Bernier v. Bernier
Bernier v. Bernier
Opinion of the Court
In Bernier v. Bernier, 449 Mass. 774, 799 (2007) (Bernier I), the Supreme Judicial Court vacated that portion of the third amended supplemental judgment of divorce of the Probate and Family Court valuing the parties’ S corporations and remanded the matter for further proceedings concerning, among other things, the issue of “tax affecting.” More specifically, the court directed the probate judge to employ “the tax affecting approach” adopted in Delaware Open MRI Radiology Assocs. v. Kessler, 898 A.2d 290, 328-330 (Del. Ct. Ch. 2006) (Kessler). Bernier I, 449 Mass. at 790. The court also vacated the judgment of dismissal in the wife’s equity suit in which the wife had sought an accounting and equalization of income derived from the parties’ S corporations during a specified period. Id. at 796-799.
On remand, and after separate trials in the divorce and equity proceedings, the probate judge revalued the S corporations and entered a fourth amended supplemental judgment of divorce dividing the assets. By a judgment on the complaint in equity, the judge ordered the husband to pay the wife a certain sum but stated that there shall be no payment of statutory interest on the money owed. The parties’ appeals from the divorce and equity judgments have been consolidated in this court.
Notwithstanding the judge’s thoughtful analysis of the Kessler approach, set out in her supplemental findings of fact and rationale in the divorce case, for the reasons discussed below we are constrained to vacate the fourth amended supplemental judgment of divorce as it pertains to the valuation of the S corporations and remand the matter again to the Probate and Family Court. We affirm the judgment on the complaint in equity.
A. The divorce case. 1. Valuation of the S corporations/tax affecting, a. Background. The general background of the divorce case is set out in Bernier I and need not be rehearsed in detail. We concentrate here on the issue of tax affecting of the S corporations and draw liberally, both in our background description and discussion of the law, from the Supreme Judicial Court’s
The discrepancy in the experts’ valuations, the Supreme Judicial Court noted, was due primarily to Horvitz’s application of “tax affecting,”
“Horvitz tax affected as if the S corporation were a C corporation, at what he termed the ‘average corporate rate’ of thirty-five per cent.[5 ] ... He testified that tax affecting the S corporations at the C corporation rate was proper because, among other things, a person contemplating the purchase of an S corporation would factor into his probable rate of return the tax consequences of the purchase. Leicester, on the other hand, did not tax affect the supermarkets’ income in his valuation because, as he testified, an S corporation, unlike a C corporation, does not pay taxes at the entity level, and because no sale of the business was contemplated.”
The judge in the initial trial rejected Leicester’s valuation as “unreliable” and “adopted substantially without change Horvitz’s method of applying tax affecting and key [person] and marketability discounts to the supermarkets, and adopted his conclusion that the fair market value of the supermarkets on the relevant date . . . was $7,850,000.” Bernier I, 449 Mass. at 780. Thereafter, the judge entered a supplemental judgment on August 18, 2003 (which was later the subject of further
On the wife’s appeal, the Supreme Judicial Court concluded that the judge erred in adopting Horvitz’s valuation that tax affected the fair market value of the parties’ S corporations at a presumed “average corporate rate” of a C corporation. Bernier I, 449 Mass. at 775.
The Supreme Judicial Court then summarized the so-called Kessler metric or approach:
“Having rejected the rationale and conclusions of both experts, the Delaware court proposed an alternate approach. This approach attempted to capture the tax benefit to the buyer of S corporation shares (the Broder group) of receiving cash dividends that are not subject to dividend taxes. The court observed that, as is the case here, the buyout was an ‘involuntary removal,’ and not an arm’s-length purchase. To calculate the effect of taxes on the buyers and the sellers in these circumstances, the judge asked: if the S corporation at issue were a C corporation, at what hypothetical tax rate could it be taxed and still leave to shareholders the same amount in their pockets as they would have if they held shares in an S corporation? In other words, the judge asked what the effective corporate tax rate would be for the S corporation shareholder, although the entity itself paid no corporate tax. Assuming a dividend tax rate of fifteen per cent and a personal income tax rate of forty per cent (the shareholders were wealthy physicians who paid individual taxes at the highest rate), the court imputed a ‘pre-dividend’ corporate tax rate of 29.4 per cent to the S corporation.[10 ] The result was to leave*87 the shareholder of an S corporation with the same amount of money in his or her pocket as the shareholder of a C corporation being taxed at a (fictitious) 29.4 per cent corporate tax rate. Applying this rate to the earnings of the entity measures ‘with the greatest practicable precision the fair value of the . . . interest in the going concern value of’ the business.” (Citations and footnote omitted.)
