Awbrey
v.
Awbrey

COMMONWEALTH OF MASSACHUSETTS APPEALS COURTNov 7, 2016
63 N.E.3d 64 (Mass. App. Ct. 2016)
63 N.E.3d 6490 Mass. App. Ct. 1114

No. 15–P–1150.

11-07-2016

Brian J. AWBREY v. Diana AWBREY.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Brian J. Awbrey (father) appeals from a modification judgment of the Probate and Family Court awarding the father's former wife, Diana Awbrey (mother), sole legal custody of their daughter and increasing his child support payments. The father also appeals from various findings of contempt. For the reasons set forth below, we affirm the modification judgment, dismiss as untimely the father's appeal from the contempt findings dated January 15, 23, and February 18, 2014, and affirm the contempt finding dated June 13, 2014. Lastly, we have determined that the mother is entitled to her appellate attorney's fees and costs.

Background. The parties were married on June 7, 1997. They have one child, a daughter born in December, 1998, who has multiple intellectual and learning disabilities. They subsequently divorced on June 3, 2005.

On January 30, 2012, the mother filed a complaint for modification seeking sole legal custody of the parties' daughter. On February 28, 2012, the father filed a complaint for modification seeking to reduce his child support obligation and eliminate his obligation to provide life insurance. After a two-day trial, the judge issued a judgment of modification dated May 30, 2014, that addressed both parties' complaints. The judgment of modification granted the mother sole legal custody of the parties' daughter and increased the father's child support order to $4,750 per month, reduced by any monthly benefit the mother would receive from the Social Security Administration as a result of the father's disability. The father's request to terminate his obligation to carry life insurance was denied.

The mother filed a complaint for contempt against the father on December 2, 2013, for failure to pay child support. The father was found guilty of contempt by orders dated January 15, 2014, and January 23, 2014, and a judgment dated February 18, 2014. The mother filed another complaint for contempt on June 4, 2014, for failure to pay child support and attorney's fees; the father was found guilty of contempt in an order dated June 13, 2014.

Discussion. Complaint for modification. The father claims the judge erred by awarding the mother sole legal custody of their daughter and by increasing his monthly child support payments. We address each claim in turn.

Many of the father's arguments on appeal constitute a thinly veiled attempt to relitigate issues previously adjudicated in prior appeals to this court. See Awbrey v. Awbrey, 72 Mass.App.Ct. 1116 (2008) ; Awbrey v. Awbrey, 78 Mass.App.Ct. 1113 (2010). To the extent that we do not address every aspect of the father's arguments, we have concluded that they are without merit and no discussion is warranted. See Williams v. B & K Med. Sys., Inc., 49 Mass.App.Ct. 563, 577 (2000).


Contrary to the father's assertion, the judge did not misconstrue the recommendation of the court-appointed guardian ad litem (GAL). According to the father, the GAL recommended that the mother continue to have sole physical custody, but not sole legal custody. We need not pause long on this argument because, as noted by the mother in her brief, the GAL's recommendation clearly contemplated legal custody even if she did not explicitly use that phrase. Moreover, the GAL made two distinct recommendations, one that explicitly addressed physical custody while the second clearly concerned legal custody.

The GAL's report stated in no uncertain terms that “[the mother] should continue to have physical custody of [the parties' daughter] as she has had since the parties separated” and “[the mother] should be the sole parent to make all decisions regarding [the parties' daughter's] care in the future.”


The father's claim of error in the judge's calculation of child support is also unavailing. He claims that the judge abused his discretion by awarding an amount slightly higher than that prescribed by the Uniform Child Support Guidelines (Guidelines). The judge concluded that a deviation from the Guidelines was warranted given the high level of care the parties' daughter requires, the fact that the mother has been the driving force behind the parties' daughter's educational progress and receiving the necessary services, and the fact that the mother is unable to earn any meaningful income. These findings are amply supported in the record and we discern no abuse of discretion. See Richards v. Mason, 54 Mass.App.Ct. 568, 572 (2002). See also Chan v. Chen, 70 Mass.App.Ct. 79, 84 (2007).

2. Findings of contempt. The father purports to appeal from various findings of contempt.

It is notable that the father has failed to furnish this court with any of the transcripts from the contempt hearings. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 603 n. 50 (2007) (appellant's burden to furnish adequate appellate record). The mother has provided transcripts from the relevant contempt hearings in her supplemental record appendix.


The father's appeal from the contempt orders dated January 15, 2014, and January 23, 2014, and the judgment dated February 18, 2014, are not properly before us because the father did not file a timely notice of appeal. As such, those appeals are dismissed as untimely.

We do not intend to intimate that the father could properly appeal from an order of contempt. Even were we to reach the merits of the appeals, the father would not prevail. The father acknowledged, through counsel, that he was in arrears of at least $9,293 at the hearing on January 15, 2014; $1,285 at the hearing on January 23, 2014; and $6,700 at the hearing on February 12, 2014 (following which the judge entered a judgment on February 18, 2014).


On June 4, 2014, the mother filed another complaint for contempt for failure to pay child support and attorney's fees, together with a motion to schedule an emergency hearing. A hearing was held on June 11, 2014, during which the wife initially alleged that the father owed her $3,822 and the father averred that he owed $3,722. The mother stipulated that the correct amount was $3,722. In an order dated June 13, 2014, the judge found the father in contempt for failure to pay child support in the amount of $3,722 and attorney's fees in the amount of $4,500. We cannot say the judge erred in finding the father in contempt when the father admitted that he was in arrears in child support payments amounting to $3,722 and that he did not pay the attorney's fees.

In his notice of appeal, the father purports to appeal from “interlocutory complaints for contempt judgments of: ... June 4, 2014; June 11, 2014.” The record does not contain any decisions of the judge dated June 4 or June 11, and we assume that the father is referring to the judge's decision entitled “order of contempt (on the complaint for contempt filed June 4, 2014)” that is dated June 13, 2014, and that resulted from the hearing held on June 11, 2014. The June 13 “order of contempt” has all the trappings of a judgment; we note that the June 13 order was entered on the docket on July 31, 2014, and that also on that date, a “judgment dated July 30, 2014 on complaint filed 6/4/14” was entered on the docket. Again we do not intimate that an order of contempt is properly appealable.


Conclusion.
The judgment of modification is affirmed. The father's appeals from the January 15, 2014, and January 23, 2014, orders, and the February 18, 2014, judgment of contempt are dismissed as untimely. The June 13, 2014, “order of contempt” is affirmed. The mother is entitled to appellate attorney's fees and costs. She may submit a petition for fees and costs, together with supporting materials, to the clerk of this court within fourteen days of the date of the rescript of this decision. The father shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004).

So ordered.