Opinion
No. 11–P–1430.
2012-06-22
Tatiana V. BRENNICK v. William F. BRENNICK.
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Tatiana V. Brennick's (wife) counsel appeals from a Probate and Family Court judgment entered on May 24, 2011, ordering her to pay $500 personally for bringing what the judge found to be a frivolous complaint for contempt against William F. Brennick (husband).
Wife's counsel raises three issues on appeal. First, she argues that G.L. c. 208, § 38, applies only to parties and not their counsel and that, accordingly, the judge erred in relying on that statute to assess fees against her personally. Second, she argues that our decision in Krock v. Krock, 46 Mass.App.Ct. 528 (1999), does not stand for the proposition that fees can be assessed against a party's counsel personally. Third, she argues that the judge erred in finding that the contempt complaint was frivolous. We affirm.
The wife has withdrawn her appeal from the adverse ruling on her contempt complaint.
We address the first two arguments together. It is true that the judge, in response to counsel's motion, stated that she had imposed fees pursuant to G.L. c. 208, § 38, citing to Krock v. Krock, supra. A Probate and Family Court judge has authority under § 38 to award legal fees and costs to a party who has been required to defend against a frivolous contempt action, provided that “the amount awarded is not incommensurate with an objective evaluation of the services performed.” Id. at 533, quoting from Ross v. Ross, 385 Mass. 30, 38–39 (1982). We need not consider whether § 38 also permits the assessment of fees against counsel (as opposed to their party clients) because it is well established that judges have inherent power to sanction attorneys personally as “necessary to secure the full and effective administration of justice.”
Beit v. Family & Probate Ct. Dept., 385 Mass. 854, 859 (1982) (citation omitted). We understand the judge's order to fall well within the parameters of her inherent authority in this regard. We see no abuse of discretion in the judge's determination to impose a moderate sanction against wife's counsel in this case. See WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass.App.Ct. 229, 235 (2005) (judge's award of attorney's fees is reviewed for abuse of discretion and reversed only if clearly erroneous). The judge found that the husband satisfied his obligation to make the $65,000 payment within a reasonable time and in a reasonable manner.
We may affirm the judge's ruling on different grounds. See Hawthorne's, Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 210 n. 6 (1993) (appellate court may affirm judgment on grounds different from those advanced by judge below).
In addition, the judge found that because the agreement dated December 14, 2010, (settlement agreement) did not require the husband to remove a previously recorded declaration of homestead that was known to all parties, he had not violated the terms of the settlement agreement when he recorded the mortgage to the wife. It is not our role to second-guess those findings, all of which are supported by the record.
The judge explained her rationale as follows: “The Court was presented with evidence from Sovereign Bank that [husband] took steps on March 15, 2011 to send a $65,000 payment to [wife]. The Court was also presented with evidence that Sovereign Bank submitted said payment to [wife's] account on March 18, 2011. If in fact Sovereign Bank had a delay in the deposit into [wife's] account, it was not within [husband's] control. The Court finds that [husband] has complied with order to provide a second mortgage to [wife] within the same time period to secure the remaining payments amounting to $65,000. There was no obligation upon [husband] to remove any Declaration of Homestead. Therefore, [husband] is in compliance with the agreement of the parties.”.
For similar reasons, we also discern no abuse of discretion in the judge's conclusion that the wife's contempt complaint was frivolous. The wife's counsel filed the contempt complaint on March 17, 2011, even though she had been informed by the husband that payment had been initiated on March 15, 2011, and was anticipated to be deposited in the wife's account by March 18, 2011. Wife's counsel concedes that payment was received on March 22, 2011, and there is no explanation as to why she pursued that part of the contempt complaint after that date. As to the issue of the mortgage to the wife, the record supports the finding that the settlement agreement did not explicitly require the husband to remove any declaration of homestead. “In order to find a [party] in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience.” Caveney v. Caveney, 81 Mass.App.Ct. 102, 117 (2012). Nickerson v. Dowd, 342 Mass. 462, 464, (1961).
For these reasons, the judgment entered May 24, 2011, is affirmed .