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-110
LANA ALVAREZ
vs.
STEVEN P. ALVAREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing, a judge of the Probate and Family
Court issued a judgment adjudicating Steven P. Alvarez
(husband), the former spouse of Lana Alvarez (wife), guilty of
civil contempt for violating (1) the judgment of divorce by
delaying the sale of the former marital home (home) and (2) an
April 2024 temporary order requiring him to vacate the home and
leave it "broom clean." The husband appeals from the contempt
judgment. We affirm.
Background. The parties divorced in June 2012, and their
separation agreement (agreement) was incorporated into a
judgment of divorce nisi. The agreement required the husband to
maintain the home and stay current on the mortgage. It also mandated that the home immediately be listed for sale if the
husband violated certain provisions. In 2015, 2018, and 2023,
the wife filed three separate complaints for contempt, each
relating to the husband's failure to make up to date mortgage
payments and pursue a sale of the home. The 2023 complaint is
the subject of these proceedings.
The judge appointed a special master to assist with all
matters raised in the 2023 complaint, including the sale of the
home. In December 2023, the judge ordered the sale of the home
and an evidentiary hearing to be held by the special master
relating to division of the net proceeds from the sale. The
special master engaged a broker to list the home for sale and,
in March 2024, accepted the highest offer without financing
contingencies after consulting with counsel for both parties. A
closing was scheduled for May 14, 2024. The husband had
submitted an offer that was $20,000 higher than the accepted
offer, but the husband's offer had a financing contingency and
was submitted without proof of preapproval.1 On April 10, 2024,
the judge issued a temporary order that authorized the special
master to execute documents relating to the sale of the home and
1 After the special master accepted the third-party offer, the husband made another offer with proof of preapproval that remained contingent on financing.
2 required the husband to vacate the property by April 30, 2024,
leaving it "broom clean."
In June 2024, the special master held an evidentiary
hearing, after which she filed a report. Following a hearing in
August 2024, the judge adopted the special master's report and
found the husband guilty of contempt of the judgment of divorce
and the order to vacate the home.
Discussion. 1. Indemnity provision of agreement. The
husband argues that the indemnity language in the agreement
prohibits the award of attorney's fees to the wife that was
recommended by the special master and adopted by the judge.
The agreement reads, in relevant part,
"The Parties each agree to fully indemnify and hold the other harmless from any liability resulting from their respective breach of an obligation contained in this Agreement, including reasonable attorneys' fees, costs, and expenses incurred as a result of such breach, or as a result of resisting or defending any claims or demands made by the breaching Party, or by anyone claiming by, through, or on their behalf."
A judge is permitted by statute to order attorney's fees to a
party filing a contempt proceeding in relation to a divorce
judgment. See G. L. c. 208, § 38. We review the award for an
abuse of discretion. See Freidus v. Hartwell, 80 Mass. App. Ct.
496, 504 (2011). We agree with the special master's finding
that the language in the agreement does not preclude the award.
Rather, it reaffirms that a breaching party is required to cover
3 the other party's costs in filing the contempt complaint. See
Northern Heel Corp. v. Compo Indus., 851 F.2d 456, 474-476 (1st
Cir. 1988) (affirming award of attorney's fees to prevailing
party under contract with nearly identical indemnity language).
By statute and under the terms of the agreement, the judge did
not abuse his discretion in awarding fees to the wife.
2. Lack of individual rulings on objections. The husband
argues that the judge erred in adopting the special master's
report without ruling on each of the husband's objections to the
report, in violation of Mass. R. Dom. Rel. P. 53 (h) (2). We
disagree.
Pursuant to Mass. R. Dom. Rel. P. 53 (h) (2), the husband
filed a motion "for the court to act upon to the special
master's report," detailing the husband's objections to the
report. The wife filed a competing motion, asking the judge to
overrule the objections and adopt the special master's report.
In response to a rule 53 (h) (2) motion, a court is permitted to
"adopt the report, strike it in whole or in part, modify it,
recommit it to the master with instructions or take any other
action that justice requires." Mass. R. Dom. Rel. P.
