ANNA THOMAS v. RICHARD THOMAS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Anna Thomas (wife), appeals from a judgment finding the defendant, Richard Thomas (husband), not guilty of contempt. We affirm.

Twenty years ago in 2006, the parties divorced, and a judge of the Probate and Family Court approved and incorporated a separation agreement into a supplemental judgment of divorce. At issue here is a provision in the divorce judgment that required the husband to pay alimony of (a) almost $45,000 per year in regular intervals and (b) “also pay the [w]ife 30% of any self-employment income after deducting one-half of any FICA, Medicare or self-employment taxes.” The parties agree that the husband has paid the fixed amount of alimony in regular intervals as required. The wife, however, contends that the husband is in contempt of the alimony provision because he has failed to pay an accumulated $780,000 for her thirty percent share of the husband's partnership income that has been earned since 2006.

A civil contempt finding requires “clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 853 (2009). “In assessing whether that has occurred, we ‘look[ ] to the precise words of the order itself’ ” (citation omitted). Linardon v. United States Dep't of Hous. & Urban Dev., 485 Mass. 1005, 1006 (2020). We review the judge's ultimate finding for “abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error” (citation omitted). Jones v. Jones, 101 Mass. App. Ct. 673, 688 (2022). The wife agrees in her brief that we must examine the separation agreement as a matter of law. Based on these governing standards, we affirm.

The wife did not meet her burden of proving that the alimony provision is a “clear and unequivocal command,” Birchall, 454 Mass. at 853, to the husband to pay her thirty percent of his partnership income. Indeed, her brief does not refer to any authority that requires “self-employment income” to be considered synonymous with partnership income. We also note that the separation agreement does not define the phrase “self-employment income” and does not attempt to identify the source of that income. See Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009) (contempt not warranted where “it may not be readily apparent that stock option proceeds constitute one's gross annual income”).

At best, the provision regarding “self-employment income” is ambiguous as it is susceptible to different, reasonable interpretations. See Dorchester Mut. Ins. Co. v. Krusell, 485 Mass. 431, 437 (2020), quoting Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998) (“a term is ambiguous where ‘it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one’ ”). Although “a term is not rendered ambiguous merely by virtue of the fact that the parties disagree as to its meaning,” Dorchester Mut. Ins. Co., 485 Mass. at 437, the fact that the parties each have a reasonable -- but different -- definition of “self-employment income” illustrates our point. The husband views “self-employment income” as narrowly limited to income that he derived from his tax preparation business that folded soon after the divorce. The wife views self-employment income as broadly including the husband's partnership income from Northland Residential LLC subject to taxation as pass through income.

We can likewise envision different definitions for the term. On the one hand, in a general sense, the concept of self-employment suggests a sole proprietorship (like a one-person tax preparation business) where one person is responsible for assets and liabilities. See, e.g., Smith v. Kelley, 484 Mass. 111, 124 (2020) (“sole proprietorship, by definition, is a form of business wherein a single person ‘owns all the assets’ of the business” [citation omitted]); Ladd v. Scudder Kemper Invs., Inc., 433 Mass. 240, 243 (2001) (“sole proprietorship is a business form in which an individual -- rather than, for example, a partnership or corporation -- owns the business”), quoting In re San Juan Dupont Plaza Hotel Fire Litig., 45 F.3d 569, 573 (1st Cir. 1995). On the other hand, in a specific sense, the term self-employment suggests a method of taxing individuals (such as partners) for income passing through a business entity. See, e.g., 26 U.S.C. § 1402 (defining “net earnings from self-employment” to include certain income from a partnership).

Based on our de novo review of the separation agreement, we need not resolve which interpretation of “self-employment income” governs, and we need not examine the judge's consideration of parol evidence. See Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 497 (1997) (parol evidence necessary to explain parties’ intended meaning of word “deli”). It is enough that these varying definitions show the alimony provision incorporated into the judgment lacked a “clear and unequivocal command,” Birchall, 454 Mass. at 853, as to the definition of “self-employment income.” Where, as here, “the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt.” Id. at 852. See Stabile v. Stabile, 55 Mass. App. Ct. 724, 726 (2002) (“we ordinarily resolve ambiguities in divorce decrees in favor of the person charged with contempt”).

We disagree with the wife's various arguments concerning the judge's findings as well as her contention that the separation agreement, as incorporated in the divorce judgment, must be construed against the husband, as the drafter of the agreement, under ordinary principles of contract law. As previously stated, we apply de novo review to the separation agreement and need not advert to factual findings of the judge. Moreover, the rule of law relied on by the wife applies to cases of contract interpretation generally, not cases of contempt. See Cavanaugh v. Cavanaugh, 490 Mass. 398, 414 (2022) (on appeal from modification judgment “written instrument should generally be construed against the party that drafted the ambiguous language”). In cases of civil contempt, we are not merely construing contracts. Instead, “the purpose of civil contempt is remedial: its aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant.” Sodones v. Sodones, 366 Mass. 121, 129-130 (1974). Unlike construing contracts generally, “[W]e determine whether a party is in contempt by looking to the precise words of the order itself” (citation omitted), Bock v. Bd. of Registration in Med., 492 Mass. 1024, 1025 (2023), and we “resolve ambiguities in divorce decrees in favor of the person charged with contempt,” Stabile, 55 Mass. App. Ct. at 726. Looking at the separation agreement incorporated into the judgment here, we discern no basis for contempt.

The parties’ requests for attorney's fees are denied.

Judgment affirmed.