DocketNumber: No. 12-P-1853
Citation Numbers: 85 Mass. App. Ct. 363
Judges: Grainger
Filed Date: 5/28/2014
Status: Precedential
Modified Date: 6/25/2022
Steven Hoort (husband), the former husband of Nancy Hoort (wife), appeals from a judgment of contempt entered by a judge of the Probate and Family Court. At issue on appeal is the interpretation of language contained in a temporary order that was in effect for a two-year period during the parties’ divorce proceedings requiring the husband to pay the wife “a sum equal to one-third of his year end distribution after taxes.”
Background. The parties were married for thirty-one years,
We review the husband’s compensation structure as it is relevant to the parties’ arguments on appeal. The husband’s approximate annual compensation in 2008 was $970,000.
The first complaint for contempt. In January, 2009, the husband received his 2008 year-end distribution. In July, 2009, the wife filed a complaint for contempt asserting that the husband had failed to pay one-third of his 2008 year-end distribution as directed by the court’s temporary order. The contempt action was consolidated with the divorce trial. Following a consolidated trial, the court found the husband not guilty of contempt. Specifically, in her findings of fact and rationale dated September 7, 2010, the judge found that the husband had applied an appropriate combined (Federal and State) tax rate for 2008 of 40.3 percent and that “[ajfter calculation of his State and Federal tax liability, [the hjusband complied with said order by paying $61,000.”
The second complaint for contempt. In January, 2010, the
Discussion. “[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.” Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990) (Larson), citing Nickerson v. Dowd, 342 Mass. 462, 464 (1961). We conclude that the court’s October 20, 2008, temporary order requiring payment of “one-third” of the husband’s year-end distribution “after taxes” was a “clear and unequivocal command” of the sort required to support a complaint for contempt. It provided the husband with “adequate notice of the required . . . activity.” Lynch v. Police Commr. of Boston, 51 Mass. App. Ct. 772, 776 (2001).
When a term is not defined by case law, statute, or agreement, we look to its ordinary usage. Sisson v. Lhowe, 460 Mass. 705, 709 (2011). “After tax” is commonly understood to be the sum remaining after taxes have been calculated. It refers to an amount net of tax obligations.
The judgment that the husband was in contempt with respect
The wife asserts that the judgment should be upheld, albeit on a different basis. She asserts that evidence in the record demonstrates that the husband overstated his tax rate, and did so in both years covered by the temporary order.
Notably absent from the findings is any reference to “clear and convincing evidence of disobedience” by the husband of the terms of the temporary order. Birchall, petitioner, 454 Mass. 837, 839 (2009).
With respect to 2008, the husband first mistakenly overpaid, not underpaid, the wife. See note 3, supra. And, as stated, for that year the judge found that the “[hjusband’s combined liability for [Fjederal and [Sjtate taxes is 40.3 [percent].” Accordingly, to the extent the temporary order was interpreted by
Second, it is undisputed that the husband used the same tax rate and the identical method to calculate the wife’s share of his year-end distributions in 2009 as in 2008. It is of course possible that the husband’s tax rate was reduced by deductions, carried-forward losses, or some other mechanism that applied only in 2009, notwithstanding his almost identical level of annual earned compensation. There is however no finding to that effect, and no evidence in the record to support such a finding. Instead, the judge pointed to estimated quarterly tax payments paid during the year, and concluded that these should be employed to deem the entire year-end distribution “after taxes,” hence subject to a zero percent rate. As stated above, this was error. See note 5, supra.
The wife’s assertion that the husband misstated his rate in both years is unavailing here, as the dismissal of her first complaint for contempt and the finding that 40.3 percent was the correct rate in 2008 remains a ruling in the case. Absent a valid finding that distinguishes the two years, we conclude that this record fails to establish clear disobedience in 2009.
We recognize that our cases do not require a clear showing of actual intent to disobey a court order to support a judgment of civil contempt. See O’Connell v. Greenwood, 59 Mass. App. Ct. 147, 150-151 & n.3 (2003) (recognizing that the question of the degree of intent that must be shown to support a judgment of civil contempt is unsettled). See also United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 36-39 (1972) (declining to address cases treating wilful disobedience as an essential element of a civil contempt claim against an individual).
Judgment of contempt dated January 17, 2012, reversed.
The record suggests that the 2008 compensation level was generally typical of the surrounding years.
The record indicates that the husband also receives “incentive draws,” which may be paid at any time and are not guaranteed. These incentive draws are not at issue on appeal.
After application of the 40.3 percent rate to the gross amount paid in the 2008 year-end distribution, $245,023, one-third of the resulting net, “after tax” amount of $146,278.74 was actually $49,000. The overpayment of $12,000 was acknowledged by the judge and credited against the husband’s use of
The wife’s counsel appropriately asserted this definition at oral argument.
The judgment states: “[The husband] pays quarterly taxes which anticipates [sz'c] his year-end distribution, so the [c]curt finds that [the husband’s] calculation of [the wife’s] share is wrong.”
In this context we note that the judgment of contempt is not definitive, and makes alternative findings: “From the evidence at the contempt hearing, it appears to this [c]curt that the [husband] has either twice deducted taxes from his year end distribution, or calculated the wrong tax rate.”
On appeal, the wife points to the husband’s 2008 Federal tax return, and a 2009 financial statement included in the record appendix, to argue that the husband overstated his combined Federal and State rate to the wife’s detriment. We do not agree that an inference can be drawn with respect to 2009, as the financial statement merely sets forth “withholding/estimated payments” rather than the actual tax liability.
The term “disobedience” can include, but does not depend upon, a concept of wilfulness. See Merriam-Webster’s Collegiate Dictionary 360 (11th ed. 2005) (“refusal or neglect to obey”). See also Webster’s Third New International Dictionary 652 (1993) (“refusal to obey or negligence in obeying a command: violation or disregard of a rule or prohibition”).