Merrill v. Ewen

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20-P-1321 Appeals Court

GEOFFREY G. MERRILL vs. SARA S. EWEN.

No. 20-P-1321.

Norfolk. February 9, 2023. – July 25, 2023.

Present: Wolohojian, Neyman, & Smyth, JJ.

Real Property, Homestead, Attachment. Divorce and Separation,
Child support. Parent and Child, Child support. Contempt.
Practice, Civil, Contempt, Attachment.

Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on January 21, 1992.

A motion to vacate an attachment of real estate and rescind
the order, filed on July 17, 2019, was heard by Lee M. Peterson,
J., and a motion for reconsideration was also heard by her.

Patricia A. DeJuneas for the defendant.
Daniel P. O'Leary (W. Sanford Durland, III, also present)
for the plaintiff.

WOLOHOJIAN, J. The central issue presented is whether an

attachment of real estate issued on a contempt judgment based on

the father's failure to maintain funds in trust for his

disabled, unemancipated daughter qualifies, under G. L. c. 188,
2

§ 3 (b) (4), as a child support order for a minor child exempt

from a homestead estate. We conclude that the § 3 (b) (4)

exemption extends to orders in the nature of support (such as

the one in this case), and is not limited only to the more

common form of periodic child support payments. However,

because the exemption is available only where the support is for

a "minor child," as that term is defined by the Massachusetts

Homestead Act, see G. L. c. 188, § 1 (act), it does not apply to

the father's obligation here because the unemancipated daughter

is an adult. For this reason, we affirm the judge's

determination that the attachment is subordinate to the earlier-

filed homestead declaration. In addition, we remand to permit

further proceedings on the question of whether the father

satisfied his obligations to maintain a life insurance policy to

secure his obligation to the daughter.

Background. After approximately twenty years of marriage,

the parties entered into a separation agreement in 1993

(separation agreement), the terms of which were incorporated

into a judgment of divorce nisi. The provisions relating to the

parties' two children, and those relating to alimony, merged

into the judgment; the remainder survived as an independent

contract. At the time of divorce, the parties had two minor

children: an eight year old son, and a six year old, disabled,

daughter.
3

Only a few provisions of the separation agreement are

pertinent to this appeal. The first required the father to

apply the distributions of principal from a trust to the

extraordinary educational costs incurred by the parties'

disabled daughter. The second required the father to maintain a

life insurance policy naming the trustee of the trust as

beneficiary so as to meet the father's obligations under the

separation agreement in the event of his death. The third

required the father to pay monthly child support to the mother

until the children were emancipated. Emancipation, as defined

by the separation agreement, was to occur when the children (1)

attained the age of eighteen or graduated from high school,

whichever was later, (2) attained age twenty-three, if enrolled

full time in postsecondary school or college, or graduation,

whichever was earlier, (3) died or married, (4) established

permanent residency away from the residence of the mother, or

(5) established full-time employment after age eighteen.

In 2003, the parties reached an agreement to modify certain

provisions of the separation agreement, and a modification

judgment issued on July 11, 2003 (2003 modification judgment),

incorporating the terms to which the parties had agreed.1 As

1 The parties had previously entered into modification
stipulations in 1995 and 2000, the terms of which do not appear
in the appellate record, and about which no argument is made.
4

part of the 2003 modification agreement, the father warranted

and represented that the trust funds were invested with three

investment firms, and he agreed that he "shall prudently manage"

those funds in order to secure the daughter's extraordinary

educational expenses (as previously agreed in the separation

agreement). The father also agreed to provide the mother with

copies of year-end statements of those accounts, and to

"continue to maintain $100,000 of life insurance" as required by

the separation agreement. In addition, the father was to

continue to pay monthly child support for the daughter until she

became emancipated as that term was defined in the separation

agreement.

The daughter was still a minor at the time of the 2003

modification judgment; she turned eighteen in 2004, and she

turned twenty-one in 2007. Nonetheless, to this day, the

daughter remains unemancipated due to her disabilities, and she

is under the guardianship of her mother.2

In 2017, the mother filed a complaint for contempt alleging

that the father had failed, among other things, to provide the

year-end statements for the trust funds and to maintain the

required life insurance. The father was found to be in contempt

2 In 2005, the mother was appointed guardian in Indiana,
where she then lived.
5

and, among other things, was ordered to provide the required

trust statements by October 27, 2017, and to provide documentary

proof by October 6, 2017, that he had named the trust as the

beneficiary of his life insurance policy (2017 contempt

judgment). The father was also ordered to pay $6,592.84 for

arrearages in child support, uninsured medical expenses, and

health insurance, and $2,648 in counsel fees. The father did

not comply.

