Jeffrey Buckley v. Karen Buckley.

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-734

JEFFREY BUCKLEY

vs.

KAREN BUCKLEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a contempt hearing, a judge of the Probate and

Family Court (contempt judge) issued a judgment adjudicating

Karen Buckley (wife), the former spouse of Jeffrey Buckley

(husband), guilty of civil contempt for failing to timely comply

with an order pertaining to the division of assets set forth in

a February 2025 judgment of divorce nisi (divorce judgment).

The contempt judge also awarded the husband attorney's fees in

the amount of $1,500, and costs in the amount of eighty dollars.

The wife appeals from the contempt judgment, arguing, among

other things, that there was no evidence demonstrating she

willfully disobeyed the divorce judgment. We reverse the
finding of contempt but affirm the award of $1,580 in attorney's

fees and costs.

Background. The divorce judgment, which was issued by a

different judge on February 6, 2025, provided in relevant part

that:

"In consideration of the division of assets contained
herein, the Wife will pay the Husband $82,000 representing
a buyout of his interest in the [marital home] as well as
consideration for and a settlement of all other claims
raised in the divorce. The Wife shall transfer this sum to
the Husband via certified check as soon as possible, but in
any event no later than thirty (30) days after the Court’s
approval of this Agreement."

In other words, the divorce judgment contemplated that the wife

would pay the husband $82,000 on or before March 8, 2025. The

wife did not make the payment by March 8, 2025.

On March 18, 2025, the husband filed a complaint for

contempt. The wife paid the husband $82,000 on April 8, 2025.

The wife was served with the complaint for contempt the next

day, April 9, 2025. A contempt hearing was held on April 17,

2025.1 Following the hearing, the contempt judge found the wife

in contempt and assessed attorney's fees and costs in the amount

of $1,580.2 This appeal followed.

1 Though the wife referred to the contempt hearing in her
brief, she did not provide a transcript of the hearing. We
exercised our discretion and obtained a copy of the transcript
from the Probate and Family Court clerk's office.

2 The husband sought legal fees in the amount of $3,800.

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Discussion. "To prove civil contempt a plaintiff must show

two elements: there must be (1) clear disobedience of (2) a

clear and unequivocal command." Smith v. Smith, 93 Mass. App.

Ct. 361, 363 (2018). "Before finding a defendant in civil

contempt, the judge must find that the defendant had the ability

to pay at the time the contempt order or judgment is entered."

Department of Revenue Child Support Enforcement v. Grullon, 485

Mass. 129, 134 (2020). In the Probate and Family Court, "[a]t

the hearing of a complaint for civil contempt, the defendant

shall have the burden of proving his or her inability to comply

with the pre-existing order or judgment of which the complaint

alleges violation." G. L. c. 215, § 34. See Birchall,

petitioner, 454 Mass. 837, 850 n.13 (2009); Diver v. Diver, 402

Mass. 599, 603 (1988). "We 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. 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).

As an initial matter, we address the wife's contention that

the contempt complaint should have been dismissed because she

made the payment prior to the contempt hearing. To the extent

that the wife contends that the contempt judge could not

properly hold her in contempt because she was in full compliance

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with the divorce judgment by the time of the contempt hearing,

the wife is correct. See Cooper v. Cooper, 62 Mass. App. Ct.

130, 143 (2004) ("contempt is precluded by the judge's finding

that the [h]usband eventually did pay the money, and has purged

his contempt prior to the hearing" [quotation omitted]).

Nevertheless, the contempt judge could exercise her

discretion pursuant to G. L. c. 208, § 38, to order the wife to

pay the husband's attorney's fees and costs. See Hennessey v.

Sarkis, 54 Mass. App. Ct. 152, 157 (2002) (where husband brought

himself into compliance with divorce judgment prior to contempt

judgment, his appeal of contempt judgment "reduce[d] itself to

the argument that he should not have been assessed attorney['s]

fees"). See also G. L. c. 208, § 38 ("the court may, in its

discretion, award costs and expenses, or either, to either

party . . . . In any case wherein costs and expenses, or

either, may be awarded hereunder to a party, they may be awarded

to his or her counsel, or may be apportioned between them").

Here, "[n]othing in the record demonstrates that, as a

matter of law, the [wife] satisfied [her] burden of proving

[her] inability to comply with the judge's orders." Diver, 402

Mass. at 603. The wife admits her payment was late but argues

that her delayed payment was due in part to her bank's title

company taking two months to finalize her mortgage loan.

However, the mortgage loan was not the only source of funds

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available to the wife. The wife conceded and the contempt judge

found that the wife's financial statement showed she had

sufficient funds in various accounts to pay $82,000 to the

husband prior to March 8, 2025.3 The wife's argument that her

hospitalization prevented her from making the payment on time

was implicitly rejected by the contempt judge given the

availability of assets independent of the mortgage the wife

sought and obtained. The contempt judge did not abuse her

discretion in awarding attorney's fees and costs to the husband

"in order to mitigate expenses incurred as a result of" the

wife's delay in making the required payment.4 Hennessey, 54

Mass. App. Ct. at 157. See L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014) ("trial judge's decision . . . is plainly not an

3 The wife's argument that withdrawing funds from various
retirement accounts would have negatively affected her may have
meant that her late payment to the husband was a rational
economic decision, but it does not mean that she could not have
complied with the agreement and judgment. See G. L. c. 215,
§ 34 (burden is on defendant to prove "his or her inability to
comply with the pre-existing order or judgment" [emphasis
added]).

4 To the extent the wife argues that her due process rights
were violated, we are not convinced. At the contempt hearing,
the judge allowed the wife to explain each of the reasons why
she was allegedly unable to make the payment to the husband by
March 8, 2025. Therefore, the wife was afforded "an adequate
opportunity to present [her] position on all the material issues
raised in" the husband's contempt complaint. Tatar v. Schuker,
70 Mass. App. Ct. 436, 450 (2007), quoting Newman v. Newman, 12
Mass. App. Ct. 874, 875-876 (1981).

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abuse of discretion simply because a reviewing court would have

reached a different result").

Conclusion. We reverse so much of the April 17, 2025

judgment as found the wife guilty of contempt. The portion of

the judgment assessing attorney's fees and costs in the amount

of $1,580 against the wife is affirmed.

So ordered.

By the Court (Henry, Shin &
Toone, JJ.5),

Clerk

Entered: April 14, 2026.

5 The panelists are listed in order of seniority.

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