THOMAS MICHAEL BONAPARTE & Another v. MICHELA DEVOTI.

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

21-P-904

THOMAS MICHAEL BONAPARTE & another1

vs.

MICHELA DEVOTI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from divorce proceedings in the Probate

and Family Court between Michela Devoti (wife) and Thomas

Bonaparte (husband), during a portion of which the wife was

represented by Attorney Lauren G. Klein. After Klein withdrew

from her representation of the wife, she initiated a Superior

Court action to determine the amount of her attorney's lien.

The Superior Court proceedings determined the amount of the lien

and also resulted in the imposition of sanctions on the wife for

vexatious litigation. A Probate and Family Court judge (remand

judge) thereafter issued an "amended judgment on remand" on

September 9, 2021 (amended divorce judgment), providing, among

other things, that all amounts due to Klein under the Superior

1 Lauren G. Klein, intervener.
Court judgment would be paid directly to Klein from the wife's

portion of the property division. The wife appeals, challenging

the portions of the amended divorce judgment pertaining to the

attorney's lien, statutory interest, sanctions, retroactive

child support, college expenses, and property division.2 We

reverse so much of the amended divorce judgment as requires the

parties to contribute to the minor child's future college

expenses. The amended divorce judgment is affirmed in all other

respects.

Background. The parties were married in October 2005, and

their child was born in 2006. Although they lived together as a

family in Massachusetts for a short period of time, during most

of the parties' marriage and throughout the litigation in this

case, the wife and the child have resided in Italy, while the

husband has resided in the United States. In May 2015, the

husband filed a complaint for divorce in the Probate and Family

Court and a judgment of divorce nisi issued in June 2016 (2016

divorce judgment). The wife appealed and, in 2018, this court

vacated the 2016 divorce judgment (except for the portion

dissolving the parties' marriage) and remanded the case for a

new trial because the wife had not been permitted to testify

2 The wife also appeals from a "postjudgment" order dated
September 10, 2021, but makes no separate argument with regard
to this order, which essentially deals with the same issues
already addressed in this appeal.

2
either telephonically or electronically. See Bonaparte v.

Devoti, 93 Mass. App. Ct. 603, 608 (2018). Klein represented

the wife in the divorce proceedings through the entry of the

2016 divorce judgment.

After the 2016 divorce judgment entered, Klein withdrew as

the wife's counsel and moved to enforce her attorney's lien

pursuant to G. L. c. 221, § 50. On August 2, 2016, nunc pro

tunc to July 21, 2016, a Probate and Family Court judge issued

an order providing, in relevant part, that Klein was entitled to

a lien "for her reasonable legal fees and costs, which shall be

paid from any final award or settlement that is entered or made

to the [wife], or from any other proceeds that the [wife] may

receive in this matter"; however, "[t]he amount of this lien is

not hereby determined, but must be determined by a proceeding

brought in another Court" (emphasis omitted).

In December 2016, Klein commenced a Superior Court action

to determine the amount of her attorney's lien. After

unsuccessfully moving to dismiss, the wife filed a number of

motions seeking reconsideration, resulting in her being

sanctioned by a Superior Court judge for vexatious litigation.

She was further sanctioned by another Superior Court judge for

other "behavior throughout th[e] [Superior Court] litigation

that appear[ed] to be intended to delay and to impose

unnecessary burdens on opposing counsel and th[e] [c]ourt." In

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July 2020, following a trial, a different Superior Court judge

issued findings of fact and judgments (1) declaring that

$36,891.60 was the amount of reasonable attorney's fees owed by

the wife for services rendered by Klein in connection with the

divorce proceedings; and (2) requiring the wife to pay the

previously ordered sanctions, in the amount of $3,990, plus

statutory prejudgment interest from December 2019 to July 2020.

The Superior Court judge noted that, with respect to the amount

of the attorney's lien, because he had "not enter[ed] a judgment

for money damages, [he] [did] not address the issue of interest,

which [wa]s for the Probate and Family Court" to decide. The

wife appealed from the Superior Court judgments, which were

recently affirmed by a different panel of this court in an

unpublished memorandum and order. See Klein v. Devoti, 101

Mass. App. Ct. 1106 (2022).

While the Superior Court action was pending, the divorce

matter was remanded to the Probate and Family Court for further

proceedings. Klein moved to intervene in the remanded divorce

proceedings. A one-day divorce trial was held before the remand

judge on February 19, 2021, during which both parties were

represented by counsel. The remand judge allowed Klein's

renewed motion to enforce attorney's lien in an order dated

February 19, 2021.

