Heather B. Montalvo v. Jose L. Montalvo. ( 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-590
HEATHER B. MONTALVO
vs.
JOSE L. MONTALVO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (husband) appeals from an amended judgment of
contempt entered November 16, 2021, including an award
allocating the fees of the special master and granting the wife
attorney's fees. We affirm the amended contempt judgment to the
extent the judge found that the husband failed to comply with
the divorce judgment's requirement that the marital home be sold
"forthwith." However, we vacate so much of the amended contempt
judgment as rests on the judge's determination that the husband
violated any other provision of the divorce judgment or
subsequent order, and remand the matter for reconsideration and
reallocation of the special master's and attorney's fees.
Background. We summarize the findings of the judge,
supplemented by certain undisputed facts. 1 The essential facts
are undisputed. After trial, a judgment of divorce nisi entered
on July 24, 2019, nunc pro tunc to June 21, 2019 (divorce
judgment). As pertinent to this appeal, the divorce judgment
provided that
"[t]he marital home located at 25 Moses Wheelock Lane, Unit
20, Westboro, MA, which is subject to a deed restriction,
shall be sold forthwith. The parties shall list the home
for sale with a real estate broker, subject to the deed
restriction and the Department of Housing and Community
Development Regulations. If the parties are unable to
agree upon a real estate broker on or before September 1,
2019, Attorney Thomas Donahue is appointed as Master to
effectuate the sale of the marital home. The fees
associated with a Master, as appointed by the Court, shall
be paid from the proceeds from the sale of the property
prior to any distribution to the parties. The Master shall
have the authority to list the property for sale, subject
to the deed restriction and the Department of Housing and
Community Development Regulations, hire a real estate agent
and agree upon a sale price. Upon the marital home being
sold, the Master's Fees being paid and all normal and
customary costs associated with said sale being paid, the
parties shall share equally in the then remaining proceeds
from the sale."
1 The husband correctly points out that the statement in the
amended judgment that the defendant "continued to attempt to
refinance the existing mortgage on said home, which indebted
both parties" is inconsistent with the judge's findings and
unsupported by the evidence. As correctly found in the judge's
findings, the defendant was seeking to obtain financing for
another home, not the marital home. The erroneous statement in
the amended judgment should be corrected by the judge on remand.
2
At the time the divorce judgment entered, the husband was living
in the marital home with the couple's two children, of whom he had
primary physical custody.
The parties obtained the marital home through a lottery
system for affordable homes. Title was in the husband's name
alone, as was the mortgage. The property was encumbered by a
deed rider requiring the husband to notify the Department of
Housing and Community Development (DHCD) and the town of
Westborough in writing of his intent to sell the property before
it could be put on the market. However, even after giving such
notice, the husband retained the right to halt the sale of the
property at any time, and DHCD was required to comply with any
such request from the husband. The property could be sold only
to a qualified buyer at no more than the maximum price set by
DHCD.
The husband did not take the initial step towards sale,
which was to notify DHCD of his intent to sell the property,
until September 11, 2019. Thereafter, the husband completed a
resale property information form, and the DCHD notified the town
of its right of first refusal, which the town elected to waive.
The property was placed on the open market on December 10, 2019.
The record supported the judge's findings that the husband
took several steps thereafter that effectively caused the
property to be taken off the market. Specifically, on December
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31, 2019, the husband informed DHCD that he would not be
available for several weeks, which halted marketing efforts. On
February 3, 2020, the husband informed DHCD that he was
attempting to obtain financing on another home and would be
seeking from the court additional time to comply with the
divorce judgment. 2 On April 27, 2020 -- shortly after the wife
filed a complaint for contempt -- the husband reinitiated the
sale process, but halted it again on May 13, 2020, by informing
DHCD that he would be unavailable. On June 5, 2020, the husband
informed DHCD that he wished to reinstate the sale process, but
that his compliance with the divorce judgment was contingent
upon his finding alternative housing. The divorce judgment did
not permit the husband to impose such a contingency.
On July 21, 2020, the judge held a hearing on the wife's
contempt complaint. The judge credited the special master's
report at the hearing that there was a buyer interested in the
property, but that the sales process was on hold due to the
husband's self-made condition that the sale of the property be
contingent upon his finding alternative housing. The judge
found the defendant in contempt for failing to comply with the
2 On February 3, 2020, the husband filed a complaint for
modification seeking more time to comply with the divorce
judgment due to his difficulties in obtaining alternate housing.
That complaint was dismissed, a ruling the husband did not
appeal.
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divorce judgment despite having the ability to comply and
ordered the husband to "sign any offer from a qualified buyer
with no contingencies." Further, the defendant was notified
that "[t]he court may assess further fees and sanctions for
failure to comply with this order."
