Opinion
No. 15–P–58.
10-19-2016
Linda M. CLAWSON v. Scott M. CLAWSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Scott M. Clawson (husband), the former husband of Linda M. Clawson (wife), appeals from a “corrected judgment on complaint for civil contempt” (corrected judgment) dated March 4, 2014, issued by a judge of the Probate and Family Court. We address the husband's arguments in turn.
Child support. The parties were divorced on March 17, 2008, pursuant to a judgment of divorce that incorporated their separation agreement. At the time of the divorce, the parties' nineteen year old son, Shawn, was attending college full-time, while their thirteen year old daughter, Rebecca, was not expected to begin college until the fall of 2012. The separation agreement provided, in relevant part, that “[t]he [h]usband shall be obligated to pay child support to the [w]ife for Shawn and Rebecca.... [O]n or before August 1, 2008, the [h]usband will pay a lump sum amount of $80,000.00” to the wife, which “shall satisfy the [h]usband's child support obligation for 208 weeks.... Child support will review [sic] by the parties after 208 weeks have elapsed....” In addition to child support, the husband agreed to pay $25,000 per year toward Shawn's college expenses, and $30,000 per year toward Rebecca's college expenses.
The provisions of the separation agreement pertaining to the children were merged with the judgment of divorce, while the other provisions of the separation agreement were incorporated but not merged.
The husband was required to contribute to the children's college expenses until each child completed “four years of an accredited college or university degree program or until [each child] attain[ed] the age of 23.”
On July 11, 2013, the wife filed a complaint for contempt alleging that the husband was in arrears of his child support payments. On March 4, 2014, nunc pro tunc to December 11, 2013, a judge of the Probate and Family Court issued the corrected judgment on the wife's complaint for contempt ordering the husband to pay (1) $19,748.02 in past due child support that had accrued since the expiration of the 208–week period, and (2) “ongoing” child support payments of $384.62 per week. On appeal, the husband contends that the judge abused his discretion by finding the husband in contempt of his child support obligation, and by ordering the husband to pay “ongoing” child support of $384.62 per week.
The initial judgment and findings on the wife's complaint for contempt entered on December 11, 2013. However, the corrected judgment, dated March 4, 2014, was entered on March 11, 2014, nunc pro tunc to December 11, 2013, to include language regarding the husband's “ongoing” child support payments.
The corrected judgment ordered the husband to pay the wife $238,913.59. The judge calculated this figure “by adding the total amount owed in child support ($19,748.02) together with the amount owed for college expenses ($30,000) and the principal balance due on the promissory note with interest ($189,165.57).”
As an initial matter, we note that “[t]he judge ... did not expressly find the husband in contempt” of his child support obligation. Poras v. Pauling, 70 Mass.App.Ct. 535, 540–541 (2007) (“This express finding should be present if the [husband] were held in contempt”). Notwithstanding the lack of a contempt finding, the judge concluded that the husband was required to pay child support in the “last agreed upon amount of $384.62 per week” following the expiration of the 208–week period. The husband argues that this was error, as the separation agreement was “silent” regarding the amount of future child support to be paid by the husband. The husband claims that it is apparent on the face of the separation agreement that the parties never intended for the husband to make weekly child support payments in addition to his annual contribution of $30,000 toward Rebecca's college expenses. We disagree.
We further note that the judge did not award any interest or attorney's fees to the wife in connection with the contempt proceeding. Had the judge found the husband in contempt, he likely would have awarded such fees and costs. See Coppinger v. Coppinger, 57 Mass.App.Ct. 709, 714 (2003) (Under G.L. c. 215, § 34A, there is “a presumption in favor of an award of reasonable fees and costs for a successful plaintiff in a contempt action”).
The judge arrived at the weekly figure of $384.62 by dividing the $80,000 lump sum by 208 weeks.
