Tatar v. Schuker

• Court: Appeals Court of Massachusetts
• Writing for the Court: Duffly
• Citation: Tatar v. Schuker, 874 N.E.2d 481, 70 Mass. App. Ct. 436 (Mass. App. 2007)
• Decision Date: 09 October 2007
• Docket Number: No. 06-P-1312.,06-P-1312.
• Parties: Maria TATAR v. Stephen A. SCHUKER.

874 N.E.2d 481

70 Mass. App. Ct. 436

Maria TATAR v. Stephen A. SCHUKER.

No. 06-P-1312.

Appeals Court of Massachusetts, Middlesex.

Argued May 17, 2007.

Decided October 9, 2007.

Paul S. Neustadt for the defendant.

Donald G. Tye, Boston (Peter A. Kuperstein with him) for the plaintiff.

Present: DUFFLY, ARMSTRONG, & KAFKER, JJ.

DUFFLY, J.

Stephen A. Schuker (father) appeals from three judgments of contempt entered against him in the Probate and Family Court when he failed to pay child support determined to be due to Maria Tatar (mother) under the terms of their divorce judgment. The father claims that (1) in the absence of a modification judgment ordering that support continue beyond age eighteen, G.L. c. 208, § 28, must be read to provide for automatic termination of his support obligation upon the younger child reaching age eighteen; (2) he was wrongfully denied evidentiary hearings in connection with the contempt proceedings; (3) his support obligation should have been reduced by the amount of Social Security payments allegedly received by the younger child; (4) attorney's fees should not have been awarded to the mother; and (5) the judge should have recused herself.

The father's primary contention in this appeal is that because the child support obligation imposed by his divorce judgment contains no termination date or other contingency specifically related to ending the obligation, it ended automatically upon his younger child's reaching the age of eighteen. We decide that the Probate Court judge hearing the contempt actions could properly conclude that the father's obligation continues until the child is emancipated as defined by G.L. c. 208, § 28, as amended by, St.1976, c. 29, § 1 (i.e., the child has attained age eighteen but "not attained age twenty-one, ... is domiciled in the home of a parent, and is principally dependant upon said parent for maintenance"); however, because the order was not sufficiently clear on this point, he could not be held in contempt in connection with the first proceeding. We affirm in part and reverse in part.

I. Background. Two children were born to the parties during their marriage: a son, in October, 1986, and a daughter, in June, 1984. When the parties were divorced by a judgment nisi, following a trial, the children were three and five years old. By an amended judgment dated October 11, 1989, nunc pro tunc to July 31, 1989, the mother was adjudged the "primary custodial parent," and the father was ordered to pay "to the [mother] as child support the sum of two hundred and eighty-six ($286.00) dollars each week, beginning forthwith, and each week thereafter." The judgment is silent as to termination of this obligation.

By the fall of 2004, both children had graduated high school and were full-time college students.¹ The child support provision of the divorce judgment was not modified throughout this period.² When the younger child turned eighteen years old at the end of October, 2004, the father stopped making child support payments, and the mother filed the first of the three contempt actions at issue here.

In the first contempt complaint, filed in August, 2005, the mother alleged that the father had failed to pay weekly child support as ordered by the divorce judgment, in essence claiming that the divorce judgment required support to continue until the children were emancipated under the statute and that the younger son was not emancipated.³ Answering the complaint, the father admitted "that he has failed to make some of the child support payments," and set forth no defense to his nonpayment.⁴ Nowhere in his answer does the father raise the defense that the younger child is no longer domiciled with the mother nor principally dependent on her for support, and nothing in the record on appeal reflects that, in connection with his request for an evidentiary hearing, the father made a timely offer of proof that the son's domicile had changed from that of his mother or that he was no longer principally dependent upon her for noneducation support.⁵ See note 14, infra. The probate judge denied his request for an evidentiary hearing and found the father in contempt on the basis of his admissions that he failed to make the child support payments — determined to be in the amount of $14,681 — and made no claim that he was unable to pay.

