Opinion
11-P-1535
05-01-2012
NATALIE B. SAAD v. FAWZY A. SAAD.
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
Following the entry of divorce nisi, a judge of the Probate and Family Court ordered the husband to pay attorney's fees to the wife in connection with her prosecution of a contempt action against him. The husband filed a motion to reconsider, which was denied, and he now appeals. We affirm.
Background. The parties were married in North Carolina in 1999, and were divorced in Massachusetts by judgment nisi dated June 7, 2010. The wife has physical custody of the parties' four children. Pursuant to the judgment, the husband is to pay the wife $400 per week as child support, and the parties were to share equally in the cost of preparing a qualified domestic relations order (QDRO) authorizing the wife to receive half of the amount of the husband's retirement account.
On June 25, 2010, the wife filed a complaint for contempt alleging that the husband owed $1,037.50 in child support arrearages and his equal share of the cost of obtaining the QDRO. The wife also moved for attorney's fees 'in prosecution of this [c]ontempt.'
Before a hearing took place on July 29, 2010, the parties entered into a stipulation that the husband was current with his child support, had paid his share of the cost of preparing the QDRO, and had paid the cost of serving the complaint for contempt. At the hearing, the judge accepted the parties' stipulation, and then addressed the wife's motion for attorney's fees. The wife's attorney stated that she had been representing the wife pro bono through the trial, but was no longer inclined to do so given the number of motions and other pleadings the husband was wont to file. Upon inquiry, the husband responded that he had not acted to comply with the judgment nisi because he had not received a copy of it. The judge questioned the defendant's response and allowed the wife's motion. He thereafter granted the husband permission to file a motion to reconsider, see note 1, supra, which the judge later denied. The husband now appeals.
In a previous attempt to limit the number of the husband's filings, on May 4, 2010, after trial but before issuance of the judgment nisi, the judge entered an order allowing the wife's emergency ex parte motion to prohibit the husband 'from filing any more motions or other pleadings without prior authorization of the court for good cause shown.' Indeed, at the hearing on the contempt, the husband was seeking authorization to file an additional five on the contempt motions.
The judge said to the husband, '[Y]ou were in here at least a month or so ago that I remember, filing an appeal on the divorce judgment. Now you're saying you didn't get a copy of the divorce judgment until today?'
Discussion. The husband argues that the judge erred in granting the wife's motion for attorney's fees because no judgment entered finding him in contempt, and because the wife's counsel was representing her on a pro bono basis. The arguments have no merit.
By his admitted failure to pay, the husband caused the wife to file a complaint for contempt seeking the payment of past due child support and his share of the cost of preparing the QDRO. For this reason, the judge did not abuse his discretion in awarding fees. See Hennessey v. Sarkis, 54 Mass. App. Ct. 152, 156-157 (2002) (holding that judge had ample basis to exercise her discretion under G. L. c. 208, § 38, to order attorney's fees in mitigation of expenses incurred as a result of the husband's obstructionist conduct). There was no error.
By supporting affidavit of counsel, the wife sought $900 in attorney's fees and '$48.80 for the cost of the Sheriff to serve the Complaint for Contempt.' The judge ordered payment 'in full.' The husband correctly notes in his brief that the parties stipulated to his payment of the $48.80 service fee. Following the husband's nonpayment of the attorney's fee award, however, the wife filed a second complaint for contempt, for which she sought no additional fees. Given those circumstances, we affirm the judge's order for payment in the amount of $948.80.
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Order of July 29, 2010, allowing plaintiff's motion for attorney's fees affirmed.
Order denying defendant's motion for reconsideration affirmed.
By the Court (Cypher, Smith & Fecteau, JJ.),