Joel A. Lord v. Marcia J. Berger.

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

23-P-1472

JOEL A. LORD

vs.

MARCIA J. BERGER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties were divorced in August 2019 by a judge of the

Probate and Family Court. The divorce judgment incorporated a

separation agreement. As part of that separation agreement, the

wife agreed to (1) transfer a business the parties operated

during the marriage, ABC Soils, Inc. (ABC Soils or company), to

the husband within thirty days of the signing of the agreement;

(2) pay the husband $50,000 in the same thirty-day time frame;

and (3) provide the company's business records to the husband.

The separation agreement required both parties to cooperate to

fulfill these obligations.

In October 2019, the husband filed a complaint for contempt

alleging that the wife had failed to comply with these
provisions of the separation agreement. After a nonevidentiary

hearing at which the wife represented herself, a judge (first

judge) found the wife in contempt of the judgment, entered an

order to that effect, and continued the matter for "compliance."

Judgment did not enter at that time.

Over the next two years, the wife filed two motions for

reconsideration of the judge's contempt order.1 The first of

these motions, filed on November 12, 2020 (2020 motion), does

not appear to have been acted on; we thus consider it to have

been denied. See Hubbard v. Peairs, 24 Mass. App. Ct. 372, 380

(1987). The second motion was filed by the wife's appellate

counsel on September 16, 2021 (2021 motion). That motion was

heard and denied by another judge (second judge), who entered

judgment on the contempt on October 8, 2021. The wife appealed.

Reading the wife's notice of appeal as encompassing all aspects

of the second judge's judgment -- that is, the entry of the

1 The wife represents that on November 4, 2019, she served
an additional motion, pro se, on the husband's counsel, and
provided documentation of that service to the Probate and Family
Court. That pleading, which is dated before the contempt
finding issued, sought relief from the divorce judgment,
however, not the subsequent contempt order. In any event, it
does not appear from the docket that this motion was ever filed
with the court, and we thus do not consider it. Compare Mass.
R. Civ. P. 5 (a), as amended, 488 Mass. 1402 (2021) (service,
when required), and Mass. R. Civ. P. 5 (b), as appearing in 493
Mass. 1401 (2023) (service, how made), with Mass. R. Civ. P.
5 (d), as amended, 404 Mass. 1401 (1989) (filing).

2
contempt judgment and the denial of the wife's 2020 and 2021

motions for reconsideration -- we affirm.

Discussion. 1. Contempt. A judge's finding of civil

contempt must be supported by "clear and convincing evidence of

disobedience of a clear and unequivocal command." Birchall,

petitioner, 454 Mass. 837, 853 (2009). See Smith v. Smith, 93

Mass. App. Ct. 361, 363 (2018). "We review [a] 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." Commercial Wharf E. Condominium Ass'n v.

Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018).

In this case, the first judge did not abuse her discretion.

The requirements that the wife cooperate in transferring the

company and its records, and that she pay the full $50,000 to

the husband on a defined schedule, were properly considered

"clear and unequivocal command[s]" (citation omitted).

Birchall, petitioner, 454 Mass. at 851. The wife does not argue

that she completed any of these tasks pursuant to the required

timeline, and the record supports the judge's determination that

she did not do so. The record also supports the judge's

implicit conclusion that the wife's noncompliance with the

judgment rose to the level of "clear and undoubted disobedience"

3
of that order2 (citation omitted). Id. The judge was not

required to accept the wife's excuses for her noncompliance with

the separation agreement, and it is apparent that she did not do

so.3 See Casey v. Casey, 79 Mass. App. Ct. 623, 633 (2011)

(appellate court defers to trial judge's credibility

determinations). Finally, where the first judge allowed the

wife to present her argument in detail at the motion hearing, we

are not persuaded that the limited excerpt from the hearing

transcript included in the wife's brief establishes that she was

not "fairly heard."

2. Motions for reconsideration. a. 2020 motion. The

wife's 2020 motion sought reconsideration of the original

contempt order on the ground that the order was based on

"factual errors and omissions." Although the wife did not

specify the basis for her motion (and included scant legal

authority of any kind to support her argument), we consider it

as a motion pursuant to Mass. R. Dom. Rel. P. 60 (b) and, as we

note above, understand it to have been constructively denied

Indeed, at least as far as the wife's failure to transfer
2

the business was concerned, the wife effectively conceded this
point at the motion hearing.