In a rule 60(b) motion for relief from this judgment, Mass.R.Dom.Rel.P. 60(b), the father sets forth in an "Offer of Proof" the following: the amended judgment of divorce obligates him to pay weekly child support in the amount of $286; the "judgment makes no provision for termination of child support" and "no mention of emancipation of minor children"; the parties' younger child "became 18 years of age on October 29, 2004"; the "[f]ather paid weekly child support through the end of October, 2004"; the son received $3,508 from the Social Security Administration in November, 2004, for which he was eligible "on account of Father's age"; in June, 2005, "Father paid Mother $969.63" for the son "which he was not required to pay"; and "Mother has made no contribution to the college expenses (either tuition or living) ... of the children." The motion shows that the father's defense to the contempt judgment is one of law, not fact: the father claims that his obligation terminated by operation of law "on the eighteenth birthday of the youngest child" and that the mother "must file a Complaint for Modification," if she "wishes to receive child support" after that date. The judge denied the motion.

In her second and third complaints, filed in January and March, 2006, the mother sought additional unpaid child support accumulated since entry of the first contempt judgment, as well interest on the unpaid support.⁶ Following nonevidentiary hearings, the father was found in contempt and judgments entered against him. The judgment on the January complaint fixed the arrearage at $5,270, and further provided that "[t]he father shall pay child support for the children who are unemancipated according to the statute retroactive to his last payment" (emphasis added). Judgment on the March complaint fixed the additional arrearage at $5,148, adding twelve percent interest to this sum for the period from the date of filing the complaint to the date of judgment. In addition, as to the second and third contempt complaints, the mother was awarded attorney's fees in amounts of $7,746.10 and $5,636.25, respectively.

The father appeals from the three contempt judgments and the denial of his rule 60(b) motion for relief from judgment.

II. Discussion. 1. Judgments of contempt. (a) Analytical framework. Because this case involves a divorce judgment that does not incorporate an agreement of the parties,⁷ we begin our discussion by looking to G.L. c. 208, § 28, which provides authority to the Probate Courts to make orders for child support.⁸ The particular provisions in § 28 with which we are concerned provide:

"Upon a judgment of divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties.... The court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependant upon said parent for maintenance."⁹

It is the father's continued obligation for general support of his children, and not a new obligation to contribute to their education, that is at issue in this case. That the younger child's domicile remained with his mother and that he continued to be principally dependent on her for support after he reached age eighteen were not timely raised as issues of fact below. See notes 18 & 20, infra. This is very likely because the father pinned success, not on a determination of these facts in the context of the contempt action, but on his legal argument that under the language of the divorce judgment, termination of his obligation was automatic when his son reached eighteen. Nor has any question been raised as to the father's ability to pay. Thus, we are faced with the narrow question whether the provision in the divorce judgment ordering the father to pay "to the [mother] as child support the sum of two hundred and eighty-six ($286.00) dollars each week, beginning forthwith, and each week thereafter," presents a clear and unambiguous command to the father that his child support continue until the younger child is emancipated under the statute. See Larson v. Larson, 28 Mass.App.Ct. 338, 340, 551 N.E.2d 43 (1990) ("to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience"). We conclude that the father's obligation to support continues until his son's emancipation, and did not expire when he reached his eighteenth birthday, but that the order was not sufficiently clear on this point so as to support a finding of contempt. Also, in the circumstances presented, the mother was not required to file a modification complaint to establish the father's continued obligation for child support.

We begin our discussion by observing that the statutory framework clearly reflects a legislative intent to require parents to support their unemancipated children.¹⁰ See L.W.K. v. E.R.C., 432 Mass. 438, 444 & n. 17, 735 N.E.2d 359 (2000). It is "the declared public policy of this Commonwealth `that dependent children shall be maintained, as completely as possible, from the resources of their parents.'" Id. at 446, 735 N.E.2d 359, quoting from G.L. c. 119A, § 1, and citing G.L. c. 209C, § 20. The mother in the L.W.K. case brought an action that established paternity of the parties' son, then not quite two; the trial judge "ordered the father to pay child support of $100 a week to the mother, the order to remain in effect `until further order of the Court.'" L.W.K. v....