46 Mass. App. Ct. 528 | Mass. App. Ct. | 1999
This is an appeal from a judgment of the Probate Court dismissing Barbara’s complaint for contempt and from the judge’s award of attorney’s fees to Richard, her former husband. Richard cross-appeals, contending that the fees, which amount to less than one-third of his total counsel fees, were inadequate.
On April 10, 1990, a judgment of divorce nisi, which incorporated a separation agreement that made comprehensive provision for alimony, child support, custody, and property divi
Barbara, in this bitterly contested appeal, alleges that Richard (1) failed to provide equivalent health insurance when he changed his employment; (2) neglected to pay $1,662.48 of medical and dental expenses incurred by her and their two daughters, Sabra and Alexis, between 1993 and 1996; and (3) failed to reimburse Barbara for $25,000 paid to the “Global Routes Program” for their daughter’s participation in a British exchange program in the spring and summer of 1995.
1. Medical and dental insurance. In 1990, at the time of their divorce, the parties, both represented by counsel, executed the separation agreement which, as noted, obligated Richard to “maintain his existing (or equivalent) health and hospital insurance for the [w]ife and for the children.” Barbara ¿leges that certain medical bills went unpaid because of lack of insurance coverage. The trial judge determined that Richard at all relevant times complied with this obligation.
After Richard left Wedgestone Financial, a corporation he controlled, in September, 1991, he became employed by the Cobblestone Group, which provided health insurance. When he left that company, in December of 1993, he purchased another health insurance policy which was still in effect at the time of the trial.
Barbara contends, however, that both the policy provided by
2. Uninsured medical and dental expenses. As we have noted, the agreement between Barbara and Richard required him to “pay the children’s uninsured medical and dental expenses until each is emancipated.”
Barbara argues that the judge unfairly absolved Richard of his obligation to pay for these uncovered medical expenses because she had not conferred with him before obtaining the services. Richard says that the contested bills were part of a scenario in which he would receive bills without knowledge of what services were required and was forced unilaterally to decide whether they were covered by the agreement. He also testified that some of the bills were never sent to him. With other bills, he contested the necessity of the treatment or the reasonableness of the charges. He claims that Barbara declined to provide him any information concerning these charges. The judge agreed and ¿Iso found that Barbara failed to establish that many of the children’s medical expenses were fair and reasonable.
In addition, Sabra, the eldest daughter, was emancipated in May, 1994, after graduation from college. Of twenty-one bills submitted in evidence by Barbara, the judge found that many of the charges related to Sabra’s treatment after her emancipation. Other bills were for uninsured medical expenses for Barbara which Richard was not obligated to pay under the agreement. During the trial, the judge voiced concern that Richard was entitled, in a joint custody situation, to be consulted about expenses not covered by health insurance. He found that Barbara failed to communicate in this respect. On review of the record, we see no reason to disturb the judge’s findings in this regard.
3. Expenses for the Global Routes program. Barbara chai
.4. Attorney’s fees. Richard moved pursuant to G. L. c. 231, § 6F, for attorney’s fees and costs in his answer to Barbara’s complaint for contempt. At the conclusion of the trial, his counsel, by affidavit, submitted a bill for $69,872.15 for 197.9 hours of work by three lawyers over a period of two years. The judge allowed $20,000 of that amount. He determined that Barbara had the ability to pay the fee, a finding that Barbara does not contest. Rather her position on appeal is that the judge was without authority to award any legal fees by virtue of the so-called “American Rule” which requires each litigant to an action to bear his or her own expenses (subject to limited exceptions).
In his written conclusions, the judge invokes G. L. c. 215, § 34A.
Finally, Barbara argues that G. L. c. 208, § 38, which permits assessment of attorney’s fees as an incident to a divorce proceeding, cannot govern an award here. With a bow to House v. House, 368 Mass. 120, 122 (1975), the Supreme Judicial Court in Kelley v. Kelley, 374 Mass. 826, 827 (1978), construed G. L. c. 208, § 38, as conferring authority on a “judge of the
We conclude that a judge of the Probate Court possesses authority pursuant to G. L. c. 208, § 38, to award legal fees and costs in these circumstances. It is then for the trial judge to review the evidence and determine whether to award attorney’s fees “[a]s long as the amount awarded is not incommensurate with an objective evaluation of the services performed.” Ross v. Ross, 385 Mass. 30, 38-39 (1982). See Old Colony Trust Co. v. Third Universalist Soc., 285 Mass. 146, 151 (1934). If a judge has considerable discretion under G. L. c. 208, § 38, in determining the necessity and amount of attorney’s fees for the prevailing party in a divorce action, Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996), we discern no reason why a judge ought not to be afforded discretion to award reasonable attorney’s fees and costs to one who successfully defends a frivolous contempt action.
In establishing the amount of the award, the judge was not required to conduct a full evidentiary hearing. See Ross v. Ross, 385 Mass, at 38-39. As we have noted, much discretion is afforded trial judges in setting counsel fees “if their findings of fact are not clearly erroneous.” Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 179 (1986), and cases cited, S.C., 400 Mass. 272 (1987).
Here, however, even if one assumes that some part of Richard’s representation by three lawyers may have been duplicative, on a superficial view, the $20,000 allowed seems (though we are not certain) inadequate.
Accordingly, we affirm the judgment dismissing the complaint for contempt. The order of December 3, 1996, ordering Barbara to pay $20,000 for costs and attorney’s fees is vacated and the case remanded to the Probate Court for a hearing and determination by another probate judge (the trial judge has died) of the amount on the award of fees.
So ordered.
Two other claims, that Richard failed to deliver one hundred per cent of Barbara’s beneficial interest in property in South Carolina and that Richard failed to provide an opinion regarding that property by an attorney in South Carolina, were summarily, and correctly, dismissed by the trial judge. He determined that the first matter had already been addressed by a prior contempt action and that Richard was not required to provide such an opinion under the divorce decree.
“As a general rule in Massachusetts, a litigant must bear his own expenses including attorney’s fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permitf] recovery.” Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept, of Mental Retardation (No. 1), 424 Mass. 430, 468 (1997), citing to Waldman v. American Honda Motor Co., 413 Mass. 320, 322 (1992). See Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95-97 (1997) (creating an additional exception where an insured under a homeowner’s policy has successfully established an insurer’s duty to defend); Police Commr. of Boston v.
If the judge sought to act under G. L. c. 231, § 6F, then Barbara’s appeal would be to a single justice of this court — not to the full panel. See G. L. c. 231, § 6G; Bailey v. Shriberg, 31 Mass. App. Ct. 277, 282-283 (1991).
Section 34A, fourth par., inserted by St. 1982, c. 282, effective October 6, 1982, reads as follows:
“In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. The contempt judgment so entered shall include reasonable attorney’s fees and expenses unless the probate judge enters specific findings that such attorney’s fee[s] and expenses shall not be paid by the defendant.”
Compare Heistand v. Heistand, 384 Mass. 20, 28-29 & n.9 (1981) (upholding the denial of fee award, under G. L. c. 231, § 6F, to a defendant who did not prevail in a contempt action).
Cases on this subject indicate that awards in domestic relations litigation are to be governed by caution and restraint, for fees in such cases are awarded strictly on conservative principles. See Hano v. Hano, 5 Mass. App. Ct. 639, 641 (1977); Kane v. Kane, 13 Mass. App. Ct. 557, 560 (1982). See also Robbins v. Robbins, 19 Mass. App. Ct. 538, 543-544 & n.ll (1985).
We do not intimate what the award should be or, in fact, if it should be altered.