Opinion
16-P-633
04-05-2017
Anne GRENIER v. Dean BASTARACHE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (mother) appeals from the denial of her motion for relief from a judgment of modification ordering her to pay $25,000 in attorney's fees. The mother's essential argument is that the judge abused her discretion in awarding the father attorney's fees because the father was not the prevailing party and the mother was financially unable to pay the award. We affirm.
The mother also purports to appeal from that portion of the order addressing the date from which the retroactive child support should be paid. As the mother has not made any argument concerning this issue in her brief, it is deemed to have been waived.
The mother raises several other issues on appeal relating to the judgments on the underlying complaints for modification and contempt. As her appeal stems from the judge's denial of her motion for relief from the order to pay attorney's fees, her other arguments need not be discussed.
The parties have litigated several issues arising since a judgment of divorce nisi in 2008 and the appeal that followed. See Bastarache v. Bastarache, 76 Mass. App. Ct. 1132 (2010). The sole issue presently on appeal is a Probate and Family Court judge's ruling on a motion for relief from a judgment that entered on a complaint for modification originally brought by the mother in 2011. In that judgment, the judge ordered the mother to contribute $25,000 toward the father's attorney's fees, and the mother's motion for relief from that decision on fees was denied. The judge's decision to grant the father reasonable attorney's fees came after consideration of the continued turmoil between the two parties since their divorce and the conclusion that the father "should not completely bear the burden of defending against Mother's aggressive litigation." The judge's extensive fact findings on the complaint for modification reveal that she found the father the more credible party and rejected most of the mother's arguments. Finding 110 is just one of many examples: "Mother's conduct, driven by her animosity toward Father, has triggered and necessitated this litigation. Justice and equity require that she bear the burden of the fair and reasonable attorneys' fees incurred by Father in relation to defending against her complaints and pursuing his own counterclaim."
The mother's complaint requested that she be granted sole custody of the parties' children during the week, and she amended her complaint in 2012 to pursue increased child support. The father filed a counterclaim seeking sole custody of the parties' children. The mother also filed two complaints for contempt against the father.
The father had requested $47,650 in attorney's fees.
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The mother argues that the judge's denial of her motion for relief from the award of attorney's fees to the father constituted an abuse of discretion, because the father was not the prevailing party. An abuse of discretion exists "where we conclude the judge ‘made a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted). We discern no such abuse of discretion.
It is in the judge's discretion to award attorney's fees to a party defending a complaint for modification. G. L. c. 208, § 38. "The authority to award fees under § 38 extends to fees and expenses incurred in defending a complaint for modification and, in determining whether to award fees as well as in determining the amount of the award, the probate judge enjoys considerable discretion." Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 (2005). The mother contends that the judge abused her discretion in awarding the father attorney's fees while not granting the mother attorney's fees, because the judge dismissed the father's counterclaim and acted on portions of the mother's complaint for modification. Read as a whole, however, the judge's decision is clearly in the father's favor. Given her fact findings, there is clearly no abuse of discretion here in awarding attorney's fees to the father. The judge noted that prior to awarding attorney's fees to the father, she considered the factors laid out by precedent, including "the ability of the [father's] counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the [mother's] obstructionist conduct which prolonged the proceedings...." Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), quoting from Downey v. Downey, 55 Mass. App. Ct. 812, 819 (2002).
Having reviewed the record and considered the mother's argument, we conclude that it was well within the judge's discretion to award attorney's fees solely to the father. Further, the judge's detailed findings of fact demonstrated familiarity with the entire course of the divorce proceedings and with the parties' respective assets and sources of income. The mother has not shown that the judge abused her discretion in implicitly concluding that the mother had the ability to pay the fee award.
Finally, the father has requested his appellate attorney's fees and costs. Because we agree with the father that the mother's appeal was frivolous, we allow the father's request. The father shall, within fourteen days of the date of the rescript in this case, file and serve a motion for determination of the amount of his attorney's fees incurred on appeal, supported by an affidavit detailing such fees, in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The mother shall have fourteen days thereafter to serve and file any opposition.
Order denying motion for relief from judgment affirmed.