Opinion
11-P-658
01-18-2012
AMY COSGROVE v. MICHAEL E. COSGROVE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Michael Cosgrove (husband) appeals from a consolidated judgment on complaints brought by Amy Cosgrove (wife) for contempt and for declaratory relief.
The husband concedes that he failed to pay $6,300 in child support for the last seven weeks in 2009 prior to the children's emancipation. This suffices to support the finding of contempt.
There is no error in the order that the husband pay $17,200 for child support for the period from January 1, 2000, to May 29, 2009, to account for thirty percent of his gross wages prior to the deduction of amounts he had contributed to his tax-deferred retirement plan, an amount that was not included in the husband's payments for that time period.
There was neither an error of law nor an abuse of discretion in the judge's order that the husband pay the balance of the $247,375 that he was ordered to pay in past child support. The husband has not demonstrated error in the trial judge's construction of the terms 'gross salary . . . commission and/or bonus if, as and when actually received' in the separation agreement incorporated into the judgment of divorce. It therefore was not error to treat as within those terms amounts paid by GCS Sales and Marketing, Inc. (GCS), for items of value accruing to the husband personally.
In light of the husband's extraordinarily poor record-keeping that made it essentially impossible to distinguish between true business expenses and expenses for the benefit of the husband himself, and given his control over both the payments made by GCS and over the documentation thereof, we see no error in the judge's placement upon the husband of the burden to produce adequate documentation to support claimed business expenses, as the Supreme Judicial Court did in an analogous situation in J.S. v. C.C., 454 Mass. 652, 664-665 (2009). And, given the failure of the husband to meet this burden or to provide adequate records, we see no abuse of discretion in those aspects of the judgment in which the judge attributed various expenses, or portions thereof, as accruing to the husband personally.
We note that although the husband was not asked what clients he took to Patriots football games, since he bore the burden of proof it was his obligation to put in evidence the specific uses to which his tickets were put. The trial in this case took place after the Supreme Judicial Court handed down J.S. v. C.C., so there was no unfair surprise in the trial judge's determination that the burden lay with the husband.
In light of the testimony about the $71,000 in personal loans, the husband has not demonstrated that it was error for the judge to treat that amount as separate, and above, the $800,000 spent in the buyout of Gross's interest in GCS.
Finally, the husband has demonstrated no error in the award to the wife of her attorney's fees and costs.
The judgment dated November 12, 2010, is affirmed.
We allow the wife's request for her appellate attorney's fees and costs. She may submit her application, along with appropriate supporting materials, to the clerk of the Appeals Court within fourteen days of the date of the rescript. The husband shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
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So ordered.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),