MARY CRESTA & Another v. MICHAEL CRESTA.

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-1265

MARY CRESTA & another1

vs.

MICHAEL CRESTA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from divorce proceedings in the Probate

and Family Court between the wife, Mary Cresta, and the husband,

Michael Cresta, during a portion of which the husband was

represented by attorney Martha R. Bagley (attorney). After

representing the husband for over a year and a half, the

attorney moved to establish and enforce an attorney's lien

during the divorce proceedings, and the judge allowed the motion

as to the establishment of the lien. After the judgment of

divorce nisi entered, the attorney moved to intervene and

enforce her lien in postjudgment contempt proceedings initiated

by the wife. The judge allowed the motion, found that the lien

1 Martha R. Bagley, intervener.
was established in the amount of $130,000 and the husband had

failed to satisfy it, and appointed a special master to sell the

husband's assets to satisfy the lien. On appeal, the husband

contends that (1) the judge erred in allowing the attorney's

motion to establish her lien without a jury trial or evidentiary

hearing, (2) the judge's order on the motion did not result in

a valid lien, (3) the judge erred in allowing the attorney to

intervene in the contempt proceedings after the judgment of

divorce nisi entered, and (4) the judge erred in enforcing the

lien in the contempt proceedings. Because the husband did not

file the notice of appeal at issue here within thirty days of

the divorce judgment, we dismiss his challenge as to the order

establishing the lien for want of jurisdiction. By filing the

notice of appeal before us, the husband did timely appeal from

the contempt judgment. Because after the divorce judgment the

attorney was required to seek enforcement of the lien in the

Superior Court, we reverse the portions of the contempt judgment

as pertain to the enforcement of the attorney's lien and the

sale of the husband's assets.

Background. The wife filed a complaint for divorce against

the husband on August 31, 2020. The attorney represented the

husband for most of the divorce proceedings, filing her notice

of appearance on April 5, 2021, and withdrawing from

representation on May 8, 2023.

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During the course of her representation, on November 25,

2022, the attorney moved to establish and enforce an attorney's

lien pursuant to G. L. c. 221, § 50. The motion was supported

by her retainer agreement with the husband and an affidavit

attesting to her fees, hours billed, and other costs incurred

during her representation. The husband filed an opposition

demanding a jury trial. Following a hearing on May 3, 2023, the

judge allowed the motion in part, stating in a margin order,

"Allowed as to the establishment of the lien only. Enforcement

is a separate proceeding." That order was dated May 31, 2023,

and entered on June 20, 2023.

The judgment of divorce nisi entered on December 14, 2023.

On March 13, 2024, the wife filed a complaint for contempt

alleging that the husband failed to pay her $80,000 for her

attorney's fees and costs. On April 10, 2024, the attorney

moved to intervene in the contempt proceeding. In an order

dated May 15, 2024, and entered on September 18, 2024, the judge

allowed the motion to intervene. A hearing on the underlying

complaint for contempt was held on May 15, 2024. In a judgment

on the complaint for contempt dated August 27, 2024, and

docketed on September 18, 2024, the judge found the husband

guilty of contempt for failure to pay $80,000 in attorney's fees

to the wife, and also concluded that the attorney's lien had

been established in the amount of $130,000 and that the husband

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had failed to satisfy the lien. The judge appointed a special

master to sell the husband's assets to satisfy the contempt

judgment, including the lien. The husband filed his notice of

appeal on September 19, 2024.

Discussion. 1. Order establishing the attorney's lien.

The husband contends that the judge erred in allowing the

attorney's motion to establish the lien because he was not

granted a jury trial as demanded and the judge did not hold an

evidentiary hearing. Because a timely notice of appeal of the

attorney's lien was not filed, we may not consider such a

challenge as it is "a jurisdictional prerequisite to our

authority to consider any matter on appeal." Wells Fargo Bank,

N.A. v. Sutton, 103 Mass. App. Ct. 148, 152 (2023), quoting

DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 170 (2018).

Specifically, the notice of this appeal was not filed within

thirty days of either the order establishing the attorney's lien

or the divorce judgment, but rather within thirty days of the

subsequent judgment on the wife's complaint for contempt.2

With certain exceptions not applicable to this case, Mass.

R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019),

2 On March 1, 2024, the husband filed a separate notice of
appeal from the judgment of divorce nisi. That notice of appeal
is not included in the record and is not before us now. We
express no opinion on the status or substance of that separate
appeal.

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requires a party to file an appeal within thirty days of entry

of the order or judgment appealed from. See Muir v. Hall, 37

Mass. App. Ct. 38, 40-41 (1994) (where postjudgment motion does

not "fall[] within the second paragraph of rule 4 (a)" and

"do[es] not toll the running of the thirty-day appeal period,"

appeal from order on postjudgment motion brings nothing to this

court but that order). The attorney contends that the judge's

order establishing the lien was subject to an immediate appeal

under Mass. R. A. P. 4 (a) (1) because it was collateral to the

divorce case, conclusively established the amount of the lien,

and left nothing to be addressed other than enforcement. As a

general rule, however, there is no right to appeal from an

interlocutory order unless a statute or rule authorizes it, see

Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 565

(1995), and the attorney's lien statute does not specify when an

order establishing a lien may be appealed. See G. L. c. 221,

§ 50. Furthermore, even when an immediate appeal from an

interlocutory order is available, "a party need not claim an

appeal from an interlocutory order to preserve the party's right

to have such order reviewed upon appeal from the final

judgment." Mass. R. A. P. 3 (a) (2), as appearing in 481 Mass.

