Opinion
16-P-327
06-02-2017
Leslie Ann SCOPA v. Donnie BRAUNSTEIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Donnie Braunstein (husband), appeals from a Probate and Family Court declaratory judgment on a complaint for contempt brought by Leslie Ann Scopa (wife). The husband raises three issues on appeal: (1) whether the judge erred in his interpretation of the parties' separation agreement with regard to the term "fifty percent (50%) joint and survivor benefit"; (2) whether the judge abused his discretion by ordering the husband to pay legal fees where the judge found that the husband was not in contempt; and (3) whether the judge denied the husband his due process rights by failing to hold a hearing on the issue of attorney's fees. We vacate in part, affirm in part, and remand.
I. Background. On October 2, 2013, the wife and husband were divorced by a judgment of divorce nisi. The judgment approved and incorporated their separation agreement of the same date. The separation agreement survived the judgment except for its provisions relating to the unemancipated children, alimony, and medical and dental coverage, which were merged into the judgment.
The wife filed a complaint for contempt on December 2, 2014, in which she alleged that the husband (1) refused to provide her with alimony in the amount of thirty-five percent of his increase in base pay; (2) failed to provide her support via automatic deposit; (3) failed to transfer one-half of his Textron retirement plan and/or failed to cooperate with her to obtain the qualified domestic relations orders to effectuate such a transfer; and (4) failed to assign, convey, or otherwise transfer to her half of his Textron option shares. The complaint also sought an award of counsel fees incurred in pursuing the contempt complaint.
At the contempt hearing, despite the judge's suggestion of an evidentiary hearing, the parties agreed that the judge would decide the wife's complaint for contempt "on the basis of representations by [both] counsel and numerous uncontested exhibits presented by both parties." These exhibits included numerous electronic mail messages (e-mails) from Attorney Carol Nesson, whom the parties had jointly retained to prepare several drafts of the qualified domestic relations orders/domestic relations orders (QDROs/DROs). These draft QDROs/DROs were Attorney Nesson's attempt to divide and distribute the husband's retirement assets as agreed upon by the parties in their separation agreement.
II. Interpretation of the separation agreement. At the time of the contempt complaint hearing, the parties disagreed as to the interpretation of the terms in their separation agreement governing the Textron retirement plan; specifically, as to the provision: "[The husband] shall elect a fifty percent (50%) joint and survivor benefit for [the wife]." It is the husband's position that the proper interpretation of this language is that the wife shall receive fifty percent of his retirement assets. The wife, in contrast, argues that this provision requires not only that she receive fifty percent of the husband's retirement benefits, but also that he must name her as a survivor beneficiary of his portion of the retirement benefits. ,
Exhibit IV to the separation agreement states in pertinent part:
"The Husband has in his name a defined benefit pension plan from his employment with Textron Inc., comprised of the Textron Pension Plan, the Spill Over Pension Plan, and the Textron Inc. Retirement Account Plan (collectively, the ‘Textron Defined Benefit Plan’). As set forth in a Qualified Domestic Relations Order/Domestic Relations Order, and subject to the terms of this Agreement, one-half of the value of the Textron Defined Benefit Plan as of the date of the Judgment of Divorce Nisi with investment performance to the date of transfer, if applicable, shall be transferred to the Wife. The Wife shall receive a proportionate share of any early retirement subsidies and cost of living adjustments, if applicable. [The wife's] benefit shall be paid as a separate interest for her lifetime or as a shared payment which would be paid over [the husband's] lifetime, if an election is permitted under the terms of the plan, pursuant to the terms of the ... Textron Defined Benefit Plan. Toward this end, [the husband] shall elect a fifty percent (50%) joint and survivor benefit for [the wife]" (emphasis supplied).
The wife's position seems to run contrary to Attorney Nesson's correspondence with the parties stating:
"The proposed QDRO uses a separate-interest approach. The separation gave [the wife] fifty percent as of date of divorce. The QDRO tracks that and lets her do as she pleases with her one-half. It also lets [the husband] do as he pleases with his half.... If both sides prefer a shared interest approach, which is where joint and survivor annuity—joint and survivor language would have significant value, I'll have to go back and redo the QDRO. The plan won't allow a combined form of QDRO such that [the wife] would get one-half of the whole thing spread over her lifetime plus one-half of his survivor benefit. The QDRO must be in one form or the other."
