Opinion
No. 12–P–167.
2013-01-28
Donna M. MURPHY v. Joseph MURPHY.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife purports to appeal from an order of the Probate and Family Court that denied the award of interest on a money judgment that was part of an equitable division of the marital estate; denied the award interest on “contempt” judgments; and denied the award attorney's fees and costs. We reverse in part, and affirm in part.
Background. This cases arises from an extensively litigated divorce between Donna Murphy and Joseph Murphy. A judgment of divorce nisi was issued on April 13, 2010. In relevant parts, it provided that the husband was to transfer his interest in the marital home in Medford to the wife, and that as long as he was compliant with the terms of the judgment, she would be responsible for the payment of the mortgage on that property. It also provided that the husband was to pay the wife $160,000 within ninety days to accomplish an equitable division of assets. On July 14, 2010, the wife filed a complaint for contempt alleging that the husband violated the divorce judgment by failing to pay the $160,000 and failing to transfer his interest in the Medford estate. The wife requested $1,565 in attorney's fees pursuant to G.L. c. 215, § 34A. On August 12, 2010, the judge ordered the husband to sign the deed by August 26, 2010, with $100 a day fine for every day thereafter that he failed to do so.
On March 10, 2011, the wife filed a motion to clarify the responsibilities of the husband with respect to the judgment and requested at least $8,376.50 in attorney's fees and costs pursuant to G.L. c. 208, § 38. On March 11, 2011, judgment was rendered on the first contempt complaint. The judge found that the husband failed to pay the $160,000 and ordered him to pay the mortgage arrears on the Medford house and to pay $5,000 in attorney's fees to the wife. There was no express finding that the husband was in contempt. The wife did not appeal this judgment. On March 23, 2011, the wife filed a motion to alter or amend the judgment. She requested that the judge order the clerk to add interest pursuant to G.L. c. 235, § 8, to the $160,000 and order the husband to pay the $100 a day sanctions, which was now at $7,100. The judge denied this motion on July 14, 2011.
In an undated and unsigned memorandum in support of her July 14, 2010, complaint, the wife argues for interest on the $160,000 pursuant to G.L. c. 235, § 8, and enforcement of the court-imposed sanctions.
On June 15, 2011, the wife filed a second complaint for contempt. In that complaint (viewed in conjunction with the memorandum in support of the complaint), she alleged: that the husband still had not paid the $160,000; that she had to pay $20,171.93 to prevent foreclosure on the Medford home because the husband had not made any mortgage payments; that the husband owed other mortgage obligations; and that he should pay the wife's $3,772.50 attorney's fees and costs pursuant to G.L. c. 215, § 34A. On July 14, 2011, the judge expressly found the husband in contempt. In that judgment, he granted the wife's requests, except as to attorney's fees, costs, and interest.
The husband filed no appellate brief.
Discussion. 1. Statutory interest pursuant to G.L. c. 235, § 8. The wife argues that G.L. c. 235, § 8, and G.L. c. 231, § 6C, together, require that twelve percent interest should have been automatically applied to the $160,000 money judgment issued on April 13, 2010.
While we agree with the wife that interest should have been automatically awarded to that judgment, we disagree that the rate should be twelve percent. General Laws c. 235, § 8, states that “[e]very judgment for the payment of money shall bear interest from the day of its entry ...” (emphasis added). First, we pause to note that adding a postjudgment interest to a monetary award is an “automatic, ministerial task” of the clerk and occurs regardless of whether a judge instructs the clerk to add the interest or not. See Osborne v. Biotti, 404 Mass. 112, 117 (1989). Further, in Karellas v. Karellas, 54 Mass.App.Ct. 469, 472 (2002), we held that an award of $100,000, as part of an equitable division of a marital estate, began to accrue interest on the date of the judgment.
The wife argues that the clerk's function in this regard is nondiscretionary.
However, “[u]nder G.L. c. 235, § 8, the rate of interest is computed using the same rate as provided for prejudgment interest. Where, as here, there is no statutory prejudgment rate of interest, the six percent standard statutory rate found in G.L. c. 107, § 3, applies.” Id. at 474. Because there was no prejudgment rate of interest, a rate of six percent interest shall be applied to the $160,000 judgment.
2. Interest on “contempt” judgments. The wife argues next that she is entitled to statutory interest on both “contempt” judgments pursuant to G.L. c. 215, § 34A. We have stated that § 34A was drafted by the Legislature to address, inter alia, “the specific problem of interest on unpaid support obligations.” Poras v. Pauling, 70 Mass. 535, 546 (2007). Compare Karellas, supra at 473–474 (suggesting in dictum that the interest provision of § 34A may have broader application). We have also indicated that a judge “should state specifically in the judgment whether or not the judge is adjudging the defendant guilty of contempt for purposes of G.L. c. 215, § 34A,” and should set forth any interest award pursuant to § 34A, “along with the methodology for computing any interest.” Poras v. Pauling, supra at 544, and cases cited.
We are not persuaded that the probate judge found the husband in contempt with respect to the first contempt complaint. Although the judgment was made on a form titled “Judgment on Complaint for Civil/Criminal Contempt,” we recognize that such labeling “may only signify that the judgment was issued in response to a complaint for contempt.” Id. at 540. We contrast this with the express finding that was made by the same judge when he held the husband in contempt in response to the second complaint, when the judge stated that the husband is “hereby found in Contempt of Court.” No such finding was made for the first contempt.