Bernier I, 449 Mass. at 788-789. For an illustration of this approach, see the chart in Appendix B to this opinion.
The Supreme Judicial Court stated that although the probate judge did not have the benefit of the Kessler decision at the time she rendered her judgment, the judge, in the circumstances, should have looked past the “all-or-nothing” approach of the parties’ experts and paid particular attention to the facts of the case over more abstract considerations. Bernier I, 449 Mass. at 790. The court concluded that “the metric employed by the Kessler court provides a fairer mechanism for accounting for the tax consequences of the transfer of ownership of the supermarkets from one spouse to the other in the circumstances of record.” Ibid. As we have indicated, the court directed the judge, on remand on the issue of valuation, “to employ the tax affecting approach adopted in Kessler.” Ibid.
b. The proceedings on remand. The proceedings on remand were marked by some uncertainty, and disagreement between
The wife’s business valuation expert, Howard Gordon, testified that he used the formula set forth in Kessler but applied the dividend tax rate that was in effect in 2000 (i.e., forty percent). This resulted, as the judge noted, in a zero percent tax affecting rate because the personal dividend tax rate at the time of the stipulated date of valuation was the same as the applicable personal income tax rate, forty percent. For illustration, see the chart contained in Appendix C to this opinion. Utilizing a tax affecting rate of zero percent, Gordon valued the supermarkets at a combined value of $14 million.
David Merfeld, the husband’s tax expert,
Finding that both parties “took unreasonable positions in regards to their interpretation of the [Supreme Judicial Court’s] ruling” in Bernier I, the judge rejected both experts’ new valuations for the markets. More specifically, the judge found that the Gordon valuation, which utilized a zero percent tax affecting rate, overlooked the Supreme Judicial Court’s “clear mandated” that “not tax affecting the valuation was unfair.”
Having rejected the opinions of valuation of the parties’ experts, the judge arrived at a different valuation of the supermarkets. Stating that the Supreme Judicial Court, in adopting
By a fourth amended supplemental judgment of divorce dated September 1, 2009, the judge ordered that the husband purchase the wife’s fifty percent interest in the markets for the sum of $5,683,065. The husband was provided sixty days in which to pay the wife the sum of $1,758,065, representing the difference between the fifty percent payment under the third amended supplemental judgment ($3,925,000)
c. Analysis. On appeal, each party claims error in the judge’s valuation of the supermarkets. The wife takes the position that the judge, on remand, was required to follow strictly the mandate of the Supreme Judicial Court to apply, in valuing the supermarkets, the method defined by the Kessler court, and that the judge “essentially ignored Kessler’s method and the formula it and the Supreme Judicial Court adopted, and instead . . . , and incorrectly, used the tax rate that the Kessler court applied in the case before it,” a rate which was predicated on a valuation date of 2004, not 2000. The husband, while acknowledging that a strict application of the Kessler metric (applying tax rates for the year 2000) results in a zero percent tax affecting rate,
While resolution of the issue is not a foregone conclusion, in interpreting Bernier I, we think the wife presents the more cogent position. Consequently, we reject the approaches taken by the judge on remand and by the husband, both on remand and on the appeal.
As we have stated, the Supreme Judicial Court adopted generally the metric employed by the Kessler court and directed the judge, on remand on the issue of valuation, to apply the tax affecting approach adopted in Kessler. The wife’s expert, Gordon, as both the judge and the husband appear to acknowledge, utilized the Kessler metric in valuing the markets. Strictly speaking, the valuation proffered by Gordon is consistent with the Supreme Judicial Court’s mandate.
