CURT F. PFANNENSTIEHL
DIANE L. PFANNENSTIEHL.
Heard: April 5, 2016.
for divorce filed in the Norfolk Division of the Probate and
Family Court Department on September 22, 2010. The case was
heard by Angela M. Ordonez, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
J. O'Regan for the husband.
Jillian B. Hirsch for the wife.
R. Bagley, pro se, amicus curiae, submitted a brief.
William H. Schmidt, pro se, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, &
Hines, JJ. 
appeal from a judgment of divorce, we are asked to determine
whether the present value of the husband's beneficial
interest in a discretionary spendthrift trust (2004 trust)
may be included in the parties' divisible marital estate.
See G. L. c. 208, § 34, as amended by St. 2011, c. 124,
§§1, 2. As part of the judgment of divorce in 2012,
a judge in the Probate and Family Court awarded Diane L.
Pfannenstiehl sixty per cent of her husband Curt F.
Pfannenstiehl's interest in the present value of the 2004
trust. At that time, the trust was valued at $2, 265, 474.31.
Curt appealed, arguing that the judge abused her discretion
by including the 2004 trust in the marital estate. In a
divided opinion, the Appeals Court affirmed. See
Pfannenstiehl v. Pfannenstiehl, 88
Mass.App.Ct. 121, 124 (2015). We granted Curt's
application for further appellate review, limited to issues
concerning the 2004 trust.
conclude that Curt's interest in the 2004 trust is
"so speculative as to constitute nothing more than [an]
expectanc[y], " and thus that it is "not assignable
to the marital estate." See Adams v.
Adams, 459 Mass. 361, 374 (2011), S.C., 466 Mass.
1015 (2013). Although Curt's expectancy of future
acquisition of income from the 2004 trust is not part of the
marital estate, on remand, the judge, pursuant to G. L. c.
208, § 34, may consider that expectancy as part of the
"opportunity of each [spouse] for future acquisition of
capital assets and income, " in the judge's
determination of a revised equitable division of the marital
property. See Williams v. Massa,
431 Mass. 619, 629 (2000); Drapek v.
Drapek, 399 Mass. 240, 245 (1987) .
recite the facts from the judge's findings and the
uncontradicted evidence" in the record.
Baccanti v. Morton, 434 Mass. 787,
788 (2001). Curt and Diane were married on February 5, 2000.
They have two children, a son and a daughter. Curt filed his
complaint for divorce on September 13, 2010. The parties were
married for twelve years, but had been separated for nearly
two years at the time of trial. Pursuant to G. L. c. 208,
§ 48, the length of the marriage thus was ten years and
seven months. An amended divorce judgment was entered on
August 27, 2012. At that time, Curt was forty-two years old
and Diane was forty-eight years old; each was in generally
good health. Their son was then eleven years old and their
daughter was eight years old.
the marriage, Curt was employed primarily as an assistant
bookstore manager for a subsidiary of his father's
corporation, Educor, Inc.,  earning approximately $170, 000
per year Curt's total annual income was approximately
$190, 000 at the time of trial, including his earnings at
other part-time jobs. Prior to and during the first few years of
the marriage, Diane served in the United States Army
Reserves, which obligated her to participate in two weeks of
training twice per year. In 2004, Diane retired from the Army
Reserves, two years short of the twenty years of service that
would have entitled her to a pension. The judge found that
she made the decision to retire after pressure from Curt and
his family following the birth of their daughter, who has
Down syndrome. From 2004 through the time of trial, Diane
worked one day per week as an ultrasound technician. At the
time, Diane was earning a gross annual income of $22, 672.
She also received $7, 428 per year in rental
the marriage, the parties lived an upper middle class
lifestyle. They owned a home valued at in excess of $700,
000, as well as other real estate,  took several vacations each
year, and belonged to a country club. The income to support
this lifestyle was derived largely from Curt's earnings,
augmented by support from Curt's father, as well as by
distributions to Curt from the 2004 trust. The judge found
that Diane made significant contributions as a homemaker and
caretaker of the children, while also contributing her
earnings and rental income to the marital estate.
The 2004 trust.
irrevocable trust at issue was established by Curt's
father in 2004, a few years after Curt and Diane
married. The trust benefits an open class of
beneficiaries,  composed of any one or more of the then
living issue of Curt's father. "Issue" is
defined in the trust as the "lawful blood descendants in
the first, second, or any other degree of" Curt's
father. The 2004 trust is funded through shares of two
for-profit education corporations, several life insurance
policies, and a cash account. The trustees are Curt's
brother, who is also a trust beneficiary, and a family
attorney who is not a beneficiary.
2004 trust provides that distributions to beneficiaries may
be made only with the approval of both trustees, who
"shall pay to, or apply for the benefit of, a class
composed of any one or more of the Donor's then living
issue such amounts of income and principal as the Trustee, in
its sole discretion, may deem advisable from time to time,
whether in equal or unequal shares, to provide for the
comfortable support, health, maintenance, welfare and
education of each or all members of such class."
2004 trust also contains a spendthrift provision, pursuant to
which "[n]either the principal nor income of any trust
created hereunder shall be subject to alienation, pledge,
assignment or other anticipation by the person for whom the
same is intended, nor to attachment, execution, garnishment
or other seizure under any legal, equitable or other
judge found that, at the time of trial, there were eleven
living beneficiaries -- children and grandchildren of
Curt's father - and no great-grandchildren. The judge
determined the total present value of the 2004 trust to be
$24, 920, 217.37 at that time. Based on her finding that Curt
had a one-eleventh interest in the ...