This e-mail was read into the record by the husband's counsel at the contempt hearing.
On appeal, the husband has not contended that the wife's proposed disposition is not permissible under the Textron retirement plan documents. Any such argument is therefore waived.
In support of his position, the husband notes that the parties intended to execute an equal division of all assets, including an equal division of the retirement assets. The husband argues that the term "fifty percent (50%) joint and survivor benefit" refers to the fifty percent joint and survivor benefit payment option available among the three joint and survivor options offered by his employer, Textron. See Fried v. Fried, 5 Mass. App. Ct. 660, 663 (1977) ("If the words of a contract are plain and free from ambiguity, then they must be construed in accordance with their ordinary and usual sense"). He contends that the meaning proposed by the wife introduces additional language into the QDRO/DRO, beyond the term "fifty percent ... joint and survivor benefit," in order to ensure that the wife be named as the husband's beneficiary.
Exhibit IV of the separation agreement states that "[i]t is the express purpose of the parties ... that the entire martial estate ... will have been divided so that each will retain one-half (50%) of the total value of the estate as set forth in this Exhibit IV." However, the wife's interpretation would result in her receiving, potentially, more than half of the estate.
Quoting from a pension estimate document, the husband argues that Textron's pension plans permit participants to select a "Joint and 50% Survivor Factor," a "Joint and 75% Survivor Factor," or a "Joint and 100% survivor factor." He contends that these options "would determine whether more money was paid during the lifetime of the participant or if less would be paid during the participant's lifetime so that more would be available to the named beneficiary after the death of the participant."
The husband notes that the QDRO/DRO language as approved by the wife would read as follows:
Textron Master Retirement Plan: "The Participant's vested benefit ... shall be paid in the form of a joint and 50% surviving spouse annuity with the Alternate Payee as the survivor annuitant" (emphasis supplied).
Textron Spillover Pension Plan: "The Participant shall elect to receive his benefit in the form of a joint and 50% surviving spouse annuity that provides for survivor benefits and the Participant shall designate the Alternate Payee as beneficiary for such benefits" (emphasis supplied).
On the other hand, the wife contends that the husband unambiguously agreed to name her as the beneficiary of his portion of the retirement benefits. She argues that the evidence presented at the hearing demonstrates that the retirement plans permit such designation. The wife also contends that any lack of evidence thereof was caused by the husband's failure to sign the confidentiality form that Textron required in order for a summary of the retirement plans to be released.
To support her position, the wife relies on Attorney Nesson's confirmation that she discussed the QDRO/DRO plans with Textron's third party administrator, and that the administrator allowed the alleged interpretation. The wife also points to Attorney Misti Munster's affidavit stating that such election proposed by the wife is allowed by the plans. The trial judge credited both of these sources of evidence.
The judge agreed with the wife's interpretation. Although he stated that the language in Exhibit IV of the separation agreement was unambiguous on its face, his decision also detailed findings regarding extrinsic evidence of the intent of the parties. See Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 48 (1991) ("As a general principle, a court considers extrinsic evidence to discern intent only when a contract term is ambiguous"). "To answer the ambiguity question, the court must first examine the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties." Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008). In this case, we conclude that the judge erred to the extent that he both ruled the "joint and survivor benefit" provision of Exhibit IV to be plain in meaning and then resorted to extrinsic evidence. See Eastern Holding Corp. v. Congress Fin. Corp. (New England), 79 Mass. App. Ct. 737, 742 n.5 (2009) ("Where contractual language is unambiguous, we do not resort to extrinsic evidence concerning the contracting parties' intent in order to ascertain the contract's meaning").
"[T]he Court concludes from th[e] chosen language that its plain meaning intends that ... [the husband] shall additionally elect, if Textron permits such an election, as a benefit to [the wife] a stream of defined benefit pension payments to [the wife] as the designated survivor beneficiary thereof to which [the husband] would be entitled and she will receive if she outlives [the husband]".
As the judge observed in one part of his decision, "the contract language employed by the parties raises doubts as to their obligations." Elsewhere, the judge concluded, "While unambiguous and sufficient to permit the Court under the facts to determine and declare the parties' rights thereto, that language employed by the parties was not clear and unequivocal to sustain a finding of contempt against [the husband]."
