Pfannenstiehl v. Pfannenstiehl (Lawyers Weekly No. 10-114-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12031   CURT F. PFANNENSTIEHL  vs.  DIANE L. PFANNENSTIEHL.       Norfolk.     April 5, 2016. – August 4, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.[1]     Divorce and Separation, Division of property.       Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on September 22, 2010.   The case was heard by Angela M. Ordoñez, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Robert J. O’Regan for the husband. Jillian B. Hirsch for the wife. Martha R. Bagley, pro se, amicus curiae, submitted a brief. William H. Schmidt, pro se, amicus curiae, submitted a brief.     DUFFLY, J.  In this appeal from a judgment of divorce, we are asked to determine whether the present value of the husband’s beneficial interest in a discretionary spendthrift trust (2004 trust) may be included in the parties’ divisible marital estate.  See G. L. c. 208, § 34, as amended by St. 2011, c. 124, §§ 1, 2.  As part of the judgment of divorce in 2012, a judge in the Probate and Family Court awarded Diane L. Pfannenstiehl[2] sixty per cent of her husband Curt F. Pfannenstiehl’s interest in the present value of the 2004 trust.  At that time, the trust was valued at $ 2,265,474.31.  Curt appealed, arguing that the judge abused her discretion by including the 2004 trust in the marital estate.  In a divided opinion, the Appeals Court affirmed.  See Pfannenstiehl v. Pfannenstiehl, 88 Mass. App. Ct. 121, 124 (2015).  We granted Curt’s application for further appellate review, limited to issues concerning the 2004 trust. We conclude that Curt’s interest in the 2004 trust is “so speculative as to constitute nothing more than [an] expectanc[y],” and thus that it is “not assignable to the marital estate.”  See Adams v. Adams, 459 Mass. 361, 374 (2011), S.C., 466 Mass. 1015 (2013).  Although Curt’s expectancy of future acquisition of income from the 2004 trust is not part of the marital estate, on remand, the judge, pursuant to G. L. c. 208, § 34, may consider that expectancy as part of the “opportunity of each [spouse] for future acquisition of capital assets and income,” in the judge’s determination of a revised equitable division of the marital property.[3]  See Williams v. Massa, […]

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