>
784 N.E.2d 1
438 Mass. 725
Supreme Judicial Court of
Massachusetts,
Norfolk.
Robert D. SILVERMAN
v.
Claudia A. SPIRO.
Argued Dec. 2, 2002.
Decided Feb. 24, 2003.
Father
filed petition for modification
of judgment of divorce nisi
against mother, seeking
sole legal and physical
custody of children, and
also filed complaint for
contempt against mother,
predicated on her removal
of children from state without
notice. The Probate
and Family Court Department,
Norfolk County, Eileen M.
Shaevel and Paula M. Carey,
JJ., entered modification
judgment and judgment of
contempt, awarding, among
other things, sole custody
to father and child support
against mother, and approving
a qualified domestic relations
order (QDRO) in the amount
of $55,000 to effect payment
of father's attorney fees
from mother's retirement
fund. Appeal was filed.
Upon transfer on its own
motion from Appeals Court,
the Supreme Judicial Court,
Greaney, J., held that:
(1) award of attorney fees
to father was proper; (2)
trial judge did not commit
abuse of discretion in declining
to grant mother an evidentiary
hearing on issue of award
of attorney fees to father;
as a matter of first impression,
(3) in a domestic relations
case, where orders of custody
and child support were made,
and parent against whom
support order was entered
had no other assets beyond
his or her retirement fund
to comply with support order,
a qualified domestic relations
order (QDRO) to ensure payment
of support would be appropriate
under "relates to"
language of QDRO exception
to antiassignment and antialienation
provision of Employee Retirement
Income Security Act (ERISA);
(4) father's attorney was
entitled to QDRO to recover
attorney fees in connection
with his work related to
order establishing back
child support owed by mother,
but his time spent on other
aspects of case not related
to provision of child support,
alimony payments, or marital
property rights could not
be included in the QDRO;
(5) trial judge could not
condition mother's visitation
with her children on individual
therapy sessions between
her and a therapist for
as many sessions as therapist
deemed appropriate; and
(6) trial court could not
award father sole ownership
of property father had removed
from former marital home
following execution of separation
agreement between father
and mother that was not
merged in judgment of divorce
nisi.
Affirmed
in part, vacated in part,
and remanded with instructions.
West Headnotes
> [1]
Child Custody K>
949
76D ----
76DXIV
Costs
76Dk946
Amount
>
76Dk949 Attorney Fees.
Award
of $55,000 in attorney fees
to father, to be paid through
transfer of retirement funds
held for benefit of mother,
representing fees and costs
associated with modification
of custody provisions of
divorce nisi judgment and
related contempt judgment
against mother for removing
children from state without
notice, and some $11,000
to compensate father for
tax consequences and penalties
if he liquidated any portion
of transferred funds, was
proper, where award reflected
approximately 70 per cent
of actual fees incurred
by father, fees were commensurate
with services performed,
and fees embodied award
that simultaneously granted
reimbursement to father
and sanctioned mother.
> [2]
Child Custody K>
954
76D ----
76DXIV
Costs
>
76Dk954 Hearing.
Trial
judge did not commit abuse
of discretion in declining
to grant mother an evidentiary
hearing on issue of award
of attorney fees to father,
associated with modification
of custody provisions of
divorce nisi judgment and
related contempt judgment
against mother for removing
children from state without
notice, where judge gave
mother adequate opportunity
to address issue of attorney
fees and costs in written
submission, and mother did
so.
> [3]
Appeal and Error K>
984(5)
30 ----
30XVI
Review
30XVI(H)
Discretion of Lower Court
30k984
Costs and Allowances
>
30k984(5) Attorneys' Fees.
[See
headnote text below]
> [3]
Costs K> 194.12
102 ----
102VIII
Attorney Fees
>
102k194.12 Discretion of
Court.
As long
as an award of attorney's
fees is not incommensurate
with an objective evaluation
of the services performed,
the award of such costs
generally rests in sound
judicial discretion; the
award may be presumed to
be right and ordinarily
ought not to be disturbed.
> [4]
Child Custody K>
959
76D ----
76DXIV
Costs
>
76Dk959 Enforcement.
Father's
attorney was entitled to
qualified domestic relations
order (QDRO) to recover
attorney fees in connection
with his work related to
order establishing back
child support owed by mother,
pursuant to QDRO exception
to antiassignment and antialienation
provision of Employee Retirement
Income Security Act (ERISA),
in domestic relations case
where orders of custody
and child support were made
against mother, and mother
had no other assets beyond
her retirement fund to comply
with support order, but
his time spent on other
aspects of case not related
to provision of child support,
alimony payments, or marital
property rights could not
be included in the QDRO.