The wife's argument that she lacked the ability to comply
3

with the terms of the separation agreement as incorporated into
the divorce judgment is raised for the first time on appeal and
so is waived. See Carey v. New England Organ Bank, 446 Mass.
270, 285 (2006).

4
when it was not acted on before judgment entered on the

contempt.

There was no abuse of discretion in the denial of this

motion. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of

the Dep't of Developmental Servs., 492 Mass. 772, 785 (2023),

quoting Atlanticare Med. Ctr. v. Division of Med. Assistance,

485 Mass. 233, 247 (2020). Viewing the wife's argument through

the lens of rule 60 (b) (1), we discern no "mistake" on the part

of the judge in her decision on the record before her, and no

"excusable neglect" on the part of the wife in failing to

present at the hearing the facts she later sought to present

through the motion for reconsideration. Mass. R. Dom. Rel. P.

60 (b) (1). See Tai v. Boston, 45 Mass. App. Ct. 220, 222-223

(1998). Moreover, if the motion was brought under rule

60 (b) (2), we conclude that the judge could have properly

decided that none of the "true facts" presented in the

unverified statement attached to the motion were "newly

discovered evidence" for the purposes of the rule. Mass.

R. Dom. Rel. P. 60 (b) (2). See Wojcicki v. Caragher, 447 Mass.

200, 213 (2006). Finally, to the extent that the wife relied on

rule 60 (b) (6), the judge could have properly concluded that

the case did not present the kind of "extraordinary

circumstances which [that section of the rule] is intended to

address." Owens v. Mukendi, 448 Mass. 66, 72 (2006). If there

5
was another basis for reconsideration included in the 2020

motion, the wife has failed to articulate it, and it is not

apparent to us.

b. 2021 motion. The wife fares no better on her appeal

from the denial of her 2021 motion, which explicitly cited to

Mass. R. Civ. P. 60 (b) (1) and 60 (b) (6).4 As we note above,

we are not persuaded that the first judge made any "mistake" in

her original contempt finding, and the wife's argument that rule

60 (b) (1) applies thus fails. Assuming the truth of the wife's

representation that she satisfied her obligations to the husband

after the contempt order issued, we consider it self-evident

that her purging the contempt does not show that the original

contempt order was the result of a "mistake." Nothing in the

wife's 2021 motion otherwise "justif[ied] relief from the

operation of the [contempt order]," Mass. R. Civ. P. 60 (b) (6),

meaning the second judge did not abuse his discretion by denying

it.

4We assume without deciding that where judgment had not
entered, the motion was timely. See Cabral's Case, 18 Mass.
App. Ct. 141, 143-144 (1984) (civil contempt order "entered in
aid of ongoing proceedings . . . is regarded as interlocutory
and not presently appealable"). Additionally, although the wife
relies on Mass. R. Civ. P. 60 (b), rather than Mass.
R. Dom. Rel. P. 60 (b), the language of the two rules is
identical, so the distinction is not significant to our
analysis. See Sahin v. Sahin, 435 Mass. 396, 398 n.4 (2001)
(proper to apply standards applicable to Mass. R. Civ. P. 60 to
motions under Mass. R. Dom. Rel. P. 60; text of two rules is
identical).

6
3. Attorney's fees. The husband seeks an award of

appellate attorney's fees and costs pursuant to Mass. R. A. P.

25, as appearing in 481 Mass. 1654 (2019), on the ground that

the wife's appeal is frivolous. See G. L. c. 211A, § 15.

Because the wife had "no reasonable expectation of a reversal,"

Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984), we agree

that her appeal was frivolous, and an award of appellate

attorney's fees and costs is appropriate. See Avery v. Steele,

414 Mass. 450, 455-457 (1993). Consistent with the requirements

of Fabre v. Walton, 441 Mass. 9, 10 (2004), the husband may file

a request for appellate attorney's fees and costs, along with

supporting documentation, within fourteen days of the issuance

of the decision in this case. The wife shall have fourteen days

thereafter within which to respond.

Conclusion. The judgment of contempt and the orders

7
denying the wife's motions for reconsideration are affirmed.5

The husband's request for appellate attorney's fees and costs is

allowed.

So ordered.

By the Court (Blake, C.J.,
Shin & Hand, JJ.6),

Clerk

Entered: February 19, 2025.

5 To the extent that we discern additional arguments in the
wife's brief, none of them rise to the level of appellate
argument, and we do not consider them. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

6 The panelists are listed in order of seniority.

8