Leslie A. Scopa Braunstein v. Donnie Braunstein.

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-703

LESLIE A. SCOPA BRAUNSTEIN1

vs.

DONNIE BRAUNSTEIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (wife) appeals from a judgment issued by a

judge of the Probate and Family Court finding the defendant

(husband) not guilty of contempt. The wife contends that the

judge abused her discretion in finding that the husband, her

former spouse, did not violate the terms of the parties' merged

separation agreement by reducing, and eventually ceasing,

"regular" alimony payments upon his retirement. We vacate the

judgment and remand the case to the Probate and Family Court for

further proceedings consistent with this memorandum and order.

1As is our custom, we take the plaintiff's name from the
underlying complaint.
Background. The parties were married on June 28, 1986. On

October 2, 2013, a judge of the Probate and Family Court entered

a judgment of divorce nisi incorporating the separation

agreement of the same date.2 The alimony provisions of the

separation agreement merged with the judgment of divorce.

The merged portion of the separation agreement obligated,

inter alia, the husband to pay "[r]egular [a]limony . . . in the

amount of thirty-five percent (35%) of [the husband's] base

salary" and "supplemental alimony" equivalent to thirty-five

percent of "any gross . . . annual earnings or compensation he

receives from any and all sources." The parties also "agreed to

deviate from the Alimony Reform Act of 2011 . . . as it pertains

to the termination of alimony . . . such that [the husband's]

alimony obligation will not automatically terminate upon [the

husband] reaching full social security retirement age." "To

modify the existing alimony order, either party will be required

to file a [c]omplaint for [m]odification."

On November 29, 2022, the husband sent the wife a letter

stating that he would retire during the first half of 2023.

Through July 2023, the husband paid regular alimony in

accordance with the merged agreement, totaling $10,962 monthly.

On July 14, 2023, the husband retired at the age of sixty-six

2 The judge who entered the judgment of divorce is not the
one who presided over the contempt proceeding.

2
and has not worked since. Between August and December 2023, the

husband paid the wife partial regular alimony totaling $4,600.52

monthly because he believed that to be the difference between

the amount of preretirement regular alimony he owed ($10,962)

and the monthly pension disbursement to which the wife was

entitled (approximately $6,000). The husband ceased paying

regular alimony in December 2023.

In June 2023, the husband filed a complaint for

modification seeking termination of his alimony obligation as of

July 14, 2023, on the basis that his planned retirement due to

alleged health issues constituted a material change in

circumstances. In August 2023, the wife filed a complaint for

contempt against the husband for underpaying alimony by

$6,361.49 and for future amounts that would accrue before the

date of the hearing. The judge held an evidentiary hearing on

February 12, 2024, and subsequently made findings of fact

regarding only the contempt claim.3

The judge found the husband not guilty of contempt. The

judge reasoned that the "[s]eparation [a]greement is clear and

unequivocal -- [the] [h]usband must pay 35% of his base salary;"

therefore, because the "[h]usband . . . has not received any

3 The judge declined to consolidate the modification and
contempt actions. At the time of the appeal, the action for
modification was still pending.

3
employment income since [his retirement] . . . he . . . has not

had an obligation to pay any alimony."

Discussion. "[T]o constitute civil contempt[,] there must

be a clear and undoubted disobedience of a clear and unequivocal

command." Birchall, petitioner, 454 Mass. 837, 851 (2009). The

plaintiff bears the burden of proving contempt by clear and

convincing evidence, and the judge shall consider "the totality

of the circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46,

54 (2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839,

844 (2009). Because this case turns on the obligations dictated

by the separation agreement, we review only whether the alimony

provisions of the agreement constitute a "clear and unequivocal

command" to the husband to continue paying alimony in these

circumstances. Birchall, petitioner, supra.

"The interpretation of the meaning of a term in a

separation agreement or resulting divorce judgment is a question

of law that we consider de novo." Cavanagh v. Cavanagh, 490

Mass. 398, 413 (2022). "[B]ecause a separation agreement is a

contract, to the extent that a judgment incorporates the terms

of a separation agreement, we may apply contract principles to

the interpretation of the judgment." Cavanagh, supra.

"Language in a separation agreement or resulting divorce

judgment is ambiguous when it can support a reasonable

difference of opinion as to the meaning of the words employed

4
and the obligations undertaken" (quotation and citation

omitted). Id.

