Cooper v. Keto

• Decision Date: 26 June 2013
• Docket Number: No. 12–P–770.,12–P–770.
• Citation: Cooper v. Keto, 83 Mass.App.Ct. 798, 990 N.E.2d 76 (Mass. App. 2013)
• Parties: Lisette COOPER v. Eric KETO.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 798

990 N.E.2d 76

Lisette COOPER

v.Eric KETO.

No. 12–P–770.

Appeals Court of Massachusetts, Middlesex.

Argued April 2, 2013.

Decided June 26, 2013.

Theresa K. Capobianco, Natick, for the defendant.

John Foskett, Boston, for the plaintiff.

Present: KANTROWITZ, BROWN, & KAFKER, JJ.

KAFKER, J.

The central issue in this case is the correct interpretation of the college expenses provision of a marital separation agreement (agreement) incorporated into a California divorce judgment.We must also resolve choice of law issues, as the California divorce judgment was registered in Massachusetts pursuant to G.L. c. 209D, § 6–601.The defendant, Eric Keto(father), contends that he is not obligated to pay his share of the college expenses because they were not “agreed upon” as provided in the judgment.The plaintiff, Lisette Cooper(mother), contends that the father was properly held in contempt because the father was well aware of the child's college plans, and the father's current wife, a teacher at the child's college preparatory school (prep school), assisted in the child's college application process by writing a letter of recommendation in support of his successful early decision application.We conclude that the father is contractually bound by California law to pay his share of the college expenses, as his silence throughout the college application and admission process signifies his acceptance or acquiescence in these circumstances.However, the judgment was nonetheless not sufficiently clear and unequivocal to hold him in contempt under Massachusetts law.

Background.1.The marital separation agreement.After a two-day evidentiary hearing, a judge of the Probate and Family Court found that the mother and the father were divorced in California pursuant to a judgment of divorce dated September 6, 1995.The parties had one child, a son born in 1990.The judgment incorporated an agreement that included a section entitled “college expenses,” which provides:

“At such time as [the child] becomes a full time student at a post-secondary institution, making normal progress towards an undergraduate degree, his educational expenses shall first be paid from funds, held in [the child's] name and/or for his benefit and intended to cover such expenses.If these funds are insufficient to pay such expenses, each party shall pay one-half of all agreed-upon educational expenses not otherwise covered.Expenses to be shared, subject to such agreement, shall include tuition, fees, room, board, books, necessary equipment, medical insurance, uncovered medical and dental expenses, transportation to and from school, other transportation, clothing and living allowance.”

Another section of the agreement provides:

“The parties have previously established a Uniform Transfer to Minor's [ sic] account for the benefit of [the child's] post-secondary education, unless the parties otherwise agree.At the present time the account is ... held in the name of [the mother] as custodian.The parties agree that [the mother] shall continue to act as custodian and shall provide [the father] with quarterly reports to said account or any successor account.Said reports shall be provided to [the father] within 30 days of receipt of same by [the mother].”

The agreement further provides that it is to “be governed by and construed in accordance with the laws of the state of California.”

2.Postdivorce findings and proceedings.In 1996, the mother and father each moved to Massachusetts, where they both obtained employment.From the date of the divorce until October, 2002, the mother and father shared physical custody of the child, but starting in October, 2002, he resided primarily with the mother.The mother has never sought or received child support from the father.The child has always attended private schools, with the father at one point objecting to the mother's attempt to have the child attend public school in Weston.Beginning in the seventh grade, the child attended an exclusive private prep school.

At prep school, the child took five years of Chinese language courses taught by the father's current wife (the child's stepmother).The child spent his junior year abroad in China, which the father knew about and supported.During the child's senior year, he participated in an independent study course taught by the stepmother.As previously noted, the stepmother wrote a letter of recommendation on the child's behalf for his early decision application to Bard College (Bard), where he was accepted for admission.¹The father claimed the marital disqualification when asked whether he spoke with his current wife about the child's decision to attend Bard.

