Barnes v. Devlin

993 N.E.2d 1217, 84 Mass. App. Ct. 159, 2013 WL 4106352, 2013 Mass. App. LEXIS 132
CourtMassachusetts Appeals Court
DecidedAugust 16, 2013
DocketNo. 12-P-1283
StatusPublished
Cited by3 cases

This text of 993 N.E.2d 1217 (Barnes v. Devlin) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Devlin, 993 N.E.2d 1217, 84 Mass. App. Ct. 159, 2013 WL 4106352, 2013 Mass. App. LEXIS 132 (Mass. Ct. App. 2013).

Opinion

Katzmann, J.

The central issue posed by this appeal is the interface of bargained-for stipulations and agreements incorporated into court judgments, with the restrictions of G. L. c. 208, § 28 (which conditions postminority support and education upon a child’s being domiciled in the home of a parent and principally dependent upon that parent for maintenance). James A. Devlin (father) appeals from a judgment entered by a Probate and Family Court judge on a complaint of contempt filed by Carol Barnes (mother). The mother alleged that the father failed to pay child support and education expenses as required by a court-approved separation agreement (as modified) that was [160]*160mutually agreed to by the parties upon their divorce, and subsequently incorporated and merged into a judgment of divorce nisi. After a one-day trial, the judge found the father in civil contempt and ordered him to pay $9,200 to the mother in child support arrears and $6,448 per year toward the parties’ son’s education expenses. We affirm.

Background. The parties have one child, who was born in 1991. On June 14, 2000, the parties entered into and filed a separation agreement; that same day, a judgment of divorce nisi entered pursuant to G. L. c. 208, § IB. Pursuant to the separation agreement, the parties agreed that they would share legal custody of their son and that the mother would have sole physical custody. The parties also agreed to share their son’s post-high school education expenses, consistent with the financial abilities and resources available to each party. Finally, the separation agreement required the father to pay the mother $140 per week in child support “until emancipation” of their son. The separation agreement provided a list of conditions that would result in the son’s emancipation, but for the purposes of the instant appeal, only two conditions are relevant: (1) “ [i]f the child is attending a post-secondary accredited vocational training school or college as a full-time student, at age 23,” or (2) if the son establishes “[pjermanent residence away from the residence of the [mother]. Residence at boarding school, camp or college is not to be deemed a residence away from the [mother].” The provisions of the separation agreement relating to the son were incorporated and merged into the judgment of divorce nisi.

After the contempt trial, the judge made the following findings. In September of 2009, the son, then eighteen years old, began to attend North Shore Community College. At this time, the son moved to the home of his mother’s brother (Uncle George) because Uncle George lived close to North Shore Community College.

On October 16,2009, the mother filed a complaint of contempt alleging that since June of 2009 the father had failed to pay child support. As a result, the parties voluntarily entered into a court-approved stipulation on November 20, 2009, that modified the child support payments (the first modification). The father agreed to pay the mother one hundred dollars per week [161]*161(instead of $140) and also agreed to pay the mother $1,120 in arrears. Additionally, because their son continued to live with Uncle George, the parties agreed to provide child support payments directly to Uncle George. The father agreed to pay Uncle George ninety dollars per week, and the mother agreed to pay him fifty dollars per week.

On January 25, 2010, the parties voluntarily entered into a second court-approved stipulation (the second modification).1 Under the second modification, the parties agreed to modify the child support payments as follows: (1) the first modification would remain in full force and effect; (2) the father owed $810 to Uncle George in child support arrears because the father had failed to pay Uncle George ninety dollars per week; and (3) the father and Uncle George would work out a payment plan for the arrearage.

From February, 2010, through May, 2010, the father paid Uncle George the agreed-upon child support payments of ninety dollars per week and satisfied the $810 in arrears. In June, 2010, after completing the spring semester at North Shore Community College, the son moved back to the mother’s home. Soon thereafter, the father discontinued paying Uncle George the agreed-upon child support payments. The father admitted that he simply did not want to pay child support or to contribute to the son’s education expenses. In September of 2010, the son moved back in with Uncle George and lived there until mid-December of 2010, when he was accepted at Salem State University (Salem State). At this time, the son moved on campus at Salem State. He lived on campus from January of 2011 through the spring semester of 2012, except for vacations, when he returned to live with the mother.

In total, the father failed to provide child support from June, 2010, through March, 2012, when the contempt trial was held.2 During this time, the mother complied with her child support obligations to Uncle George. The son relied on the mother’s [162]*162payments for certain personal expenses that his student loans did not cover.

The mother filed the instant complaint of contempt on March 4, 2011, and alleged that the father violated the judgment of divorce nisi as modified by the first and the second modifications. On March 1, 2012, the judge denied the father’s motion to dismiss and held a one-day trial on the mother’s complaint. Ultimately, the judge found the father in civil contempt for failure to pay his child support obligations; the judge ordered the father to pay the $9,200 in arrears to the mother, and to continue to pay the mother one hundred dollars per week. The judge did not find the father in contempt for failure to contribute to the son’s education expenses, but nevertheless ordered the father to pay $6,448 per year toward the son’s education expenses. Finally, the judge awarded the mother $7,000 in attorney’s fees. The father now appeals.

Discussion. On appeal, the father argues that the judge committed error by finding him in civil contempt because the stipulations he allegedly violated are null and void ab initio as they are in contravention of G. L. c. 208, § 28.® Pursuant to G. L. c. 208, § 28, as appearing in St. 1991, c. 173, § 1, a judge may make appropriate postminority orders for “maintenance, support and education of any child,” provided said child is “[1] domiciled in the home of a parent, and is [2] principally dependent upon said parent for maintenance.” The father contends that the mother presented insufficient evidence at trial to demonstrate that the § 28 conditions were satisfied when the stipulations underlying the mother’s complaint were court approved. Thus, according to the father, the judge could not hold him in civil contempt.

Without deciding whether the son was in fact domiciled with the mother and principally dependent on her when the modifications were approved, we think it clear that the judge held the father in civil contempt because he “chose to unilaterally stop pay[ing the] child support” obligations he “willingly, freely, and voluntarily” entered into without objection. We agree with the judge and so hold, irrespective of a determination whether [163]*163the child support obligations complied with the domicil and dependency conditions set forth in G. L. c. 208, § 28.

Instructive is our decision in Kotler v. Spaulding, 24 Mass. App. Ct. 515 (1987).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

JANE K. FURNAS v. CATHLEEN M. CIRONE, personal representative.
102 Mass. App. Ct. 97 (Massachusetts Appeals Court, 2023)
Cain-Clancy v. Clancy
102 N.E.3d 426 (Massachusetts Appeals Court, 2018)
Gorski v. McIsaac
Connecticut Appellate Court, 2015

Cite This Page — Counsel Stack

Bluebook (online)
993 N.E.2d 1217, 84 Mass. App. Ct. 159, 2013 WL 4106352, 2013 Mass. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-devlin-massappct-2013.