Margarete K. O'Hagan v. Robert T. O'hagan. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-245
MARGARETE K. O'HAGAN
vs.
ROBERT T. O'HAGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Margarete K. O'Hagan (wife), appeals from a
judgment of the Probate and Family Court declining to find the
defendant, Robert T. O'Hagan (husband), in contempt of the
parties' divorce judgment. We affirm.1
Background. The parties divorced in 2018. Their divorce
agreement, which was incorporated in and merged with the
judgment, required the husband to pay to the wife a fixed weekly
sum, plus "additional alimony" equal to twenty-five percent "of
all amounts earned in each year of salary, bonus and sums he
receives as income from cashing in stocks and stock options that
he reports for income tax purposes and receives as part of his
1 Although the docket entries reflect that the notice of appeal
was filed one day late, we have confirmed with the Probate and
Family Court that the notice of appeal was actually filed timely
on December 6, 2021.
annual income, over $250,000.00 per year." In the same
sentence, the divorce agreement specified the timing by which
the husband was to make that payment, the requirement that he
document his prior year's bonus by providing a copy of his W-2
form, and the directive that he make the payment by "check in an
amount equal to twenty-five percent . . . of his gross income
above $250,000."
In January 2020, the husband's employer provided him a
"special one-time [r]ecognition [a]ward" in the amount of
$100,000 cash, in recognition of his "critical contributions" to
his employer's recent acquisition of another company. The
recognition award specified that "this payment does not
constitute 'basic earnings'" for the purposes of the employer's
benefits or its pension plan. In order to receive the
recognition award, the husband had to accept terms and
conditions that required that, if he voluntarily left employment
or was terminated for cause under certain conditions, within
thirty days of his departure, he would repay a specified portion
of the recognition award.
In June 2021, the wife filed a complaint claiming that the
husband was in contempt of the divorce judgment because he had
failed to pay her twenty-five percent of the recognition award.
After a hearing, a judge found the husband not in contempt and
dismissed the wife's complaint.
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Discussion. To establish contempt, a plaintiff must prove,
by clear and convincing evidence, "a clear and undoubted
disobedience of a clear and unequivocal command" (citation
omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). See
Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). As the
plaintiff, the wife bore the burden of proving contempt by clear
and convincing evidence, and the judge was to consider "the
totality of the circumstances." Voorhis v. Relle, 97 Mass. App.
Ct. 46, 54 (2020), quoting Wooters v. Wooters, 74 Mass. App. Ct.
839, 844 (2009).
The wife attempted to meet her burden by asserting that the
husband disobeyed the additional alimony provision of the
divorce agreement when he failed to pay her twenty-five percent
of the recognition award. As mentioned above, the additional
alimony provision required the husband to pay to the wife
twenty-five percent of "all amounts earned in each year of
salary, bonus and sums he receives as income from cashing in
stocks and stock options that he reports for income tax purposes
and receives as part of his annual income." At first, the wife
sought to interpret that language by focusing on the phrase
"sums he receives as income," omitting the following words "from
cashing in stocks and stock options." When that argument did
not succeed, the wife argued that the use of the term "gross
income" in describing the amount to be tendered in the check
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meant that the additional alimony should be calculated based on
all of the husband's gross income, which would encompass the
recognition award. The judge disagreed, without specifying
whether she found that there was no "clear and unequivocal
command," or no "clear and undoubted disobedience" of such a
command, or both. Birchall, petitioner, 454 Mass. at 851.
At oral argument, the wife expanded on this interpretation,
arguing that the reference in the additional alimony provision
to the husband's W-2 form meant that the husband was required to
pay to the wife twenty-five percent of any amount above $250,000
reported as "gross income" on the W-2 form, regardless of
whether it met the definition of "salary, bonus and sums he
receives as income" from certain cashed-in stock options.
We conclude that the judge did not abuse her discretion in
declining to find the husband in contempt for failure to pay the
wife twenty-five percent of the recognition award. See Jones v.
Jones, 101 Mass. App. Ct. 673, 688 (2022). The judge could
conclude that the recognition award did not fall within any of
the three categories of income specified in the additional
alimony provision: "salary," "bonus," or "sums [the husband]
receives as income" from cashing in stock options. That is
particularly true because of the requirement that the husband
repay the recognition award if he left his employment in certain
circumstances. As to the wife's attempt to interpret the
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subsequent reference to "gross income" as broadening the
definition of income beyond those three categories, that
interpretation is strained at best. The judge did not abuse her
discretion in concluding that the husband's failing to abide by
that interpretation did not amount to undoubted disobedience of
a clear command. See Birchall, petitioner, 454 Mass. at 851.
Judgment affirmed.
By the Court (Ditkoff,
Singh & Grant, JJ.2),
Clerk
Entered: February 14, 2023.
2 The panelists are listed in order of seniority.
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