A. Existence of ambiguity. "First we must decide whether [Exhibit IV of the separation agreement] contains an ambiguity" as a matter of law. Browning-Ferris Indus., Inc. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011). We review the judge's determination on this issue de novo. See ibid. We conclude that the judge erred in ruling that the term "fifty percent (50%) joint and survivor benefit for [the wife]" was unambiguous.
"An ambiguity arises from language susceptible of different meanings in the eyes of reasonably intelligent persons." Ibid. "The mere existence of the parties' disagreement does not make the language ambiguous." Ibid. We must construe the agreement based on "a fair construction of the contract as a whole and not by special emphasis upon any one part," Kingstown Corp. v. Black Cat Cranberry Corp., 65 Mass. App. Ct. 154, 158 (2005) (quotation omitted), while also recognizing that "every word is to be given force so far as practicable," MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981) (quotation omitted).
In the husband's textual analysis of the joint and survivor benefit language of Exhibit IV, he argues that the agreement merely requires him to designate one-half of his retirement benefits to the wife. The husband reasons that the provision clearly states that "one-half of the value of [his] Textron Defined Benefit Plan ... shall be transferred to [the wife]." He points out that the agreement also provides, "It is the express purpose of the parties ... that the entire marital estate ... will have been divided so that each will retain one-half (50%) of the total value of the estate as set forth in this Exhibit IV." The husband contends that these provisions give meaning to the last sentence of Exhibit IV which states, "[the husband] shall elect a fifty percent (50%) joint and survivor benefit for [the wife]."
The judge noted in his decision several other phrases in Exhibit IV that he believed supported the wife's view that the agreement requires the husband to name her as a survivor beneficiary of his half portion of the retirement benefits. The judge emphasized the parties' use of the phrase "[the husband] shall elect a fifty percent (50%) joint and survivor benefit for [the wife]." He highlighted that the sentence immediately preceding the joint and survivor benefit language states that "[the wife's] benefit shall be paid as a separate interest for her lifetime or as a shared payment which would be paid over [the husband's] lifetime, if an election is permitted under the terms of the plan, pursuant to the terms of the Textron Defined Benefit Plan." The judge further emphasized that it is "[t]oward this end" that the husband "shall elect a fifty percent (50%) joint and survivor benefit for [the wife]." In light of these provisions, the wife argues that the true purpose of the election is to ensure that she receives the benefit of the retirement plan if the husband dies.
Here, "[t]he text leaves enough room for reasonable disagreement." Browning-Ferris Indus., Inc., supra at 308. Therefore, the judge erred in concluding that the language was unambiguous.
B. Extrinsic evidence. "Once a contractual ambiguity emerges, the meaning of the uncertain provision becomes a question of fact for the trier." Id. at 307. "The fact finder may then consult extrinsic evidence including the circumstances of the formation of the agreement and the intentions and objectives of the parties." Ibid. Such extrinsic evidence may include "related documents and transactions comprising a ‘general scheme’ of which the contested contract is a part." Ibid., citing Glick v. Greenleaf, 383 Mass. 290, 296 (1981). To the extent the judge's interpretation relied on extrinsic evidence of the parties' intent, we examine his decision under the clearly erroneous standard. See id. at 307-308. "It is the appellant's burden to show that a finding of fact is clearly erroneous." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). Here, this burden has been satisfied. We conclude that the judge's rationale is based on factual findings that are unsupported by the evidence and contradictory to other factual findings that are supported by the evidence.
The judge's conclusion rested on several subsidiary factual findings. These include (a) that Attorney Nesson drafted the QDROs/DROs reflecting this interpretation as the parties' intent; (b) that the husband's financial statements demonstrate the husband's intention to designate the wife as his survivor beneficiary; and (c) that this interpretation was the parties' "expressed choice." Each factual finding is addressed in turn.
a. Finding that Attorney Nesson drafted QDROs/DROs based on the parties' intent. The judge's conclusion that the parties intended that the husband designate the wife as his survivor beneficiary is partly based on his finding that "Attorney Nesson prepared a QDRO reflecting the parties' sentiently chosen intent."