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In September 2021, the remand judge issued the amended

divorce judgment providing, among other things, that (1) the

husband shall pay weekly child support of $365; (2) the parties

shall equally contribute to the child's college expenses "based

upon his or her ability at the time"; and (3) as part of the

property division, the wife shall receive $79,400 from the

husband, less "all funds due" to Klein "pursuant to [the]

Superior Court [action], plus statutory interest from the date

of the Superior Court [j]udgment through the date of

distribution. Any such funds shall be paid by husband directly

to Attorney Klein at that time." The present appeal by the wife

followed.

Discussion. The wife challenges the portions of the

amended divorce judgment (1) requiring the payment of Klein's

lien, statutory interest, and Superior Court sanctions from the

wife's share of the property division; (2) denying her request

for retroactive child support; (3) allocating financial

responsibility for the child's future college expenses; and (4)

pertaining to the property division. We address her contentions

in turn.

1. Amounts due to Klein. As an initial matter, we note

that many of the issues raised by the wife in connection with

the attorney's lien and the imposition of sanctions were either

already decided in the prior appeal, Klein v. Devoti, 101 Mass.

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App. Ct. 1106 (2022), or were not raised below in the first

instance. We will not revisit those previously decided issues,

see King v. Driscoll, 424 Mass. 1, 7-8 (1996), nor will we

entertain issues that have been raised for the first time on

appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285

(2006). We therefore turn to the wife's remaining contentions

regarding the amounts due to Klein; that the amended divorce

judgment erroneously included statutory interest and sanctions

in the amount to be paid to Klein from the wife's share of the

property division.

"An attorney's lien under G. L. c. 221, § 50, is a tool for

the recovery of legal fees." Ropes & Gray LLP v. Jalbert, 454

Mass. 407, 413 (2009). The purpose of interest under G. L.

c. 231, § 6C3 is to "compensate a damaged party for the loss of

use or unlawful detention of money." Craft v. Kane, 65 Mass.

App. Ct. 322, 328 (2005), quoting Sterilite Corp. v. Continental

Cas. Co., 397 Mass. 837, 841 (1986). Statutory interest may be

awarded on an attorney's lien from the date that the court

enters an order establishing the amount of the lien. Here, the

remand judge awarded "statutory interest from the date of the

3 "In all actions based on contractual obligations, upon a
verdict, finding or order for judgment for pecuniary damages,
interest shall be added by the clerk of the court to the amount
of damages, at the contract rate, if established, or at the rate
of twelve per cent per annum from the date of the breach or
demand. . . ." G. L. c. 231, § 6C.

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Superior Court [j]udgment" establishing the amount of Klein's

lien. See Craft, supra (statutory interest may be awarded on

attorney's lien from date that court enters order establishing

amount of lien). We discern no error in the award of statutory

interest set forth in the amended divorce judgment.

As for the inclusion of sanctions in the amended divorce

judgment, the wife argues in a conclusory fashion that the

attorney's lien "does not apply to sanctions awarded in a

separate adversarial proceeding against a former client." The

wife appears to be arguing that the remand judge lacked

authority to enforce the Superior Court judgment pertaining to

sanctions; however, she provides no relevant legal authority in

support thereof. Accordingly, this contention does not rise to

the level of reasoned appellate argument, and we decline to

consider it. See Mass. R. A. P. 16 (a) (9), as appearing in 481

Mass. 1628 (2019); Zora v. State Ethics Comm'n, 415 Mass. 640,

642 n.3 (1993) ("bald assertions of error" in brief "lacking

legal argument and authority . . . [do not] rise[] to the level

of appellate argument").4 See also Maza v. Commonwealth, 423

4 The wife cites to one case in her reply brief, Torphy v. Reder,
357 Mass. 153, 155-156 (1970), for the proposition that Klein's
attorney's lien may not include the sanctions awarded by the
Superior Court. Notwithstanding that the wife should have
included all relevant legal arguments and supporting authority
in her main brief, see O'Meara v. Doherty, 53 Mass. App. Ct.
599, 606 n.4 (2002), the case cited in her reply brief does not
establish that the remand judge lacked authority to enforce the

7
Mass. 1006, 1006 (1996) (appellant's pro se status does not

excuse noncompliance with rules of appellate procedure).

2. Retroactive child support. The wife asserts that the

remand judge erroneously denied her request for retroactive

child support. We disagree.

We review child support orders for an abuse of discretion.

See Department of Revenue v. C.M.J., 432 Mass. 69, 75 (2000).