At best, the husband’s argument is that Bernier I requires generally a tax affecting Kessler “approach,” not literal application of the Kessler metric. Putting to one side the fact that such an argument ignores much of the Supreme Judicial Court’s tax affecting discussion in Bernier I, there was no evidence that the methodology proposed by the husband on remand, i.e., the combination of personal income tax rates, constituted an accepted form of tax affecting for purposes of valuing an S corporation. As we have stated, Merfeld, the husband’s sole expert, was a tax expert who had never valued a business or S corporation. The husband on remand offered no expert testimony from a business valuation expert concerning tax affecting. To the extent the husband claims additional support for his valuation/tax affecting position in Adams v. Adams, supra, we fail to discern anything in that case that would cause us to reach a different result.
The wife, invoking both Massachusetts and Federal authority,
As we are vacating that portion of the fourth amended supplemental judgment concerning the valuation of the supermarkets (under which the figure of $1,758,065 was derived) and remanding the matter for additional adjustments, we also treat as vacated the implicit denial of postjudgment interest on the specific amount awarded. In the circumstances presented here, where (among other things) new orders concerning the valuation of the markets and the payments to be made by the husband have yet to enter,
B. The equity case. 1. Background. As explained in Bernier I, the parties entered into stipulations for temporary orders during the divorce that provided, among other things, that both “would continue to own the supermarkets and equally share their profits during the pendency of the divorce.” Bernier I, 449 Mass. at 796. The net income of the supermarkets was equalized through the end of 2000, leaving unequalized income of about $3.6 million yearly for the period from January 1, 2001 (the day after the last reconciliation of the parties’ accounts), to February 2, 2004 (the date the husband exercised his option to purchase the wife’s ownership interest in the supermarkets), “during which the wife continued to be a fifty per cent shareholder of the supermarkets.” Ibid. Following a corporate meeting of the supermarkets on July 10, 2003, at which the husband asserted that the income of the supermarkets was entirely his, the wife, on July 28, 2003, filed a complaint in equity (later amended) seeking, among other things, “an accounting and equalization of income for the post-2000 period.”
Following a trial on the amended complaint in equity, where the issue was the equalization of the net income of the markets during the period in question,
2. Tax liability. In arriving at the amount to be paid to the wife, the judge considered “what deduction should be made from the market[s’] net distributable income for income taxes between 2002 [and] 2004.”
Contrary to the wife’s assertion, we fail to discern error in the judge’s failure to, essentially, credit her with the additional sum of $245,279. Among other things, the judge noted that the parties had entered into various stipulations that became orders of the court, which required the husband to make tax payments
3. Prejudgment interest. The wife argues that she was entitled to, and the judge erred in failing to order, statutory prejudgment interest pursuant to G. L. c. 231, § 6C (interest added to damages in contract actions), § 6H (interest on damages not otherwise provided by law), and § 6B (interest added to damages in specified tort actions),
As the husband suggests in his brief, the complaint in equity in this case cannot be viewed in a vacuum; it arises from the marital relationship and the divorce proceedings, which called for a division of the marital assets. As we have indicated, the Supreme Judicial Court in Bernier I set out the chronology of the wife’s attempts, through different procedural vehicles filed within a short period of time, to introduce the matter of income
Through her alternate request for an accounting and an order for payment in her equity action (the dismissal of all other counts is not challenged on the appeal) the wife sought, similarly, to equalize the markets’ income. However, the wife now appears to characterize the judge’s income equalization award as damages under the prejudgment interest statutes. In the peculiar circumstances of the case, and the context in which the matter of income equalization arose, we are not persuaded that the judge’s accounting and order for payment constitute an award of damages on which prejudgment interest is to be added.
