Opinion
15-P-382
06-09-2017
Angela M. GRADELESS-BLASKO v. Ryan A. BLASKO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a judgment of divorce nisi dated April 27, 2015; from a judgment of contempt of even date; and from the order denying his motion for relief from a contempt judgment dated April 1, 2014. We affirm.
Discussion. 1. Divorce judgment. We begin by addressing the husband's procedural challenges to the divorce trial. The husband rested his case without calling the wife as a witness, and the wife then rested without calling any witnesses. The judge, who has wide latitude with respect to the management of the trial, did not abuse his discretion by not permitting the husband to reopen his case. See Drake v. Goodman, 386 Mass. 88, 92 (1982) ; Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 805 (2002). In any event, the husband has not explained precisely what he would have proven by questioning the wife or how he was prejudiced by his inability to do so, arguing in only the vaguest terms that he was deprived of "the ability to cross-examine her and to give the court accurate information about the important financial issues."
We are more troubled by the judge's verbatim adoption of the wife's proposed findings, which suggests that the judge did not conduct a thorough review or exercise independent judgment. We have consistently criticized this practice. See Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 416 (1980) ; Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003). However, because the record supports the findings, we are able to conclude that the judge did not clearly err or abuse his discretion in adopting them. See Markell, supra at 431-432; Care & Protection of Olga, supra at 824.
The husband suggests that the fact that the judge's findings were dated April 27, 2015, even though the parties were not required to submit their proposed findings until April 29, suggests bias or ex parte communications. In fact, neither party's proposed findings were docketed, but the copy of the wife's proposed findings included in the record indicates service on April 29. The divorce judgment and findings were entered on May 4, 2015. In our view, these events are more indicative of ministerial error than foul play.
The husband also faults the judge for failing to make express findings regarding the application of the G. L. c. 208, § 34, factors. See Pestana v. Pestana, 74 Mass. App. Ct. 779, 781-782 (2009). While the findings are not exemplary in this regard, we see no utility in remanding the case for further proceedings or findings.
"We will not reverse a judgment with respect to property division unless it is ‘plainly wrong and excessive.’ " Zaleski v. Zaleski, 469 Mass. 230, 245 (2014), quoting from Baccanti v. Morton, 434 Mass. 787, 793 (2001). The husband maintains in his brief that "it would have been fair and reasonable to divide equally all the equity in the marital home and the retirement account of Husband, as all was a result of the 'implied partnership' of the marriage and all of the marital estate resulted from that partnership." The judge indeed endeavored to order an even distribution of the home and the husband's retirement account. Express findings on the § 34 factors, merely to justify an even division, would be superfluous in this case.
More specifically, the husband attacks valuation of the marital home and the judge's failure to factor in a loan against his 401(k) account, which was used to make a down payment on the home. We discern no reversible error. At one point the judge found that the property "has $8,950.00 in equity pursuant to the Husband's financial statement filed on the date of trial and which includes both mortgages." The judge allocated one-half of this to the wife ("the Wife shall retain the equity in the home in the approximate amount of $4,475.00"). Elsewhere, the judge found that "the house has no equity." Based on the husband's handwritten annotations to his financial statement made during the course of the trial, the equity in the house was a negative$8,900 (fair market value of $450,000, minus first mortgage balance of $420,000, minus second mortgage or home equity loan balance of $38,900). In prior proceedings, the husband had testified that the home had no equity value and that he "wanted it to go into foreclosure." In short, the judge did not clearly err or abuse his discretion where the husband's monetary contribution to the home was part of the "implied partnership" of the marriage, and the home itself ultimately had no value to distribute.
The judge also divided the husband's 401(k) account evenly, but then subtracted from the husband's share amounts the husband owed to the wife as the result of a prior contempt judgment, child support arrears, and other outstanding obligations. The judge further noted that the husband's share would be insufficient to satisfy his outstanding obligations to the wife. Again, the husband argues that the judge erred by failing to account for the outstanding loan, which he testified at trial was approximately $37,000. To the extent the loan should have been subtracted from the value of the 401(k) account before it was distributed—and surely the fund manager will not distribute the funds without first doing so —there would be even less money left in the husband's one-half share to satisfy his debts to the wife. Any error ultimately inures to his benefit.
The wife contends that the qualified domestic relations order (QDRO) ultimately entered by a different judge did in fact account for the outstanding loan amount. The QDRO to which she refers is reflected on the docket, but the order itself has not been included in the record. Accordingly, we have no way of evaluating this representation.
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Finally, a qualified domestic relations order (QDRO) was proper to enforce the husband's obligations to the wife, including attorney's fees. See Silverman v. Spiro, 438 Mass. 725, 732-736 (2003) (judges have authority to enter QDROs relating to child support, alimony, marital property, and attorney's fees incurred to establish party's right to such payments).
2. April 27, 2015, contempt judgment. The husband contends that the judge erred by finding him in contempt without proof that he wilfully failed to comply with the court orders, claiming that his disobedience was due to an inability to pay. He also claims that the contempt judgment was punitive rather than remedial. We disagree.
"[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 532 (2016), quoting from K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). The defendant must also have the ability to comply with the order. Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013). However, "our cases do not require a clear showing of actual intent to disobey a court order to support a judgment of civil contempt." Hoort v. Hoort, 85 Mass. App. Ct. 363, 367 (2014).
A temporary order required the husband to pay the wife thirty-three percent of income received above his regular salary within seven days of receiving it, to be accompanied with documentation in the form of unredacted pay stubs. The wife testified that she did not receive any of the required payments or documentation. The husband testified that he was aware of the order, that he made only one of the required payments, and that he made an intentional decision not to provide the documentation. He also testified that his gross income for 2013 was more than $280,000 and that he had earned more than $230,000 through mid-October of 2014. The evidence was sufficient for the judge to find disobedience of a clear, unequivocal command, with which the husband was able to comply.
Moreover, judges may use imprisonment, or the threat of imprisonment, for the remedial purpose of civil contempt: "to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant." Birchall, petitioner, 454 Mass. 837, 848 (2009), quoting from Sodones v. Sodones, 366 Mass. 121, 129-130 (1974). See Aroesty v. Cohen, 62 Mass. App. Ct. 215, 219-220 (2004) (sentence of confinement terminable upon payment of sums owed in divorce proceeding indicative of civil contempt). Given the husband's repeated failures to comply with court orders, the threat of incarceration to insure "compliance with this and other Court orders" was appropriate.
3. Order denying motion for relief from April 1, 2014, contempt judgment. The husband argues that the April 1, 2014, contempt judgment, requiring him to sign over the marital home to the wife, was improper because it is not one of the remedies for contempt authorized by G. L. c. 215, § 34. An appeal from an order denying a motion for relief from a judgment does not subject the validity of the underlying judgment to appellate review. See Nolan v. Weiner, 4 Mass. App. Ct. 800, 800 (1976). Moreover, because the husband raises this claim for the first time on appeal, we decline to address it. See Karellas v. Karellas, 61 Mass. App. Ct. 716, 724 (2004).
Order denying motion for relief from April 1, 2014, contempt judgment affirmed.
Judgment of divorce affirmed.
Judgment of contempt entered April 27, 2015, affirmed.