NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 ), 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 23.0 or 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 23.0
The plaintiff (wife) appeals from a judgment finding the defendant (husband) not guilty of contempt and awarding neither party attorney's fees. At the core of this appeal is the meaning of Exhibit B to the parties' separation agreement, which governed the payment of alimony. These terms of the agreement were incorporated into the judgment of divorce nisi, and merged into the judgment. We conclude (1) that the judge erred in concluding that G. L. c. 208, § 53, restricts the parties' ability to reach their own agreement on how alimony is to be calculated, and (2) the terms of Exhibit B are ambiguous, and require further proceedings in the trial court to determine their meaning. For these reasons, we vacate the judgment, and remand for further proceedings.
At issue in this appeal is the complaint for contempt filed by the wife on October 24, 2018. The wife filed a second complaint for contempt on April 12, 2019 (concerning the children's 529 accounts), as to which she makes no argument on appeal. The husband does not appeal from the judgment on his complaint for contempt filed on April 22, 2019 (concerning the payment of college costs).
The judgment was the product of an undesirable procedure in that it was neither the product of a dispositive motion nor a trial. Instead, after the parties appeared for a pretrial conference, the judge issued a sua sponte order dismissing the complaint. The judge subsequently issued a judgment on the October 24, 2018 complaint finding the husband not in contempt.
The parties entered into a separation agreement on November 9, 2015. Exhibit B to the agreement governs the husband's alimony obligations. In pertinent part, Exhibit B provides:
"The Husband shall pay to the Wife the sum of $1,009.00 per week as alimony, . . . which is calculated at 30% of $175,000.00 in gross taxable income. In addition, the Husband shall pay to the Wife the sum of 30% of his total gross income as it may exceeds [sic] $175,000.00 per year. By way of example, once the Husband's total gross income exceed[s] $175,000.00 per year, he shall pay to the Wife the sum of 30% of his total gross bonus or commission that exceeds $175,000.00 in the calendar year. . . . If Husband's gross income is $270,000.00 from salary, commission and bonus for the calendar year, 30% of the total gross of $270,000.00 shall be paid to the Wife as his total alimony obligation after factoring in the $1,009.00 based on the salary of $175,000.00, therefore 30% of the difference $270K - 175K or 30% of the $95,000.00 amount over $175,000.00."(Emphasis added; narrative versions of dollar amounts and percentages omitted.)
The wife's complaint for contempt alleged that the husband was in contempt of his alimony obligation by "[f]ailing to provide 30% of gross income in excess of $175,000.00 to Wife." The husband acknowledges that he initially failed to pay all amounts owed, but argues that he subsequently voluntarily cured the deficiency and no further amount is due. More specifically, relying on G. L. c. 208, § 53 (c) (1), he argues that rent generated by a rental property that was allocated to him as part of the division of marital property should be excluded in calculating "total gross income" for purposes of calculating his alimony obligation. Alternatively, the husband argues that, as a matter of contract interpretation, rental income was not intended to be included in the calculation of "total gross income" for purposes of calculating alimony. The wife essentially makes the mirror opposite of these two arguments. Both parties argue that the separation agreement unambiguously supports their position or, in the alternative, that the agreement is ambiguous.
We begin with the husband's statutory argument that G. L. c. 208, § 53, restricts how the parties may agree among themselves to calculate alimony as part of a separation agreement. No court has so held, and we see no reason to do so here. By its terms, G. L. c. 208, § 53, applies to the factors that a court must consider in fashioning an award of alimony. See G. L. c. 208, § 53 (a) ("In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider . . ."). Sprinkled throughout § 53 are references to what a court may and may not include in a court's calculation of alimony. By contrast, § 53 makes no reference to how alimony is to be calculated when negotiated among the parties. Nothing in the statute explicitly or impliedly restricts parties' ability to negotiate and agree on their own calculation of alimony -- even one that may be inconsistent with § 53's restrictions on judicial awards of alimony. This is consistent with our long-standing preference that divorcing couples resolve their marital disputes by agreement rather than through litigation. See G. L. c. 208, § 1A; Knox v. Remick, 371 Mass. 433, 436 (1976).
