Heather Blaser v. Kevin M. Blaser.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-731

HEATHER BLASER

vs.

KEVIN M. BLASER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kevin M. Blaser (father), appeals from a

judgment in the Probate and Family Court finding him guilty of

contempt for failing to preserve certain funds as required by

his separation agreement with the plaintiff, Heather Blaser

(mother), and from a judgment on a complaint for modification

ordering him to make lump-sum payments totaling $55,868.02

toward their two children's college education costs. We affirm

the finding of contempt, but affirm in part the modification

judgment and remand the matter for clarification and, if

necessary, further findings, concerning how the modification

judgment's order of lump-sum payments is to be construed in

connection with the additional order that, after making the
lump-sum payments, the father shall pay one-third of the

children's college expenses.

Background. The parties married in 2003 and had two

children. They divorced in 2008. The divorce judgment

incorporated the parties' separation agreement, which survived

as an independent contract "with respect to all issues except

those issues relating to the children." At issue in this appeal

is the provision of the agreement entitled "College Account for

Children," concerning an existing account that the father had

set up to provide for the children's "future educational needs"

(college account provision). The provision noted the balance of

the account at that time -- "approximately $56,600.51" -- and

stated that the father "shall preserve these funds for the

future educational expenses of the minor children." The

provision continued, "However, this paragraph shall in no way be

construed to restrict the [father's] ability to invest and re-

invest the funds in any manner he so chooses."

In 2022, the mother filed a complaint for contempt,

alleging that the father had violated the divorce judgment by

"failing to preserve and/or utilize the funds . . . for the

future educational expenses of the minor children." A Probate

and Family Court judge issued a "judgment" on the complaint,

finding the father guilty of contempt "for having willfully

neglected and failed to preserve the funds" (contempt order).

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The contempt order further stated that the judge would address

the father's failure to preserve the funds "in any future court

proceedings filed to address the children's educational needs."

Shortly after the entry of the contempt order, the mother

filed a complaint for modification requesting that the court

order the father to "contribute toward college tuition and

expenses for their son and for their daughter when she becomes

enrolled in college full-time." In 2024, following a bench

trial, the same judge issued a judgment on the modification

complaint (modification judgment). The judge ordered (1) that

the father "pay $55,868.02 of the post-secondary educational

costs of the parties' children," with one-half to be paid on

behalf of each child "directly to each child's educational

institution," and (2) that after making those payments, the

father pay one-third of the children's college costs, based on

the in-State resident costs of the University of Massachusetts-

Amherst (UMass Amherst). The father filed a timely notice of

appeal from the modification judgment.

Discussion. 1. Scope of appeal. We first confront a

threshold procedural issue. The father did not file a notice of

appeal after the entry of the contempt order, only after the

modification judgment.1 Normally, a "judgment of civil contempt

1 Although the father timely filed three postjudgment
motions that extended his time to file a notice of appeal under

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is an appealable final judgment." Scott-Jones v. Lu, 447 Mass.

1006, 1006 (2006). See, e.g., M.M. v. D.A., 79 Mass. App. Ct.

197, 197, 200-202 (2011); Tatar v. Schuker, 70 Mass. App. Ct.

436, 437, 440, 446-449 (2007). However, here the judge found

the father in contempt, but did not impose a sanction, and in

fact left the sanction open indefinitely. As such, the contempt

order was interlocutory in nature, and the father is entitled to

challenge it in his appeal from the final judgment. See

Darmetko v. Boston Hous. Auth., 378 Mass. 758, 762 n.6 (1979)

("A contempt order issued during the course of a proceeding has

been held not to be a final order appealable by a party"). Cf.

Mass. R. A. P. 3 (c) (1) (A)-(B), as appearing in 491 Mass. 1601

(2023) (notice of appeal from final judgment need not specify

prejudgment orders subsumed in judgment).

2. Finding of contempt. To hold a party in civil

contempt, the judge must find "clear and convincing evidence of

disobedience of a clear and unequivocal command." Birchall,

petitioner, 454 Mass. 837, 853 (2009). On appeal, "[w]e review

the judge's ultimate finding of contempt for abuse of

discretion, but we review underlying conclusions of law de novo

and underlying findings of fact for clear error." Jones v.

Mass. R. A. P. 4 (a) (2) (A), as appearing in 496 Mass. 1601
(2025), from the contempt order, he failed to file a notice of
appeal after those motions were denied.

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Jones, 101 Mass. App. Ct. 673, 688 (2022), quoting Commercial

Wharf E. Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass.

App. Ct. 523, 532 (2018). Because this case turns on the

language of the separation agreement, we consider whether the

college account provision constituted a "clear and unequivocal

command" to the father to refrain from investment decisions like

the ones that he claimed resulted in the loss of the account

funds.

