BENTZ v. GANGELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The former wife (wife) filed two complaints for contempt against the former husband (husband), alleging that he failed to reimburse her for certain child-related expenses as required by the parties' separation agreement, the relevant provisions of which were merged into the divorce judgment. After a trial, a judge of the Probate and Family Court found the husband in contempt, ordered him to reimburse the wife for the expenses, and awarded the wife attorney's fees.² On appeal the husband argues that it was error to find him in contempt because the language of the divorce judgment is not clear and unequivocal. We agree and thus reverse the judgments of contempt. Because the husband may still be responsible for sharing the expenses, however, we remand for further proceedings.

Background. The facts are undisputed. The parties were divorced in November 2015. The divorce judgment incorporated and merged the portions of the parties' separation agreement that pertained to their two minor children.

Two provisions are at issue. The first, captioned “Extracurricular Expenses,” states that “[t]he [h]usband and [w]ife shall share equally for the extracurricular activities and equipment for the minor children, provided that the parties seek, for expenses above $100, prior approval, which approval shall not be unreasonably withheld.” The second, captioned “Health Insurance and Uninsured Medical Expenses,” states that “[a]ll unreimbursed medical expenses ․ shall be shared equally by [h]usband and [w]ife, provided however, neither party shall incur expenses for elective procedures in excess of $100 without obtaining prior approval from the other party, which approval shall not be unreasonably withheld.” This provision also requires the parties “to cooperate fully with each other to ensure that they comply with any requirements of the present or subsequent medical plans covering the minor children.”

From June 2017 to May 2018, the wife incurred numerous uninsured medical expenses and extracurricular expenses on behalf of the children. She did not seek the husband's prior approval because each expense, considered individually, was less than $100. But as discussed further infra, several categories of expenses when considered cumulatively -- i.e., over the course of the medical treatment or extracurricular activity -- exceeded $100. The husband testified that he believed for this reason that he was not responsible for sharing the expenses, where the wife did not seek his prior approval. The husband also testified to his belief that he was not responsible for sharing the cost of psychotherapy for the parties' daughter, both because the wife did not seek his prior approval and because she used an out-of-network provider.

In his written findings, the judge concluded that the husband was responsible for sharing the expenses because “each of [the] transactions” and “each of [the] [psychotherapy] appointments” was under the $100 limit. The judge further concluded that “[t]he parties never agreed to only have in-network providers treat the children.” The judge thus found the husband in contempt and ordered him to reimburse the wife $1,439.66 for the expenses and to pay her $923.70 in attorney's fees.

Discussion. In a civil contempt proceeding, the plaintiff has the burden of proving “(1) clear disobedience of (2) a clear and unequivocal command.” Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). Vague or ambiguous language cannot support a finding of contempt because, among other reasons, “ambiguity carries with it the potential for becoming ‘an instrument of [judicial] severity.’ ” Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. 79, 89 (1977). Ambiguities in a judicial decree are thus “regularly resolved in favor of the alleged contemnor.” Id. “The contempt must be proved by clear and convincing evidence,” and we review a judge's finding of contempt for abuse of discretion. Smith, supra. See Birchall, petitioner, 454 Mass. 837, 853 (2009).

Here, we conclude that finding the husband in contempt was an abuse of discretion because the relevant provisions of the divorce judgment are not clear and unequivocal. Although the wife asserts that the $100 limit applies to individual transactions, the husband provides an alternative reading that precludes a finding of contempt -- namely, that prior approval of the other party is required if it is foreseeable that the costs will exceed $100 over the course of an extracurricular activity or elective medical procedure. The terms “expenses [for extracurricular activities and equipment] above $100” and “expenses for elective procedures in excess of $100” are not clear and unequivocal and reasonably can be construed to mean the total costs for a given “extracurricular activit[y]” or “elective procedure[ ],” as the husband argues.

A closer look at some of the expenses in question supports our conclusion that the husband's reading is tenable. Most notably, on August 21, 2017, the wife requested reimbursement from the husband for $990 she spent on eleven psychotherapy appointments for the parties' daughter. The wife did not seek the husband's prior approval for these expenses because the cost for each individual appointment was $90. Had the wife paid for the entire course of therapy in advance, however, she would have needed the husband's prior approval. The husband argues, not unreasonably, that the divorce judgment's requirement of prior approval should not turn on how the payment is structured and that the wife should have sought his approval if it was foreseeable that the total cost of therapy would exceed $100.³ While we express no opinion on whether the husband's interpretation is correct, it is sufficient, for purposes of contempt, to show that the divorce judgment is not clear and unequivocal. See Sax, 53 Mass. App. Ct. at 772.⁴

This is not to say that the judge was without authority to order the husband to pay his share of the expenses. While we conclude that the husband should not have been found in contempt, the judge was “empowered to enter an order for payment of monies due pursuant to [the judge's] determination of the parties' rights under the [divorce judgment].” Colorio v. Marx, 72 Mass. App. Ct. 382, 389 (2008), quoting Krapf v. Krapf, 55 Mass. App. Ct. 485, 491 (2002). See Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009) (“While we think that the order for the husband to pay the proceeds of his stock options ․ is proper, holding the husband in contempt for failure to pay was not appropriate”); Pederson v. Klare, 74 Mass. App. Ct. 692, 699 (2009) (evidence did not support finding mother in contempt, but proper for “judge to clarify ․ the meaning and requirements of the visitation provision” contained in merged separation agreement). In his findings, however, the judge did not specifically address the husband's proffered interpretation of the divorce judgment, and he noted in several places that “[i]t [was] unclear why” the husband did not reimburse the wife.⁵ We therefore do not read the judge's findings to have resolved the scope of the parties' rights and obligations under the provisions in question.

Remand is appropriate in this situation for the judge to clarify or modify the divorce judgment as necessary and to determine what monies, if any, are owed by the husband to the wife. See Poras v. Pauling, 70 Mass. App. Ct. 535, 543 (2007) (judge is in “unique position to clarify what [he or] she meant” in prior judgment). Accordingly, the amended judgment of contempt dated December 31, 2018, and that part of the judgment of contempt dated June 4, 2019, finding the husband in contempt, ordering him to pay $175.58, and awarding the wife $923.70 in attorney's fees, are reversed, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Reversed and remanded

FOOTNOTES

2.   The awards were set forth in separate judgments. The husband appealed from both judgments, and the appeals were consolidated in this court.

3.   As another example, in November 2017, the wife sought reimbursement from the husband for the costs of swim dues and swim gear for both children. Each expense was individually less than $100. But if considered cumulatively as to each child, the costs for the gear alone exceeded $100.

4.   We need not reach the husband's contention that the divorce judgment is ambiguous as to whether the parties must use in-network providers where available and discuss with the other party if there is a need to go out of network. To the extent the husband seeks clarification of the requirement that the parties “cooperate fully with each other to ensure that they comply with any requirements of the present or subsequent medical plans covering the minor children,” that is an issue that should be resolved by the judge in the first instance.

5.   We note that the husband testified as to why he believed he was not responsible for reimbursement.