“The interpretation of the separation agreement is a question of law, and is therefore ‘afforded plenary review.’ “ Colorio v. Marx, 72 Mass.App.Ct. 382, 386 (2008), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). There is no indication in the separation agreement that the husband's child support payments would terminate upon Rebecca's entry into college. To the contrary, the separation agreement defines Rebecca's emancipation for purposes of child support as occurring when Rebecca either “graduates from college, university or other post-secondary educational program, or ... attains the age of 23.” Had the parties intended, as the husband asserts, to only “commit” the husband to making annual college contributions, with no obligation to make further child support payments after the 208–week period, they “easily could have included language” to that effect in the separation agreement. Merrimack College v. KPMG LLP, 88 Mass.App.Ct. 803, 806 (2016). Instead, the separation agreement simply calls for a “review” of child support following the 208–week period. We therefore conclude that a “fair reading” of the separation agreement does not support the husband's interpretation, nor does it “raise a question as to the agreement's meaning such that reasonable minds might differ.” Colorio v. Marx, 72 Mass.App.Ct. at 388–389.
The parties advance completely different interpretations of the separation agreement, but “[t]he mere fact that the parties disagree with respect to the interpretation of the agreement does not make the agreement ambiguous.” Colorio v. Marx, 72 Mass.App.Ct. at 386.
The separation agreement's child support provisions reflect the parties' intention for the husband's child support obligation to continue until Rebecca's emancipation, with an opportunity to negotiate a new child support figure following the initial 208–week period. See Boston v. Professional Staff Assn., 61 Mass.App.Ct. 105, 111 & n. 5 (2004), quoting from Restatement (Second) of Contracts § 212(1) comment b (“[T]he words of an integrated agreement remain the most important evidence of intention,” and they must be read within context of entire agreement). Any agreement to modify the husband's child support payments going forward would require judicial approval, see G.L. c. 119A, § 13(a), which the parties acknowledged in the separation agreement. Here, it appears undisputed that Rebecca was not yet emancipated, and the judge found that the separation agreement's child support provisions had not been modified. It was therefore “appropriate for the probate judge to conclude that the [husband's] obligation for child support continued,” Tatar v. Schuker, 70 Mass.App.Ct. 436, 447 (2007), in the “last agreed upon amount of $384.62 per week.” Accordingly, the judge did not abuse his discretion when ordering the husband to pay a total of $19,748.02 in unpaid child support, along with “ongoing” child support of $384.62 per week. See Colorio v. Marx, 72 Mass.App.Ct. at 389, quoting from Krapf v. Krapf, 55 Mass.App.Ct. 485, 491 (2002) (judge is “empowered to enter an order for payment of monies due pursuant to [his] determination of the parties' rights under the separation agreement”).
While the judge did not make an express finding as to whether the separation agreement is integrated, we note that it contains an integration clause. See Cabot v. Cabot, 55 Mass.App.Ct. 756, 763 (2002), quoting from Starr v. Fordham, 420 Mass. 178, 188 n. 8 (1995) (“ ‘A fully integrated agreement is a statement which the parties have adopted as a complete and exclusive expression of their agreement.’ Such an agreement will typically contain an ‘integration clause’ stating that it constitutes the parties' sole agreement and that there are no oral or written representations outside of the agreement”). Here, the integration clause provides that the separation agreement “contains the entire agreement between the parties hereto and that there are no agreements, promises, terms, conditions or understandings and no representations or inducements leading to the execution hereof, express or implied, other than those herein set forth, and that no oral statement or prior written matter extrinsic to this [a]greement shall have any force or effect.”
The separation agreement provides that “the provisions of this [a]greement as to the children and any provisions relating to the minor children may be modified by appropriate legal proceeding.”
At the time of the contempt trial in November, 2013, Rebecca was nineteen years old and attending college.
The judge found that while the parties discussed child support in December of 2011, they never entered into a “formalized” agreement regarding the amount of future support, nor did they present an agreement for modification to the court for approval.
The judge arrived at this figure based on his finding that the husband “paid no child support for [thirty-one] weeks following the expiration of the 208–week period” and thereafter only “paid $189.00 per week in child support.”
We are therefore unpersuaded by the husband's argument that the judge erred by retroactively modifying the husband's child support obligation as of July, 2012. While it is true that child support may only be retroactively modified when a complaint for modification is pending, see G.L. c. 119A, § 13(a), the judge in this case did not modify the husband's child support obligation. Instead, the judge ordered the husband to pay past due child support consistent with the judge's interpretation of the separation agreement's child support provisions. The judge was well within his discretion to enforce the separation agreement in this manner. See Colorio v. Marx, supra at 389.