A separation agreement is "to be construed in accordance

with justice and common sense and the probable intention of the

parties." Whelan v. Frisbee, 29 Mass. App. Ct. 76, 81 (1990).

A provision need not be "a paradigm of clarity" to be

"sufficient to apprise the parties of their respective

obligations under the agreement." Id. In this case, the

college account provision states that the father "shall preserve

these funds for the future educational expenses of the minor

children" (emphasis added). "The word 'shall' is ordinarily

interpreted as having a mandatory or imperative obligation"

(citation omitted). Hashimi v. Kalil, 388 Mass. 607, 609

(1983). Although the provision permits the father "to invest

and re-invest the funds in any manner he so chooses," it would

defy common sense, in light of the preceding sentence, to

interpret the father's latitude as unlimited. The intention

underpinning this language was not to give the father carte

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blanche to "invest" his children's college money in lottery

tickets, for example, or at the racetrack. If such careless or

reckless financial decisions could be considered

"preserv[ation]" of the children's college funds, it would

render the "shall preserve" directive illusory. Cf. Cavanagh v.

Cavanagh, 490 Mass. 398, 415 (2022) (judge's interpretation of

separation agreement -- which, in effect, allowed father to

unilaterally avoid his obligation to pay for child's education

by refusing to agree to any school proposed by mother -- was not

reasonable interpretation because it rendered father's payment

obligation illusory). The judge did not err in determining that

the college account provision constituted a "clear and

unequivocal command," Birchall, petitioner, 454 Mass. at 853, to

manage the account funds with reasonable care.

Nor did the judge err in finding clear and convincing

evidence that the father disobeyed this command by engaging in

injudicious investment and reinvestment of those funds. The

father contends that he permissibly invested the account funds

as he pleased -- in cryptocurrency, cannabis, and other volatile

stocks -- and that his investment choices resulted in the loss

of the funds. However, the judge specifically found "not

credible" the father's testimony about losing the funds through

bad investments and noted his failure to produce documentation

to support his testimony. "We accord the credibility

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determinations of the judge who 'heard the testimony of the

parties . . . [and] observed their demeanor' . . . the utmost

deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3

(2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929

(1999). "In a bench trial credibility is 'quintessentially the

domain of the trial judge [so that his] assessment is close to

immune from reversal on appeal except on the most compelling of

showings.'" Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496

(2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536

(1995). Here, implicit in the judge's finding is his

determination that the father failed to "preserve" the account

funds not by investing them unwisely, but by spending them,

moving them, or otherwise withholding them from the children.

The father has offered no reason for us to conclude that the

judge's credibility finding was clearly erroneous, and we see no

abuse of discretion in the judge's conclusion that the father

was in contempt. See Bisienere v. Buccino, 36 Mass. App. Ct.

749, 754 (1994) (affirming contempt judgment where trial judge

found "defendant's testimony lacked credibility" and financial

documents were inadequate to prove inability to satisfy

judgment).

3. The father's ability to pay. A finding of contempt

"would constitute an abuse of discretion if findings of fact

were not supported by the record or conclusions failed to

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reflect consideration of applicable legal principles."

Greenberg v. Greenberg, 68 Mass. App. Ct. 344, 348 (2007). The

judge's rationale must be apparent in his findings and rulings.

See Rosenberg v. Merida, 428 Mass. 182, 189 (1998) (vacating and

remanding in absence of findings concerning support amount in

modification action, "[b]ecause . . . we cannot determine if the

judge followed the approach that we have prescribed"). A

defendant's present ability to pay is a prerequisite to a

finding of civil contempt. See Aroesty v. Cohen, 62 Mass. App.

Ct. 215, 220 (2004); Larson v. Larson, 28 Mass. App. Ct. 338,

340 (1990) ("the defendant must be found to have the ability to

pay at the time the contempt judgment enters"). "The judge may

order the judgment debtor to pay only if the judge finds that he

has the ability to pay the judgment, at least in part."

Birchall, 454 Mass. at 852. Because the father's disobedience

must be "clear and undoubted," so too must be his ability to

pay. Id.

The judge's finding of ability to pay ordinarily must be

"express." Department of Revenue Child Support Enforcement v.

Grullon, 485 Mass. 129, 134 (2020), quoting Turner v. Rogers,

564 U.S. 431, 448 (2011). In a contempt proceeding involving

noncompliance with a financial order contained in a Probate and

Family Court judgment, the defendant bears the burden of proving

inability to pay. See Birchall, 454 Mass. at 850 n.13; Diver v.

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Diver, 402 Mass. 599, 603 (1988); O'Connell v. Greenwood, 59

Mass. App. Ct. 147, 154 (2003); G. L. c. 215, § 34.

