DAWN F. WILLIS vs. ROY E. WILLIS.

In assigning property in a proceeding brought under G. L. c. 208, Section 34, subsequent to a final divorce judgment -- the property rights of the parties had not been adjudicated previously, see Hay v. Cloutier, 389 Mass. 248, 252 (1983); Maze v. Mihalovich, 7 Mass. App. Ct. 323, 326 (1979), -- a probate judge used the date of the judgment of divorce nisi as the date for valuation of the marital home, rather than the date of his order of division. Finding that the wife had made "no contribution of any kind to the marriage" after her move from the marital home, the judge concluded that the "marital

Page 1145

partnership ended at that time as to all matters relative to property." [Note 1] Believing that Savides v. Savides, 400 Mass. 250 (1987), requires the use of the earlier date, the judge accorded the property a value of $55,000, although uncontroverted evidence indicated the property was worth $115,000 at the time of his order. He awarded the wife $22,000, a figure which was approximately fifty-seven percent [Note 2] of the net equity of $38,500, after deducting a mortgage of $11,000 and costs of sale. [Note 3]

The wife, in appealing from that portion of the judgment assigning her an amount representing a portion of the equity of the marital home, [Note 4] claims, relying on Davidson v. Davidson, 19 Mass. App. Ct. 364, 376-377 (1985), that the marital home should be valued as of the date of the order for division, i.e., at $115,000.

In excluding the wife's participation in the appreciation of value of the marital home, the judge misconstrued the import of the Savides case. In Davidson v. Davidson, 19 Mass. App. Ct. at 376, cited by the Supreme Judicial Court in Savides at 253, this court stated that property is to be valued at the time of the order for division so that, as in the case of a division of property at the time of a divorce, the parties equitably share in any appreciation or depreciation in value. We, however, cautioned: "Of course, the principles which apply to after-acquired property may come into play with respect, for example, to improvements to real estate to which an increase in value may fairly be attributed . . . ." Davidson at 376-377. It was these principles, applicable to after-acquired property, which were the basis of the Savides decision. There, the husband's business had grown substantially after the parties' separation, id. at 251, and the Supreme Judicial Court, specifically referring to Davidson v. Davidson, stated that the wife had "made no contribution to the marriage after that time and the increase in value was solely attributable to the husband's efforts" (emphasis supplied). Savides at 253.

Page 1146

No evidence was adduced in the present case to suggest that the increase in value of the marital home was a result of the husband's post-divorce efforts. Accordingly, the award to the wife should have been based on the property's value at the time of the order for division.

The wife also urges error in the failure of the judge to award counsel fees. There was no abuse of discretion in his determination that each party should pay his or her own counsel fees. Moreover, the judge's findings that the trial took longer than necessary and that the matter was made unnecessarily complicated by wife's counsel were not clearly erroneous. [Note 5]

The first paragraph of the judgment (awarding the wife a sum representing a portion of the equity of the marital home) is vacated. The matter is remanded to the Probate Court to redetermine the award to the wife relating to the equity of the marital home in a manner consistent with this opinion. The judge may, in his discretion, determine that the property should be sold. The remainder of the judgment is affirmed.

So ordered.