Opinion
19-P-685
04-15-2020
Christine L. MENARD v. Douglas M. EISNOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a partial judgment of contempt entered against him on July 26, 2018. The defendant argues that the partial judgment is erroneous because the language in the separation agreement is ambiguous and the judge failed to consider the defendant's present ability to pay at the time the partial judgment entered.
We note that, without a 54 (b) certification, this appeal is not properly before us. See Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974); Long v. Wickett, 50 Mass. App. Ct. 380, 385-386 (2000). However, because the appeal is fully briefed, we exercise our discretion to consider it.
Standard of review. "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 838-839 (2009). "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Id. at 852, quoting Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). We review a finding of contempt for abuse of discretion. See Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018).
An abuse of discretion occurs where the judge "made a ‘clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Separation agreement. "[W]hether a separation agreement is ambiguous is a question of law, and we review the issue de novo." McManus v. McManus, 87 Mass. App. Ct. 864, 868 (2015). When interpreting a separation agreement, "[t]he objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose." Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 805 (2016), quoting Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006).
Passing the question of which party had the obligation to draft and present the qualified domestic relations order (QDRO) to the Malden retirement board (board), exhibit H of the separation agreement sets forth a clear and unequivocal command that, prior to approval of such a QDRO, the defendant "shall pay to the Wife ... one-half of any retirement plan payment or distribution which he receives."
In his brief, the defendant argues that "the plain meaning of the language requires [the defendant] to make a payment to [the plaintiff] prior to the approval of the QDRO and prior to him receiving any payments, somehow calculated at 50% of an amount he is not yet receiving" and thus the provision "presents an impossibility" and the order should not have been construed against him. Additionally, at oral argument, the defendant argued that the word "Husband" should have been drafted to read "Wife." We do not share the defendant's view that the quoted language creates an ambiguity; the language plainly obliged the defendant to make payments to the plaintiff only from retirement plan payments he received. But even if we were to find ambiguity in the language "[p]rior to the approval of the said Qualified Domestic Relations Order by the respective plan administrators and commencement of payments to the Husband thereunder ...," the ambiguity does not affect the second one-half of the sentence, which unambiguously commands the defendant to make payments to the plaintiff from any retirement plan payments he does in fact receive. We cannot ignore or read out the second one-half of the sentence. See Rubin v. Murray, 79 Mass. App. Ct. 64, 76 (2011) ("The words of a contract must be considered in the context of the entire contract rather than in isolation" [citation omitted] ).
It is undisputed that (1) the board did not approve a QDRO, (2) the defendant has received retirement plan payments, and (3) the defendant has not paid to the plaintiff one-half of the payments he received. Due to the defendant's failure to obey the clear and unequivocal command set forth in the separation agreement, the judge did not abuse her discretion in finding the defendant in contempt. See Birchall, petitioner, 454 Mass. at 839 ; Smith, 93 Mass. App. Ct. at 363.
Because we conclude that the language of the separation agreement is unambiguous, the judge did not err in determining that the defendant owed the plaintiff "one half of the entire retirement benefits that he received, as alimony, from July 1, 2011 until December 1, 2017 which totals $171,724.30 less the tax payments that would have been paid by the [plaintiff]" (emphasis added). This reading is consistent with the "language, background, and purpose" of the separation agreement. Merrimack College, 88 Mass. App. Ct. at 805, quoting Sullivan, 67 Mass. App. Ct. at 442.
Ability to pay. The judge likewise did not err in failing to analyze the defendant's ability to pay. See Smith, 93 Mass. App. Ct. at 363-364. "[T]he defendant must be found to have the ability to pay at the time the contempt judgment enters." Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). However, "[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." G. L. c. 215, § 34. See Diver v. Diver, 402 Mass. 599, 603 (1988). In the present case, "[n]othing in the record demonstrates that, as a matter of law, the defendant satisfied his burden of proving his inability to comply with the judge's orders." Id.
See note 3, supra.
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Accordingly, we shall affirm the partial judgment of contempt.
The plaintiff has requested an award of the attorney's fees incurred on appeal, as well as double costs. We agree that such an award is appropriate. The plaintiff shall, within fifteen days of the date of this memorandum and order, file with the clerk of this court and serve on the defendant a motion for determination of the amount of her attorney's fees incurred on appeal, supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may, within fifteen days thereafter, file with the clerk of this court and serve on the plaintiff an opposition to the amount of fees so claimed.
Partial judgment of contempt affirmed.