Kevin R. Kivi v. Cynthia M. Kivi.

• Court: Massachusetts Appeals Court
• Decided: December 24, 2024
• Docket: 24-P-0063
• Status: Unpublished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

24-P-63

KEVIN R. KIVI

vs.

CYNTHIA M. KIVI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The former wife (wife) appeals from a judgment of divorce

nisi and from a judgment on her complaint for civil contempt.

She argues that the Probate and Family Court judge erred by

finding the former husband (husband) not in contempt and by

declining to award the wife her attorney's fees, that the judge

erred in denying her motion for release of funds to retain an

expert, and that the judge awarded insufficient alimony. We

affirm.

1. Contempt. Under a temporary order entered in July

2021, the husband was required to pay the wife $172 per week in

alimony. In January 2022 the wife filed a complaint for civil

contempt alleging that the husband violated the temporary order on October 29, 2021, and "subsequent dates." According to the

complaint, the husband was $1,032 in arrears on his payments.

In April 2022 the parties entered into a stipulation, which

provided among other things that the husband would pay the

arrears from his share of the proceeds from the sale of the

marital home. In accordance with this agreement, the husband

paid the wife $2,408, which represented the total amount of

arrears he owed through April 11, 2022. The contempt matter was

then consolidated with the divorce matter.

After the trial, at which the parties were the sole

witnesses, the judge ruled that the husband was not in contempt.

The judge found that, although the husband was late on some

payments, this was "due to his getting to the bank late" and he

eventually made all of the payments. The judge noted that the

husband offered to pay the wife by Venmo (an application that

facilitates electronic money transfers) or some other direct

form of payment, but the wife refused. In addition, the judge

found that the husband was laid off from his job in 2022 and had

to wait approximately five weeks for his unemployment check;

this caused him to be late on his payments, but he "ended up

catching up."

The wife argues that the judge erred in finding the husband

not in contempt because the evidence showed that the husband

2 willfully disobeyed the temporary order. We disagree. To prove

civil contempt, a plaintiff must establish by clear and

convincing evidence that there was "clear disobedience" of "a

clear and unequivocal command." Smith v. Smith, 93 Mass. App.

Ct. 361, 363 (2018). "[T]he requirement to prove 'clear

disobedience' has teeth" and means that "a person cannot be

found in contempt of an order to pay money that he or she is

unable to pay." Id. at 363-364. We review a judge's ruling on

a complaint for contempt only for abuse of discretion. See id.

at 363.

Here, the judge was within his discretion to conclude that

the husband did not clearly disobey the temporary order. The

judge credited the husband's testimony that he was unable to

make payments for a number of weeks because he was unemployed,

but caught up with the payments once he was able to work again.

Furthermore, the husband paid all of the arrears he owed once

the funds from the sale of the marital home were distributed to

him. The judge did not credit the wife's testimony that the

husband had additional arrears at the time of trial. Based on

the totality of these circumstances, the judge permissibly found

the husband not in contempt. See Smith, 93 Mass. App. Ct. at

364. In turn, the judge permissibly declined to award the wife

her attorney's fees, given that she was not the prevailing

3 party. See G. L. c. 215, § 34A (a) (plaintiff in contempt

action presumptively entitled to attorney's fees if "judgment of

contempt" enters).

2. Motion for release of funds. Following a hearing in

September 2022, the judge set the matter for trial on March 24,

2023, and ordered that discovery be completed no later than

January 20, 2023. On February 21, 2023, the wife filed a motion

to release funds being held in escrow by the husband's attorney,

claiming that the funds were needed to hire an expert to assess

the wife's ability to work. After a hearing the judge denied

the motion.

The wife contends that the judge erred in denying her

motion, but she has not provided us with a copy of the hearing

transcript. The judge presumably could have denied the motion

as untimely, but we cannot say on this record, nor can we assess

whether his ruling was an abuse of discretion. The argument is

therefore waived. See Mass. R. A. P. 16 (a) (9), as appearing

in 481 Mass. 1628 (2019).

3. Amount of alimony. In contesting the amount of the

alimony award, the wife argues that the judge made a number of

errors by either discrediting the wife's testimony or crediting

the husband's testimony. A judge's credibility findings are

virtually unassailable on appeal and will not be disturbed

4 unless clearly erroneous. See Wakefield v. Hegarty, 67 Mass.

App. Ct. 772, 774-775 (2006). After reviewing each of the

wife's arguments, we conclude that she has not demonstrated

clear error. Moreover, the wife does not explain how her

arguments relate to the judge's ultimate determination of the

alimony award. The import appears to be that, had the judge

credited the wife's allegations of physical abuse by the

husband, the judge would be compelled to find that the wife is

permanently disabled from engaging in any employment. To the

extent this is her claim, we are unpersuaded. The wife did not

submit any medical records in support of her allegation of

permanent disability, and, as the judge found, she worked part-

time throughout the course of the marriage, at times holding

multiple jobs at once. Thus, it was not clear error for the

judge to attribute part-time income to the wife.

Finally, in the statement of issues section of her brief,

the wife claims that the judge erred by awarding her an amount

less than the "statutory" thirty percent of the difference

between the parties' gross incomes. See G. L. c. 208, § 53 (b).

But the wife does not raise this issue again in the argument

section of her brief. It is therefore waived. See Mass.

5 R. A. P. 16 (a) (9); Maroney v. Planning Bd. of Haverhill, 97

Mass. App. Ct. 678, 683 n.8 (2020).

Judgment of divorce nisi affirmed.

Judgment on complaint for civil contempt affirmed.

By the Court (Rubin, Shin & Hodgens, JJ.1),

Clerk

Entered: December 24, 2024.

1 The panelists are listed in order of seniority.