Employee Retirement Income
Security Act of 1974, §
206(d)(3)(A), (d)(3)(B)(ii),
> 29 U.S.C.A. § 1056(d)(3)(A),
(d)(3)(B)(ii).
> [5]
Constitutional Law
K> 70.1(2)
92 ----
92III
Distribution of Governmental
Powers and Functions
92III(B)
Judicial Powers and Functions
92k70
Encroachment on Legislature
92k70.1
In General
>
92k70.1(2) Making, Interpretation,
and Application of Laws.
In interpreting
statutes, as a general matter,
courts should be loath to
announce equitable exceptions
to legislative requirements
or prohibitions that are
unqualified by the statutory
text.
> [6]
Child Support K>
440
76E ----
76EIX
Enforcement
>
76Ek440 In General.
In a
domestic relations case,
where orders of custody
and child support are made,
and the parent against whom
support order is entered
has no other assets beyond
his or her retirement fund
to comply with support order,
a qualified domestic relations
order (QDRO) to ensure payment
of support would be appropriate
under "relates to"
language of QDRO exception
to antiassignment and antialienation
provision of Employee Retirement
Income Security Act (ERISA);
otherwise, basic purpose
of QDRO exception, to ensure
payment of spousal and child
support, would be frustrated,
perhaps necessitating provision
for needs of spouse and
children out of public funds.
Employee Retirement Income
Security Act of 1974, §
206(d)(3)(A), (d)(3)(B)(ii),
> 29 U.S.C.A. § 1056(d)(3)(A),
(d)(3)(B)(ii).
> [7]
Child Support K>
558(3)
76E ----
76EXII
Appeal or Judicial Review
76Ek548
Review
76Ek558
Harmless Error
>
76Ek558(3) Modification.
[See
headnote text below]
> [7]
Child Support K>
558(4)
76E ----
76EXII
Appeal
or Judicial Review
76Ek548
Review
76Ek558
Harmless Error
>
76Ek558(4) Enforcement;
Arrearages; Contempt.
Trial
judge's exclusion of mother's
letter and testimony allegedly
challenging father's assertion
that he was not told of
her trip out of state did
not entitle mother to new
trial, in proceedings for
modification of custody
provisions of divorce nisi
judgment and related contempt
judgment against mother
for removing children from
state without notice, where
main points of letter concerning
her intention to travel
with children were covered
in mother's testimony, and
principal point of reply
letter from father was also
before judge in mother's
testimony.
> [8]
Child Custody K>
222
76D ----
76DV
Visitation
76Dk215
Visitation Conditions
>
76Dk222 Counseling.
Trial
judge could not condition
mother's visitation with
her children on individual
therapy sessions between
her and a therapist for
as many sessions as therapist
deemed appropriate; provision
could result in improper
termination of mother's
right to visitation in absence
of specific findings demonstrating
that parental visits would
harm children, and therapist
could not have sole authority
to determine matters on
issue of visitation.
> [9]
Divorce K> 249.2
134 ----
134V
Alimony, Allowances, and
Disposition of Property
134k248
Disposition of Property
>
134k249.2 Stipulations and
Agreements of Parties.
In modification
of judgment of divorce nisi
proceedings, trial court
could not award father sole
ownership of property father
had removed from former
marital home following execution
of separation agreement
between father and mother
that was not merged in judgment
of divorce nisi; mother
and father had jointly stipulated
in separation agreement
to final distribution of
marital property and, thus,
provisions of separation
agreement concerning distribution
of marital property remained
independent contract between
parties, which judge could
not alter.
[438
Mass. 726] Michael J. Traft,
Boston (Rosanne Klovee with
him) for the defendant.
Debra
Grossman, Chelmsford (Patricia
M. Davis & John K. Leslie
with her) for the plaintiff.
Present:
MARSHALL, C.J., GREANEY,
SPINA, COWIN, SOSMAN, &
CORDY, JJ.
GREANEY,
J.
This
litigation involves complaints
brought by the plaintiff,
the former husband, against
the defendant, his former
wife, for modification of
a judgment of divorce nisi
and for contempt.
