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
25-P-303
GEOFF R. MACKAY
vs.
DEBORAH L. FORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Deborah L. Ford (wife), the former spouse of Geoff R.
Mackay (husband), appeals from a judgment entered by a judge of
the Probate and Family Court on the wife's complaint for
contempt. The wife contends that portions of the judgment are
based on an erroneous interpretation of the parties' separation
agreement (agreement). Specifically, she argues that the judge
erred in (1) concluding that the agreement is ambiguous and
therefore allows alimony payments related to certain stock
options to be made upon liquidation rather than upon vesting,
and (2) declining to hold the husband in contempt for failing to
pay alimony based on the value of the stock options upon
vesting. Although we conclude that the judge did not abuse her discretion in declining to find the husband in contempt, we
agree that the judge erred in her interpretation of the
agreement and remand the case for a redetermination of the
husband's alimony arrears owed to the wife from the vested stock
options.
Background. The parties were married in 1999. In 2013,
the husband filed a complaint for divorce. In 2016, the parties
signed a separation agreement which was incorporated into the
judgment of divorce nisi. The alimony-related provisions of the
agreement did not merge with the divorce judgment, but rather
survived and retained independent contractual significance. The
agreement provided in relevant part that the husband would pay
the wife annual alimony equal to a percentage of his "gross
income," pursuant to a self-executing formula in which the
applicable percentage decreased over time and eventually
terminated. The agreement defined the husband's "gross income"
to include:
"the following forms of compensation that the Husband receives by reason of his employment: his gross salary, draw, wages, commissions, and cash bonuses or any compensation paid to him in the form of stock options/RSU's or other equity incentive(s) . . . . For purposes of determining gross income, any compensation paid in the form of stock options/RSU's or other equity incentive shall be deemed 'received' and thus includible in the Husband's 'gross income' for purposes of calculating alimony upon vesting if no further event is needed for the Husband to liquidate the asset and, if applicable, the board endorses such liquidation, or, otherwise upon there being, if ever, a liquidating event . . ." (emphasis added).
2 At the time of the divorce, the husband worked for the
company AvroBio, Inc. (AvroBio). AvroBio granted him
approximately one million restricted stock units (RSUs) at
various times during his employment. In 2023, the husband sold
AvroBio RSUs for $425,212.04.
In March 2022, prior to the husband's liquidation of his
AvroBio RSUs, the wife filed a complaint for contempt alleging,
among other things, that the husband did not provide her with
required information related to his AvroBio RSUs and owed her
alimony because the RSUs had vested. Following a three-day
trial, the judge found the husband "in contempt for disobeying
the Agreement's command to provide the required documentation of
his AvroBio stock options but [] not . . . in contempt with
respect to any associated alimony obligation" because, before
trial, the husband paid the wife alimony arising from his
receipt of the stock options. As such, the issue became not
whether the husband paid alimony related to his AvroBio RSUs,
"but rather whether [the husband] paid [the wife] the
appropriate amount of alimony once the options were 'received.'"
The judge concluded that the husband was not in violation
of the provision of the agreement pertaining to when the RSUs
were "deemed 'received,'" as that provision was not a "clear and
unequivocal command." The judge reasoned that "the provision
3 provides no clear order as to which date controls" and there are
"several reasonable options by which [the husband] could
determine a valuation date for purposes of calculating his
associated alimony obligation." See Jones v. Jones, 101 Mass.
App. Ct. 673, 687-688 (2022). Because the husband paid the wife
the required percentage of his "gross income" from the RSUs
value "on his chosen valuation date, i.e., the date of
liquidation," the judge concluded that there was no basis for a
judgment of contempt for failure to pay. In order "to thwart
future litigation on the point," the judge ordered, in Paragraph
2 of the contempt judgment, that henceforth, the husband's
alimony obligation with respect to RSUs would be calculated
based on the date the husband chose to liquidate them.
Discussion. On appeal, the wife contends that the judge
erred by concluding that the agreement was ambiguous and by
allowing the value of the husband's "stock options/RSU's" to be
determined at the time he chose to liquidate them, rather than
when they vested. We agree.
"Whether a separation agreement is ambiguous is a question
of law." Jones, 101 Mass. App. Ct. at 681. "The mere existence
of the parties' disagreement does not make the language
ambiguous." Browning-Ferris Indus., Inc. v. Casella Waste Mgt.
of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011). "To answer
the ambiguity question, the court must first examine the
4 language of the contract by itself . . . ." Bank v. Thermo
Elemental Inc., 451 Mass. 638, 648 (2008). We construe the
agreement based on "a fair construction of the contract as a
whole and not by special emphasis upon any one part" (citation
omitted), Kingstown Corp. v. Black Cat Cranberry Corp., 65 Mass.
App. Ct. 154, 158 (2005), while recognizing that "every word is
to be given force so far as practicable" (citation omitted),
MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981).
The key provision of the agreement requires the husband to
pay the wife a percentage of the value of his RSUs when they are
"received," which is specified as occurring "upon vesting if no
further event is needed for the Husband to liquidate the asset."
