author: ENGLANDER, J.

text:
    The EXHIBIT SOURCE, INC. v. WELLS AVENUE BUSINESS CENTER, LLC.
    No. 17-P-1611
    Appeals Court of Massachusetts, Suffolk..
    Argued September 13, 2018. Decided November 20, 2018.
    Evan M. Fray-Witzer, for the defendant.
    David C. Aisenberg, Boston, for the plaintiff.
    Present: Wolohojian, Lemire, & Englander, JJ.
   ENGLANDER, J.

The defendant commercial landlord Wells Avenue Business Center, LLC (Wells), failed to return the $15,982 security deposit of the plaintiff tenant, The Exhibit Source, Inc. (Exhibit Source). Exhibit Source sued, asserting various common-law claims, as well as a claim under G. L. c. 93A, § 11. The jury found for the plaintiff on the common-law claims, and the judge separately found for the plaintiff under c. 93A, and awarded treble damages and attorney's fees. The Appellate Division affirmed. On further appeal to this court, the defendant argues that (1) the trial judge improperly adjusted the jury's damages award, (2) the facts did not support a c. 93A violation, (3) language in the commercial lease prohibited the award of multiple damages, and (4) it made a reasonable offer of settlement, which pretermitted an award of multiple damages and attorney's fees. We affirm.

Background. Exhibit Source and Wells entered into a commercial lease (lease) pursuant to which Exhibit Source provided a security deposit of $15,982. The lease terminated August 31, 2013. The lease expressly required the defendant landlord to return the security deposit "[w]ithin thirty (30) days" of lease termination, except that the landlord could "apply" the security deposit to compensate for damages suffered as a result of a "Tenant Default." "Tenant Default," in turn, was a defined term; as discussed below, the only "tenant default" that could possibly apply to the facts here was in lease section 16.1(d) -- "failure by Tenant to fulfill any other obligation under this lease, if such failure is not cured within twenty (20) days of notice from Landlord to Tenant..." (emphasis supplied).

As the trial judge found, the defendant landlord failed to fulfill its obligations with respect to the security deposit. The plaintiff tenant vacated the premises as of August 31, 2013. Representatives of the landlord and the tenant walked through the premises on September 4, 2013. The landlord's representative did not raise any issue as to the condition of the premises at that time, or indeed for the next seven months. Starting in October of 2013 the plaintiff repeatedly requested the return of the security deposit. A representative of the landlord represented several times that the full amount would be forthcoming. That did not happen.

Eventually, on April 1, 2014, the landlord returned $1,202.28 of the deposit, and retained $14,780. The landlord claimed the $14,780 was for damage to the property, allegedly caused when the tenant removed certain shelving and signage upon leaving in August of 2013. The alleged damage would have been visible during the September 4, 2013, walk-through. At no time prior to April 1, 2014, did the landlord provide notice to the tenant of any damage, and the landlord never provided an opportunity to cure as contemplated by the lease.

The plaintiff filed suit on May 6, 2014, and asserted claims for breach of contract, breach of the implied covenant of good faith, conversion, misrepresentation, and violations of G. L. c. 93A, § 11. The landlord did not make a settlement offer when it filed its answer on May 30, 2014, although it had offered $6,000 around the time that the tenant filed suit.

The jury returned verdicts for the tenant on each of the common-law claims, in response to special verdict questions. It awarded damages of $25,366.70, which it listed on its special verdict form thusly:

"$20,000.00 damages
$ 5,366.70 security balance
$25,366.70 plaintiff to receive"

The trial judge reserved the c. 93A claim for himself and on June 10, 2015, heard additional arguments on the issue. The landlord filed posttrial motions directed at the jury verdict, including a motion under Mass. R. Civ. P. 59, 365 Mass. 827 (1974), to remit the jury's damages award. The judge entered a combined order on the posttrial motions and the c. 93A claim, in which he (1) allowed the motion for remittitur and reduced the jury's damages award to $14,780, and (2) found for the plaintiff on the c. 93A claim, trebled the plaintiff's "actual damages" to $44,340, and awarded attorney's fees and costs, later determined to be $60,511.74. The judge's c. 93A findings bear setting forth here:

"Here, [landlord] had absolutely no intention of returning the security deposit to plaintiff. After months of stringing plaintiff along under false representations that the security deposit will be paid to plaintiff, [landlord] manufactured a reason to keep the security deposit by claiming damage to the property -- a reason that did not exist when [landlord's representative] conducted the walk-through inspection on September 4, 2013 ...."

On the parties' cross appeals, the Appellate Division of the Boston Municipal Court affirmed in a unanimous and well-reasoned opinion. That court also awarded $30,100 in additional attorney's fees, incurred by the tenant in responding to the defendant's appeal. The defendant now appeals to this court.

Discussion. 1. The damages award. The defendant first argues that the judge erred in his handling of the jury verdict on damages. It contends that the only valid damages award was the $5,366.70 identified on the verdict form as "security balance," and that the $20,000 designated by the jury as "damages" was "wholly unsupported by any evidence."

We need not decide whether the judge's remittitur was proper here, because we affirm the $14,780 damages award that the judge made under c. 93A. The c. 93A claim was tried to the judge, not the jury; the c. 93A award was separate from the jury's verdict. The judge found that the defendant violated c. 93A, that the violation was knowing or willful, and that "the appropriate disposition is to treble plaintiff's actual damages." The judge was charged with setting damages on the c. 93A claim, and was not required to follow the jury's damages award. See Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 186, 987 N.E.2d 1247 (2013) (noting the "well-established principle" that a judge may deviate from the jury's factual findings when determining c. 93A liability). The trial judge's order sets forth his reasoning that $14,780 -- the unreimbursed portion of the security deposit -- was the proper amount of damages. Indeed, in his order the judge stated that the case was tried on the theory that damages were a "sum certain" of $14,780, and the judge also held as a matter of law that the damages amount could not be reduced based upon any damage that the tenant allegedly caused to the leased property, because the landlord had not complied with the terms of the lease as to any such reduction. Furthermore, a damages award of $14,780 is plainly valid under c. 93A, and well supported by the record.

2. The finding of c. 93A liability. In its reply brief, the defendant argues that the conduct at issue could not violate c. 93A, as a matter of law. According to the defendant, this case presents "nothing more than a good faith dispute ... over the amount due under a commercial lease." The defendant posits that any misrepresentations it may have made about the return of the security deposit are irrelevant, because they were not used to try to extort "some concession from [Exhibit Source]."

This argument was not made in the defendant's opening brief, and accordingly we need not consider it. See Mass. R. A. P. 16(a)(4), as amended, 367 Mass. 921 (1975); Fafard v. Conservation Comm'n of Barnstable, 432 Mass. 194, 195-196, 733 N.E.2d 66 (2000). Nevertheless, it is worth noting that the argument is well wide of the mark. The defendant does not challenge any of the trial judge's factual findings. Those findings include (1) that the defendant deliberately strung the plaintiff along for seven months, representing that it would return the security deposit when it had "no intention" of doing so; (2) that the reasons the defendant ultimately gave for not returning the deposit were "manufactured" -- that is, a pretext, and (3) that the defendant knew that, as a result of its actions, the plaintiff would need to hire a lawyer and to incur legal fees, and that such was part of the defendant's strategy to "wear out" the plaintiff, in hopes that it would cease its pursuit of the deposit or accept less in settlement.