Following the July 21, 2020, order, the husband entered
into a purchase and sale agreement (P&S) with his live-in
girlfriend, who had been deemed qualified by DHCD, at the
maximum sale price set by DHCD. The wife then sought to halt
the sale to the girlfriend as further relief on her contempt
complaint. On August 31, 2020, the judge declared void the P&S
on the ground that it was not in fact a bona fide offer. The
judge also ordered the husband to accept an offer only from a
"neutral third party buyer." The husband filed a timely
petition for interlocutory relief from a single justice of this
court. The petition was allowed on October 8, 2020, and the
single justice concluded that the judge abused her discretion in
voiding the P&S. The single justice found that, although the
proposed purchaser was the husband's significant other, she had
been approved by DHCD to buy the home for the maximum resale
value and there was no evidence that the offer was made without
good faith or fraudulently.
On October 26, 2020, after hearing, the judge entered a
further order on the contempt complaint, requiring that "[a]ny
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proceeds from the sale of [the property] shall be held in
escrow" by the special master.
On November 5, 2020, the husband and his girlfriend entered
into a subsequent P&S (second P&S) at the maximum sale price,
with a deposit of $6,070, and a closing date of November 30,
2020. On December 28, 2020, the special master filed an interim
report in which he stated the closing did not occur as
scheduled. The special master also reported that the closing
was on hold because of an issue the lender had with appraisal
associated with the loan to the girlfriend. On December 29,
2020, the judge issued a further temporary order on the contempt
complaint, in which she authorized the special master to obtain
a copy of the second P&S and information concerning any pending
loan applications.
On February 12, 2021, the special master filed a further
supplement and interim report stating that, after some back-and-
forth concerning loan application and mortgage information, he
had approved the transfer of the property on February 11, 2021.
The closing took place the following day, February 12, 2021.
Also on that day, the wife filed a motion seeking an order
requiring that the husband be responsible for the fees of the
special master. The wife claimed that the husband had delayed
the sale of the property, and that the husband and his
girlfriend had frustrated the special master's ability to obtain
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necessary information. Simultaneously, the wife filed a motion
seeking an award of attorney's fees in the amount of $20,915.
On February 15, 2021, after having received a copy of the
closing disclosure, the special master learned that the husband
had given the girlfriend a credit of $7,982.81 toward the
purchase price. The special master was told that the second P&S
provided that the husband would "credit the buyer up to 6% of
the purchase price as a closing cost credit at closing as
allowed under the mortgage terms. This shall come out of his
proceeds only. Any share of the proceeds being paid to other
parties shall not be affected by this credit." The special
master was also told by the closing attorney that the girlfriend
would not have qualified for the mortgage without this credit.
The effect of this undisclosed arrangement was that the special
master would receive only $35,742.13 (plus the $6,070 deposit)
from the sale, rather than $49,796 as he should have. The
special master suggested to the judge that the husband's credit
be paid directly to the wife, and that the proceeds from the
sale be divided keeping "in mind the cost of the special master,
the application for counsel fees filed by the [p]laintiff's
attorney, and any sanctions that may be assessed."
On February 17, 2021, the wife filed a second complaint for
contempt (second contempt complaint), claiming that the closing
cost credit violated the judge's October 26, 2020, order because
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it was not disclosed by the husband to the special master and
because it diverted funds to the girlfriend and away from the
escrow to be held by the special master.
On April 27, 2021, after further hearing, the judge found
the husband to be in contempt of the divorce judgment by failing
to sell the property "forthwith." The judge divided the
proceeds of the sale equally between the husband and wife
($24,898 after accounting for the closing cost credit), found
that the husband's failure to comply with the sale of the
property resulted in the need for extensive involvement of the
special master, ordered the husband to pay one hundred percent
of the special master fees ($7,280), and awarded $15,750 in
attorney's fees for the wife. The judgment was later amended to
reduce the attorney's fees award after the wife's counsel
acknowledged an error as to the amount of the fees. This appeal
followed.
Discussion. The husband makes two major arguments on
appeal. First, the husband argues that the judge abused her
discretion in finding him in contempt of the divorce judgment.
Second, he argues that the judge abused her discretion in
ordering him to bear the full amount of the special master's
fees and the wife's attorney's fees. We address each of these
arguments in turn.
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1. Finding of contempt. "We review the judge's ultimate
finding of contempt for abuse of discretion, but we review
underlying conclusions of law de novo and underlying findings of
fact for clear error." Jones v. Jones, 101 Mass. App. Ct. 673,
688 (2022), quoting Commercial Wharf E. Condominium Ass'n v.
Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). "[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" (citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). "A finding is 'clearly erroneous'
when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." Rosen v. Rosen,
90 Mass. App. Ct. 677, 692 (2016), quoting Martin v. Martin, 70
Mass. App. Ct. 547, 549 (2007). "[W]e give 'due regard' to the
trial judge's ability to judge the witnesses' credibility."
