Opinion
14-P-1016
08-17-2015
JOSEPH S. SAMRA v. LINDA L. ESPER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this matter involving college costs, the father appeals from the February 27, 2012, modification judgment and the June 4, 2012, judgment of dismissal of his complaint for contempt. For the reasons that follow, we affirm the modification judgment and the judgment dismissing the contempt complaint.
1. Background. Very briefly summarized, the parties' were divorced in September, 1999, and their separation agreement was incorporated into the divorce judgment. Under the separation agreement, the parties were granted joint physical and legal custody of the two children and the father was ordered to pay child support of $165 per week. As to college expenses, the 1999 agreement provided, in part, that the after each child's contribution, if any, from scholarships, loans, work study plans, savings, and gifts, the parties "will contribute towards the cost of education as their respective means allow."
On December 14, 1999, the father filed a complaint for modification. The modification judgment, which issued on November 27, 2002, ordered that the father was to have sole physical and legal custody of the son, the mother would have sole physical custody of the daughter, the parties would share legal custody of the daughter, and the mother would pay the father $200 per week in child support.
On April 11, 2011, the mother filed a complaint for modification, seeking, in part, the termination of her child support obligation in light of the son's impending graduation from college and the father's improved financial circumstances, and an order that the father begin paying child support for the daughter.
The son began college in September, 2007, and graduated in May, 2011.
In turn, on May 27, 2011, the father answered the mother's modification complaint and counterclaimed, seeking a modification of the September 21, 1999, divorce judgment to include an order for the payment of "a specific amount toward the cost of [the son's] education." Furthermore, on August 22, 2011, the father filed a complaint for contempt claiming, in part, that the mother violated the divorce judgment and the modification judgment by failing to contribute toward the cost of college education for the son.
A pretrial conference was held on February 27, 2012. At the pretrial conference, near the end of the hearing, the father, who is an attorney and proceeded pro se, told the judge that "[t]his is a complaint for modification, Judge. It should be very easy . . . . [q]uite frankly, Judge, you're in a position based on the financial statements you have before you and the memorandum filed by each of the parties . . . to make a decision right now" and that "[t]here's nothing else to be had at this particular point in time." The judge accepted the father's assertion and took the matter under advisement.
Prior to the pretrial conference, both parties submitted a pretrial memorandum. At the hearing, both parties were sworn
On the day of the hearing, the judge issued a judgment which provided, in part, that the father would pay child support for the daughter in the amount of $300 per week and did not order any payment by the mother. The judge subsequently dismissed the father's complaint for contempt.
The father is not challenging this child support order.
2. Discussion. On appeal, the father first claims that in both the modification action and the contempt action, the probate judge erred in issuing a judgment without conducting a trial. We disagree. At the pretrial conference hearing, the father explicitly and unequivocally asked the judge to make his decision at that time. More particularly, as noted above, the father told the judge that a decision could be reached solely on the bases of the financial statements and pretrial memoranda submitted by the parties, that the judge had everything he needed to reach a decision, and that the judge was in a position to "to make a decision right now" (emphasis supplied). In short, there was no error.
Next, the father argues that the judge erred in not awarding retroactive contribution toward college expenses that the father paid. In particular, the father alleges that the judge was required to determine the amount of the son's college costs that should be paid by the mother and order the mother to pay them. We need not resolve the father's claims set out above because his failure, at the pretrial conference hearing, to present evidence that would justify an order for additional payments by the mother is dispositive of this issue.
We note, however, that the father's reliance on Cabot v. Cabot, 55 Mass. App. Ct. 756, 767 (2002), is misplaced. In our view, that case is factually distinguishable from the present one. In Cabot, the mother filed a complaint for modification regarding college costs when the children were fifteen and seventeen years old and before they started college. Ibid. In contrast, here, the father filed his counterclaim for modification after the son's graduation from college. See Boulter-Hedley v. Boulter, 429 Mass. 808, 809 (1999) (judge had discretion whether to make order retroactive to filing of modification complaint).
At the pretrial conference hearing the father presented no evidence of the parties' finances at the time of the 1999 divorce judgment or the 2002 modification judgment. Furthermore, and importantly, at the hearing, the father presented no evidence of the parties' finances during the son's college years, September, 2007, through May, 2011.
While in his pretrial memorandum the father listed numerous proposed exhibits, including the parties' tax returns for 2007 to present and the son's tuition bills, costs, and expenses, the father did not introduce these materials in evidence. Moreover, the father's unsworn allegations in his pretrial memorandum do not constitute evidence.
The only materials submitted at the hearing regarding the parties' finances were the parties' February 27, 2012, financial statements, the mother's child support guidelines worksheet, and the father's two 2011 residential loan applications. Although the father provided limited testimony about the parties' finances, that testimony was insufficient and, at any rate, the judge did not have to credit it. In fact, he found that the father's "own testimony was not entirely truthful."
The father, represented by counsel on appeal, included in the record appendix his affidavit and attachments that he mailed to the court and to the mother's counsel the day after the hearing and the issuance of the judge's decision. These materials were not before the judge and are not properly before us. Mass.R.A.P. 8(a), as amended, 378 Mass. 932 (1979).
In light of the father's insistence that the judge make the decision "right now," and his failure to introduce documentation of the parties' finances other than for year 2012, the judge did not abuse his discretion in declining to order any retroactive payments by the mother.
For the above reasons, the February 27, 2012, judgment of modification and the June 4, 2012, judgment of dismissal on the father's complaint for contempt are affirmed.
To the extent that the father challenges the dismissal of his contempt complaint, seeking to hold the mother in contempt for violating the divorce and modification judgments by failing to contribute toward the cost of their son's college education, there was no error. "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 (2009). Because the language of the 1999 separation agreement providing for contribution toward the cost of education as the parties' means allow did not constitute a clear and unequivocal command, the judge did not abuse his discretion in dismissing the complaint. Ibid.
So ordered.
By the Court (Berry, Kafker, & Cohen, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 17, 2015.