Opinion
No. 12–P–1545.
2013-09-26
Iveta DOLANSKY v. Jan DOLANSKY.
By the Court (TRAINOR, MEADE & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former husband, Jan Dolansky, appeals from (1) a judgment of the Probate and Family Court dated March 10, 2011, ordering him to pay his former wife, Iveta Dolansky, alimony in the amount of $150 per week and contribute $8,400 to her attorney's fees;
and (2) a judgment of civil contempt dated October 20, 2011, in which the judge found the husband in contempt for having failed to pay his alimony and attorney's fees obligations. The husband was found liable for a total of $6,950 at the contempt hearing, and the judge ordered that all amounts should accrue with statutory interest thereon.
The trial judge had bifurcated the proceedings prior to trial in September, 2008, because she viewed the wife's complaint as also pertaining to issues of property division and alimony. A judgment of divorce nisi was awarded in the first proceeding on September 2, 2009, in which the parties were divorced, the wife was awarded physical custody of the children, and the husband was ordered to pay child support in the amount of $403 per week. The issues of “marital debt and division of the marital estate” were specifically reserved.
On appeal, the husband challenges (1) the alimony award, arguing that the probate judge lacked authority to award alimony to the wife because the issue had not been reserved after the first trial, (2) the award of attorney's fees, arguing that the trial judge was without authority in March, 2011, to reconsider her earlier denial of the wife's motion for attorney's fees, and (3) the contempt judgment entered against him, arguing that there was no evidence presented that he had the ability to pay. We affirm. 1. Alimony. The husband argues the original judgment of divorce nisi failed to properly preserve the issue of alimony for the second proceeding, and therefore the judge was barred from considering it by reason of res judicata. We disagree.
The $6,950 included $4,500 in unpaid alimony and $2,450 in unpaid attorney's fees.
The trial judge did not abuse her discretion in awarding alimony to the wife, see Drapek v. Drapek, 399 Mass. 240, 243 (1987), and the husband has failed to meet his burden to show the award was “plainly wrong and excessive.” Heins v. Ledis, 422 Mass. 477, 481 (1996), quoting from Pare v. Pare, 409 Mass. 292, 296 (1991). The initial judgment of divorce nisi did specifically reserve the issue of marital debt and the division of the marital estate as issues for the second proceeding, in addition to resolving the issues of child support and custody. Absent the judge specifically reserving the issue of alimony as well, the husband claims this issue was barred from being litigated at the second trial. This argument ignores the fact that the wife specifically requested alimony in her complaint, and the wife continued to request alimony in her pretrial memorandum and at the pretrial conference for the second proceeding. Further, while the husband argued in his pretrial memorandum filed in advance of the second trial that the issue of alimony had not been properly preserved, he instead argued at the pretrial conference itself that the wife should not be awarded alimony because of her economic circumstances, and not because such argument was otherwise precluded. Because the husband was on notice on multiple occasions that the wife sought alimony, the judge's award was not in error.
Furthermore, the judge did not abuse her discretion in concluding the husband had the ability to pay $150 per week in alimony, as the award was properly “grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.” Woodside v. Woodside, 79 Mass.App.Ct. 713, 721 (2011), quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). While the husband did have outstanding debt obligations, the judge noted his weekly income of $1,500.13 allowed him to satisfy both his expenses and the additional alimony payment of $150 per week.
The judge further found that the wife's earning capacity was limited given her role as the children's primary caretaker and her ability to find only low-paid part-time employment. The wife was not working at the time of the marriage, nor did she work outside the home for the duration of the marriage. As of the time of trial, her weekly income was a combination of child support, paid by the husband, and food stamps. The judge properly considered all relevant factors in determining the alimony award, and we conclude there was no abuse of her discretion.
It should be noted that the $150 per week award was substantially less than the $400 per week that the wife had requested.
