DAVID TESTER v. KERRI ANN TESTER (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Kerri Ann Tester (now McDill) (wife) appeals from a judgment of the Probate and Family Court entered in favor of her former husband, David Tester (husband), on her complaint for contempt. The complaint alleged that the husband failed to comply with certain child support provisions of the parties’ separation agreement (agreement). The relevant provisions merged into a judgment of divorce nisi. On appeal, the wife claims that she was denied her right to an evidentiary hearing and the judge misinterpreted relevant provisions of the agreement, thereby improperly modifying its terms. We affirm.

Background. The parties were married in 2001 and had two children. They were divorced in 2023 and, as noted, the judgment of divorce nisi incorporated their separation agreement. The agreement provided that the husband shall pay weekly child support of $1,363 and “[i]n addition thereto, as additional child support, the Father shall pay to the Mother 20% of the gross amount of any additional earned income from his employer (or via self-employment/consulting, if any) including but not limited to bonuses, equity compensation, signing bonuses, or the like ․” In 2024, after the divorce, the husband no longer earned traditional employment income, but was self-employed. That year he earned around $240,000, about $100,000 less than the amount, $375,000, he had earned previously.

In February 2025, the wife filed a complaint for contempt, alleging that the husband failed to pay “20% of the gross amount of [his] consulting income.” She asserted that, under the agreement, the husband was required to pay 20% of his total self-employment income of around $240,000 that he earned in 2024, in addition to the weekly base child support payments of $1,363, because the $240,000 was earned by doing work as a consultant. Following a nonevidentiary hearing, the judge rejected the wife's argument and found the husband not in contempt. As the judge explained, it was undisputed that the husband had paid the base child support (weekly payments of $1,363) as required under the agreement. At issue was the proper calculation of additional child support. The judge ruled that the meaning of the phrase “additional earned income” in the parties’ agreement referred to “income in excess of that which was used to calculate the Child Support Guidelines at the time of the divorce,” or, because $375,000 was the amount used, “income in excess of $375,000.” She found that the husband earned “only $240,060.88 from self-employment” in 2024, and that even if that income was derived from his consulting work, no additional child support was due to the wife. To conclude otherwise, the judge reasoned “would constitute double dipping” because the husband already paid “child support of $1,363.00 per week on his current (lower) income” and should not be required to pay “an additional 20% of that same income as additional child support.”

Discussion. As noted, the judge did not hold an evidentiary hearing. Neither party requested one and the hearing proceeded on representations of husband's counsel and the wife, who did not have counsel. Despite not requesting an evidentiary hearing, the wife now argues that the judge erred by “failing to hold an evidentiary hearing, given both that [she] had not waived her right to same and that within the context of the hearing, the parties vigorously disputed numerous facts.” To begin with, the wife, as a pro se litigant, is not entitled to be treated any differently than a litigant who is represented by counsel. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018). By failing to request a hearing, the wife has waived her argument on appeal that she was entitled to one. See Boss v. Leverett, 484 Mass. 553, 562-563 (2020).

In any event, an evidentiary hearing was not required here. “[A] judge may properly rule on a complaint for contempt without an evidentiary hearing, or without receiving live testimony. Typically, in such cases, material facts are not in dispute.” Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006) (citations omitted). The wife alleged that the husband failed “to pay as child support to [her] 20% of the gross amount of consulting income, earned since the 02/08/2023 date of divorce,” arguing, therefore, that she was entitled to additional child support beyond the existing weekly amount of $1,363. The judge had sufficient information presented to her by the parties to resolve this claim. Furthermore, the wife had ample opportunity to present her case. Additionally, the wife has not pointed to any material facts which were left unresolved. Instead, she relies on arguments and allegations that the judge did not credit to support her claim that an evidentiary hearing was necessary. Consequently, even if the issue was not waived, we discern no basis for concluding that the wife's right to due process was violated. Giving due regard to the opportunity of the judge “to judge of the credibility of the witnesses,” see Mass. R. Dom. Rel. P. 52 (a), we perceive no reason to disturb the judge's determination on the point.

Next, the wife argues that the judge erred in basing her decision on “a questionable 2023 Child Support Guidelines [w]orksheet.” According to the wife, the judge should not have relied on the Child Support Guidelines worksheet filed in the divorce proceedings to establish an amount of income ($375,000) over which the husband's “additional child support” should be calculated. However, the parties agreed to the exact amount of child support as shown on the Child Support Guidelines worksheet when they executed their agreement, and the agreement was incorporated into the divorce judgment. The judge could properly rely on the Child Support Guidelines worksheet as the divorce judge accepted the same worksheet when he issued the judgment nisi, and did not deviate from the worksheet's presumptive order. Moreover, neither party sought any deviation at the time or disputed the amount used in the calculation. Accordingly, we cannot say the judge's decision to rely on the Child Support Guidelines worksheet was an abuse of discretion as it did not “fall outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We also agree with the judge's interpretation that the agreement does not require the husband to pay 20% of the total income he earned in 2024 in addition to the base child support amount on the ground that the income was earned from consulting and not from an employer. “The question whether a contract is ambiguous is a question of law, as is the interpretation of a separation agreement. We review these claims de novo.” Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 823 (2015) (citations omitted). “If the words of a contract are plain and free from ambiguity, then they must be construed in accordance with their ordinary and usual sense.” Colorio v. Marx, 72 Mass. App. Ct. 382, 388 (2008) (citation omitted). “The mere existence of the parties’ disagreement does not make the language ambiguous.” Browning-Ferris Indus. v. Casella Waste Mgmt. of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011). The judge's interpretation is supported by the plain language of the agreement. The agreement states:

“Father shall pay Mother the sum of one thousand three hundred sixty-three dollars ($1,363) per week as child support, in accordance with the Massachusetts Child Support Guidelines in effect at the execution of this Separation Agreement. In addition thereto, as additional child support, the Father shall pay to the Mother 20% of the gross amount of any additional earned income from his employer (or via self-employment/consulting, if any), including but not limited to bonuses, equity compensation, signing bonuses, or the like, if and when cash payment/disbursement is received by Father; the Father shall not elect to defer any such compensation so as to delay the receipt of same.”

We agree with the judge that the phrase “additional earned income” encompasses compensation outside of the husband's reported $375,000 income at the time of the divorce. Where the husband ceased to be employed and all of his income derived from self-employment, to interpret the language as the wife suggests would result in the husband not only paying the base child support amount of $1,363 based on his reported income, but 20% of that same income as child support as well.¹ This interpretation is inconsistent with the plain language of the agreement.

Lastly, the wife argues that the judge improperly modified the separation agreement when she noted that the agreement “would have been more clear had it stated ‘Father shall pay to the Mother 20% of the gross amount of any additional earned income in excess of $375,000’ ” (emphasis in original). We are not persuaded. The judge was merely (and appropriately) explaining her rationale for her conclusion.

In sum, in order for the husband to be found in contempt, the wife had the burden to prove by clear and convincing evidence that the husband engaged in “disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837 839 (2009). The judge properly concluded that the wife failed to meet her burden.²

Judgment affirmed.

FOOTNOTES

1.   We offer no view of whether the husband was voluntarily underemployed and could be subject to income attribution.

2.   The husband requests an award of his appellate attorney's fees. That request is denied.