The mother then discovered that the father had depleted the

trust funds (amounting to more than $376,000), using the money

for his own purposes. The mother accordingly filed another

complaint for contempt on January 10, 2018, alleging that the

father (1) had failed to pay $11,700 in support payments and

other court-ordered payments; (2) had failed to provide all of

the year-end statements for the trust; (3) had failed to provide

proof that he had changed the beneficiary of his life insurance

policy to the trustee of the trust; and (4) had depleted the

trust funds, using them for his own personal expenses and the

living expenses of the parties' son, even though the daughter

remained unemancipated due to her disabilities and would have

extraordinary educational expenses in the future (2018 contempt

complaint).

Trial on the 2018 contempt complaint was postponed by

stipulation of the parties based on the father's agreement that
6

he would bring himself into compliance with the 2003

modification judgment and the 2017 contempt judgment. The

father represented that he would be able to bring himself into

compliance with his obligations once he sold his interest in a

family property in New Hampshire. When that, too, failed to

pass, the 2018 contempt complaint was set for a pretrial

conference on June 25, 2018.

Ten days before the pretrial conference, the mother served

on the father a motion for an attachment on the father's

residence in the amount of $550,000 (the amount depleted from

the trust funds, plus $100,000 for the insurance policy, plus

unpaid arrearages), alleging that the father had almost $574,000

in equity in the home.3 Six days later, on June 21, 2018, the

father recorded a declaration of homestead, which was designed

to shield $500,000 of equity in the home. See G. L. c. 188,

§ 1. This effectively left only a fraction of the equity in the

home available as potential relief on the 2018 contempt

complaint or for any attachment.

The mother could have filed the attachment motion ex parte
3

so as to avoid giving the father notice of her intent to seek an
attachment, which he then would attempt to avoid by encumbering
the property otherwise. See Mass. R. Dom. Rel. P. 4.1 (f) (ex
parte hearings on property attachments).
7

The father did not inform the court that he had recorded a

homestead declaration.4 Nor did the father oppose the attachment

motion which, after hearing, the judge allowed in the amount of

$550,000, finding that the mother had established a reasonable

likelihood that she would recover judgment in an amount equal to

or greater than that amount on her 2018 contempt complaint. A

writ of attachment issued on June 25, 2018 (four days after the

recording of the homestead declaration), and was recorded one

day later, on June 26, 2018. The father did not pursue an

interlocutory appeal of the attachment order.

Approximately two weeks later, on July 10, 2018, after a

hearing, the judge found the father to be in contempt for (1)

failing to satisfy the arrearages owed to the mother, (2)

failing to pay attorney's fees owed to the mother, (3) depleting

$365,016 in trust funds that were to have been held for the

children's educational expenses; and (4) failing to provide a

$100,000 life insurance policy (2018 contempt judgment). The

judge reduced the attachment amount to $465,016, noting that the

attachment would be further reduced to $365,016 once the father

provided proof of life insurance, and that the attachment would

4 The mother attempts to make much of the fact that the
father did not inform her of the homestead declaration. But the
father had no obligation to give her actual notice of the
declaration; recording the declaration with the registry of
deeds put her on constructive notice. See Bank of America, N.A.
v. Casey, 474 Mass. 556, 560-561 (2016).
8

be eliminated once the father paid $365,016 back to the account

in which it belonged. The father did not appeal the 2018

contempt judgment or its provisions regarding the attachment.

An amended writ of attachment was recorded on September 7, 2018.

Almost a year later, on July 8, 2019, the mother filed a

letter with the register of probate seeking a writ of execution

in the amount of $365,016, plus interest and costs, for a total

of $430,696.40, which was allowed. This prompted the father to

file a motion to vacate the attachment in which, for the first

time, he disclosed to the court the existence of the homestead

declaration. The father argued that the prior recording of the

homestead declaration rendered the subsequent attachments

invalid. The father also filed an emergency motion to rescind

the writ of execution and to bar or enjoin all efforts to

proceed against his real or personal property. The mother

argued that the prior recording of the homestead declaration did

not void the attachments and, moreover, that the attachments

fell within one of the statutory exemptions to the act. See

G. L. c. 188, § 3 (b).

After a hearing, the judge reduced the writ of attachment

from $465,016 to $365,016 on the ground that the father had

provided the wife with proof of $100,000 in life insurance.

