Debra J. Walsh v. Frank R. Walsh. ( 2023 )


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  • 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-877
    DEBRA J. WALSH
    vs.
    FRANK R. WALSH.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    The wife appeals from a judgment of contempt against her
    former husband, a judgment of modification of child support and
    alimony, and an order denying her motion to reconsider or amend
    or alter judgment and findings, which were issued by a judge of
    the Probate and Family Court.         On appeal, the wife challenges:
    (1) the judge's decision not to order a remedy despite finding
    the husband in contempt; (2) the judge's credibility
    determinations and weighing of the evidence; (3) the judge's
    supposed failure to consider the wife's ability to support
    herself; (4) the judge's decision not to order the husband to
    transfer college funds to the parties' two children; (5) the
    judge's oversight of the wife's presentation of evidence; and
    (6) the judge's statement that thirteen exhibits were entered
    into evidence at trial.1   We affirm.
    The husband and the wife married in 1994, had two sons, and
    were divorced in 2009; the husband was obligated as part of the
    divorce judgment to pay the wife child support and alimony.     The
    husband filed an amended complaint for modification on February
    6, 2020,2 alleging that a decrease in his income (causing him to
    incur significant debt) was a material change in circumstance
    warranting elimination of his child support obligation for the
    parties' older son (then aged twenty-three); reduction (or
    elimination) of his child support obligation for the parties'
    younger son (then aged twenty-one); elimination of his alimony
    obligation; and elimination of the requirement that he maintain
    life insurance.   The wife filed an amended counterclaim for
    modification, requesting an increase in the husband's child
    support and alimony obligations, a declaration that the parties'
    1 The wife's brief often falls short of the level of appellate
    argument required by Mass. R. A. P. 16 (a) (9), as appearing in
    
    481 Mass. 1628
     (2019). It contains little citation to relevant
    legal authorities, does not argue within, or with regard to, the
    relevant standard of review, and cites inaccurately to the
    record. Nevertheless, recognizing that she is self-represented,
    we have reviewed her arguments and the appellate record, such as
    it is, to reach the merits of her argument where possible.
    2 The husband's initial complaint was filed on July 29, 2019, and
    the wife's initial counterclaim was filed on August 14, 2019.
    The parties assented to allow for refiling of amended pleadings,
    both of which were filed on February 6, 2020.
    2
    younger son was unemancipated, and an order for the husband to
    maintain life insurance.   In addition, the wife filed a
    complaint for contempt on June 22, 2020, alleging that the
    husband was in arrears on his child support and alimony
    obligations.
    The judge conducted a consolidated one-day trial on May 5,
    2021, at which the parties were the only witnesses.3    After
    considering the evidence, the judge issued judgments resolving
    the modification and contempt matters, along with comprehensive
    findings of fact and a rationale.     The judge found that the
    husband had overpaid child support for about seven months after
    filing his complaint for modification, but did not require the
    wife to reimburse the husband for the overpayment.     The judge
    found the husband in contempt for terminating his child support
    and alimony payments on March 6, 2020, without first obtaining
    court approval, but declined to require the husband to reimburse
    the wife for those missed payments.    The judge terminated the
    husband's child support and alimony obligations, and terminated
    the requirement that the husband maintain a life insurance
    policy for the wife's benefit.4
    3 The husband was represented by counsel; the wife represented
    herself, as she does here.
    4 The wife raises no claims on appeal regarding the elimination
    of the husband's life insurance obligation.
    3
    On appeal, the first set of issues raised by the wife
    relate to the judge's decision not to order a remedy for the
    husband's contempt.    The wife specifically questions why the
    judge "did not follow through and enforce her findings" by
    ordering the husband to repay the missed support payments, and
    why the judge found she owed the husband money in the absence of
    a request for reimbursement from the husband.    "'The purpose of
    civil contempt proceedings is remedial,' and the formulation of
    the remedy is within the judge's discretion."    Eldim, Inc. v.
