Greta M. Meszoely v. Hamid Benbrahim.

• Court: Massachusetts Appeals Court
• Decided: March 11, 2024
• Docket: 23-P-0242
• Status: Unpublished

Opinion

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

23-P-242

GRETA M. MESZOELY

vs.

HAMID BENBRAHIM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from contempt proceedings initiated by

Greta M. Meszoely (wife) against her former spouse, Hamid

Benbrahim (husband). The parties were divorced in January 2022.

Shortly thereafter, the wife filed a complaint for contempt in

which she alleged the husband had failed to fulfill his

obligation under the parties' separation agreement by, among

other things, failing to provide her with health insurance

coverage through his employer for a three-month period and to

timely inform her about COBRA coverage available to her

thereafter.1 Following a hearing, a judge of the Probate and

Family Court issued a contempt order that, as relevant here,

ordered the husband to pay (1) $2,573.67 for three months of

1 Additional grounds for contempt were resolved by agreement of the parties. health insurance coverage; (2) $3,514.32 for damages relating to

his failure to timely inform the wife regarding COBRA coverage;2

and (3) $13,750 in attorney's fees incurred by the wife to

prosecute the contempt.

On appeal, the husband does not challenge the underlying

contempt order. Rather, he claims that (1) the award of

attorney's fees was "plainly wrong" in the absence of evidence

that he engaged in obstructionist conduct; (2) the remedies

ordered by the judge were "excessive and cumulative"; and (3)

the judge exhibited bias toward him. We affirm.

Discussion. Before we turn to the merits of the husband's

appeal, we address the wife's claim that the appeal should be

dismissed on the ground that the husband failed to file a timely

notice of appeal. The husband seeks to appeal from a judgment

entered on the trial court docket on January 6, 2023. He filed

a timely motion for relief on January 13, 2023, which tolled the

appeal period because it was served within ten days of the entry

of judgment. See Mass. R. A. P. 4 (a) (2), as appearing in 481

Mass. 1606 (2019). Then, on January 25, 2023, the husband filed

a notice of appeal before any ruling had issued on his

2 As presented to the judge by the wife, this amount represents the difference between the actual cost of twelve months of coverage obtained by her and the lower cost of COBRA coverage that she could have obtained had the husband timely informed her of its availability.

2 postjudgment motion. The judge disposed of the postjudgment

motion on February 7, 2023, but the husband did not file a new

notice of appeal as required by Mass. R. A. P. 4 (a) (3), as

appearing in 481 Mass. 1606 (2019). The wife contends that the

husband's appeal must be dismissed because our cases have

consistently held that the failure to comply with rule 4 (a) (3)

renders the prematurely filed notice of appeal a nullity, as if

it had never been filed. See, e.g., Beliveau v. Ware, 87 Mass.

App. Ct. 615, 616 (2015); Anthony v. Anthony, 21 Mass. App. Ct.

299, 300-302 (1985). However, as the husband notes in his reply

brief, we have discretion to entertain his appeal, and we choose

to exercise that discretion here because the premature filing of

the notice of appeal did not prejudice the wife. See Roch v.

Mollica, 481 Mass. 164, 165 n.2 (2019).

We now turn to the merits of the husband's arguments and

begin our discussion with his challenge to the award of

attorney's fees. The husband contends that because the contempt

finding was based on his failure to furnish information rather

than on any obstructionist conduct, the judge should have taken

a more conservative approach in awarding attorney's fees and, at

minimum, the award should have been reduced to omit fees

incurred by the wife in connection with her claims that were

settled by the parties on the day of the contempt hearing. As

the husband appropriately acknowledges, we review an award of

3 attorney’s fees for abuse of discretion. See Lydon v. Coulter,

85 Mass. App. Ct. 914, 914-915 (2014).

We discern no abuse of discretion in the fee award for two

reasons. First, contrary to the husband's assertion, the judge

was not precluded from awarding fees on the ground that the

contempt order was based on a failure to provide information.

Furthermore, even if we were to agree with the husband's claim

that his conduct was somehow less serious because, for example,

he did not withhold a payment, the fact remains that the wife

was forced to bring a complaint for contempt in order to obtain

the information the husband should have provided and, as a

result, incurred unnecessary legal expenses.

Second, the judge did not abuse her discretion to award

fees on the settled claims because those claims were resolved

only after the wife's complaint had been served. See Hennessey

v. Sarkis, 54 Mass. App. Ct. 152, 156-157 (2002) ("ample basis"

for judge to exercise discretion under G. L. c. 208, § 38, to

award fees to wife, "in order to mitigate [her] expenses"

incurred in bringing contempt action where husband only "brought

himself into compliance with . . . the divorce judgment" on day

of hearing).

The husband further claims that the judge should have held

an evidentiary hearing to determine the appropriate amount of

attorney's fees. We are hard pressed to fault the judge where,

4 as here, there was no request for a hearing. In any event, the

judge was not required to conduct an evidentiary hearing on the

limited issue of counsel fees and, furthermore, the parties'

written submissions, in addition to their oral representations,

were sufficient to support the fee award.

Next, the husband argues that the remedies ordered by the

judge were excessive and cumulative. We see no merit to this

argument, which ignores both the evidence and the judge's broad

equitable powers to fashion appropriate remedies. See Cabot v.

Cabot, 55 Mass. App. Ct. 756, 768 (2002). The record supports

the judge's order that the wife was entitled to reimbursement

for three months of health insurance and for the additional cost

to her for twelve months of the insurance coverage that she

obtained without the benefit of COBRA coverage. The wife

incurred these expenses as a direct result of the husband's

conduct. In sum, the judge properly held the husband

accountable for the consequences of his failure to provide

information regarding insurance coverage in a timely manner.

The husband's final argument, that the judge exhibited bias

against him, requires little discussion. To begin with, the

husband never brought a motion requesting that the judge recuse

herself. Second, and more importantly, our review of the record

5 including the judge's comments on which the husband relies, does

not provide a basis for concluding the judge was not impartial.3

Judgment affirmed.

By the Court (Vuono, Milkey & Hand, JJ.4),

Assistant Clerk

Entered: March 11, 2024.

3 The wife's request for appellate attorney's fees is denied. 4 The panelists are listed in order of seniority.