
    Kathleen A. Brash vs. D. Allan Brash.
    Plymouth.
    February 5, 1990.
    March 20, 1990.
    Present: Liacos, C.J., Wilkins, Abrams, Nolan, & Lynch, JJ.
    
      Divorce and Separation, Division of property, Oral separation agreement, Attorney’s fees. Laches. Contract, Oral separation agreement.
    The equitable doctrine of laches had no application to a former wife’s claim under G. L. c. 208, § 34, for a division of marital assets. [104-105]
    In a proceeding under G. L. c. 208, § 34, for a division of marital assets, the judge was warranted in concluding that the wife’s prior transfer of marital property to the husband had not, as the husband contended, been pursuant to an oral contract and that, in any event, the transfer was unconscionable. [105-106]
    In a proceeding under G. L. c. 208, § 34, for a division of marital assets, the judge properly exercised his discretion in awarding the wife her attorney’s fees. [106]
    An order awarding attorney’s fees in a proceeding under G. L. c. 208, § 34, for a division of marital assets was not automatically stayed pursuant to Mass. R. Dom. Rel. P. 62 (d) (1989) pending final disposition of an appeal from the judgment. [106-107]
    Complaint for divorce filed in the Plymouth Division of the Probate and Family Court Department on January 20, 1976.
    A complaint for division of marital assets, filed on December 4, 1986, was heard by John V. Harvey, J.
    The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
    
      Richard D. Packenham for D. Allan Brash.
    
      Martin S. Cosgrove (Todd McCullough with him) for Kathleen A. Brash.
   Nolan, J.

This appeal arises from a case heard in the Probate and Family Court Department. The case arose from two complaints, one seeking modification of a -divorce judgment and the other a division of marital, assets pursuant to G. L. c. 208, § 34 (1988 ed.).

The plaintiff, Kathleen A. Brash, and the defendant, D. Allan Brash, were married on August 29, 1957. Five children were born of the marriage. On January 20, 1976, Allan filed a complaint for divorce. Kathleen did not file an answer after return of the summons and did not appear at the divorce hearing. A judgment of divorce nisi was entered on April 29, 1976, becoming absolute on October 29, 1976. The judgment granted Allan custody of the five children and granted Kathleen reasonable visitation rights. The judgment made no mention of a division of the marital assets.

In 1986, Kathleen filed a complaint for modification of the divorce judgment and a complaint for division of marital assets pursuant to G. L. c. 208, § 34. The two actions were consolidated for trial. A probate court judge entered judgment on the complaint for division of marital assets on April 28, 1988.

The judgment ordered, inter alia, that Allan convey his right, title, and interest in the marital domicil located in Hingham. The conveyance was to be “in lieu of alimony, past, present and future.” The judgment also awarded Kathleen attorney’s fees in the amount of $5,000 each for the modification and the action for the division of marital assets. Allan filed an appeal from the judgment for division of marital assets and a motion for a stay of the judgment pending appeal. The trial judge granted a stay with respect to the conveyance of the marital domicil in Hingham but refused to grant a stay of the award of attorney’s fees. Allan then moved unsuccessfully in the Probate Court to stay the payment of attorney’s fees pending appeal on the division of marital assets only. A single justice of the Appeals Court granted the stay and ordered that the parties brief the issue of the stay of payment of attorney’s fees.

The trial judge made detailed findings as to the age, health, liabilities, and needs of the parties, as well as their stations in life, occupations, employability, and vocational skills. The judge also made findings concerning the parties’ contribution to the acquisition, preservation, or appreciation in value of the estate, their contribution to home and child care, their conduct during the marriage, and the estate of the parties. See G. L. c. 208, § 34.

We summarize the judge’s findings. The major assets of the marriage included two income-producing properties in Wellfleet and the marital domicil in Hingham. Allan has made repairs and alterations to the Wellfleet properties and has collected all the rents connected with them. Kathleen and Allan contributed extensively to the marriage. Throughout the marriage and until the separation, Kathleen was the principal care giver to the children and Allan. Allan was the primary wage earner. Allan was devoted to his career and spent an extraordinary amount of time at work and in traveling.

