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Pisano v. Pisano

Appeals Court of Massachusetts

May 29, 2015

Judith Belushi Pisano
v.
Victor Reno Pisano

Argued: October 6, 2014.

Dukes. Complaint for divorce filed in the Dukes County Division of the Probate and Family Court Department on October 20, 2010.

The case was heard by Spencer M. Kagan, J.

Robert J. Rutecki for the husband.

Sharon D. Meyers for the wife.

Present: Cypher, Grainger, & Maldonado, JJ.

OPINION

[31 N.E.3d 1134] Cypher, J.

In October, 2010, Judith Belushi Pisano (hereinafter, wife), after some twenty years of marriage to Victor Reno Pisano (hereinafter, husband), filed a complaint for divorce from the husband. The wife also moved, successfully, to bifurcate the issue of the scope and validity of a premarital agreement executed by the parties on October 6, 1990, the day prior to the parties' wed-

Page 404

ding. Following a trial on the wife's " bifurcated complaint for divorce," a judge of the Probate and Family Court issued a " Bifurcated Judgment" dated April 2, 2012, supplemented by findings, in which he determined that the premarital agreement was valid and binding on the parties, and that it limited any claim of the husband for alimony in a manner we shall discuss more fully below.

With the assent of the parties, additional issues were referred to a master, who was instructed to conduct an evidentiary hearing, make findings of fact and conclusions of law, and prepare a judgment of divorce nisi addressing all outstanding issues. Among the issues considered by the master was whether the wife was entitled to the repayment of temporary alimony ordered earlier by the court and whether a certain debt should be treated as a liability of the wife or a joint marital liability to be shared by the parties. Following a hearing, the master issued his report (including recommendations that the wife recover the temporary alimony she paid to the husband and that the loan be treated as the wife's sole liability) and a subsequent amended report. The master's recommendations were incorporated into the supplemental judgment of divorce nisi dated February 5, 2013.[1]

The husband has appealed, challenging portions of the " bifurcated judgment" as they pertain to alimony as well as the order contained in the supplemental judgment for repayment of temporary support. The wife has also appealed, challenging the judge's determination concerning the debt.[2]

For the reasons set forth herein, we vacate so much of the supplemental judgment as requires the husband to reimburse (or credit) the wife for sums paid for temporary alimony. In all other respects, we affirm the judgment.

1. Background.[3]

In late December, 1988, the husband, who had previously been married, and the wife, a widow, " agreed to marry and discussed that a premarital agreement was necessary to [31 N.E.3d 1135] protect

Page 405

various assets each had acquired, including intellectual property rights they intended to exploit or continue to develop in the future and that each wanted to protect in the event of divorce, separation or death." The wife had valuable real property located in Martha's Vineyard as well as an interest in her parents' house in New Jersey. The wife also had valuable intellectual property rights, including rights she inherited from her late husband, the actor-comedian John Belushi. While the wife had achieved some success in her own right as an author, writer, producer, and speaker, her income was derived primarily from royalties and residuals from the intellectual property rights she inherited from Belushi.

The husband is involved in the entertainment industry and, prior to the marriage, had, among other things, written, produced and codirected a successful television miniseries, produced a concert television special, and written scripts or concepts for several full length screenplays, one of which had been sold to a studio. The husband had also negotiated various business transactions regarding production, residual rights, and intellectual property and royalty payments for himself and his production company.

Prior to the execution of the premarital agreement, the parties discussed terms to be included therein. The judge found that both parties desired to protect their existing assets, including their intellectual property rights, from one another, i.e., " whet was Husband's would remain Husband's and what was Wife's would remain Wife's, and any new project that they created together they would share."

Each party consulted with counsel, and although there was some confusion as to whose counsel would actually prepare the prenuptial agreement, the agreement was ultimately drafted by the wife's counsel. The " 'draft' final agreement" prepared by the wife's counsel was further negotiated by the parties on October 6, 1990, and after certain revisions were made, the agreement was executed that same day. The agreement, excluding schedules, is eleven pages in length.

The premarital agreement provides, in part, in its introductory paragraph, that the parties " wish to enter into this Premarital Agreement for the purpose of defining the respective rights which each of us shall have in the property and estate of the other, both during our marriage and after its termination, either by a separation or the dissolution of our marriage or by the death of either of us." The parties set out in paragraphs 1.1 and 1.2 of the agreement, and in attached Schedules " B" and " C," the property each

Page 406

had acquired prior to the intended marriage.[4] Paragraph 2 of the agreement describes, and essentially defines, separate and marital estate property.[5],[6] In paragraph 2.3, the [31 N.E.3d 1136] parties agreed that " [e]ach of us shall have complete ownership and control of our Separate Property and may use and dispose of such property in the same manner as if our marriage had not taken place."

The agreement provides in paragraph 7, entitled " Dissolution of Marriage:"

" 7.1 We have been informed by legal counsel that it is not possible to advise us specifically what our rights would be if our marriage were ...

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