O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 150 (2003).
"To constitute civil contempt there must be 'clear and
convincing evidence of disobedience of a clear and unequivocal
command.'" Jones, 101 Mass. App. Ct. at 687, quoting Birchall,
petitioner, 454 Mass. 837, 853 (2009). "Civil contempt 'can be
used as an enforcement mechanism only if the underlying order is
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sufficiently clear, so that the party to be bound is provided
with adequate notice of the required or prohibited activity.'"
Lynch v. Police Comm'r of Boston, 51 Mass. App. Ct. 772, 776
(2001), quoting Demoulas v. Demoulas Super Mkts., Inc., 424
Mass. 501, 565-566 (1997). "The requisite unequivocal clarity
requires more than a general statement that might or might not
include the accused's conduct." O'Connell, 59 Mass. App. Ct. at
150.
"[V]ague or ambiguous language in a judicial decree will
not suffice. Ambiguities are regularly resolved in favor of the
alleged contemnor, and cannot be removed by examining the
evidence underlying the judgment in which the ambiguous language
is found." (Citations omitted.) Sax v. Sax, 53 Mass. App. Ct.
765, 772 (2002). Findings of contempt "have been upheld where,
although the operative language was facially unclear, the simple
straightforward, and undisputed facts regarding the parties'
post-agreement conduct, clearly showed not only what the
language meant but also that the parties shared a common
understanding of that meaning. Far different are cases where
the order's language is filled with discretion . . . or cannot
be understood without an extensive review of the evidence,
findings, or other background materials on which it is based."
(Citations omitted.) Id. at 772-773.
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The divorce judgment ordered that "[t]he marital home
. . ., which is subject to a deed restriction, shall be sold
forthwith," followed by a series of provisions prescribing the
appointment of a special master. The husband argues that the
divorce judgment's order was not a clear and unequivocal command
"because it defers to the authority of DHCD and makes reference
to deed restrictions and DHCD regulations creating ambiguity as
to the judgment's directives." We disagree.
The divorce judgment unambiguously required the husband to
"list the home for sale with a real estate broker, subject to
the deed restriction and the [DHCD] Regulations" so that the
property could be sold "forthwith." The divorce judgment also
required the parties to agree on a real estate broker by
September 1, 2019. The failure to meet the September 1 deadline
resulted in the appointment of the special master. That is not
to say, however, that the husband was insulated from
responsibility under the divorce judgment once a special master
was appointed. The husband remained responsible for listing the
marital home for sale, which he had the power to do under the
deed rider and DHCD regulations. 3
3 The husband -- not the wife -- participated in the DHCD's local
initiative program, and he was given the opportunity to purchase
the marital home at an affordable price. Accordingly, his was
the only name on the deed to the property, and he was required
to follow the process outlined in section 4 of the deed rider to
sell the property. That process required him to notify DHCD and
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The obligation to list the property for sale and sell it
"forthwith" would naturally include the obligation not to
withdraw the home from the market once listed, as well as an
obligation not to impose conditions of the husband's own making
on the listing or sale. See Demoulas, 424 Mass. at 567 ("We
have upheld findings of contempt where the court order, although
subject to some legal interpretation, has nonetheless placed the
party bound by the order on notice that certain actions could
constitute the basis for contempt"). The record supported a
conclusion that the husband violated the divorce judgment by
withdrawing the house from the market on multiple occasions, and
by imposing conditions on the sale of his own making.
Accordingly, the judge did not abuse her discretion in finding
that the husband was in contempt of his obligation under the
divorce judgment to list the property with a real estate broker,
subject to the deed restrictions, in a manner to accomplish the
sale of the property "forthwith."
However, the judge also concluded that by giving a closing
credit to the girlfriend, the husband had violated both (1) the
the town of Westborough that he intended to sell the property;
at that point DHCD calculated the maximum resale price and
commenced the marketing process (once the town waived its option
to purchase the property). However, "once the resale process
outlined in Section 4 of the Deed Rider commences, . . . it is
not DHCD's normal practice to compel the homeowner to continue
with the sale of the property," when a homeowner decides they no
longer wish to sell.
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divorce judgment, which provided that "[u]pon the marital home
being sold, the Master's Fees being paid and all normal and
customary costs associated with said sale being paid, the
parties shall share equally in the then remaining proceeds from
said sale"; and (2) the temporary order dated October 26, 2020,
which required that "any proceeds" of the sale be held in escrow
by the special master. "[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." Hoort v. Hoort, 85
Mass. App. Ct. 363, 365 (2014), quoting Larson v. Larson, 28
Mass. App. Ct. 338, 340 (1990). Neither the divorce judgment,
nor the October 26 temporary order was a clear and unequivocal
order that the husband could not extend a closing credit that
would not affect the amount the wife was to receive from the
sale. We note in this regard that "normal and customary costs
associated with said sale" as used in the divorce judgment is
silent as to the handling of credits, and that "any proceeds"
was undefined in the temporary order and could easily be
understood to mean net proceeds from the sale.