These factual findings comfortably establish a violation of c. 93A. That statute makes unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." G. L. c. 93A, § 2(a ). The statute does not define "unfair or deceptive acts or practices." While a breach of contract alone does not qualify, we have said that "[t]o be held unfair or deceptive under c. 93A, practices involving even worldly-wise business people do not have to attain the antiheroic proportions of immoral, unethical, oppressive, or unscrupulous conduct, but need only be within any recognized or established common law or statutory concept of unfairness." VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 620, 642 N.E.2d 587 (1994).

The trial judge's findings here went well beyond "recognized" "concept[s] of unfairness." This was not a dispute over the application of a contract, but rather was a considered and intentional exercise of control over the plaintiff's property -- a strategy employed in the hope that the property could be, ultimately, taken by the defendant without right to do so.

3. The award of treble damages and attorney's fees. The defendant also mounts two arguments directed against the trial judge's award of treble damages and attorney's fees. First, the defendant argues that treble damages are precluded by a limitation of liability clause in section 17.2 of the lease, which states:

"In no event will Landlord be liable for punitive damages, lost profits, business interruption, speculative consequential or other such damages."

The limitation of liability clause does not aid the defendant here. In Standard Register Co. v. Bolton-Emerson, Inc., 38 Mass. App. Ct. 545, 649 N.E.2d 791 (1995), this court similarly considered whether a limitation of remedies clause in a commercial contract applied so as to preclude remedies otherwise available under c. 93A. We held that the applicability of such a contract provision depends upon whether the c. 93A claim sounds more in contract, or in tort: "[A] chapter 93A claim analogous to a tort-based recovery overrides any contractual defenses, whereas a § 11 claim founded on a contract theory is subject to a contractual limitation of remedies provision." Id. at 549, 649 N.E.2d 791. We went on to hold in Standard Register that the "core" of the plaintiff's claim was based upon misrepresentations the defendant made as to its ability to provide the product it was offering. Id. at 550, 649 N.E.2d 791. We concluded that this conduct sounded in tort; it was "deceitful," and "distinct" from the facts underlying the plaintiff's contract claim. Id.

Applying the Standard Register test, we have no difficulty concluding that the plaintiff's c. 93A claim here sounds predominantly in tort. As described above, the judge's uncontested findings are that the defendant undertook a course of action (and inaction) designed to result in the wrongful conversion of the plaintiff's property. Those actions violate well established legal norms that are independent of the parties' contract.

The defendant's second argument for avoiding the treble damages award, as well as the award of attorney's fees, is that it made "reasonable offers of settlement," which the plaintiff rejected. Specifically, the defendant points to (1) an offer of $6,000, which it made around the time the complaint was filed on May 6, 2014; (2) an offer of $14,780, which it made on June 20, 2014, some twenty days after it filed its answer; and (3) an offer of $22,000, which it made on August 7, 2014. The trial judge rejected the defendant's argument that it made a reasonable offer of settlement, and we agree.

Chapter 93A, § 11, provides, in pertinent part:

"The respondent may tender with his answer in any such action a written offer of settlement for single damages. If such tender or settlement is rejected by the petitioner, and if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner, then the court shall not award more than single damages." (Emphasis added.)

The defendant did not tender any offer of settlement with its answer. Leaving aside the $6,000 offer (which the trial judge found was not reasonable), the other two offers were made well after the answer was filed, and after the plaintiff had engaged in additional litigation. The defendant's latter two offers did not comply with the statute's plain language. See Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 825, 17 N.E.3d 1066 (2014).

The defendant ignores this noncompliance and argues, in essence, that at least the $22,000 offer of settlement was reasonable as a matter of law, thereby precluding a treble damages award. The defendant argues that the $22,000 offer exceeded the total of the plaintiff's damages and costs incurred at the time that the offer was made. And although the plaintiff by that time had also incurred attorney's fees that likely would not be reimbursed in full by the $22,000 offer, the defendant argues that under the case law such incurred attorney's fees cannot be considered when evaluating the reasonableness of a c. 93A settlement offer, relying in particular on Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 343 N.E.2d 375 (1976).

The defendant cites no case holding that a court is required to limit a c. 93A award to single damages based upon a settlement offer that was not made until after the defendant filed its answer. Such an argument is inconsistent with the statute's plain language. The judge no doubt can consider a settlement offer made post-answer when exercising his discretion as to whether to award multiple damages. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 857, 443 N.E.2d 1308 (1983) (noting that "the conduct proscribed by the statute is as much the failure to make a reasonable settlement offer as it is the substantive violation of c. 93A"). In that context, however, the judge's decisions as to whether a violation was "willful or knowing" and whether to award multiple damages may take into account a variety of relevant facts, including in particular the degree of the defendant's culpability as well as what settlement offers were made. See id. at 856-857, 443 N.E.2d 1308.

Here the trial judge did not abuse his discretion in awarding treble damages and in refusing to reduce such damages due to the defendant's settlement offers. He concluded that none of the offers was reasonable at the time it was made, as the offers, while increasing, always fell short of providing the plaintiff with the relief it was reasonably likely to achieve by continuing on with the litigation it had been forced to bring, and had tried to avoid. In this context, once litigation had commenced in earnest and the plaintiff had been forced to incur significant attorney's fees, there was no error in considering that the settlement offers did not provide for reimbursement of attorney's fees incurred as a result of the defendant's unfair practices. Nothing in the Kohl decision is to the contrary.

The November 21, 2017, amended judgment of the Appellate Division is affirmed.

So ordered.

      As discussed infra, the landlord did increase its settlement offers as the litigation proceeded.

      The defendant argues that the trial judge never made a damages award under c. 93A, and instead "was trebling the actual damages awarded by the jury (as 'remitted')." That is not a reasonable reading of the judge's findings and order. As noted, the judge concluded his c. 93A discussion by stating, "[T]he appropriate disposition is to treble plaintiff's actual damages" (emphasis added). The judge then awarded $44,340, meaning that the judge's award of "actual damages" was $14,780.

      We accept the trial judge's findings of fact on the c. 93A issue absent clear error, but review his applications of law de novo. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 470, 781 N.E.2d 787 (2003).

      There is a threshold issue whether multiple damages under c. 93A would qualify as "punitive damages ... [or] consequential or other such damages." We assume that they do, without deciding.

      Although our conclusion that the plaintiff's c. 93A claim sounds in tort is supported by the jury's verdicts on the common-law claims of misrepresentation and conversion, it is not dependent upon, or dictated by, those findings. Rather, we review the trial judge's decision as to the gravamen of the c. 93A claim in light of the trial judge's findings.

      Under c. 93A, § 11, if the court finds a "willful or knowing violation," it "shall" award "up to three, but not less than two ... times" the actual damages.

      The plaintiff has requested reasonable attorney's fees incurred on this appeal. Such an award is appropriate in this case under c. 93A. Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 433, 837 N.E.2d 1121 (2005). The plaintiff may file with this court an application for fees and costs, together with supporting materials, within fourteen days of the date of the rescript of this opinion. See Fabre v. Walton, 441 Mass. 9, 10, 802 N.E.2d 1030 (2004). The defendant shall have fourteen days thereafter to respond. The plaintiff's request for double costs is denied.


source: Caselaw Access Project

author: DITKOFF, J.

license: Public Domain

text:
    David M. DILANIAN v. Traute L. DILANIAN.
    No. 17-P-173
    Appeals Court of Massachusetts, Norfolk..
    Argued July 12, 2018 Decided November 21, 2018
    Matthew Bove, Quincy, for the husband.
    L. Richard LeClair, III, Waltham, for the wife.
    Present: Blake, Sacks, & Ditkoff, JJ.
   DITKOFF, J.