C. Equalization of attorney’s fees and costs. At the close of its discussion of the complaint in equity in Bernier I, the Supreme Judicial Court commented with respect to the equalization of attorney’s fees:
“In the novel and complex circumstances of this case, we conclude that valuation of the markets and equal distribution of property are not issues that are easily separable. The parties’ original stipulations provided that the supermarkets would advance the parties’ attorney’s fees, with the payments ‘debited to the party’s account who has incurred those expenses,’ and that such payments would*99 be considered loans repayable by each party on the ‘final division of [the] marital assets.’ The parties agreed to an equal division of the marital assets and the supermarkets. Each party has expended a considerable sum for legal representation toward the joint goal of valuing the supermarkets and dividing these assets. A final equalization of the supermarkets should incorporate the fees paid to attorneys for each party, and be treated so that each party is effectively debited with half of the attorney’s fees. To fail to do so would leave the wife to pay her entire legal expenses out of her own pocket while the husband effectively would receive a windfall by simply moving money from one source under his control to another.”
Bernier I, 449 Mass. at 798-799.
The court concluded that “the valuation of the supermarkets should be adjusted to take into account advances of legal fees for both parties since the December 31, 2000, reconciliation.” Id. at 799.
At the proceedings on remand, the parties disagreed as to the meaning and intent of the Supreme Judicial Court’s directive with respect to the “time frame” over which the attorney’s fees were to be equalized. The husband argued that the probate judge was to equalize the attorney’s fees through the date of the entry of the supplemental divorce judgment dated August 18, 2003. The wife took the position that the end date for the equalization period, although not specified by the Supreme Judicial Court, must be the termination of the proceedings before the Probate and Family Court, including the appeal and remand proceedings. The wife also asserted that the equalization of attorney’s fees should apply to the equity case as well as the divorce case.
The judge ultimately concluded that it was the intention of the Supreme Judicial Court that the equalization of attorney’s fees occur as of August 18, 2003, and, in the fourth amended supplemental judgment of divorce, ordered the husband to pay the wife, as an additional payment for her share of the business, the sum of $328,529.
Seizing upon the language of the Supreme Judicial Court that the parties agreed to an equal division of the marital assets and the supermarkets and that “[a] final equalization of the supermarkets should incorporate the fees paid to attorneys for each party,” Bernier I, 449 Mass. at 799, the wife argues that “where a critically important part of the equalization could only occur well after the initial judgment, it was error for the court to impose an August 18, 2003 cutoff date.” Put another way, the wife asserts that the Supreme Judicial Court’s rationale — the parties’ equal sharing of the cost of getting a right result in these cases —■ logically extends the equalization through the present appeal. The wife also argues that the probate judge erred by failing to equalize the attorney’s fees from the equity case, particularly where the Supreme Judicial Court ordered equalization specifically as part of its discussion in the equity case.
We agree with the probate judge that the probable intent of the Supreme Judicial Court was to equalize the attorney’s (and other) fees as of August 18, 2003. At the outset, the Supreme Judicial Court made reference to the parties’ original stipulation concerning the advancement to the parties of attorney’s fees and the payment of those fees. That stipulation, as the probate judge noted, was dated January 10, 2001. The Supreme Judicial Court indicated that the stipulations of the parties “were entered as temporary orders to govern spending (e.g., salary, attorney’s fees, and expenses) only until the divorce judgment entered.”
D. Conclusion. We vacate the portion of the fourth amended supplemental judgment of divorce concerning valuation of the parties’ S corporations (as well as the implicit denial of the wife’s request for postjudgment interest) and remand the matter to the Probate and Family Court for further proceedings and amendment to the judgment not inconsistent with this opinion. On remand, the judge may hold such hearings as she deems necessary. That judgment is otherwise affirmed. The judgment on the complaint in equity is affirmed.
So ordered.
General illustration of Federal income tax benefit to S Corporation shareholders, adapted from Delaware Open MRI Radiology Assocs. v. Kessler, 898 A.2d 290, 329 (Del. Ct. Ch. 2006) (Kessler), as discussed in Bernier v. Bernier, 449 Mass. 774, 782 n.15 (2007) (Bernier I). See ante at 83 n.2.
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Illustration of tax affecting approach of Delaware Open MRI Radiology Assocs. v. Kessler, 898 A.2d 290, 330 (Del. Ct. Ch. 2006) (Kessler) (using year 2004 tax rates), described and adopted in Bernier v. Bernier, 449 Mass. 774, 787-790 (2007) (Bernier I).
