9 Mass. App. Ct. 869

March 10, 1980

1. The master's findings established that the use made of the specified portion of lot 134 in 1958 was not different in nature, purpose, quality, character, or effect on the neighborhood (see Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311 , 313-315 [1976]) from the use made of the same portion in 1942, the year Seekonk's first zoning by-law was adopted. As in Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 659-660 (1973), there was "a difference in degree of such use, but not in the quality or character thereof." The use to which that portion was put in 1958 was thus a lawful use under the 1942 by-law. It therefore became a protected nonconforming use under the 1958 by-law, which superseded the earlier by-law and provided that ". . . any lawful use of land . . . which is not an authorized use in the district in which it is located by virtue of the adoption or subsequent amendment of this by-law is a non-conforming use and may be continued." It follows that the judgment is erroneous in limiting the lawful capacity of the defendants' junkyard to "four or five cars," the highest number in process of disassembly in 1942. 2. No other error in the judgment has been shown. The defendants' assertion that their post-1973 use "is of the same nature except that it is quieter and involves no burning" is at variance with the master's findings concerning the expansion of the use, both in terms of area and in terms of commercial activity. 3. The judgment is modified by striking the words "four or five" in the paragraph numbered two, and, as so modified, the judgment is affirmed. No party is to have costs of appeal.

So ordered.

Home TANIA R. LANGERMAN vs. RICHARD LANGERMAN (and a companion case).

9 Mass. App. Ct. 869

March 11, 1980

Each of the parties brought a complaint for

Page 870

divorce, and on each a judgment of divorce was entered on the ground of cruel and abusive treatment. The wife appeals from the judgments entered in each case but has argued error only as to so much of the judgments entered as provided for alimony and child support. Those judgments provide, among other things, for alimony, support for the parties' minor child, and that the husband make mortgage payments and pay the real estate taxes on the marital home for one year or until the sale of the home should that first occur.

1. The wife argues that the evidence does not support several of the judge's findings, that he weighted them improperly in settling her claims for support, and that the award is so unreasonbly low as to amount to an abuse of discretion. After reviewing the record we cannot say that the judge's findings of fact are clearly erroneous on any material point. See Mass.R.Dom.Rel.P. 52(a) (1975). The judge expressly considered each of the factors that G. L. c. 208, Section 34, required or allowed him to consider and made detailed findings as to each one. Bianco v. Bianco, 371 Mass. 420 , 423 (1976). Rice v. Rice, 372 Mass. 398 , 401 (1977). See Hager v. Hager, 6 Mass. App. Ct. 903 , 904 (1978). The weight to be accorded each of the Section 34 factors in a particular case is committed to the judge, Rice v. Rice, 372 Mass. at 400-401, who has broad discretion in fashioning a judgment under Section 34. That the judge must consider all the statutory factors does not restrain that discretion; it merely defines its scope. Bianco v. Bianco, 371 Mass. at 423. We find no abuse of that discretion. Compare and contrast Putnam v. Putnam, 5 Mass. App. Ct. 10 , 14-17 (1977); Zildjian v. Zildjian, 8 Mass. App. Ct. 1 , 14-17 (1979).

2. As neither party introduced any evidence on the effects that inflation or income taxes might have on alimony or child support awards, the judge's apparent failure to consider such consequences cannot be held to be clearly erroneous. Rice v. Rice, 372 Mass. at 402 n.4.

Judgments affirmed.