We shall refer to the plaintiff
as the father, and the defendant
as the mother. We
transferred the case to
this court on our own motion
to decide, among other questions,
whether a qualified domestic
relations order (QDRO) that
required the mother to pay
attorney's fees and costs
(attorney's fees) to the
father out of her retirement
fund violated the QDRO exception
to the antiassignment and
antialienation provision
of the Employment Retirement
Income Security Act of 1974
(ERISA), see > 29 U.S.C.
§ 1056(d)(3)(2000).
We conclude that the QDRO
was properly entered, but
that the amount of funds
specified therein must be
recalculated. On other
issues argued by the mother,
we conclude that (1) the
judge did not abuse her
discretion in the assessment
of attorney's fees;
(2) the exclusion of evidence
offered by the mother at
trial does not warrant a
new trial; (3) the
mother may move, if she
chooses, to have the order
concerning visitation reexamined
in light of present circumstances;
(4) the judge erroneously
awarded the father sole
ownership of property he
removed from the former
marital home; and
(5) the mother was properly
found in contempt.
The background
of the case is as follows.
The mother filed a [438
Mass. 727] complaint in
the Probate and Family Court
seeking to terminate her
eleven-year marriage to
the father. Following
the execution of a separation
agreement, a judgment of
divorce nisi entered on
August 6, 1998. The
separation agreement (with
the express exception of
the division of marital
property) was integrated
and merged in the judgment.
The judgment of divorce
nisi provided that the parties
would share legal custody
of their three minor children.
The mother assumed primary
physical custody of the
children, with visitation
granted to the father.
> (FN1)
In December,
1998, the father filed a
complaint for modification,
alleging that the mother
had repeatedly interfered
with his visitation, and
requesting sole legal and
physical custody of the
children. In the complaint,
the father stated that the
children's school reported
that the mother had removed
the children for a two-week
period and their whereabouts
were unknown. The
father also filed a complaint
for contempt, alleging that
the mother had violated
the judgment of divorce
nisi by (1) denying him
visitation; (2) failing
to sign the title of their
Geo automobile over to him;
and (3) failing to provide
him with information needed
to prepare their joint tax
return. After a hearing,
the father was granted temporary
physical custody of the
children and a capias issued
for the mother's arrest.
The father was also permitted
to enter the former marital
home to retrieve certain
personal property that he
claimed was needed to establish
a home for the children.
In March,
1999, the mother was arrested
in Texas, on parental kidnapping
charges. (The charges
were eventually dropped.)
The father went to Texas,
took custody of the children,
and brought them back to
Massachusetts. The
mother unsuccessfully sought
to regain custody.
In July, 2000, the father's
complaints for modification
and contempt were tried
together.
After
the trial, the judge entered
a modification judgment,
followed by a statement
of factual findings and
conclusions that we now
summarize. On or about
December 12, 1998, the mother
left Massachusetts in her
automobile with the children.
She did not obtain the father's
consent to leave, or notify
him that she [438 Mass.
728] was intending to remove
the children from Massachusetts.
The mother's destination
was Texas, and she told
the children that they would
never see their father again.
The judge did not find credible
the mother's assertions
that she was taking the
children to Texas for a
vacation or to conduct a
job search there, and that
the mother could not return
to Massachusetts for over
two months because she had
trouble with her automobile.
The judge found that the
mother "had no intention
of returning to Massachusetts
with the children."
While
in Texas, the children and
the mother lived in a shelter.
The children were registered
in school under the mother's
last name. When the
father went to Texas to
retrieve the children, he
found one of his sons ill
with strep throat and a
fever of 105 degrees.
The mother had not attended
to his medical care.
The children
incurred trauma as a result
of the trip to Texas, living
in a shelter, and being
told that they would never
see their father again.
On returning to Massachusetts,
the father engaged a therapist
for the children.
Each of the children suffered
some form of posttraumatic
stress disorder from the
experience. The children
no longer trusted their
mother, believed that she
had lied to them, and feared
that if they were left with
her, she would take them
away again.
The children
have made progress while
living with their father
and wish to continue living
with him. The mother
has failed to acknowledge
the trauma she caused the
children and blames the
father for past behavior.
The judge determined that
the mother's contentions
on the custody issues had
been essentially refuted
in the investigation conducted
by the guardian ad litem
(GAL). The judge concluded
that the best interests
of the children called for
the father to have sole
legal and physical custody.