Although the judge did not void the attachment, she concluded

that it did not fall within one of the exceptions to the act
9

and, thus, that the attachment was subject and subordinate to

the amount protected by the act. The judge rescinded the writ

of execution.

The wife then filed a motion for reconsideration on the

ground, among others, that the judge had erred in finding that

the wife had agreed that the husband had provided sufficient

proof of his life insurance. The wife noted that, although she

had agreed the husband had shown proof of insurance, she had not

agreed that he had provided proof that the beneficiary of that

insurance was the trust. In response, the judge ordered that

the husband provide a copy of the trust document (nota bene, not

the life insurance policy), including its schedule of

beneficiaries, and allowed the wife to seek a renewed writ of

execution.

What is before us now is the mother's appeal from the

ruling on the father's motion to vacate the attachment, and the

denial of that aspect of her motion for reconsideration

regarding the life insurance.5 On appeal, the mother argues that

(1) the father waived his right to challenge the attachment when

he failed to seek an interlocutory appeal from the attachment or

to appeal the 2018 contempt judgment; (2) the judge erred in

5 The father also filed a notice of appeal from the ruling
on the motion for reconsideration, but he advances no separate
argument concerning it.
10

concluding that the attachment issued on the 2018 contempt

judgment did not fall within an exception to the act; and (3)

the judge abused her discretion in reducing the amount of the

attachment. The father maintains that the judge did not err in

any respect.

Discussion. 1. Homestead Act; exception for child support

orders. Reflecting a "public policy that favors preservation of

the family home regardless of the householder's financial

condition," the Legislature, since the Nineteenth Century, has

protected a "family residence from the claims of creditors" up

to a certain dollar amount, through the mechanism of the act.

Shamban v. Masidlover, 429 Mass. 50, 53 (1999). This

protection, known as a homestead estate, differs from other

types of interests in real property in that it is not "an

aliquot part of the land, but measured by value only." Silloway

v. Brown, 12 Allen 30, 36 (1866). See Doyle v. Coburn, 6 Allen

71, 71 (1863) (homestead estate is "a limited estate"). To

obtain a homestead estate to the extent of the declared

homestead exemption,6 one "or more owners who occupy or intend to

6 We deal here only with the declared homestead exemption
amount. There is also an automatic homestead exemption in the
amount of $125,000 for homeowners who have not filed a valid
homestead declaration, see G. L. c. 188, §§ 1, 4, and a
homestead exemption for elderly or disabled persons, see G. L.
c. 188, § 2.
11

occupy the home as a principal residence" must execute and

record a written declaration of homestead in accordance with the

provisions of § 5 of the act.7 G. L. c. 188, § 3 (a). Once such

an estate is created, $500,000 of the equity in the home is

shielded "from the laws of conveyance, descent, devise,

attachment, seizure, execution on judgment, levy and sale for

payment of debts or legacies." G. L. c. 188, § 3 (b). See

G. L. c. 188, § 1 (definition of "declared homestead

exemption").

7 There is no allegation that the father's homestead
declaration failed to comply with the requirements of G. L.
c. 188, § 5.
12

But this protection is not absolute; there are six

exceptions,8 one of which the mother relies on here.9 See G. L.

c. 188, § 3 (b); Hartog, Baer & Hand, A.P.C. v. Clarke, 99 Mass.

App. Ct. 460, 463 (2021). Specifically, the mother relies on

the exception contained in § 3 (b) (4), which provides that a

8 Section 3(b) provides:

"An estate of homestead shall be exempt from the laws of
conveyance, descent, devise, attachment, seizure, execution
on judgment, levy and sale for payment of debts or legacies
except as follows:

"(1) for a sale for federal, state and local taxes,
assessments, claims and liens;

"(2) for a lien on the home recorded prior to the creation
of the estate of homestead;

"(3) for a mortgage on the home as provided in sections 8
and 9;

"(4) upon an order by a court that a spouse, former spouse
or parent shall pay a certain amount weekly or otherwise
for the support of a spouse, former spouse or minor
children;

"(5) where buildings on land not owned by the owner of the
estate of homestead are attached, levied upon or sold for
the ground rent of the lot upon which they are situated;
and

"(6) upon an execution issued from a court of competent
jurisdiction to enforce its judgment based upon fraud,
duress, undue influence or lack of capacity."

