Sheila Mary Cummings v. Theodore William MacRi, Jr.

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

24-P-772

SHEILA MARY CUMMINGS

vs.

THEODORE WILLIAM MACRI, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Theodore William Macri, Jr. (husband), the former spouse of

Sheila Mary Cummings (wife), appeals from a modification

judgment of the Probate and Family Court which, among other

things, requires the husband to reimburse the wife for a portion

of the parties' son's college expenses, pay the wife a certain

amount in child support arrearages,1 transfer funds held in a

Uniform Transfer to Minors Act account (UTMA account) directly

1The total amount due the wife was $21,665. This amount
represented the net "child support arrearage due to [the wife]
from February 1, 2018, through June 8, 2018 ($6,804) and [the
husband's] required contribution to [the son's] sophomore and
junior years at [college] ($31,934), reduced by [the husband's]
overpayment of weekly child support during the period of January
1, 2021 through March 3, 2022 ($17,073)."
to the college at which the son was enrolled to cover the

expenses of the son's senior year, and to contribute $10,000

toward the wife's attorney's fees. We conclude, and the husband

concedes, that so much of the modification judgment that

required the husband to transfer money from the UTMA account is

moot.2 We further conclude that the judge did not err or

otherwise abuse his discretion in connection with the remainder

of the modification judgment and, therefore, we affirm in all

other respects.

Background.3 The parties have been engaged in nearly

continuous litigation since 2008 when the wife commenced divorce

proceedings in Hong Kong. We summarize only so much of the

extensive procedural history and factual background as is

necessary to provide context for our discussion on the issues

presented on appeal. The parties were married in 1998, and had

one child, a son, who was born in 2002. In 2008, they were

living in Hong Kong where the husband was employed in a

lucrative position with Deutsche Bank. The parties eventually

2 The husband conceded the point during oral argument.
Given that concession, and our conclusion that the issue is
moot, we do not consider whether the judge had the authority to
order the husband to transfer the funds or whether such an order
was an abuse of discretion.

3 We draw the facts from the judge's findings and prior
decisions of this court.

2
moved to Massachusetts where divorce proceedings continued.

Following a four-day trial, which concluded in September 2012, a

judge of the Probate and Family Court (divorce judge) issued a

judgment of divorce on December 31, 2013. In relevant part, the

divorce judge awarded sixty percent of the marital assets to the

husband and forty percent to the wife and ordered the husband to

make certain spousal and child support payments, including full

payment of the son's private high school tuition. The disparate

division of assets was due, in part, to the order requiring the

husband to cover the tuition.4 The husband appealed, and while

most of the amended judgment was affirmed by a different panel

of this court in an unpublished memorandum of decision and

order, see Macri v. Macri, 89 Mass. App. Ct. 1115 (2016), the

panel vacated the portion of the judgment which concerned the

spousal support and remanded. A trial after remand on that

issue, and on additional issues raised by the wife in a new

counterclaim, was held before the divorce judge, who issued a

remand judgment on January 12, 2018. The husband appealed

again, and the remand judgment was affirmed by this court in

Macri v. Macri, 96 Mass. App. Ct. 362 (2019).

4 The judgment subsequently was amended; however, the
amendment has no bearing on this appeal.

3
Meanwhile, as the husband's appeal of the remand judgment

was pending, the wife filed a complaint for modification seeking

a continuation of the husband's child support obligations. The

husband filed a counterclaim primarily seeking a reallocation of

his payment toward the son's high school tuition. Thereafter,

when the remand judgment was affirmed in November 2019, the wife

amended her modification complaint and requested that the

husband contribute to the son's college expenses.

The parties then engaged in lengthy settlement

negotiations, which were not successful. Trial on the complaint

for modification and counterclaim commenced before a different

judge of the Probate and Family court (the modification judge)

on March 3, 2022.5

In a thorough and comprehensive decision, the modification

judge ordered the husband to reimburse the wife for a portion of

the college expenses incurred during the son's sophomore and

junior years. In reaching his conclusion, the modification

judge rejected the husband's claim that he was entitled to a

retroactive credit for the amounts he had paid toward the son's

high school tuition. The judge found that because the husband's

payment of the high school tuition was accounted for in the

5 The COVID-19 pandemic delayed the proceedings in this
matter several times. The three days of trial were held on
March 3, 2022, October 14, 2022, and August 23, 2023.

4
division of the marital estate, it was not subject to

reallocation. Further, the husband's earning capacity and

attribution of income as it was established by the remand

judgment was affirmed on appeal. The judge also found that the

husband failed to meet his burden to establish a material change

of circumstances that would warrant the retroactive modification

of his obligation to pay the tuition and that such a

modification would be inequitable and not in the best interest

of the child. Significantly, as to child support, the judge

concluded that a reduction was warranted. The judge found that

the husband did not engage in a diligent job search until the

end of December 2020 but thereafter did so. The judge then

relied on the husband's actual income to calculate his support

obligation from January 2021 through March 2022.6 The judge also

ordered the husband to contribute $10,000 toward the wife's

attorney's fees due to what the judge described as the husband's

"dilatory" conduct during the settlement negotiations.

