JUDITH E. BERNIER vs. STEPHEN A. BERNIER (and a companion case [Note 1]).

SULLIVAN, J. 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

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opinion. During the marriage the parties achieved financial success through the operation of two supermarkets that were owned by two S corporations, of which the husband and wife each owned one-half. Bernier I, 449 Mass. at 777. [Note 2] Before the initial trial in 2002, the parties agreed to an equal division of assets. At trial, the testimony centered principally on the value of the supermarkets, with the parties agreeing to establish the valuation of the markets as of December 31, 2000, the date of the last reconciliation of accounts prior to trial. Id. at 778 & n.5. Each party presented the testimony of an expert witness on valuation: Mark Leicester prepared the wife's valuation, and Joel Horvitz prepared the husband's valuation. Id. at 778. Although "Leicester and Horvitz were in broad agreement on key points," including that "the buyer of the supermarket shares would seek an investment that would yield the buyer's required rate of return," and that the most accurate estimate of the supermarkets' value would be achieved by employing the "income" approach to valuation, the experts arrived at markedly different appraisals of the supermarkets. Ibid. Leicester opined that the fair market value of the supermarkets was $16,391,000; Horvitz fixed the fair market value at $7,850,000. Ibid.

The discrepancy in the experts' valuations, the Supreme Judicial Court noted, was due primarily to Horvitz's application of "tax affecting," [Note 3] as well as certain other discounts to his

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calculations of fair market value, [Note 4] and Leicester's omission of those considerations. Bernier I, 449 Mass. at 778-779. The positions of the parties' experts were described by the court as follows:

"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. [ [Note 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."

Id. at 779. 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

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supplementation), awarding the husband the option to purchase the wife's fifty percent ownership interest in the supermarkets for $3,925,000, [Note 6] and certain other relief. Ibid.

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. [Note 7] Applying the C corporation rate of taxation to an S corporation, the court stated, "severely undervalues the fair market value of the S corporation by ignoring the tax benefits of the S corporation structure and failing to compensate the seller for the loss of those benefits." [Note 8] Id. at 776. The court reasoned that such a result was particularly misplaced in this case in view of the uncontroverted evidence that the supermarkets would continue to operate as S corporations after the parties' divorce; that they would continue to be owned by one of the existing shareholders; and that the supermarkets were profitable and would continue their historic practice of making cash distributions. Id. at 790. On the other hand, the court continued, in the circumstances of this divorce case, "failure entirely to tax affect an S corporation artificially will inflate the value of the S corporation by overstating the rate of return that the retaining shareholder could hope to achieve." Id. at 776. After review of the scant case law and pertinent literature on the subject, the court decided on an alternative approach to these two extremes and "adopt[ed] generally the metric employed by the Kessler court." Ibid.

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As explained in Bernier I, Kessler involved a radiology practice, operating as a closely held S corporation, where the dealings between the majority and minority shareholders were constrained by fiduciary considerations. Bernier I, 449 Mass. at 787. Three of the eight shareholders of the corporation (the Kessler group) wanted the majority shareholders (the Broder group) to buy out their shares. Id. at 787-788. The parties' experts differed markedly in their valuation of the shares -- the expert for the Broder group treated the S corporation as a C corporation in his valuation (applying forty per cent as the tax rate to the business's earnings); the Kessler group's expert did not tax affect earnings at all. The Delaware court found, for reasons similar to those set out by the Supreme Judicial Court, see supra, [Note 9] that neither expert's testimony concerning tax treatment was fair. Id. at 788.

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.[ [Note 10]] The result was to leave

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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

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the parties, as to what the Supreme Judicial Court intended when it directed that the Kessler metric or the Kessler approach be applied. The uncertainty arose in large part from the fact that, as the judge explained and the parties agree, when the Kessler valuation was set in 2004 the applicable Federal dividend tax rate was fifteen percent. However, as the judge and the parties also concluded, the applicable dividend tax rate on December 31, 2000, the date the parties agreed was to remain the valuation date of the supermarkets, was forty percent. [Note 11] The probate judge (the same judge who presided at the Bernier I proceedings) noted that the Supreme Judicial Court's decision in Bernier I did not address the change in the dividend rates.

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, [Note 12] took a different approach. In his report, which was an exhibit at trial, Merfeld stated that S corporation income flowing out to the shareholders of the two markets is subject to Federal and State tax as ordinary income. Merfeld, the judge found, thus applied a 5.85 percent Massachusetts State tax based upon the tax on income allocable to an individual residing in Massachusetts in 2000, and a 39.6 percent Federal tax rate as in effect for tax year 2000. The

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judge stated that, in total, Merfeld tax affected the value of the markets at approximately forty-six percent by combining the State and Federal individual tax rates. [Note 13] Merfeld ultimately valued the markets at $9,349,193.