The father admitted to attending some parent-teacher meetings at the prep school, receiving report cards and other notices from the school, and attending the child's graduation in the spring of 2008.The prep school has a “strict college application process” that students must follow.The judge found that the father“admitted that no one prevented him from participating in [the child's] college application process.”The father also never objected to the child's decision to apply to, accept, or attend Bard.Indeed, at trial he testified that he had no objection to Bard.The father did state that he felt that the mother and the child were not interested in his opinion about the child's college application process, and he therefore did not meet with the child's prep school college counsellor.²The father, the judge further found, never suggested that the child apply to a public college.The father holds an undergraduate degree from Princeton University ³ and a graduate degree from Harvard University.

3.The UTMA account.Pursuant to the terms of the agreement, the mother exercised control of the Uniform Transfers to Minors Act (UTMA) account.The balance in the account at the time of divorce was between $20,000 and $50,000.The mother requested that duplicate statements relating to the UTMA account be sent to the father, at least when the account was managed by Merrill Lynch.In 2002, she moved the account to Charles Schwab, and thereafter to Fidelity Investments.The value of the account grew to $74,400 as of May, 2008.In June, 2008, she withdrew funds from the UTMA account to pay the deposit for the child to attend Bard.By July, 2009, the account was fully expended.The father never asked the mother for copies of the UTMA account statements prior to July, 2009.

4.Request for reimbursement of college expenses.On July 23, 2009, the mother mailed the father a letter seeking reimbursementfor one-half of the $4,816.10 educational expenses that she had incurred on the child's behalf after exhausting the UTMA account.The father did not respond to the request.In October, 2009, the mother's counsel followed up on the request by sending the father another letter.On October 30, 2009, the father's counsel sent the mother's counsel a letter requesting documentation to prove that the child was attending college and making normal progress, and demanding an accounting of how the money in the UTMA account had been spent.The letter did not object to or otherwise mention the child's choice of Bard.On January 22, 2010, the mother's counsel sent the father's counsel a letter enclosing account statements and documentation for the payments made by the mother to Bard.The father's counsel followed up with a request for the child's college transcript, which was provided.As demonstrated by the transcript, the child was a double major in East Asian studies and photography and maintained a 3.5 grade-point average.He also worked part-time in a restaurant and as a tutor to defray expenses.

5.Litigation.On October 22, 2010, the mother registered the California judgment of divorce in the Commonwealth pursuant to G.L. c. 209D, § 6–602.She also filed a complaint for contempt.The father's answer and counterclaim, filed on November 10, 2010, states that the parties had not agreed on educational expenses because the mother had never consulted with the father about what college the child would attend.A two-day evidentiary hearing ensued.The Probate and Family Court judge found the father in contempt, concluding that he had violated a clear and unequivocal order and that he had the ability to pay.Both parties reported assets valued at over $5 million with “substantial liquid assets.”The judge ordered the father to pay one-half of the total of $182,412.57 paid by the mother on the child's behalf, which included Bard tuition, room and board, and fees of $104,212; rent payments of $23,050; ⁴ transportation and other living expenses of $31,648.32 ($21,448.32 in American Express charges plus $10,200 in cash allowances); health and dental insurance premiums of $21,736.58; and uninsured medical and dental expenses of $1,765.67.The judge also ordered the father to pay the mother $90,263.25 in attorney's fees.

Discussion.1.Choice of law.The choice of law provision in the agreement states that the agreement is governed by and to be construed in accordance with California law.Furthermore, the enforcement of the judgment in this context is governed by the Uniform Interstate Family Support Act (UIFSA), enacted in Massachusetts as G.L. c. 209D.⁵The relevant section of the UIFSA provides: “The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.”G.L. c. 209D, § 6–604( a ), inserted by St. 1995, c. 5, § 87.The issuing State in this context is California.SeeG.L. c. 209D, § 1–101(9).Thus it is clear, and there is no argument to the contrary, that we apply California law when interpreting the substantive provisions of the agreement incorporated into the divorce judgment.The substance of the agreement determines the “extent, amount, and duration” of the father's obligations under the...