Deborah Operach v. Richard Pelton. ( 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-480
DEBORAH OPERACH
vs.
RICHARD PELTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At issue is whether a Probate and Family Court judge erred
by interpreting the parties' separation agreement to require the
father to share certain payments with the mother. Because we
conclude the judge did not err, we affirm.
Background. In 2012, the parties executed a separation
agreement that contained provisions dedicated to "settle and
determine . . . [a]n equitable distribution of property."1
Exhibit G(6) of the agreement, as pertinent to this appeal,
provided:
"6. [Father]'s Miscellaneous Investments. [Father] shall
pay [Mother] 50% of any after tax net payment received from
his investment in the purchase and or development of
[certain] real estate . . . within 30 days of receipt from
same . . . [and Father] shall provide [Mother] with all
documentation relating to the receipt of funds and the
1 These particular provisions of the separation agreement were
incorporated but not merged with the judgment of divorce nisi.
payment of any taxes, if any, associated with the
respective properties/investments within 30 days of the
receipt of said funds [emphasis added]."
In June 2019 the mother filed her first complaint for
contempt alleging the father had failed to either account for or
provide her half of the "after tax net payment[s]" he had
received from investments subject to Exhibit G(6). The judge
found the father guilty of contempt and ordered the father to
comply with the provision by providing fifty percent of the
payments to the mother.
The mother filed her third complaint2 for contempt in July
2021, alleging the father continued to refuse to make the
required payments. The father did not dispute that he had
received payments from the investments subject to division under
Exhibit G(6), that the payments were free from tax consequences,
or that he had entered into an agreement to continue to receive
such payments. However, the father argued that he had no
obligation to share the payments with the mother because they
did not qualify as "after-tax net payment[s]." In support of
his position, the father maintained that the phrase "after-tax
2 On September 11, 2019, the mother filed her second complaint
for contempt, re-alleging that the father had failed to provide
her with either her share or an accounting of additional "after
tax net payments" he had received. The judge did not hold the
father in contempt after finding that, although the father had
negotiated for additional payments subject to Exhibit G(6), he
had not yet received them.
2
net payment" was limited by its terms to any profits received on
the underlying investments, which would be calculated only after
the investment's principal -- a home equity loan assigned to the
father in the divorce -- was repaid. The judge3 rejected the
father's interpretation of the provision and ordered him to pay
fifty percent of the sum of settlement payments he had received.4
The father timely appealed.
Discussion. The issue on appeal is whether the judge erred
by interpreting the parties' separation agreement as obligating
the father to provide fifty percent of the contested payments to
the mother.5 The father maintains his argument that the phrase
"after tax net payment" in Exhibit G(6) applies solely to any
profits from the investment, which would be calculated only
after the principal for the basis of the investment was repaid.
The mother counters that the father's interpretation is
3 The same judge presided over all three contempt hearings
described above.
4 The judge did not find the father to be in contempt. We infer
from the record that the judge treated this third contempt
hearing as a continuation of the first and second contempt
proceedings and chose to clarify her previous formal
adjudication of contempt with her judgment. See Poras v.
Pauling, 70 Mass. App. Ct. 535, 543-544 (2007).
5 Although the father included two additional claims in his
brief, appealing (1) a guilty finding of contempt and (2) that
the provision at issue was ambiguous, at oral argument he (1)
conceded the judge did not find him guilty of contempt, (2)
waived his claim as to whether the provision at issue was
ambiguous, and (3) agreed the only issue is proper
interpretation of the separation agreement.
3
erroneous since the provision at issue contains no such limiting
language.
Interpreting the meaning of a term in a separation
agreement presents a question of law that we consider de novo.
Cavanagh v. Cavanagh, 490 Mass. 398, 413 (2022). Since the
provisions of the separation agreement at issue here were
incorporated but not merged in the divorce judgment, they retain
force as an independent contract. See Krapf v. Krapf, 439 Mass.
97, 103 (2003). "When contract language is unambiguous, it must
be construed according to its plain meaning." Balles v. Babcock
Power Inc., 476 Mass. 565, 571–572 (2017). See General
Convention of the New Jerusalem in the U.S. of Am., Inc. v.
MacKenzie, 449 Mass. 832, 835 (2007). Justice, common sense,
and the probable intent of the parties guide the court's
construction of the agreement. Fried v. Fried, 5 Mass. App. Ct.
660, 664 (1977).
