PERALTA v. IANNUZZI (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Frederick Peralta (husband) principally appeals from the Probate and Family Court's May 15, 2018 judgment adjudicating Dorothea Iannuzzi (wife) not guilty of contempt. We affirm.

Background. The parties were divorced in April of 2002. In October of 2003, a judge of the Probate and Family Court issued a modification judgment (2003 judgment), incorporating an agreement of the parties, which provided, inter alia, that the wife “shall pay for” health insurance coverage for the husband “unless and until this obligation is changed by further order of th[e] Court.” In July of 2014, the Probate and Family Court issued a contempt judgment (2014 judgment) providing, inter alia, that (1) “the [w]ife shall maintain medical insurance for the [h]usband; (2) “the [h]usband shall be responsible for the additional cost of the insurance;” (3) “[t]he [h]usband shall notify the [w]ife in writing through her attorney whether or not he wishes to be added to [the] [w]ife's health insurance;” and (4) “[t]he [h]usband shall reimburse the [w]ife monthly for his portion of the health insurance costs.” The 2014 judgment further provided that, if the husband “fails to reimburse the [w]ife for three consecutive months, she shall notify him by certified mail that she will discontinue insurance within thirty days,” and the wife may “remove [the] [h]usband from coverage” if he fails to pay “all past due amounts within thirty days.” The wife thereafter added the husband to her employer-sponsored health insurance plan pursuant to the husband's written request in August of 2014.

On September 23, 2017, the wife notified the husband via e-mail that she was being laid off and that her employer-sponsored health insurance coverage would expire on December 8, 2017. The wife stated that she would either obtain private insurance or enroll in COBRA, and that the husband might want to look into obtaining individual coverage elsewhere as his share of COBRA coverage would likely be “significantly” more expensive than his current biweekly obligation of $55.32 under the wife's employer-sponsored plan. The wife asked the husband to inform her as to how he would like to proceed; however, he did not respond to that e-mail. On November 8, 2017, the wife sent a second e-mail to the husband stating that she was enrolling in COBRA for herself and the children, and she would add him to the COBRA plan if he agreed to pay the additional cost of $477.09 per month for his coverage. The wife stated that the COBRA enrollment deadline was November 16, 2017, and asked the husband to inform her “ASAP” whether he agreed to pay the additional amount. The husband responded to the wife's November 8, 2017 e-mail; however, instead of addressing her health insurance-related inquiry, he raised unrelated issues concerning the parties' children. On November 9, 2017, the wife sent a third e-mail and two letters (via certified and first class mail, respectively) to the husband, indicating that she would not enroll him in COBRA if she did not hear from him before November 16, 2017.² The husband once again failed to respond.

In February of 2018, the husband filed a complaint for contempt alleging that the wife violated the 2003 judgment, as modified by the 2014 judgment, by failing to provide him with health insurance since December of 2017. On May 15, 2018, following an evidentiary hearing, the judge issued a judgment finding the wife not guilty of contempt. The present appeal followed.

Discussion. “We review the judge's ruling that the [wife] was not in contempt for abuse of discretion.” Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). “To prove civil contempt a plaintiff must show two elements: there must be (1) clear disobedience of (2) a clear and unequivocal command.” Id., citing Birchall, petitioner, 454 Mass. 837, 852 (2009). “The contempt must be proved by clear and convincing evidence, and the court is to consider ‘the totality of the circumstances.’ ” Smith, supra, quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009).

Here, the judge concluded that the husband “failed to establish by clear and convincing evidence an intentional violation of a clear and unequivocal order.” The husband claims this was error, arguing that the wife clearly violated the 2014 judgment as she improperly terminated his health insurance coverage, despite continuing to receive reimbursement checks from him. We disagree. “Relying here upon the language of the health insurance clause as a whole, its import is to make the wife responsible for the husband's health insurance only if” the husband provides written consent to being included on her plan. Piwowarczyk v. Piwowarczyk, 95 Mass. App. Ct. 757, 759 (2019). Implicit in this written consent requirement is the husband's agreement to bear the cost of his coverage under the wife's plan. In 2014, the husband provided the wife with written consent to be included on her employer-sponsored plan at a biweekly cost of $55.32. After that employer-sponsored plan was terminated by the wife's employer in 2017, it was incumbent upon the husband to provide the wife with written consent to be included on her new, significantly more expensive COBRA plan. As found by the judge, the husband “failed and refused” to provide such written consent.³

The husband contends, however, that he provided the wife with sufficient notice of his desire to be enrolled in COBRA by continuing to send health insurance reimbursement checks to her, which she did not cash or deposit. Even if such indirect notice were permitted by the 2014 judgment, which we do not suggest, the wife could not reasonably have inferred from the husband's November check in the amount of $55.32 (representing his biweekly share of her employer-sponsored plan), that he consented to being enrolled in the new COBRA plan at a biweekly cost of approximately $220 (approximately four times the amount he was paying under the employer-sponsored plan).

To the extent the husband argues that the 2014 judgment required the wife to maintain health insurance for him, notwithstanding the lack of express consent by the husband to assume a four hundred percent cost increase, such a construction is unreasonable. By the terms of the 2014 judgment, the husband is only obligated to reimburse the wife for health insurance coverage that he has requested in writing. Accordingly, requiring the wife to maintain coverage for the husband when he is under no obligation to reimburse her is contrary to the clear purpose of the 2014 judgment, which is to place financial responsibility for the husband's health insurance coverage with the husband. See Tremouliaris v. Pina, 23 Mass. App. Ct. 722, 725-726 (1987), quoting Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930) (“courts always avoid, if possible, any construction of a contract that is unreasonable or inequitable”). As there is no “clear and unequivocal command” in the 2014 judgment requiring the wife unilaterally to enroll the husband in a new, significantly more expensive health insurance plan without his express, written consent, the judge properly found the wife not guilty of contempt. Smith, 93 Mass. App. Ct. at 363.

Conclusion. The May 15, 2018 judgment is affirmed. The wife's request for appellate attorney's fees and costs incurred to defend the husband's frivolous appeal is allowed,⁴ and she may submit a petition to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this decision. The husband may respond to the petition within twenty days of said filing.

Judgment affirmed.

FOOTNOTES

2.   The certified letter was returned to the wife as “unclaimed,” while the letter sent via regular first class mail was not returned.

3.   The judge found that wife had notified the husband “in writing, on numerous occasions, that she had lost her job and had to enroll in COBRA on or before [November 16, 2017],” and the husband “failed and refused to respond.” This finding is amply supported by the record, including the husband's own testimony acknowledging that he did not provide a written response to the wife's correspondence. To the extent the husband made vague references to a discussion with the wife's counsel, the details of which he was unable to recall, the judge was entitled to “draw inferences adverse to [the husband] from the uncertainties” in his testimony. Crowe v. Fong, 45 Mass. App. Ct. 673, 679 (1998).

4.   See Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979), and 26, as amended, 378 Mass. 925 (1979). See also Avery v. Steele, 414 Mass. 450, 455 (1993), quoting Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984) (“An appeal is frivolous ‘[w]hen the law is well settled, when there can be no reasonable expectation of a reversal,’ ” and determination of whether appeal is frivolous is left to our sound discretion); Love v. Pratt, 64 Mass. App. Ct. 454, 459 (2005).