Bisienere v. Buccino

• Decision Date: 26 September 1994
• Docket Number: No. 93-P-406,93-P-406
• Citation: 36 Mass.App.Ct. 749,635 N.E.2d 265
• Parties: Nancy L. BISIENERE v. Michael A. BUCCINO.
• Court: Appeals Court of Massachusetts

Page 265

635 N.E.2d 265

36 Mass.App.Ct. 749

Nancy L. BISIENERE v. Michael A. BUCCINO.

No. 93-P-406.

Appeals Court of Massachusetts Barnstable.

Argued April 4, 1994.

Decided July 5, 1994.

Further Appellate Review Denied Sept. 26, 1994.

Richard D. Packenham, Boston, for defendant.

David E. Cherny, Boston, Cynthia M. Bourget, Falmouth, with him, for plaintiff.

Before FINE, GILLERMAN and GREENBERG, JJ.

GILLERMAN, Justice.

The defendant appeals from a judgment regarding the enforcement of a Pennsylvania divorce decree ¹ and a subsequent judgment finding him in civil contempt. The actions have been consolidated on appeal.

On July 3, 1991, the Barnstable Probate and Family Court (the trial court) entered two judgments from which the defendant filed timely notices of appeal. The first, a judgment of contempt entered on July 3, 1991, ordered the defendant to pay the plaintiff (1) $14,408.73 for child support arrearage and (2) $35,000 for attorney's fees and costs. The second, enforcement of a foreign decree, ordered payment of (1) $31,014.28 for periodic spousal support arrearage; (2) $8,140 for child support arrearage; and (3) $17,950 for miscellaneous payments. On January 28, 1992, the court found the defendant in contempt for failure to pay any portion of the total of $106,513.01.

The defendant has waived his appeals except as to the following: (1) that portion of the alimony arrearages that accrued after the plaintiff's remarriage in the amount of $24,400; (2) the award of $35,000 in counsel fees; and (3) the January 28, 1992, contempt judgment, but only insofar as it applies to the failure to pay these two sums, a total of $59,400. We conclude that there is no merit to the appeals of the defendant.

1. Background. We rely on the findings of the trial judge in sketching the events leading to this appeal. ² The parties were married in Massachusetts in 1979 and divorced in November, 1986, in Pennsylvania by decree of the Susquehanna County Court of Common Pleas (the Pennsylvania trial court). The plaintiff and her child moved to this Commonwealth in March, 1986. At the time of the entry of the Pennsylvania judgment, the appellant had left his employ as a dentist and entered a two-year pediatric dentistry program in Indiana; he later moved to Massachusetts upon completion of his graduate studies in July, 1988. Both parties have continued to reside in Massachusetts, and as it appears from this record, they are domiciled here. There is no contention to the contrary.

The 1986 divorce decree, so far as material, granted physical custody of the couple's only child to the plaintiff, and provided that the defendant was to pay weekly child support of $100 beginning immediately and, upon completion of his graduate studies, weekly alimony of $200 for a period of five years.

2. Effect of remarriage on alimony. The plaintiff remarried on February 25, 1989. Under Pennsylvania law, remarriage automatically excuses an obligor from paying further alimony. ³ Relying on this provision, and citing Homewood v. Homewood, 11 Mass.App.Ct. 864, 420 N.E.2d 915 (1981), the defendant argues that the judge in this case, as matter of law, should have modified the Pennsylvania decree by relieving the defendant of his obligation to pay the post-remarriage portion of alimony arrears beginning March 3, 1989, and ending June 29, 1991, a sum of $24,400. We disagree.

Homewood arose under G.L. c. 208, § 35 (a Probate Court may enforce a foreign judgment for alimony), and we looked to the law of the foreign jurisdiction in deciding the extent to which we would enforce the foreign judgment. That case, however, was decided before the 1982 amendment to G.L. c. 208, § 37, see St.1982, c. 642, § 2, which provides in part, "that if both parties are domiciliaries of the commonwealth, then the court may modify and alter the foreign judgment [regarding alimony or support for children] in the same manner as it could have had the judgment, order, or decree been issued by the court...." The effect of the 1982 amendment, so far as here material, was to grant to the Probate Court, in cases involving Massachusetts domiciliaries, authority to look to Massachusetts law in deciding whether to accept, reject or otherwise modify so much of any foreign judgment as the court, in its discretion, deems appropriate. ⁴ , ⁵ Thus, Homewood was superseded by legislative enactment. ⁶

Here the judge concluded that the "allegation that remarriage of a party terminates alimony in Pennsylvania does not apply in this case." That ruling is, in substance, a decision by the judge, acting well within her discretion, that the circumstances of the parties do not call for the modification of the Pennsylvania judgment solely because the plaintiff has remarried. This is consistent with Massachusetts law. See Ziegler v. McKinlay, 318 Mass. 765, 767, 64 N.E.2d 15 (1945) (remarriage does not require a finding that the wife is receiving support adequate to her needs). There is no basis for concluding that the judge's decision was arbitrary or capricious, and the Pennsylvania decree may be enforced under G.L. c. 208, § 35, in accordance with its terms and without regard to the Pennsylvania statute which, in this case, would limit the period of alimony.

3. Attorney's fees. The defendant attacks the trial judge's award of $35,000 for attorney's fees and costs incurred by the wife in the proceedings below. In determining the necessity and the amount of an award of attorney's fees pursuant to G.L. c. 208, § 38, the trial judge enjoys a considerable degree of discretion. See, e.g., Brash v. Brash, 407 Mass. 101, 106, 551 N.E.2d 523 (1990). Moreover, G.L. c. 215, § 34A, creates a presumption in favor of an award of reasonable fees and costs for a successful party in a contempt action. See, e.g., Kennedy v. Kennedy, 23 Mass.App.Ct. 176, 181, 499 N.E.2d 1224 (1986), S.C., 400 Mass. 272, 508 N.E.2d 856 (1987).

There was no abuse of discretion. The judge held an evidentiary hearing on the matter and grounded her findings of fact on affidavits, written submissions from counsel, and contemporaneous time and billing records. In addition to considering the factors deemed relevant in a determination of fees under § 38, see, e.g., Cummings v. National Shawmut Bank, 284 Mass. 563, 569, 188 N.E. 489 (1933); Zildjian v. Zildjian, 8 Mass.App.Ct. 1, 17, 391 N.E.2d 697 (1979), the judge's detailed findings were replete with references regarding the defendant's unrelenting attempts to avoid payment of support, and amply support the award. ⁷ "A defaulting spouse should know that noncompliance can be costly." Kennedy v. Kennedy, 23 Mass.App.Ct. at 181, 499 N.E.2d 1224.

4. Contempt. The defendant's final claim is that the judge erred in entering the January 28, 1992, judgment holding him in contempt for nonpayment of the post-remarriage alimony, totalling $24,400 (itself a contempt order) and $35,000 in counsel fees. ⁸ "In the usual case, in order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience.... In addition, the defendant must be found to have the ability to pay at the time the contempt judgment enters." Larson v. Larson, 28 Mass.App.Ct. 338, 340, 551 N.E.2d 43 1990), S.C., 30 Mass.App.Ct. 418, 569 N.E.2d 406 (1991). The defendant has narrowed the inquiry to whether the judge erred in concluding that he had the ability to pay. ⁹

The defendant argues that his 1991 financial statement belies the court's determination of his ability to satisfy...