Waxman v. Waxman, et al. (Lawyers Weekly No. 11-119-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑1021 Appeals Court JEAN WAXMAN vs. LEE WAXMAN & others.[1] No. 12‑P‑1021. Suffolk. March 4, 2013. ‑ September 30, 2013. Present: Graham, Sikora, & Hanlon, JJ. Divorce and Separation, Death of party, Division of property, Tenancy by the entirety. Real Property, Tenancy by the entirety, Sale. Individual Retirement Account. Conversion. Practice, Civil, Summary judgment, Attorney’s fees, Costs, Frivolous action. Civil action commenced in the Superior Court Department on February 26, 2008. A pretrial motion for summary judgment was heard by Nancy S. Holtz, J., and the case was heard by Thomas E. Connolly, J. Wendy B. Jacobs for the plaintiff. Kevin G. McIntyre for the Lee Waxman and others. SIKORA, J. This case requires the law to distribute the assets of a husband and wife of a late-life marriage. Robert and Jean Waxman married in their sixties. After eleven years their marriage had deteriorated. They separated and began divorce proceedings in the Probate and Family Court (probate court). During the proceedings Robert died. By law his death caused the abatement of the divorce action and divested the probate court of jurisdiction over the distribution of the couple’s assets. Jean[2] then brought the present action in Superior Court against Robert’s three adult children (collectively, children) by a previous marriage for, inter alia, declaratory and equitable relief vesting in her ownership of three assets: (1) proceeds of the couple’s sale of their jointly held condominium unit; (2) the value of their jointly owned automobile; and (3) the value of a substantial individual retirement account held by Robert. A motion judge granted summary judgment in favor of Jean on her claims of ownership of the condominium proceeds and the value of the automobile, but denied summary judgment on her claim to the individual retirement account. That issue proceeded to a bench trial before a second judge. By detailed findings and rulings, he awarded ownership of the individual retirement account to Robert’s children. The children have appealed from the award of the condominium proceeds and automobile value to Jean; Jean has cross appealed from the award of the individual retirement account to the children. For the following reasons, we affirm the judgment. 1. Factual background. The material facts emerging from the summary judgment papers and from the […]