J.M. v. A.M.

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-831

J.M.

vs.

A.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from two contempt complaints filed by

the wife following the entry of a 2018 amended judgment of

divorce. The wife's complaints alleged, in pertinent part, that

the husband violated the amended judgment by not maintaining his

health insurance coverage for the wife and their child and by

failing to provide the wife with a portion of the proceeds

derived from certain stock options. On June 8, 2020, a judge of

the Probate and Family Court (contempt judge) issued a partial

judgment finding that the husband was not in contempt on the

health insurance issue. The wife moved to amend that judgment,

but her motion was denied, in an order dated November 12, 2021.

Also in 2021, the contempt judge issued a supplemental amended
judgment finding that the husband was not in contempt on the

stock option issue and awarding the wife $5,000 in attorney's

fees and costs pursuant to G. L. c. 215, § 34A.1 The wife argues

that the contempt judge abused her discretion by not finding the

husband guilty of contempt as to both issues and by awarding the

wife only a portion of her fees and costs. We affirm the

partial judgment dated June 8, 2020; the order dated November

12, 2021, denying the wife's motion to amend the partial

judgment; and the supplemental amended judgment entered on April

13, 2023, nunc pro tunc to February 12, 2021.

Background. Where, as here, the husband argues that the

chronology in this matter is dispositive, we first lay out the

events leading to the entry of the amended judgment that

underlie the wife's contempt complaints, before summarizing the

background facts relating to each of the wife's claims on

appeal.

The parties were married in 2004. Divorce proceedings

began in 2013. In 2014, the husband was granted the option to

purchase 250,000 shares of stock in the company where he was

employed, subject to a vesting schedule. A trial on the

parties' divorce and multiple contempt actions began in June

1 The contempt judge awarded the wife a portion of her
attorney's fees and costs because she prevailed on another
allegation of contempt not related to this appeal.

2
2015. In or around the fall of 2016, while the divorce trial

was ongoing, the husband's position within the company was

eliminated and he was terminated. He negotiated a severance

agreement to address various issues including the continuation

of his health insurance coverage and the disposition of his

stock options, which would otherwise stop vesting and expire

because of his termination. In early 2017, the husband redeemed

some stock options and converted others to shares for the

parties' children, although the wife did not learn this until

after the divorce trial. The divorce trial concluded in

December 2017. Ultimately, the husband's health insurance

lapsed in March 2018, after it had been extended by some

combination of his severance agreement and COBRA.

On July 6, 2018, the judge who presided over the trial

(divorce judge) issued a judgment of divorce nisi, nunc pro tunc

to December 20, 2017, along with separate findings of fact,

conclusions of law, and rationale. Also in July 2018, following

the original judgment of divorce, the wife filed (1) a motion to

amend the original judgment and (2) a contempt complaint, each

seeking relief relating to the husband's maintenance of health

insurance coverage, among other requests. In an undocketed

judgment dated August 15, 2018, the contempt judge concluded

that the husband was "not guilty of contempt for failure to

maintain health insurance" because "he did not have health

3
insurance at the time of the divorce and does not have health

insurance now."

On October 19, 2018, the divorce judge issued an amended

judgment, nunc pro tunc to December 20, 2017; and, in a separate

document, over 100 pages of amended findings of fact,

conclusions of law, and rationale (findings). The wife filed

several contempt complaints after the entry of the amended

judgment, including those relevant to this appeal. We summarize

the background of each relevant allegation of contempt and the

award of attorney's fees in turn, before turning to the

substance of the wife's claims on appeal.

1. Health insurance. Paragraph twenty of the amended

judgment provided that the husband "shall maintain his current

medical insurance policy covering the unemancipated children and

Wife so long as they are eligible to be covered." On December

19, 2018, the wife filed a contempt complaint (first contempt

complaint) alleging that the husband "[f]ail[ed] and refus[ed]

to cover the children and Wife on his health insurance, causing

the Wife to incur expenses in carrying the children on her

health insurance," in violation of paragraph twenty. A contempt

trial was held on various dates from April 2019 to February 2020

addressing this allegation, among others.2

2 Some matters before the contempt judge, including the
stock options issue, were segregated for later adjudication

4
On June 8, 2020, the contempt judge issued a partial

judgment adjudicating the husband not to be in contempt of

paragraph twenty of the amended judgment. The contempt judge

found that "[t]his Court already adjudicated . . . the

allegation that [the husband] failed to maintain health

insurance for [the wife] and the children. [The husband] was

found not to be in contempt. The Court therefore declines to

address [the wife's] identical allegation."