The judge
accepted the GAL's recommendation
that the mother remain involved
in the lives of her children
in some manner. The
judge explained that the
children "will need
a transition to incorporate
the mother into their lives
again. However, this
must be done slowly and
with great consideration.
The children have only recently
regained a sense of security,
which must be protected
at all costs. As a
result, in order for there
to be any contact between
the mother and the children,
it [438 Mass. 729] must
first begin with a family
therapist, as more specifically
set forth in the [m]odification
[j]udgment."
The modification judgment,
as to this issue, contained
the provisions set forth
below. > (FN2)
In the
modification judgment, the
judge also ordered that
the father "shall have
sole ownership of the property
he removed from the former
marital home ... and the
mother shall have no further
claim to the said property."
The judge directed that
the mother pay child support
in the amount of $90 a week
to the father, as well as
a specified amount of back
child support. (We
shall provide further background
on the child support award
subsequently when we decide
the QDRO issue.)
In addition, the judge ordered
that the mother pay attorney's
fees to the father's counsel
in the amount of $44,465.
She explained: "The
father was forced to incur
substantial fees and costs
in locating the mother and
children after she wrongfully
removed the children from
Massachusetts. Since
the recovery of the children,
the mother has been uncooperative
in providing information
in the process of discovery
and unreasonable in her
refusal to resolve this
case without the necessity
of trial, thereby causing
the father to incur an inordinate
amount of fees and costs
in bringing this matter
to a conclusion."
The judge ordered:
[438
Mass. 730] "Payment
of the attorneys' fees and
costs shall be effected
through a transfer of the
[retirement] funds currently
held for the benefit of
the mother under an account
... in the amount of $55,000.
The increase of some $11,000
over and above the award
of fees and costs gives
some consideration to the
tax consequences and penalties
which may be incurred in
the event the father liquidates
any portion of the transferred
funds. Counsel for
the father shall prepare
a [QDRO] for approval by
the [c]ourt so that the
funds can be transferred
within the next 30 days.
The [c]ourt shall at that
time release from the [t]rustee
[p]rocess sufficient funds
to allow for the transfer."
The judge
entered a separate judgment
of contempt for the mother's
failure to comply with the
terms of the judgment of
divorce nisi permitting
the father visitation with
the children, requiring
the parties to file their
1997 joint tax return within
twenty-one days of the entry
of the judgment of divorce
nisi, and requiring the
mother to "promptly
sign over the title"
of the parties' Geo automobile
to the father after he paid
the few remaining car payments.
Thereafter, another probate
judge approved a QDRO in
the amount of $55,000 to
effect payment of the father's
attorney's fees.
1. We
reject the mother's arguments
that the judge erred in
setting the amount of attorney's
fees and lacked authority
to enter the attorney's
fees QDRO.
>
[1]> [2]> [3] (a)
As long as an award of attorney's
fees is "not incommensurate
with an objective evaluation
of the services performed
... '[t]he award of such
costs generally rests in
sound judicial discretion....
[T]he award ... may be presumed
to be right and ordinarily
ought not to be disturbed.'
" > Ross v.
Ross, 385 Mass. 30, 38-39,
430 N.E.2d 815 (1982), quoting
> Smith v. Smith, 361
Mass. 733, 738, 282 N.E.2d
412 (1972). Our review
of the affidavits submitted
by the father's counsel
discloses that the judge's
award reflects approximately
seventy per cent of the
actual fees and costs incurred,
thus demonstrating the judge's
consideration of the issues
raised by the mother, including
the disparity of the parties'
income. The attorney's
fees sought, contrary to
the mother's contention,
were commensurate with the
services performed, and
significantly, those fees
were [438 Mass. 731] awarded
in connection with both
the modification judgment
and the contempt judgment,
thus embodying an award
that simultaneously granted
reimbursement to the father
and sanctioned the mother.
See > Edinburg v. Edinburg,
22 Mass.App.Ct. 192, 197,
492 N.E.2d 1159 (1986).
The judge also correctly
ordered that accommodation
should be made for the tax
consequences resulting from
the liquidation of some
of the mother's retirement
assets. Cf. > Rice
v. Rice, 372 Mass. 398,
402 & n. 4, 361 N.E.2d
1305 (1977) (if raised,
tax consequences of marital
distribution should have
been considered by judge);
> Fechtor v. Fechtor,
26 Mass.App.Ct. 859, 866,
534 N.E.2d 1 (1989) (appropriate
to consider and minimize
tax consequences when apportioning
marital assets). Finally,
the judge did not commit
an abuse of discretion in
declining to grant the mother
an evidentiary hearing.