David M. Dilanian (husband) appeals from the amended judgment of divorce nisi entered by a Probate and Family Court judge and the subsequent denials of his postjudgment motions. The most significant issue revolves around a pension plan that the judge found belonged entirely to the husband but that the husband alleges belonged partially to his now-deceased father and thus now belongs partially to his sister. We discern no clear error in the judge's factual findings, and we conclude that the sister's interests are not impaired by the judgment transferring sixty per cent of the pension plan to Traute L. Dilanian (wife), as the remaining portion is more than sufficient to satisfy any claim by the sister. Further discerning no clear error in the judge's findings regarding the value of the husband's business and the husband's income, and concluding that the judge acted within her discretion in denying the husband's motion for relief under Mass. R. Dom. Rel. P. 60(b), we affirm.

1. Background. The husband and wife were married in 1981, had three children together, and lived a comfortable upper-middle class lifestyle. During their thirty-one year marriage, the wife was the homemaker while the husband was self-employed, running a successful business. The marriage began to break down in 2005, and the husband filed for divorce in January 2011, after five years of counseling and a three-month trial separation. Their children were all of adult age and emancipated, and the parties were able to resolve amicably the disposition of the marital home. Much of the trial concerned the value of the husband's business and the husband's share in various assets and an inheritance from his father.

a. M.E. Dilanian Co., Inc. Since 1984, the husband has worked at M.E. Dilanian Co., Inc. (M.E. Dilanian), a family-controlled company that purchases food products from wholesalers and then sells the products to supermarkets. The husband and his father operated the company as coowners until approximately 1998 or 1999, when the husband became the sole stockholder in the company. The husband's father, however, continued to work at the company until his death in March 2011.

By the time of the divorce proceedings, therefore, the husband was the sole owner of the business with control over both the company accounts and his own compensation. To avoid double taxation on corporate income, the husband took a base salary and then paid himself a bonus out of the year-end profits. Accordingly, he would generally pay out year-end bonuses so that the company would be left with only $5,000 to $10,000 of retained earnings for the year. The husband's financial statement reported that his net income increased from $204,500 in 2008 to $388,000 in 2010. Once the divorce proceedings began, the husband decreased his pay to $217,000 in 2011 and $215,000 in 2012. At the same time, and contrary to prior practice, the amount of cash left in M.E. Dilanian accounts increased by over $294,000 from July 2011 to June 2012. The husband also routinely received additional compensation from M.E. Dilanian in the form of interest payments, pension contributions, lease payments for an automobile, and expense reimbursements.

b. M.E. Dilanian retirement plans. M.E. Dilanian established a defined contribution retirement plan in 1989 and a defined benefit plan at some point between 2002 and 2011. The husband testified that he and his father were the only participants in both plans.

Under the defined contribution plan, the company was supposed to contribute twenty-five per cent of a participating employee's income each year to the plan. At some point, however, the company ceased contributing to the plan. As a defined contribution plan, the money contributed toward each participant's retirement belonged to that participant, assuming he met the vesting requirements, and was to be paid out accordingly upon retirement or death. The plan set the retirement age at sixty-five years of age. The husband and his father were the only trustees of the plan until the father's death, when the husband became the sole trustee.

Upon the father's death on March 1, 2011, the husband allocated $663,961 of the defined contribution plan's $1,416,769 balance to his father's estate. The husband allocated $46,690 of the defined benefit plan's balance to his father's estate. With one exception, however, the husband failed to produce any documents to substantiate contributions made by M.E. Dilanian to the defined contribution plan on the father's behalf that predate the beginning of divorce proceedings. Similarly, although the husband testified that the defined benefit plan was created in or around 2002, the only documents he produced showing the establishment of a defined benefit plan reflect that it was established after the father's death.

The husband did produce Federal tax forms 5500-EZ that predated the divorce proceedings. These documents, however, vary. They state that the defined contribution plan had one participant in 2007; two in 2008; three in 2009; three at the beginning of 2010, but only one at the year's end; and two participants in 2011.

c. Inheritance. The husband's father's estate was administered by the husband and his sister as joint executors. On its estate tax returns, the estate reported assets of $4,165,798. That amount included $710,651 from the M.E. Dilanian pension plans. The estate also included $847,415 previously placed in the Dilanian Family IRA Spray Trust (spray trust). There is no dispute that the balance of the estate, consisting of cash, a brokerage account, and the assets of two other trusts, will be divided evenly between the husband and his sister.

By its terms, the spray trust divides its assets among the children of the husband and his sister. Absent the untimely demise of all of the husband's and his sister's descendants, the trust assets would not be distributed to the husband. Even though the husband was one of the trustees of the spray trust, he testified at trial (in what he later asserted was a mistake) that he and his sister were the only beneficiaries of the father's estate and that he would inherit half of the $4 million estate. His testimony, therefore, assigned to himself the approximately $423,700 that will instead go to his children.

d. Findings and rulings. At trial, the husband valued M.E. Dilanian at $200,000. The judge ultimately credited this valuation, except that she found that the business value of M.E. Dilanian also includes the value of a $150,000 note payable to the husband for a personal loan made to the company. Accordingly, the judge valued the company at $350,000. The judge also found that the company held cash assets with a value of $634,061.06. The judge awarded ownership of the company to the husband.

Regarding the husband's income, the judge found that the husband had artificially lowered his income. The judge found that the husband's real annual income was approximately $325,000. The judge found that the wife's imputed annual income was $20,000. The judge then imposed an alimony obligation of $2,000 per week until the husband reaches full retirement age "as defined in G. L. c. 208, § 48."

The judge found that the husband was the only participant in both the defined contribution and the defined benefit plans. Noting that the father would have been seventy-eight years old when the defined benefit plan was purportedly created and that the records produced by the husband showed that the plan was executed after the father's death, the judge did not credit the husband's claim that the father was a participant in the defined benefit plan. Similarly, based primarily on the husband's failure to produce documents substantiating his claims "despite receiving request for production, trial subpoenas and a court order," the judge did not credit the husband's testimony that the father was a participant in the defined contribution plan.

The judge considered the husband's entitlement to half of his father's estate as a factor supporting his "optimistic outlook of financial stability." The judge, however, found that the inherited assets "were received late in the marriage and were not woven into the fabric of the marriage" and thus should remain with the husband. She ordered the husband to transfer sixty per cent of both the defined contribution plan and the defined benefit plan to the wife. She ordered the husband to transfer the full amount of two smaller retirement plans to the wife, gave the husband the right to buy out the wife's interest in the marital home and another piece of real estate, divided the joint bank accounts equally, and ordered the husband to pay the wife $150,000. Shortly thereafter, the judge issued an amended judgment of divorce nisi, changing only the time at which alimony commenced. The husband filed a timely appeal. 2. Defined contribution plan and adjudication of third-party rights. Judges are granted "a broad degree of discretion in assigning 'to either husband or wife all or any part of the estate of the other, including ... retirement benefits, ... pension, profit-sharing, annuity, [and] deferred compensation.' " Adams v. Adams, 459 Mass. 361, 372-373, 945 N.E.2d 844 (2011), quoting G. L. c. 208, § 34. Although we review the propriety of the legal standards applied by the judge, the discretionary determinations of property division "will not be reversed unless plainly wrong and excessive." Hassey v. Hassey, 85 Mass. App. Ct. 518, 524, 11 N.E.3d 661 (2014).

