Arthur A. Boyle v. Cheryl A. Boyle. ( 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-902
ARTHUR A. BOYLE
vs.
CHERYL A. BOYLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The former wife filed a contempt complaint in the Probate
and Family Court after her former husband failed to pay her a
percentage of his pension as required by a divorce judgment.
After an evidentiary hearing, a Probate and Family Court judge
found the husband in contempt. The husband appeals, and we
affirm.
1. Background. The parties, Arthur and Cheryl Boyle,
married in 1974. Arthur retired from the Lowell police
department in 2002, and he and Cheryl selected "Option (c),
Joint and Last Survivor Allowance" under G. L. c. 32, § 12 (2),
which provided for a "lesser retirement allowance" during
Arthur's lifetime with a survivor benefit for Cheryl.
Thereafter, Arthur received monthly pension payments.
Four years later, in 2006, the parties divorced by a
judgment nisi that incorporated a separation agreement prepared
by Arthur's lawyer. Cheryl represented herself. The agreement,
which did not merge with the judgment, provided: "The parties
to this Agreement each agree that Wife will be entitled to
Twenty Percent (20%) of Husband's pension, while Husband is
alive, as provided by the Lowell Retirement System." No one
submitted a Qualified Domestic Relations Order to the Lowell
Retirement System. Arthur never paid Cheryl her twenty percent
share. At some point, Cheryl learned that the Lowell Retirement
System did not "put aside" her share, and she asked Arthur about
the pension. In 2010, Cheryl broached the subject of the
pension once again, and Arthur gave her $10,000.
On March 9, 2020, Cheryl filed a complaint for contempt in
the Probate and Family Court and alleged that Arthur failed to
comply with the terms of the divorce judgment as it pertained to
the pension provision. In opposition, Arthur raised three
arguments at an evidentiary hearing: (1) the agreement was the
result of a mistake by the parties; (2) the agreement was
ambiguous; and (3) the parties "had a deal" that superseded the
agreement. A judge found Arthur in contempt of the 2006 divorce
judgment and ordered him to pay to Cheryl past due pension
payments, interest, and attorney's fees.
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On appeal, Arthur raises four claims: (1) the agreement
was ambiguous; (2) he did not disobey a clear command of the
court; (3) laches bars Cheryl's claim; and (4) enforcement of
the agreement will result in unjust enrichment.
2. Discussion. Civil contempt requires a "clear and
undoubted disobedience of a clear and unequivocal command"
(citation omitted). Birchall, petitioner, 454 Mass. 837, 853
(2009). A court considers "the totality of the circumstances."
Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018), quoting
Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009). We
review the ultimate finding of civil contempt for an abuse of
discretion, "but we review underlying conclusions of law de novo
and underlying findings of fact for clear error." Commercial
Wharf E. Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass.
App. Ct. 523, 532 (2018). We discern no abuse of discretion and
no error in the judge's findings and conclusions.
The language of the agreement is not susceptible to any
ambiguity. As the judge concluded, the separation agreement was
"clear and unambiguous." The plain language of the agreement
"entitled" Cheryl to "Twenty Percent (20%) of Husband's pension,
while Husband is alive." Contrast King v. Cerbone, 101 Mass.
App. Ct. 783, 791 (2022) (contempt order vacated where "divorce
judgment did not explicitly address the contested issue"); Sax
v. Sax, 53 Mass. App. Ct. 765, 771-772 (2002) (contempt
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complaint properly dismissed where "take no action" provision
lacked fair notice of prohibited conduct). While the separation
agreement is silent on the precise mechanism of the payment to
Cheryl, "silence of the contract" on a particular point is not
the equivalent of an ambiguity. Cramer v. Hirsch, 18 Mass. App.
Ct. 986, 987 (1984). The agreement incorporated by the judgment
apportioned to Cheryl twenty percent of Arthur's pension that he
collected each month. Logically, Arthur, who received the
entire monthly pension distribution (including Cheryl's share),
had a "clear and unequivocal command" to pay Cheryl her share.
Birchall, petitioner, 454 Mass. at 853. The various methods he
could have chosen to carry out this command is immaterial in
light of the fact that he did not employ any method to carry out
the command, even after Cheryl requested compliance.
The record also supports the conclusion that Arthur's
failure to pay constituted clear and undoubted disobedience.