See > Ross v. Ross, supra
at 38, 430 N.E.2d 815.
The judge gave the mother
adequate opportunity to
address the issue of attorney's
fees and costs in a written
submission, and the mother
did so. Thus, the
award of attorney's fees
and costs for the litigation
under consideration was
proper.
(b) We
turn now to the disputed
QDRO. Some additional
background will be helpful.
In her findings of fact,
the judge determined that
the father had been supporting
the children since March,
1999, when they returned
with him from Texas.
Because the mother had been
able to pay, but had not
paid, child support since
September, 1999, the judge
concluded that the mother
owed back child support
of $5,000, and the judge
ordered that the arrearages
be paid at the rate of $25
a week. The modification
judgment, therefore, called
for weekly payments of child
support by the mother in
the amount of $115 ($90
a week current support and
$25 a week to liquidate
the arrearages). The
judge directed that a portion
of the mother's monthly
retirement fund income be
paid as
security for child support.
> (FN3) A wage
assignment was entered,
and, it appears, a separate
QDRO to effect the payment
of child support.
Neither the wage assignment
nor the child support QDRO
are in issue in this appeal.
Thereafter, the QDRO with
which we are concerned was
entered to reimburse the
father for his attorney's
fees.
[438
Mass. 732] An explanation
of the law governing QDRO's
in the domestic relations
context is now in order.
Under Federal law, ERISA-governed
pension plans > (FN4)
"shall provide that
benefits provided under
the plan may not be assigned
or alienated."
> 29 U.S.C. § 1056(d)(1).
This provision of ERISA
is known as the antiassignment
and antialienation provision.
The provision is intended
to "protect an employee
from his own financial improvidence
in dealing with third parties."
> Hawkins v. Commissioner
of Internal Revenue, 86
F.3d 982, 988 (10th Cir.1996),
quoting > American Tel.
& Tel. Co. v. Merry,
592 F.2d 118, 124 (2d Cir.1979).
In 1984,
Congress passed the Retirement
Equity Act of 1984(REA),
which amended ERISA to provide
an exemption for a "qualified
domestic relations order,"
or a "QDRO."
REA, Pub.L. No. 98-397,
§ 104(a), 98 Stat. 1433
(1984). See > 29
U.S.C. § 1056(d)(3)(A).
The term "qualified
domestic relations order"
is defined in ERISA as "a
domestic relations order
... which creates or recognizes
the existence of an alternate
payee's right to, or assigns
to an alternate payee the
right to, receive all or
a portion of the benefits
payable with respect to
a participant under a plan."
Pub.L. No. 98-397, § 104(a),supra.
See > 29 U.S.C. § 1056(d)(3)(B)(i)(I).
A "domestic relations
order" is "any
judgment, decree, or order
(including approval of a
property settlement) which--(I)
relates to the provision
of child support, alimony
payments, or marital property
rights to a spouse, former
spouse, child, or other
dependent of a participant,
and (II) is made pursuant
to a State domestic relations
law." Pub.L.
No. 98-397, § 104(a), supra.
See > 29 U.S.C. § 1056(d)(3)(B)(ii).
The REA also amended ERISA
to clarify that QDROs are
exempt from ERISA's preemption
provision. See Pub.L.
No. 98-397, § 104(b), 98
Stat. 1436 (adding paragraph
[b][7] to § 1144 of ERISA).
The QDRO in this case was
entered in reliance on these
provisions.
> [4] The mother
argues that the judge had
no authority to enter the
attorney's fees QDRO because
the QDRO does not "relate
to child support, alimony
or marital property rights."
The mother also asserts
that the QDRO is invalid
because no State law authorizes
"a levy on retirement
assets to pay attorney [']s
fees [438 Mass. 733] imposed
not as an adjunct to support
but as a penalty related
to custody litigation."
The mother maintains that
the attorney's fees were
incurred "not to facilitate
the collection of child
support[,] but essentially
as a sanction ... for her
actions in the course of
the [change of custody]
litigation," and as
such fall outside of the
QDRO exception to ERISA.
The issue
of the validity of a QDRO
to recover attorney's fees
is one we have not decided.
ERISA itself does not expressly
permit an assignment of
retirement funds pursuant
to a QDRO to satisfy an
award of attorney's fees.