2. Attorney's fees. The husband also argues the trial judge improperly awarded attorney's fees to the wife because a final judgment had already entered (the judgment of divorce nisi). The husband maintains that as a result, the judge had no ability to entertain the wife's motion for reconsideration of her request for attorney's fees. See Franchi v. Stella, 42 Mass.App.Ct. 251, 258 (1997) (judges maintain inherent authority to reconsider issues previously raised until final judgment has entered). We disagree.
This court recognizes in divorce cases a “spouse's need for adequate legal representation” that is “not materially different from those other needs .... which fall within the more common meaning of alimony or support.” Grubert v. Grubert, 20 Mass.App.Ct. 811, 819 (1985). While judges typically many not entertain an application for attorney's fees and costs under G.L. c. 208, § 38, after a final judgment has entered, see Freitas v. Freitas, 26 Mass.App.Ct. 196, 197 (1988), no such final judgment entered here for purposes of determining attorney's fees given the bifurcated nature of the overall proceedings. The divorce nisi proceeding represented only a partial judgment, and as previously noted, alimony, property division, and debt allocation had yet to be decided at the time the judgment nisi was entered. In divorce cases involving multiple proceedings such as this, courts should view—for the purposes of attorney's fees—the series of hearings, filings, and other actions throughout as one continuous proceeding without a final judgment until all matters are resolved. See Hager v. Hager, 12 Mass.App.Ct. 887, 888–889 (1981). The judge in this case properly treated the bifurcated proceedings as a single ongoing proceeding for the purposes of awarding attorney's fees. We must note that “legal expenses may be a significant element of the financial disposition in a divorce case” and “counsel fees are often part of the discussion of an over-all financial award.” Freitas, supra at 201. The judge was therefore correct in viewing the bifurcated proceedings together for purposes of assessing attorney's fees as part of the overall award for the wife. There was no error.
In addition, no abuse of the judge's significant discretion occurred regarding the amount of attorney's fees awarded. Robbins v. Robbins, 19 Mass.App.Ct. 538, 543 (1985) (“Rarely should [judges] be reversed if there is assurance that they have dwelt on the relevant considerations and have stayed within permissible evidentiary bounds”). The decision to award attorney's fees rests within the sound discretion of the trial judge, and the judge may do so after reviewing the evidence put forth. Drapek v. Drapek, 399 Mass. at 248. “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 from Smith v. Smith, 361 Mass. 733, 738 (1972). The judge here had the opportunity to observe the wife's attorney during all phases of litigation. The judge was also 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.
3. Contempt judgment. The husband argues that the judge erred in holding him in contempt because there was neither evidence nor a finding that he had the present ability to pay alimony and attorney's fees.
“[I]n order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience.” Larson v. Larson, 28 Mass.App.Ct. 338, 340 (1990). “In addition, the defendant must be found to have the ability to pay at the time the contempt judgment enters.” Ibid. See Aroesty v. Cohen, 62 Mass.App.Ct. 215, 220 (2004) (present ability to pay is prerequisite to finding of civil contempt).
While asserting that there was no evidence at the contempt hearing (which he did not attend) concerning his ability to pay the alimony and attorney's fees arrearages, the husband glosses over the burden of proof on the issue. General Laws c. 215, § 34, inserted by St.1982, c. 328, provides that “[a]t the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges violation.” See Diver v. Diver, 402 Mass. 599, 603 (1988) (“burden of proof on the ability issue is on the defendant”). “Upon a showing that a defendant in a civil contempt proceeding is in arrears on his adjudicated support obligations, the defendant must come forward with evidence of a present inability to comply with the order or judgment, and if no such proof of inability is forthcoming the defendant can be found in civil contempt.” Poras v. Pauling, 70 Mass.App.Ct. 535, 540 (2007), quoting from Kindregan & Inker, Family Law & Practice §§ 72:3, 72:4 (3d ed.2002). The husband has failed to meet his burden demonstrating that he is unable to comply with the court order. The judge did not err in finding him in contempt.
Judgments affirmed.