Argued May 1, 2013.
COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on July 28, 1998.
A complaint for contempt, filed on March 4, 2011, was heard by Spencer M. Kagan, J.
[993 N.E.2d 1218] David F. Bernardin, Andover, for the father.
Present: BERRY, KATZMANN, & RUBIN, JJ.
The central issue posed by this appeal is the interface of bargained-for stipulations and agreements incorporated into court judgments, with the restrictions of G.L. c. 208, § 28 (which conditions postminority support and education upon a child's being domiciled in the home of a parent and principally dependent upon that parent for maintenance). James A. Devlin (father) appeals from a judgment entered by a Probate and Family Court judge on a complaint of contempt filed by Carol Barnes (mother). The mother alleged that the father failed to pay child support and education expenses as required by a court-approved separation agreement (as modified) that was
mutually agreed to by the parties upon their divorce, and subsequently incorporated and merged into a judgment of divorce nisi. After a one-day trial, the judge found the father in civil contempt and ordered him to pay $9, 200 to the mother in child support arrears and $6,448 per year toward the parties' son's education expenses. We affirm.
The parties have one child, who was born in 1991. On June 14, 2000, the parties entered into and filed a separation agreement; that same day, a judgment of divorce nisi entered pursuant to G.L. c. 208, § 1B. Pursuant to the separation agreement, the parties agreed that they would share legal custody of their son and that the mother would have sole physical custody. The parties also agreed to share their son's post-high school education expenses, consistent with the financial abilities and resources available to each party. Finally, the separation agreement required the father to pay the mother $140 per week in child support " until emancipation" of their son. The separation agreement provided a list of conditions that would result in the son's emancipation, but for the purposes of the instant appeal, only two conditions are relevant: (1) " [i]f the child is attending a post-secondary accredited vocational training school or college as a full-time student, at age 23," or (2) if the son establishes " [p]ermanent residence away from the residence of the [mother]. Residence at boarding school, camp or college is not to be deemed [993 N.E.2d 1219] a residence away from the [mother]." The provisions of the separation agreement relating to the son were incorporated and merged into the judgment of divorce nisi.
After the contempt trial, the judge made the following findings. In September of 2009, the son, then eighteen years old, began to attend North Shore Community College. At this time, the son moved to the home of his mother's brother (Uncle George) because Uncle George lived close to North Shore Community College.
On October 16, 2009, the mother filed a complaint of contempt alleging that since June of 2009 the father had failed to pay child support. As a result, the parties voluntarily entered into a court-approved stipulation on November 20, 2009, that modified the child support payments (the first modification). The father agreed to pay the mother one hundred dollars per week
(instead of $140) and also agreed to pay the mother $1,120 in arrears. Additionally, because their son continued to live with Uncle George, the parties agreed to provide child support payments directly to Uncle George. The father agreed to pay Uncle George ninety ...