Although the agreement does not specify every possible "further
event" that might delay the husband's ability to liquidate his
RSUs, this does not create ambiguity.1 Accordingly, the judge's
1 If anything, the lack of specificity creates an issue of proof.
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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
25-P-303
GEOFF R. MACKAY
vs.
DEBORAH L. FORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Deborah L. Ford (wife), the former spouse of Geoff R.
Mackay (husband), appeals from a judgment entered by a judge of
the Probate and Family Court on the wife's complaint for
contempt. The wife contends that portions of the judgment are
based on an erroneous interpretation of the parties' separation
agreement (agreement). Specifically, she argues that the judge
erred in (1) concluding that the agreement is ambiguous and
therefore allows alimony payments related to certain stock
options to be made upon liquidation rather than upon vesting,
and (2) declining to hold the husband in contempt for failing to
pay alimony based on the value of the stock options upon
vesting. Although we conclude that the judge did not abuse her discretion in declining to find the husband in contempt, we
agree that the judge erred in her interpretation of the
agreement and remand the case for a redetermination of the
husband's alimony arrears owed to the wife from the vested stock
options.
Background. The parties were married in 1999. In 2013,
the husband filed a complaint for divorce. In 2016, the parties
signed a separation agreement which was incorporated into the
judgment of divorce nisi. The alimony-related provisions of the
agreement did not merge with the divorce judgment, but rather
survived and retained independent contractual significance. The
agreement provided in relevant part that the husband would pay
the wife annual alimony equal to a percentage of his "gross
income," pursuant to a self-executing formula in which the
applicable percentage decreased over time and eventually
terminated. The agreement defined the husband's "gross income"
to include:
"the following forms of compensation that the Husband receives by reason of his employment: his gross salary, draw, wages, commissions, and cash bonuses or any compensation paid to him in the form of stock options/RSU's or other equity incentive(s) . . . . For purposes of determining gross income, any compensation paid in the form of stock options/RSU's or other equity incentive shall be deemed 'received' and thus includible in the Husband's 'gross income' for purposes of calculating alimony upon vesting if no further event is needed for the Husband to liquidate the asset and, if applicable, the board endorses such liquidation, or, otherwise upon there being, if ever, a liquidating event . . ." (emphasis added).
2 At the time of the divorce, the husband worked for the
company AvroBio, Inc. (AvroBio). AvroBio granted him
approximately one million restricted stock units (RSUs) at
various times during his employment. In 2023, the husband sold
AvroBio RSUs for $425,212.04.
In March 2022, prior to the husband's liquidation of his
AvroBio RSUs, the wife filed a complaint for contempt alleging,
among other things, that the husband did not provide her with
required information related to his AvroBio RSUs and owed her
alimony because the RSUs had vested. Following a three-day
trial, the judge found the husband "in contempt for disobeying
the Agreement's command to provide the required documentation of
his AvroBio stock options but [] not . . . in contempt with
respect to any associated alimony obligation" because, before
trial, the husband paid the wife alimony arising from his
receipt of the stock options. As such, the issue became not
whether the husband paid alimony related to his AvroBio RSUs,
"but rather whether [the husband] paid [the wife] the
appropriate amount of alimony once the options were 'received.'"
The judge concluded that the husband was not in violation
of the provision of the agreement pertaining to when the RSUs
were "deemed 'received,'" as that provision was not a "clear and
unequivocal command." The judge reasoned that "the provision
3 provides no clear order as to which date controls" and there are
"several reasonable options by which [the husband] could
determine a valuation date for purposes of calculating his
associated alimony obligation." See Jones v. Jones, 101 Mass.
App. Ct. 673, 687-688 (2022). Because the husband paid the wife
the required percentage of his "gross income" from the RSUs
value "on his chosen valuation date, i.e., the date of
liquidation," the judge concluded that there was no basis for a
judgment of contempt for failure to pay. In order "to thwart
future litigation on the point," the judge ordered, in Paragraph
2 of the contempt judgment, that henceforth, the husband's
alimony obligation with respect to RSUs would be calculated
based on the date the husband chose to liquidate them.
Discussion. On appeal, the wife contends that the judge
erred by concluding that the agreement was ambiguous and by
allowing the value of the husband's "stock options/RSU's" to be
determined at the time he chose to liquidate them, rather than
when they vested. We agree.
"Whether a separation agreement is ambiguous is a question
of law." Jones, 101 Mass. App. Ct. at 681. "The mere existence
of the parties' disagreement does not make the language
ambiguous." Browning-Ferris Indus., Inc. v. Casella Waste Mgt.
of Mass., Inc., 79 Mass. App. Ct. 300, 307 (2011). "To answer
the ambiguity question, the court must first examine the
4 language of the contract by itself . . . ." Bank v. Thermo
Elemental Inc., 451 Mass. 638, 648 (2008). We construe the
agreement based on "a fair construction of the contract as a
whole and not by special emphasis upon any one part" (citation
omitted), Kingstown Corp. v. Black Cat Cranberry Corp., 65 Mass.