The judge also quoted Attorney Nesson's February 27, 2014, e-mail stating, "Both parties noted that the separation agreement assigned [one-half] of the whole plan as of date of divorce to [the wife] AND requires [the husband] to elect a 50% J&S payment plan in addition with her as survivor beneficiary when he retires" (emphasis supplied by judge). The judge also wrote, "Based on those findings [regarding the February 27 e-mail], the Court also concludes that this outcome fairly reflects the language of the October 2, 2013, Agreement."
In his decision, the judge found that the husband "fail[ed] to object to [the joint and survivor language in Attorney Nesson's] first QDRO and DRO" dated February 7, 2014. The judge supported this finding with Attorney Nesson's February 27, 2014, e-mail, where she summarized the parties' revisions to the February 7 draft. In her e-mail, Attorney Nesson stated, "[The husband] requested minor, non-substantive changes on the Savings Plan ... the changes are purely editorial [and] do not change the meaning." The judge found that the husband did not object to the joint and survivor language in this draft because Attorney Nesson mentioned that the husband "requested only minor revisions to another QDRO (the Savings Plan)."
The judge also wrote, "There were no requested revisions regarding ‘joint and survivor’ language on the February 7, 2014 iteration of the draft," and that, "As of February 5, 2014 neither [the husband] nor Attorney Nesson mentioned the ‘joint and survivor benefit’ as problematic."
However, this finding is not supported by the evidence, including not being supported by Attorney Nesson's other statements in her February 27, 2014, e-mail. Attorney Nesson's e-mail further stated that "the separation agreement assigned [one-half] of the whole plan as of date of divorce to [the wife] AND requires [the husband] to elect a 50% J[oint] [and] S[urvivor] payment plan in addition with her as survivor beneficiary when he retires." Attorney Nesson then explained, "I discussed that possibility at length with Chateram Persuad [the third-party benefits administrator for Textron]. He suggested that I send a new draft for pre-approval. I have prepared that draft [and have] attach[ed] it here" (emphasis supplied). In other words, because the language was not yet sufficiently provided for, Persuad recommended a new draft. Thus, the evidence in the record demonstrated that after the February 7 draft, Attorney Nesson needed to and did prepare a new QDRO providing for the parties' joint and survivor assignment.
The finding that the husband did not object to the joint and survivor benefit language in the February 7 draft is also contrary to other findings that are supported by the evidence. The judge explicitly noted that he did not have the February 7 draft before him at the contempt hearing. He also stated that "[i]t was unclear to the Court the contents of [the February 7 draft] QDROs/DROs as to any joint and survivor benefit."
The judge also found that the husband "failed to object to the February 26, 2014 iterations" of the joint and survivor benefit provision. The judge noted that this proposed QDRO provided that "the participant (that is, [the husband] ) shall elect a 50% joint-and-survivor benefit form of payment for his receipt of the remaining portion of his benefit (that is, [the husband's] 50%) when he retires, and shall name the Alternate Payee (that is, [the wife] ) as survivor beneficiary." While the judge found that the husband "first objected to the joint and survivor annuity outcome" in the February 26 draft QDRO by e-mail on March 7, 2014, the judge also concluded that this correspondence was the beginning of the husband's attempt "to renegotiate the plain terms of the [s]eparation [a]greement as to the joint and survivor benefit [provision]."
In the judge's recitation of this provision, he included his own wording in the parentheticals—e.g., "(that is, [the wife] )".
The judge also stated, "[the wife] alleges and the Court agrees that realizing post-divorce the implication of their ‘[the husband] shall elect a fifty percent (50%) joint and survivor benefit’ choice, [the husband] sought to retract and renegotiate the joint and survivor benefit provision." The judge added, "In light of this uncertainty on multiple fronts, [the husband] seized advantage of the impasse brought forth by mutual frugality [in bypassing discovery] to only now redefine the meaning of the words...."
