THOMAS MICHAEL BONAPARTE & Another v. MICHELA DEVOTI. ( 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
21-P-904
THOMAS MICHAEL BONAPARTE & another1
vs.
MICHELA DEVOTI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from divorce proceedings in the Probate
and Family Court between Michela Devoti (wife) and Thomas
Bonaparte (husband), during a portion of which the wife was
represented by Attorney Lauren G. Klein. After Klein withdrew
from her representation of the wife, she initiated a Superior
Court action to determine the amount of her attorney's lien.
The Superior Court proceedings determined the amount of the lien
and also resulted in the imposition of sanctions on the wife for
vexatious litigation. A Probate and Family Court judge (remand
judge) thereafter issued an "amended judgment on remand" on
September 9, 2021 (amended divorce judgment), providing, among
other things, that all amounts due to Klein under the Superior
1 Lauren G. Klein, intervener.
Court judgment would be paid directly to Klein from the wife's
portion of the property division. The wife appeals, challenging
the portions of the amended divorce judgment pertaining to the
attorney's lien, statutory interest, sanctions, retroactive
child support, college expenses, and property division.2 We
reverse so much of the amended divorce judgment as requires the
parties to contribute to the minor child's future college
expenses. The amended divorce judgment is affirmed in all other
respects.
Background. The parties were married in October 2005, and
their child was born in 2006. Although they lived together as a
family in Massachusetts for a short period of time, during most
of the parties' marriage and throughout the litigation in this
case, the wife and the child have resided in Italy, while the
husband has resided in the United States. In May 2015, the
husband filed a complaint for divorce in the Probate and Family
Court and a judgment of divorce nisi issued in June 2016 (2016
divorce judgment). The wife appealed and, in 2018, this court
vacated the 2016 divorce judgment (except for the portion
dissolving the parties' marriage) and remanded the case for a
new trial because the wife had not been permitted to testify
2 The wife also appeals from a "postjudgment" order dated
September 10, 2021, but makes no separate argument with regard
to this order, which essentially deals with the same issues
already addressed in this appeal.
2
either telephonically or electronically. See Bonaparte v.
Devoti, 93 Mass. App. Ct. 603, 608 (2018). Klein represented
the wife in the divorce proceedings through the entry of the
2016 divorce judgment.
After the 2016 divorce judgment entered, Klein withdrew as
the wife's counsel and moved to enforce her attorney's lien
pursuant to G. L. c. 221, § 50. On August 2, 2016, nunc pro
tunc to July 21, 2016, a Probate and Family Court judge issued
an order providing, in relevant part, that Klein was entitled to
a lien "for her reasonable legal fees and costs, which shall be
paid from any final award or settlement that is entered or made
to the [wife], or from any other proceeds that the [wife] may
receive in this matter"; however, "[t]he amount of this lien is
not hereby determined, but must be determined by a proceeding
brought in another Court" (emphasis omitted).
In December 2016, Klein commenced a Superior Court action
to determine the amount of her attorney's lien. After
unsuccessfully moving to dismiss, the wife filed a number of
motions seeking reconsideration, resulting in her being
sanctioned by a Superior Court judge for vexatious litigation.
She was further sanctioned by another Superior Court judge for
other "behavior throughout th[e] [Superior Court] litigation
that appear[ed] to be intended to delay and to impose
unnecessary burdens on opposing counsel and th[e] [c]ourt." In
3
July 2020, following a trial, a different Superior Court judge
issued findings of fact and judgments (1) declaring that
$36,891.60 was the amount of reasonable attorney's fees owed by
the wife for services rendered by Klein in connection with the
divorce proceedings; and (2) requiring the wife to pay the
previously ordered sanctions, in the amount of $3,990, plus
statutory prejudgment interest from December 2019 to July 2020.
The Superior Court judge noted that, with respect to the amount
of the attorney's lien, because he had "not enter[ed] a judgment
for money damages, [he] [did] not address the issue of interest,
which [wa]s for the Probate and Family Court" to decide. The
wife appealed from the Superior Court judgments, which were
recently affirmed by a different panel of this court in an
unpublished memorandum and order. See Klein v. Devoti, 101
Mass. App. Ct. 1106 (2022).
While the Superior Court action was pending, the divorce
matter was remanded to the Probate and Family Court for further
proceedings. Klein moved to intervene in the remanded divorce
proceedings. A one-day divorce trial was held before the remand
judge on February 19, 2021, during which both parties were
represented by counsel. The remand judge allowed Klein's
renewed motion to enforce attorney's lien in an order dated
February 19, 2021.
