Opinion
14-P-1368
03-11-2016
PAULETTE LAMPARELLI v. JOSEPH N. LAMPARELLI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), 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 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 1:28
Joseph N. Lamparelli (Joseph) appeals from several financial aspects of an amended judgment of divorce nisi, subsequent contempt judgments against him, and other rulings of the Plymouth Probate and Family Court. Our review of his appeal is hampered by Joseph's failure to include the transcript from the twelve-day divorce trial. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). We affirm.
Because the parties share the same surname, we refer to them by their first names.
1. Special discovery master. Joseph contends the judge erred in allowing the court-appointed discovery master to file a complaint for contempt because he was not on the S.J.C. Rule 1:07 list or the Plymouth Probate and Family Court list for such fee-generating appointments. However, Joseph did not appeal from the April 17, 2009, order appointing the discovery master. He raised his challenge to the discovery master's appointment for the first time more than two years after the appointment in his postjudgment motions. Therefore, we decline to consider his untimely arguments.
2. Division of marital assets. Pursuant to G. L. c. 208, § 34, a judge has "broad discretion to divide marital property equitably." Brower v. Brower, 61 Mass. App. Ct. 216, 221 (2004), quoting from Dalessio v. Dalessio, 409 Mass. 821, 830 (1991), S.C., 413 Mass. 1007 (1992). A judgment of property division is not to be reversed unless it is "plainly wrong and excessive." Williams v. Massa, 431 Mass. 619, 631 (2000). Joseph raises several challenges to the division of the marital property. We address each claim in turn.
a. Insufficient "liquid" assets. Joseph contends the judge did not award him sufficient liquid assets to pay Paulette $1.25 million within thirty days of the divorce judgment. We disagree. The judge made 280 findings of fact, several of which pertained to the value of Joseph's partial ownership interest in multiple family businesses and real property. The judge found that before the divorce litigation, Joseph received between $350,000 and $450,000 in yearly distributions from the family business. He also found there was a "serious likelihood" that Joseph's brother, John, stopped making these distributions due, in part, to this divorce litigation. The judge further determined that John withheld $1.125 million from the business two days after the first day of trial and John remains in possession of the uncashed checks. Joseph does not contest the judge's findings or his consideration of all the relevant G. L. c. 208, § 34, factors. "The judge's equitable division of property flowed rationally" from his findings and fell "well within the bounds of [his] discretion." Williams v. Massa, supra at 632-633.
b. Sale of the marital home. The judgment of divorce, as amended, provides that Joseph would continue to reside in the marital home with the parties' three children. It further provides for the sale of the marital home "upon the youngest child's graduation from high school or attaining the age of [eighteen] whichever occurs first in time." See L.J.S. v. J.E.S., 464 Mass. 346, 348 (2013) (containing similar provision). As security, Joseph was ordered to execute a mortgage and promissory note in the amount of $1.75 million in favor of Paulette. In the event the sale price exceeded $1.75 million, Paulette would receive one hundred percent of the net proceeds. The judge counterbalanced this provision with the lack of provision for the award of multiple-year interest to Paulette on the stipulated value of the home. Mindful of the judge's broad discretion to divide the marital estate equitably, we see no abuse of discretion. See Brower v. Brower, 61 Mass. App. Ct. at 221.
The parties' youngest child was born in June, 1997.
The parties stipulated that the value of the marital home was $1.75 million.
Subsequently, Joseph was found in contempt for failing to execute the promissory note and mortgage.
If the sale of the home generates less than the stipulated value, Joseph would be responsible to pay Paulette the difference at the closing to ensure she receives a total amount of $1.75 million at that time.
c. Contempt judgment. Joseph further asserts he should not have been held in civil contempt for failing to pay Paulette $1.25 million because the judgment did not specify whether payment was due within thirty days of the issuance of the judgment, on February 25, 2011, or within thirty days of its docketing, on March 11, 2011. "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 838-839 (2009). Assuming, without deciding, that payment was due thirty days from the later March 11, 2011, date, Joseph had not complied by the April 26, 2011, contempt hearing date. Accordingly, we see no merit to the claim that the judge erred in finding Joseph in contempt.