53 (h) (4). Here, the judge held a hearing with the husband,
the wife, and the special master, to review the individual
objections. Contrary to the husband's contention that he was
"deprived . . . of a fair opportunity to present his defenses,"
4 the husband had the opportunity in his written motion and at the
hearing to elaborate on each of his objections. After the
hearing, the judge denied the husband's motion, allowed the
wife's motion to adopt the special master's report, and issued a
written judgment. The judgment constitutes action on the
husband's motion and fulfills the requirements of Mass.
R. Dom. Rel. P. 53 (h) (3) and (4).
The husband contends that the judge failed to address the
admissibility of his testimony that the wife told him to ignore
the second mortgage on the home. The special master sustained
the wife's objection to this testimony and excluded it as a
spousal communication that took place prior to the finalization
of the judgment of divorce nisi. Instead of preserving the
excluded evidence for the record by making an offer of proof, as
Mass. R. Dom. Rel. P. 53 (f) (2) permits, the husband agreed
with the ruling. In his written motion and at the hearing on
his objections to the special master's report, the husband
conceded that he did not make an offer of proof at the hearing
because he thought the ruling was correct. Because the husband
failed to make an offer of proof, the judge was not required to
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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-110
LANA ALVAREZ
vs.
STEVEN P. ALVAREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing, a judge of the Probate and Family
Court issued a judgment adjudicating Steven P. Alvarez
(husband), the former spouse of Lana Alvarez (wife), guilty of
civil contempt for violating (1) the judgment of divorce by
delaying the sale of the former marital home (home) and (2) an
April 2024 temporary order requiring him to vacate the home and
leave it "broom clean." The husband appeals from the contempt
judgment. We affirm.
Background. The parties divorced in June 2012, and their
separation agreement (agreement) was incorporated into a
judgment of divorce nisi. The agreement required the husband to
maintain the home and stay current on the mortgage. It also mandated that the home immediately be listed for sale if the
husband violated certain provisions. In 2015, 2018, and 2023,
the wife filed three separate complaints for contempt, each
relating to the husband's failure to make up to date mortgage
payments and pursue a sale of the home. The 2023 complaint is
the subject of these proceedings.
The judge appointed a special master to assist with all
matters raised in the 2023 complaint, including the sale of the
home. In December 2023, the judge ordered the sale of the home
and an evidentiary hearing to be held by the special master
relating to division of the net proceeds from the sale. The
special master engaged a broker to list the home for sale and,
in March 2024, accepted the highest offer without financing
contingencies after consulting with counsel for both parties. A
closing was scheduled for May 14, 2024. The husband had
submitted an offer that was $20,000 higher than the accepted
offer, but the husband's offer had a financing contingency and
was submitted without proof of preapproval.1 On April 10, 2024,
the judge issued a temporary order that authorized the special
master to execute documents relating to the sale of the home and
1 After the special master accepted the third-party offer, the husband made another offer with proof of preapproval that remained contingent on financing.
2 required the husband to vacate the property by April 30, 2024,
leaving it "broom clean."
In June 2024, the special master held an evidentiary
hearing, after which she filed a report. Following a hearing in
August 2024, the judge adopted the special master's report and
found the husband guilty of contempt of the judgment of divorce
and the order to vacate the home.
Discussion. 1. Indemnity provision of agreement. The
husband argues that the indemnity language in the agreement
prohibits the award of attorney's fees to the wife that was
recommended by the special master and adopted by the judge.
The agreement reads, in relevant part,
"The Parties each agree to fully indemnify and hold the other harmless from any liability resulting from their respective breach of an obligation contained in this Agreement, including reasonable attorneys' fees, costs, and expenses incurred as a result of such breach, or as a result of resisting or defending any claims or demands made by the breaching Party, or by anyone claiming by, through, or on their behalf."
A judge is permitted by statute to order attorney's fees to a
party filing a contempt proceeding in relation to a divorce
judgment. See G. L. c. 208, § 38. We review the award for an
abuse of discretion. See Freidus v. Hartwell, 80 Mass. App. Ct.
496, 504 (2011). We agree with the special master's finding
that the language in the agreement does not preclude the award.
Rather, it reaffirms that a breaching party is required to cover
3 the other party's costs in filing the contempt complaint. See
Northern Heel Corp. v. Compo Indus., 851 F.2d 456, 474-476 (1st
Cir. 1988) (affirming award of attorney's fees to prevailing
party under contract with nearly identical indemnity language).