2. Stock options. The record suggests that there was some

ambiguity at the divorce trial about the husband's stock

options. The divorce judge's findings state that "[t]here was

no credible evidence at trial as to the value of [the husband's]

options or to what extent Husband ha[d] exercised some or all"

of them. The divorce judge found that, on cross-examination,

the husband "denied [that a document presented to him] was

evidence of him having exercised some of the options in January

2017," and she was "unable to draw any conclusions from [that]

limited exchange." As a result, the divorce judge found that

"[t]he value of [the husband's stock] options, if any remain, is

unknown." Similarly, the divorce judge found that the husband

acknowledged transferring shares to the parties' children "in

contravention of the automatic restraining order" imposed by

pursuant to the appointment of a special master to address
substantive and discovery disputes.

5
Rule 411 (a) (1) of the Supplemental Rules of the Probate and

Family Court, but the findings do not state whether these shares

arose from the options. The divorce judge found "no credible

evidence that if Husband had not transferred the shares to the

children, he would retain the shares or be able to exercise them

at a later point in time." As to the disposition of the stock

options, the findings state that

"an equitable division of the assets results in an equal
division of assets, with the exception of two assets that
post-date the parties' separation: Wife's 401k and
Husband's [company] stock options granted in 2014, if any
remain. These two assets will be treated such that the
spouse in whose name the asset stands will receive 65% of
the value, and the other spouse will receive 35% of the
value."

The amended judgment provides,

"In 2014, Husband was granted an option to purchase 250,000
[company] shares at a cost of $2.96 per share subject to a
vesting schedule, with 5,208.33 units vesting each month
between August 15, 2014 and August 15, 2017. Husband's
ability to exercise the options expires on August 24, 2024.
The 250,000 shares are divided equally. Husband shall
exercise the options on or before August 24, 2024. Any
proceeds from the options shall be divided when they are
exercised. When Husband exercises any of these options,
within ten business days of doing so, he shall notify Wife,
provide her with all documentation related to the exercise
of the options, and transfer to her her one half share of
the post-tax amount or value Husband received, after
subtraction of any funds Husband was required to spend in
order to exercise the options."

In contrast to the disposition set forth in the findings --

"any remain[ing]" stock options shall be divided with the wife

receiving around one-third of their value -- this paragraph of

6
the amended judgment (thirty-two) provides for an equal division

of all of the stock options that the husband was granted in

2014, without contemplating that some or all of the stock

options might no longer exist. Relying on the language of the

amended judgment, the wife alleged in a contempt complaint filed

in January 2019 and amended in July 2019 and January 2021

(second contempt complaint) that the husband was in contempt of

paragraph thirty-two because he failed and refused to do the

following: notify the wife of his exercise of the stock

options; provide the wife documentation related to the same; and

provide the wife with her share of the net value he received

from exercising the stock options. On January 29, 2021, the

contempt judge held a trial on the second contempt complaint and

other issues not resolved by the prior, partial judgment. The

contempt judge issued a supplemental judgment and a separate

memorandum of decision on February 12, 2021, and an amended

supplemental judgment on April 13, 2023, nunc pro tunc to

February 12, 2021, deciding the issue of the stock options.

The contempt judge found that "[t]here was no evidence

presented during the divorce trial to enable the trial judge to

determine whether Husband had exercised any [company] options"

at the time of the divorce, but that, as of the amended

supplemental judgement, the wife "now knows that in January of

2017, while the divorce was pending, Husband exercised some of

7
his [company] options, and that with respect to other options,

he did a cashless exchange of the options for [company] shares."

