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Merrill v. Johnson, Appeals Court of Massachusetts, Unpublished Disposition No. 11-P-1830, September 19, 2012

In Merrill v. Johnson, the Massachusetts Appeals Court, pursuant to Rule 1:28, affirmed a trial court’s judgment of divorce which did not grant the husband a portion of the wife’s $12 million interest in family trusts.

The wife held an interest in family trusts, namely the "Merrill Trusts" and the "Hancock Trust." The Probate and Family Court found that the parties lived a modest lifestyle during the marriage, maintained separate assets, filed separate tax returns and planned for the future separately. The judge further found with regard to the Merrill Trusts, that there was no use of any income or principal from the trusts during the marriage, and the wife had no right to receive any distributions from the trusts until the death of her father, so that the wife’s interest was contingent. The judge left the parties with the assets they each brought into the marriage, gave each half of the equity earned during the marriage in the martial home, and awarded the husband most of the non-trust marital assets to offset the likelihood that the wife will acquire more assets in the future. The husband appealed the amended supplemental judgment of divorce and order denying his motion to vacate.

 With regard to the Merrill Trusts, the appellate court found that the judge "fully considered the wife’s interests in the trusts and the extent to which her future inheritance was woven into … the marriage." As a result, the Appeals Court found that the judge properly exercised her discretion by awarding the husband most of the non-trust assets to compensate the husband for the likelihood that that wife would acquire assets in the future. With regard to the Hancock Trusts, the Appeals Court found that the wife’s interest were contingent upon her father’s death and revocable at her father’s discretion, such that her interest was not fixed and not enforceable. The Appeals Court held that the judge correctly considered it an expectancy under the § 34 criterion of "opportunity of each for future acquisition of capital assets and income" and that the "non-equal allocation of non-trust assets to the husband [was] appropriate." With regard to the marital home, the Appeals Court held that the judge properly considered the husband and the wife’s contribution to the home such that the award was not "plainly wrong and excessive." The husband’s appeal of the order denying his motion to vacate and his requests for costs and fees were denied.