4
In September 2021, the remand judge issued the amended
divorce judgment providing, among other things, that (1) the
husband shall pay weekly child support of $365; (2) the parties
shall equally contribute to the child's college expenses "based
upon his or her ability at the time"; and (3) as part of the
property division, the wife shall receive $79,400 from the
husband, less "all funds due" to Klein "pursuant to [the]
Superior Court [action], plus statutory interest from the date
of the Superior Court [j]udgment through the date of
distribution. Any such funds shall be paid by husband directly
to Attorney Klein at that time." The present appeal by the wife
followed.
Discussion. The wife challenges the portions of the
amended divorce judgment (1) requiring the payment of Klein's
lien, statutory interest, and Superior Court sanctions from the
wife's share of the property division; (2) denying her request
for retroactive child support; (3) allocating financial
responsibility for the child's future college expenses; and (4)
pertaining to the property division. We address her contentions
in turn.
1. Amounts due to Klein. As an initial matter, we note
that many of the issues raised by the wife in connection with
the attorney's lien and the imposition of sanctions were either
already decided in the prior appeal, Klein v. Devoti, 101 Mass.
5
App. Ct. 1106 (2022), or were not raised below in the first
instance. We will not revisit those previously decided issues,
see King v. Driscoll, 424 Mass. 1, 7-8 (1996), nor will we
entertain issues that have been raised for the first time on
appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006). We therefore turn to the wife's remaining contentions
regarding the amounts due to Klein; that the amended divorce
judgment erroneously included statutory interest and sanctions
in the amount to be paid to Klein from the wife's share of the
property division.
"An attorney's lien under G. L. c. 221, § 50, is a tool for
the recovery of legal fees." Ropes & Gray LLP v. Jalbert, 454
Mass. 407, 413 (2009). The purpose of interest under G. L.
c. 231, § 6C3 is to "compensate a damaged party for the loss of
use or unlawful detention of money." Craft v. Kane, 65 Mass.
App. Ct. 322, 328 (2005), quoting Sterilite Corp. v. Continental
Cas. Co., 397 Mass. 837, 841 (1986). Statutory interest may be
awarded on an attorney's lien from the date that the court
enters an order establishing the amount of the lien. Here, the
remand judge awarded "statutory interest from the date of the
3 "In all actions based on contractual obligations, upon a
verdict, finding or order for judgment for pecuniary damages,
interest shall be added by the clerk of the court to the amount
of damages, at the contract rate, if established, or at the rate
of twelve per cent per annum from the date of the breach or
demand. . . ." G. L. c. 231, § 6C.
6
Superior Court [j]udgment" establishing the amount of Klein's
lien. See Craft, supra (statutory interest may be awarded on
attorney's lien from date that court enters order establishing
amount of lien). We discern no error in the award of statutory
interest set forth in the amended divorce judgment.
As for the inclusion of sanctions in the amended divorce
judgment, the wife argues in a conclusory fashion that the
attorney's lien "does not apply to sanctions awarded in a
separate adversarial proceeding against a former client." The
wife appears to be arguing that the remand judge lacked
authority to enforce the Superior Court judgment pertaining to
sanctions; however, she provides no relevant legal authority in
support thereof. Accordingly, this contention does not rise to
the level of reasoned appellate argument, and we decline to
consider it. See Mass. R. A. P. 16 (a) (9), as appearing in 481
Mass. 1628 (2019); Zora v. State Ethics Comm'n, 415 Mass. 640,
642 n.3 (1993) ("bald assertions of error" in brief "lacking
legal argument and authority . . . [do not] rise[] to the level
of appellate argument").4 See also Maza v. Commonwealth, 423
4 The wife cites to one case in her reply brief, Torphy v. Reder,
357 Mass. 153, 155-156 (1970), for the proposition that Klein's
attorney's lien may not include the sanctions awarded by the
Superior Court. Notwithstanding that the wife should have
included all relevant legal arguments and supporting authority
in her main brief, see O'Meara v. Doherty, 53 Mass. App. Ct.
599, 606 n.4 (2002), the case cited in her reply brief does not
establish that the remand judge lacked authority to enforce the
7
Mass. 1006, 1006 (1996) (appellant's pro se status does not
excuse noncompliance with rules of appellate procedure).
2. Retroactive child support. The wife asserts that the
remand judge erroneously denied her request for retroactive
child support. We disagree.
We review child support orders for an abuse of discretion.
See Department of Revenue v. C.M.J., 432 Mass. 69, 75 (2000).