On appeal, the husband argues that M.E. Dilanian's defined contribution plan belonged partially to his now-deceased father and thus now belongs partially to his sister. It is undisputed that the husband was a participant in and beneficiary of the defined contribution plan. At trial, the husband supported his contention that he was not the sole participant with his own testimony, documents created after the divorce proceedings began, and the inconclusive tax forms he disclosed. The husband produced no evidence tracking the individual contributions for any participant. The husband testified that this information was available to him as the plan's trustee, but he was either unable or unwilling to submit it to the court as evidence at trial. As the judge could infer that the documentation either contradicted the husband's assertions or did not exist at all, the judge could reasonably disbelieve the husband's testimony and the documentation created after the divorce proceedings began. See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496, 964 N.E.2d 353 (2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536, 649 N.E.2d 799 (1995) (trial judge's credibility findings upheld "except on the most compelling of showings").

This lack of evidence was exacerbated by the defined contribution plan's tax forms showing anywhere from one to three plan participants between 2007 and 2011. Even if the judge credited the husband's expert that Form 5500-EZ, Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan, may be properly filed when one of the participants is the nonowner father of the owner, there was no testimony to account for the shifting number of participants from year to year. Cf. Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 774, 22 N.E.3d 951 (2014) ("The judge was not required to accept the opinion of the experts, and was entitled to credit all, part, or none of their testimony").

It is true that, since the divorce filing and the husband's father's death, the husband has consistently taken the position that his father was a participant in the defined contribution plan, and the husband has created documents reflecting this position. The fact, however, that no such documents can be produced that predate the divorce filing is strong evidence upon which the judge could reasonably conclude that the division of the defined contribution plan was a postdivorce filing invention. Accordingly, the judge was not required to credit the allocation of $663,961 to the father's estate, nor was it clearly erroneous to find the husband was the sole participant and beneficiary of the plan. See Caveney v. Caveney, 81 Mass. App. Ct. 102, 115, 960 N.E.2d 331 (2012) (discerning no error where trial judge did not credit husband's testimony in light of inconsistent evidence).

Nonetheless, because the judge ordered the husband to transfer sixty per cent of the defined contribution plan to the wife, we must consider the asserted interest of the husband's sister in that defined contribution plan. In Amrhein v. Amrhein, 29 Mass. App. Ct. 336, 560 N.E.2d 157 (1990), we considered a judicial order that the husband execute a mortgage for the benefit of the wife on property he claimed was held in trust for the benefit of his children. Id. at 339-340, 560 N.E.2d 157. Although the judge had "ample reason to doubt the reality of the trust" and find that the property was held by the husband himself, id. at 338, 560 N.E.2d 157, we concluded that such an order could not be entered without joining the children and the husband in his capacity as trustee of the purported trust. Id. at 340-341, 560 N.E.2d 157. As we explained, the judge's finding that the husband was the owner was binding upon him but could not be allowed to "adversely affect the interests of third persons who are not bound by that finding" without their being heard by being brought into the action. Id. at 340, 560 N.E.2d 157.

Here, however, contrary to the husband's argument, the judge's order will not adversely affect the interests of third persons. The plan documents establish that the beneficiaries of any portion of the defined contribution plan that belonged to the husband's father are the husband and his sister, in equal shares. The sister, as coexecutor of the estate, signed an estate tax return taking the position that $663,961 of the plan belonged to the father. Accordingly, half of that amount ($331,981) could be claimed by the sister. Once sixty per cent of the plan is transferred to the wife, the remaining amount will be well in excess of the amount the sister claimed in the estate tax return and appears able to claim.

Because the portion of the plan remaining with the husband is adequate to satisfy any claim by the sister, the judge's allocation will not impair her interests. If the sister claims a share of the plan, she may pursue it against the husband and file a suit, if necessary. That this theoretically may result in the husband's receiving less than forty per cent of the plan is of no moment. "A finding by the judge in these circumstances that a particular asset is owned by a party individually ... is binding on the parties to the action but not on persons not served." Amrhein, 29 Mass. App. Ct. at 339, 560 N.E.2d 157. Having failed to substantiate his position that he was not the sole participant in the plan, the husband is bound, for purposes of this divorce action, by the judge's findings.

3. Business valuation. The valuation of a business interest for purposes of the division of marital assets is a question of fact. Adams, 459 Mass. at 380, 945 N.E.2d 844. We review the trial judge's findings for clear error. Caveney, 81 Mass. App. Ct. at 109, 960 N.E.2d 331.

Contrary to the husband's assertions, the trial judge did not value M.E.

Dilanian based on the cash held in company accounts at the time of trial. The judge expressly found M.E. Dilanian "has a business value of $350,000" based on the husband's valuation of $200,000, plus the $150,000 note payable to him by the company. That the judge also mentioned that the company possessed "cash held with a value of $634,061.06" (after subtracting the $150,000 note payable to the husband) and that "the company maintains over $500,000 in the business accounts" does not negate the judge's specific finding that the company has a value of $350,000.

We discern no clear error in this valuation. The judge was entitled to credit the husband's valuation of his own company. See Prenaveau, 81 Mass. App. Ct. at 496, 964 N.E.2d 353. Considering that the husband was the sole owner of the company, there is nothing unreasonable in disregarding the $150,000 note payable to the husband and considering that property part of the value of the company. Cf. Adams, 459 Mass. at 373, 945 N.E.2d 844 (properly assigning "the present value of a spouse's interest in a [business] to the divisible marital estate").

4. Alimony. As with the division of marital property, "[a] judge has broad discretion when awarding alimony." Zaleski v. Zaleski, 469 Mass. 230, 235, 13 N.E.3d 967 (2014). Accord Ludwig v. Lamee-Ludwig, 91 Mass. App. Ct. 36, 40, 69 N.E.3d 1005 (2017) (within judge's discretion to consider employee spouse's stock options "as a source of income in the alimony calculation"). In that regard, "[a] judgment will not be disturbed on appeal unless 'plainly wrong and excessive.' " Zaleski, supra at 236, 13 N.E.3d 967, quoting Heins v. Ledis, 422 Mass. 477, 481, 664 N.E.2d 10 (1996).

In this case, the husband reported that his gross income increased in the years prior to the divorce from $204,500 in 2008 to $388,000 in 2010 but then decreased to $217,000 in 2011 and $215,000 in 2012. He neglected, however, to include additional compensation received from the company for those years in the form of interest and expense reimbursements. The judge properly considered all of the husband's income from the company, finding a total compensation of approximately $475,000 in 2011 and $266,000 in 2012. See Hassey, 85 Mass. App. Ct. at 525, 11 N.E.3d 661 (alimony determined from parties' gross income).

Moreover, the husband was the sole owner of M.E. Dilanian, his compensation was tied to the profitability of the company, and the husband paid himself out of company accounts based on its year-end earnings. Although "[a] corporation may reasonably choose to retain income" to maintain its current business or expand its operations, Halpern v. Rabb, 75 Mass. App. Ct. 331, 337, 914 N.E.2d 110 (2009), the judge was not required to credit the husband's reasons for the increase of over $294,000 held in company accounts at year end from 2011 to 2012. Holding excess cash in the company accounts, in addition, was contrary to the husband's prior practice of maintaining only $5,000 to $10,000 in retained earnings annually to avoid double taxation on corporate income.

