Steeves v. Berit
| Decision Date | 17 August 2005 |
| Docket Number | No. 03-P-1662.,03-P-1662. |
| Citation | 832 N.E.2d 1146,64 Mass. App. Ct. 265 |
| Parties | John STEEVES v. Antonia BERIT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ellen S. Zack, Boston, for the plaintiff.
Ara H. Margosian, II, Watertown, for the defendant.
Present: PERRETTA, DOERFER, & MILLS, JJ.
John Steeves's appeal from the dismissal of his contempt complaint against Antonia Berit, his former wife, raises the question whether she was in contempt of court by reason of her alleged violation of the terms of the divorce judgment which ordered the parties to comply with the terms of their divorce agreement when she failed to inform him that their twenty-one year old daughter was no longer enrolled in or attending courses at any college. According to the agreement, Steeves would pay child support beyond the daughter's eighteenth birthday if she were "actively pursuing a college education." In that event, the daughter would not be emancipated until she had completed college "in the normal course" or had "attain[ed] the age of 21 years," whichever was "last" to occur. A Probate and Family Court judge concluded that in the circumstances presented, the wife did not disobey a clear and unequivocal command, dismissed Steeves's contempt complaint, and denied his request for counsel fees. We affirm the judgment.
1. Background. On February 11, 1985, the parties entered into a divorce agreement (agreement). Their divorce judgment entered on September 16, 1985, provided that their agreement was incorporated and merged in the judgment and that the "parties are ordered to comply with the terms of [their] Agreement."1 As relevant to the present dispute, the agreement provides:
On June 9, 1995, Steeves's weekly child support obligation was increased to $250 and made subject to a wage assignment in accordance with the terms of a "Stipulation/Agreement of the Parties dated June 9, 1995, ... filed with the Court" and incorporated into its order on a complaint for modification. In all other respects, the parties' agreement and judgment of divorce were to remain "in force and effect."
When in September, 2002, Steeves learned that his daughter had not been enrolled in college or attending classes at any other school since December, 2001, he brought an ex parte motion to terminate his child support obligation and the wage assignment. The motion was accompanied by an affidavit, prepared by Steeves's attorney and signed by Berit on October 2, 2002, in which she stated that the twenty-two year old daughter was emancipated and that she, Berit, assented to the vacating of the wage assignment order. On October 7, 2002, a judge relieved Steeves of his child support obligation and ended the assignment of his wages. Soon thereafter Berit received a check from Steeves's employer, presumably because the employer had either yet to receive or yet to note on its payroll records the order ending the wage assignment. She endorsed the check over to Steeves and returned it to him.
About a month later, on November 14, 2002, Berit signed a civil contempt complaint alleging that Steeves, beginning on September 13, 2002, had failed to make support payments for their daughter as well as failed to pay one-half the amount of the uninsured medical expenses incurred on her behalf. The complaint was filed on January 27, 2003. On February 25, 2003, Steeves filed a contempt complaint against Berit claiming that because Berit had failed to inform him that their daughter had left school in December, 2001, and was, therefore, emancipated as of that time, he had unnecessarily paid $10,000 in child support, for which he sought reimbursement as well as the fees and costs he had incurred in the matter.
Because the divorce judgment ordered Steeves and Berit "to comply with the terms" of their agreement, the question whether either of them had violated that order turns on the terms of their agreement. It appears on the materials before us that Berit's complaint and her defense against Steeves's complaint was that the daughter was not emancipated and that she, Berit, had no memory of signing the documents dated October 2, 2002, in which she stated that she agreed with Steeves that the daughter was emancipated.
After a hearing on March 10, 2003, a judge ruled on Berit's complaint against Steeves that she did not find Berit's allegation of a memory lapse credible, found Steeves not guilty of contempt, and entered a judgment in his favor on Berit's complaint against him.
On Steeves's complaint against Berit, the judge found Berit guilty of contempt on the express basis that she had failed to notify Steeves about their daughter's failure to pursue a college education and entered the following order:
No judgment or order for judgment was entered or made on Steeves's complaint against Berit.
After three months passed without any request from Berit for an evidentiary hearing, Steeves brought a motion asking that a deadline of July 11, 2003, be established for Berit's request and that should she fail to meet that deadline, a judgment in the amount of $22,899.60 be entered on his complaint against her.2 The judge allowed the motion, and permitted Berit until July 30, 2003, to request an evidentiary hearing on Steeves's complaint against her. Berit complied with that order and requested the evidentiary hearing authorized in the order of March 10, 2003.
A second Probate and Family Court judge conducted the evidentiary hearing. Based on the evidence presented and the facts found, he concluded that during the period in question (December, 2001, through October 11, 2002), the daughter was not emancipated within the meaning of that term as used in the parties' agreement and, therefore, that Berit had not clearly, wilfully, and unequivocally violated any clear order of the Probate and Family Court.
2. Scope of the evidentiary hearing. As a preliminary matter, Steeves argues that the second judge erroneously failed to limit the scope of the evidentiary hearing to what he perceives to be the single issue described by the first judge in her order of March 10, 2003, that is, according to him, the amount of any overpayment made by him on account of Berit's failure to notify him that their daughter had been emancipated, and Berit's ability to pay. This argument fails for several reasons.
Although it was not open to the second judge to amend the judgment on Berit's complaint against Steeves, it was within his power to consider all the facts relevant to the question of emancipation and, consequently, to amend the order of contempt on Steeves's complaint against Berit.3 See Riley v. Presnell, 409 Mass. 239, 242, 565 N.E.2d 780 (1991). See also Salter v. Scott, 363 Mass. 396, 401-402, 294 N.E.2d 219 (1973); Catalano v. First Essex Sav. Bank, 37 Mass.App.Ct. 377, 384, 639 N.E.2d 1113 (1994).
3. The evidentiary hearing. We relate the facts as the second judge found them to be based on the evidence presented to him at the evidentiary hearing on the issue of the date of the daughter's emancipation. There was evidence to show that although the daughter was enrolled in college in September, 1999, she was forced to withdraw from her studies in December, 2001, because of symptoms she was experiencing from an as yet undiagnosed bipolar disorder. The daughter testified that while at school, she knew that she was suffering from "some sort of ... a mania" that affected her studies, impacted upon her ability to concentrate, and caused her to become easily frustrated. Berit related that after the daughter left school and moved back home with her, she suffered from severe mood swings and was difficult to live with as well as disruptive to the household. Neither Berit nor the daughter informed Steeves that the daughter had left college and had returned home to Berit.
Notwithstanding her withdrawal from school and the symptoms she was experiencing, the daughter continued to work, as she had been since 1999, as a waitress. She also did research concerning colleges and made inquiries to several of them. In June, 2002, the daughter applied to and was accepted at Northeastern University, for evening part-time studies, scheduled to begin on September 24, 2002. As explained by Berit, the daughter was not capable of maintaining a "full course load" because of her condition. Meanwhile, throughout the period of December, 2001, through October, 2002, Berit endorsed over to the daughter for her sole use all the child support payments made by Steeves.
On September 24, 2002, the enrollment date at Northeastern University, the daughter experienced a serious manic-depressive episode and was hospitalized. Two days later, she was diagnosed as suffering from a bipolar disorder. It was during the daughter's hospitalization that Steeves first learned, from Berit's husband, that the daughter had dropped out of school in December, 2001, and had returned to live with Berit and him. At this time, Steeves was also informed that the daughter wished to live with him upon her discharge from the hospital.
On October 2, 2002, while the daughter was still hospitalized,...
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