The $250,000 promissory note. To effectuate the division of assets in the separation agreement, the husband agreed to pay $250,000, along with interest, to the wife by September 1, 2011, which obligation was also “evidenced by a promissory note.” In her July 11, 2013, complaint for contempt, the wife asserted that the husband had failed to pay off the principal and interest due under the separation agreement and the promissory note. At trial, the parties stipulated that the husband was entitled to a credit of $93,651.83 for his payment of certain expenses on the wife's behalf. The husband also sought additional credits for “accommodations” that he “provided to [the wife] to assist her in maintaining and promoting her own horse-related enterprise.” In support of his request for additional credits, the husband submitted two documents at trial: (1) a list of expenses totaling $48,993.70 that he allegedly paid in connection with the wife's horse, Kennebec; and (2) a “Payment Breakdown Schedule” setting forth the terms of an alleged oral lease agreement between the parties allowing the husband to offset his promissory note obligation by $5,600 per month in exchange for leasing fourteen horse stalls to the wife. Neither of the documents submitted by the husband were signed or notarized. The husband also sought to enforce the alleged lease agreement on a detrimental reliance basis, as he evicted an “existing paying tenant” to make the horse stalls available to the wife.
The separation agreement provides, in relevant part, that the husband “shall be obligated to pay to the [w]ife the further sum of Two Hundred–Fifty Thousand ($250,000.00) on or before September 1, 2011. The [h]usband also shall pay the [w]ife the sum [of] Twelve Thousand Five Hundred Dollars ($12,500.00) on or before September 1, 2009, $12,500.00 on or before September 1, 2010, and $12,500.00 on or before September 1, 2011 as interest for the $250,000.... Within [sixty] days, the [h]usband shall execute a mortgage and promissory note to the [w]ife in the amount of Two Hundred Fifty Thousand ($250,000.00) Dollars.”
The judge found that “[t]he parties agree that [the husband] is entitled to a credit of $93,651.83 against any sums he is deemed to owe [the wife]. This credit consists of payments [that the husband] made for truck insurance, funds advanced to [the wife] by [the husband,] and bill payments for horse insurance.”
Both parties operate their own respective “horse-related” businesses. Following the divorce, the wife relocated her business to the husband's farm, “which includes a boarding facility” for horses and an “indoor riding hall.” The husband also “offers training and coordinates various competitive events.”
The judge ultimately found that the husband “was unable to provide credible documentation that the parties agreed to additional credits or that they complied with the modification requirements set forth in the [s]eparation [a]greement.” The judge adopted the $93,651.83 credit stipulated to by the parties, rejected the additional credits sought by the husband, and ordered the husband to pay the remaining $189,165.57 owed on the promissory note. The judge also declined to exercise his equitable powers in connection with the husband's detrimental reliance claim.
The separation agreement provides that “[t]his [a]greement as it pertains to all matters pursuant to [G.L. c. 208, § 34 ] ... shall not be altered or modified except by an instrument signed and acknowledged by [the][h]usband and [the][w]ife and executed before a notary public.”
The judge found that the husband owed the wife $156,348.17 “on the principal balance of the promissory note,” along with a total of $32,817.40 in unpaid interest.
The husband first contends that the judge erred by failing to treat the alleged lease agreement as a permissible oral modification of the “mode of performance” required by the separation agreement. We disagree. “ ‘The mode of performance required by a written contract may be varied by a subsequent oral agreement based upon a valid consideration.’ ... The evidence of a subsequent oral modification must be of sufficient force to overcome the presumption that the integrated and complete agreement, which requires written consent to modification, expresses the intent of the parties.” Cambridgeport Savs. Bank v. Boersner, 413 Mass. 432, 439 & n. 10 (1992), quoting from Siegel v. Knott, 316 Mass. 526, 528 (1944). Here, it is apparent from the judge's findings that the husband did not meet his burden of proving the existence of a subsequent oral agreement between the parties. The judge found there to be no “credible” documentary evidence to support the husband's claim that the wife assented to the proposed lease terms, or that she agreed to additional credits. Moreover, the judge credited the wife's testimony that the parties discussed, but never “reached agreement[,]” with respect to “offsetting [the husband's] divorce-related obligations ... against expenses [that the wife] would incur using [the husband's] premises.” Accordingly, the judge's implicit conclusion that there was never a “meeting of the minds” between the parties was largely “based on an assessment of [the parties'] credibility”—an assessment that is “quintessentially the domain of the trial judge” and “close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston, 38 Mass.App.Ct. 531, 536 (1995). As there is nothing in the record that would warrant disturbing the judge's credibility assessment, we discern no error in the judge's conclusion that the husband failed to prove the existence of an agreement entitling him to any additional credits beyond those to which the parties stipulated at trial. See I & R Mechanical Inc. v. Hazelton Mfg. Co., 62 Mass.App.Ct. 452, 455 (2004) (Where there is no “meeting of the minds” between the parties, there can be no agreement).