Accordingly, we affirm the finding of contempt only to the
extent it is based on the husband's failure to list and maintain
the property for sale in a manner to accomplish its sale
"forthwith."
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2. Award of special master's fees and attorney's fees.
The husband argues that the judge abused her discretion by
awarding the full amount of the wife's attorney's fees without
any examination of the reasonableness of the fees. Second, the
husband argues that the judge abused her discretion by ordering
the husband to pay one hundred percent of the special master's
fees without considering the wife's own conduct in delaying the
sale. Third, the husband claims that the judge erred in
awarding fees without finding that he had the ability to pay
them.
As presented to the judge, there were three potential
procedural mechanisms by which she could make an award of
attorney and special master fees against the husband. The first
was on the wife's contempt complaint and the temporary orders
entered on that complaint. The second was on the wife's motion
for an award of attorney's fees based on the husband's purported
"various and sundry actions and behavior to obfuscate the sale
of the home in order to frustrate the" divorce judgment. The
third was on the wife's motion for an order allocating the fees
of the special master based on similar allegations, as well as
the refusal to provide necessary information to the special
master. In the end, the judge awarded fees solely on the
contempt complaint, and took no separate action on the wife's
two motions. That said, the judge based the award of fees not
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only on the husband's violation of the divorce judgment, but
also on her finding that the husband's closing credit violated
both the divorce judgment and the October 26 temporary order.
In light of our conclusion that the judge erred in finding
the husband in contempt for giving the closing credit, a remand
is necessary to permit the judge to reconsider the allocation
and amount of the special master and attorney's fees. There is
no doubt that "the awarding of attorney's fees and costs is an
appropriate element of a successful civil contempt proceeding."
Martinez v. Lynn Hous. Auth., 94 Mass. App. Ct. 702, 708 (2019),
quoting Ventresca v. Town Manager of Billerica, 68 Mass. App.
Ct. 62, 65 (2007). But the award must be grounded in the legal
fees incurred "as a consequence of the [husband's] violation of
the court order." Ventresca, quoting Demoulas, 424 Mass. at
571. Where a party has not prevailed in a contempt proceeding,
fees should ordinarily not be awarded. See id. at 65-66. In
this case, the pertinent order is the command in the divorce
judgment that the husband list the property so that the property
could be sold forthwith. It necessarily follows that, on
remand, the judge should consider the extent to which the wife's
own actions may have delayed the sale. The wife is not entitled
to recover fees resulting from any delay she may have caused.
In addition, it appears from the record that the judge may
have accepted the wife's application for fees without close
15
examination of its reasonableness or relationship to the
contumacious actions of the husband. We note in this regard
that the judge accepted the first fee application at face value
even though it contained a significant error resulting in more
than twice the amount of fees that should have been claimed, and
that she does not appear to have engaged in any examination of
the reasonableness of the second fee affidavit. On remand, we
are confident that the judge will give close examination to the
amount of attorney's fees claimed and their relationship to the
husband's contempt.
We do not mean to suggest that, on remand, the judge cannot
make an award of attorney's fees against the husband, or that
she cannot allocate more than fifty percent of the special
master fees to him. However, any award should take into account
the considerations we have set out above.
Finally, the husband argues that the judge did not consider
his ability to pay the award of fees. This argument, however,
appears to be targeted to the original contempt judgment, which
resulted in a net judgment against the husband in excess of his
half of the proceeds from the sale. As we have already noted,
the amount was significantly reduced in the amended contempt
judgment, with the result that the husband would receive some
amount from the sale. The husband has made no argument
concerning his ability to pay the amended amount. In any event,
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because the judge, as a result of this decision, will reconsider
the amount and allocation of attorney's and special master's
fees, the father's argument is best directed to the trial court
on remand.
Conclusion. We affirm so much of the amended judgment of
contempt as found the husband in contempt of the divorce
judgment provision requiring the marital home to be sold
forthwith. We vacate the remainder of the amended judgment of
contempt, and remand the matter for reconsideration and
reallocation of the special master's and attorney's fees. We
allow the wife's request for appellate attorney's fees. In
accordance with the procedure specified in Fabre v. Walton, 441
Mass. 9, 10-11 (2004), the wife may, within fourteen days of the
issuance of this decision, submit an application for attorney's
fees with the appropriate supporting materials. The husband
shall have fourteen days thereafter to respond.
So ordered.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 4),
Clerk
Entered: October 5, 2023.
4 The panelists are listed in order of seniority.
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