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Illustration of tax affecting approach of Delaware Open MRI Radiology Assocs. v. Kessler, 898 A.2d 290, 330 (Del. Ct. Ch. 2006) (Kessler), using year 2000 tax rates. See ante at 88.
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The husband and wife, as equal shareholders, had elected that the supermarkets be taxed under the provisions of subchapter S of the Internal Revenue Code, 26 U.S.C. §§ 1361-1379 (2000). Bernier I, 449 Mass. at 782. Unlike a traditional C corporation, the income of which is “subject to income tax at both the corporate (or entity) level and the shareholder level on dividends, if any, paid to shareholders . . . , the income of an S corporation is not subject to Federal tax at the entity level . . . but is passed through and taxed to the shareholder when earned by the corporation, whether or not the corporation pays dividends.” Id. at 775 n.2. See J.S. v. C.C., 454 Mass. 652, 660 n.10 (2009). The shareholders of an S corporation thus “enjoy the considerable benefit of avoiding the ‘double taxation’ of corporate dividends that is the hallmark of the C corporation.” Bernier I, 449 Mass. at 782. The Supreme Judicial Court demonstrated in Bernier I the cognizable tax benefit to S corporation shareholders by way of an example adapted from Kessler. Bernier I, 449 Mass. at 782 n.15. In Appendix A to this opinion, we have set out and illustrated by chart the court’s example.
The Supreme Judicial Court stated that “[i]n the context of valuation of the stock of an S corporation, ‘tax affecting’ is employed in what the parties
Horvitz additionally discounted the fair market value of the supermarkets by applying “key [person]” and “lack of marketability” discounts. Bernier I, 449 Mass, at 779. The Supreme Judicial Court ultimately determined that these discounts were not appropriate in the present case. Id. at 790-792. On remand, neither of the parties’ experts made adjustments for these particular discounts, and the discounts are not implicated in the present appeals.
The Supreme Judicial Court later stated that “[t]hroughout his testimony, Horvitz was notably imprecise in explaining his use of a thirty-five per cent tax rate.” Bernier I, 449 Mass. at 784 n.19.
On February 2, 2004, the husband exercised his option to purchase the wife’s fifty percent ownership interest in the supermarkets. Bernier I, 449 Mass. at 781. The parties agree that on February 4, 2004, the husband paid the wife the then-ordered value for her one-half ownership interest in the markets.
The court emphasized, as a preliminary matter, that “where valuation of assets occurs in the context of divorce, and where one of the parties will maintain, and the other be entirely divested of, ownership of a marital asset after divorce, the judge must take particular care to treat the parties not as arm’s-length hypothetical buyers and sellers in a theoretical open market, but as fiduciaries entitled to equitable distribution of their marital assets.” Bernier I, 449 Mass, at 775-776, citing G. L. c. 208, § 34.
On this point, the court stated, more particularly, that “the judge erred in adopting in all material respects Horvitz’s valuation that tax affected at thirty-five per cent when doing so was not reasonable, as it would clearly produce an arbitrary result: a significant undervaluation of the supermarkets” (footnote omitted). Bernier I, 449 Mass. at 787.
The Delaware court’s rationale is further explicated in note 10, infra.
In Bernier I, 449 Mass. at 789, the Supreme Judicial Court added here its
“The Delaware court determined the 29.4 per cent figure by creating fictional percentages to represent Federal corporate tax at the entity level and dividend tax at the shareholder level, to arrive at the same figure that would be left in the pockets of shareholders of an S corporation after taxing one hundred dollars of earnings (i.e., sixty dollars resulting after taxing one hundred dollars of earnings at the rate of forty per cent as in our example . . . ). To derive this fictional figure, the court worked in reverse. To achieve a posttax income of sixty dollars (after corporate entity tax and dividend tax), the figure to tax would be $70.60 (fifteen per cent of $70.60 is $10.60, and subtracting the latter from the former arrives at sixty dollars). To arrive at $70.60 from the total one hundred dollars of earnings, the court subtracted 29.4 per cent, the appropriate fictional tax rate. Phrased differently, the court asked at what rate a C corporation would be taxed at the entity level to permit the shareholder to receive a distribution of sixty dollars (as he would from an S corporation) rather than the fifty-one dollars he would have received as a C corporation shareholder. That differential rate captures the benefit of ownership in the S corporation.”
