Lana Alvarez v. Steven P. Alvarez.

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-110

LANA ALVAREZ

vs.

STEVEN P. ALVAREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing, a judge of the Probate and Family

Court issued a judgment adjudicating Steven P. Alvarez

(husband), the former spouse of Lana Alvarez (wife), guilty of

civil contempt for violating (1) the judgment of divorce by

delaying the sale of the former marital home (home) and (2) an

April 2024 temporary order requiring him to vacate the home and

leave it "broom clean." The husband appeals from the contempt

judgment. We affirm.

Background. The parties divorced in June 2012, and their

separation agreement (agreement) was incorporated into a

judgment of divorce nisi. The agreement required the husband to

maintain the home and stay current on the mortgage. It also
mandated that the home immediately be listed for sale if the

husband violated certain provisions. In 2015, 2018, and 2023,

the wife filed three separate complaints for contempt, each

relating to the husband's failure to make up to date mortgage

payments and pursue a sale of the home. The 2023 complaint is

the subject of these proceedings.

The judge appointed a special master to assist with all

matters raised in the 2023 complaint, including the sale of the

home. In December 2023, the judge ordered the sale of the home

and an evidentiary hearing to be held by the special master

relating to division of the net proceeds from the sale. The

special master engaged a broker to list the home for sale and,

in March 2024, accepted the highest offer without financing

contingencies after consulting with counsel for both parties. A

closing was scheduled for May 14, 2024. The husband had

submitted an offer that was $20,000 higher than the accepted

offer, but the husband's offer had a financing contingency and

was submitted without proof of preapproval.1 On April 10, 2024,

the judge issued a temporary order that authorized the special

master to execute documents relating to the sale of the home and

1 After the special master accepted the third-party offer,
the husband made another offer with proof of preapproval that
remained contingent on financing.

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required the husband to vacate the property by April 30, 2024,

leaving it "broom clean."

In June 2024, the special master held an evidentiary

hearing, after which she filed a report. Following a hearing in

August 2024, the judge adopted the special master's report and

found the husband guilty of contempt of the judgment of divorce

and the order to vacate the home.

Discussion. 1. Indemnity provision of agreement. The

husband argues that the indemnity language in the agreement

prohibits the award of attorney's fees to the wife that was

recommended by the special master and adopted by the judge.

The agreement reads, in relevant part,

"The Parties each agree to fully indemnify and hold the
other harmless from any liability resulting from their
respective breach of an obligation contained in this
Agreement, including reasonable attorneys' fees, costs, and
expenses incurred as a result of such breach, or as a
result of resisting or defending any claims or demands made
by the breaching Party, or by anyone claiming by, through,
or on their behalf."

A judge is permitted by statute to order attorney's fees to a

party filing a contempt proceeding in relation to a divorce

judgment. See G. L. c. 208, § 38. We review the award for an

abuse of discretion. See Freidus v. Hartwell, 80 Mass. App. Ct.

496, 504 (2011). We agree with the special master's finding

that the language in the agreement does not preclude the award.

Rather, it reaffirms that a breaching party is required to cover

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the other party's costs in filing the contempt complaint. See

Northern Heel Corp. v. Compo Indus., 851 F.2d 456, 474-476 (1st

Cir. 1988) (affirming award of attorney's fees to prevailing

party under contract with nearly identical indemnity language).

By statute and under the terms of the agreement, the judge did

not abuse his discretion in awarding fees to the wife.

2. Lack of individual rulings on objections. The husband

argues that the judge erred in adopting the special master's

report without ruling on each of the husband's objections to the

report, in violation of Mass. R. Dom. Rel. P. 53 (h) (2). We

disagree.

Pursuant to Mass. R. Dom. Rel. P. 53 (h) (2), the husband

filed a motion "for the court to act upon to the special

master's report," detailing the husband's objections to the

report. The wife filed a competing motion, asking the judge to

overrule the objections and adopt the special master's report.

In response to a rule 53 (h) (2) motion, a court is permitted to

"adopt the report, strike it in whole or in part, modify it,

recommit it to the master with instructions or take any other

action that justice requires." Mass. R. Dom. Rel. P.

53 (h) (4). Here, the judge held a hearing with the husband,

the wife, and the special master, to review the individual

objections. Contrary to the husband's contention that he was

"deprived . . . of a fair opportunity to present his defenses,"

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the husband had the opportunity in his written motion and at the

hearing to elaborate on each of his objections. After the

hearing, the judge denied the husband's motion, allowed the

wife's motion to adopt the special master's report, and issued a

written judgment. The judgment constitutes action on the

husband's motion and fulfills the requirements of Mass.

R. Dom. Rel. P. 53 (h) (3) and (4).

The husband contends that the judge failed to address the

admissibility of his testimony that the wife told him to ignore

the second mortgage on the home. The special master sustained

the wife's objection to this testimony and excluded it as a

spousal communication that took place prior to the finalization

of the judgment of divorce nisi. Instead of preserving the

excluded evidence for the record by making an offer of proof, as

Mass. R. Dom. Rel. P. 53 (f) (2) permits, the husband agreed

with the ruling. In his written motion and at the hearing on

his objections to the special master's report, the husband

conceded that he did not make an offer of proof at the hearing

because he thought the ruling was correct. Because the husband

failed to make an offer of proof, the judge was not required to

rule specifically on this evidentiary issue. See Lewis v.

Desrosiers, 13 Mass. App. Ct. 997, 999 (1982) (burden on party

objecting to special master report to present adequate record

for review). To the extent that the judge implicitly determined

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that the special master did not abuse discretion by excluding

the testimony, we discern no error.

3. Approval of sale of home. The husband next asserts

that the judge erred by approving the third-party offer on the

home in spite of the husband's higher offer. Because the

husband raises this issue for the first time on appeal, it is

waived. See Libman v. Zuckerman, 33 Mass. App. Ct. 341, 345

(1992) (issues not raised in objections to special master's

report are waived). Even were we to consider this argument, it

is unavailing. The special master informed the judge that she

delayed putting the home on the market to give the husband time

to negotiate a buyout and would have been receptive to an offer

by the husband in the months leading up to the deadline for

offers. However, the husband made the final offer late and it

came with a contingency. The husband had not worked for a long

time and had delayed refinancing the home, in violation of the

agreement, for over ten years. The special master did not abuse

discretion by accepting a lower, all-cash offer. Thus, the

judge did not err in approving the sale.

4. Equitable division of proceeds. The husband argues

further that the judge erred by failing to consider equitable

principles in the division of the proceeds of the house. To

begin, the husband had ample opportunity to introduce evidence

on the equitable division of proceeds during the special

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master's evidentiary hearing, which was transcribed by a

certified court reporter. However, the husband did not produce

the full transcript of the hearing to the judge. Absent a

complete record of the evidentiary hearing, the judge did not

err in adopting the special master's findings and incorporating

them into the judgment of contempt. See Mass. R. Dom. Rel. P.

53 (h) (1). See also Libman, 33 Mass. App. Ct. at 343.2

Judgment dated August 12,
2024, affirmed.

By the Court (Rubin,
Brennan & Wood, JJ.3),

Clerk

Entered: May 1, 2026.

2 The wife's request for attorney's fees under the agreement
due to the contempt finding is allowed. Consistent with the
requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the
wife may file a request for appellate attorney's fees, along
with supporting documentation, within fourteen days of the
issuance of the decision in this case. The husband shall have
fourteen days thereafter within which to respond.

3 The panelists are listed in order of seniority.

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