G. L. c. 188, § 3 (b).

9 In the trial court, the mother also argued that this case
fell within the exception contained in § 3 (b) (6), but she does
not press that argument on appeal.
13

homestead estate created under § 3 is not exempt from

attachment, seizure, or execution "upon an order by a court that

a spouse, former spouse or parent shall pay a certain amount

weekly or otherwise for the support of a spouse, former spouse

or minor children." G. L. c. 188, § 3 (b) (4). This provision

does not limit itself to child support orders entered pursuant

to G. L. c. 208, § 28. And we have no difficulty concluding

that the statutory language is broad enough to encompass orders

in the nature of support, such as the one at issue here, which

require a parent to maintain trust funds a disabled,

unemancipated child's educational expenses. See Feinberg v.

Diamant, 378 Mass. 131, 134 (1979) ("a financially able divorced

parent may be required to contribute to the support of an adult

child who by reason of mental or physical infirmity incurs

expenses that he or she is unable to meet"). To conclude

otherwise would throw the exception into undesirable conflict

with the strong public policies favoring enforcement of support

orders, preventing support obligors from avoiding their court-

ordered obligations, and maintaining dependent children "as

completely as possible from the resources of their parents."

G. L. c. 208, § 28.

However, the exception extends only to such support orders

for children who are minors. A minor child, for purposes of the

act, is defined as "a person aged 21 and under, who is the
14

natural or adopted child of an owner or owner's spouse entitled

to the benefits of this chapter." G. L. c. 188, § 1. Here, the

daughter was under twenty-one when the judgment of divorce nisi

entered in 1993, and also when the 2003 modification judgment

entered. Thus, an attachment or execution issued on either of

those judgments would have been exempt from a homestead estate

created under § 3. But the attachment instead was based on the

2018 contempt judgment, which entered when the daughter,

although still unemancipated due to disability, was no longer a

minor child as defined by the act. Accordingly, although the

2018 contempt judgment constituted an order in the nature of

support for a child as contemplated by § 3 (b) (4), it was not

such an order for a minor child as defined by the act, and the

attachment did not fall within the § 3 (b) (4) exception.10

The outcome we reach here, although driven by the plain

language of the act, is counterintuitive and, we think,

undesirable. By enacting the exception contained in G. L.

c. 188, § 3 (b) (4), the Legislature clearly evinced an intent

to prioritize support orders over the homestead estate. But by

limiting the exception to children under the age of twenty-one,

10The mother has not argued that the arrearage portion of
the 2018 contempt judgment constituted an order of support for a
minor child because it was based on an earlier support order
entered when the daughter was still a minor. We therefore do
not consider this possibility.
15

rather than extending it to children entitled to support under

G. L. c. 208, § 28, and unemancipated adult children entitled to

support, it created a distinction at odds with the established,

accepted dimensions of child support. See G. L. c. 208, § 28

(support may be ordered for children up to age twenty-three who

are domiciled in home of parent and principally dependent upon

that parent for maintenance due to enrollment in educational

program); Feinberg, 378 Mass. at 134 ("financially able divorced

parent may be required to contribute to the support of an adult

child who by reason of mental or physical infirmity incurs

expenses that he or she is unable to meet"). The arbitrariness

of the result is seen in this case, where all of the various

judgments stem from the same provision under the separation

agreement that the father hold trust funds for the benefit of

his disabled daughter. But only those orders that entered while

the daughter was twenty-one years old or younger fall within the

G. L. c. 188, § 3 (d) (4) exception, while those that entered

after the daughter reached age twenty-one -- even though they

relate back to the same original obligation and the disabled

daughter remains unemancipated -- do not. This result seems

especially illogical in light of the fact that the later orders

were necessitated by the father's failure to comply with the

earlier ones. We doubt the outcome we reach here was intended
16

by the Legislature, but it is compelled by the Legislature's

definition of "minor child" for purposes of the act.

For these reasons, the judge did not err in concluding that

the attachment was subordinate and subject to the earlier-

recorded homestead declaration. We note that our ruling does

not affect the father's obligations under the various contempt

judgments, nor does it in any way confine the judge's equitable

powers to enforce those judgments. "Civil contempt proceedings

are 'remedial and coercive,' intended to achieve compliance with

the court's orders for the benefit of the complainant" (citation

omitted). Furtado v. Furtado, 380 Mass. 137, 141 (1980). A

judge has broad discretion to fashion remedies in contempt

proceedings to prevent threats to the integrity of court orders.