Arthur repeats the claim he made below "that both parties were
acting under the auspices of a deal" that superseded the
agreement. This claim fails for at least three reasons. First,
the judge did not credit Arthur's testimony that the parties had
a superseding agreement. Second, the settlement agreement
expressly contradicts Arthur's assertion: "[I]t being the
intention of the parties that henceforth there shall exist as
between them only rights and obligations as are specifically
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provided for in this Agreement and in any [court]
judgments. . . . The Husband and Wife agree that there have not
been made, and that they have not relied upon any promises,
warranties, or representations except as expressly contained
herein." Third, "the totality of the circumstances" demonstrate
that Arthur understood his obligation to pay but declined to do
so. Smith, 93 Mass. App. Ct. at 363. The separation agreement
was not conceived in a vacuum. At the time of the agreement,
Arthur had been collecting his monthly pension for four years.
The agreement and judgment "entitled" Cheryl to twenty percent
of that pension income. After not receiving any payments from
Arthur, Cheryl asked Arthur about the pension. In 2010, Cheryl
broached the subject of the pension once again, and Arthur made
a single payment of $10,000. The simple and straightforward
language of the agreement coupled with the parties' "post-
agreement conduct" show that Arthur fully appreciated the basis
of his obligation to pay Cheryl. Sax, 53 Mass. App. Ct. at 772.
This is not a case where a party's failure to act has a viable
explanation other than defiance. See Voorhis v. Relle, 97 Mass.
App. Ct. 46, 54 (2020) (contempt order unwarranted where
"disputed sums were not cash bonuses subject to the additional
alimony provision of the separation agreement"); Hinds v. Hinds,
4 Mass. App. Ct. 63, 66 (1976) (contempt order unwarranted where
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husband failed to convey property by date not specified in
order).
For the first time on appeal, Arthur argues theories of
unjust enrichment and laches. The unjust enrichment issue is
waived as never having been raised prior to the appeal. "An
issue not raised or argued below may not be argued for the first
time on appeal." Century Fire & Marine Ins. Corp. v. Bank of
New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
Although he raised laches as a one-word affirmative defense,
Arthur did not argue the defense below. This issue is therefore
waived as well. National Shawmut Bank v. McGlinn, 254 Mass.
308, 312 (1926) (issue raised by answer but "not pressed" is
waived). Even if we generously construed Arthur's argument
below as encompassing a laches component, the claim on appeal
fails because Arthur's payment obligation vested as a judgment
of the Probate and Family Court, and laches is not available as
a defense. See Capone v. Caponi, 350 Mass. 766, 766 (1966);
Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 414 (2007).
Arthur also advanced an additional theory during oral
argument. He claimed that there was no contempt because the
divorce judgment did not require Arthur to take any action.
Instead, so the argument goes, the judgment merely entitled
Cheryl to a future share in Arthur's pension, and it was
incumbent on her, if she wanted to collect that share, to take
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action such as submitting a Qualified Domestic Relations Order
to the Lowell Retirement System. Arthur contends the divorce
judgment required him only to cooperate with Cheryl's effort to
obtain her share. Counsel for Arthur acknowledged that this
argument was not briefed by prior counsel. We decline to
consider an argument that has not been briefed by the parties.
See Trustees of Beechwood Village Condominium Trust v. US
Alliance Fed. Credit Union, 95 Mass. App. Ct. 278, 287 n.20
(2019). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019) ("The appellate court need not pass upon
questions or issues not argued in the brief"). Even if we
considered this argument, Arthur's claim still fails, because he
did nothing to comply with the judgment even after Cheryl
requested compliance.
3. Conclusion. The hearing judge did not abuse his
discretion by finding Arthur in contempt. Cheryl's request for
appellate attorney's fees is allowed. G. L. c. 215, § 34A (a).
See Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 131 (1999)
(fees expended on appeal part of pecuniary injury suffered as
result of "disobedience of the court order"). Accordingly,
Cheryl may submit a petition for appellate attorney's fees,
accompanied by appropriate supporting documentation, within
fourteen days of the date of the rescript, and Arthur may file a
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response within fourteen days thereafter. See Fabre v. Walton,
441 Mass. 9, 10-11 (2004). 1
Judgment affirmed.
By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 2),
Clerk
Entered: October 18, 2023.
1 Cheryl argued in her brief that the contempt judgment should be
modified to include pension payments to the date of the
separation agreement. She did not file a cross appeal from the
judgment, and her counsel at oral argument conceded this issue
is not properly before us.
2 The panelists are listed in order of seniority.
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