In sum, contrary to the husband's assertion, the evidence supported the finding that the husband's reported income was increasing until he filed for divorce in 2011, and that the husband intentionally reduced his own salary while amassing corporate earnings usually directed toward his personal income. Given this evidence and the husband's furtive financial disclosures, including his failure to prepare a 2012 financial statement for M.E. Dilanian, the trial judge could reasonably conclude the husband artificially reduced his income to alter his financial condition in light of the impending divorce. See Caveney, 81 Mass. App. Ct. at 114, 960 N.E.2d 331 (discerning no error in finding husband's representations of business financials "clearly false" in light of incomplete and contradictory evidence). Cf. J.S. v. C.C., 454 Mass. 652, 663, 912 N.E.2d 933 (2009) ("corporate structures should not be used to shield available income that could and should serve as available sources" of marital support). Specifically, at the end of the 2012 fiscal year, the account used to pay the husband's salary held an extra $76,000, and the judge could reasonably impute those retained earnings to the husband as income for purposes of calculating alimony. See id. at 664, 912 N.E.2d 933 ("the judge should weigh affirmative evidence of an attempt to shield income by means of retained earnings[;] ... [i]n that regard, the corporation's history of retained earnings and distributions may be relevant"). Accord Halpern, 75 Mass. App. Ct. at 337, 914 N.E.2d 110. Including the excess $76,000 with the husband's $266,180 in gross income in 2012, it was "not 'plainly wrong' " to find the husband's income was closer to $325,000 than $200,000. Vedensky, 86 Mass. App. Ct. at 775, 22 N.E.3d 951, quoting Redding v. Redding, 398 Mass. 102, 107, 495 N.E.2d 297 (1986). There was no error, see Caveney, supra at 115, 960 N.E.2d 331, nor a basis to merit reconsideration.

5. Inheritance. Within a year of the amended judgment of divorce nisi, the husband filed a motion for relief from judgment under Mass. R. Dom. Rel. P. 60(b)(1) and 60(b)(6). The motion stated that "[r]ecently it was discovered" that the husband was not a beneficiary of the spray trust. At the hearing, when asked why the husband had misunderstood the provisions of the spray trust, his counsel stated that the husband told him that he had been relying on the advice of the attorney handling the estate. No affidavit, testimony, or other evidence was presented to substantiate this assertion. The judge denied the motion, and the husband has appealed from that denial as well.

Under Mass. R. Dom. Rel. P. 60(b)(1), "upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect," provided the motion is "made within a reasonable time" and within one year. In deciding a rule 60(b)(1) motion, whether under Mass. R. Civ. P. 60(b)(1), 365 Mass. 828 (1974), or Mass. R. Dom. Rel. P. 60(b)(1), a judge considers several factors, including "(1) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself; for 'the courts have been reluctant to attribute to the parties the errors of their legal representatives.' " Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431, 388 N.E.2d 309 (1979), quoting Barber v. Turberville, 218 F.2d 34, 36 (D.C. Cir. 1954). See Sahin v. Sahin, 435 Mass. 396, 398 n.4, 758 N.E.2d 132 (2001) (proper to apply standards applicable to Mass. R. Civ. P. 60 to motions under Mass. R. Dom. Rel. P. 60 ; text of two rules is identical). "Relief is not justified under rule 60(b)(1) for 'any garden-variety oversight.' " Freitas v. Freitas, 26 Mass. App. Ct. 196, 197 n.2, 525 N.E.2d 438 (1988), quoting Goldstein v. Barron, 382 Mass. 181, 186, 414 N.E.2d 998 (1980).

"A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Ulin v. Polansky, 83 Mass. App. Ct. 303, 308, 983 N.E.2d 714 (2013), quoting Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 775, 843 N.E.2d 706 (2006). Accord Dalessio v. Dalessio, 409 Mass. 821, 833, 570 N.E.2d 139 (1991). A judge has "considerable discretion in ruling on [a] motion for relief under rule 60(b)(1)." Hermanson v. Szafarowicz, 457 Mass. 39, 47, 927 N.E.2d 982 (2010). We discern no abuse of discretion here.

"A party's estate for purposes of equitable division under G. L. c. 208, § 34, 'includes all property to which a party holds title, however acquired.' " Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110, 55 N.E.3d 933 (2016), quoting Williams v. Massa, 431 Mass. 619, 625, 728 N.E.2d 932 (2000). The trial judge, therefore, properly considered the husband's substantial inheritance in determining the division of marital assets in this case. See Adams, 459 Mass. at 378, 945 N.E.2d 844 ( § 34 vests judge with discretion to consider acquisition of assets by parties' respective estates in dividing marital property). Accord E.H. v. S.H., 59 Mass. App. Ct. 593, 597 n.7, 797 N.E.2d 411 (2003), quoting Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375, 474 N.E.2d 1137 (1985) (future inheritance "may be considered 'under the § 34 criterion of "opportunity of each for future acquisition of capital assets and income" ' in determining what disposition to make of the property which is subject to division").

That the husband's actual inheritance is lower than that found by the judge is beyond serious dispute. Nonetheless, the error was caused by the husband's own testimony. The husband was a trustee and executor of his father's estate and a trustee of the spray trust. He had a legal duty to be aware of the obligations and expectancies of both entities, and it was reasonable for the judge to credit without further investigation the husband's testimony that he and his sister were the sole beneficiaries of the estate he was charged with administering. Indeed, the husband personally signed the estate tax forms assigning the spray trust $847,415 prior to trial and should have known his share of the inheritance would accordingly be reduced by the time he testified. Moreover, the amount of the inheritance was not integral to the judge's division of the marital estate but rather went to supporting the judge's finding that the husband "has a far more optimistic outlook of financial stability" than the wife, a finding that holds even with the smaller inheritance. The judge could reasonably attribute the omission of that fact in the husband's testimony to the husband's own negligence, and find that the exact amount of the inheritance was not particularly important to the division of assets. Under such circumstances, the trial judge acted within her discretion in denying the husband relief.

6. Conclusion. The amended judgment of divorce nisi is affirmed, as are the orders denying the husband's postjudgment motions.

So ordered.

      The company is a C corporation and, therefore, is subject to the corporate income tax on any profits retained.

      The husband's father was approximately sixty-five years old when the defined contribution plan was established.

      Apparently because the beneficiaries of the trust did not have an "immediate and unrestricted right to possess" the trust assets, it remained in the father's estate for estate tax purposes. See Wooley v. United States, 736 F.Supp. 1506, 1509 (S.D. Ind. 1990).

      Although the judge noted that the husband listed this note as a personal asset, there is no indication that the judge double counted the $150,000.

      The wife makes no claim on appeal that the judge undervalued the company.

      The husband raises no challenge on appeal to the judge's ruling regarding the defined benefit plan.

      At the end of 2012, the defined contribution plan had a value of $1,573,389.67, and the defined benefit plan had a value of $494,414.05.

      In Amrhein, the transfer of the property from the husband individually to the trust was likely fraudulent and used "as a vehicle to conceal the husband's income and assets." 29 Mass. App. Ct. at 338, 560 N.E.2d 157.

      The husband's retained forty per cent of the defined contribution plan was $629,355.87 (as valued at the end of 2012). Even if the claimed share of the father is given a prorated share of the increase in value between the father's death and the end of 2012, the sister's share would appear to be no more than $369,000.

      The amount of cash held by M.E. Dilanian was relevant to the wife's claim that the husband was purposefully leaving cash and income in the company to reduce his income artificially.

      The husband's argument that the judge erred in finding that M.E. Dilanian had any value at all "due to its speculative nature" fails, as the husband testified that the value of the company was $200,000, and, as we have noted, the judge was entitled to credit his testimony. See Prenaveau, 81 Mass. App. Ct. at 496, 964 N.E.2d 353.

      Although the husband styled the motion as being made pursuant to the Massachusetts Rules of Civil Procedure, this case is governed by the Massachusetts Rules of Domestic Relations Procedure. See Mass. R. Dom. Rel. P. 1.

