Opinion
15-P-811
03-31-2016
AMANDA PRYOR v. WILLIAM PRYOR.
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
William Pryor (William), the former husband of Amanda Pryor (Amanda), appeals from so much of a judgment on complaints for contempt as requires him to transfer certain shares of stock to Amanda. We affirm the judgment.
As the parties bear the same last name, we use their first names to avoid confusion.
1. Background. By a judgment of divorce nisi dated March 26, 2012, the parties were ordered to comply with their separation agreement (agreement) of the same date, which was incorporated into the judgment. The agreement provides, in part, in Exhibit C (entitled "Division of Assets"), § 6:
Although the judgment of divorce nisi provides that the agreement is to merge into the judgment, the agreement itself provides that "[n]otwithstanding the incorporation and merger of this Agreement, all provisions as to the division of property shall survive as an independent contract . . . ." Both parties cite to contract principles in their briefs.
"Husband's State Street Stock: The Husband has
acquired shares of vested and unvested stock as an incident to his employment as of the date of this Agreement. The Wife will be entitled to 50% of the said shares as of the date of the execution of this Agreement. The Wife acknowledges that said stock cannot be sold until it has vested. Within thirty (30) days of the vesting of . . . these stocks, the Husband shall transfer said stock over to an account in the Wife's name and he will provide standing instructions with the administrator of State Street to do so upon the vesting of said stocks. Both parties are responsible for all their own taxes and transaction costs."
The parties engaged a special master to determine what stocks had been awarded to William. The special master determined that as of the date of the parties' separation agreement 13,718 shares of both vested and unvested State Street stock had been awarded to him.
In July, 2013, Amanda filed a complaint for contempt alleging that William had failed to comply with the agreement and judgment by failing to transfer to her all of the State Street stock to which she was entitled. At the trial on Amanda's complaint, which proceeded on the representations of counsel, counsel for Amanda noted that the special master had determined that 13,718 shares of State Street stock had been awarded, and that as of July 25, 2013, 8,280 shares had vested. It was Amanda's position that she was entitled to one-half of the vested shares, or 4,140 shares.
William also filed a complaint for contempt which is not in issue here.
It was William's position, however, that 1,603 shares of the vested stock had been sold with Amanda's knowledge prior to the execution of the parties' agreement and that the proceeds therefrom had been used to pay marital expenses and expenses of the children. William sought to "take the 1,603 off the 8,280," which would ultimately entitle Amanda to 3,338.5 shares.,
William submitted to the judge an informal outline entitled "Stock Sale Proceeds," which he himself had created, purporting to detail how he had spent the proceeds from the sale of the State Street shares during the divorce proceedings. He does not appear to have provided the judge with any documentation to support the expenditures alleged in his outline.
The calculations are as follows: 8,280 minus 1,603 equals 6,677, divided by 2 equals 3,338.5. The difference between the number of shares to which Amanda believed she was entitled (4,140) and the number of shares to which William believed she was entitled (3,338.5) is 801.5 shares.
At the close of the hearing, the judge stated that he would "read it all" and make a ruling. The judge later allowed William's motion to supplement the record. In his rationale for judgment, the judge stated that he had issued the judgment "[a]fter hearing the representations of counsel, [and] reading the separation agreement and pleadings."
In his rationale, the judge stated:
"I determined that the Special Master . . . performed her duties and found that 13,718 shares of vested and unvested State Street stock had been awarded as of the date of the Separation Agreement. Of the 13,718 shares awarded, as of July 25, 2013, 8,280 of the shares had vested. As of July 25, 2013, before any taxes, [William] owes [Amanda] 4,140 shares of State Street stock, but had only transferred 1,127.50 shares to her. The Court reads the Separation Agreement, as written and holds the parties to what they agreed upon. The parties requested that the disputed 1,603 shares be resolved by this Court. I have done that. I have found that the shares should be included and not subtracted from the overall amount. The parties decided, and utilized a Special Master, to determine
the amount of stock that had been awarded as of the date of the execution of the agreement. If they wished to give credits for liquidated stock, it should have been in the agreement. The court holds them to the language of the contract."
