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18-P-274 Appeals Court
SUSAN GODFRIED FEINSTEIN vs. STEVEN FEINSTEIN.
No. 18-P-274.
Norfolk. January 14, 2019. - May 2, 2019.
Present: Agnes, Sacks, & Ditkoff, JJ.
Contempt. Contract, Separation agreement. Divorce and
Separation, Separation agreement, Child support,
Modification of judgment, Parent coordinator, Attorney's
fees. Parent and Child, Child support. Practice, Civil,
Contempt, New trial, Service, Computation of time,
Attorney's fees. Rules of Domestic Relations Procedure.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on December 21, 2011.
Complaints for contempt, filed on August 16 and September
21, 2017, were heard by Elaine M. Moriarty, J., and a motion for
a new trial was considered by her.
Elaine M. Epstein (Richard M. Novitch also present) for the
mother.
Kelly N. Griffin (Donald G. Tye also present) for the
father.
DITKOFF, J. The father, Steven Feinstein, filed a
complaint for contempt against the mother, Susan Godfried
Feinstein, alleging that she violated merged provisions of their
2
separation agreement. A Probate and Family Court judge found
the mother not guilty of contempt but substantially reduced the
father's obligation to pay for the older child's college
education. On the mother's appeal, we conclude that the judge
has the authority to modify a judgment based on the merged
provisions of a separation agreement upon a finding of a
noncontumacious violation of an agreement term merged into the
divorce judgment, but that such modification must be based on a
finding of a material change in circumstances. As the record
does not reflect such a finding, and the record does not reveal
an obvious material change in circumstances, we vacate the
judgment in part and remand for further consideration. Further
concluding that the mother's motion for a new trial or to alter
or amend the judgment under Mass. R. Dom. Rel. P. 59 was timely,
we vacate the denial of that motion.
1. Background. In December 2011, the parties separated
after fourteen years of marriage. In December 2014, they signed
a comprehensive separation agreement (agreement) to settle their
financial affairs and to govern the raising of their two sons.
Pertinent here, they agreed to "confer with each other in an
effort to reach mutual agreement concerning major life decisions
not part of the children's daily routine which affect their
well-being, including without limitation . . . religious
upbringing[] [and] educational choices and alternatives." They
3
ascribe to the Jewish faith, and the agreement contains a
schedule of which parent would have the younger child for which
Jewish holidays.
The agreement provides that the older child and the father
shall remain in counselling with a named psychologist.
Parenting issues regarding the older child are to be addressed
by the psychologist in the first instance. The parties agreed
to submit any "non-financial disputes regarding the[] children,
limited to disputes regarding each child's education, physical
and psychological health . . . , religious education, after
school and extra-curricular activities, and/or welfare and/or
changes to the Parent Schedule" to a parenting coordinator (in
this case, a licensed social worker) prior to submitting them to
the court.
Regarding college, the parties agreed that "[t]he choice of
college or other educational institution shall be made jointly,
with due regard to each child's wishes, welfare, needs and
aptitudes. Neither party shall make a commitment to an
educational institution for a child without the prior agreement
of the other party, which agreement shall not be unreasonably
withheld, conditioned or delayed." The cost of college is to be
paid initially by college educational accounts held by the
father. Expenses not covered by those accounts or scholarships
are to be paid fifty-five percent by the father, and forty-five
4
percent by the mother. The expenses contemplated by the
agreement include "tuition, room and board while residing away
from both parties during college or post-secondary educational
program, registration, books, activity and other fees, books,
and other expenses customarily appearing on the billing
statements from any educational institution, . . . computer and
reasonable transportation to and from school."
On December 22, 2014, a Probate and Family Court judge
approved the agreement and issued a judgment of divorce nisi.
Although numerous provisions of the agreement survive as an
independent contract, the provisions described supra merged with
the judgment and did not survive as an independent contract.
The father quickly became concerned that the children were
not actively practicing Judaism. In or about July 2015, the
father brought his concerns about the younger child's religious
upbringing to the parenting coordinator, who apparently stated
that the father could arrange for religious education himself
during his parenting time. When the younger child proved
resistant, the father did not pursue the matter.