The contempt judge reasoned that the husband was not in contempt

because the wife did not meet her burden of proving by clear and

convincing evidence that the husband "willfully and knowingly

disobeyed" the amended judgment, because she sought "funds with

interest from transactions dated January 13, 2017, which is

almost a year prior to the conclusion of trial, approximately 18

months prior to the date of the original divorce judgment, and

almost two years prior to the date of the" amended judgment.

3. Attorney's fees. The wife sought an award of

$56,275.70 for attorney's fees and costs, including fees paid to

the special master, in connection with the second contempt

complaint. The contempt judge found that the wife's counsel was

competent and that his hourly rate was reasonable. The contempt

judge awarded the wife $5,000, or "approximately 10% of the fees

and costs requested," after considering the parties' financial

circumstances and that the husband opposed the wife's

"legitimate requests for discovery," failed "to provide the

accountant's calculations despite a court order requiring him to

do so," and "was found not to be in contempt on most of the

allegations" raised by the wife.3

3 The contempt judge adjudged the husband to be in contempt
regarding the division of proceeds from the sale of 100,100

8
Discussion. 1. Contempt. "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" (citation omitted). Jones v. Jones, 101

Mass. App. Ct. 673, 688 (2022). "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). "The command must be

clear and unequivocal to the extent that it can be understood by

the person subject to it 'without resort to the evidence at

trial.' An ambiguity does not arise merely because an order,

otherwise clear, may require 'some legal interpretation.'"

(citations omitted). Stabile v. Stabile, 55 Mass. App. Ct. 724,

726 (2002). Here, the wife had the burden of proving the

husband's contempts by clear and convincing evidence,

considering the totality of the circumstances. See Smith,

supra.

a. Health insurance. The wife argues that the contempt

judge incorrectly relied on res judicata when she declined to

find the husband guilty of contempt for his failure to maintain

other shares in the company, not related to the options at issue
on appeal. She ordered relief without a finding of contempt
regarding the management of the parties' children's Uniform
Transfers to Minors Act (UTMA) accounts and the distribution of
income from another entity.

9
health insurance. The wife argues that an undocketed judgment

is not subject to appellate review and therefore cannot be given

preclusive effect. The wife also argues that reliance on the

undocketed judgment is improper where it contained a mistake of

fact in finding that the husband "did not have health insurance

at the time of the divorce." This contention has some heft.

Although the original and amended judgments of divorce were

entered on July 2, 2018, and October 19, 2018, respectively --

notably, after the husband's health insurance had lapsed in

March 2018 -- they were dated "as of December 20, 2017," when

his health insurance remained in effect.

In Piwowarcyzk v. Piwowarczyk, 95 Mass. App. Ct. 757, 759

(2019), this court analyzed the construction of a similar health

insurance provision and held that the bound party, the wife in

that case, was "not obligated to maintain health insurance for

the husband if she is not working or has no access to health

insurance through her employment." The court went on, "if the

wife has no access to health insurance, there is no 'plan' and

the husband therefore cannot be 'eligible under the plan.'" Id.

The same reasoning applies here. The language of paragraph

twenty provides that the husband shall "maintain" his "current"

health insurance policy for "so long as" the parties' children

and the wife "are eligible to be covered." Because the

husband's health insurance lapsed due to a change in his

10
employment, the husband was not in contempt because there was no

"'clear and unequivocal command' that the [husband] maintain

health insurance for the [wife and children] even where [he] has

no access to health insurance through [his] employment." Id. at

760, quoting Birchall, petitioner, 454 Mass. 837, 853 (2009).4

We need not reach the merits of the wife's arguments

regarding res judicata or the alleged erroneous finding in the

undocketed judgment. "[O]n appeal, we may consider any ground

apparent on the record that supports the result reached in the

lower court." Gabbidon v. King, 414 Mass. 685, 686 (1993).

