Feinstein v. Feinstein
| Decision Date | 02 May 2019 |
| Docket Number | No. 18-P-274,18-P-274 |
| Citation | 123 N.E.3d 781,95 Mass.App.Ct. 230 |
| Parties | Susan Godfried FEINSTEIN v. Steven FEINSTEIN. |
| Court | Appeals Court of Massachusetts |
Elaine M. Epstein, Boston (Richard M. Novitch, Framingham, also present) for the mother.
Kelly N. Griffin (Donald G. Tye, Boston, also present) for the father.
Present: Agnes, Sacks, & Ditkoff, JJ.
The father, Steven Feinstein, filed a complaint for contempt against the mother, Susan Godfried Feinstein, alleging that she violated merged provisions of their separation agreement. A Probate and Family Court judge found the mother not guilty of contempt but substantially reduced the father's obligation to pay for the older child's college education. On the mother's appeal, we conclude that the judge has the authority to modify a judgment based on the merged provisions of a separation agreement upon a finding of a noncontumacious violation of an agreement term merged into the divorce judgment, but that such modification must be based on a finding of a material change in circumstances. As the record does not reflect such a finding, and the record does not reveal an obvious material change in circumstances, we vacate the judgment in part and remand for further consideration. Further concluding that the mother's motion for a new trial or to alter or amend the judgment under Mass. R. Dom. Rel. P. 59 was timely, we vacate the denial of that motion.
1. Background. In December 2011, the parties separated after fourteen years of marriage. In December 2014, they signed a comprehensive separation agreement (agreement) to settle their financial affairs and to govern the raising of their two sons. Pertinent here, they agreed to "confer with each other in an effort to reach mutual agreement concerning major life decisions not part of the children's daily routine which affect their well-being, including without limitation ... religious upbringing[ ] [and] educational choices and alternatives." They ascribe to the Jewish faith, and the agreement contains a schedule of which parent would have the younger child for which Jewish holidays.
The agreement provides that the older child and the father shall remain in counselling with a named psychologist. Parenting issues regarding the older child are to be addressed by the psychologist in the first instance. The parties agreed to submit any "non-financial disputes regarding the[ ] children, limited to disputes regarding each child's education, physical and psychological health ..., religious education, after school and extra-curricular activities, and/or welfare and/or changes to the Parent Schedule" to a parenting coordinator (in this case, a licensed social worker) prior to submitting them to the court.
Regarding college, the parties agreed that The cost of college is to be paid initially by college educational accounts held by the father. Expenses not covered by those accounts or scholarships are to be paid fifty-five percent by the father, and forty-five percent by the mother. The expenses contemplated by the agreement include "tuition, room and board while residing away from both parties during college or post-secondary educational program, registration, books, activity and other fees, books, and other expenses customarily appearing on the billing statements from any educational institution, ... computer and reasonable transportation to and from school."
On December 22, 2014, a Probate and Family Court judge approved the agreement and issued a judgment of divorce nisi. Although numerous provisions of the agreement survive as an independent contract, the provisions described supra merged with the judgment and did not survive as an independent contract.
The father quickly became concerned that the children were not actively practicing Judaism. In or about July 2015, the father brought his concerns about the younger child's religious upbringing to the parenting coordinator, who apparently stated that the father could arrange for religious education himself during his parenting time. When the younger child proved resistant, the father did not pursue the matter.
The older child's senior year in high school began in September 2016. The representations of counsel, credited by the judge, reflect that the mother believed that the older child was discussing his college application process with the father during the sessions with the psychologist. The father asserts that the psychologist "did not want to get involved in any of this process."1
The father is a professor at a private university in Massachusetts, and it appears that his children would be entitled to attend his university tuition-free. In December 2016, the older child sent an e-mail to his father, copying his mother, that he would not be applying to the father's university because he had a strong interest in computer science, and that university did not have a strong computer science program. He also stated that he did not want to attend the university at which his father taught and, in any event, wanted a college with warmer weather. The child reported in the e-mail that he had told his father the schools to which he was applying and had shared his "SAT scores, [his] video and other important information." This e-mail was presented to the judge. The record reflects no contemporaneous objection by the father to the child's decision not to apply to the father's university or to a college in Massachusetts.
On April 24, 2017, seven days before the date the father believed that the college decision had to be made, the father first expressed concerns about the college selection process to the mother, in the form of a letter from father's counsel to mother's counsel requesting numerous documents, including a list of colleges to which the older child had been admitted. As the child had been admitted to one college, the University of Arizona, the mother committed the child to the University of Arizona without consulting the father. The father learned of the commitment in May 2017 from a high school guidance counsellor.
In August 2017, the father filed a complaint for contempt, alleging that the mother violated provisions of the agreement, which were merged into the divorce judgment, by unilaterally committing the older child to the University of Arizona and by "[d]iscouraging the children from practicing the Jewish faith."2 The mother's answer requested attorney's fees for opposing the complaint for contempt. The mother also filed her own complaint for contempt based on the father's failure to pay his share of the older child's college expenses.3
The judge did not hold an evidentiary hearing but instead reviewed the pleadings and heard the representations of counsel. The judge found that the agreement did not require that the children be raised in the Jewish faith. The judge further found that the judgment required that the older child's college decision be made jointly, but the judge found no willful violation by the mother in light of the complexity of the communication issues. Accordingly, the judge found the wife not guilty of contempt. The judge found that "nonetheless there is an impact on Father's financial obligations under the agreement by [the mother's] unilateral action" and thus required the father to pay only fifty-five percent "of the cost of tuition [and] room and board he would have been responsible for if child had attended U. Mass." She made the mother responsible for the balance. She also denied attorney's fees to both parties.
The judgment was docketed November 8, 2017, a Wednesday. On November 20, 2017, a Monday, the mother served a motion for a new trial or to alter or amend the judgment under Mass. R. Dom. Rel. P. 59. The judge denied this motion as untimely. This appeal followed.
2. Modification of payment of postsecondary education expenses. "To prove civil contempt a plaintiff must show two elements: there must be (1) clear disobedience of (2) a clear and unequivocal command." Smith v. Smith, 93 Mass. App. Ct. 361, 363, 100 N.E.3d 781 (2018). These elements must "be supported by clear and convincing evidence." Rosen v. Rosen, 90 Mass. App. Ct. 677, 691, 63 N.E.3d 394 (2016), quoting Birchall, petitioner, 454 Mass. 837, 853, 913 N.E.2d 799 (2009). Upon finding a contempt, a judge has "broad equitable powers to fashion appropriate remedies." Cabot v. Cabot, 55 Mass. App. Ct. 756, 768, 774 N.E.2d 1113 (2002).
"A Probate Court has power to modify a support order in the context of either a complaint for contempt or a complaint for modification." Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312, 457 N.E.2d 1133 (1983). A modification on a complaint for contempt may occur even in the absence of a contempt finding. See Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233, 234-235, 387 N.E.2d 156 (1979). Accord Smith, 93 Mass. App. Ct. at 364-365, 100 N.E.3d 781 ().4
In the case of an order of child support governed by the Child Support Guidelines, "orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines promulgated by the chief justice of the trial court or if there is a need to provide for the health care coverage of the child." G. L. c. 208, § 28. See Child Support Guidelines § III.A (2017); Morales v. Morales, 464 Mass. 507, 511-512, 984 N.E.2d 748 (2013) ; Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 526 n.1, 60 N.E.3d 1180 (2016).
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