The judge's finding, however, is unsupported by the evidence. As noted earlier, the terms of the separation agreement provision were not plain. The husband clearly notified Attorney Nesson, on March 7, 2014, in his response to her February 26 draft, that the language was not consistent with his intended use of the joint and survivor benefit term. The husband identified to Attorney Nesson that the February 26 draft "misconstrued [his earlier] comments with respect to the joint and 50% survivor factor." He explicitly stated, "My comment was: Where is it made clear that the benefit is to be CALCULATED based on a 50% joint and survivor benefit? ... It makes no sense to give survivor benefits in the context of a divorce and I had no such intent." The husband also explained that the parties had not, prior to that point, discussed "anything ... other than [the wife's] benefit being determined as of the date of the divorce decree and that amount remaining fixed for all payments during her lifetime." The judge, however, may have found that these statements lacked credibility, as would have been within his discretion. Yet, it is not clear from the judge's findings what evidence he relied on to support his conclusion that the husband's March 7 e-mail was an attempt to renegotiate the meaning of the joint and survivor term as written in Attorney Nesson's February 26 draft. Further, the judge's finding that the husband was renegotiating the meaning of the term seems to contradict his survivor language in the February 26 draft. Indeed, if the husband was attempting to "renegotiate the plain terms" of the joint and survivor benefit provision, he would consequently be objecting to the language presently being used in the February 26 draft.
The judge also supported his finding that the parties intended the husband to designate the wife as his survivor beneficiary based on the language within Attorney Nesson's February 3, 2015, draft QDRO. ,
"The Court concludes from this language that a joint and survivor benefit in the form of an annuity (based on [the husband's] segregable interest) continuing to [the wife] if [the husband] dies before her is electable by [the husband] ...."; "The Court concludes from this language that it tracks the intent of the language expressed by the parties [in the separation] [a]greement...."
Attorney Nesson prepared several draft QDROs/DROs between February 26, 2014, and February 3, 2015, that do not explicitly form the basis of the judge's conclusion at issue here.
This finding is unsupported by the evidence. The draft prepared by Attorney Nesson on February 3, 2015, stated, in relevant part, "[i]f the Participant [husband] dies after his benefit commencement date, no payments shall be made to the Alternate Payee [wife] after the Participant's death, except to the extent that the Participant has elected to receive his benefit in an annuity form that provides for survivor benefits and the Participant has designated the Alternate payee as beneficiary for such survivor benefits" (emphases supplied). It is clear that this draft, which was approved by the husband, merely suggests, as the husband argued, that his election of the wife as a survivor beneficiary "is optional" and does not suggest that it was his "intent to so elect and make such a designation for [the wife]."
The evidence presented to the judge could demonstrate that Attorney Nesson did not have a clear understanding of the parties' intentions as to the meaning of the "joint and survivor benefit" term. The judge's reliance on Attorney Nesson's various draft QDROs/DROs is also contrary to his other findings that are supported by the evidence. For instance, at times, the judge was unable to make findings based on Attorney Nesson's communication to the parties in regard to her various QDROs/DROs, which further suggested that Attorney Nesson did not have a clear understanding of the parties' intentions.
"It was unclear to the Court whether Attorney Nesson meant ‘resolved’ by Textron as permissible or whether she believed the parties had ‘resolved’ this issue"; "It was also unclear to the Court what Attorney Nesson meant when she said ‘While the language change you requested is not possible because it doesn't reflect plan structure, I think the order does what you want it to do. [The wife] will get 50% of the 10/2/13 value, spread across her lifetime.’ Nor is it clear who requested the impermissible language.... Nor were the parties or Attorney Nesson using the same terminology to describe [the husband's] retirement pension plan schema."
b. Finding as to the husband's financial statements. The judge based his conclusion, that the parties' intended for the husband to name the wife as survivor beneficiary of his half of the Textron retirement assets, in part on the language provided in the husband's financial statement.
"Based on this description [in the husband's financial statement], [the wife] could reasonably have concluded she would be entitled to a defined benefit type pension after [the husband's] retirement or death, with her as survivor beneficiary...."); "[The husband] seized advantage of the impasse brought forth by mutual frugality to only now redefine the meaning of the words ... which ... [the husband] specifically footnoted in his financial statement dated at time of divorce."
While the parties' separation agreement specifically provided that it was based on the representations made in the husband's financial statements, these financial statements do not support the judge's conclusion. For example, the financial statements provide, "Assuming a 50% survivorship benefit, Husband believes Wife's share of this asset would be $4,509.36 per month." The judge noted that in these documents "[t]here was no definition attached to explain what [the husband] meant by ‘50% survivorship benefit.’ " Further, the judge acknowledged that the financial statement does not mention the Textron "Retirement Account Plan" or the Textron "Spill Over Pension Plan," which are divided in the parties' separation agreement.
c. Finding of the parties' "expressed choice." In his findings, the judge stated that the parties' "expressed choice" as to the meaning of the "joint and survivor benefit" language is that the husband name the wife as his survivor beneficiary.
