DAVID M. DILANIAN
TRAUTE L. DILANIAN.
Heard: July 12, 2018.
for divorce filed in the Norfolk Division of the Probate and
Family Court Department on January 11, 2011. The case was
heard by Jennifer M.R. Ulwick, J., and motions for
reconsideration and for postjudgment relief or amendment of
the final judgment were heard by her.
Matthew Bove for the husband.
Richard LeClair, III, for the wife.
Present: Blake, Sacks, & Ditkoff, JJ.
M. Dilanian (husband) appeals from the amended judgment of
divorce nisi entered by a Probate and Family Court judge and
the subsequent denials of his postjudgment motions. The most
significant issue revolves around a pension plan that the
judge found belonged entirely to the husband but that the
husband alleges belonged partially to his now-deceased father
and thus now belongs partially to his sister. We discern no
clear error in the judge's factual findings, and we
conclude that the sister's interests are not impaired by
the judgment transferring sixty per cent of the pension plan
to Traute L. Dilanian (wife), as the remaining portion is
more than sufficient to satisfy any claim by the sister.
Further discerning no clear error in the judge's findings
regarding the value of the husband's business and the
husband's income, and concluding that the judge acted
within her discretion in denying the husband's motion for
relief under Mass. R. Dom. Rel. P. 60 (b), we affirm.
husband and wife were married in 1981, had three children
together, and lived a comfortable upper-middle class
lifestyle. During their thirty-one year marriage, the wife
was the homemaker while the husband was self-employed,
running a successful business. The marriage began to break
down in 2005, and the husband filed for divorce in January
2011, after five years of counseling and a three-month trial
separation. Their children were all of adult age and
emancipated, and the parties were able to resolve amicably
the disposition of the marital home. Much of the trial
concerned the value of the husband's business and the
husband's share in various assets and an inheritance from
M.E. Dilanian Co., Inc.
1984, the husband has worked at M.E. Dilanian Co., Inc. (M.E.
Dilanian), a family-controlled company that purchases food
products from wholesalers and then sells the products to
supermarkets. The husband and his father operated the company
as coowners until approximately 1998 or 1999, when the
husband became the sole stockholder in the company. The
husband's father, however, continued to work at the
company until his death in March 2011.
time of the divorce proceedings, therefore, the husband was
the sole owner of the business with control over both the
company accounts and his own compensation. To avoid double
taxation on corporate income,  the husband took a base salary
and then paid himself a bonus out of the year-end profits.
Accordingly, he would generally pay out year-end bonuses so
that the company would be left with only $5, 000 to $10, 000
of retained earnings for the year. The husband's
financial statement reported that his net income increased
from $204, 500 in 2008 to $388, 000 in 2010. Once the divorce
proceedings began, the husband decreased his pay to $217, 000
in 2011 and $215, 000 in 2012. At the same time, and contrary
to prior practice, the amount of cash left in M.E. Dilanian
accounts increased by over $294, 000 from July 2011 to June
2012. The husband also routinely received additional
compensation from M.E. Dilanian in the form of interest
payments, pension contributions, lease payments for an
automobile, and expense reimbursements.
M.E. Dilanian retirement plans.
Dilanian established a defined contribution retirement plan
in 1989 and a defined benefit plan at some point between 2002
and 2011. The husband testified that he and his father were
the only participants in both plans.
the defined contribution plan, the company was supposed to
contribute twenty-five per cent of a participating
employee's income each year to the plan. At some point,
however, the company ceased contributing to the plan. As a
defined contribution plan, the money contributed toward each
participant's retirement belonged to that participant,
assuming he met the vesting requirements, and was to be paid
out accordingly upon retirement or death. The plan set the
retirement age at sixty-five years of age. The husband and
his father were the only trustees of the plan until the
father's death, when the husband became the sole trustee.
the father's death on March 1, 2011, the husband
allocated $663, 961 of the defined contribution plan's
$1, 416, 769 balance to his father's estate. The husband
allocated $46, 690 of the defined benefit plan's balance
to his father's estate. With one exception, however, the
husband failed to produce any documents to substantiate
contributions made by M.E. Dilanian to the defined
contribution plan on the father's behalf that predate the
beginning of divorce proceedings. Similarly, although the
husband testified that the defined benefit plan was created
in or around 2002, the only documents he produced showing the
establishment of a defined benefit plan reflect that it was
established after the father's death.
husband did produce Federal tax forms 5500-EZ that predated
the divorce proceedings. These documents, however, vary. They
state that the defined contribution plan had one participant
in 2007; two in 2008; three in 2009; three at the beginning
of 2010, but only one at the year's end; and two
participants in 2011.
husband's father's estate was administered by the
husband and his sister as joint executors. On its estate tax
returns, the estate reported assets of $4, 165, 798. That
amount included $710, 651 from the M.E. Dilanian pension
plans. The estate also included $847, 415 previously placed
in the Dilanian Family IRA Spray Trust (spray
trust). There is no dispute that the balance of
the estate, consisting of ...