At the time of the divorce, Kathleen was a waitress. She had no other marketable skills. She currently has secretarial and administrative skills. During the marriage and continuing to the present date, Allan has been employed in an executive position with an insurance company and earns in excess of $80,000 a year.

During the course of the marriage, the parties grew apart. In the latter part of 1975, there were instances of abusive conduct by Allan, forcing Kathleen to leave the marital home. In November of 1975, before the divorce judgment, Kathleen transferred the property (owned by the parties as tenants by the entirety) to Allan individually. Allan then filed the complaint for divorce.

The judge further found that Kathleen consulted an attorney but was not represented throughout the proceedings or at the time of the divorce. The divorce judgment granted a divorce to Allan and awarded him custody of the children. The judgment was silent as to the division of marital assets.

In addition, the judge found that Kathleen received no consideration for transferring her interest in the property to Allan. He found “no credible evidence that the transfer was the result of a contract between husband and wife.” The judge also found that the “transfer and the retaining of all the assets by [Allan] after a nineteen year marriage was not fair and reasonable and is in fact, unconscionable.”

1. Laches. Allan first contends that the judge erred in deciding Kathleen’s claim because the claim was barred by the doctrine of laches. We disagree.

General Laws, c. 208, § 34, governs the division of marital assets in this Commonwealth. The statute provides, in pertinent part, that, “[u]pon divorce or upon a complaint in an action brought at any time after a divorce ... the court of the commonwealth . . . may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other.”

Allan asserts that the common law defense of laches bars Kathleen’s claim for the division of marital assets under G. L. c. 208, § 34. The plain language of § 34, however, states that, upon complaint, an action for the division of property may be brought at any time after divorce. Where the statutory language is unambiguous, we need not resort to legislative history or other sources to discern legislative intent. Rather, we look to the language itself, giving it its natural and unrestrained meaning. See Rice v. Rice, 372 Mass. 398, 400 (1977); Chouinard, petitioner, 358 Mass. 780, 782 (1971). While the unlimited time aspect of the statute has been criticized, see DuMont v. Godbey, 382 Mass. 234, 239 (1981), § 34 provides that, “upon a complaint in an action brought at any time after a divorce ... the court . . . may assign to either husband or wife all or any part of the estate of the other” (emphasis supplied). To give the statute any other meaning would strain common sense. See Talbot v. Talbot, 13 Mass. App. Ct. 456, 460 & n.3 (1982). The judge did not err in hearing the claim.

2. The alleged oral contract. Allan asserts that the parties had resolved their rights by oral agreement prior to the divorce and, therefore, were precluded from relitigating that agreed division of assets. In support of this assertion, Allan contends that the judge erred (1) in finding no credible evidence that the transfer was pursuant to an oral contract, (2) in finding that there was no consideration for the transfer, and (3) in finding that the “transfer and the retaining of all the assets by [Allan] after a nineteen year marriage was not fair and reasonable and is in fact, unconscionable.” There was no error.

Findings of fact made pursuant to G. L. c. 208, § 34, shall nof.be set aside unless clearly erroneous, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Mass. R. Dom. Rel. P. 52 (a) (1989). We have reviewed the testimony presented at the hearing, and we cannot say that the judge’s findings were clearly erroneous.

Contrary to Allan’s contention, a review of the testimony at the hearing does not lead to the conclusion that the transfer was the result of a bargained-for exchange between the parties. Moreover, even if the transfer had been pursuant to an oral contract between the parties, the judge properly found that the “transfer and the retaining of all the assets by [Allan] after a nineteen year marriage was not fair and reasonable and is in fact, unconscionable.” It is well settled that to be valid and enforceable, separation agreements must be free from fraud and coercion and must be fair and reasonable. Knox v. Remick, 371 Mass. 433, 436-437 (1976). Reeves v. Reeves, 318 Mass. 381, 384 (1945), and cases cited. Kathleen had borne and raised five children and had been the primary care parent during the nineteen-year marriage. In the circumstances of this case, the judge did not err in finding that an agreement transferring all the assets to Allan could not be considered fair and reasonable and, in fact, is unconscionable.

