Opinion
No. 10–P–1359.
2012-09-14
Ruth THERRIEN v. Alan THERRIEN.
By the Court (RAPOZA, C.J., SMITH, VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband, Alan Therrien, appeals from a May 4, 2009, order denying his motion for relief from judgments on both his complaint for modification and a complaint for contempt filed by the wife, Ruth Therrien. We affirm.
Background. On March 23, 2007, the husband filed a complaint for modification, seeking custody of the couple's minor child, termination of his child support obligation, and the imposition of a child support obligation on the wife. On June 18, 2007, the wife filed a complaint for contempt, alleging that the husband had failed to pay child support consistent with his increased income and failed to maintain medical insurance equivalent to what was in place at the time of the divorce judgment.
A hearing on both complaints was held on October 19, 2007, and the judgments issued the same day. The judgment on the husband's complaint for modification awarded physical custody of the minor child to the husband, terminated his child support obligation, imposed a weekly child support obligation on the wife in the amount of thirty-four dollars, and provided that the wife's obligation was to be offset by the husband's child support arrearage. The judgment on the wife's complaint for contempt found the husband in contempt for failing to inform the Department of Revenue (DOR) and the wife of increases in his income and to maintain an equivalent form of health insurance. It set out the amount of weekly child support due between 1999 and 2007 based on the husband's actual income during that period, and ordered that he pay the arrearage. The husband did not appeal from either judgment.
On September 9, 2008, the husband filed a motion for relief from the October 19, 2007, judgments pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). On May 4, 2009, the same judge who issued the 2007 judgments issued a memorandum of decision denying the husband's motion for relief. The husband appeals.
We do not consider the issues raised by the wife as she did not appeal from the judgments on the complaints for modification and for contempt and did not cross-appeal from the order denying the husband's motion for relief from the judgments. See Fortin v. Ox–Bow Marina, Inc., 408 Mass. 310, 323 (1990).
Discussion. As an initial matter, we note that the husband did not appeal from the judgments on the complaints for either modification or contempt. Moreover, we recognize that a motion for relief from judgment is not a substitute for an appeal. See Harris v. Sannella, 400 Mass. 392, 394–395 (1987). Because the judge addressed the merits, including the issues raised in the husband's motion for relief from judgments, we do so as well.
We are mindful that “a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b) lies within the broad discretion of the motion judge,” and is generally not reviewable except for a clear abuse of discretion. Stephens v. Global NAPs, 70 Mass.App.Ct. 676, 684–685 (2007).
Reporting income. The husband argues that “there was no unequivocal disobedience” on his part with respect to his obligation to keep the wife apprised of the changes in his income. “[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). Contrary to the husband's assertion, there is nothing ambiguous about the provision requiring him to inform the wife of changes in his income. The separation agreement specifically provides that “[t]he [h]usband further agrees to keep DOR and the [w]ife informed of all increases and decreases in income, place of employment or other factors which may affect his ability to pay support within thirty (30) days of such changes.”
The subsequent, revised civil contempt standard requiring evidence of contempt to be clear and convincing is only applicable to findings of contempt made after the issuance of Birchall, petitioner, 454 Mass. 837, 838–839 (2009).
Nor is there merit to the husband's claim that his execution of a form allowing the wife to seek copies of his tax returns constituted compliance with his obligation to provide notice of changes in his income. The separation agreement states that he shall provide “the [w]ife with complete copies of his annual [F]ederal and [S]tate tax returns ... no later than May 1 of every year until the [c]hild is emancipated.” Nothing in the agreement, however, provides that the husband's compliance with that particular obligation satisfies his obligation to notify the DOR and the wife of changes in his income, employment or other factors affecting his ability to pay child support.
In any case, we observe that the mere execution of a form allowing the wife access to the husband's tax returns does not appear to be the same as actually providing those returns to her, a distinction that we need not resolve to decide this appeal.
Health insurance obligation. The husband argues that “there was no unequivocal disobedience” with respect to his obligation to maintain an equivalent form of health insurance. The judge found credible evidence that unequivocally demonstrated that the husband disobeyed the terms of the separation agreement. Based on the record before us, we cannot conclude that the husband has demonstrated an abuse of discretion. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995).
Child support arrearage. The husband challenges the judge's establishment of an arrearage in child support. The separation agreement provided that the husband was to pay child support in accordance with the child support guidelines, but not less than $110 .00 per week. The judge calculated the correct amount of child support based on the husband's increased income since the time of the divorce. The husband does not dispute the increases in his income, nor does he claim that the judge's calculations were incorrect or failed to comply with the guidelines. Rather, he asserts that the judge retroactively modified his child support obligation in the absence of a complaint for modification by the wife. This claim is without merit. As the judge correctly stated in his decision, “in this case the [c]ourt was not modifying a child support order, it was enforcing the original order which calls for the child support payments to remain at an amount consistent with the [Massachusetts] Child Support Guidelines as the husband's income changes.” See Naranjo v. Naranjo, 63 Mass.App.Ct. 256, 258–259 (2005).
The husband's remaining arguments are without merit. 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).
Order denying motion for relief from judgments affirmed.