Opinion
No. 15–P–695.
08-12-2016
Daniel DUCHINI v. Dorothy DUCHINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Dorothy Hathaway (wife) appeals from judgments of the Probate and Family Court, arguing that the judge erred in (1) finding that the plaintiff, Daniel Duchini (husband), maintained his primary residence with his parents even though he was remarried and had a wife and child living in another town; (2) failing to order the husband to pay a stipulated alimony arrearage at a quicker pace; (3) failing to find the husband in contempt for parental interference; and (4) failing to rule on the issue of marital debt. For the reasons stated below, we vacate the portion of the judgment concerning repayment of the alimony arrearage and remand for further proceedings.
The plaintiff has not appeared in this appeal, nor has he offered any arguments in opposition to the appeal or responded to a June 30, 2016, status report filed by the wife reporting that the primary physical custody of the daughter has transferred to the wife.
1. Primary residence. The wife argued that there was no basis for the judge to permanently modify the divorce judgment to permit the children to attend the schools of the paternal grandparents' town and not the town where the wife lived. According to the wife's status report, this issue is now moot. The parties' son has graduated from high school and the wife has had primary physical custody of the daughter since October, 2015. See McCarthy v. McCarthy, 21 Mass.App.Ct. 924, 924 n. 2 (1985).
2. Alimony arrearage. The parties stipulated that the husband was in arrears on alimony in the total amount of $11,200. The wife argued that the husband was controlling her money as an extension of earlier physical domestic violence by him, which, if true, would be extremely troubling. The judge acknowledged the arrearage in a judgment dated July 15, 2014, but did not include a repayment schedule. In an amended judgment dated August 22, 2014, the judge ordered the husband to reimburse the wife for unpaid alimony at the rate of $400 per month. The wife challenges the rate of payment.
When considering a payment plan for arrears, “[t]he rate should be set at the maximum of [the husband's] reasonable capacity to pay, [after] his total situation [is] considered.” Kennedy v. Kennedy, 20 Mass.App.Ct. 559, 562 (1985). Here, the only relevant findings seem to support the wife's contention that the repayment schedule was too slow. The judge found that the husband's income had not decreased significantly, alimony has positive tax consequences, and the wife had timely made her child support payments. We conclude that the limited findings do not support the repayment schedule set by the Probate judge and remand the matter for further consideration and findings.
3. Parental interference. “[W]e require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 838–839 (2009). “A judge's ultimate conclusion on the contempt finding is reviewed under the abuse of discretion standard.” K.A. v. T.R., 86 Mass.App.Ct. 554, 567 (2014).
The wife alleged two incidents of parental interference, one concerning her son not having visitation over the school winter holiday break in December, 2013, and another involving a weekend visit with the daughter in January, 2014. As for the visit with the son, we cannot conclude that the judge erred in not finding the husband in contempt. The wife could not point to specific action by the husband in violation of a judgment of the court.
As for the daughter, the undisputed evidence established that the wife could not keep the scheduled pick-up time on a Friday afternoon because of a snowstorm. No judgment of the court provided for this contingency. The wife offered a pick-up time at 10 A.M. Saturday morning. The husband rejected that time, insisting that the wife would have to pick up the children at 6:30 A.M., an hour from her home. The wife rejected that time and arrived at 10 A.M. The husband could have made the daughter available then but he did not. We do not agree that there was “confusion” between the parties regarding the wife-daughter visitation schedule. The husband's actions were needlessly uncooperative, and we do not endorse his behavior. However, we cannot conclude that the judge abused his discretion in not finding the husband in contempt.
The wife spoke with her daughter, who was originally going to be available for pick up from school at 1:45 P.M. The daughter then called the wife back ten minutes later and stated, “she did not want to go [because] the roads were bad.” The wife testified that she never told her daughter that she could stay in Pembroke, but did not want to “get into an issue over the phone when [the husband] was in the background talking.” The wife further testified that she “was not going to put [her] daughter in that position again.”
4. Marital debt. Although the wife's complaints for contempt did not raise the issue of certain marital debt, some marital debt evidence was presented at hearing. The wife challenges the judgments for failure to address the issue. It would have been better practice to acknowledge the issue in the judgments; nevertheless, the judge did not err in failing to do so because the issue was not properly pleaded.
The wife failed to raise the issue of judicial bias before the Probate and Family Court. For that reason, “we need not consider it on appeal.” Adoption of Pierce, 58 Mass.App.Ct. 342, 349 (2003). Even if we were to consider the issue, on this record, we see no concrete way that the judge's conduct harmed her case. See Poly v. Moylan, 423 Mass. 141, 150 (1996).
Conclusion. The appeal of the judgment dated July 15, 2014, and docketed on July 29, 2014, on the complaint for modification is dismissed as moot. The judgment dated July 15, 2014, and docketed on July 29, 2014, on the complaint for contempt, is affirmed. The amended judgment dated August 22, 2014, and docketed on October 22, 2014, on the complaint for contempt, is vacated. The case is remanded for further proceedings consistent with this memorandum and order.
Pending further action of the Probate and Family Court, the husband shall continue to repay any alimony arrearage at a rate of at least $400 per month without prejudice.
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So ordered.