The older child's senior year in high school began in
September 2016. The representations of counsel, credited by the
judge, reflect that the mother believed that the older child was
discussing his college application process with the father
during the sessions with the psychologist. The father asserts
5
that the psychologist "did not want to get involved in any of
this process."1
The father is a professor at a private university in
Massachusetts, and it appears that his children would be
entitled to attend his university tuition-free. In December
2016, the older child sent an e-mail to his father, copying his
mother, that he would not be applying to the father's university
because he had a strong interest in computer science, and that
university did not have a strong computer science program. He
also stated that he did not want to attend the university at
which his father taught and, in any event, wanted a college with
warmer weather. The child reported in the e-mail that he had
told his father the schools to which he was applying and had
shared his "SAT scores, [his] video and other important
information." This e-mail was presented to the judge. The
record reflects no contemporaneous objection by the father to
the child's decision not to apply to the father's university or
to a college in Massachusetts.
1 In fact, based on a meeting with the mother, the parenting
coordinator suggested in an e-mail sent to the father in
September 2016 that she and the father meet to discuss the older
son's college application plans. The father replied that the
discussions should occur with the psychologist and be initiated
by the older child. This e-mail was attached to the mother's
rule 59 motion, and thus the judge did not receive it until
after she had ruled.
6
On April 24, 2017, seven days before the date the father
believed that the college decision had to be made, the father
first expressed concerns about the college selection process to
the mother, in the form of a letter from father's counsel to
mother's counsel requesting numerous documents, including a list
of colleges to which the older child had been admitted. As the
child had been admitted to one college, the University of
Arizona, the mother committed the child to the University of
Arizona without consulting the father. The father learned of
the commitment in May 2017 from a high school guidance
counsellor.
In August 2017, the father filed a complaint for contempt,
alleging that the mother violated provisions of the agreement,
which were merged into the divorce judgment, by unilaterally
committing the older child to the University of Arizona and by
"[d]iscouraging the children from practicing the Jewish faith."2
The mother's answer requested attorney's fees for opposing the
complaint for contempt. The mother also filed her own complaint
for contempt based on the father's failure to pay his share of
the older child's college expenses.3
2 The father accuses the mother of attending a Christian
church and observing Christian holidays. The mother denies
this.
7
The judge did not hold an evidentiary hearing but instead
reviewed the pleadings and heard the representations of counsel.
The judge found that the agreement did not require that the
children be raised in the Jewish faith. The judge further found
that the judgment required that the older child's college
decision be made jointly, but the judge found no willful
violation by the mother in light of the complexity of the
communication issues. Accordingly, the judge found the wife not
guilty of contempt. The judge found that "nonetheless there is
an impact on Father's financial obligations under the agreement
by [the mother's] unilateral action" and thus required the
father to pay only fifty-five percent "of the cost of tuition
[and] room and board he would have been responsible for if child
had attended U. Mass." She made the mother responsible for the
balance. She also denied attorney's fees to both parties.
The judgment was docketed November 8, 2017, a Wednesday.
On November 20, 2017, a Monday, the mother served a motion for a
new trial or to alter or amend the judgment under Mass. R. Dom.
Rel. P. 59. The judge denied this motion as untimely. This
appeal followed.
3 No ruling on this complaint had occurred by the time of
the filing of the notice of appeal, and this complaint is not
before us.
8
2. Modification of payment of postsecondary education
expenses. "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). These elements must "be supported by clear and
convincing evidence." Rosen v. Rosen, 90 Mass. App. Ct. 677,
691 (2016), quoting Birchall, petitioner, 454 Mass. 837, 853
(2009). Upon finding a contempt, a judge has "broad equitable
powers to fashion appropriate remedies." Cabot v. Cabot, 55
Mass. App. Ct. 756, 768 (2002).
"A Probate Court has power to modify a support order in the
context of either a complaint for contempt or a complaint for
modification." Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312
(1983). A modification on a complaint for contempt may occur
even in the absence of a contempt finding. See Bloksberg v.
Bloksberg, 7 Mass. App. Ct. 233, 234-235 (1979). Accord Smith,
93 Mass. App. Ct. at 364-365 (remanding for reconsideration of
modification order on unsuccessful complaint for contempt).4
4 Of course, by statute, a court's power to modify child
support retroactively is limited. See G. L. c. 119A, § 13 (a);
Calabria v. Calabria, 91 Mass. App. Ct. 763, 765 (2017), quoting
Rosen, 90 Mass. App. Ct. at 683 ("In enacting § 13(a), 'the
Legislature limited the power of a judge to reduce retroactively
any arrearages in child support except for any period during
which there is a pending complaint for modification'").
