lawyers Weekly No. 11-009-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 10-P-666 Appeals Court COMMONWEALTH vs. JASON STRICKLAND. No. 10-P-666. Hampden. September 8, 2014. – January 23, 2015. Present: Berry, Kafker, & Maldonado, JJ. Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Evidence, Medical record, Relevancy and materiality, Third-party culprit, Impeachment of credibility, Prior misconduct, Expert opinion. Minor, Medical treatment. Witness, Impeachment, Expert. Practice, Criminal, Assistance of counsel. Dangerous Weapon. Indictments found and returned in the Superior Court Department on July 24, 2006. The cases were tried before Judd J. Carhart, J., and a motion for a new trial was considered by Bertha D. Josephson. Michael J. Fellows & Myles D. Jacobson for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. KAFKER, J. When eleven year old Haleigh Poutre arrived at the hospital on September 11, 2005, she was unconscious and barely breathing, her pale, emaciated body was covered in bruises and huge burns, and the back of her head was swollen, lacerated, and bleeding. Her horrible injuries had been inflicted in her own home, where she lived with her mother Holli Strickland[1] and stepfather, the defendant. After a trial in Superior Court, a jury convicted the defendant of (1) wantonly or recklessly permitting, or wantonly or recklessly permitting another to commit an assault and battery causing, substantial bodily injury to Haleigh on or about September 10, 2005 (head injury); (2) wantonly or recklessly permitting, or wantonly or recklessly permitting another to commit an assault and battery causing, bodily injury to Haleigh on or before September 11, 2005 (multiple injuries of various ages);[2] (3) assault and battery by means of a dangerous weapon (bat); (4) assault and battery by means of a dangerous weapon (wand or stick or tube); and (5) assault and battery. The jury acquitted the defendant of one count of assault and battery by means of a dangerous weapon (shod foot). On appeal from his convictions and from the denial of his new trial motion, the defendant argues that (1) the trial judge improperly excluded medical evidence from Haleigh’s pediatrician and nurse with respect to the second, multiple injury count; (2) the wand that the defendant used to hit Haleigh was not a dangerous weapon; (3) the head injury conviction may have been based on a theory not supported in the […]
Categories: News Tags: 1100915, Commonwealth, Lawyers, Strickland, Weekly
Commonwealth v. Ubeira-Gonzalez (Lawyers Weekly No. 11-008-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1735 Appeals Court COMMONWEALTH vs. FRANCISCO L. UBEIRA-GONZALEZ. No. 13-P-1735. Hampden. October 2, 2014. – January 22, 2015. Present: Grasso, Kantrowitz, & Meade, JJ. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea. Evidence, Guilty plea. Practice, Criminal, Plea, Conduct of government agents, Assistance of counsel. Complaints received and sworn to in the Holyoke Division of the District Court Department on October 19 and November 4, 2009. Motions for a new trial, filed on March 27, 2013, were heard by Philip A. Beattie, J. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. Daniel J. Ciccariello for the defendant. MEADE, J. In 2010, the defendant pleaded guilty to several crimes, including possession of a class A controlled substance with the intent to distribute.[1] In 2012, the defendant was charged in Federal court with distribution of a controlled substance. Following his arraignment in Federal court, the defendant moved to withdraw his 2010 guilty pleas to his State convictions. The defendant’s motions were based on alleged misconduct by an assistant analyst at the State laboratory in Amherst (Amherst laboratory). Without conducting an evidentiary hearing or making findings, the motion judge (who was also the plea judge) allowed the defendant’s motions. The Commonwealth appeals and claims the judge erred by allowing the motions. We agree and reverse. 1. Background. a. Procedural history. In October of 2009, the defendant was charged with possession of a class A controlled substance (October case). Less than one month later, in November of 2009, the defendant was again charged with possession of a class A controlled substance, possession with intent to distribute a class A controlled substance, resisting arrest, and assault and battery on a police officer (November case). In February of 2010, the defendant pleaded guilty to the above charges, except for the possession of a class A controlled substance charge in the November case, which the Commonwealth dismissed. In May of 2012, the defendant was charged in the United States District Court for the District of Massachusetts with distribution of a controlled substance. In March of 2013, the defendant moved to withdraw his guilty pleas in the October and November cases. In his affidavits in support of the motions, the defendant claimed that his guilty pleas were not made intelligently […]
Categories: News Tags: 1100815, Commonwealth, Lawyers, UbeiraGonzalez, Weekly
Kelcourse v. Kelcourse (Lawyers Weekly No. 11-007-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1741 Appeals Court REBECCA KELCOURSE vs. LAWRENCE KELCOURSE. No. 13-P-1741. Essex. October 6, 2014. – January 21, 2015. Present: Graham, Brown, & Sullivan, JJ. Husband and Wife, Antenuptial agreement. Contract, Antenuptial agreement. Divorce and Separation, Division of property. Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on August 20, 2010. The case was heard by Amy L. Blake, J. William M. Driscoll for the husband. Joel Rosen for the wife. BROWN, J. This is an appeal by the husband from an amended judgment of divorce nisi. The central question on the appeal is whether the antenuptial agreement between the parties was enforceable. In addition, the husband claims the judge abused her discretion by awarding the wife $ 400,000 as, essentially, the principal residence substitute. In the circumstances presented here, we are called upon to explore the underlying rationale of the so-called “second look” as specifically explicated in DeMatteo v. DeMatteo, 436 Mass. 18, 37-38 (2002). See Austin v. Austin, 445 Mass. 601, 607 (2005). Upon review of the briefs and record appendix, we discern nothing inconsistent with the so-called “second look” teachings of DeMatteo v. DeMatteo, supra, nor do we think the Probate and Family Court judge abused her discretion or otherwise committed an error of law. 1. Background. The husband and the wife were married on July 6, 1991. At the time of the marriage, the husband was in his forties and owned and operated a business, Larry’s Marina, Inc.; the wife was in her mid-twenties, pregnant with the parties’ second child and a homemaker. Prior to the marriage, the parties lived together for five years in a residence located at the marina. The marina residence contained three bedrooms and was situated on the water. This was the husband’s second marriage and the wife’s first. The husband’s first marriage ended by divorce. In mid-1990, the husband informed the wife that he wanted to execute an antenuptial agreement to protect his existing assets. In the spring of 1991, the husband notified the wife that he no longer wanted to live at the marina; the parties moved to Amesbury and rented a residence there. The husband promised the wife that the rental would be temporary. The parties executed the antenuptial agreement on July […]