Opinion
14-P-1550
03-24-2016
PAULINE ELIZABETH LOHNES v. WARREN THOMAS LOHNES, JR.
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
The appellant Warren Thomas Lohnes, Jr. (husband) was found in contempt of court by a judge in the Probate and Family Court. He appeals from the contempt judgment as amended and from the denial of several postjudgment motions. For the reasons set forth below we vacate the amended judgment of contempt and remand the case for further proceedings.
The judge denied the husband's motions for relief from the contempt judgment and for a stay of the contempt judgment, and largely denied his renewed motion for a stay and/or for reconsideration.
The procedural background is essentially uncontested. In 2013, Pauline Elizabeth Lohnes (wife) brought a complaint for contempt alleging that the husband violated a 1999 modification agreement that provided, among other things, that the husband establish a life insurance policy or trust favoring the wife in the amount of $300,000, pay alimony upon emancipation of the minor children, and pay other monies representative of property division between the parties.
This 1999 agreement was incorporated but not merged into a judgment of modification entered in the Probate and Family Court pursuant to a complaint for modification and a complaint for contempt filed by the wife.
After a hearing at which neither the husband nor his counsel were present, the judge found the husband in contempt. In addition to ordering the husband to pay arrearages, the judgment also granted prospective relief by ordering the husband to fund an escrow account with $850,000 representing twenty years of alimony and property division payments and the $300,000 life insurance policy. The husband filed a motion for relief from judgment, which the judge denied. He then moved for a stay, which the judge also denied. After the husband's renewed motion for a stay and/or for reconsideration, the judge denied the stay but entered an amended judgment nunc pro tunc to the date of the original contempt judgment. The amended judgment removed a provision requiring the husband to pay $10,000 in prospective legal fees into the escrow and found additionally that the husband did not contest certain representations about his financial status made by the wife's counsel.
The judge found that the husband failed to pay (1) the $1,500 per month as alimony from May, 2012, to date, a total of $19,250 in alimony arrears, and (2) $17,000 in property division proceeds that were owed in $8,500 installments on January 31, 2013, and January 31, 2014. The judge furthered ordered the husband to pay $5,810 in attorney's fees and costs incurred by the wife in litigating the contempt action.
The order also included $20,000 in escrow fees. Specifically the $850,000 represents $300,000 for the life insurance policy, $170,000 in property division payments over twenty years, $360,000 in alimony over twenty years, and $20,000 for escrow services.
On appeal, the husband contests the portion of the contempt judgment that requires him to pay twenty years' worth of future alimony and property division payments. He further argues that finding him in contempt without a hearing is a violation of due process. We refer to additional facts as they pertain to our consideration of the issues.
Discussion. Evidentiary hearing. A judgment of contempt requires a finding, based on clear and convincing evidence, that the defendant engaged in "a clear and undoubted disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 852-853 (2009) (citation omitted). See Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). "[T]he judge must conclude by clear and convincing evidence that the petitioner is presently able to pay the judgment, in whole or in part, to find the petitioner in civil contempt . . . ." Birchall, petitioner, supra at 853. In the absence of waiver, an evidentiary hearing is required to provide support for the necessary findings. Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 541 (2006).
The record before us includes representations, signed by the husband's prior lawyer under pains and penalties of perjury, that he had recorded the scheduled hearing date incorrectly on his calendar, that he informed the wife's attorney by telephone on the morning of the hearing that he would attend the hearing, but that he would be late. Accordingly, the record does not permit a finding that the hearing was waived.
At oral argument on appeal, counsel for the wife confirmed the description of the telephone conversation contained in the affidavit. For reasons that are unclear on the record the judge conducted the hearing without the husband's attorney present.
The husband contests neither the existence of the 1999 agreement nor his failure to comply. However, in the absence of the husband and his counsel, the judge relied on unsworn representations by the wife's lawyer to find that the husband was able to pay the amounts that were alleged to be in default. The husband was provided no opportunity to address his burden on the issue of ability to comply. See Birchall, petitioner, supra at 850 n.13. This was an unambiguous abuse of discretion. See, e.g., Pedersen v. Klare, 74 Mass. App. Ct. 692, 697, 699 (2009). We likewise discern no viable evidentiary support on the record for the judge's finding that the husband was evading service of process by residing in a gated community.