In this case, neither the contempt order nor the

modification judgment contains an ultimate finding expressly

stating that the father had the ability to pay the total lump-

sum amount of $55,868.02. However, the absence of such a

finding is not fatal on this record. The judge made detailed

subsidiary findings addressing the factors relevant to the

father's ability to pay, including his income, expenses, and

liabilities. The judge found that the father's financial

disclosures lacked credibility for several reasons: the father

had not amassed any notable debt despite claiming to be

operating at a significant weekly deficit for many years, failed

to report substantial perquisite or in-kind income received from

his father (who also happened to be his employer2), and failed to

disclose the balance of a retirement account to which he has

been contributing for approximately ten years. In light of the

father's lack of credibility regarding his finances, the judge

permissibly drew adverse inferences against him when assessing

his ability to pay. See Crowe v. Fong, 45 Mass. App. Ct. 673,

2 The judge found that the father, who works for his
father's company, had not received a single raise since the
parties' divorce, despite that other employees who work for the
same company have received several raises during that time
frame.

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678-679 (1998). See also Croak v. Bergeron, 67 Mass. App. Ct.

750, 755-756 (2006); Salten v. Ackerman, 64 Mass. App. Ct. 868,

872-873 (2005); Grubert v. Grubert, 20 Mass. App. Ct. 811, 821-

822 (1985). It is apparent from the judge's detailed subsidiary

findings that the judge found the father had failed to

demonstrate his inability to pay. See Diver, 402 Mass. at 603.

Accordingly, we discern no error in the judge's ultimate

contempt finding against the father.3

The father also argues that the judge failed to make the

findings required by the Child Support Guidelines to support an

order that he pay more than fifty percent of the children's

college expenses. See Child Support Guidelines § II (G) (3)

(Oct. 2021) ("No parent shall be ordered to pay an amount in

excess of fifty percent of the undergraduate, in-state resident

costs of [UMass Amherst], unless the Court enters written

findings that a parent has the ability to pay a higher amount").

This argument may have some force in light of an ambiguity in

3 The father argues that the judge's order with respect to
the college account provision modified the parties' separation
agreement, which survived as an independent contract, and
therefore required something more than a material change of
circumstances. See DeCristofaro v. DeCristofaro, 24 Mass. App.
Ct. 231, 235-236 (1987). This argument fails for two reasons.
First, the order did not modify the parties' separation
agreement, but rather was a remedy intended to enforce the terms
of that agreement. Second, because the provision concerned an
issue "relating to the children," by the very terms of the
separation agreement, it was merged into the divorce judgment.

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the modification judgment. As written, the judgment requires

the father to pay one-half of the total lump sum directly to

each child's college and, "[a]fter making" those lump-sum

payments, to pay one-third of the children's college expenses

(capped at one-third of the cost of UMass Amherst).4 It is

unclear whether the judge intended for the lump-sum payments to

be (1) applied toward the father's obligation to pay for one-

third of the children's college expenses (with the father's

total payments, including each lump sum and subsequent payments,

capped at one-third of the cost of UMass Amherst), or

(2) applied in addition to his obligation to pay for one-third

of the cost of UMass Amherst. To the extent that the judge

intended the latter result, if the father's total payments

toward each child's college expenses (including the lump sum and

subsequent payments) exceeded the fifty-percent cap set forth in

the Child Support Guidelines, the judge was required to make the

specific finding that the father is able to pay more than the

fifty-percent cap. The judge did not make such a finding. We

4 The father argues that the judge erred in ordering him to
pay "the higher cost of Coastal Carolina University" where,
contrary to the separation agreement, the mother did not consult
the father regarding the older child's choice of college. This
argument is nonsensical where the judge ordered the father to
pay one-third of college costs -- including tuition, fees, room,
and board, minus any financial aid -- "based on the in-state
resident costs of [UMass Amherst]."

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therefore remand the matter for the judge to clarify the

modification judgment regarding the application of the lump-sum

payments to the father's obligation to pay for one-third of the

children's college expenses and, if necessary, to make further

findings as to the father's ability to pay.

Conclusion. The contempt finding dated September 9, 2022,

and the modification judgment dated June 18, 2024, are affirmed

to the extent the father was found guilty of civil contempt and

ordered to pay $55,868.02 toward the children's college costs.

The modification judgment is otherwise vacated and the matter is

remanded to the Probate and Family Court for clarification, and

further findings, if necessary, consistent with this memorandum

and order.

So ordered.

By the Court (Massing,
Neyman & Smyth, JJ.5),

Clerk

Entered: April 29, 2026.

5 The panelists are listed in order of seniority.

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