As previously discussed in note 8, supra, though the judge did not expressly find the separation agreement to be integrated, the separation agreement does contain an integration clause.
The judge found that the wife “consider[ed],” but never “executed,” the “Payment Breakdown Schedule,” which required her to lease the horse stalls from the husband for a term of ninety-three months at a monthly rate of $5,600. Moreover, the judge specifically found there to be “[n]o evidence ... that [the husband] individually paid any of the sums he claims on behalf of the [wife,]” nor were there any “tax filings ... to support the barter arrangement alleged by the [husband].”
“In contract formation, the element of agreement or mutual assent is often referred to as a ‘meeting of the minds.’ The parties must give their mutual assent by having ‘a meeting of the minds' on the same proposition on the same terms at the same time.” I & R Mechanical Inc. v. Hazelton Mfg. Co., 62 Mass.App.Ct. 452, 455 (2004) (quotation omitted).
The husband further contends that the judge abused his discretion by declining to exercise his equitable powers and “adjudicate” the husband's detrimental reliance claim. The husband claims that the judge should have enforced the alleged oral lease agreement because the husband evicted “an existing paying tenant” to make the horse stalls available to the wife. We disagree. The equitable doctrine of “detrimental reliance ... (also known as promissory estoppel) is a substitute for consideration” whereby “an offer that reasonably induces the other party to act is enforceable as a contract ... to the extent necessary to avoid injustice.” Johnny's Oil Co. v. Eldayha, 82 Mass.App.Ct. 705, 714 (2012). Here, in declining to exercise his equitable powers, the judge found that the husband had an adequate “remedy at law available for any sums he claims” to be owed by the wife for her use of the horse stalls. See Knowlton v. Swampscott, 280 Mass. 69, 72 (1932) (“A party cannot come into equity to secure relief open to him at law”). Moreover, the judge found that the wife's rent-free occupancy of the horse stalls was part of a scheme devised by the husband to essentially avoid making payments on the promissory note while also reducing his taxable income. This finding not only undercuts the husband's assertion that he was induced to act by the wife and suffered economic harm as a result (both of which are essential elements of his detrimental reliance claim), it also indirectly invokes the doctrine of unclean hands insofar as the husband's own wrongful conduct gave rise to the injury of which he complains. See Murphy v. Wachovia Bank of Delaware, N.A., 88 Mass.App.Ct. 9, 15 (2015), quoting from Fidelity Mgmt. & Research Co. v. Ostrander, 40 Mass.App.Ct. 195, 200 (1996) (“The doctrine of unclean hands denies equitable relief ‘to one tainted with the inequitableness or bad faith relative to the matter in which [he] seeks relief’ ”). Accordingly, we discern no abuse of discretion in the judge's refusal to exercise his equitable powers in connection with the husband's detrimental reliance claim.
Indeed, the husband has pending claims against the wife in Superior Court for unpaid rent and other expenses.
The judge found that “[the husband] operates his farm through several different entities,” and it was “apparent from the testimony and evidence that the [husband] was attempting to satisfy his personal obligation to [the wife] by deliberately reducing the income of entities [that] he controls ... without appropriate reporting to taxing authorities.”
The party asserting estoppel has the burden of proving that he “has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm.” Royal–Globe Ins. Co. v. Craven, 411 Mass. 629, 635 (1992), quoting from DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 112 (1983).
Corrected judgment on complaint for civil contempt dated March 4, 2014, affirmed.
To the extent that we do not address the parties' other contentions, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ “ Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).