The requirement that a QDRO
"relate to" alimony,
child support,
or the division of marital
property seeks to ensure
that assets protected under
ERISA will be used for the
benefit of a former spouse
or a dependent, and then
only for specified purposes.
Necessarily implicit, however,
in the Federal law's recognition
of a QDRO is authorization
for the reimbursement of
attorney's fees incurred
in obtaining a proper order.
Were it otherwise, a former
spouse or party who succeeded
in obtaining an appropriate
QDRO would have the order
reduced by the necessity
of paying attorney's fees.
In some circumstances, a
former spouse or party might
even forgo seeking a needed
QDRO because of the prohibitive
nature of unreimbursed attorney's
fees. These results
would undermine the intent
of Congress in establishing
the QDRO exception by denying
deserving parties and children
a recovery to which they
are entitled.
>
[5] In > Guidry v. Sheet
Metal Workers Nat. Pension
Fund, 493 U.S. 365, 376-377,
110 S.Ct. 680, 107 L.Ed.2d
782 (1990), the United States
Supreme Court held that
the antialienation provision
of ERISA cannot be pierced
by the imposition of a constructive
trust to attach payment
of retirement funds due
a union official who had
embezzled a substantial
amount of union funds.
The constructive trust was
sought to prevent the official
from benefiting from his
misconduct that had damaged
the viability of the union
and its members' pension
plans. In rejecting
the constructive trust remedy,
the Court expressly held
that equitable considerations,
no matter how compelling,
could not be used to override
the antialienation provision
of ERISA. The Court's
decision explicated the
principle that an exception
to ERISA's antialienation
provision, such as the QDRO
exception, must be [438
Mass. 734] strictly construed.
As the Court stated:
"As a general matter,
courts should be loath to
announce equitable exceptions
to legislative requirements
or prohibitions that are
unqualified by the statutory
text. The creation
of such exceptions, in our
view, would be especially
problematic in the context
of an antigarnishment provision
[namely, the antialienation
provision of ERISA].
Such a provision acts, by
definition, to hinder the
collection of a lawful debt."
> Id. at 376, 110 S.Ct.
680.
The decisions
that have dealt with QDROs
for the payment of attorney's
fees in domestic relations
disputes have upheld the
QDRO only in the context
of claims for the collection
of past due spousal or child
support. See >
Trustees Of Directors Guild
Of America Producer Pension
Benefits Plans v. Tise,
234 F.3d 415, 426 (9th Cir.2000),
amended, > 255 F.3d 661,
662 (9th Cir.2000) (approving
distribution of pension
plan proceeds pursuant to
QDRO that awarded child
support arrears and attorney's
fees incurred in enforcing
prior child support order);
> Navarro v. Olivarez,
188 Cal.App.3d 336, 339-340,
344-345, 232 Cal.Rptr. 794
(1986) (affirming order
of award of attorney's fees
and costs from husband's
pension benefits that were
incurred in connection with
order for spousal support
arrearages); >
Renner v. Blatte, 170 Misc.2d
579, 583, 650 N.Y.S.2d 943
(N.Y.Sup.Ct.1996) (approving
QDRO that awarded counsel
fee arrears that related
to child support and maintenance);
> Adler v. Adler, 224
A.D.2d 282, 638 N.Y.S.2d
29 (1996) (affirming entry
of QDRO to enforce money
judgments for attorney's
fees incurred by plaintiff
in attempt to compel defendant's
compliance with child support
obligations contained in
settlement agreement incorporated
but not merged into parties'
divorce judgment).
These decisions also have
routinely approved the use
of a QDRO to permit the
recovery of attorney's fees
in connection with the enforcement
of an existing order for
spousal or child support.
> (FN5) Admittedly,
in these decisions, the
collection of past due support
was the principal matter
in issue, [438 Mass. 735]
but the decisions are instructive
nonetheless because they
apply, in practice, a strict
construction approach.
>
[6] In this case, we have
orders that (a) modify the
judgment of divorce nisi
to change custody of the
children from the mother
to the father; (b)
adjudicate, and make provision
for, the mother's payment
of $5,000 in back child
support; and (c) adjudicate,
and make provision for,
the mother's payment of
on-going child support.
The latter order concerning
future child support is
not before us, but because
the mother's financial circumstances
made compliance with the
order possibly problematic,
the order was secured by
a wage assignment and, it
appears, a separate child
support QDRO. We mention
this because, even though
the wage assignment and
child support QDRO are not
in issue, in a domestic
relations case, where orders
of custody and child support
are made, and the parent
against whom the support
order is entered has no
other assets beyond his
or her retirement fund to
comply with the order, a
QDRO to ensure payment would
be appropriate under the
"relates to" language
of the exception.
