Opinion
15-P-288
02-11-2016
DEANNA C. SHINE v. PAUL J. SHINE.
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
The parties were divorced pursuant to a separation agreement incorporated into a May 19, 2009, judgment. That judgment required the husband to continue to provide health insurance that covered the wife subject to two provisos. First, to the extent the husband had to pay extra to have the wife covered, the wife was required to pay that increment. Second,
At the hearing on the contempt motion, the husband acknowledged that under his "family plan" health insurance, there was no incremental cost for him to continue to keep the wife covered.
"[i]f at any time, the [w]ife's current or future employer permits and [w]ife has the opportunity to obtain comparable health insurance through her employer, she shall do so and [h]usband shall no longer be obligated to provide her with such coverage."After the wife obtained employment at the Massachusetts Department of Correction, but declined the option of obtaining health insurance through that employment, the husband filed a contempt action seeking to compel the wife to maintain her own health insurance. After holding a hearing, which apparently was based largely on attorney representations, the judge concluded that the husband "failed to prove a willful violation of the [relevant] section of the [s]eparation [a]greement," and therefore found the wife "not guilty" of contempt. However, the judge also ordered as follows:
"Notwithstanding the above finding, the [c]ourt finds that the [wife] now has access to obtain health insurance through her current employment with the Commonwealth of Massachusetts Department of Correction[], which option was not available at the time of divorce. The [wife] shall forthwith arrange to obtain health insurance for herself, and shall notify the [husband] of the effective date of same. In the event that the [wife] fails to immediately communicate the relevant date to the [husband], he may terminate her coverage as of September 1, 2014."The wife filed a timely appeal of that judgment.
The husband's contempt action was filed as a counterclaim to a contempt action filed by the wife. The wife's contempt action was dismissed.
There is no suggestion in what is before us that either party requested an evidentiary hearing. Nevertheless, both parties appeared at the hearing and were sworn, although the statements they made at the hearing were limited.
To the extent that the wife claims she did not have timely notice of the hearing, the record does not support that. To the contrary, the judge tabled the hearing on the husband's contempt action in order to give the wife time to prepare. We also agree with the husband that the wife improperly has sought to include material in the addendum to her brief that was not before the contempt judge. In addition, we discern no merit in the wife's argument that the health insurance available to her through her employer necessarily could not be "comparable" because it would require some cost to her (as opposed to her coverage under the husband's plan, which -- at least on the record before us -- involved no incremental cost to either party).
We therefore allow the husband's motion to strike the portions of her brief that rely on that material.
All that said, we find merit in the wife's appeal. The judge did not actually find that the health insurance coverage available through the wife's employment provided "comparable" coverage and benefits to those provided through the husband's plan. Nor was there any evidence before the judge on which she could have made such a finding. Although it may well be true that one of the many plans available to the wife through her employment is "comparable" to the plan provided under the husband's insurance, the evidence to substantiate that claim is absent. Because the husband's efforts to enforce the judgment depend on a showing of comparability, the judge's order cannot stand. We therefore vacate the judgment on the counterclaim dated June 4, 2014, and remand for further proceedings consistent with this memorandum and order.
It appears that the only evidence before the judge touching on comparability was a letter from the husband's insurer to the wife stating that it was denying his request to terminate the wife's coverage under his health insurance. That letter assumed arguendo the insurance available to the wife "can be considered comparable in terms of the scope of coverage," while questioning whether it could be considered comparable in terms of cost.
We disagree with the husband's argument that, even though he was the one seeking to enforce the judgment, the wife bore the burden of proving incomparability.
The husband's request for appellate attorney's fees is denied.
So ordered.
By the Court (Grainger, Meade & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 11, 2016.