The wife contends, again without citing to relevant legal
authority, that the judge abused her discretion in denying the
wife's request for retroactive child support because she was
deprived of adequate child support during the pendency of the
original divorce action, appeal, and remand proceedings. The
remand judge found that, although the wife claimed the husband
"did not provide enough support for [the child] over the years,
Superior Court's judgment regarding sanctions. Although we do
not reach the merits of this issue, we note that there is no
blanket prohibition against seeking enforcement of a monetary
judgment issued by a court of the Commonwealth in another court
of the Commonwealth. See Mass. R. Civ. P. 69, 365 Mass. 836(1974) (identical to Mass. R. Dom. Rel. P. 69) ("Process to
enforce a judgment for the payment of money shall be a writ of
execution, unless the court directs otherwise. The procedure on
execution, in proceedings on and in aid of execution shall be in
accordance with applicable statutes"); G. L. c. 235, § 14 (b)
("If a judgment is rendered for the plaintiff by a court in an
action founded on a judgment rendered by a different court,
within the commonwealth, execution shall not issue until the
plaintiff files with the court rendering the judgment in the
later action, a certificate of the judgment in the earlier case
under the seal of the court rendering it, attested by the clerk
of such court").
8
. . . [the] evidence prove[d] otherwise. [The] [h]usband
consistently paid his child support obligation, . . . all
finances [including travel expenses] required by the Italian
Custody & Visitation Agreement[,] . . . [and] expenses incurred
on behalf of [the child] above and beyond what he was court
ordered to pay," including one-half of the child's private
school tuition. The remand judge determined that the husband's
presumptive child support obligation under the Child Support
Guidelines (guidelines) was $365 per week, based on the parties'
incomes at the time of the remand trial and the parenting plan
under which the child resided principally with the wife. The
remand judge declined to order the husband to contribute to the
child's private school education. The judge was not required to
order retroactive child support under the circumstances of this
case,5 and it was not an abuse of discretion to deny the wife's
request for retroactive support where the judge made detailed
findings explaining the basis for her decision.6 Cf. Boulter-
5 The wife originally raised her request for retroactive child
support in a complaint in equity. Where, as here, a child is
born to married parents, there is no statute requiring a judge
to order retroactive child support for any period predating the
entry of the divorce judgment. See Department of Revenue v.
Roe, 29 Mass. App. Ct. 967, 967-968 (1990). The issue of
awarding retroactive child support for children born to married
parents ordinarily arises in the context of a modification
proceeding. See Boulter-Hedley v. Boulter, 429 Mass. 808, 809-
810 (1999).
6 The remand judge made the following subsidiary findings in
support of her ultimate determination regarding retroactive
9
Hedley v. Boulter, 429 Mass. 808, 812 (1999) (judge denying
request for retroactive modification of child support should
make "specific finding that retroactivity would be . . . unjust,
or inappropriate" under circumstances of case).
3. College expenses. The wife contends that the provision
in the amended divorce judgment requiring the parties to
contribute equally to the child's future post-secondary (i.e.,
college) expenses was premature and therefore improper. We
agree.
"Generally, 'support orders regarding the future payment of
post-high school educational costs are premature and should not
be made' . . . until college is 'imminent' for the child"
(citations omitted). Rosen v. Rosen, 90 Mass. App. Ct. 677, 694
(2016). Here, at the time of the remand trial, the child was
child support. The husband has historically paid, and continues
to pay, for all travel expenses incurred to exercise his
parenting time with the child. Between 2016 and 2020, the
husband incurred approximately $24,535 in travel expenses. The
husband has voluntarily paid one-half of the child's private
school tuition since September 2017. The husband paid
approximately $8,307.19, representing one-half of the child's
middle school expenses over a period of two years. At the time
of trial, the husband was paying approximately $3,000 per year
for the child's high school tuition and miscellaneous school-
related expenses. Beginning in January 2015, the husband made
voluntary child support payments of $100 per week, increasing
them to $150 per week as of September 2015. After the 2016
divorce judgment entered, the husband made weekly child support
payments of $240, consistent with that judgment.
10
fifteen years old and in his first year of high school.7 Neither
party raised the issue of allocating responsibility for future
college expenses, and there was no evidence showing that either
(1) the child was preparing to attend college soon, see Cabot v.
Cabot, 55 Mass. App. Ct. 756, 765 (2002), or (2) special
circumstances existed warranting an order for the payment of
college expenses. See Taverna v. Pizzi, 430 Mass. 882, 885-886
(2000); Passemato v. Passemato, 427 Mass. 52, 54-55 (1998).
Accordingly, the provision of the amended divorce judgment
ordering the parties to contribute to the child's future college
expenses was premature and must be reversed. See Lang v. Koon,
61 Mass. App. Ct. 22, 26-27 (2004) (order for payment of college
expenses premature where children were ages fifteen and eleven,
and "and there were no findings of special concerns regarding
either the children or the parents").