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 mandate[]" that "not tax affecting the valuation was unfair." [Note 14] The judge stated that she did not agree that the intent of the Supreme Judicial Court "was to literally plug in the formula utilized in Kessler if in fact the tax rate was substantially different and would have resulted in a [zero percent] tax [affecting] rate." Similarly, the judge found that Merfeld's valuation ignored the import of the court's decision in Bernier I that (in the probate judge's view) any tax affecting rate above the rate of thirty-five per cent would undervalue the markets. The judge stated that to adopt a tax affecting rate of forty-six percent, which is higher than the husband's originally proposed "corporate tax rate" of thirty-five percent [Note 15] (a percentage, the judge indicated, the Supreme Judicial Court determined to be "too high") "would lead to an even more significant undervaluation of the supermarkets."

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

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the metric of the Kessler court, found that the application of a tax affecting rate of 29.4 percent was appropriate, the judge determined that she would use that tax rate in order to calculate the value of the markets. Indeed, the judge stated that the tax affecting rate of 29.4 percent was the only rate that she could apply to the valuation of the markets in the light of the Supreme Judicial Court's reliance on Kessler. Using a tax affecting rate of 29.4 percent, the judge found that the supermarkets had a combined total value of $11,366,129.

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) [Note 16] and fifty percent of the value of the markets as found by the court on remand ($5,683,065). [Note 17] The judge also ordered the husband to pay the wife the sum of $328,529, in order to equalize certain attorney's fees and costs paid by the markets.

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, [Note 18]

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argues that Bernier I (and Kessler), and the Supreme Judicial Court's later decision in Adams v. Adams, 459 Mass. 361 , 388-390 (2011) (involving partnership interests), stand for the proposition that subchapter S corporation earnings must be tax affected to avoid an inequitable result in the valuation process. In the husband's view, the "accident of timing" with respect to applicable tax rates should not control the outcome of this case. The husband argues that to avoid the "apparent inequities when the 'Kessler metric' is applied strictly on the basis of pure mathematics," the "tax rate to be applied by the trial court in tax affecting the valuation" of the supermarkets should be the Federal and State tax rates that were in effect in 2000 (i.e., an entity level tax of 4.5 percent [see note 13, supra], the Massachusetts individual income tax of 5.85 percent, and the Federal individual income tax of 39.6 percent).

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. [Note 19] Furthermore, application of the Kessler metric, even if it results (as in the present case) in a zero percent tax affecting rate, does not necessarily lead to an inequitable result. There is a distinction to be drawn between failing to tax affect at all the earnings of the supermarkets because an S corporation does not pay Federal taxes at the entity level (a basis for the approach taken by the wife's expert, Leicester, in Bernier I), and utilizing a zero percent tax affecting rate arrived at through application of "all applicable rates, as [the Supreme Judicial Court] ordered in Bernier [I]." Adams

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v. Adams, 459 Mass. at 390. See note 21, infra. The Kessler metric, as we have stated, attempts to capture the tax benefit to the buyer of S corporation shares of receiving taxable cash dividends that were not already taxed at the corporate level. Bernier I, 449 Mass. at 788. It does so by "calculat[ing] the effect of taxes on the buyers and the sellers," to wit, the judge asks: "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?" Id. at 789. In the instant matter, because the dividend tax rate in effect in 2000 was forty percent, a tax affecting rate of zero percent was necessary to achieve that result. [Note 20]

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. [Note 21]

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2. Postjudgment interest on new valuation of markets. The Supreme Judicial Court's orders for remand in Bernier I contain no direction with respect to the calculation of interest on the judgment. [Note 22] In various papers filed at the proceedings on remand, the wife requested interest on the new valuation of the markets, citing at one point to G. L. c. 235, § 8 (providing, inter alia, "[e]very judgment for the payment of money shall bear interest from the day of its entry . . ."), as appearing in St. 1983, c. 652, § 2. See Karellas v. Karellas, 54 Mass. App. Ct. 469 , 471 (2002) ("A judgment is the act of the trial court finally adjudicating the rights of the parties including a decision by the court that a party shall recover a sum certain"). Interest under the statute is paid as "compensation for delay." Trinity Church in the City of Boston v. John Hancock Mut. Life Ins. Co., 405 Mass. 682 , 684 (1989). Although the fourth amended supplemental judgment of divorce is silent with respect to interest, the judge, as the wife points out, stated at the hearing on the husband's later motion to stay judgment, "[T]hat's why I did not award interest on this money, which normally I would have,

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I think, because of the uniqueness of the issue." [Note 23] It would appear that the wife's request for interest was implicitly denied by the judge.