      The husband's motion invoked both rule 60(b)(1) and 60(b)(6), but he raises only rule 60(b)(1) on appeal.

      The wife conceded she was not entitled to share in the father's estate, and she was not awarded any part of the husband's inheritance in the divorce judgment. Cf. Davidson v. Davidson, 19 Mass. App. Ct. 364, 374-375, 474 N.E.2d 1137 (1985) (error to divide husband's after-acquired property in § 34 action, but potential inheritance may be considered in dividing marital property).


author: GREEN, C.J.

text:
    Michael RAUSEO, Trustee, v. BOARD OF ASSESSORS OF BOSTON.
    No. 18-P-288
    Appeals Court of Massachusetts, Suffolk..
    Argued October 11, 2018. Decided November 26, 2018.
    Douglas M. Kiernan, Boston, for the taxpayer.
    Adam Cederbaum, Assistant Corporation Counsel.
    Peter Antell, Boston, for Karen Gacicia & another, amici curiae, was present but did not argue.
    Present: Green, C.J., Hanlon, & Maldonado, JJ.

      Of the Broad/Franklin Development Trust.

   GREEN, C.J.

This appeal presents the question whether parking easements reserved by a condominium developer in the documents establishing the condominium, freely alienable and not appurtenant to any condominium unit, are (as the defendant board of assessors contends) subject to taxation as real property, or (as the plaintiff contends) ineligible for such taxation under G. L. c. 183A, § 14, because they are already taxed as part of the condominium common areas. The Appellate Tax Board agreed with the defendant, affirmed the denial of the plaintiff's applications for abatement, and the plaintiff appealed. We affirm.

Background. By condominium master deed dated February 15, 2006, and duly recorded with the Suffolk County registry of deeds, certain land and buildings located at 80 Broad Street in Boston were submitted to the provisions of G. L. c. 183A to form the Folio Boston Condominium (condominium). The condominium contains ninety-nine units, of which ninety-six are residential and three are commercial. As required by G. L. c. 183A, § 8, the master deed included, among other information, the unit designation of each unit; a statement of each unit's location, approximate area, and number of rooms, and the immediate common area to which it has access; and a description of the common areas and facilities and the proportionate interest of each unit therein.

Section 4(c)(ii)(a) of the master deed describes the "condominium parking area," including the "parking easements" located therein. In particular, the declarant under the master deed "reserves to itself and its successors and assigns and its or their designees, the exclusive right and easement from time to time to sell, convey, lease, rent or license easements for each of the Parking Spaces (the 'Parking Easements;' individually, a 'Parking Easement')." That section further provides that the declarant may sell, lease, or otherwise convey parking easements to unit owners or others, and that the parking easements shall be easements in gross. Parking easement owners also may convey any parking easement(s) they hold to unit owners or to nonunit owners, entirely separate from any interest in a condominium unit. The parking easements themselves are not appurtenant to any unit in the condominium, and do not relate to a designated parking space. The "condominium parking area" is described as located within certain specified limited common areas of the condominium. Section 4(c)(ii)(d) provides that, in the event the condominium is removed from the provisions of G. L. c. 183A, the parking easements will be deemed extinguished, but that the owners of the parking easements will be entitled to any insurance proceeds, eminent domain proceeds, or other financial remuneration obtained upon termination of the condominium and attributable to the parking easements. Parking easement owners bear all risk of loss arising from their easement interest, and they agree to indemnify, defend, and hold the condominium unit owners association harmless against all claims arising therefrom. All expenses associated with the parking easements are borne by parking easement owners and are not charged to condominium unit owners as part of common area expenses. Conversely, parking easement owners make no contribution to common area expenses, other than those attributable to the parking area.

By letter dated October 22, 2002, the Department of Revenue issued a letter to the defendant, authorizing it to assess separately from condominium units any easements in condominium parking areas that are easements in gross and not appurtenant to any condominium unit. The defendant thereafter apparently began assessing such parking easements as separate property interests; in the present case, at least, the defendant assessed and taxed thirteen parking easements owned by the plaintiff, and the plaintiff filed for abatements. The defendant denied the plaintiff's applications for abatement, and the plaintiff appealed to the Appellate Tax Board, which affirmed the denials. This appeal followed.

Discussion. Our role on review of a decision by the Appellate Tax Board is well settled: "[w]e will not modify or reverse a decision of the board if the decision is based on both substantial evidence and a correct application of the law." Boston Professional Hockey Ass'n, Inc. v. Commissioner of Revenue, 443 Mass. 276, 285, 820 N.E.2d 792 (2005). "Although the proper interpretation of a statute is for a court to determine, we recognize the [tax] board's expertise in the administration of tax statutes and give weight to the [tax] board's interpretations." Adams v. Assessors of Westport, 76 Mass. App. Ct. 180, 183, 920 N.E.2d 879 (2010), quoting Raytheon Co. v. Commissioner of Revenue, 455 Mass. 334, 337, 916 N.E.2d 372 (2009). The facts in the present case are undisputed, and we are solely concerned with the question whether the Appellate Tax Board correctly interpreted the law.

"We begin our discussion by recognizing that under common law, a property owner has the right to impose limitations or conditions on an estate that is conveyed to another ...." Queler v. Skowron, 438 Mass. 304, 310, 780 N.E.2d 71 (2002). "A condominium is created by a 'declarant' who records a master deed that 'submits' land to the provisions of G. L. c. 183A." Id. at 311, 780 N.E.2d 71. In imposing conditions or limitations on property submitted to G. L. c. 183A, "there is nothing in § 5 (c ) [of that chapter] that prohibits the declarant of a phased development from retaining such an interest by operation of the master deed itself." Id. at 313, 780 N.E.2d 71. See CBK Brook House I Ltd. Partnership v. Berlin, 64 Mass. App. Ct. 913, 913-914, 834 N.E.2d 1251 (2005). And the right to impose limitations on the interests submitted to the condominium form of ownership under the master deed is not limited to the retention of the right to withdraw land from the condominium ownership rather than proceed with the development of planned phases; "[i]n Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., [407 Mass. 123,] 128-130 [552 N.E.2d 66 (1990), the Supreme Judicial Court] ... concluded that a developer properly could retain an interest in land described in the master deed, but by doing so, ... 'its retention does not constitute a division of the common area' " in violation of G. L. c. 183A, § 5(c ). Queler, supra.

The retained interest at issue in Commercial Wharf E. Condominium Ass'n, 407 Mass. at 125, 552 N.E.2d 66, was an easement for parking, established by a "Declaration of Covenants and Easements" recorded immediately prior to the recording of the master deed establishing the condominium. Similarly, in CBK Brook House I Ltd. Partnership, 64 Mass. App. Ct. at 913, 834 N.E.2d 1251, the condominium declarant retained an affirmative easement for parking spaces located within a transient garage. In each case, the court recognized the validity of the retained interests against a claim that the rights properly should be considered part of the condominium common areas, so that their retention constituted an impermissible division of the common areas in violation of G. L. c. 183A, § 5(c ). See Commercial Wharf E. Condominium Ass'n, supra at 129-130, 552 N.E.2d 66 ; CBK Brook House I Ltd.Partnership, supra at 913-914, 834 N.E.2d 1251.

Taken together, Commercial Wharf E. Condominium Ass'n, Queler, and CBK Brook House I Ltd. Partnership make plain that an easement in gross for parking, reserved by a condominium declarant from the interests submitted under a master deed to the condominium form of ownership pursuant to G. L. c. 183A, is not a part of the condominium common areas. It follows that such an easement is subject to taxation as an interest separate from the units in the condominium.