1603 (2019). The husband, however, did not file the notice of

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appeal in the instant matter within thirty days of either the

order establishing the lien or the divorce judgment.3

For similar reasons, we reject the husband's contention

that the recording at the Middlesex South registry of deeds with

the judge's endorsement "[a]llowed as to the establishment of

the lien only" does not constitute a valid lien on the real

estate of the husband because it does not identify any property

to which the lien attaches. The registry of deeds is not a

party to this litigation, and to the extent that the husband's

challenge might present any issue suitable for our review, it

implicates the validity of the judge's order establishing the

lien from which, as discussed, the husband did not timely appeal

in this case.

2. Enforcement of the lien in the contempt proceeding.

The husband also argues that the judge erred in allowing the

attorney to intervene in the contempt proceeding after the

divorce judgment entered and in enforcing the lien in that

3 We also note that the husband has not provided a copy of
the transcript of the May 3, 2023 hearing on the attorney's
motion to establish the lien. Under Mass. R. A. P. 18 (a), as
appearing in 481 Mass. 1637 (2019), an appellant has an
obligation to include transcripts that are "essential for review
of the issues raised on appeal." Cameron v. Carelli, 39 Mass.
App. Ct. 81, 84 (1995), quoting Shawmut Community Bank, N.A. v.
Zagami, 30 Mass. App. Ct. 371, 372-73 (1991).

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proceeding.4 We need not address the issue of intervention

because we agree with the husband that the Family and Probate

Court did not have authority to enforce the lien after the

divorce judgment entered.

The attorney's lien statute provides that an "attorney who

appears for a client . . . shall have a lien for [her]

reasonable fees and expenses upon [her] client's cause of

action, counterclaim or claim, upon the judgment, decree or

other order in [her] client's favor entered or made in such

proceeding, and upon the proceeds derived therefrom." G. L.

c. 221, § 50. "Upon request of . . . the attorney, the court in

which the proceeding is pending or, if the proceeding is not

pending in a court, the superior court, may determine and

enforce the lien . . . ." Id. The statute serves to protect

attorneys "against the knavery of their clients, by disabling

the clients from receiving the fruits of recoveries without

paying for the valuable services by which the recoveries were

obtained." Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 413

(2009), quoting Boswell v. Zephyr Lines, Inc., 414 Mass. 241,

4 Even if the intervention order had not been docketed on
September 18, 2024, it would still be appealable under the
husband's September 19, 2024 notice of appeal because the
judgment on the complaint for contempt was entered on September
18, 2024, and an order granting leave to intervene is
interlocutory and cannot be appealed as of right. See Mayflower
Dev. Corp. v. Dennis, 11 Mass. App. Ct. 630, 634 n.8 (1981).

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248 (1993). The statute shall "be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language"

(quotation and citation omitted). Ropes and Gray LLP, supra at

412. We must give effect to every word of the statute. Id. at

414.

Here, the attorney moved to establish and enforce her lien

in the Family and Probate Court while the divorce proceeding was

pending. The judge allowed the motion as to the establishment

of the lien, approximately six months prior to entry of the

divorce judgment. The lien was therefore established in "the

court in which the proceeding is pending." G. L. c. 221, § 50.

See Neuwirth v. Neuwirth, 87 Mass. App. Ct. 640, 640 (2015).

The lien, however, was not enforced until the subsequent

proceeding on the wife's complaint for contempt. Indeed, at the

time the judge established the lien, the judge declined to

enforce it and instead ruled that enforcement of the lien would

take place in "a separate proceeding."

In Neuwirth, 87 Mass. App. Ct. 640-641, this court

considered the Probate and Family Court's authority to enforce

an attorney's lien pursuant to G. L. c. 221, § 50, following the

entry of judgment in an underlying divorce action. We held that

"[e]nforcement of the lien is to be sought in the Superior Court

after entry of judgment." Id. at 641. We were "unpersuaded

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that the proceeding [was] still 'pending' during the nisi period

after the judgment [was] entered in the docket and the period

allowed for notice of appeal to be filed [had] begun to run."

Id. at 641 n.2.

The holding in Neuwirth controls this case. See Neuwirth,

87 Mass. App. Ct. at 641. After the divorce judgment entered,

the divorce proceeding was no longer "pending" for purposes of

G. L. c. 221, § 50. The wife's complaint for contempt initiated

a new proceeding that eventually resulted in a separate

judgment. "Despite the fact that a civil contempt action is

typically docketed with the number of the underlying action

(i.e., the action that produced the order whose violation is

alleged), it is understood to be an action distinct from the

underlying action, culminating in a separate judgment." Jones

v. Manns, 33 Mass. App. Ct. 485, 489 (1992), citing Crystal,

petitioner, 330 Mass. 583, 588 (1953).

The attorney contends that it was appropriate for the judge

to enforce the lien in the contempt proceeding because doing so

prevented the husband from relying on the lien as a ground not

to pay the $80,000 ordered under the contempt judgment. Yet

whatever advantage to the parties or efficiency might have been

achieved by this approach, it contravened the plain language of

the statute and our holding in Neuwirth. See Neuwirth, 87 Mass.

App. Ct. at 641. Because the divorce proceeding was no longer

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"pending" after the divorce judgment, the attorney was required

to seek enforcement of the lien in the Superior Court. G. L.

c. 221, § 50.

Conclusion. The appeal of the order entered on June 20,

2023, establishing the attorney's lien, is dismissed for want of

jurisdiction. The portions of the judgment of contempt entered

on September 18, 2024, enforcing the attorney's lien and

directing the special master to sell the husband's assets to pay

the fees, are reversed. In all other respects, the judgment of

contempt is affirmed.5

So ordered.

By the Court (Rubin,
D'Angelo, & Toone, JJ.6),

Clerk
Entered: November 10, 2025.

5 The attorney's request for attorney's fees is denied.

6 The panelists are listed in order of seniority.

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