CREEDON v. HAYNES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1995, the parties entered into a separation agreement whereby, among other things, the mother agreed to accept a forty-five percent share of the marital portion of the father's pension through the fire department for which he worked, and the father agreed to designate the parties' then-minor children as the beneficiaries on a $100,000 life insurance policy that, he represented in their agreement, was in place through the fire department. The terms of the separation agreement relating to the minor children merged with the judgment of divorce nisi (divorce judgment). In 2011, the mother filed a complaint for contempt of the divorce judgment after learning that the father, in fact, never secured a life insurance policy through the fire department. A Probate and Family Court judge (first judge) found on the record that the father was in contempt and awarded the mother a $100,000 creditor's claim against the father's estate. However, a judgment to that effect was never entered on the docket. When the mother filed a motion for entry of judgment, a second Probate and Family Court judge (second judge) dismissed the contempt complaint because “[t]he issue of [f]ather maintaining life insurance for the benefit of the children to secure his child support payment pursuant to the [1995] [s]eparation agreement is moot as the children are now 29, 33, and 35 years old.” Creedon v. Haynes, 90 Mass. App. Ct. 717, 719 (2016). The mother prevailed on appeal, and we remanded the case for entry of a judgment consistent with the first judge's oral pronouncement that the father was in contempt. See id. at 721. We observed, however, that “our decision does not foreclose the father, upon motion and an appropriate showing, to be relieved of the contempt judgment, pursuant to rule 60 (b).” Id. at 721 n.12.

Pursuant to our order on appeal, on January 12, 2017, the second judge ordered that judgment enter in favor of the mother, as follows: “The [father] is in contempt. The [mother] shall have a creditor[']s claim against his estate for $100,000 to be reduced by any life insurance policy that may be in effect naming [the mother] as beneficiary” (contempt judgment). Six months later, pursuant Mass. R. Dom. Rel. P. 60 (b) (5) and (6), the father filed a motion for relief from the contempt judgment arguing that it was not equitable for the mother to have a claim against his estate because the life insurance provision was intended solely to secure the father's child support obligation, which was no longer in effect because he had fully satisfied that obligation.² On October 4, 2017, a hearing on the father's motion took place before the second judge. The mother, acting pro se, argued that the father should not be relieved of the contempt judgment because her complaint for contempt had not been about maintaining insurance for the benefit of the children. Rather, she claimed, she brought the complaint “because he swindled me” by misrepresenting that such insurance existed in order to obtain concessions from the mother with respect to the division of property. The mother acknowledged that she had not asked for a credit against the father's estate, but asserted that, now that one had been granted to her, “[i]f [the father] doesn't want to give me the 100,000 dollar creditor's claim, he can give me back the other five percent” interest in the father's pension that the mother claims she gave up in reliance on the father's misrepresentation.

On October 19, 2017, the second judge vacated the contempt judgment against the father after finding that the life insurance obligation was intended solely to secure the father's child support obligation, which had ended, and the mother “would receive a windfall that she is not entitled to if she were now to have a creditor's claim against [father]'s estate.”

Twelve days later, on October 31, 2017, the mother filed a motion for reconsideration. The mother's motion for reconsideration of the second judge's October 19, 2017 order vacating the contempt judgment against the father was filed one day past the ten-day deadline for tolling the thirty-day appeals period from the contempt judgment through the filing of such a motion. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013),³ then in effect.⁴ Thus, to be timely, the mother's notice of appeal from the October 19 order vacating the contempt judgment against the father needed to be filed within thirty days of that order, or no later than November 18, 2017. Because the mother's December 1, 2017 notice of appeal was filed more than thirty days after that judgment entered on October 19, 2017, the propriety of the judgment vacating the contempt judgment is not properly before us. See Mass. R. A. P. 4 (a).⁵

On November 3, 2017, the second judge denied the motion for reconsideration in a written decision. As we have noted, on December 1, 2017, the mother untimely appealed from the order vacating the contempt judgment; she did, however, timely appeal from the order denying her motion for reconsideration. The sole matter properly before us, therefore, is the mother's appeal from the judge's denial of her motion for reconsideration.

We review the second judge's decision to deny the motion for reconsideration for an abuse of discretion, see Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012), which we will not find unless “we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Citing to rule 60 (b) (1), (4), and (6), the mother argued in her motion to reconsider that (1) the second judge misunderstood the nature of the contempt complaint, (2) “the [contempt] judgment is based on a remanded judgment that has no standing,” and (3) the father did not satisfy his burden under rule 60 (b) (6).

Discussion. “Decisional law has developed several practical criteria for submission of a request for a [re]consideration” that “apply with special force” where, as here, “the applicant has already received a written, reasoned explanation of a ruling.” Audubon Hill S. Condominium Ass'n, 82 Mass. App. Ct. at 470. The party seeking reconsideration “should specify (1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision.” Id.

The mother's motion for reconsideration cited no changed circumstances, no newly discovered evidence, and no new developments in the law. Instead, the mother claimed error in the second judge's conclusion that “it is no longer equitable that the [contempt] judgment should have prospective application.” Mass. R. Civ. P. 60 (b) (5), 365 Mass. 828 (1974). This determination “will not be disturbed absent an abuse of discretion.” Sahin v. Sahin, 435 Mass. 396, 399 n.6 (2001). See Paternity of Cheryl, 434 Mass. 23, 30 (2001). Seeing none, we conclude that the judge did not err in declining to reconsider her decision to vacate the contempt judgment.

“Civil contempt is a means of securing for the aggrieved party the benefit of the court's order.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997). “[I]ts aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant” (citation and quotations omitted). Birchall, petitioner, 454 Mass. 837, 847-848 (2009). Assuming without deciding that the divorce judgment contained “a clear and unequivocal command” for the father to purchase a $100,000 life insurance policy and name the minor children as beneficiaries, id. at 851, that provision was intended to ensure there were adequate funds available for the minor children's support should the father die during the period of his support obligation. There is no dispute that the father long ago satisfied his obligation without relying on life insurance. Thus, it makes no sense to now “coerce the performance of [the] required act.” Id. at 848. It may be that the first judge awarded the mother a $100,000 creditor's claim that she never asked for in light of this reality. However, in consideration of the reason for the life insurance provision, the second judge concluded that it would be unfair to compensate the mother going forward for the father's past failure to perform an act where that failure resulted in no prejudice to the mother. The second judge's decision does not fall outside the range of reasonable alternatives. See L.L., 470 Mass. at 185 n.27.

The husband's request for an award of attorneys' fees and costs is denied.

Order denying motion for reconsideration affirmed.

FOOTNOTES

2.   The provisions of Mass. R. Dom. Rel. P. 60 are identical to those of Mass. R. Civ. P. 60, 365 Mass. 828 (1974). See Sahin v. Sahin, 435 Mass. 396, 398 n.4 (2001). Therefore, our future reference to rule 60 (b) will be to the rule of civil procedure.

3.   October 29, 2017, was a Sunday, so the ten-day deadline expired on October 30.

4.   In 2019, rule 4 was amended to extend to fourteen days the deadline for filing motions which toll the appeals period. See Mass. R. A. P. 4 (a) (2) (C), as appearing in 481 Mass. 1607 (2019).

5.   The 2019 amendments to rule 4 did not change the thirty-day period in which to notice an appeal. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).