First Main St. Corp. v. Assessors of Acton, 49 Mass. App. Ct. 25, 725 N.E.2d 1076 (2000), on which the plaintiff relies, is not to the contrary. In that case, we held that a reservation of development rights by a condominium declarant did not constitute a taxable present interest in real property, based in part on the conclusion that the land subject to those development rights was a part of the common areas of the condominium. Because the land was part of the condominium common areas, it was taxed as such, and as appurtenant to the condominium units, pursuant to G. L. c. 183A, § 14. See First Main St. Corp., supra at 28-29, 725 N.E.2d 1076. See also Spinnaker Island & Yacht Club Holding Trust v. Assessors of Hull, 49 Mass. App. Ct. 20, 23, 725 N.E.2d 1072 (2000). In the present case, while the area within which the parking easements are physically located is a part of the limited common areas of the condominium, the easements themselves were reserved by the declarant from the property interests submitted to the provisions of G. L. c. 183A, are not appurtenant to any condominium unit, are separately alienable as interests in real property, and are not (and never were) part of the condominium common areas.

Decisions of Appellate Tax Board affirmed.

      All parking in the condominium parking area is by valet, and no owner or user of a parking space is allowed to retrieve a vehicle from the parking area, except through the valet service.

      In its abatement applications and in its appeal, the plaintiff challenged only the defendant's treatment of the parking easements as taxable interests separate from the condominium common areas, and not the valuations of those easements.

      The reservation of interest in CBK Brook House I Ltd. Partnership was made by amendment to the master deed, recorded before any units had been conveyed. See 64 Mass. App. Ct. at 913, 834 N.E.2d 1251.

      That the easement is a nonpossessory interest does not derogate from its status as a present interest in real property. See, e.g., Davisson v. Commissioner of Revenue, 18 Mass. App. Ct. 748, 752, 470 N.E.2d 413 (1984). Neither party has raised any question whether an easement may be taxed as a separate interest, directly to the easement holder, rather than as an element of the value of the land comprising the servient estate burdened by the easement. We accordingly do not consider the question, other than to observe that it would make little practical difference in the present case inasmuch as the master deed provides that any taxes on the value of the parking easements imposed on the organization of unit owners would be passed through to the parking easement holders. But see Hamilton Mfg. Co. v. Lowell, 185 Mass. 114, 118, 69 N.E. 1080 (1904) (easement for railway, terminable upon occurrence of contingency, not taxable to easement holder instead of fee owner). See generally Worcester v. Boston, 179 Mass. 41, 48, 60 N.E. 410 (1901).

      The court in First Main St. Corp. also observed that, in any event, future development rights do not constitute a present interest in real estate. 49 Mass. App. Ct. at 28, 725 N.E.2d 1076.


author: MASSING, J.

text:
    V.M. v. R.B.
    No. 18-P-341
    Appeals Court of Massachusetts, Middlesex..
    Argued October 5, 2018 Decided November 28, 2018
    Karen D. Hurvitz for the defendant.
    V.M., pro se.
    Present: Massing, Ditkoff, & Englander, JJ.
   MASSING, J.

As a rule, a defendant who is the subject of an abuse prevention order issued ex parte at the commencement of an action brought under G. L. c. 209A may challenge the order at the ensuing hearing after notice -- not by an appeal to an appellate court. In this appeal, we consider whether proof of a "substantive dating or engagement relationship," G. L. c. 209A, § 1, at the ex parte hearing is a prerequisite for subject matter jurisdiction, warranting appellate review notwithstanding the extension of the ex parte order at the hearing after notice. We conclude that the existence of a substantive dating relationship is not jurisdictional; therefore, we dismiss the defendant's appeal from the ex parte order as moot and affirm the order after notice.

Background. The plaintiff, V.M., applied for an abuse prevention order against the defendant, R.B. On the Trial Court Department's "Complaint for Protection from Abuse (G. L. c. 209A)" form, she checked the box indicating that she and the defendant "are or were in a dating or engagement relationship." In her affidavit in support of her complaint, the plaintiff alleged that the defendant threatened her through text messages, phone calls, and in person over the course of Labor Day weekend in 2017. The affidavit did not describe the plaintiff's relationship with the defendant beyond stating that the defendant had called her "a whore" and told her that "now he would have to make sure he got tested."

At the ex parte hearing in the District Court on September 6, 2017, the judge questioned the plaintiff about the nature of her relationship with the defendant. The plaintiff testified that she and the defendant "were dating." Although they "never made it like official boyfriend/girlfriend," their relationship was exclusive in that she "wasn't having a relationship with anyone else" and he told her that "he was doing the same." At the conclusion of the hearing the judge entered an order prohibiting the defendant from abusing or contacting the plaintiff and requiring him to stay away from her, her residence, and her workplace.

Nine days later, on September 15, 2017, both parties appeared for a hearing before the same judge, the defendant being represented by counsel. The record before us is silent regarding the evidence presented at the hearing. The defendant provided us with only the transcript of the ex parte hearing; he intentionally did not order a transcript of the hearing after notice. The record indicates that the defendant filed a motion to vacate the restraining order and expunge the record at the hearing after notice, arguing, as he does in this appeal, that the judge lacked jurisdiction to extend the order because the evidence at the ex parte hearing failed to establish a substantive dating relationship. After the hearing, the judge extended the order for six months. Although the docket sheet does not reflect any action on the motion to vacate, the extension of the order effectively denied it.

Twenty-five days after the entry of the extended order, the defendant filed his notice of appeal from "the abuse-prevention order issued in this matter under purported authority of G. L. c. 209A." The plaintiff did not seek to extend the order further, and it expired on March 16, 2018.

Discussion. The defendant does not challenge the sufficiency of the evidence underlying the extension of the c. 209A order at the hearing after notice. Rather, he argues that the plaintiff failed to present sufficient evidence of a substantive dating relationship at the ex parte hearing, and that this failure divested the District Court of jurisdiction to hold the hearing after notice. We hold that the existence of a substantive dating relationship is an element of a c. 209A claim and not a prerequisite for subject matter jurisdiction. As a threshold matter, we address the availability of an appeal from an ex parte abuse prevention order.

1. Appellate review of ex parte abuse prevention orders. A defendant is not entitled to appellate review of an ex parte abuse prevention order if the order is terminated in the trial court at the hearing after notice. See Allen v. Allen, 89 Mass. App. Ct. 403, 403, 50 N.E.3d 836 (2016). In such a case, the judge's action of vacating the ex parte order at the hearing after notice, "accompanied by an order directing law enforcement agencies 'to destroy all record of such vacated order,' " id., quoting G. L. c. 209A, § 7, gives the defendant "all the relief [he] could obtain by means of a successful appeal." Allen, 89 Mass. App. Ct. at 407, 50 N.E.3d 836. Accordingly, an appeal from the issuance of the ex parte order would be moot. Id.

Nor is a defendant entitled to appellate review of an ex parte abuse prevention order if the order is extended in the trial court at the hearing after notice. In C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 89 N.E.3d 1198 (2017), the defendant challenged both the ex parte order and the extension of that order at the hearing after notice. After rejecting his claims with respect to the extension of the order, we declined to entertain his claims with respect to the ex parte order. "Simply put, a defendant is entitled to be heard on the issue of whether an order pursuant to G. L. c. 209A should have issued, and a defendant has the right to appeal the issuance of an order against him or her. However, a defendant is not entitled to relitigate each stage of the proceedings." Id. at 564, 89 N.E.3d 1198. When the order after notice is affirmed on appeal, the defendant may not revisit the issuance of the ex parte order because "that matter is moot: the ex parte order has been superseded by the order after notice. At the end of the day, even if there were some procedural irregularity in the issuance of the ex parte order, because we are upholding the issuance of the order after notice, there is no relief available to the defendant." Id. at 565, 89 N.E.3d 1198. The analysis is no different here, where the defendant challenges only the ex parte order and does not challenge the extension of the order on the merits.