9
In the case of an order of child support governed by the
Child Support Guidelines, "orders of maintenance and for support
of minor children shall be modified if there is an inconsistency
between the amount of the existing order and the amount that
would result from application of the child support guidelines
promulgated by the chief justice of the trial court or if there
is a need to provide for the health care coverage of the child."
G. L. c. 208, § 28. See Child Support Guidelines § III.A
(2017); Morales v. Morales, 464 Mass. 507, 511-512 (2013);
Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 526 n.1
(2016).
The Child Support Guidelines provide for discretionary
payment of no more than "fifty percent of the undergraduate, in-
state resident costs of the University of Massachusetts-Amherst,
unless the Court enters written findings that a parent has the
ability to pay a higher amount." Child Support Guidelines
§ II.G.3. In the commentary, the Child Support Guidelines Task
Force explained that "[t]he Task Force does not intend the
limitation to apply to children already enrolled in post-
secondary education before the effective date of these
guidelines or to parents who are financially able to pay
educational expenses using assets or other resources." Here,
the older child was already enrolled in college when this
guideline became effective on September 15, 2017, and the
10
parties agreed that each parent was financially able to pay the
full educational expenses. Accordingly, Child Support Guideline
§ II.G.3 is inapplicable here.
Where, as here, the Child Support Guidelines do not apply,
an action for modification generally requires that "the
petitioner must demonstrate a material change of circumstances
since the entry of the earlier judgment." Pierce v. Pierce, 455
Mass. 286, 293 (2009), quoting Schuler v. Schuler, 382 Mass.
366, 368 (1981). Accord Frost-Stuart v. Stuart, 90 Mass. App.
Ct. 366, 368 (2016).5 We discern no finding by the judge here
that there was a material change of circumstances, and the
sparse record provided to the judge does not make any such
change of circumstances evident.
The mother committed the child to the University of Arizona
without the father's consent. Under proper circumstances, a
unilateral commitment to a college could constitute a material
change in circumstances. But see Rosen, 90 Mass. App. Ct. at
694-695 (violation of agreement that parties would jointly
participate in choice of college did not vitiate cost-sharing
5 Another statutory exception applies to the duration of
alimony awards. See St. 2011, c. 124, § 4 (b) ("Existing
alimony awards which exceed the durational limits established in
[G. L. c. 208, § 49,] shall be modified upon a complaint for
modification without additional material change of circumstance,
unless the court finds that deviation from the durational limits
is warranted").
11
agreement). Under the scenario presented here, however, it is
not evident that such a material change in circumstances exists.
The scant information provided at the hearing and credited by
the judge suggested that the older child was reporting his
college application choices to the father, and the father raised
no objection to the mother until after the older child had been
accepted to only one college. The older child expressed his
desire to attend a school in a warmer climate than
Massachusetts, again without apparent objection by the father to
the mother. See Cooper v. Keto, 83 Mass. App. Ct. 798, 805
(2013) (parent's "awareness of, and acquiescence in, the child's
choice of [college]" constituted agreement).
Under the facts here, it is not evident that, had the
mother consulted with the father prior to committing to that one
college, there was any reasonable choice but to commit to the
University of Arizona. Although learning of the college
commitment in May, the father set forth no proposal for a gap
year or deferral of admission in the months in which the parties
would have lost only the enrollment deposit by not continuing;
rather, he waited until an October pleading to broach the idea,
after the older child had been attending college for over one
month. See Mandel v. Mandel, 74 Mass. App. Ct. 348, 355 (2009)
("a party who has sat on his or her right to intervene, or to
seek approval from the court when the parties disagree, until
12
the college selection process has been completed, may have
waived his or her right to object to the college and its
concomitant cost"). Without findings explaining the basis for
any material change in circumstances, we cannot be satisfied
that a modification was warranted here. See Katzman v. Healy,
77 Mass. App. Ct. 589, 594 (2010) (modification of parenting
time required "findings reflecting substantial and material
changed circumstances supported by the evidence").
Furthermore, even though it was uncontested that each
parent had the financial means to pay for the older child's
college, the judge was provided with no financial statements
with which to discern the relative financial condition of the
parties. Similarly, the judge had only a thumbnail sketch of
the parties' communications regarding the college decision. On
such limited information, it is impossible to discern a basis
for a modification in the absence of findings. See Mandel, 74
Mass. App. Ct. at 354-355, quoting Schmidt v. Schmidt, 292 Ill.
