11 Mass. App. Ct. 1022

May 6, 1981

Marjorie E. Melisi (wife) brought a complaint for divorce against Joseph Melisi (husband) which the Probate Court granted on the ground of cruel and abusive treatment. The wife appeals from that part of the judgment

Page 1023

which dealt with division of property asserting that the trial judge failed to comply with the requirements of G. L. c. 208, Section 34 (as amended through St. 1977, c. 467), and that, consequently, the judgment was arbitrary and unreasonable.

"Because the evidence in this case is reported, `the appeal brings before us all questions of law, fact, and discretion.'" Krokyn v. Krokyn, 378 Mass. 206 , 208 (1979), quoting from Cohen v. Murphy, 368 Mass. 144 , 147 (1975). However, "the judge's findings, express or implied, will not be reversed unless clearly erroneous." Binder v. Binder, 7 Mass. App. Ct. 751 , 755 (1979). See Mead v. Mead, 2 Mass. App. Ct. 338 , 339 (1974). "General Laws c. 208, Section 34, gives the trial judge in a divorce proceeding discretion to assign to one spouse property of the other spouse in addition to or in lieu of a judgment to pay alimony." See King v. King, 373 Mass. 37 , 39 (1977); Rice v. Rice, 372 Mass. 398 , 400 (1977). "[Section 34] requires that before the judge exercise his discretion to award alimony or to assign estate assets he consider all of the criteria enumerated in Section 34, third sentence." Rice v. Rice, supra at 401. It is clear from the record that in making his findings, the judge considered and weighed all the factors which are listed in G. L. c. 208, Section 34. In fact, the judge demonstrated his awareness of the Section 34 factors and the need for their consideration when at his suggestion counsel elicited evidence on certain crucial considerations required by Section 34 which had been overlooked. The judge's findings were well within the permissible limits of his discretion. See Bianco v. Bianco, 371 Mass. 420 , 422-423 (1976). Rice v. Rice, supra at 400-401. Comparison of the trial transcript and the findings of fact indicate that those findings were largely based upon the wife's own testimony about her financial position. Upon the evidence before us, we cannot conclude that the findings were clearly erroneous. Neither party is to have the costs of the appeal. Mass.R.A.P. 26(a), as amended, 378 Mass. 925 (1979).

Judgment affirmed.