2. Subject matter jurisdiction. The defendant does challenge the issuance of the order after notice in a roundabout fashion: he asserts that because the plaintiff failed to establish a substantive dating relationship at the ex parte hearing, the court lacked subject matter jurisdiction to extend the order at the hearing after notice. To be sure, "a fundamental tenet of law is that lack of subject matter jurisdiction is fatal to a plaintiff's claims." Everett v. 357 Corp., 453 Mass. 585, 612, 904 N.E.2d 733 (2009). And if the court lacks subject matter jurisdiction, "the judgment is void." ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 605, 729 N.E.2d 282 (2000).

The flaw in the defendant's argument is that the existence of a "substantive dating relationship" is merely an element of a claim for an abuse prevention order under G. L. c. 209A; it is not a jurisdictional requirement. "Subject matter jurisdiction is 'jurisdiction over the nature of the case and the type of relief sought.' " Town of Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520, 870 N.E.2d 67 (2007), quoting Black's Law Dictionary 870 (8th ed. 2004). "Simply put, the question is: 'Has the Legislature empowered the court to hear cases of a certain genre?' " Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 41, 980 N.E.2d 458 (2012), quoting Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 56-57, 927 N.E.2d 455 (2010).

Labeling a particular fact as jurisdictional has far-reaching consequences. The issue of subject matter jurisdiction can be raised at any time. ROPT Ltd. Partnership, 431 Mass. at 607, 729 N.E.2d 282. "Tardy jurisdictional objections can therefore result in a waste of adjudicatory resources and can disturbingly disarm litigants." Sebelius v. Auburn Regional Med. Ctr., 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). See, e.g., Everett, 453 Mass. at 612, 904 N.E.2d 733 (determination that Superior Court lacked subject matter jurisdiction required appellate court "to nullify an entire, completed civil jury trial"). Whether a particular fact is jurisdictional is primarily a question of Legislative intent.

The Legislature has unequivocally given the District Court, as well as the Boston Municipal Court and the Probate and Family Court, jurisdiction over this genre of case. Section 3 of G. L. c. 209A gives the "court" the power to hear cases in which a person alleging to be suffering from "abuse" by a "family or household member" -- as those terms are defined by G. L. c. 209A, § 1 -- seeks protection from such abuse, and to grant relief in the form of an abuse prevention order if the person establishes those facts. See C.O. v. M.M., 442 Mass. 648, 650, 815 N.E.2d 582 (2004). "Included within the definition of 'family or household members' are those individuals who are or have been engaged in a 'substantive dating or engagement relationship.' " Id., quoting G. L. c. 209A, § 1(e ). The Legislature provided a flexible set of factors for the "court" to determine the presence of a substantive dating relationship, "anticipat[ing] that the existence or absence of a 'substantive dating relationship' would be determined on a case-by-case basis." C.O. v. M.M., 442 Mass. at 652, 815 N.E.2d 582.

"Abuse prevention order proceedings were intended by the Legislature to be as expeditious and informal as reasonably possible," Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996), with an overriding focus on "the plaintiff's need for protection." M.G. v. G.A., 94 Mass. App. Ct. 139, 146, 112 N.E.3d 837 (2018). The Massachusetts Rules of Civil Procedure generally do not apply, see id. at 144-146, 112 N.E.3d 837, and "the rules of evidence need not be followed," Frizado v. Frizado, 420 Mass. 592, 597, 651 N.E.2d 1206 (1995). The Legislature surely did not intend to impose a two-tier framework in which the plaintiff must first prove jurisdictional facts before being permitted to request relief from abuse. Contrast, e.g., Abate v. Fremont Inv. & Loan, 470 Mass. 821, 829-831, 26 N.E.3d 695 (2015) (discussing procedural regime for establishing standing as "first step" of try title actions); Caffyn v. Caffyn, 441 Mass. 487, 491-492, 806 N.E.2d 415 (2004) (discussing domicil requirement for subject matter jurisdiction in no-fault divorce proceedings in context of Mass. R. Dom. Rel. P. 12 [b][1] motion to dismiss).

The defendant is correct that, in the circumstances of this case, the plaintiff was required to establish the existence of a substantive dating relationship to be entitled to relief, "but he is incorrect that this predicate fact constitutes a subject matter jurisdiction threshold." Doe No. 3974, 457 Mass. at 57, 927 N.E.2d 455. The elements that the plaintiff must establish to obtain relief are not equivalent to the "nature" or "genre" of the case, which determines subject matter jurisdiction. See id. ("The 'nature of the case' assigned to the board is distinguishable from the elements of a prima facie case before the board"). Thus, while the plaintiff has the burden "to establish facts justifying the issuance and continuance of an abuse prevention order," Frizado, 420 Mass. at 596, 651 N.E.2d 1206, a plaintiff's failure to establish a substantive dating relationship at the ex parte hearing would not deprive the court of jurisdiction.

Conclusion. Because proof of a substantive dating relationship at the ex parte hearing does not determine subject matter jurisdiction, and as the defendant has not otherwise shown error in the September 15, 2017, extension of the abuse prevention order, we affirm the September 15 order. As "there is no relief available to the defendant" from the issuance of the September 6, 2017, ex parte order, C.R.S. v. J.M.S., 92 Mass. App. Ct. at 565, 89 N.E.3d 1198, we dismiss the appeal from that order as moot.

So ordered.

      Given the view we take of this appeal, we express no opinion on the sufficiency of the plaintiff's proof of a substantive dating relationship at the ex parte hearing.

      In preparing the record on appeal, see Mass. R. A. P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998), the defendant designated for transcription the recording of the ex parte hearing "and only that recording," further stating, "In other words, the defendant does not designate the recording of the hearing [after notice] for inclusion in the transcript of the proceedings for purposes of appeal."

      The expiration of the order does not render this appeal moot. See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 565, 89 N.E.3d 1198 (2017) ; Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638, 700 N.E.2d 296 (1998).

      The defendant did not cite any appellate cases in support of his jurisdictional claim, because there are none. Rather, he relied exclusively on the Guidelines for Judicial Practice: Abuse Prevention Proceedings § 3:02 Subject Matter Jurisdiction, which erroneously suggests that establishing the relationship between the plaintiff and the defendant is necessary to confer "subject matter jurisdiction to issue an abuse prevention order under c. 209A." See M.B. v. J.B., 86 Mass. App. Ct. 108, 116, 13 N.E.3d 1009 (2014) (commentary in Guidelines suggesting that defect in venue is jurisdictional and cannot be waived "inconsistent with the statute, and the statute controls").

      Accordingly, the United States Supreme Court requires a clear statement of Congressional intent to rank a particular provision as jurisdictional. See Sebelius, 568 U.S. at 153-154, 133 S.Ct. 817, and cases cited therein. We have not developed an analogous test for acts of our Legislature.

      Where, as here, the only "family or household member" relationship asserted by the plaintiff is a "substantive dating or engagement relationship," the complaint must be brought in the "district, probate or Boston municipal courts"; where other types of family relationships are asserted, the complaint may also be brought in the Superior Court. G. L. c. 209A, § 1.