We begin our review by examining the language of the
separation agreement,6 as it provides the best evidence of the
parties' intent. Duval v. Duval, 101 Mass. App. Ct. 752, 758
(2022). See Robert Indus., Inc. v. Spence, 362 Mass. 751, 755
6 Our construction of the meaning of the language at issue is
informed by our recognition that the separation agreement
clearly represents a carefully drafted, comprehensive document
which incorporates the results of a negotiated settlement
between the parties, both of whom were represented by counsel.
See Fried, 5 Mass. App. Ct. at 663–664.
4
(1973). The language at issue here -- "after tax net
payments" -- is readily ascertainable, as each word has a well-
defined, commonly understood meaning, and the construction of
the phrase is equally unambiguous. This provision provides that
the tax on any payment is the only deduction to which the father
is entitled. Exhibit G(6) includes no other language qualifying
the payments, and we are not persuaded by the father's claim
that the parties intended the provision to be limited to "net
income" or "net profit," since the parties did not include such
meaningful and precise terms in the provision. See, e.g.,
Fried, 5 Mass. App. Ct. at 663 n.3 (if parties intended college
payments in addition to child support, "then they could
reasonably have been expected to use language which was
indicative of that result"). In determining the meaning of the
provision's language, we are mindful to refrain from altering
the parties' agreement by adding terms the parties did not
include. Rogaris v. Albert, 431 Mass. 833, 835 (2000). See
Robbins v. Krock, 73 Mass. App. Ct. 134, 138-139 (2008) (parties
are bound by language they chose).
Additionally, the father has offered no authority
supporting his definition of the term "payment," and we conclude
that "a fair reading of the agreement would not support the
[father]'s interpretation, nor raise a question as to the
agreement's meaning such that reasonable minds might differ."
5
Colorio v. Marx, 72 Mass. App. Ct. 382, 388-389 (2008). The
judge's determination that the agreement required the father to
provide fifty percent of whatever amounts he received as a
result of the specified investments to the mother, less any
taxes, is the only interpretation consistent with the plain
meaning of "after tax net payment." See Lieber v. President &
Fellows of Harvard College (No. 2), 488 Mass. 816, 823 (2022)
("When the words of a contract are clear, they control, and we
must construe them according to their plain meaning").
The father's argument concerning the inclusion and force of
the home equity loan7 as subordinating the mother's stated
interest in the provision's allocation of payments is further
foreclosed when considering the separation agreement contains a
separate provision concerning that loan, which provides:
"[Father] shall be solely responsible to pay the outstanding
second mortgage or the Home Equity Line of Credit of record out
of his share of the net proceeds derived from the sale [of the
marital home]." Thus, we decline to construe "after tax net
payments" as implicitly incorporating the repayment of the
father's home equity loan as a condition precedent to the
mother's stated interest in the payments since such an
interpretation would be contrary to the parties' explicit
7 We note that the father's financial statement from October 2021
does not list an outstanding home equity loan.
6
agreement. See Brigade Leveraged Capital Structures Fund Ltd.
v. PIMCO Income Strategy Fund, 466 Mass. 368, 376 (2013). The
father's interpretation would require us to ignore the
independent legal significance of the terms of Exhibit G(6), and
essentially "alter[] what [these] divorcing parties have
provided for themselves." McCarthy v. McCarthy, 36 Mass. App.
Ct. 490, 492 (1994).
Examining Exhibit G(6)'s plain language in the context of
the entire separation agreement, the provision unambiguously
requires the father to account for and share the settlement
payments with the mother, excepting only any taxes on the
payments. See Duval, 101 Mass. App. Ct. at 757-758, and cases
cited. Accordingly, we affirm the judgment.
The mother's request for attorney's fees and costs pursuant
to paragraph twelve of the separation agreement is allowed.8
Consistent with the procedure set forth in Fabre v. Walton, 441
Mass. 9, 10-11 (2004), the mother may file an application for
appellate attorney's fees and cost within fourteen days of the
8 Paragraph twelve provides, "Each party agrees to fully
indemnify and hold the other harmless from any liability that
may be occasioned by her respective breach of an obligation
contained in this Agreement, including reasonable attorneys'
fees, costs, and expenses incurred as a result of such breach,
or as a result of resisting or defending any claims or demands
made by the breaching Party."
7
issuance of the rescript. The father will have fourteen days
thereafter to respond.9
Contempt judgment entered
October 21, 2021, affirmed.
By the Court (Wolohojian,
Neyman & Smyth, JJ.10),
Clerk
Entered: June 6, 2023.
9 The mother's request for sanctions against father is denied.
We likewise deny father's request for fees and costs.
10 The panelists are listed in order of seniority.
8