App. Ct. 154, 158 (2005), while recognizing that "every word is
to be given force so far as practicable" (citation omitted),
MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981).
The key provision of the agreement requires the husband to
pay the wife a percentage of the value of his RSUs when they are
"received," which is specified as occurring "upon vesting if no
further event is needed for the Husband to liquidate the asset."
Although the agreement does not specify every possible "further
event" that might delay the husband's ability to liquidate his
RSUs, this does not create ambiguity.1 Accordingly, the judge's
1 If anything, the lack of specificity creates an issue of proof. Here, the record does not show that anything that might be characterized as a further event was in fact required for the husband to liquidate his AvroBio RSUs after they vested. The husband cites to a statement of his own that he is generally bound by certain Securities and Exchange Commission (SEC) insider trading rules, but he does not cite any particular rule and there is no evidence that liquidation of the AvroBio RSUs upon receipt was actually restricted by those rules. The husband also testified that he did not have board approval to liquidate the options, but did not testify that such approval was a requirement of liquidation, and it is not stated as a requirement in any of the myriad documents introduced at trial. It may be that actual sale of stock by an insider may in some circumstances have an effect on stock price, but that has nothing to do with the terms of the parties' separation
5 decision to reform the agreement to allow valuation of the RSUs
upon liquidation overlooks the parties' express choice to treat
RSUs as received "upon vesting," except if some condition
precedent to permissible liquidation has yet to occur. See
MacDonald, 11 Mass. App. Ct. at 872 ("[i]t is to be presumed
that parties employ all the provisions and phrases of a written
contract with the purpose that each has an appropriate
meaning").2
Furthermore, because at the time of the agreement the
parties anticipated that the husband would be granted AvroBio
RSUs, the agreement also requires the husband to provide
information "to verify the number and strike price of such
options/RSU's and the vesting schedule, terms and conditions,
and he shall also provide [the wife] with the grant award
notification (if any) and relevant stock option agreement and/or
plan."3 There would be little reason to include a provision
agreement. In any event, disclosures stating, for example, that these are regular distributions of options and that sale will always be undertaken upon receipt in order to allow payment of alimony (even when it may not be necessary) can ensure that insider sales like these do not affect a company's stock price. 2 We note that the agreement does not require the husband to actually liquidate the RSUs on the date of vesting if he has other funds from which to pay his alimony obligation. It is their value that is included in his compensation.
3 As noted supra, the judge found the husband in contempt for failing to provide the wife with the information required under this provision.
6 allowing the wife to verify the schedule, terms, and conditions
of the vesting of the AvroBio RSUs if they were not to be
included in the husband's gross income until whenever he chose
to liquidate the assets.
Because the language is clear that, in the absence of
circumstances not present here, the RSUs were to be treated as
part of the husband's gross income upon vesting, the judge's
interpretation was erroneous. See Balles v. Babcock Power Inc.,
476 Mass. 565, 571 (2017) ("[W]hen the language of a contract is
clear, it alone determines the contract's meaning").
Nevertheless, the judge did not abuse her discretion in
declining to find the husband in contempt for having paid
alimony based on the value of the RSUs upon liquidation. See
Jones, 101 Mass. App. Ct. at 688 ("We review the judge's
ultimate finding [on the complaint for] contempt for abuse of
discretion" [citation omitted]). "[T]o constitute civil
contempt there must be a clear and undoubted disobedience of a
clear and unequivocal command" (citation omitted). Birchall,
petitioner, 454 Mass. 837, 851 (2009). Such disobedience must
be shown by clear and convincing evidence. See id. at 853. The
evidence at the hearing regarding what qualified as a "further
event," and whether the requirement of consent by the board was
"applicable," was muddled at best. See note 1, supra. In other
words, "there was a clear and unequivocal order, but not an
7 undoubted disobedience." Voorhis v. Relle, 97 Mass. App. Ct.
46, 54 (2020). See Wooters v. Wooters, 74 Mass. App. Ct. 839,
844 (2009) (husband's good faith "disagreement or
misunderstanding of [how to calculate his alimony obligation]
d[id] not constitute clear and undoubted disobedience"). The
judge's conclusion that the wife did not show clear and
convincing evidence of clear disobedience was within the range
of reasonable alternatives and, therefore, not an abuse of
discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
Conclusion. Paragraph 2 of the contempt judgment dated
October 15, 2024, is vacated. The case is remanded for
redetermination of the husband's alimony arrears owed to the
wife as of the date his RSUs vested, consistent with the
parties' separation agreement dated April 1, 2016. The contempt
judgment is otherwise affirmed.4
So ordered.
By the Court (Rubin, Massing & Toone, JJ.5),
Clerk
Entered: July 8, 2026.
4 The wife's request for attorney's fees in connection with this appeal is denied. 5 The panelists are listed in order of seniority.