4. Property division. When reviewing the distribution of
the marital estate, "[w]e review the judge's findings to
determine whether she considered all the relevant factors under
G. L. c. 208, § 34, and whether she relied on any irrelevant
factors." Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). "We
7 The child started high school in the fall of 2020, only a few
months prior to the remand trial in February 2021. The judge
found that the child would not turn eighteen until January 2024,
more than two years after the entry of the amended divorce
judgment.
11
will not reverse a judgment with respect to property division
unless it is 'plainly wrong and excessive.'" Id., quoting
Baccanti v. Morton, 434 Mass. 787, 793 (2001).
As noted by the remand judge, the "main asset that [was]
contested by the parties [was] the former marital home."8 The
judge was presented with three appraisals dated 2016 ($230,000),
2019 ($285,000), and 2020 ($300,000). The judge used the 2016
appraisal (the year that the parties were divorced) and, after
deducting the mortgage, determined that the marital home had
equity of $98,594.69. The judge found it "equitable" to award
the wife the entirety of her $79,400 contribution to the marital
home's down payment, leaving the husband with the remaining
equity of $19,194.69 (which was only slightly more than his
personal contribution of $18,900 to the down payment. Because
the judge assigned the marital home to the husband, he also
retained the postdivorce appreciation in the home's equity. The
wife contends that she was entitled to a portion of the
8 The parties were each assigned the property held in their
respective individual names because they elected to "have a
separate property regime in accordance with their Italian
marriage certificate and [the] wife's premarital assets." The
wife retained, among other things, two homes in Italy, which she
inherited from her late mother, worth approximately $153,000.
The husband retained, among other things, his retirement account
valued at $88,779.24, which appears to have accrued entirely
postdivorce. The value of the parties' other assets, including
their individual bank account balances, remained relatively
stable between 2016 and 2021.
12
postdivorce appreciation, and that the judge erroneously valued
the marital home as of the 2016 divorce. We disagree.
Where, as here, the property division in the 2016 divorce
judgment was vacated and the matter was remanded for a new
trial, "[t]his resulted in the case standing as if no judgment
had been entered with respect to the [property] division."
Johnson v. Johnson, 53 Mass. App. Ct. 416, 420 (2001). The
remand judge "in this instance was charged with dividing the
property anew, applying the § 34 factors as of the date of the
divorce." Id. at 421. The remand judge "then was required to
consider whether there had been any appreciation or depreciation
with respect to the property, and if so, the extent to which
such appreciation was attributable to one or the other of the
parties or to some independent cause." Id. at 421-422. "[I]f
the postdivorce increase . . . [was] attributable only to the
postdivorce efforts of one spouse," the remand judge was to
treat the "postdivorce increase . . . in the value of the
property . . . as an after-acquired asset, not subject to
division." Id. at 421.
Here, the judge found that the wife, aside from her
contribution of $79,400 to the down payment for the marital
home, made "limited contribution toward maintaining the property
over the years." By contrast, the judge found that the husband
had, at all times, been "solely responsible for the mortgage
13
payments, taxes, and improvements to the marital home." The
judge therefore implicitly found that the postdivorce
appreciation of the marital home was attributable solely to the
husband's efforts. See Johnson, 53 Mass. App. Ct. at 422-423
(consideration of one party's "contributions to the upkeep and
improvement of the property, . . . w[as] factor[] that the judge
could properly consider in determining whether appreciation of
the marital property was solely attributable to [that party]").9
Accordingly, we discern no error in the judge's decision to
value the marital home as of 2016. We further conclude that the
property division was not plainly wrong and excessive."10
Conclusion.11 So much of the September 9, 2021 amended
judgment on remand requiring the parties to contribute equally
9 The wife claims that she is entitled to her share of the
marital home's appreciation "that is attributable to the rising
real estate market," rather than to the husband's sole efforts.
However, the cases cited by the wife do not support this
proposition and are distinguishable from the facts of this case.
See Pare v. Pare, 409 Mass. 292, 296 n.4 (1991); Johnson, 53
Mass. App. Ct. at 421.
10 The wife also contends that the remand judge improperly made a
number of findings regarding the parties' postdivorce
circumstances. She does not, however, identify how those
findings resulted in a "plainly wrong and excessive" division of
property. Zaleski, 469 Mass. at 245, quoting Baccanti, 434
Mass. at 793. Moreover, the judge's "consideration of matters
occurring subsequent to the divorce," was not improper, where,
as here, the 2016 divorce judgment was vacated and the property
division had to be considered anew. Johnson, 53 Mass. App. Ct.
at 422.
11 The wife's request for appellate costs is denied.
14
to the child's post-secondary educational expenses is reversed.
The amended judgment on remand is affirmed in all other
respects.
So ordered.
By the Court (Massing,
Singh & Hershfang, JJ.12),
Clerk
Entered: February 28, 2023.
12 The panelists are listed in order of seniority.
15