The wife contends, again without citing to relevant legal

authority, that the judge abused her discretion in denying the

wife's request for retroactive child support because she was

deprived of adequate child support during the pendency of the

original divorce action, appeal, and remand proceedings. The

remand judge found that, although the wife claimed the husband

"did not provide enough support for [the child] over the years,

Superior Court's judgment regarding sanctions. Although we do
not reach the merits of this issue, we note that there is no
blanket prohibition against seeking enforcement of a monetary
judgment issued by a court of the Commonwealth in another court
of the Commonwealth. See Mass. R. Civ. P. 69, 365 Mass. 836
(1974) (identical to Mass. R. Dom. Rel. P. 69) ("Process to
enforce a judgment for the payment of money shall be a writ of
execution, unless the court directs otherwise. The procedure on
execution, in proceedings on and in aid of execution shall be in
accordance with applicable statutes"); G. L. c. 235, § 14 (b)
("If a judgment is rendered for the plaintiff by a court in an
action founded on a judgment rendered by a different court,
within the commonwealth, execution shall not issue until the
plaintiff files with the court rendering the judgment in the
later action, a certificate of the judgment in the earlier case
under the seal of the court rendering it, attested by the clerk
of such court").

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. . . [the] evidence prove[d] otherwise. [The] [h]usband

consistently paid his child support obligation, . . . all

finances [including travel expenses] required by the Italian

Custody & Visitation Agreement[,] . . . [and] expenses incurred

on behalf of [the child] above and beyond what he was court

ordered to pay," including one-half of the child's private

school tuition. The remand judge determined that the husband's

presumptive child support obligation under the Child Support

Guidelines (guidelines) was $365 per week, based on the parties'

incomes at the time of the remand trial and the parenting plan

under which the child resided principally with the wife. The

remand judge declined to order the husband to contribute to the

child's private school education. The judge was not required to

order retroactive child support under the circumstances of this

case,5 and it was not an abuse of discretion to deny the wife's

request for retroactive support where the judge made detailed

findings explaining the basis for her decision.6 Cf. Boulter-

5 The wife originally raised her request for retroactive child
support in a complaint in equity. Where, as here, a child is
born to married parents, there is no statute requiring a judge
to order retroactive child support for any period predating the
entry of the divorce judgment. See Department of Revenue v.
Roe, 29 Mass. App. Ct. 967, 967-968 (1990). The issue of
awarding retroactive child support for children born to married
parents ordinarily arises in the context of a modification
proceeding. See Boulter-Hedley v. Boulter, 429 Mass. 808, 809-
810 (1999).
6 The remand judge made the following subsidiary findings in

support of her ultimate determination regarding retroactive

9
Hedley v. Boulter, 429 Mass. 808, 812 (1999) (judge denying

request for retroactive modification of child support should

make "specific finding that retroactivity would be . . . unjust,

or inappropriate" under circumstances of case).

3. College expenses. The wife contends that the provision

in the amended divorce judgment requiring the parties to

contribute equally to the child's future post-secondary (i.e.,

college) expenses was premature and therefore improper. We

agree.

"Generally, 'support orders regarding the future payment of

post-high school educational costs are premature and should not

be made' . . . until college is 'imminent' for the child"

(citations omitted). Rosen v. Rosen, 90 Mass. App. Ct. 677, 694

(2016). Here, at the time of the remand trial, the child was

child support. The husband has historically paid, and continues
to pay, for all travel expenses incurred to exercise his
parenting time with the child. Between 2016 and 2020, the
husband incurred approximately $24,535 in travel expenses. The
husband has voluntarily paid one-half of the child's private
school tuition since September 2017. The husband paid
approximately $8,307.19, representing one-half of the child's
middle school expenses over a period of two years. At the time
of trial, the husband was paying approximately $3,000 per year
for the child's high school tuition and miscellaneous school-
related expenses. Beginning in January 2015, the husband made
voluntary child support payments of $100 per week, increasing
them to $150 per week as of September 2015. After the 2016
divorce judgment entered, the husband made weekly child support
payments of $240, consistent with that judgment.

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fifteen years old and in his first year of high school.7 Neither

party raised the issue of allocating responsibility for future

college expenses, and there was no evidence showing that either

(1) the child was preparing to attend college soon, see Cabot v.

Cabot, 55 Mass. App. Ct. 756, 765 (2002), or (2) special

circumstances existed warranting an order for the payment of

college expenses. See Taverna v. Pizzi, 430 Mass. 882, 885-886

(2000); Passemato v. Passemato, 427 Mass. 52, 54-55 (1998).

Accordingly, the provision of the amended divorce judgment

ordering the parties to contribute to the child's future college

expenses was premature and must be reversed. See Lang v. Koon,

61 Mass. App. Ct. 22, 26-27 (2004) (order for payment of college

expenses premature where children were ages fifteen and eleven,

and "and there were no findings of special concerns regarding

either the children or the parents").

