Piwowarczyk v. Piwowarczyk

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18-P-716 Appeals Court
STANISLAW W. PIWOWARCZYK vs. EWA B. PIWOWARCZYK.
No. 18-P-716.
Worcester. April 3, 2019. - August 16, 2019.
Present: Milkey, Neyman, & Englander, JJ.
Divorce and Separation, Separation agreement, Judgment. Probate
Court, Divorce. Contract, Construction of contract.
Practice, Civil, Contempt.
Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on May 5, 2016.
A complaint for contempt, filed on November 6, 2017, was
heard by Geoffrey R. German, J.
Luke Rosseel for the wife.
Katarzyna J. Wennerberg for the husband.
ENGLANDER, J. In this contempt proceeding with respect to
a divorce judgment, the former wife (wife) was ordered to pay
for the former husband's (husband) health insurance even though
she had left her job in Massachusetts, moved to Florida, and no
longer had health insurance of her own. The operative clause of
the parties' separation agreement (agreement), which was
2
incorporated into the divorce judgment, provided that the wife
would maintain her "[c]urrently existing health insurance or
equivalent thereof" for the benefit of the husband "for so long
as he remains eligible under the plan at no additional cost to
the [w]ife." Because we conclude that the judge erred in
construing this clause, we reverse.
Background. We recite those facts from the record that are
not disputed.1 The husband and wife were married for twenty-five
years, and divorced in 2016. On December 14, 2016, a judge of
the Probate and Family Court issued a judgment of divorce
incorporating the parties' agreement.2 Relevant here is the
clause in Addendum B of the agreement, which addressed the
wife's obligation to maintain health insurance for the husband,
postdivorce (health insurance clause):
"1. Currently existing health insurance or equivalent
thereof shall be maintained by the [w]ife for the benefit
of the [h]usband for as long as he remains eligible under
the plan at no additional cost to the [w]ife. If there is
an additional cost to provide health insurance for the
[h]usband the [h]usband shall pay said additional amount to
the [w]ife each and every month on the first day of each
month or forfeit said insurance coverage."
Prior to the divorce, the wife had worked at a local
savings bank for many years, and had maintained health insurance
1 There was no evidentiary hearing, and there are no
separate findings of fact.
2 The agreement survived the divorce judgment.
3
for herself and the husband through the bank's plan. The
husband worked in construction and apparently did not have
access to a health plan through his employer. In October of
2017, after the divorce was final, the wife left her employment
and moved to Florida, to be closer to her two adult sons. The
wife's health insurance was accordingly cancelled, leaving both
the wife and the husband without health insurance. Although the
wife secured temporary employment in Florida she did not have
access to health insurance through her employer. At the time of
these proceedings, the wife did not have health insurance.
The husband filed a complaint for contempt in November of
2017. After two days of nonevidentiary hearings, the judge
issued a judgment finding the wife in contempt,3 and a further
judgment ordering her to pay $369 per month toward the husband's
health insurance. The thrust of the judge's reasoning, evident
from the transcript and the contempt judgment, is that the wife
violated the health insurance clause by "voluntarily leaving her
employment" and thus causing the husband to become ineligible
for coverage under her plan. The wife appeals.4
3 The judgment was captioned "Judgment on Complaint for
Criminal Contempt." The complaint was one for civil contempt;
we assume that the judgment caption was a scrivener's error.
4 The judge subsequently stayed his order pending appeal, on
the condition that the wife pay the monthly amount into escrow.
4
Discussion. To find the wife in contempt, the judge was
required to find "clear and convincing evidence of disobedience
of a clear and unequivocal command." Birchall, petitioner, 454
Mass. 837, 853 (2009). The contempt issue accordingly turns, in
the first instance, on the meaning of the health insurance
clause. Neither party argued that the health insurance clause
was ambiguous, and the issue of the construction of the health
insurance clause was treated as a pure question of law for the
judge. See Colorio v. Marx, 72 Mass. App. Ct. 382, 388 (2008).
No evidence was offered as to the intent of the health insurance
clause, or as to the negotiation of the agreement.
