Home Summary Index Divorce Index
NISSENBAUM’S STANDARD SET OF
SUMMARIES OF LAW - DIVORCE
WARNING! THIS IS A DISCLAIMER! NOTHING ON THE WEB SITE IS TO BE CONSIDERED IN THE NATURE OF LEGAL ADVISE, NOR IS THE INFORMATION PROVIDED NECESSARILY UPDATED TO INCLUDE THE LATEST MASSACHUSETTS CASES OR CASES FROM OTHER JURISDICTIONS WHICH MAY EFFECT THEIR CASE. YOU MUST CONTACT THE LAWYERS AT NISSENBAUM HICKEY OR ANOTHER EXPERT IN FAMILY LAW IN ORDER TO SEEK INDIVIDUAL LEGAL ADVICE ABOUT YOUR CASE.
15.1 An appellate court will not reverse a property division judgment unless it is found to be "plainly wrong and excessive." Baccanti v. Morton, 434 Mass. 787, 793 (2001), and cases cited.
15.2 To obtain reversal of a Judgment, appellant must show the court failed to apply proper legal standards or that the record does not disclose reasonable support for necessary factual evaluations. Bank of New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238, 244-245 (1991).
15.3 Case law describes abuse of discretion as "arbitrary," "whimsical" or "idiosyncratic," Monahan v. Washburn, 400 Mass. 126, 129 (1987), that "no conscientious judge, acting intelligently, could honestly have taken the view expressed" here, Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920) or "plainly wrong." Redding v. Redding, 398 Mass. 102, 107-108 (1987).
15.4 A trial judge's factual findings are presumptively correct and will not be disturbed unless clearly erroneous. Clark v. Clark, 47 Mass. App. Ct. 737, 739 (1999).
15.5 The trial court’s factual findings and determinations of credibility will not be reviewed except on the most compelling showing of error. Johnston v. Johnston, 38 Mass. App. Ct. 531, 535-536 (1995)
15.6 As to matters of law, this court may review the issues de novo. Commonwealth v. Sneed, 56 Mass. App. Ct. 391, 393 (2002).
15.7 "The general rule is that an issue not raised in the trial court cannot be argued for the first time on appeal." M.H. Gordon & Son v. Alcoholic Bevs. Control Commn., 386 Mass. 64, 67 (1982). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003) (Party failed to offer evidence at trial seeking alternate valuation for interests in two trusts, instead stipulating and testifying that the value was the same as trusts’ res.)
15.8 By failing to object below, appellant waived the issue and cannot raise it for the first time on appeal. Bercume v. Bercume, 428 Mass. 635, 639-640 (1999).
15.9 There is no reason to exercise discretion to consider the issues not raised below if it does not raise "important questions of public interest." Filippone v. Mayor of Newton, 392 Mass. 622, 627 n.8 (1984). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003) (Party failed to offer evidence at trial seeking alternate valuation for interests in two trusts, instead stipulating and testifying that the value was the same as trusts’ res.)
15.10 Conclusions based on a judge's credibility assessments deserve particular appellate deference and "[are] close to immune from reversal ..." Johnston v. Johnston, 38 Mass. App. Ct. 531, 535-536 (1995) (finding that husband’’s testimony about his assets and income were less than candid not open to challenge on appeal).
Copyright 2015 NissenbaumHickey LLC. All rights reserved