SCOTT E. SQUILLACE, Trustee v. MERRIAGNES M. ASHLEY & Others.

• Court: Massachusetts Appeals Court
• Decided: November 3, 2023
• Docket: 22-P-1118
• Status: Unpublished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

22-P-1118

SCOTT E. SQUILLACE, trustee,1

vs.

MERRIAGNES M. ASHLEY & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Carol Ann Filardo, appeals from a judgment

of dismissal on a complaint for contempt filed by the plaintiff,

Scott E. Squillace, trustee (trustee) of the Administrative

Trust of the Mario R. Filardo 2003 Trust (trust). The complaint

alleged that Carol3 failed to pay a sum certain to the trust in

accordance with a stipulation that was incorporated and merged

in a judgment. Notwithstanding the finding of no contempt, the

judge ordered the trustee to offset the monies owed by Carol

against her interest in the trust, with any deficiency to be

paid by her within sixty days. On Carol's appeal, we affirm.

1 Of the Administrative Trust of the Mario R. Filardo 2003 Trust, as amended. 2 Marco A. Filardo and Carol Ann Filardo. 3 Because many parties share a surname, we use first names to

avoid confusion. Background. In 2017 the trustee filed a complaint for

instructions in the Probate and Family Court seeking guidance on

issues relating to the trust. The litigation resulted in a

stipulation of the parties that was incorporated and merged in a

judgment in June 2018. As relevant here, the four parties4

agreed to pay one-quarter of the fees, costs, and expenses

incurred by the trust and Mario's estate as of June 13, 2018.

The judgment provided that Carol's repayment obligation was to

be "allocated to the respective trust share and/or paid in

cash." As of May 2021, the trust lacked sufficient liquid

assets, and therefore Carol's repayment obligation could not be

offset against her ultimate share of the trust.5 As a result,

the trustee sought a cash payment from Carol. When Carol did

not pay, the trustee filed a complaint for contempt. After

hearing arguments on Carol's motion to dismiss, the judge

allowed the motion concluding that there was not clear and

convincing evidence that Carol disobeyed a clear and unequivocal

order. Nonetheless, the judge ordered the trustee to offset

Carol's repayment obligation against her share in the trust, and

4 The parties included Carol, Marco (Mario and Carol's son), Merriagnes M. Ashley, and Waterfront Travel Services (WTS). The judge allowed an oral motion to add WTS as a party. 5 The trust has not yet been wound down due to ongoing

litigation. As a result, there is no final accounting and therefore no "offset" of Carol's share of the repayment obligation.

2 that any deficiency be paid by Carol within sixty days. This

appeal followed.

Discussion. We review a judge's decision on a complaint

for contempt for an abuse of discretion. See Smith v. Smith, 93

Mass. App. Ct. 361, 363 (2018). In a civil contempt proceeding,

the plaintiff has the burden of proving, by clear and convincing

evidence, "two elements: . . . (1) clear disobedience of (2) a

clear and unequivocal command." Id. Here, the judge concluded

that Carol was not guilty of civil contempt because the

stipulation provided that Carol's repayment obligation could be

allocated against her share of the trust "and/or" be paid in

cash. The judge reasoned that where the "parties agree[d] to

alternative methods of payment, and [Carol] select[ed] one of

the alternatives," there is no contempt.6

Notwithstanding her finding of no contempt, the judge did

not err in ordering the trustee to offset Carol's repayment

obligation against her share of the trust with any deficiency to

be paid by Carol in sixty days.7 This is because the "Probate

Court [is] empowered to enter an order for payment of monies due

6 To the extent that the trustee contends that this ruling was in error, the trustee did not cross-appeal, and, in any event, the judge's ruling is supported by the plain language of the stipulation. 7 The judge accepted Carol's representation that her assets were

insufficient to make a cash payment of her obligation. This is not an issue on appeal.

3 pursuant to its determination of the parties' rights under" the

stipulation. Colorio v. Marx, 72 Mass. App. Ct. 382, 389

(2008), quoting Krapf v. Krapf, 55 Mass. App. Ct. 485, 491

(2002). Ordering Carol to pay the monies she agreed to pay in

the 2018 stipulation did nothing more than "enforce[] the

parties' . . . agreement in order to insure that the [trust]

received" the payment. Colorio, supra, quoting Krapf, supra.

The judge's inclusion of a deadline for payment was also

not error. Because the stipulation did not contain a time frame

for compliance, it was proper to infer that a reasonable time

for compliance was intended by the parties. See Dalrymple v.

Winthrop, 97 Mass. App. Ct. 547, 555 (2020) (if contract fails

to specify time to perform contractual obligation, judge may

infer parties intended reasonable date provided it does not

change essence of contract). Where four years had passed since

entry of the judgment, the judge did not err or abuse her

discretion in determining that sixty days after dismissal of the

contempt complaint was a reasonable time for Carol to comply.

To the extent that Carol argues that the judge's order

requires her to pay her obligation twice, we are not persuaded.

Whether as a setoff against her share of the trust, a cash

payment, or a combination thereof, Carol's obligation under the

terms of the judgment is limited to the amount set forth in the

2018 stipulation. The judge merely clarified Carol's repayment

4 obligation to add a time for compliance; she did not alter the

amount of Carol's obligation in any way. Carol's claim that she

is being charged twice is unfounded. And Carol's claim that she

was "at peril of incurring an additional obligation to pay for

expenses incurred after June 13, 2018," is not borne out by the

record as the judgment covers the period ending June 13, 2018.

Finally, Carol's due process argument is misplaced as the

complaint for contempt put her on notice that the trust was

seeking payment of the amount set forth in the stipulation, and

nothing more. See Sodones v. Sodones, 366 Mass. 121, 127

(1974).8

Judgment and order on complaint for contempt dated April 27, 2022, affirmed.

By the Court (Blake, Massing & Hand, JJ.9),

Clerk

Entered: November 3, 2023.

8 The trustee's request for appellate attorney's fees and costs is denied. 9 The panelists are listed in order of seniority.