There was a change in the Federal taxation of dividends between 2000 and 2004. See Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub. L. No. 108-27, 117 Stat. 752. See generally Bank, Dividends & Tax Policy in the Long Run, 2007 U. 111. L. Rev. 533, 533-534 & nn.l, 11; Internal Revenue Service Publication No. 553, at 2 (rev. Jan. 2004). See also Internal Revenue Service Publication No. 550, at 19 (2000); Internal Revenue Service Publication No. 550, at 19-21 (2004).
Merfeld is a certified public accountant who does primarily tax planning and tax return preparation with some financial statement preparation and litigation support. He has no experience in business valuation or the valuation of S corporations. The judge qualified him as a tax expert.
The exhibits reflect that Merfeld also applied a Massachusetts S corporation tax at the entity level (as in effect in the year 2000) of 4.50 percent.
In support of her position, the probate judge pointed, among other things, to the following language in the Supreme Judicial Court’s discussion of Kessler in Bernier I: “On the other hand, the judge in Kessler reasoned, not tax affecting at all was also unfair, because it would lead to a windfall for the minority sellers. ‘[Denying] the reality that each shareholder owes taxes on his proportional interest in [the business] would result in the [Kessler group] receiving a higher per share value from the court than it could ever have realized as a continuing shareholder.’ ” Bernier I, 449 Mass. at 788, quoting from Kessler, 898 A.2d at 328-329. This would be the result, the probate judge stated, were she to accept Gordon’s valuation.
See note 5, supra, and accompanying text.
See note 6, supra, and accompanying text.
The parties agree that the husband paid the wife the sum of $1,758,065 on March 1, 2010, and appear to be in substantial agreement that the husband paid the wife interest on that sum (for the period from about October, 2009, to March 1, 2010), as calculated by the Probate and Family Court in a subsequent judgment of contempt dated May 17, 2010.
The husband states in his brief that “this result would be technically accurate strictly on the basis of mathematics.”
The husband indicated in his brief, and he conceded specifically at oral argument, that his approach to valuation does not adhere to the Kessler metric.
The parties agreed at the first trial in this matter, and in the proceedings on remand, that the valuation date of the supermarkets was to be December 31, 2000. Bernier I, 449 Mass. at 778 n.5. Data in the case were calculated as of that date. The flaw in the probate judge’s use on remand of a 29.4 percent tax affecting rate (the precise figure adopted by the Kessler court and discussed in Bernier I) is that that figure assumes a dividend tax rate of fifteen percent, the rate that was in effect in 2004. Id. at 789. While the probate judge clearly sought to reach what she viewed as an equitable result in this difficult and complex case, her ultimate determination of the value of the supermarkets, which utilizes a 29.4 percent tax affecting rate, cannot stand, because the 29.4 percent tax rate bears no relationship to, and is contrary to, the parties’ stipulated valuation date of December 31, 2000.
In Adams, 459 Mass. at 388, the special master tax affected (by deducting
We note that Rule 37 of the Federal Rules of Appellate Procedure, as amended effective Dec. 1, 1998, provides: “(a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered[;] (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.” Rule 37(a) finds expression in our case law. See Thomas O’Connor & Co. v. Medford, 20 Mass. App. Ct. 761, 765 n.6 (1985), and cases cited. There is no Massachusetts analogue for rule 37(b). Ibid.
The parties disagree as to the meaning of the judge’s comment, in context, and what the judge was referring to when she explained that she did not award interest.
See, e.g., Thomas O’Connor & Co. v. Medford, 20 Mass. App. Ct. 761, 765 n.6 (1985); Cordero v. De Jesus-Mendez, 922 F.2d 11, 16 (1st Cir. 1990) (“In general, where a first judgment lacks an evidentiary or legal basis, post-judgment interest accrues from the date of the second judgment; where the original judgment is basically sound but is modified on remand, post-judgment interest accrues from the date of the first judgment”). See also Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 97 (3d Cir. 1993) (“The standard for determining whether post-judgment interest should run from the original judgment is well established. . . . [T]he decision turns on the degree to which the original judgment was upheld or invalidated on appeal”).
