Opinion
10-P-2043
12-20-2011
MARY E. KIRSON v. DAVID P. SATLOFF.
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 defendant appeals from a judgment of the Probate and Family Court awarding the plaintiff, his former spouse, attorney's fees in connection with a complaint she filed for modification of a stipulation for judgment. He argues that the judge erred in failing to conduct an evidentiary hearing with respect to the reasonableness of the amount of the fees requested, and that the amount of the fees awarded was excessive. We affirm.
Background. On April 14, 2009, in connection with a judgment of divorce, the parties filed the stipulation which provided, in pertinent part, that the father 'shall have one dinner visit per month with [the son] for a 3 hour visit on the third Saturday of each month, commencing on April 18, 2009.' It further specified that '[i]f [the son] or [the] father has an activity on a third Saturday, the 3 hour dinner visit shall occur on the 2nd Saturday of the month.'
In May of 2010, the plaintiff notified the defendant by electronic mail message (e-mail) that their son had a soccer camp scheduled for the third weekend of May, and suggested several alternative dates for the scheduled dinner. The defendant declined to reschedule and stated in an e-mail response, 'I have instructed my legal representative to work things out with your attorney. I am not, and will not, change anything the Court has mandated.' The defendant also informed the plaintiff that he felt she was wrong to have involved their son in requesting a change to the visitation order.
The plaintiff then filed a complaint for modification requesting that the dinner be rescheduled. At the hearing on the complaint, the plaintiff also requested a modification to 'get her out of the equation)' in arranging visits between the defendant and their son. The judge allowed the plaintiff's request for the limited modification of the stipulation after finding that the defendant had refused the requested change of dinner date, and determining that the defendant had been unreasonable and inflexible. She also awarded the plaintiff $4,200 in attorney's fees.
Discussion. The defendant argues that an award of attorney's fees was not warranted because the request for modification was initiated by the plaintiff. In addition, he claims that the modification that was allowed makes no material changes to the judgment. However, G. L. c. 208, § 38, gives probate judges considerable discretion to determine whether to award fees and, if so, the amount. Brooks v. Brooks, 65 Mass. App. Ct. 129, 132 (2005). Moreover, an award made by a judge pursuant to § 38 is presumed to be correct. See Ross v. Ross, 385 Mass. 30, 38-39 (1982). Here, the judge determined that an award of attorney's fees was warranted because the defendant, rather than accede to a request for accommodation by the plaintiff, became unreasonable and inflexible, forcing the plaintiff to incur legal fees. The judge's findings are substantiated in the record, therefore we discern no abuse of discretion. See Brooks, supra.
In her complaint for modification, the plaintiff also requested the appointment of a guardian ad litem to determine the son's wishes regarding the scheduling of visits with the defendant. That relief was granted.
It is clear from the record that the judge did not view the actions of the defendant in a vacuum, but, instead, assessed the issue as part of an alleged prior misuse of the judicial system. Viewed in isolation, the response of the defendant might not appear unreasonable and likely could have been resolved expeditiously by counsel for the parties. Nonetheless, we are unable to say that the judge abused her considerable discretion in addressing the issues presented.
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There also was no error in the judge's failure to conduct an evidentiary hearing on the attorney's fees issue where the defendant failed to make a timely request for a hearing and, in any case, was able to make his argument in writing and has failed to demonstrate any prejudice as a result of the judge's decision. See Silverman v. Spiro, 438 Mass. 725, 730-731 (2003). The decision whether to conduct a hearing is left largely to the discretion of the judge, id. at 731, and we find no abuse of that discretion.
Appellate attorney's fees. Pursuant to Mass.R.A.P. 25, as amended, 420 Mass. 1502 (1995), both parties have requested attorney's fees and costs incurred in this appeal. We are not convinced that the appeal and the arguments made by either party are based upon patently erroneous interpretations of the record and of settled case law, and therefore we decline to award such fees and costs to either party.
Corrected judgment on complaint for modification affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),