Opinion
No. 11–P–1193.
2012-05-29
Beverly L. CHECHILE v. Dennis B. CHECHILE.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from the November 3, 2010, order on the wife's August 24, 2010, complaint for contempt.
The entries on the docket sheet included in the record appendix stop on the date of the filing of the served contempt summons.
The parties were married in 1974 and had three children. On April 12, 2007, assisted by a mediator, but without representation by counsel, they entered into a separation agreement, in which the wife waived alimony and the parties specified equitable distribution of assets as one of their objectives. The section entitled “Retirement Accounts” provided, in part, that the husband would execute a Qualified Domestic Relations Order (QDRO) transferring one-half of his retirement account to the wife. On April 19, 2007, the parties filed a joint petition for divorce, the separation agreement, the financial statements, and other related materials.
A divorce hearing was held on June 18, 2007. The parties appeared pro se. With the financial statements before him, the judge questioned the parties about various aspects of the agreement, including health insurance, college costs, the husband's car allowance, vehicles, the marital home, the husband's 401K account, bank accounts, waiver of alimony, and tax exemption. The judge told the parties that “it's been a long-term marriage. You are entitled to relatively equal solutions [ sic ].”
During the hearing, the husband told the judge he was going to transfer one-half of his retirement account to his wife. Later in the hearing, the wife sought clarification by asking whether the “retirement account” included the “Tighe & Bond retirement account.” Follow-up questions by the judge established that the husband's “retirement account” included both “a 401K” account and a “Tighe & Bond employee stock plan worth $42,000” (stock account). The husband expressly agreed to either include the stock account in a QDRO or write a check to the wife for one-half of the stock account amount. On May 18, 2007, the judge issued findings and an order of approval under G.L. c. 208, § 1A.
On August 24, 2010, the wife filed a complaint for contempt on the ground that the husband failed to create a QDRO distributing the stock account. There is nothing in the record appendix to indicate that the husband answered the complaint. A hearing on the wife's complaint was held on October 26, 2010. Both parties were now represented by counsel and the hearing proceeded on representations of counsel. In the November 3, 2010, order the judge found the husband not to be in contempt because the language of the separation agreement was sufficiently general. However, he went on to order the payment of half of the stock account to the wife: “[U]pon review of the transcript of the hearing, it is clear that the parties agreed to divide the Stock account equally, [and] have not done so.”
The judge ordered the transfer of one-half “of the value of said account ($21,386.50),” as well as “one-half (1/2) of any increase in value of said account since September 30, 2006, except for any increase in value attributable to any contributions to the account by or on behalf of the defendant made since May 18, 2007.”
On appeal, the husband argues that granting a remedy under a complaint for contempt while finding the defendant not guilty of contempt constitutes an abuse of discretion. This argument is not supported by citation to legal authorities and is without merit. See Freidus v. Hartwell, 80 Mass.App.Ct. 496, 502 (2011), citing Colorio v. Marx, 72 Mass.App.Ct. 382, 389 (2008) ( “although husband not adjudged in contempt, judge properly could enforce parties' separation agreement to ensure that wife received her agreed share of marital estate”).
The husband also questions whether the parties “truly agreed” to the division of the stock account. “Where contract language employed by the parties leaves their obligations ... in doubt, the court will place itself in the position occupied by the parties and will examine the subject matter of the agreement and the language employed, and will attempt to ascertain the objective sought to be accomplished by the parties.” Colorio v. Marx, 72 Mass.App.Ct. at 387 (internal quotation marks omitted).
In this case, the judge was warranted in treating the wife's complaint for contempt as a motion for clarification. The judge acted properly in concluding as a matter of law that the language of the separation agreement was not specific on the issue of the disposition of the husband's employee stock account, and that therefore it was appropriate to consider extrinsic evidence in order to determine the intent of the parties. Ibid. The statements made by the husband during the hearing before the court on June 18, 2007, are unmistakably clear and supply an ample basis for the judge's conclusion that “the parties agreed to divide the stock account equally.”
The case of Carpenter v. Carpenter, 73 Mass.App.Ct. 732 (2009), relied on by the husband, does not support his position. There, the wife sought the division of the husband's pension some twenty years after the divorce. The case turned on the judge's assessment that the husband testified credibly in the postdivorce action that the parties had agreed at the time of the divorce that he would keep his pension.
The November 3, 2010, order is affirmed.
The wife's request for appellate attorney's fees and costs is allowed. She may submit a petition for fees and costs, together with supporting materials, within fourteen days of the date of the rescript of this decision. The husband shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004).
So ordered.