Stabile v. Stabile

• Decision Date: 06 September 2002
• Docket Number: No. 99-P-1360.,99-P-1360.
• Citation: Stabile v. Stabile, 774 N.E.2d 673, 55 Mass. App. Ct. 724 (Mass. App. 2002)
• Parties: Kathie A. STABILE v. Gerald A. STABILE, Jr.
• Court: Appeals Court of Massachusetts

774 N.E.2d 673

55 Mass. App. Ct. 724

Kathie A. STABILE v. Gerald A. STABILE, Jr.

No. 99-P-1360.

Appeals Court of Massachusetts, Essex.

Argued December 14, 2001.

Decided September 6, 2002.

Kathie A. Stabile, pro se.

Martin F. Kane, II, Cambridge, for Gerald A. Stabile, Jr.

Present: RAPOZA, KAPLAN, & BERRY, JJ.

RAPOZA, J.

We are asked to interpret a portion of the parties' modified divorce decree, which provides that the former husband maintain a college fund for each of the minor children. We vacate the judgment below that the husband was not in contempt of the modified decree and remand to the trial court for further action consistent with this opinion.

Background. The parties, Kathie Stabile and Gerald Stabile, Jr., were divorced on December 10, 1993. At a later point, they agreed to a modification of the divorce decree by the addition of terms contained in a stipulation signed by them and their attorneys. On December 18, 1996, the Probate and Family Court entered a modified judgment of divorce that incorporated by reference the signed stipulation, which read, in pertinent part, as follows:

"Beginning in 1997, the Defendant [Gerald] will use his best efforts to[¹] maintain a college and/or trust fund for each of the parties' minor children, and shall contribute $10,000.00 annually to each fund by December 31st of that year" (emphasis added).

On July 27, 1998, Kathie filed a contempt complaint alleging, among other things, that Gerald had failed to maintain a fund for the future education of either minor child as called for by this provision. At the contempt hearing,² Kathie asserted that Gerald's income had more than doubled since the modified order entered, but that he had nonetheless failed to set up any type of fund for their children's higher education. Gerald responded that he had hoped to exercise certain stock options, which ultimately failed to materialize, to establish those funds. He acknowledged that he had not yet established a college fund for either child.

The judge concluded that Gerald was not in contempt, stating that the terms of the stipulation relating to the maintenance of college funds were not "clear and unequivocal as to the duties and obligations of the defendant." Consequently, Kathie "did not meet her burden of proving a clear and undoubted violation of a clear and unequivocal order or the court. The court subsequently denied Kathie's motion for reconsideration and clarification, in which she asked the court to specify how the contested provision was not "clear and unequivocal." This appeal followed.

Discussion. Kathie asserts on appeal that the provision requiring Gerald to maintain college funds for each of their minor children was neither unclear nor equivocal. Moreover, she contends that Gerald made no effort whatsoever to comply with its terms despite his obligation to do so. Gerald, on the other hand, claims that his obligations are unclear, and the order ambiguous, due to the substitution of the phrase "will use his best efforts to" for the word "shall" with respect to the maintenance of college funds. Specifically, he claims that an inconsistency exists between the requirement that he shall pay $10,000 annually into each fund and the provision that he use his "best efforts" to maintain the funds.

We discern no ambiguity or inconsistency here. Looking no further than the express language of the parties' stipulation adopted by the court, we conclude that the command of the modified divorce decree was sufficiently clear and unequivocal to support a claim for contempt against Gerald. The modified order requires Gerald not only to use his best efforts to maintain college funds for each of the parties' minor children, but also to contribute $10,000 annually to each child's fund. In order to discharge those responsibilities, he is necessarily under an obligation first to establish college funds for each child.

For civil contempt to be found, "there must be a clear and undoubted disobedience of a clear and unequivocal command." Sax v. Sax, 53 Mass.App.Ct. 765, 771, 762 N.E.2d 888 (2002), quoting from United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36, 278 N.E.2d 716 (1972). The command must be clear and unequivocal to the extent that it can be understood by the person subject to it "without resort to the evidence at trial." Inspector of Bldgs. of Provincetown v. Eder, 11 Mass.App.Ct. 1011, 1011, 419 N.E.2d 1045 (1981). An ambiguity does not arise merely because an order, otherwise clear, may require "some legal interpretation." Sax v. Sax, supra at 772, 762 N.E.2d 888, quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567, 677 N.E.2d 159 (1997).

Indefinite and uncertain language cannot support a complaint for contempt because of a lack of fair notice to the person subject to the order, and because "ambiguity carries with it the potential for becoming `an instrument of [judicial] severity.'" Sax v. Sax, supra, quoting from Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 89, 371 N.E.2d 761 (1977). Consequently, we ordinarily resolve ambiguities in divorce decrees in favor of the person charged with contempt. Sax v. Sax, supra, citing Cohen v. Murphy, 368 Mass. 144, 147, 330 N.E.2d 473 (1975), and Inspector of Bldgs. of Provincetown v. Eder, supra.

While vague or ambiguous language in a judicial decree cannot constitute a "clear and unequivocal command," Sax v. Sax, supra at 771, 762 N.E.2d 888, a party's self-serving characterization of a provision as "ambiguous" does not make it so. "[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466, 645 N.E.2d 1165 (1995). See Mayer v. Medical Malpractice Joint Underwriting Assn. of Mass., 40 Mass. App.Ct. 266, 269, 663 N.E.2d 274 (1996) (party's interpretation of insurance policy language "appear[ed] to represent a strained attempt to create ambiguity where none exists").

Gerald claims that an ambiguity was injected into the stipulation by the replacement of the original typed word "shall" (maintain a college and/or trust fund) with the handwritten phrase "will use his best efforts to" (maintain a college and/or trust fund). He asserts that the removal of the command, "shall," and the insertion of the more permissive words, "will use his best efforts to," render his duties under the order unclear and, at best, discretionary rather than mandatory. Consequently, he argues, the order does not require that he establish such funds, but merely that he use his "best efforts" to do so.

Even if the order were to require only that Gerald use his "best efforts" both to...