Because other grounds support the partial judgment, we affirm.

b. Stock options. The wife argues that paragraph thirty-

two of the amended judgment is clear and unequivocal that the

husband's stock options and all net proceeds from those options

were to be divided equally, and that the lack of payment to the

wife of those proceeds was a willful violation of the amended

judgment for which the husband should be found guilty of

contempt. The husband argues that paragraph thirty-two was

4 The wife correctly points out that the husband's child
support obligation was based in part on crediting the husband
with health insurance payments. We note that although the
husband could not be found in contempt for the lapse in his
health insurance, the contempt judge was not prevented from
ordering that the husband nonetheless must obtain health
insurance to cover the wife and the parties' children. See
Piwowarczyk, supra at 761. Nor is the wife prevented from
seeking a modification of the child support order. See Morales
v. Morales, 464 Mass. 507, 511 (2013).

11
limited to stock options remaining at the time of the divorce,

and that he therefore cannot be in contempt for retaining

proceeds that arose from such options before the conclusion of

the divorce trial. He further argues that he cannot be in

contempt because his relevant conduct took place before the

divorce decree existed. The contempt judge agreed with this

analysis, finding that the wife did not prove by clear and

convincing evidence that the husband "willfully and knowingly

disobeyed" the amended judgment, because the wife sought "funds

with interest from transactions dated . . . prior to" the trial

and both the original and amended judgments.

The contempt judge did not address directly whether the

husband's failure, after the amended judgment entered, to

"notify Wife, provide her with all documentation related to the

exercise of the options, and transfer to her her one half share

of the post-tax amount or value Husband received, after

subtraction of any funds Husband was required to spend in order

to exercise the options," was contemptuous. However, it may be

inferred from the contempt judge's reasoning that she found that

the amended judgment did not clearly and unequivocally require

division of proceeds from transactions which took place before

the divorce. We agree.

The amended judgment described the 250,000 stock options

and divided them equally. Yet, these stock options did not

12
exist in that form at the time of the amended judgment. In

dividing assets in a divorce action, a judge is limited "to the

property owned by the parties at the time of the divorce."

Heins v. Ledis, 422 Mass. 477, 484 (1996). As such, while the

language of paragraph thirty-two does not directly state that it

only applies to stock options that remain at the time of

divorce, it can be read to include such a limitation.

Such a reading is consistent with, but not dependent on,

the findings, which contemplate the division of the stock

options "if any remain," and acknowledge the absence of credible

evidence at trial as to whether the husband had "exercised some

or all of the options as of the conclusion of trial." This

reading is also consistent with the forward-looking language of

paragraph thirty-two, that "[w]hen Husband exercises any of

these options" he shall provide the wife with notice, documents,

and her share of "[a]ny proceeds." The contempt judge did not

abuse her discretion by declining to find the husband in

contempt.

2. Fees and costs. We review an award of fees and costs

for abuse of discretion. See Tatar v. Schuker, 70 Mass. App.

Ct. 436, 450–451 (2007). "General Laws c. 215, § 34A, creates a

presumption in favor of an award of reasonable fees and costs

for a successful plaintiff in a contempt action. This

presumption 'can be overcome only by specific findings

13
supporting a reduction in a request for reasonable fees.'"

(citations omitted). Coppinger v. Coppinger, 57 Mass. App. Ct.

709, 714 (2003).

The wife argues that the contempt judge abused her

discretion by awarding only $5,000 in costs and fees when the

wife requested $56,275.70. We disagree. In so limiting the

wife's recovery, the contempt judge properly considered many

factors, including the husband's obstructionist conduct in

opposing the wife's legitimate requests for discovery and the

fact that the husband "was found not to be in contempt on most

of the allegations" raised by the wife. Although a more precise

evaluation of the wife's request may have been possible, we do

not conclude that the contempt judge abused her discretion by

awarding "approximately 10% of the fees and costs requested,"

14
where she explained the basis for the reduced award. See

Coppinger, 57 Mass. App. Ct. at 714.5

Partial judgment dated June
8, 2020, affirmed.

Order dated November 12,
2021, denying the wife's
motion to amend the partial
judgment, affirmed.

Supplemental amended judgment
dated April 13, 2023, nunc
pro tunc to February 12,
2021, affirmed.

By the Court (Singh,
D'Angelo & Hodgens, JJ.6),

Clerk

Entered: July 15, 2025.

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

6 The panelists are listed in order of seniority.

15