Pfannenstiehl v. Pfannenstiehl (Lawyers Weekly No. 1-121-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-906                                   Appeals Court 13-P-686 13-P-1385   CURT F. PFANNENSTIEHL vs.  DIANE L. PFANNENSTIEHL (and two consolidated cases[1]). Nos. 13-P-906, 13-P-686, & 13-P-1385. Norfolk.     February 11, 2014. – August 27, 2015.   Present:  Kafker, C.J., Cypher, Kantrowitz, Berry, & Fecteau, JJ.[2]     Divorce and Separation, Division of property, Findings, Attorney’s fees.  Trust, Spendthrift provision.  Contempt.  Practice, Civil, Findings by judge, Contempt, Stay of proceedings.       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.; a complaint for contempt, filed on January 24, 2013, was also heard by her; and a motion to stay enforcement of the judgment pending appeal was considered by her.   A motion to stay the proceedings pending appeal was considered in this court by Vuono, J.   Robert J. O’Regan for the husband. Jillian B. Hirsch for the wife.     BERRY, J.  The main issue presented — in what is the lead of three appeals[3] related to these divorce proceedings — concerns the decision of a judge of the Probate and Family Court (probate judge or judge) to include in the marital estate, for purposes of the G. L. c. 208, § 34, division, the husband’s interest in a multi-million dollar trust established by the husband’s father (the 2004 trust[4]).  The principal of the 2004 trust was, in the main, associated with funding from the family’s operation of corporations that own and operate for-profit colleges, including Bay State College in Massachusetts and Harrison College in Indiana.[5]  The husband claims as error the assignment of  $ 1,333,047 of the trust value to the wife and the requirement that the husband pay $ 48,699.77 monthly for twenty-four months to effectuate the division of assets set forth in the amended judgment.[6] As to this issue, the husband, citing a spendthrift provision in the subject trust, argues that the 2004 trust value and income therefrom were isolated, were not within the marital estate, and, therefore, should have been excluded from consideration under G. L. c. 208, § 34.[7] This spendthrift isolation theory, as detailed infra, is advanced notwithstanding that the 2004 trust had made distributions to the husband — including an outright $ 300,000 in 2008 followed by 2009-2010 monthly payments of several thousand dollars — all of which were distributed from the 2004 […]

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