Clauses such at the one at issue, which require a divorced
spouse to maintain health insurance for his or her former
spouse, are common in separation agreements and divorce
judgments. See, e.g., George v. George, 476 Mass. 65, 66
(2016); Barry v. Barry, 409 Mass. 727, 729-730 (1991). The
language of these clauses may differ, and hence the construction
may vary from clause to clause. Relying here upon the language
of the health insurance clause as a whole, its import is to make
the wife responsible for the husband's health insurance only if
the wife has health insurance under a plan that can also be used
to cover the husband -- and even in those circumstances, the
husband must cover any costs in excess of what it would cost the
wife to cover herself. See Balles v. Babcock Power Inc., 476
5
Mass. 565, 571 (2017) (in construing contract court looks first
to contract's plain language, construed as whole).
The critical language is that the wife shall "maintain"
health insurance for the husband, "for as long as he remains
eligible under the plan." "The plan" refers to the wife's
"[c]urrently existing health insurance or equivalent thereof."
Accordingly, the wife's obligation is conditional; it arises
only if the husband is "eligible under the plan." As we read
the health insurance clause, the wife is not obligated to
maintain health insurance for the husband if she is not working,
or has no access to health insurance through her employment.
This is because if the wife has no access to health insurance
there is no "plan," and the husband therefore cannot be
"eligible under the plan."
The alternative construction -- apparently adopted by the
judge -- would read the health insurance clause as requiring the
wife to "maintain," indefinitely, her "[c]urrently existing
health insurance or equivalent thereof." We do not so read it.
If the health insurance clause were construed to require the
wife to arrange her employment so as to maintain health
insurance that could also cover the husband, that would mean
that the wife was restricted in her ability to change jobs (or
as here, to relocate), because she would then need to find a job
6
with health insurance available for the husband.5 Reading such
an obligation into the health insurance clause would impose a
significant burden and limitation on the wife's personal
freedoms; we are unwilling to so read the health insurance
clause where the plain language lends itself to a more
reasonable and less intrusive obligation -- which is, that the
wife must offer health insurance to the husband when it is
otherwise available under her plan. See Tremouliaris v. Pina,
23 Mass. App. Ct. 722, 725-726 (1987), quoting Clark v. State
Street Trust Co., 270 Mass. 140, 153 (1930) ("courts always
avoid, if possible, any construction of a contract that is
unreasonable or inequitable"). Moreover, our construction is
more consistent with the remainder of the health insurance
clause, which expresses the clear intent that the obligations
thereunder not give rise to "additional cost to the [w]ife."
Reading the health insurance clause to restrict the wife's job
selection -- or alternatively, to force her to incur the costs
of the husband's insurance -- would impose precisely the
additional costs the health insurance clause writes out.
Accordingly, the judge erred in finding the wife in
contempt. There was no "clear and unequivocal command,"
5 Indeed, such a construction would apparently leave the
wife responsible for the husband's health insurance, even if she
retired.
7
Birchall, petitioner, 454 Mass. at 853, that the wife maintain
health insurance for the husband even where she has no access to
health insurance through her employment.6 Furthermore, the order
requiring the wife to pay for the husband's additional health
insurance costs was plainly beyond what is required by the
language of the health insurance clause.
Finally, while it is a relatively straightforward matter to
rule that the wife was not in contempt -- because the health
insurance clause did not provide a "clear . . . command" under
the circumstances -- such a ruling does not necessarily answer
the question of what the health insurance clause actually
requires. Put another way, if the judge had found that the
health insurance clause was not "clear," but that nevertheless
the better reading of the health insurance clause was that it
required the wife to maintain the husband's health insurance
under the circumstances, the judge could have ordered the
insurance maintained even though he found no contempt. See
Smith v. Smith, 93 Mass. App. Ct. 361, 364-365 (2018). As
discussed above, however, here the correct reading of the health
insurance clause is that it does not require the wife to
6 In the event that the wife obtains insurance through
future employment where the husband is "eligible under the
plan," then such should be offered to the husband, provided he
covers the additional cost.
8
maintain health insurance for the husband where she has left her
job, even though she did so voluntarily.7
Judgment and further judgment
on complaint for contempt
reversed.
7 The husband does not appear to seriously dispute the
wife's motivation in moving, which she stated was to live closer
to her two sons. There is no allegation that the wife left her
position with malicious intent to cause the husband to lose his
insurance.