Discussion. As an initial matter, the wife asserts that

the husband's appeal should be dismissed because his brief does

6 As previously observed in note 1, supra, the modification
judge found that the husband had overpaid $17,073, which was
offset by an arrearage amount of $6,804. In addition, the
husband's obligation to pay for the son's health insurance costs
and to maintain and pay for a life insurance policy for the
son's benefit was terminated.

5
not rise to the level of appellate argument. See Mass. R. A. P.

16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). While we

agree that the brief falls short of what is required under the

rules and our case law, see Adams v. Adams, 459 Mass. 361, 392

(2011), S.C., 466 Mass. 1015 (2013), we exercise our discretion

and address the issues.7

1. Retroactive credit for high school tuition and order to

contribute to college expenses. The husband argues that the

judge should have offset the amount he was required to pay

toward college expenses with a retroactive credit stemming from

his payment of the son's private high school tuition. While it

is true that the husband paid most if not all of the son's high

school tuition, our analysis reveals no abuse of discretion. As

the judge explained, the husband's obligation to pay for high

school tuition was ordered in the divorce judgment and was

reflected in the division of property. "While alimony is

modifiable on the showing of a material change in circumstances

7 For example, many of the citations to the record contained
within the husband's brief are incorrect. At one point, the
husband claims that the modification judge "failed to address
further retroactive relief for consideration of the [husband's]
contribution to college expenses based upon his substantial
private education costs he solely paid," but the modification
judge did address that issue. At another point, the husband
asserts that he "depleted his assets" while the wife's assets
increased, but the citation to the record on which he relies for
this assertion does not support this claim.

6
. . . property settlements are not." Heins v. Ledis, 422 Mass.

477, 483 (1996), citing G. L. c. 208, § 37. As the judge

further noted, the division of property and the husband's

responsibility to pay for high school tuition were upheld on

appeal and, in any event, the husband failed to show a material

change of circumstances or that he did not have the ability to

pay the tuition. Given these circumstances, we discern no abuse

of discretion.

The husband also argues that he should not be required to

pay college expenses because he was excluded from the son's

college decision process and did not explicitly consent to the

son's final selection. This argument is belied by the record,

which demonstrates that the husband's sister, an education

counselor, assisted the son during the college application

process and that both parents were informed of the schools to

which he applied. See generally Mandel v. Mandel, 74 Mass. App.

Ct. 348, 355 (2009) (noting that party who does not seek relief

from court until college selection process has been completed

"may have waived his or her right to object to the college and

its concomitant cost"). In light of these circumstances, even

if the husband was not as involved as he would have liked, we

7
are not persuaded that he was sidelined to the extent that it

was inappropriate for him to contribute to the cost of college.8

2. Award of attorney's fees to wife. We review an award

of attorney's fees for abuse of discretion. See Trethewey v.

Trethewey, 104 Mass. App. Ct. 114, 121 (2024). The judge has

considerable discretion in awarding attorney's fees and "[s]uch

an award is 'presumed to be right and ordinarily ought not to be

disturbed.'" Murphy v. Murphy, 82 Mass. App. Ct. 186, 195

(2012), quoting Moriarty v. Stone, 41 Mass. App. Ct. 151, 159

(1996). The husband argues that the judge abused his discretion

because he did not explicitly address whether the husband had

the income or resources to pay the fees. However, where, as

here, the judge was "personally familiar . . . with the station

of the parties," he could properly rely on this knowledge in

making his decision without further inquiry. Brash v. Brash,

407 Mass. 101, 106 (1990) (award of attorney's fees upheld when

judge had personal awareness of parties' relative socioeconomic

status). In addition, we are not persuaded that the amount was

unreasonable or that the judge, having presided over the trial,

ignored the conduct of the wife's counsel. In fact, the judge

8 Although the husband does not contest the reasonableness
of the costs assessed to him, he does argue the judge failed to
consider the requisite factors as set forth in Mandel, 74 Mass.
App. Ct. at 355. We disagree; the judge did so.

8
explicitly took into account that the wife filed the initial

complaint for modification and, as a result, did not award the

wife her full amount of fees incurred during the three day trial

and posttrial submissions.

3. Appellate attorney's fees and costs. As discussed

earlier, we agree with the wife that the husband's brief does

not rise to the level of an appellate argument and conclude that

an award of attorney's fees and costs is warranted in these

circumstances. The wife may file a petition for fees and costs,

together with supporting materials, within fourteen days of the

date of issuance of this memorandum and order. See Fabre v.

Walton, 441 Mass. 9, 10-11 (2004). The husband shall have

9
fourteen days thereafter to respond. See id.

The appeal from so much of
the modification judgment
entered on January 30, 2024
that required the husband
to transfer money from the
UTMA account is dismissed,
not on the merits but
because it has become moot.
In all other respects, the
modification judgment is
affirmed.

By the Court (Vuono,
Massing & Allen, JJ.9),

Clerk

Entered: November 24, 2025.

9 The panelists are listed in order of seniority.

10