3. The award of attorney’s fees. Allan appeals the award of attorney’s fees in the proceeding for the division of marital assets.

The decision to award attorney’s fees rests within the sound discretion of the trial judge. Drapek v. Drapek, 399 Mass. 240, 248 (1987). It is for the trial judge to review the evidence and determine whether to award attorney’s fees as well as the amount of that award. “As long as the amount awarded is not incommensurate with an objective evaluation of the services performed . . . ‘[t]he award of such costs generally rests in sound judicial discretion. . . . [T]he award . . . may be presumed to be right and ordinarily ought not to be disturbed.’ ” Ross v. Ross, 385 Mass. 30, 38-39 (1982), quoting Old Colony Trust Co. v. Third Universalist Soc’y, 285 Mass. 146, 151 (1934). He examined and made findings in detail on the § 34 factors. He had the opportunity to observe Kathleen’s attorney at all phases of litigation. The judge was personally familiar with the attorney’s performance and the station of the parties, and had a detailed affidavit of the legal fees and services involved. There was no abuse of discretion in the award of attorney’s fees.

4. The stay of attorney’s fees. Allan asserts that an award of attorney’s fees is automatically stayed pursuant to Mass. R. Dom. Rel. P. 62 (d) (1989), pending final disposition of an appeal from the judgment. Kathleen contends that an award of attorney’s fees is more akin to an award of alimony or support under Mass. R. Dom. Rel. P. 62 (g) (1989), and is, therefore, not automatically stayed pending appeal. See Goldman v. Roderiques, 370 Mass. 435, 437 (1976).

Rule 62 (d) provides that an appeal stays execution upon a judgment except as otherwise provided in the rules. It appears that the term “execution” applies only to a judgment for the payment of money. See Mass. R. Dom. Rel. P. 69 (1989); Dominick v. Dominick, 18 Mass. App. Ct. 85, 94 (1984). Rule 62 (g) provides that an appeal stays the running of the nisi period but not the operation “of any other order or judgment of the court relative to custody, visitation, alimony, support, or maintenance unless the court otherwise orders.” An award of attorney’s fees is not entirely unlike an order for support or maintenance and, therefore, it is not automatically stayed pending appeal.

Accordingly, in the absence of an order to the contrary by an appellate judge, an award of attorney’s fees is not automatically stayed pending appeal.

Judgment affirmed. 
      
      To avoid the confusion that may result from the use of the designations, “plaintiff” and “defendant,” we shall refer to the parties by name.
     
      
      No appeal has been taken from the judgment for modification.
     
      
      Allan sought no stay on the attorney’s fees awarded on the action for modification.
     
      
      Allan also contends, apparently for the first time on appeal, that Kathleen’s claim for division of property is barred by the doctrine of res judicata or issue preclusion. Res judicata is an affirmative defense which must be pleaded. Mass. R. Dom. Rel. P. 8 (c) (1989). See Davidson v. Davidson, 19 Mass. App. Ct. 364, 368 n.3 (1985). Allan’s answer to the complaint for division of property raises only the doctrine of laches as a bar to any further division of assets. Allan, therefore, waived this argument when he failed to assert it below. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1985).
     
      
      General Laws c. 215, §§ 23 and 24, also deal with appeals from orders or judgments of the Probate and Family Court Department under c. 208. Under G. L. c. 215, § 24 (which, according to § 23, applies to orders or judgments under c. 208), the judgment arguably would not be stayed. See Sloane v. Sloane, 349 Mass. 318, 319 (1965). However, the parties do not argue, nor do we find, a conflict between the rules and the statutes. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 94-95 (1984) (finding no conflict between statute and rule), citing Boston Seaman’s Friend Soc’y, Inc. v. Attorney Gen., 379 Mass. 414, 416-417 (1980).
     