Squillace v. Ashley

1

SCOTT E. SQUILLACE, trustee,^[1] v. MERRIAGNES M. ASHLEY & others.^[2]

No. 22-P-1118

Appeals Court of Massachusetts

November 3, 2023

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).

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 Carol^[3] 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.

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 parties^[4]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 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 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...