Otherwise, a basic purpose
of the QDRO exception--to
ensure the payment of spousal
and child support--would
be frustrated, perhaps necessitating
provision for the needs
of the spouse and children
out of public funds.
> (FN6)
We conclude
that the QDRO in this case
is permissible, but overbroad.
The father is entitled to
the benefit of a QDRO to
recover attorney's fees
in connection with his work
related to the order establishing
back child support owed
by the mother because that
order collects arrearages.
The amount stated in the
QDRO must be recalculated
to allow an award of attorney's
fees for only those services.
The father's attorney's
time spent on other aspects
of the case (obtaining custody,
preparing a [438 Mass. 736]
submission to the GAL, establishing
a case of contempt and providing
numerous other services)
cannot be included in the
QDRO because they do not
relate to the "provision
of child support, alimony
payments, or marital property
rights."
In summary on this part
of the case: the over-all
award of attorney's fees
was properly handled and
appropriate as to amount.
The QDRO, however, will
be vacated because the sum
included therein represents
attorney's fees for matters
outside the scope of the
QDRO exception. The
father may petition the
Probate and Family Court
for the approval of a new
QDRO, limited to the attorney's
fees attributable to the
past child support order.
> (FN7)
>
[7] 2. We reject the mother's
contention that a new trial
is required because the
judge excluded a letter
and testimony allegedly
challenging the father's
assertion that he was not
told of her Texas trip.
There was no error.
The main points of the letter
written by the mother concerning
her intention to travel
to Texas were covered in
the mother's testimony.
The principal point of a
reply letter from the father
was also before the judge
in the mother's testimony.
>
[8] 3. There was ample support
in the record for the judge's
imposition of restrictions
on the mother's visitation
with the children, and the
restrictions, see note 2,
supra, with one exception,
fell within the judge's
discretion, see > Vilakazi
v. Maxie, 371 Mass. 406,
409, 357 N.E.2d 763 (1976).
That exception conditions
the mother's visitation
on individual therapy sessions
between the mother and a
therapist "for as many
sessions as [the therapist]
deems appropriate."
This
provision, conceivably,
could result in the improper
termination of the mother's
right to visitation in the
absence of "specific
findings demonstrating that
parental visits will harm
the child[ren]."
See > Custody of a Minor
(No. 2), 392 Mass. 719,
726, 467 N.E.2d 1286 (1984);
> Care & Protection
of Ian, 46 Mass.App.Ct.
615, 619-620, 708 N.E.2d
140 (1999). No such
findings have been made.
In fact, the judge found
exactly the opposite, concluding
that it "is important
for the children to have
the mother returned to their
lives in some manner."
Further, it is the judge
who is charged [438 Mass.
737] with making specific
findings on the issue of
visitation. The therapist
should not have sole authority
to determine the matter.
See > Custody of a Minor
(No. 2), supra.
If the mother petitions,
the issue of visitation
should be reexamined by
a judge in light of present
circumstances including
the mother's progress in
her therapy.
>
[9] 4. We agree with the
mother that the modification
judgment erroneously awarded
the father "sole ownership
of the property he removed
from the former marital
home."
In the
separation agreement, the
parties jointly stipulated
to the distribution of marital
property, provided that
the distribution was final,
and expressly excepted this
aspect of the agreement
from "merging"
in the judgment of divorce
nisi. Thus, the provisions
of the separation agreement
(and judgment of divorce
nisi) concerning distribution
of marital property remain
an independent contract
between the parties, which
the judge could not alter.
See > G.L. c. 208, §
1A ("The agreement
either shall be incorporated
and merged into said judgment
or by agreement of the parties,
it shall be incorporated
and not merged, but shall
survive and remain as an
independent contract").
See also > Heins v. Ledis,
422 Mass. 477, 483, 664
N.E.2d 10 (1996) ("Property
settlements are designed
largely to effectuate a
final and complete settlement
of obligations between the
divorcing spouses.
While alimony is modifiable
on the showing of a material
change in circumstance ...
property settlements are
not"); > Mansur
v. Clark, 25 Mass.App.Ct.
618, 620, 521 N.E.2d 759
(1988), and cases cited
(explaining that it is "undisputed
that a court has no authority
to modify the obligations
voluntarily undertaken by
the parties to a separation
agreement").