The judge supported his finding with Attorney Munster's affidavit. However, Attorney Munster, in the affidavit, merely opined that the interpretation argued by the wife was permissible under the Textron plan documents: that the husband may choose to name the wife as a survivor beneficiary. Significantly, her affidavit did not concern the parties' intent or the legal meaning of the term "joint and survivor benefit." Moreover, Attorney Munster noted the complexity of the retirement plans at issue and the possibility that "a QDRO formula ... [may] not accurately convey [ ] the intent of the parties."
Attorney Munster wrote, in part, "[I]t is evident that an alternate payee can be treated as the surviving spouse of the participant for purposes of the entire benefit. Generally speaking ... the participant and alternate payee can split the benefit however they like. More specifically, it is legally permissible for a QDRO to provide for the alternate payee to be treated as the surviving spouse of the participant."
The judge's finding is also contrary to his other findings, which are supported by the evidence, that the parties did not mutually intend for the husband to designate the wife as his survivor beneficiary. First, the judge found that the parties' intention in dividing their assets within the separation agreement was for an "equal division." Second, the judge found that throughout the drafting process, the parties were "in dispute about the intent of the [a]greement[ ][and] had disparate understandings of what ‘joint and survivor benefit’ meant in a generic way." The lack of an "expressed choice" was further supported by the evidence, demonstrating that the parties were in continuous negotiations as to the meaning of the term "joint and survivor benefit" as it fit within the Textron plans.
This finding is supported by the express language in the parties' separation agreement: "[T]he entire marital estate ... will have been divided so that each will retain one-half (50%) of the total value of the estate as set forth in this Exhibit IV"; "D. Retirement Accounts. The parties have the following retirement accounts which shall be divided equally as follows."
"The Court concludes that as of September 10, 2014, the parties still did not agree and made known to Attorney Nesson their disagreement about what they agreed to on October 2, 2013 as to ‘joint and survivor benefit’ "; "[A]s of October 2014 and a full year after divorce the parties were still in dispute as to the ‘joint and survivor benefit’ language of their Agreement"; "To the Court it is clear the parties had not resolved the issue as to [joint and survivor] language and intent"; "The division of the Textron Retirement Account Plan (RAP) and Spill Over Pension remain unresolved."
For example, the husband's counsel e-mailed the wife's counsel on October 16, 2014: "Rather, consistent with the other QDROs, [the wife] should have survivor benefit rights only on her portion (50%) during the coverture period." The judge observed, "[The husband's] reason for not agreeing was his interpretation of the [a]greement's provision for ‘joint and survivor benefit’: that it pertains only to the marital coverture period value for [the wife's] separable one-half and does not at all include his segregable one-half with [the wife] as survivor beneficiary thereof"; "Thus, as of October 2014 and a full year after divorce the parties were still in dispute as to the ‘joint and survivor benefit’ language of their agreement."
On August 26, 2014, the wife's counsel e-mailed the husband's counsel, "I think given the language and intention of the parties pursuant to the separation agreement, we should utilize the language offered as the third option, which provides my client with the benefits upon the death of [the husband] as a joint and survivor beneficiary." On October 28, 2014, the wife's attorney wrote to the husband's attorney in part: "please contact me so we can discuss connecting with Textron to see whether the plan provides for a joint and survivor death benefit, which language should be included in the QDRO, to the extent the plan provides for it. As it stands the current draft has omitted that piece altogether as provided by the parties' separation agreement.") As the judge wrote, "It is clear to the Court that the parties, at time of execution of the [a]greement, had not yet vetted or parsed the necessary terms of any QDROs/DROs to carry out the retirement plan intent of the parties." On March 3, 2015, the wife refused to sign one of Attorney Nesson's draft DROs that the husband had agreed to and the wife had agreed to sign.
Moreover, there was evidence of mistaken belief that one party was in agreement as to the other party's meaning of the term.
On March 31, 2014, the wife's attorney responded to an e-mail from the husband's attorney by saying "the QDROs look fine." The husband's attorney e-mailed Attorney Nesson on September 5, 2014, that "[the wife's attorney] and I appear to be in agreement that a change needs to be made to ... the joint and survivor benefit rights. I believe that we jointly feel that this paragraph should essentially mirror the revised paragraph 7 of the Textron retirement program."