App. 3d 229, 237 (1997) ("In determining whether college
expenses are reasonable," courts consider factors including "the
financial resources of both parents, the standard of living the
child would have enjoyed if the marriage had not been dissolved,
the financial resources of the child, . . . the cost of the
school, the programs offered at the school, the child's
scholastic aptitude, how the school meets the child's goals, and
13
the benefits the child will receive from attending the school").
Accordingly, we must vacate so much of the judgment that
modifies the father's payment of postsecondary school education
expenses and remand for further proceedings.
3. Motion for new trial. A motion for a new trial or to
alter or amend a judgment "shall be served not later than 10
days after" the entry of judgment. Mass. R. Dom. Rel. P.
59 (b), (e).6 Here, the modification judgment was entered on
November 8, 2017. Because November 18 was a Saturday, the
mother had until the succeeding Monday, November 20, to serve a
rule 59 motion. See Mass. R. Dom. Rel. P. 6 (a); Bellanti v.
Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 406 (2007).
The mother mailed the motion to father's counsel on November 20.
"Service by mail is complete upon mailing." Mass. R. Dom. Rel.
P. 5 (b). The judge, however, rejected the motion as untimely,
finding that, when service of a rule 59 motion is made by mail,
Mass. R. Dom. Rel. P. 6 (d) requires that it be served three
days earlier. This was error.
Rule 6 (d) states, "Whenever a party has the right or is
required to do some act or take some proceedings within a
prescribed period after the service of a notice or other papers
upon him and the notice or paper is served upon him by mail, 3
6 These provisions are identical to Mass. R. Civ. P. 59 (b)
and (e), 365 Mass. 827 (1974).
14
days shall be added to the prescribed period" (emphasis added).7
The purpose of rule 6 (d) is to add time when a period is
started by the filing or service of a paper or notice that is
then mailed, rather than hand-served. See Albano v. Bonanza
Int'l Dev. Co., 5 Mass. App. Ct 692, 693 n.1 (1977); Tisei v.
Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 380 n.3
(1975). Thus, for example, if a party hand-serves
interrogatories, the recipient has thirty days8 to serve answers
and objections. Mass. R. Dom. Rel. P. 33 (a). If, however, the
party serves interrogatories by mail, rule 6 (d) provides an
extra three days, or thirty-three days in all, for the recipient
to serve answers and objections. These extra three days
represent the court system's best estimate of the maximum time
it should take, under ordinary circumstances, for the mail to
reach its recipient.
Nothing in rule 6 (d) allows a court to shorten the time
period to do anything. If the father had had any time-limited
duty to respond to the mother's motion, rule 6 (d) would have
7 This provision is identical to Mass. R. Civ. P. 6 (d), 365
Mass. 747 (1974). A substantially similar provision exists in
Mass. R. A. P. 14 (c), as appearing in 481 Mass. 1626 (2019).
8 Or up to forty-five days, if the interrogatories are
served within fifteen days of service of the summons and
complaint. See Mass. R. Dom. Rel. P. 33 (a).
15
allowed him an extra three days to do so. It, however, provides
no basis for reducing the mother's time to serve her motion.
A motion under rule 59 "is addressed to the judge's sound
discretion." Gannett v. Shulman, 74 Mass. App. Ct. 606, 615
(2009). Accord Gath v. M/A-COM, Inc., 440 Mass. 482, 492
(2003). Where, as here, the judge was under the mistaken
impression that she did not have the discretion to address a
motion, the usual course of action is to "remand to allow the
judge to exercise discretion in the first instance." Balistreri
v. Balistreri, 93 Mass. App. Ct. 515, 521 (2018). Especially
here, where the motion provided an e-mail exchange demonstrating
that the father specifically rejected the invitation for the
father to discuss the college application process through the
parenting coordinator, the judge may well have wanted to
consider this information. In any event, because we are
remanding, the judge will have the opportunity to consider this
information and obtain a more complete picture of the college
selection process.
4. Failure to submit issue to parenting coordinator. The
relevant provision of the agreement, which merged into the
divorce judgment, required the parties to submit to a parenting
coordinator any "non-financial disputes regarding the[]
children, limited to disputes regarding each child's education,
physical and psychological health . . . , religious education,
16
after school and extra-curricular activities, and/or welfare
and/or changes to the Parent Schedule . . . prior to their
filing of any motion or complaint with the Court relative to
said issue(s)." "[P]arent coordinators, whose backgrounds may
be in mental health, family law, or other relevant fields, are
understood to serve as neutral third parties who assist
separated or divorced parents in resolving conflicts that arise
in the implementation of custody and visitation arrangements in
a manner that reduces the impact of the parents' conflict on
their children." Bower v. Bournay-Bower, 469 Mass. 690, 694
(2014). Parenting coordinators play a "valuable role . . . in
assisting families involved in the Probate and Family Court
system." Id. at 707. Parties may agree to be bound by
decisions of a parenting coordinator, so long as the agreement
"retain[s] the judge's 'nondelegable duty to make the final and
binding resolution of the case.'" Leon v. Cormier, 91 Mass.
