Opinion
13-P-1620
12-10-2014
MONIQUE HAGER v. MICHAEL HAGER.
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
The appellant, Michael Hager (husband), appeals from an amended judgment of contempt of the Probate and Family Court which orders him to pay to his former wife twenty percent of bonus cash payments that he received from his employer from 2009 to 2012. The husband contends that components of his bonuses during those years were not cash and were not subject to the terms of a divorce separation agreement. We affirm the order compelling the husband to pay $28,264 but reverse the finding of contempt and the allowance of attorney's fees.
1. Background. The husband and wife were married in 1985 and produced two children during their marriage. They divorced in 1998 after entering into a separation agreement, which merged into the divorce judgment nisi. Under the separation agreement, the husband must pay as child support twenty percent of any "cash bonus monies" from his employment.
Paragraph 6 of the 1998 agreement states: "As additional child support, the Husband shall pay direct to the Wife upon his receipt of same Twenty (20) percent of the gross amount of any cash bonus monies paid to Husband from his employment from time to time received." A judgment of modification in 2010 left this provision intact: "The additional provision related to child support in paragraph six (6) of the Separation Agreement shall remain in full force and effect. The defendant shall pay 20% of any and all cash bonuses received as additional child support."
The husband's testimony indicated that in 2009, he received a total bonus of $61,231 from Northeast Utilities Service Company (Northeast Utilities) in the form of incentive compensation, retention payments, and restricted shares of stock. He paid twenty percent to the wife only on the incentive compensation. The husband testified that the retention payments were not bonuses but rather "lump-sum base pay increase[s] just for the year so you don't leave during the year" and that the restricted shares of stock were placed in an account for him by his employer.
Decimal places representing cents on the dollar are omitted throughout this memorandum and order.
In 2010, the husband received $80,406 in bonus payments in three parts, and he paid the required twenty percent on the incentive compensation only, and not on the retention payment or restricted shares. In 2011, the husband received $83,903 in bonus payments in two parts, and he paid the twenty percent on the incentive compensation only, and not on the restricted shares. Finally, in 2012 the husband received $76,873 in bonus payments in two parts, and he paid the twenty percent only on the incentive compensation, and not on the restricted shares.
The Northeast Utilities records from 2009 do not itemize the husband's total bonus by category. For 2010, however, the records list incentive compensation under the column heading "BONUS," retention payments under the heading "RETEN. CASH," and restricted shares under "RESTRICTED STOCK/CASH." For 2011 and 2012, the headings are the same, except that the husband received no retention payments. On direct examination, the husband did not have an explanation for why the column headings for the retention payments and restricted shares used such language.
Of the four years in dispute (2009, 2010, 2011, and 2012), the husband received retention payments as part of his total bonus compensation from Northeast Utilities only during 2009 and 2010. In 2011 and 2012, any Northeast Utilities bonus came only in the form of incentive compensation and restricted shares of stock.
For all four years, the judge found that the Northeast Utilities retention payments and restricted shares were "cash bonus" payments under the separation agreement. The husband was ordered to pay $28,264, plus $4,343 in attorney's fees.
2. Discussion. The husband argues that the Northeast Utilities retention payments and restricted shares of stock are not "cash bonus" payments under the provision of the separation agreement that requires him to pay twenty percent in child support. He contends that the judge abused her discretion in finding that his bonuses for 2009, 2010, 2011, and 2012 from Northeast Utilities consisted entirely of cash.
In a domestic relations context, a judge has significant discretion when characterizing bonus payments.
"In our ever complex times, various assets, e.g., pensions, stock options, bonuses, contingencies, are difficult to categorize and value. Each case, each asset is different and a 'one size fits all' rule is both impractical and potentially unfair."Brower v. Brower, 61 Mass. App. Ct. 216, 221-222 (2004).
For civil contempt, "there must be a clear and unequivocal command and an equally clear and undoubted disobedience." Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). The plaintiff carries the burden of proof by clear and convincing evidence. Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013). A finding of contempt is reviewed for abuse of discretion. Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 443 (1997).
Here, while a close call, the judge did not err by ordering the husband to pay $28,264 as additional child support with interest. The Northeast Utilities printouts, introduced in evidence by agreement, could reasonably be interpreted by a fact finder to reflect that certain payments, characterized by the employer as "RESTRICTED STOCK/CASH" and "RETEN. CASH," were received by the husband on an irregular basis and were cash payments. See Brower v. Brower, 61 Mass. App. Ct. at 221-222. The judge could properly find that these payments constituted "cash bonus monies" within the meaning of the parties' separation agreement and the divorce judgment. That the husband testified otherwise or that other findings are possible demonstrates neither that the judge's findings are plainly wrong, Culhane v. Foley, 305 Mass. 542, 543 (1940), nor that the judge's interpretation is infirm.
Given the ambiguity of the employer's characterizations, and the paucity of record evidence explaining either the content of the payments at issue or the parties' probable intent in separation agreement paragraph 6, we are unable to conclude that the record supports a finding that the husband's failure to remit twenty percent of those payments noted above constituted an "undoubted disobedience" of a "clear and unequivocal command." Compare Cooper v. Keto, 83 Mass. App. Ct. at 807-808.
The portions of the amended judgment of contempt that declare the husband to be in contempt and order him to pay $4,343 in attorney's fees are reversed. In all other respects, the judgment is affirmed.
The wife's request for appellate attorney's fees and costs is denied.
So ordered.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: December 10, 2014.