We decline to order an "offset"
for the mother from her
"obligations"
to remedy the error.
The matter of the appropriate
remedy in the circumstances
is more appropriately left
for consideration by a probate
judge.
5. There
was sufficient evidence
to justify a finding of
contempt for the mother's
failure to cooperate in
the filing of the 1997 joint
tax return and her failure
to transfer title to the
Geo automobile.
6. The
judgment of contempt is
affirmed. So much
of paragraph 3 of the modification
judgment that conditions
the mother's visitation
on individual therapy sessions
between the [438 Mass. 738]
mother and a therapist "for
as many sessions as [the
therapist] deems appropriate"
is vacated. So much
of paragraph 9 of the modification
judgment that awarded the
father "sole ownership
of the property he removed
from the former marital
home" is also vacated.
The remainder of the modification
judgment is affirmed.
The QDRO is vacated.
The case is remanded to
the Probate and Family Court
for further proceedings
consistent with this opinion.
The father's attorney may
apply to a single justice
of this court for an award
of attorney's fees for work
on the appeal that may be
entitled to such reimbursement.
So ordered.
> (FN1.) Custody
and visitation were conditioned
on (1) the mother's participating
in regular weekly therapy;
and (2) the father's continuing
in his weekly therapy.
> (FN2.) "(2)
In order to enable [the
mother] to have contact
again with the three children,
a child and family therapist
... shall be designated
to facilitate contact between
the mother and the children.
[The GAL] shall continue
in [his] role as [GAL] and
shall select the therapist
and monitor the contact
between the mother and children
in the therapeutic setting
and any later transition
to visits outside of such
a setting. The GAL
shall work with the children's
therapist ... and the family
therapist in arranging for
such meetings between the
children and the mother.
The mother shall pay the
cost of the GAL and the
cost of the family therapy.
"(3) The therapist
shall first meet alone with
the mother and then with
the children. No meetings
with the children shall
be arranged until the mother
has seen the therapist alone
for as many sessions as
he/she deems appropriate.
Thereafter, the therapist
shall arrange for times
for both mother and children
to meet together.
As the meetings progress,
the therapist shall contact
the [GAL] to report on the
progress of the meetings.
The therapist shall determine
when the children are ready
to visit with the mother
outside the therapeutic
sessions. The initial
visits outside of the sessions
shall be supervised until
the family therapist, the
children's therapist, and
the GAL determine that unsupervised
visits are appropriate.
The children's adjustment
to these visits shall be
monitored by the GAL, their
individual therapist, and
the father. The mother
shall not at any time discuss
with the children the issue
of custody or taking the
children away with her."
> (FN3.) At the
time of the trial, the mother's
employment contract had
not been renewed and her
only asset of significant
value was her retirement
account. The judge,
however, found her capable
of employment and imputed
a yearly salary to her.
> (FN4.) There
is no dispute that ERISA
applies to the mother's
retirement fund.
> (FN5.) The decisions
relied on by the mother
to dispute the father's
right to the QDRO are inapposite
because they involve orders
to improper alternate payees,
namely, ordering employee
pension benefit plans to
pay fees directly to attorneys.
See > AT&T Mgt. Pension
Plan v. Tucker, 902 F.Supp.
1168, 1170 (C.D.Cal.1995);
> Johnson v. Johnson,
320 N.J.Super. 371, 374-375,
727 A.2d 473 (1999).
Pursuant to the QDRO exception
to ERISA's spendthrift provision,
only an "alternate
payee" may be the beneficiary
of a QDRO. > 29 U.S.C.
§ 1056(d)(3)(B)(i)(I).
The term "alternate
payee" is defined as
"any spouse, former
spouse, child, or other
dependent of a participant
who is recognized by a domestic
relations order as having
a right to receive all,
or a portion of, the benefits
payable under a plan with
respect to such participant."
Id. at > § 1056(d)(3)(K).
The alternate payee here
is the father, and there
is no dispute that he is
a proper payee.
> (FN6.) This reason,
and others, may explain
why the mother has not contested
on appeal the wage assignment
against periodic payments
to her from her retirement
fund, and the child support
QDRO that appears to have
entered.
> (FN7.) The mother's
other arguments on why the
QDRO was improper (e.g.,
that it constituted a sanction,
that it lacked a basis in
State law) are not meritorious,
and we reject them.
|