There is some uncertainty in the wife’s brief as to the time frames in which she is asserting her entitlement to postjudgment interest. Notwithstanding her statement in the “argument” section of her brief that the judge erred by failing to order interest on the $1,758,065, from August 18, 2003, the wife indicates in the “conclusion” section of her brief that she is entitled to interest from February 4, 2004. Similarly, although the wife indicates at one point in her brief, as we have stated, that postjudgment interest should run to September 1, 2009, she states at another point that it should run to March 1, 2010.
The amended complaint in equity contained four counts: (1) request for an accounting and an order for appropriate payment to the wife; (2) breach of fiduciary duty; (3) waste of corporate assets; and (4) constructive trust.
The Supreme Judicial Court noted that the wife had also sought, unsuccessfully, to introduce the matter of income equalization through a complaint for contempt and a motion to amend the divorce judgment on property division. See Bernier I, 449 Mass. at 796-797, for a full description of the chronology and actions taken by the wife.
At trial, the wife claimed that she was owed $1,082,785.80; the husband put the figure at $509,816.30.
The parties filed joint tax returns in 2001.
The $245,279 figure represents “excess taxes” purportedly paid by the husband in the amount of $50,848 for the tax year 2002, $190,142 for the tax year 2003, and $4,289 for the tax year 2004. The amount for the 2004 tax year borders on de minimis.
The judge noted also that the wife did not seek an order for instructions as to how the taxes were to be paid.
“Damages” has been defined as “the word which expresses in dollars and cents the injury sustained by a plaintiff.” Rood v. Newberg, 48 Mass. App. Ct. 185, 195 (1999), quoting from Turcotte v. DeWitt, 333 Mass. 389, 392 (1955).
In discussing why principles of res judicata and claim preclusion were not applicable to the wife’s complaint in equity, the Supreme Judicial Court also suggested that the issue of income equalization might have been an appropriate subject in the divorce action: “The wife could not have known in advance of the divorce judgment that that judgment would not address equalization for the post-2000 period, a matter that was clearly set before the judge months before the judgment issued.” Bernier I, 449 Mass. at 798.
The judge found that from the commencement of the divorce through
In a footnote in its discussion of the equity action, the court stated: “The stipulations controlled what monies the parties could take from the super
The husband argues on appeal that the judge erred in calculating the adjustments to be made for payment of attorney’s fees and costs. He claims that under the equalization methodology employed by the judge, the wife owes him the sum of $328,529. As the husband’s notice of appeal was limited to the provision of the fourth amended supplemental judgment concerning the valuation and division of the supermarkets, we do not address his contention. See Sturges v. Chilmark, 380 Mass. 246, 262 (1980) (“Of course, that portion of the judgment from which no appeal was taken stands”).
his chart is consistent with the chart in Kessler and with chalk C at the trial on remand after Bernier I.
At least one commentator has put aspects of the Kessler metric to formulation. See McMorrow, Consider “Tax Affecting” When Setting the Value of an S Corporation, Bus. Entities, NovVDec. 2008, at 36, 45.
rhis chart is consistent with chalk D used at the trial on remand after Bernier v. Bernier, 449 Mass. 774 (2007) (Bernier I).
The phrase “available after dividends” was employed in Kessler, and was characterized in Bernier I as meaning “total posttax distributions,” assuming that all net earning were distributed. Bernier I, 449 Mass. at 782 n.15, 789 n.26.
The phrase “available after dividends” was employed in Kessler and was characterized in Bernier I as meaning “total posttax distributions,” assuming that all net earnings were distributed. Bernier I, 449 Mass. at 782 n.15, 789 n.26.
he phrase “available after dividends” was employed in Kessler and was characterized in Bernier I as meaning “total posttax distributions,” assuming that all net earnings were distributed. Id. at 782 n.15, 789 n.26.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.