At issue in this matter are two provisions of the

separation agreement that are in tension with each other. The

first is the "regular alimony" provision, which obligates the

husband to pay thirty-five percent of his base salary to the

wife. The second is the termination provision, which states

that the parties "agreed to deviate" from the Alimony Reform Act

(act) "as it pertains to the termination of alimony . . . such

that [the husband's] alimony obligation will not automatically

terminate upon [the husband] reaching full social security

retirement age." The facts of this case illustrate why these

provisions are ambiguous when read together. The husband,

despite the termination provision that (absent a modification)

extended his alimony obligation past his retirement, sought to

reduce his payment of regular alimony to zero dollars by

voluntarily reducing his salary to zero dollars. When read in

isolation, the percentage-based obligation for paying regular

alimony might seem to allow the husband to cease paying upon

ceasing work, conflicting with the parties' agreement that the

husband seek a judicial modification before terminating alimony

payments even upon reaching full retirement age. Read together,

once the husband attains full retirement age, the provisions may

risk negating each other.

5
The ambiguity is evident in the parties' positions -- each

maintains the agreement is unambiguous, with each asserting the

opposite meaning as correct. On appeal, the wife contends that

the judge erroneously interpreted the two provisions and asserts

that the provision stating the parties' intent to deviate from

the act obligated the husband "to pay alimony at the same amount

even after he reaches full retirement age unless and until a

trial court judge first modifies those obligations pursuant to a

[c]omplaint for [m]odification." The husband challenges the

wife's interpretation, adopting the judge's reasoning that he

did not violate his alimony obligation because thirty-five

percent of zero income results in a zero-dollar regular alimony

payment under the agreement.

Neither interpretation is self-evidently correct, because

each interpretation appears to place too much weight on one

provision and too little on the other. The agreement must be

"construe[d] . . . based on 'a fair construction of the contract

as a whole and not by special emphasis upon any one part,'"

Duval v. Duval, 101 Mass. App. Ct. 752, 757-758 (2022), quoting

Kingstown Corp. v. Black Cat Cranberry Corp., 65 Mass. App. Ct.

154, 158 (2005), "while also recognizing that 'every word is to

be given force so far as practicable.'" Duval, supra at 758,

quoting MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873

(1981).

6
Without extrinsic evidence supporting her interpretation,

the wife's reading is insufficient to support a finding of

contempt because it fails to account for the provision of the

agreement stating the husband's monetary obligation as a

percentage of his base salary, without regard to whether or why

that salary might have decreased to zero dollars. See Wooters,

74 Mass. App. Ct. at 844, quoting Stabile v. Stabile, 55 Mass.

App. Ct. 724, 726-727 (2002) ("[i]ndefinite and uncertain

language cannot support a complaint for contempt because of a

lack of fair notice"). Similarly, without extrinsic evidence

supporting his interpretation, the husband's reading is

insufficient because it gives too little weight to the parties'

stated intent to deviate from the termination provisions of the

act. It provides an avenue through which the husband could

evade the requirement that the parties seek a judicial

modification to terminate the alimony obligation. See Cavanagh,

490 Mass. at 414, quoting Lexington Ins. Co. v. All Regions

Chem. Labs, Inc., 419 Mass. 712, 713 (1995) ("A separation

agreement or resulting divorce judgment 'should be construed in

such a way that no word or phrase is made meaningless by

interpreting another word or phrase'").

Both interpretations proposed by the parties fail to

consider other plausible readings of the two provisions. Where,

as here, "a separation agreement 'is susceptible of more than

7
one meaning and reasonably intelligent persons would differ as

to which meaning is the proper one,' the language is ambiguous,

and resort may be made to extrinsic evidence." Jones v. Jones,

101 Mass. App. Ct. 673, 681 (2022), quoting Bercume v. Bercume,

428 Mass. 635, 641 (1999). On remand, to resolve the ambiguity

of the agreement, the judge should consider extrinsic evidence

provided by the parties regarding their intent in drafting the

seemingly contradictory provisions. This evidence should inform

an interpretation that "'accord[s] with justice and common sense

and the probable intention of the parties . . . [and]

accomplish[es] an honest and straightforward end [and avoids],

if possible, any construction . . . that is unreasonable or

inequitable.'" Krapf v. Krapf, 439 Mass. 97, 105 (2003),

quoting Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930).

The extrinsic evidence also "cannot be used to contradict or

change the written terms, but only to remove or to explain the

existing uncertainty or ambiguity." General Convention of the

New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass.

832, 836 (2007).

Conclusion. The judgment dated March 27, 2024, finding the

husband not guilty of contempt, is vacated. The case is

8
remanded to the Probate and Family Court for further proceedings

consistent with this memorandum and order.4

So ordered.

By the Court (Sacks,
Hershfang & Tan, JJ.5),

Clerk

Entered: July 15, 2025.

4 The husband's request for appellate fees is denied.

5 The panelists are listed in order of seniority.

9