The judge's rulings appear based in part on frustration with the husband's perceived evasiveness. In the event that evidence supporting such a conclusion is developed in the future, the judge would be entitled to take into consideration whether the husband agrees to have counsel accept service of process on his behalf.
The judgment of contempt was reversible error for these reasons. While that determination makes it unnecessary to resolve the remaining issues raised on appeal, we address certain aspects of the judgment to provide guidance on remand.
Modification of property division. "Unlike alimony, a property settlement is not subject to modification." Drapek v. Drapek, 399 Mass. 240, 244 (1987), citing G. L. c. 208, § 37, and Dumont v. Godbey, 382 Mass. 234, 238 (1981). "[I]t is important that the courts do not blur the distinction between alimony and property division. Alimony is an award for support and maintenance. . . . Property division, on the other hand, is based on the joint contribution of the spouses to the marital enterprise." Putnam v. Putnam, 5 Mass. App. Ct. 10, 15 n.6 (1977) (citation omitted). Accordingly, in the event that future proceedings determine the existence of a legally cognizable basis for modification, any resulting order may not include a change (or acceleration) of the payments representing the division of property contained in the judgment of divorce.
The 1999 agreement specifically provides that the husband's obligation to pay $8,500 annually "is not to be construed as alimony but in furtherance of a property division."
Modification of alimony. With respect to alimony, "[t]he court's power of modification under G. L. c. 208, § 37, may be exercised as to both future and past obligations and may be exercised not only in a proceeding for modification but also in a proceeding for contempt." Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233, 234-235 (1979). As stated supra, the reversal of the judgment of contempt requires the reversal of the provisions for prospective escrow payment, including alimony, that were applied as a penalty.
Furthermore, and in the absence of a judgment of contempt, no modification of alimony can be made unless the modification meets the applicable legal standards. See generally Binder v. Binder, 7 Mass. App. Ct. 751, 754, 757-758 & n.3 (1979). Where, as here, there was an upward modification of the alimony provision, such a modification is barred by the surviving agreement (see note 2, supra) unless the agreement (a) was invalid due to fraud, coercion, or being unfair or unreasonable, or (b) should not be specifically enforced due to countervailing equities such as the obligor's status as a public charge or the obligee's own failure to comply with the agreement. See id. at 758 n.3. See also Stansel v. Stansel, 385 Mass. 510, 514-516 (1982); Chin v. Merriot, 470 Mass. 527, 535 n.12 (2015). Even if the surviving agreement is overcome, then the change of circumstances test still must be met. See Binder, supra at 754. While we express no opinion whether a properly conducted evidentiary hearing on remand would result in evidence supporting an order of modification, the record currently before us lends no support for such an order, much less a justification for requiring the husband to pay a lump sum representing twenty years of alimony.,
This order represented not only a change in the timing of payments but also a material increase in their amount, considering the addition of opportunity costs applied over two decades.
It is also unknown on the record before us whether the original separation agreement calls for the payment of alimony after the husband's death should he pass before twenty years. Only an express agreement by the parties to postmortem alimony will override the general rule that alimony terminates on the obligor's death. Cohan v. Feuer, 442 Mass. 151, 154-155 (2004).
If the judge intended the remedy to serve as a means to coerce the husband into complying with the 1999 agreement, she was required to consider "the defendant's financial resources in order to arrive at a fine that will be effective but not unreasonably oppressive." L.F. v. L.J., 71 Mass. App. Ct. 813, 823 (2008) (citation omitted). We see no such consideration here. See discussion supra.
Conclusion. The judgment of contempt, as amended, is vacated. The matter is remanded for further proceedings before a different judge and in accordance with this memorandum and order.
So ordered.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 24, 2016.