App. Ct. 216, 221 (2017), quoting Gravlin v. Gravlin, 89 Mass.
App. Ct. 363, 366 (2016). Regardless of any agreement, however,
"the parties have the right to access the court so that the
court can determine fundamental issues of care and custody
and/or parenting time and support, even where the parties have
agreed to binding decision-making authority of the parenting
coordinator." Probate and Family Court Standing Order
1-17 (5) (c) (iii).
17
The mother argues that the judge erred in considering the
father's complaint for contempt where he did not submit the
dispute first to the parenting coordinator. Although it cannot
be gainsaid that the judge has the discretion to refuse to hear
a dispute because the parties failed to submit it first to a
parenting coordinator as required by a separation agreement, see
Leon, 91 Mass. App. Ct. at 221, the mother provides no support
for the proposition that a judge lacks the authority to hear a
dispute because a requirement to present it to a parenting
coordinator was not satisfied. As the Supreme Judicial Court
recognized, there may be important disputes of such urgency that
they cannot be submitted to a parenting coordinator and then
effectively reviewed by a court. See Bower, 469 Mass. at 704-
705. We need not resolve this question, however, because the
parties specifically excluded financial disputes from the
parenting coordinator's ken. Here, the older child had already
begun attending the University of Arizona, and the primary
relief sought by the father was the reduction or elimination of
his duty to pay for that education. We discern no abuse of
discretion in the judge's implicit determination that the
dispute, at least as presented to the court, was a financial
dispute not falling within the ambit of the parenting
coordinator provision of the agreement.
18
5. Attorney's fees. The mother appeals the judge's
failure to award her attorney's fees for defending herself
against the father's complaint for contempt. "A judge has broad
discretion in awarding attorney's fees under G. L. c. 208, § 38,
and, it follows, broad discretion to deny an award." Freidus v.
Hartwell, 80 Mass. App. Ct. 496, 504 (2011), quoting Wolcott v.
Wolcott, 78 Mass. App. Ct. 539, 546 (2011). Accord M.C. v.
T.K., 463 Mass. 226, 242 (2012). Here, the mother committed the
older child to the University of Arizona without obtaining the
father's assent. However reasonable that action may have been
under the circumstances, the father had a viable complaint for
contempt. Although the father's complaint about the younger
child's religious upbringing may have had less viability, the
judge acted well within her discretion in deciding the
attorney's fees question based on the litigation as a whole,
rather than disaggregating the complaint as the mother desires.
See Schechter v. Schechter, 88 Mass. App. Ct. 239, 260 (2015)
(listing relevant factors). Indeed, nothing in the billing
records submitted by the mother provides any basis for
separating out the attorney's fees between the two claims.
Accordingly, "[w]e cannot say that the judge abused her broad
19
discretion in declining to award the wife statutory attorney's
fees." Freidus, supra.9
6. Conclusion. So much of the judgment entered on
November 8, 2017, as modifies each parent's obligation to pay
postsecondary school education expenses for the older child is
vacated, and the matter is remanded for further proceedings
consistent with this opinion. The remainder of the judgment is
affirmed. The order denying the mother's motion for new trial
or to alter or amend the judgement under Mass. R. Dom. Rel. P.
59 is vacated.
So ordered.
9 The mother also raises the prospect of attorney's fees
under G. L. c. 231, § 6F, but she did not file a separate notice
of appeal pursuant to G. L. c. 231, § 6G. A party appealing a
§ 6F order incorporated into a final judgment is required to
file two notices of appeal, one to appeal the § 6F order to a
single justice and the other to appeal the balance of the
judgment to a panel. Troy Indus., Inc. v. Samson Mfg. Corp., 76
Mass. App. Ct. 575, 584 (2010), quoting Bailey v. Shriberg, 31
Mass. App. Ct. 277, 284 (1991). In the absence of such, "we
shall treat [the notice of appeal] only as an appeal to a panel
from those portions of the judgment that are within the panel's
jurisdiction." Troy Indus., Inc., supra, quoting Bailey, supra.