For this reason, if no other, we cannot say the wife was entitled to interest pursuant to § 34A on the first contempt complaint.
We are cognizant that the judge later referred to the first judgment as a “contempt judgment”; however, there is no indication such references were intended by the court in a technical sense. In the absence of transcripts of the hearings leading up to the first judgment (including the hearing of March 10, 2011), it cannot be gleaned whether there were additional statements that shed light on the matter.
As for the second contempt complaint, the judge held the husband in contempt for “failing to pay Plaintiff the amounts required pursuant to the terms of the Divorce Judgment (dated April 13, 2010).” The wife's complaint had alleged failure by the husband to make ongoing mortgage payments (for several months) on the former marital home. In her memorandum in support of her complaint, the wife also stated, as we have noted, that she had to borrow from her sister to pay to a bank mortgage arrears in the amount of $20,171.93 to prevent foreclosure on her home. The judge ordered, among other things, that the husband pay to the wife the sum of $5,452 representing the mortgage arrearages, and the “cure” amount of $20,171.93.
Here, the wife failed to address below, and does not meaningfully address on the appeal, whether the allegations of her second complaint fall within the purview of § 34A. Moreover, the wife did not request specifically that she be awarded interest under § 34A
and, in fact, in her memorandum, she directed her discussion of the question of interest to the amounts owed on the sum of $160,000 pursuant to G.L. c. 235, § 8 (see section 1, supra ).
The wife requested an assessment of interest on any contempt judgment.
In view of the foregoing, and on all of the circumstances and the arguments made, we decline to disturb the second judgment.
It is to be noted that that judge made no specific finding that he was adjudging the husband in contempt pursuant to § 34A and did not set out a methodology for the computation of interest.
3. Attorney's fees and costs. The wife argues that the judge erred by failing to award her attorney's fees on both contempt complaints pursuant to G.L. c. 215, § 34A (see note 3, supra ). As we have stated, with respect to the first complaint, we are not persuaded that the court adjudged the husband in contempt. That aside, the judge awarded the wife $5,000 of the $8,376.50 in fees requested by her, and the wife did not appeal that judgment or seek attorney's fees in her motion to amend.
With respect to the second complaint, and the wife's request for $3,772.50 in attorney's fees in connection therewith, the wife, again, fails to address whether § 34A has application in this case. See generally, 1 Kindregan & Inker, Family Law and Practice § 6:6 (2002). In all events, the wife's request for fees pursuant to § 34A was called expressly to the attention of the judge, who made no provision for such an award. Even were we to assume that § 34A has application here, although the statute calls for the entry of findings when attorney's fees are not to be awarded, see Coppinger v. Coppinger, 57 Mass.App.Ct. 709, 714 (2003), the court's implicit denial of fees suggests strongly the judge's view that attorney's fees would not be appropriate in the circumstances of this case.
4. Sanctions. On August 12, 2010, the Probate Court judge ordered: “The defendant shall sign the deed by 4:00 P.M. on August 26, 2010. If he fails to do so, a sanction of $100 per day shall accrue.” The wife argues that the judge should have ordered the husband to pay the now $7,100 fine until papers satisfactory for recording were executed. The husband signed the deed by the required date, but further action turned out to be necessary to satisfy the requirements of recording. There are no transcripts before this court of any hearings related to the deed. Where the imposition of sanction is a matter left to the discretion of the judge and where the same judge, who was intimately familiar with this case, provided sanctions for noncompliance and later declined to award them, we are not inclined to reverse his decision. See Morgan v. Jozus, 67 Mass.App.Ct. 17, 24 (2006).
5. Appellate costs. The wife argues that this court should exercise its discretion pursuant to Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), and Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979), and award her attorney's fees, costs, and damages for this appeal. In the case of a frivolous appeal, rule 25 permits us to award “just damages and single or double costs to the appellee ” (emphasis added). The wife (appellant) filed the appeal and therefore we find this rule inapplicable to her argument. See Caveney v. Caveney, 81 Mass.App.Ct. 102, 118 n.28 (2012). Further, the wife does not specifically argue why rule 26 should apply, but rather, that an appeal to enforce a civil contempt judgment must necessarily include a fee for appeal. We need not reach that issue in light of her general lack of success in asserting her contempt arguments on appeal. We do conclude, however, that she is entitled to the costs of this appeal. See Yorke Mgmt. v. Castro, 406 Mass. 17, 19–20 (1989).
6. Conclusion. While interest on the judgment of $160,000 should have been awarded automatically, it was not. Consequently, we think a direction from the probate judge is appropriate here. We thus vacate so much of the order dated July 14, 2011 (on the wife's motion to alter or amend the judgment), denying the wife's request that the judge direct the “clerk” to add mandatory statutory interest to the judgment of $160,000, and remand the matter to the Probate and Family Court for the entry of a new order consistent with this memorandum and order. In all other respects, the order denying the motion to alter or amend judgment is affirmed. The judgment of contempt, also dated July 14, 2011, is affirmed.
So ordered.