By statute and under the terms of the agreement, the judge did
not abuse his discretion in awarding fees to the wife.
2. Lack of individual rulings on objections. The husband
argues that the judge erred in adopting the special master's
report without ruling on each of the husband's objections to the
report, in violation of Mass. R. Dom. Rel. P. 53 (h) (2). We
disagree.
Pursuant to Mass. R. Dom. Rel. P. 53 (h) (2), the husband
filed a motion "for the court to act upon to the special
master's report," detailing the husband's objections to the
report. The wife filed a competing motion, asking the judge to
overrule the objections and adopt the special master's report.
In response to a rule 53 (h) (2) motion, a court is permitted to
"adopt the report, strike it in whole or in part, modify it,
recommit it to the master with instructions or take any other
action that justice requires." Mass. R. Dom. Rel. P.
53 (h) (4). Here, the judge held a hearing with the husband,
the wife, and the special master, to review the individual
objections. Contrary to the husband's contention that he was
"deprived . . . of a fair opportunity to present his defenses,"
4 the husband had the opportunity in his written motion and at the
hearing to elaborate on each of his objections. After the
hearing, the judge denied the husband's motion, allowed the
wife's motion to adopt the special master's report, and issued a
written judgment. The judgment constitutes action on the
husband's motion and fulfills the requirements of Mass.
R. Dom. Rel. P. 53 (h) (3) and (4).
The husband contends that the judge failed to address the
admissibility of his testimony that the wife told him to ignore
the second mortgage on the home. The special master sustained
the wife's objection to this testimony and excluded it as a
spousal communication that took place prior to the finalization
of the judgment of divorce nisi. Instead of preserving the
excluded evidence for the record by making an offer of proof, as
Mass. R. Dom. Rel. P. 53 (f) (2) permits, the husband agreed
with the ruling. In his written motion and at the hearing on
his objections to the special master's report, the husband
conceded that he did not make an offer of proof at the hearing
because he thought the ruling was correct. Because the husband
failed to make an offer of proof, the judge was not required to
rule specifically on this evidentiary issue. See Lewis v.
Desrosiers, 13 Mass. App. Ct. 997, 999 (1982) (burden on party
objecting to special master report to present adequate record
for review). To the extent that the judge implicitly determined
5 that the special master did not abuse discretion by excluding
the testimony, we discern no error.
3. Approval of sale of home. The husband next asserts
that the judge erred by approving the third-party offer on the
home in spite of the husband's higher offer. Because the
husband raises this issue for the first time on appeal, it is
waived. See Libman v. Zuckerman, 33 Mass. App. Ct. 341, 345
(1992) (issues not raised in objections to special master's
report are waived). Even were we to consider this argument, it
is unavailing. The special master informed the judge that she
delayed putting the home on the market to give the husband time
to negotiate a buyout and would have been receptive to an offer
by the husband in the months leading up to the deadline for
offers. However, the husband made the final offer late and it
came with a contingency. The husband had not worked for a long
time and had delayed refinancing the home, in violation of the
agreement, for over ten years. The special master did not abuse
discretion by accepting a lower, all-cash offer. Thus, the
judge did not err in approving the sale.
4. Equitable division of proceeds. The husband argues
further that the judge erred by failing to consider equitable
principles in the division of the proceeds of the house. To
begin, the husband had ample opportunity to introduce evidence
on the equitable division of proceeds during the special
6 master's evidentiary hearing, which was transcribed by a
certified court reporter. However, the husband did not produce
the full transcript of the hearing to the judge. Absent a
complete record of the evidentiary hearing, the judge did not
err in adopting the special master's findings and incorporating
them into the judgment of contempt. See Mass. R. Dom. Rel. P.
53 (h) (1). See also Libman, 33 Mass. App. Ct. at 343.2
Judgment dated August 12, 2024, affirmed.
By the Court (Rubin, Brennan & Wood, JJ.3),
Clerk
Entered: May 1, 2026.
2 The wife's request for attorney's fees under the agreement due to the contempt finding is allowed. Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the wife may file a request for appellate attorney's fees, along with supporting documentation, within fourteen days of the issuance of the decision in this case. The husband shall have fourteen days thereafter within which to respond.
3 The panelists are listed in order of seniority.