Even setting aside the fact that the statute does not tie the parties' hands in negotiations among themselves, we note further that -- even if it did -- § 53 (c) (1) says nothing about rent revenue, but speaks only to "capital gains income and dividend and interest income."
We now turn to the parties' competing arguments concerning the interpretation of Exhibit B. "The question whether a contract is ambiguous is a question of law, as is the interpretation of a separation agreement. . . . We review these claims de novo." Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 823 (2015). A contract is not necessarily ambiguous simply because certain terms are undefined. However, an undefined term is "ambiguous 'where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken'" (citation omitted). Bank v. Thermo Elemental, Inc., 451 Mass. 638, 648 (2008). In addition, ambiguity exists where an agreement's terms are inconsistent on their face. Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999).
Here, numerous aspects of Exhibit B are ambiguous. To begin with, the paragraph we have quoted above contains several different phrases referring to income of various sorts (e.g., "gross taxable income," "total gross income," "total gross bonus or commission," "gross income"). Not only do these phrases differ one from the other, but they are all undefined. The relationship of each phrase to the others is unclear. Moreover, the differences in phraseology from one sentence to the next make it unclear whether the sentence beginning "By way of example," is intended to be merely illustrative of calculating alimony in one possible income scenario without restricting others that may give rise to an alimony obligation, or whether it is intended to demonstrate the only types of income to be included in calculating alimony.
Ambiguity is also created by the first paragraph of Exhibit B, which provides that "the parties each waive past, present and future alimony claims against the other party including any and all rights either party may have against the other under the provisions of Massachusetts General Laws Chapter 208, Section 48-55." Not only is this waiver inconsistent with the paragraph that immediately follows it, which clearly imposes an alimony obligation on the husband, it also is inconsistent with subsequent parts of Exhibit B which incorporate certain provisions of the Alimony Reform Act.
Specifically, Exhibit B provides that "[a]limony shall terminate upon the first occurrence of: . . . (c) Husband reaching full retirement age as defined by the Alimony Reform Act[, or] (d) Wife maintaining a common household pursuant to the Alimony Reform Act," and that if "the Wife shares a common household with someone as defined [i]n the alimony reform statute, she shall notify the Husband forthwith."
We accordingly conclude that Exhibit B is ambiguous as to whether rental income from the property that was equitably divided as part of the marital estate was intended to be included in calculating the husband's alimony obligation. To the extent the wife's complaint for contempt rests on that rental income, therefore, the husband cannot be held in contempt. "Indefinite and uncertain language cannot support a complaint for contempt because of a lack of fair notice to the person subject to the order, and because ambiguity carries with it the potential for becoming an instrument of [judicial] severity" (quotation and citation omitted). Stabile v. Stabile, 55 Mass. App. Ct. 724, 726 (2002). Ambiguities in a separation agreement are ordinarily resolved in favor of the person charged with contempt because vague or ambiguous contract language cannot constitute a "clear and unequivocal command." Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002). Ambiguity does not relieve the husband of his alimony obligation once the meaning of the contract has been ascertained; it simply means that he cannot be held in contempt with respect to the failure to pay alimony on the rental income from the property that was included in the marital estate.
On remand, the judge should take evidence to determine the meaning of Exhibit B and what types of income the parties intended to include in calculating the husband's alimony obligation thereunder. The judge should then determine whether the husband owes any arrearage. We note that the wife's complaint for contempt was not limited to the rental income from the property that was subject to equitable division. Thus, on remand, to the extent the wife proves that the husband failed to pay alimony on additional income, the judge should not only determine the amount of that arrearage but also whether the husband's obligation as to that income (as opposed to the rental income) was sufficiently clear and unequivocal that contempt against the husband may lie.
The wife's request for attorney's fees on appeal is denied.
The panelists are listed in order of seniority. --------
Clerk Entered: December 30, 2020.