In his judgment on the complaints for contempt, the judge stated: "The Court agrees with [Amanda] that she is owed pursuant to the terms of the Separation Agreement the amount of 4,140 shares of State Street stock. Therefore, the 1,603 shares that were in dispute are to be included in the full amount of shares that are being divided. [William] shall comply and transfer the same to [Amanda] within 10 days of this judgment."
2. Discussion. William argues that the judge's interpretation of the agreement was incorrect and the judgment must be reversed. Among other things, he asserts that the judge's interpretation leads to an unreasonable and absurd result in that it requires him to transfer stock that he no longer possesses. William asserts further that if the parties had intended that the shares of stock that were sold prior to the date of the agreement were to be included as part of the division of assets, they would have provided that the "value" of those shares would be paid to the wife by setting forth a monetary figure, rather than providing for an actual transfer of stock.
In William's view, the only reading of the agreement which could afford an interpretation that the shares sold prior to the date of the agreement should be included in the division, is one that attaches special significance to the word "acquired" in the first sentence of the paragraph of the agreement providing for the division of the shares. William asserts, however, that such an approach requires a tortured reading "of the rest of the language" of the provision and an acceptance of the highly inequitable consequences that result (i.e., allowing Amanda essentially to "double dip" in the shares of stock). Finally, William argues that the judge erred in issuing a judgment requiring him to transfer 801.5 shares to Amanda when he had no ability to comply with the directive.
"When the words of a contract are clear, they must be construed in their usual and ordinary sense . . . ." General Convention of the New Jerusalem in the United States of America, Inc. v. MacKenzie, 449 Mass. 832, 835 (2007) (General Convention). Pisano v. Pisano, 87 Mass. App. Ct. 403, 412 (2015). "Extrinsic evidence may be admitted, however, 'when a contract is ambiguous on its face or as applied to the subject matter.'" Ibid., quoting from General Convention, supra at 836.
In General Convention, supra at 835, the court stated: "[W]e do not admit parol evidence to create an ambiguity when the plain language is unambiguous." Continuing, the court noted that in Robert Indus., Inc. v. Spence, 362 Mass. 751, 753-754 (1973), it "explained that extrinsic evidence may be admitted when a contact is ambiguous on its face or as applied to the subject matter. The initial ambiguity must exist, however." General Convention, supra at 835-836.
In the instant matter, William relies on information outside the parties' agreement that he had sold certain shares before entering into the agreement. Although the judge seems to have considered that information, it is apparent that on the limited record before him, the judge was guided by the language of the parties' agreement. On review of the record, we think the judge reasonably and properly concluded that the 1,603 State Street shares in dispute should be included in the overall number of shares to be divided between the parties.
William also states that an electronic mail message (e-mail) is sufficient to demonstrate Amanda's knowledge of the sale of the shares and her lack of objection. Even if the judge considered the e-mail, it does not indicate that Amanda consented to the sale of the shares.
Although William asserts that the 1,603 State Street shares were sold prior to the execution of the agreement, the agreement itself, which was bargained for between the parties, makes no specific mention of William having sold any shares. Rather, the agreement provides that Amanda shall be entitled to fifty percent of the shares William had acquired (not the shares that he held) as of the date of the agreement. As the judge stated, if the parties wished to give credit for liquidated shares of stock, a provision to that effect should have been included in the agreement. The judge's decision hews to the language used by the parties.
Contrary to William's position, we agree with Amanda that the language of the agreement "[w]ithin thirty (30) days of the vesting of . . . these stocks, the Husband shall transfer said stock over to an account in the Wife's name and he will provide standing instructions with the administrator of State Street to do so upon the vesting of said stocks," would appear to apply to shares that had not yet vested at the time the parties executed the agreement.
William further supports his argument that the State Street shares in dispute should have been subtracted from the overall number of shares to be divided by pointing to the judge's comment at the contempt hearing, "Boy, then she [the special master] didn't do her job, with all due respect." However, as Amanda notes, the judge's comment was made fairly early at the contempt hearing and was not a finding or ruling. Indeed, the judge went on to state in his rationale that the special master had "performed her duties."
Finally, William is simply not in a position to claim that he is unable to comply with the judge's order that he transfer to Amanda the shares to which she is entitled, when he appears to acknowledge in his brief that he still retains his share of the stock.,
William also created the circumstances in which he found himself.
Amanda's request for attorney's fees in connection with the appeal is denied.
The judgment dated January 29, 2014, is affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.