    Mullen, 
    47 Mass. App. Ct. 125
    , 129 (1999), quoting Demoulas v.
    Demoulas Super Mkts., Inc., 
    424 Mass. 501
    , 571 (1997).    "[A]
    judge's discretionary decision constitutes an abuse of
    discretion where we conclude the judge made a clear error of
    judgment in weighing the factors relevant to the decision, such
    that the decision falls outside the range of reasonable
    alternatives" (quotation and citation omitted).    L.L. v.
    Commonwealth, 
    470 Mass. 169
    , 185 n.27 (2014).
    The husband was found in contempt for terminating support
    payments between March 6, 2020, and June 25, 2020, without first
    obtaining court approval.    A common remedy for failure to pay
    child support or alimony is to order the payor to make
    additional payments until the payee has received the arrearage
    due.   See, e.g., Poras v. Pauling, 
    70 Mass. App. Ct. 535
    , 537
    (2007).   To decide the parties' modification claims, however,
    4
    the judge determined the amounts owed by the husband under the
    Massachusetts Child Support Guidelines and compared them to what
    the husband actually paid the wife during the relevant
    timeframe.     Despite the missed payments, the husband was not in
    arrears; he overpaid his support obligations by $9,479 between
    August 13, 2019 (when he filed his complaint) and July 13, 2020
    (when the younger son turned twenty-two).     In these
    circumstances, the judge reasonably declined to order the
    husband to reimburse the wife.
    The wife next raises concerns about the judge's credibility
    determinations and the weight she gave to the parties' financial
    statements, specifically that the judge credited the husband's
    financial statement while discrediting portions of the wife's
    financial statement.     In declining to credit portions of the
    wife's financial statement, notably her self-employment income,
    the judge relied on the wife's testimony that she "was a little
    confused on a couple of things" while filling out her financial
    statements, and that she was "not good at doing financial
    statements."    Determinations of credibility and evidentiary
    weight are matters for the fact finder (here, the trial judge),
    "not an appellate court."     Patriot Power, LLC v. New Rounder,
    LLC, 
    91 Mass. App. Ct. 175
    , 181 (2017).     See Commonwealth v.
    Rivera, 
    482 Mass. 259
    , 269 (2019) ("fact finder must determine
    weight and credibility of testimony").     The judge, having heard
    5
    the parties' testimony and reviewed the documentation they
    provided was in the best position to determine the parties'
    credibility and to weigh the evidence.   We do not disturb her
    findings or determinations of credibility.
    We reach the same conclusion with respect to the wife's
    argument that the judge failed to consider the wife's ability to
    support herself before terminating the husband's alimony
    obligation.   The judge found, and the wife does not contest,
    that the parties had been married for 152 months (twelve years
    and eight months).   The presumptive maximum alimony duration
    under the Alimony Reform Act (act) is set at seventy percent of
    the number of months of the marriage, see G. L. c. 208, § 49 (b)
    (3), meaning that the presumptive durational limit for the
    husband's alimony payments was 106 months (eight years and ten
    months).   At the time the husband ceased making alimony payments
    in February 2020, he had already paid for more than ten years,
    longer than the presumptive maximum duration under the act.
    In determining whether a deviation beyond the presumptive
    durational limit is "required in the interests of justice,"
    George v. George, 
    476 Mass. 65
    , 70 (2016), quoting G. L. c. 208,
    § 49 (b), the judge must evaluate the circumstances at the time
    the deviation is sought, including "a party's inability to
    provide for that party's own support by reason of that party's
    deficiency of property, maintenance or employment opportunity."
    6
    G. L. c. 208, § 53 (e) (8).   The burden was on the wife, as the
    recipient spouse, to prove by a preponderance of the evidence
    that she had an inability to provide for herself; she did not
    carry that burden.   See George, 
    supra.