See Mills v. Mills, 4 Mass. App. Ct. 273, 278 (1976). Although

we offer no opinion as to what the judge may choose to do to

enforce her orders, we note that the available remedies include,

upon appropriate factual showings, a period of incarceration11

and returning the parties to their original positions as though

11The purpose of civil contempt "is to coerce the
performance of a required act by the disobedient party for the
benefit of the aggrieved complainant," Department of Revenue
Child Support Enforcement v. Grullon, 485 Mass. 129, 137 (2020),
quoting Birchall, petitioner, 454 Mass. 837, 848 (2009), and the
judge must determine that the party has the ability to purge
himself of the amount. See Caveney v. Caveney, 81 Mass. App.
Ct. 102, 117-118 (2012).
17

the homestead declaration had not been recorded before the

attachment.12 "Equity generally regards as done that which ought

to be done." Bakwin v. Mardirosian, 467 Mass. 631, 637 (2014).

2. Waiver. The mother argues that the father waived any

ability to challenge the attachment by failing to pursue an

interlocutory appeal after the 2018 attachment entered and by

failing to appeal the 2018 contempt judgment. A homestead

estate pursuant to G. L. c. 188, § 3, is created when a written

declaration satisfying § 5 is recorded. See G. L. c. 188, § 3

("The estate of homestead shall be created by a written

declaration" satisfying the requirements of § 5). Nothing more

is required to trigger the protection of the act. For this

reason, the mother's arguments regarding waiver fail. The

father was not required to challenge or appeal the initial

attachment, or the subsequent contempt judgment, to establish

12The father filed his homestead declaration after he had
failed to comply with the 2017 contempt judgment ordering him to
restore the missing trust funds, he had been served with the
mother's 2018 contempt complaint, he faced imminent hearing on
the 2018 contempt complaint, and he had been served with the
mother's motion for an attachment. Facing these circumstances,
the father resorted to the mechanism of the homestead
declaration in order to attempt to remove $500,000 of equity in
his house from the reach of the mother, as well as from the
court, as relief for his contempt. Considered in tandem with
his decision not to disclose the homestead estate to the court,
these facts might make this case analogous to those involving
fraudulent transfers. In those cases, principles of law and
equity allow a judge to return the parties to their respective
positions as though the transfer had never occurred. See Bakwin
v. Mardirosian, 467 Mass. 631, 637-638 (2014).
18

the validity of the homestead estate for the simple reason that

the legal effectiveness of the homestead declaration sprang into

being on the date the declaration was recorded. See id. Cf.

Dwyer v. Cempellin, 424 Mass. 26, 28-29 (1996) (validity of

homestead declaration to be determined under law in effect on

date of recording).

In light of our conclusion regarding the mother's claim of

waiver, we need not consider the father's argument that he was

entitled to challenge the amount of the attachment at any time

pursuant to G. L. c. 223, § 114. In any event, the father did

not raise or rely upon § 114 below and, therefore, the issue was

not preserved for appeal.

3. Reduction in amount of attachment. The mother argues,

and we agree, that the judge erred in reducing the amount of the

attachment based on her finding that the parties had agreed that

the father had provided proof that the trust was named as a

beneficiary of a $100,000 life insurance policy. In fact, the

mother had only agreed that evidence of a life insurance policy

had been produced, not that proof of its beneficiary had been

produced. The judge's error was compounded when, on

reconsideration, she ordered that the father produce evidence of

the identities of the trust's beneficiaries, rather than of the

life insurance policy.
19

On this record, the judge should not have reduced the

amount of the attachment by $100,000. Nor does the appellate

record disclose whether the father has complied with his

obligation. Accordingly, a remand is necessary to permit the

judge to determine whether, in fact, the father has complied

with his obligation to carry a $100,000 life insurance policy

securing his obligation to provide for the extraordinary

educational expenses of the daughter, and whether he has

provided proof of same to the mother.13

Conclusion. We vacate the portion of the August 1, 2019

order amending the amount of the writ of attachment issued on

June 25, 2018 and amended on July 20, 2018. That order is

otherwise affirmed. We also vacate the September 9, 2019 order

denying the mother's motion for reconsideration. The matter is

remanded for further proceedings consistent with this opinion.14

So ordered.

13Given that the status of the original trust is unknown on
the appellate record, we leave it to the judge to determine on
remand whether the manner in which the beneficiary of the life
insurance trust is identified satisfies the purpose of the
father's obligation.

14The father's request for appellate attorney's fees and
double costs is denied.