4. Property division. When reviewing the distribution of

the marital estate, "[w]e review the judge's findings to

determine whether she considered all the relevant factors under

G. L. c. 208, § 34, and whether she relied on any irrelevant

factors." Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). "We

7 The child started high school in the fall of 2020, only a few
months prior to the remand trial in February 2021. The judge
found that the child would not turn eighteen until January 2024,
more than two years after the entry of the amended divorce
judgment.

11
will not reverse a judgment with respect to property division

unless it is 'plainly wrong and excessive.'" Id., quoting

Baccanti v. Morton, 434 Mass. 787, 793 (2001).

As noted by the remand judge, the "main asset that [was]

contested by the parties [was] the former marital home."8 The

judge was presented with three appraisals dated 2016 ($230,000),

2019 ($285,000), and 2020 ($300,000). The judge used the 2016

appraisal (the year that the parties were divorced) and, after

deducting the mortgage, determined that the marital home had

equity of $98,594.69. The judge found it "equitable" to award

the wife the entirety of her $79,400 contribution to the marital

home's down payment, leaving the husband with the remaining

equity of $19,194.69 (which was only slightly more than his

personal contribution of $18,900 to the down payment. Because

the judge assigned the marital home to the husband, he also

retained the postdivorce appreciation in the home's equity. The

wife contends that she was entitled to a portion of the

8 The parties were each assigned the property held in their
respective individual names because they elected to "have a
separate property regime in accordance with their Italian
marriage certificate and [the] wife's premarital assets." The
wife retained, among other things, two homes in Italy, which she
inherited from her late mother, worth approximately $153,000.
The husband retained, among other things, his retirement account
valued at $88,779.24, which appears to have accrued entirely
postdivorce. The value of the parties' other assets, including
their individual bank account balances, remained relatively
stable between 2016 and 2021.

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postdivorce appreciation, and that the judge erroneously valued

the marital home as of the 2016 divorce. We disagree.

Where, as here, the property division in the 2016 divorce

judgment was vacated and the matter was remanded for a new

trial, "[t]his resulted in the case standing as if no judgment

had been entered with respect to the [property] division."

Johnson v. Johnson, 53 Mass. App. Ct. 416, 420 (2001). The

remand judge "in this instance was charged with dividing the

property anew, applying the § 34 factors as of the date of the

divorce." Id. at 421. The remand judge "then was required to

consider whether there had been any appreciation or depreciation

with respect to the property, and if so, the extent to which

such appreciation was attributable to one or the other of the

parties or to some independent cause." Id. at 421-422. "[I]f

the postdivorce increase . . . [was] attributable only to the

postdivorce efforts of one spouse," the remand judge was to

treat the "postdivorce increase . . . in the value of the

property . . . as an after-acquired asset, not subject to

division." Id. at 421.

Here, the judge found that the wife, aside from her

contribution of $79,400 to the down payment for the marital

home, made "limited contribution toward maintaining the property

over the years." By contrast, the judge found that the husband

had, at all times, been "solely responsible for the mortgage

13
payments, taxes, and improvements to the marital home." The

judge therefore implicitly found that the postdivorce

appreciation of the marital home was attributable solely to the

husband's efforts. See Johnson, 53 Mass. App. Ct. at 422-423

(consideration of one party's "contributions to the upkeep and

improvement of the property, . . . w[as] factor[] that the judge

could properly consider in determining whether appreciation of

the marital property was solely attributable to [that party]").9

Accordingly, we discern no error in the judge's decision to

value the marital home as of 2016. We further conclude that the

property division was not plainly wrong and excessive."10

Conclusion.11 So much of the September 9, 2021 amended

judgment on remand requiring the parties to contribute equally

9 The wife claims that she is entitled to her share of the
marital home's appreciation "that is attributable to the rising
real estate market," rather than to the husband's sole efforts.
However, the cases cited by the wife do not support this
proposition and are distinguishable from the facts of this case.
See Pare v. Pare, 409 Mass. 292, 296 n.4 (1991); Johnson, 53
Mass. App. Ct. at 421.
10 The wife also contends that the remand judge improperly made a

number of findings regarding the parties' postdivorce
circumstances. She does not, however, identify how those
findings resulted in a "plainly wrong and excessive" division of
property. Zaleski, 469 Mass. at 245, quoting Baccanti, 434
Mass. at 793. Moreover, the judge's "consideration of matters
occurring subsequent to the divorce," was not improper, where,
as here, the 2016 divorce judgment was vacated and the property
division had to be considered anew. Johnson, 53 Mass. App. Ct.
at 422.
11 The wife's request for appellate costs is denied.

14
to the child's post-secondary educational expenses is reversed.

The amended judgment on remand is affirmed in all other

respects.

So ordered.

By the Court (Massing,
Singh & Hershfang, JJ.12),

Clerk

Entered: February 28, 2023.

12 The panelists are listed in order of seniority.

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