Karellas v. Karellas

766 N.E.2d 102, 54 Mass. App. Ct. 469, 2002 Mass. App. LEXIS 476
CourtMassachusetts Appeals Court
DecidedApril 11, 2002
DocketNo. 99-P-1324
StatusPublished
Cited by10 cases

This text of 766 N.E.2d 102 (Karellas v. Karellas) 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
Karellas v. Karellas, 766 N.E.2d 102, 54 Mass. App. Ct. 469, 2002 Mass. App. LEXIS 476 (Mass. Ct. App. 2002).

Opinion

Doereer, J.

This an appeal from an order of a judge of the Probate and Family Court that the husband, Nicholas Karellas, pay interest on an amount awarded to the wife in a divorce judgment. The husband argues that his delay in failing to pay the judgment should have been enforced by a complaint for contempt and that interest could only be awarded as a remedy for contempt. We disagree and hold that the judgment bore interest from the date of its entry.

[470]*470Facts. This was not an amicable divorce. The parties fought bitterly over several years and on many fronts in both the Probate and Family Court and the Superior Court. There is no need to review the contentious details.

After trial lasting several days, a judge of the Probate and Family Court made findings about the composition and value of the marital estate. The husband ran a dry cleaning business, through which flowed large amounts of cash, and owned some rental real estate. The judge expressed frustration and skepticism about the husband’s candor on financial matters. The judge did not give the wife high marks on such topics either.

After evaluating the factors under G. L. c. 208, § 34, relevant to an .equitable division of the marital estate, the judge concluded that, although alimony was not justified and both the husband and wife had assets in their separate estates, a payment of money was needed from the husband to the wife in order to effectuate an equitable division of the marital estate.

A judgment of divorce nisi entered in this matter on January 12, 1996, to be effective ninety days thereafter in the usual manner. In part to effectuate an equitable division of the marital estate, and in part to compensate the wife for other amounts due from the husband to her, the judgment ordered the husband to pay the wife $100,000.1 It also ordered him to pay attorney’s fees to the wife’s attorneys in the amount of $45,870.

[471]*471The judgment did not assign specific accounts or order the division of specific property or assets (except for an automobile) to effectuate the equitable division of the marital estate.2 The judgment, as issued on January 12, 1996, did not contain an order for the payment of interest.

The husband filed a notice of appeal on February 21, 1996, appealing from all aspects of the judgment except the dissolution of the marriage. He filed a motion to stay judgment pending appeal on March 4, 1996, and on July 5, 1996, the judge filed a memorandum and order allowing a stay of the division of assets payment.

The judge ultimately dismissed the husband’s appeal, noting that he had “failed to proceed with [the] appeal zealously [and] in good faith.” The husband then appealed the dismissal to this court. That appeal was dismissed for a failure to prosecute. See Karellas vs. Karellas, Appeals Court No. 98-P-834.

On April 1, 1999, the trial judge, in response to a motion of the wife, ordered that a writ of execution on the judgment should issue with interest3 until such judgment is paid in full. It is the appeal from this order which is now before us.

Interest on judgments for the payment of money. By statute, “[e]very judgment for the payment of money shall bear interest from the day of its entry.” G. L. c. 235, § 8, as appearing in St. 1983, c. 652, § 2. Osborne v. Biotti, 404 Mass. 112, 113-114 (1989). A judgment is the act of the trial court finally adjudicating the rights of the parties including a decision by the court that a party shall recover a sum certain. Ibid.4 The judge’s January 12, 1996, order was a final adjudication of the rights of the parties and was an order for the payment by the husband to the wife of $100,000. Therefore it was a “judgment for the pay[472]*472ment of money.” Under the plain terms of the statute, the judgment bore interest from the date of its entry.5

General Laws c. 235, § 8, is applicable to equitable relief expressed in terms of an order for the payment of money. “[A]n equity decree for the payment of money is a judgment made upon a finding of a judge and thus bears interest from the date of the judgment or award to the date the judgment.is satisfied.” Johnson v. Hazen, 333 Mass. 636, 638 (1956). See Hobbs v. Cunningham, 273 Mass. 529, 536 (1930); Boyer v. Bowles, 316 Mass. 90, 95 (1944); New England Factors, Inc. v. Genstil, 322 Mass. 36, 46 (1947).

This is not a case in which the judge assigned or transferred specifically identified property or accounts from one spouse to another in order to effectuate an equitable division of the marital estate. Such an order would not be a judgment for the payment of money and would not automatically bear interest. But the fact that the effect of the judgment was to adjust equitably the relative balance sheets of the spouses to reflect an equitable division of the marital estate does not undermine the character of the judgment as one for the payment of money.

The inclusion within the judgment of orders not requiring the payment of money does not change this result. The fact that the judgment also provided security for the payment of the money and dealt with child support, visitation, and custody did not deprive the plaintiff of her statutory right to interest on that portion of the judgment that was an order for the payment of a fixed sum in recognition of an equitable division of the marital estate.

Contrary to the husband’s argument, there is no significance to the fact that there has been no express incorporation of Mass.R.Civ.P. 54(f), as amended, 382 Mass. 822 (1980),6 which was added to the Rules of Civil Procedure effective July 1, 1980, [473]*473into the Massachusetts Rules of Domestic Relations Procedure.7 The evident purpose of the addition of rule 54(f) was to clarify the problem identified in Stokosa v. Waltuch, 378 Mass. 617, 620 (1979), as to the duty of the clerk to compute both prejudgment and postjudgment interest. Trinity Church in Boston v. John Hancock Mut. Life Ins Co., 405 Mass. 682, 684-685 (1989). Rule 54(f) merely clarifies the duties of the clerk and does not establish the substantive rights of a party to interest on a judgment. See Stokosa v. Waltuch, supra at 618.

Impact of the availability of contempt. When the appeals of the husband were dismissed, the wife could have brought a complaint for contempt for the failure of the husband to thereafter comply with the judgment in this matter. If the wife’s complaint were successful, the judge could have awarded interest from the date of the filing of the contempt complaint. G. L. c. 215, § 34A.8 But such interest would not have run between the date of the judgment and the final dismissal of the appeal because the husband would not have been in contempt during that time.

Contempt is a remedy to compel compliance with a court order, whether a final judgment or interlocutory order. See Cherry v. Cherry, 253 Mass. 172, 174 (1925). A complaint for civil contempt filed pursuant to G. L. c. 215, § 34A, is the usual method of remedying a failure to pay a continuing order [474]*474for child support or alimony. See

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Cite This Page — Counsel Stack

Bluebook (online)
766 N.E.2d 102, 54 Mass. App. Ct. 469, 2002 Mass. App. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karellas-v-karellas-massappct-2002.