The wife, invoking both Massachusetts and Federal authority, [Note 24] argues that the probate judge erred in failing to order postjudgment interest on the $1,758,065 award to her pursuant to the new valuation of the markets for the period from the initial supplemental judgment on August 18, 2003, to the entry of the fourth amended supplemental judgment on September 1, 2009 [Note 25] (see the discussion in part A.1.b, supra). The wife asserts that this court should reverse and remand the matter to the Probate and Family Court with an order that she is entitled to postjudgment interest on any payment "attributable to the valuation of the markets made pursuant to appellate and/or remand proceedings."

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,

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there are uncertainties with respect to the time frame in which the wife seeks interest (see note 25, supra), and there is no indication the probate judge was afforded the opportunity to consider the specific arguments (and authorities) now advanced by the parties, we think the question of postjudgment interest should be revisited by the probate judge at the proceedings on further remand.

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." [Note 26] Ibid. In July, 2004, the judge dismissed the wife's equity action, stating, inter alia, that the wife's claims were barred under the doctrine of claim preclusion. Id. at 797. On the wife's appeal, the Supreme Judicial Court vacated the judgment of dismissal and remanded for further proceedings. Id. at 799. More specifically, the court concluded that the judge's actions and rulings in the case "effectively deprived the wife of a reasonable opportunity to bring the issue of income equalization during the post-2000 period

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before the court at an appropriate juncture, and that the equity complaint was therefore wrongfully dismissed." Id. at 796.

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, [Note 27] the probate judge, by a judgment dated September 1, 2009, ordered the husband to pay the wife the sum of $762,375.30 on her claim for an accounting, and stated that there shall be no payment of statutory interest on the money owed. The judge dismissed with prejudice the remaining counts of the amended complaint (see note 26, supra). Both parties have appealed.

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." [Note 28] The husband and wife filed individual tax returns in those years, and the husband paid the taxes on all of the income for all of the business entities, including the markets. It was the wife's position at trial that the judge should not deduct the actual taxes paid by the husband for 2002, 2003, and 2004. Rather, the wife argued that the deduction for taxes should be based on a hypothetical tax she would have paid if her share of the distributable income had been paid to her in each calendar year. The parties agreed that, if the judge were to utilize the wife's tax rate for her one-half of the income in the years at issue, her taxes would have been $245,279 less than the husband actually paid. [Note 29] The wife claimed that this was a loss for which she should be compensated, a claim the judge rejected.

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

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for the supermarkets. Those stipulations were in effect until August 18, 2003, when the supplemental judgment of divorce was entered. The judge found specifically that the husband relied on these stipulations, as well as various judgments of the court that did not change his obligation to pay all corporate taxes, in paying estimated and final taxes (the taxes accrued in 2002 and 2003). [Note 30] That the husband's final tax returns for 2002 and 2003 were actually filed after the wife filed her complaint in equity on July 28, 2003, and after the divorce judgment entered on August 18, 2003, does not, in our view, require a different result.

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), [Note 31] on the equalization payment of $762,375.30, from July 28, 2003, to the date of the equity judgment, September 1, 2009. See O'Malley v. O'Malley, 419 Mass. 377 , 381 (1995) (section 6C, concerning prejudgment interest in contract actions, commands a ministerial act in which interest attaches automatically). In the wife's view, the husband was found to have long owed her the sum of $762,375.30, and the accounting and payment could only be ordered as a result of breach of agreement (the parties' stipulations or the parties' S corporation agreements) or "breach of fiduciary duty/restitution." We fail to discern error, for the reasons set out below.

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

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equalization. See note 26, supra. Among other things, the wife moved specifically to amend the divorce judgment on the property division after her complaint in equity had been filed (appending to her motion a copy of the equity complaint) to provide for equalization of the supermarkets' income. [Note 32] Bernier I, 449 Mass. at 796-797. Such an approach would presumably call for the income equalization to be effectuated through a property division -- it would not constitute an award of damages. Had the wife been successful on her motion, it is difficult to perceive how she would have been entitled to prejudgment interest on the equalization amount. See Karellas v. Karellas, 54 Mass. App. Ct. at 474.

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

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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. [Note 33] The judge stated in her findings in the divorce case that there was nothing in Bernier I that would

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entitle the wife to an equalization of postjudgment fees and fees for the equity action.

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." [Note 34] Bernier I, 449 Mass. at 797-798. Furthermore, the court's

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specific concern that the husband might benefit unfairly (i.e., receive a "windfall") by simply moving "money from one source under his control to another," id. at 799, appears directed toward a period prior to a division of the parties' property. Finally, as the probate judge stated, the Supreme Judicial Court's directive, that the valuation of the supermarkets should be adjusted to take into account advances of legal fees for both parties, does not order the parties to equalize all attorney's fees and expenses incurred after monies were no longer advanced from the corporation. In the circumstances, we also agree with the judge that the wife was not entitled to an equalization of attorney's fees for the equity action. [Note 35]

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.

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APPENDIX A.

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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APPENDIX B [Note AppB-1]

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). [Note AppB-2] See ante at 87.

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APPENDIX C. [Note AppC-1]

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.