Tennyson-Loiselle v. Loiselle, 16-P-1267

• Decision Date: 10 July 2017
• Docket Number: 16-P-1267
• Citation: Tennyson-Loiselle v. Loiselle, 87 N.E.3d 113(Table), 91 Mass.App.Ct. 1131 (Mass. App. 2017)
• Parties: Linda TENNYSON-LOISELLE v. Kenneth R. LOISELLE.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 1131

87 N.E.3d 113 (Table)

Linda TENNYSON-LOISELLE

v.Kenneth R. LOISELLE.

16-P-1267

Appeals Court of Massachusetts.

Entered: July 10, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following their divorce in 1993, Linda Tennyson-Loiselle and Kenneth Loiselle agreed to a stipulation later incorporated into a judgment of modification concerning payment for their daughter Ardis's graduate school expenses. As we discuss in more detail, Kenneth agreed to pay for Ardis's graduate school education only if she attends "a graduate school ranked in the top 30% of the graduate schools in Ardis's chosen area of study." When Ardis was accepted to a master's degree in fine arts program in painting, Kenneth refused to pay, claiming that the program did not meet the agreed-upon criteria. Linda filed a complaint for contempt alleging that Kenneth had violated the stipulation. A judge of the Probate and Family Court agreed with Linda and found Kenneth in contempt. Because we agree with the judge's conclusion that the relevant provision of the stipulation was sufficiently precise to support an action for contempt, we affirm.

Background. The parties' marriage ended after two years on May 28, 1993, when they executed a separation agreement, which was incorporated and merged into their judgment of divorce. As relevant here, the separation agreement provided they would each contribute to Ardis's undergraduate education "in proportion to their gross incomes," and that Kenneth would execute a will naming Ardis as the beneficiary of a trust consisting of twenty-five percent of his adjusted gross estate. In November, 2010, prior to Ardis enrolling in college, Linda filed an amended complaint for modification seeking to have Kenneth pay one hundred percent of Ardis's undergraduate education. Kenneth filed a counterclaim, seeking to modify the separation agreement and to reduce his testamentary obligation to Ardis. The parties eventually resolved both the complaint and the counterclaim by stipulation, which was incorporated into the judgment of modification. The stipulation provided that Kenneth would be responsible for both Ardis's undergraduate and graduate education costs. Specifically, in regard to graduate school, it provided that:

"Father shall be solely responsible for and shall pay 100% of the graduate school education expenses incurred by Ardis until she obtains a master's degree or a doctoral degree (e.g., Ph.D. or J.D. or M.D.). However, Ardis must attend a graduate school ranked in the top 30% of the graduate schools in Ardis's chosen area of study, as ranked by U.S. News and World Report at the time of her acceptance into the graduate program."

The stipulation also excluded certain assets from the calculation of Kenneth's adjusted gross estate, namely his condominium in New York City and the lesser of $2 million or one-third of his adjusted gross estate. Thus, the amount of Kenneth's estate that he is required to bequeath to Ardis was substantially reduced.

After receiving an undergraduate degree, Ardis decided to attend Boston University for graduate school. She was "accepted into the Master of Fine Arts degree program in Painting, beginning in September 2016." When, in the spring of 2016, Ardis contacted Kenneth to arrange for him to pay a deposit for her housing, he refused. Linda then filed a complaint for contempt, alleging Kenneth's refusal violated the judgment of modification. Kenneth claimed he is not obligated to pay because the program did not meet the requirements set forth in the stipulation.

After a hearing, the judge found Kenneth in civil contempt, ordered Kenneth to pay for Ardis's expenses at Boston University, and ordered Kenneth to pay Linda's counsel fees and costs in the amount of $3,330. Kenneth appealed.²

Discussion. Kenneth claims that the judge misinterpreted the meaning of "area of study" as set forth in the stipulation and challenges the judgment of contempt on the ground that the stipulation did not contain a clear and unequivocal order. We address each claim in turn.

1. Stipulation. Kenneth argues that the judge incorrectly found that Ardis is enrolled in a program in the top thirty percent of her area of study. Because the judgment of modification incorporated the stipulation, we consider "the parties' own attempts to negotiate terms mutually acceptable to them." Bercume v. Bercume, 428 Mass. 635, 644 (1999). Accordingly, we turn to the text of the stipulation itself to determine if the stipulation contains an ambiguity.

"If the words of a contract are plain and free from ambiguity, then they must be construed in accordance with their ordinary and usual sense." Colorio v. Marx, 72 Mass. App. Ct. 382, 388 (2008), quoting from Fried v. Fried, 5 Mass. App. Ct. 660, 663 (1977). "Contract language is ambiguous where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken." Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008) (quotation omitted). "The mere existence of the parties' disagreement does not make the language ambiguous." Browning-Ferris Indus. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011). See Colorio v. Marx, supra at 388-389. Nor does "[a]n ambiguity ... arise merely because an order, otherwise clear, may require ‘some legal interpretation.’ " Stabile v. Stabile, 55 Mass. App. Ct. 724, 726 (2002), quoting from Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002).

The stipulation requires Kenneth to pay for Ardis's graduate school educational expenses only if she attends "a graduate school ranked in the top 30% of the graduate schools in Ardis's chosen area of study, as ranked by U.S. News and World report" (emphasis supplied). In 2016, U.S. News and World Report ranked 229 fine arts programs.^{3 ,4} The parties agree that Boston University, which tied eight other institutions for fifty-ninth place, is within the top thirty percent of fine arts programs.

However, Kenneth contends that Ardis's "area of study" is not the school she attends or the degree she obtains (i.e., Boston University's College of Fine Arts or a master's degree in fine arts), but rather the painting program to which she was accepted. U.S. News and World Report does rank painting and drawing programs along with nine other specialties such as ceramics, graphic design, and photography.⁵ While it appears that some specialties rank as few as two schools, thirteen schools are included in the painting and drawing ranking; Boston University is not among them.

We agree with the judge that Kenneth's interpretation is not reasonable. The language of the stipulation is not "susceptible of different meanings in the eyes of reasonably intelligent persons." Browning-Ferris Indus. v. Casella Waste Mgmt. of Mass., Inc., supra. Accordingly...