       As we have already
    noted, the judge discredited the wife's financial statement as
    it related to her income and found that the wife was "capable of
    earning income to provide for her own support."   The judge also
    found that the value of the wife's assets (three retirement
    accounts and a condominium free from any mortgage) had increased
    since the previous modification judgment and, based on the
    evidence before her, permissibly concluded that the wife was
    "not unable to provide for her own support by reason of
    deficiency of property."   Viewing the judge's findings and
    rationale as a whole, it is clear that the judge considered the
    wife's ability to support herself as required by G. L. c. 208,
    § 53 (e) (8), and, based on her weighing of evidence she found
    credible, determined that the wife could do so.
    The wife also argues that the judge erred by not ordering
    the husband to transfer college funds to the children (or to the
    wife as guardian of the younger child).   However, the judge
    cannot be faulted for failing to address an issue that was not
    raised in the husband's amended complaint for modification, the
    wife's counterclaim for modification, or the wife's complaint
    for contempt.   Although the wife conducted some examination on
    7
    the issue, this was not a case where an issue "not raised by the
    pleadings [was] tried by express or implied consent of the
    parties."   Mass. R. Dom. Rel. P. 15 (b).   Nor can the wife raise
    the issue for the first time here.5    See Boss v. Leverett, 
    484 Mass. 553
    , 562 (2020).
    The wife next raises concerns about how the judge conducted
    the trial, and specifically contends that she (the wife) was
    rushed during (and unable to complete) her cross-examination of
    the husband, which she alleges could "possibly [be] considered a
    violation of the [First] Amendment."    "[J]udges are afforded
    substantial latitude in pretrial and trial management."
    Esteraz, petitioner, 
    90 Mass. App. Ct. 330
    , 335 (2016).    "We do
    not consider that discretion abused unless its exercise has been
    characterized by arbitrary determination, capricious
    disposition, whimsical thinking, or idiosyncratic choice."
    Greenleaf v. Massachusetts Bay Transp. Auth., 
    22 Mass. App. Ct. 426
    , 429 (1986).
    The wife's contentions are not supported by the record, and
    we see no abuse of discretion in the judge's trial management.
    The judge stated (once the wife's cross-examination of the
    husband had taken approximately the same amount of time as his
    5 Our conclusion with respect to the educational funds does not
    foreclose the wife from seeking, if appropriate, relief in the
    trial court.
    8
    direct testimony) that she would give the wife "until 12:15,
    because I really do want to hear your testimony.   I think I
    would learn a lot if I could hear you testify."    The judge's
    remark was entirely appropriate; it expressed the judge's desire
    to hear all of the relevant information necessary to make an
    informed decision.   The judge's additional comments were merely
    designed to prevent the wife from asking questions that had
    already been answered, or from getting into irrelevant material,
    or from discussing matters better suited to the wife's direct
    testimony.   Finally, the wife's cross-examination concluded only
    when she stated "I'm all done," without any prompting by the
    judge -- a remark that contradicts the wife's claim that she was
    "unable to complete" her questioning.
    The wife's final contention is that the judge erred by
    stating thirteen exhibits were entered into evidence at trial.
    It is unclear how many (and which) documents were exhibits,
    because the wife has not provided us with the uncontested
    documents as marked and submitted by the parties at trial.
    Therefore, we cannot review this argument on the record provided
    to us.   See Hasouris v. Sorour, 
    92 Mass. App. Ct. 607
    , 610 n.4
    (2018) ("[t]he burden is on the appellant . . . to furnish a
    record that supports [her] claims on appeal" [citation
    omitted]).   Moreover, the wife has not articulated what
    9
    prejudice she suffered from the judge's supposed misstatement
    regarding the number of exhibits.
    Judgments dated July 20,
    2021, affirmed.
    Order denying motion to
    reconsider dated November
    17, 2021, affirmed.
    By the Court (Green, C.J.,
    Wolohojian &
    Sullivan, JJ.6),
    Clerk
    Entered:    June 13, 2023.
    6   The panelists are listed in order of seniority.
    10