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Morgan v. Morgan

Appeals Court of Massachusetts.
Jun 19, 2012
969 N.E.2d 186 (Mass. App. Ct. 2012)

Opinion

No. 11–P–291.

2012-06-19

Stephen J. MORGAN v. Karen E.V. MORGAN (No. 1).


By the Court (MILLS, FECTEAU & HANLON, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The former husband appeals from a judgment, entered on January 20, 2010, in favor of his former wife finding the wife not to have been in contempt, as alleged in the husband's December 18, 2009, complaint for contempt. In particular, the husband avers the judge erred in finding that (1) the real estate taxes on the marital home were not “operating expenses,” (2) the wife's wilful failure to pay the water bills did not constitute a contemptuous action, and (3) the wife did not otherwise violate Supplemental Probate Rule 411. We affirm.

In addition to the deficiencies apparent in the appendix, our review leads us to conclude that these contentions are without merit. In a contempt proceeding, the plaintiff has the burden to show, by clear and convincing evidence, that the defendant wilfully disobeyed a clear and unequivocal command of the court. Birchall, petitioner, 454 Mass. 837, 853, 913 N.E.2d 799 (2009). Upon review of the record and hearing held below, the husband, who initiated this complaint, failed to meet this burden. 1. The husband asserts that on November 2, 2009, the wife failed to pay $4,329.34 in property taxes in an alleged direct violation of the December 20, 2006, temporary order derived from the husband's divorce complaint. This order provided, in part, that the wife “shall pay the operating expenses on the marital home during her occupancy that is granted to her through the Abuse Prevention Order issued on December 6, 2006 from Westborough District Court.” The wife, in turn, disputes that the term “operating expenses” included real estate taxes. At a hearing held on January 19, 2010, the judge concluded that “[t]he defendant is not in contempt of court for willfully failing to pay the ‘operating expenses' on the real property located at 6 Wyndermere Drive, Southbough, MA. The plaintiff failed to show through clear and convincing evidence that ‘operating expenses' included payment of the real estate taxes on the real property.”

The husband's record appendix is deficient in various respects, including, for example, his failure to include the wife's answer and her motion to dismiss. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84, 653 N.E.2d 595 (1995). Secondly, the husband's appendix includes materials that do not appear to have been of record for consideration of his December 18, 2009, complaint, as there is no indication that all of the materials in the appendix were before the judge at the January 19, 2010, hearing. Finally, the pages of the record appendix are not consecutively numbered as required by Mass.R.A.P. 18(d), as amended, 370 Mass. 919 (1967). The fact that a party appears pro se does not excuse failure to comply with the requirements of appellate procedure. Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 696 N.E.2d 130 (1998).

A judge who has been involved in the prior stages of a divorce proceeding may clarify the meaning of the provision in the earlier order. See Pedersen v. Klare, 74 Mass.App.Ct. 692, 699, 910 N.E.2d 382 (2009). Here, the judge who considered the present contempt complaint was the same judge who was involved in the case from 2006 and who issued the above temporary order. Moreover, following the issuance of the temporary order on December 6, 2006, the husband did not seek clarification. While the husband avers error in this determination, his failure to include any citation to authority to support the proposition that the phrase “operating expenses” necessarily includes real estate taxes is fatal.

2. Although the husband fails to argue it in his brief accompanying his complaint, the husband nevertheless asserted at the hearing that the wife failed to pay the water bill. In her written decision, the judge addressed this argument, concluding in part, that the husband “failed to show through clear and convincing evidence that [the wife] willfully failed to pay the water bill.” First, we note with regard to this specific claim that the husband's appeal cannot succeed where the husband did not “support the issues raised with legal authority, as mandated by Mass.R.A.P. 16(a)(4).” Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86, 653 N.E.2d 595 (1995). Even if the husband's challenge to this ruling were properly before us, deference must be given to the the judge's crediting of the wife's testimony that she paid the water bill. See Downey v. Downey, 55 Mass.App.Ct. 812, 816, 774 N.E.2d 1149 (2002).

3. The husband further alleges, based on his interpretation of the wife's financial statement, that the wife acquired additional debt in violation of Supplemental Probate Rule 411. The judge dismissed this count “for failure to state which court order was allegedly violated by the defendant.” After conducting an independent review of the complaint, we agree.

The January 20, 2010, judgment on the husband's December 18, 2009, complaint for contempt is affirmed.

Judgment dated January 20, 2010, affirmed.




Summaries of

Morgan v. Morgan

Appeals Court of Massachusetts.
Jun 19, 2012
969 N.E.2d 186 (Mass. App. Ct. 2012)
Case details for

Morgan v. Morgan

Case Details

Full title:Stephen J. MORGAN v. Karen E.V. MORGAN (No. 1).

Court:Appeals Court of Massachusetts.

Date published: Jun 19, 2012

Citations

969 N.E.2d 186 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1102