Due to these inconsistencies and other conflicting evidence, the portion of the judgment concerning the meaning of the joint and survivor benefit provision in the separation agreement must be vacated and remanded for an evidentiary hearing and for further findings consistent with this memorandum and order. Live testimony, along with the credibility determinations that are possible from such testimony, will likely prove to be especially useful in the circumstances of this case.
With this conclusion, we do not attempt to suggest that the judge is required to find that the parties had a unified understanding as to the meaning of the joint and survivor benefit term. Indeed, upon remand the judge may determine, as within his discretion as the finder of fact, that based on extrinsic evidence the parties never obtained a specific understanding or meeting of the minds upon the critical question whether the language in Exhibit IV required the husband to designate the wife as the survivor beneficiary of his portion of the retirement assets under the Textron plans. See Browning-Ferris Indus., Inc., 79 Mass. App. Ct. at 312, quoting from Fay, Spofford & Thorndike, Inc. v. Massachusetts Port Authy., 7 Mass. App. Ct. 336, 342 (1979) ("Where the parties to a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances will be supplied by the court").
III. Order awarding attorney's fees. The husband argues that the judge abused his discretion by awarding the wife attorney's fees both as to the joint and survivor benefit issue and the issue of the stock options.
The husband's appeal does not challenge the judgment insofar as it declares the parties' rights and responsibilities under the separation agreement as to the stock options.
A. Retirements benefits. The judge declared that the wife was entitled to attorney's fees as to the issue of joint and survivor benefits, despite finding that the husband was not in contempt. The judge's order was based on his conclusion that the husband was in breach of the separation agreement. However, the judge seems to support this conclusion by finding that "it became clear as of February 27, 2014 that Textron will permit the joint and survivor benefit, as argued for by [the wife]."
This finding seems to run contrary to the wife's argument that the judge's award of attorney's fees was justifiable as a remedy for "a separate and distinct breach of the Separation Agreement's requirement that [the husband] provide necessary documentation."
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The husband contends that the judge erred in his interpretation of the language of the separation agreement, and thus, his order as to legal fees on that issue should be also vacated. The husband also argues that the judge erred by misconstruing his position as to the joint and survivor benefit language. He alleges that, despite the judge's findings, he did not disagree that Textron would permit and approve the QDRO/DRO as proposed by the wife. Rather, the husband states he took the position that while such interpretation would be possible under Textron's plan, the language of the separation agreement did not call for the wife to be named beneficiary, but instead, that the husband elect the benefit to be calculated by the fifty percent joint and survivor option.
B. Stock option issue. The trial judge awarded the wife attorney's fees as to the stock option issue, finding that the husband "caused [the wife] to reasonably believe that [the husband] was permitted under the Textron rules to directly transfer his [s]tock [o]ptions to her." The judge further found that the husband should pay the wife's related legal expenses up to February 27, 2014, when the wife should have known that the transfer could not take place under the Textron rules.
The husband argues that the judge abused his discretion considering that the husband did not make representations within the separation agreement as to the transferability of the options, and the record is absent of evidence suggesting that the wife relied on any alleged representations by him. The husband also contends that the language in the separation agreement suggested that transferability of the options may not have been possible and that the wife's counsel suggested such potential impossibility prior to the agreement's execution.
These issues cannot be resolved on the record before us, particularly in light of our conclusion concerning the "joint and survivor benefit." Additionally, regarding the stock option issue, it must be determined whether the potential impossibility of the transfer had been raised at the time of drafting the separation agreement. These questions can only be answered pursuant to an evidentiary hearing upon remand. The parties will also have the opportunity to raise and contest any other issues related to the award of counsel fees.
IV. Conclusion. So much of the judgment as declares the rights and responsibilities of the parties as to the stock options, and as finds the husband in contempt for failure to make automatic deposit of alimony payments, is affirmed. The judgment is otherwise vacated. The order on attorney's fees after judgment of contempt is vacated. The matter is remanded to the Probate and Family Court for an evidentiary hearing on all of the remaining issues, consistent with this memorandum and order.
So ordered.
Affirmed in part, vacated in part, and remanded.