Opinion
14-P-1595
02-18-2016
UDI EHUD SALY v. EFFIE SALY
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, Udi Saly (husband) appeals from judgments entered on February 25, 2014, and June 23, 2014, resulting from a contempt complaint filed by Effie Saly (wife), and from an order dated October 10, 2014, awarding additional legal fees to the wife. The husband claims error in the trial judge's determination that the parties' daughter, Emily Saly, did not become emancipated in the fall of 2011 under the terms of the parties' separation agreement and award of legal fees to the wife. We affirm.
The separation agreement was incorporated in the judgment of divorce nisi, and survived as an independent contract except with respect to certain issues not relevant to this appeal.
In light of our conclusion that the judge correctly determined that the husband's obligation to pay child support had not terminated, the husband's claim of error in the denial of his motion for a stay pending appeal is moot.
The parties' separation agreement obliges the husband to pay monthly child support or college expenses for the daughter until she becomes emancipated. As relevant here, the daughter, while pursuing an undergraduate education, is not emancipated so long as she "is in regular attendance and pursues such education with reasonable diligence." The husband ceased making such payments when the daughter withdrew from the Vienna Conservatory in August, 2011, due to an injury and then enrolled at Mills College in January, 2012, contending that the daughter had become emancipated in the intervening months. The judge disagreed, finding that the daughter was physically unable to continue her studies at the conservatory, and that she "worked diligently" to enroll at Mills College "as quickly as was possible." The judge concluded that the daughter "was 'in regular attendance' where she attended classes at all times that they were available to her and when she was medically able to do so."
We are unpersuaded by the husband's argument to the contrary, particularly in his attempts to distinguish the present case from the ordinary circumstance in which a child is unable to attend classes due to a summer or holiday recess, weekend, or minor illness. Just as the separation agreement cannot logically be read to emancipate a child who is unable to attend classes due to summer vacation, the agreement cannot reasonably be read to emancipate the daughter when she was physically unable to continue her studies at the conservatory and was diligently pursuing her transfer to another educational institution. Therefore, we agree that the husband's obligation to pay college expenses did not terminate by reason of the interruption of the daughter's education.
The husband further argues that he is not obliged to pay the daughter's college expenses because he did not explicitly consent to her choice to attend Mills College. The separation agreement requires that the "choice of college or university shall be made jointly [by the husband and the wife], with due regard to the child[]'s wishes, welfare, needs and aptitudes." The judge found that the husband was aware of the daughter's intent to transfer schools in August, 2011, and that he was informed by the wife in November, 2011, that she wished to attend Mills College. The judge also found that the husband communicated with the wife and the daughter in December, 2011, about the choice of school, the cost of attendance, registration, and how to make payments, and that the daughter honestly believed the husband had consented to her choice of college. There was no evidence that the husband objected to Mills College or that he suggested another college. See Mandel v. Mandel, 74 Mass. App. Ct. 348, 355 (2009) ("[A] party who has sat on his . . . . right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his . . . right to object to the college and its concomitant cost"). In light of the husband's behavior and the events that transpired, the husband has failed to persuade us that the judge's finding that the decision was made jointly was clearly erroneous.
We also note that the trial judge had previously instructed the husband to obtain a court order before unilaterally ceasing child support or college expense payments, which he had done twice before. This disobedience alone could have formed the basis for a contempt judgment. See Barnes v. Devlin, 84 Mass. App. Ct. 159, 164-165 (2013), citing Heistand v. Heistand, 384 Mass. 20, 29-30 (1981).
The husband raises two additional arguments for the first time on appeal. First, he claims that the separation agreement is ambiguous, and thus, that he cannot be held in contempt for failure to abide by its terms. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 442-443 (1997). Because the husband did not advance this argument below, it is waived. Likewise, the husband's contention that the daughter was emancipated under paragraph 2(F) of the separation agreement's child support provision was not raised below, and is therefore waived.
Next, the husband objects to the judge's award of attorney's fees and costs to the wife. In an action for contempt for failure to obey a support order, G. L. c. 215, § 34A(a), as amended by St. 2005, c. 163, § 51, establishes a presumption that a successful plaintiff is "entitled to receive . . . all of [her] reasonable attorney's fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint." The husband has given no reason why the presumption should not apply here, aside from his contention that he was not in contempt.
The husband argues that the attorney's fees awarded to the wife were excessive, especially in relation to the amount awarded pursuant to the judgment entered on February 25, 2014. However, "[w]hat constitutes a reasonable fee is a question that is committed to the sound discretion of the judge." Berman v. Linnane, 434 Mass. 301, 302-303 (2001). The wife's attorney submitted a detailed affidavit describing the time spent on the case and other costs, and it was not an abuse of discretion for the judge to rely on that affidavit to determine a reasonable fee award. See Tatar v. Schuker, 70 Mass. App. Ct. 436, 451 (2007) (where attorney submitted detailed affidavit, "the probate judge was justified in accepting the validity of the fees as recounted in the affidavit"). In addition, "[t]he amount recovered . . . is an unreliable guide in this sort of case." Olmstead v. Murphy, 21 Mass. App. Ct. 664, 666 (1986). In any event, the amount of attorney's fees awarded was not disproportionate to the total amount recovered (including late fees).
Lastly, the husband objects to the award of $8,000 in legal fees for the prosecution of a subsequent contempt complaint after the husband failed to pay the amount awarded under the judgment entered on February 25, 2014, because the wife had secured a lien on the husband's home. The trial judge was aware of the lien, which provided security for the judgment but did not relieve the husband of his obligation to pay. Therefore, the additional award was proper.
Finally, the wife requests an award of attorney's fees and costs in connection with this appeal. We agree that such an award is appropriate. The wife shall within fifteen days of the date of the rescript file with this court and serve on the husband 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 husband may, within fifteen days thereafter, file with this court and serve on the wife an opposition to the amount of fees so claimed.
As we have observed, G. L. c. 215, § 34A(a), establishes a presumption that the wife is entitled to attorney's fees. This presumption "would ring hollow if it did not necessarily include a fee for the appeal." Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989).
Judgments entered on February 25, 2014, and June 23, 2014, affirmed.
Order dated October 10, 2014, allowing legal fees affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.