Subsequent to the judgment, Joseph sought a stay of the two findings of contempt (for failure to pay Paulette the lump sum and failure to pay the discovery master his fees). The stay was denied by the trial judge and subsequently by a single justice of this court.
d. Attorney's fees. Joseph asserts the judge improperly ordered him to contribute towards Paulette's legal fees because she did not request attorney's fees in her complaint. Even in the absence of a specific request, "[t]he probate judge has discretion in awarding attorney's fees in appropriate circumstances." Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), citing G. L. c. 208, § 38. In his amended findings, the judge found that Joseph "used joint assets during this litigation as if they were his own private account," and that "counsel for [Paulette] had the far more difficult task of obtaining financial information and ascertaining the assets and income of [Joseph]." In light of these findings, we see no abuse of discretion in the award of attorney's fees.
3. Alimony. A judge has broad discretion in awarding alimony. Heins v. Ledis, 422 Mass. 477, 480-481 (1996). "[T]he statutory authority of a [judge] to award alimony . . . [is] grounded in the recipient spouse's need for support and the supporting spouse's ability to pay." Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). The recipient spouse's standard of need "is measured by the 'station' of the parties -- by what is required to maintain a standard of living comparable to the one enjoyed during the marriage." Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985).
Joseph claims it was error for the judge to apply the MBA/BBA Joint Task Force "one-third" differential formula in awarding alimony to Paulette. Here, unlike in Zeghibe, the judge made detailed and specific findings which adequately addressed the recipient spouse's need for support. See Zeghibe v. Zeghibe, 82 Mass. App. Ct. 614, 619 (2012) (ordering modification of alimony award and concluding "the judge's findings fail[ed] adequately to address and explain the wife's need for support"). In a forty-eight page memorandum, the judge made factual findings reflecting his consideration of all of the G. L. c. 208, § 34, factors. As evidenced by his rationale, the judge did not rely solely on the calculation of one-third of Joseph's income in awarding alimony. He also considered the relative income and needs of the parties, Joseph's status as custodial parent, and "the need for a minimum award of child support from [Paulette]." Under these circumstances, we cannot determine the judge's award of alimony was "plainly wrong and excessive." Adlakha v. Adlakha, 65 Mass. App. Ct. 860, 864 (2006), quoting from Redding v. Redding, 398 Mass. 102, 107 (1986).
4. Sanctions and gatekeeper order. Joseph also claims the judge erred in sanctioning successor counsel by prohibiting him from filing "any further pleadings" without the judge's prior written approval. We disagree. A judge has discretion to control a proliferation of filings and to limit pleadings to those with prior approval of the court. See Camoscio v. Hodder, 409 Mass. 1001, 1001, cert. denied, 500 U.S. 906 (1991) ("[A]fter a hearing and a determination that [the plaintiff] had filed a multiplicity of actions of an insubstantial nature, a judge of the Superior Court entered an order requiring the approval of a judge . . . before the court clerk could properly accept any paper filed in any action on behalf of [the plaintiff]" and "[a] panel of the Appeals Court affirmed that order").
We reject Joseph's contention that the judge was impermissibly biased against his out-of-State counsel. Our thorough review of the hearing transcript demonstrates that, when viewed in context, the contested remarks were appropriate. Joseph represented himself at the March 31, 2011, hearing. Successor counsel did not file an appearance until nearly a month after that hearing. The motions filed by such counsel were not scheduled to be heard on March 31, 2011. It was in this context that the judge said he was "not interested at all in this lawyer from Maine who has filed things because they're not before the Court yet. I am interested in you . . . ."
The docket reflects that counsel filed numerous postjudgment motions over the course of several months. On one date alone counsel filed "three motions that contained over 100 pages" and "t[ied] up the fax machine for most of the morning." Where, as here, counsel's postjudgment filings contributed greatly to the record appendix of over 2,000 pages, we see no abuse of discretion in such an order.
Notably, while the judge initially entered an order which prohibited counsel from filing "any further pleadings" without his prior written approval, he subsequently vacated his gatekeeper order sua sponte and issued explanatory and corrective orders.
5. Miscellaneous arguments. Joseph's remaining "arguments" consist of assertions that are either unsupported by materials in the record before us or do not rise to the level of reasoned argument contemplated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). For example, Joseph asserts his counsel's "constitutional due process rights of notice and an opportunity to respond or be heard before being financially sanctioned" were violated. Following this claim, his citation in a footnote to a series of cases without reference to the record, does not constitute reasoned appellate argument. Joseph has similarly failed to support his other claims of error with reasoned argument and citation to pertinent materials in the record. We therefore decline to consider any such additional claims. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993).
Amended judgment of divorce nisi affirmed.
Postjudgment orders affirmed.
Judgments of contempt affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 11, 2016.