Heard: October 13, 2016.
for divorce filed in the Suffolk Division of the Probate and
Family Court Department on June 14, 1990.
complaint for contempt, filed on November 4, 2011, was heard
by Jeremy A. Stahlin, J.; entry of an order dismissing the
contempt complaint was ordered by Abbe L. Ross, J., and a
motion for postjudgment relief was heard by her.
Marie Creedon, pro se.
Present: Wolohojian, Carhart, & Shin, JJ.
mother appeals from the dismissal of her contempt complaint
by a judge of the Probate and Family Court, who was not the
trial judge. We vacate the order dismissing her complaint and
order that judgment enter reflecting the trial judge's
parties entered into a separation agreement on
March 15, 1995, which was incorporated, but did not merge
(with the exception of provisions relating to the
parties' unemancipated children), into a judgment of
divorce nisi. Among other things, the agreement provided that
the father "agrees to designate the minor children as
beneficiaries of his life insurance policy presently in place
with the . . . [f]ire [d]epartment" of the town of
Lexington (town), which the father, during negotiations,
represented had a value of $100, 000. In fact, there was no
such policy, and the father never designated his children as
beneficiaries. Upon learning this, the mother filed a
complaint for contempt in 2011.
first day of the contempt trial, the mother produced a letter
from the town manager certifying that the father did not have
life insurance in place at the time of the separation
agreement. The father did not contest that fact, but
represented that he had instead a line-of-duty death
benefit for which he had designated the
children as beneficiaries. Based on this representation, the
trial judge continued the matter to determine whether the
father had a line-of-duty death benefit and, if so, the
identifies of the named beneficiaries.
father did not appear at the subsequent (and final) day of
trial. The mother, however, did, and produced additional
documentation from the town manager stating that the town
provided only life insurance, and that no other form of death
benefit was offered. A search of town records had revealed no
records showing the father had been enrolled in a group life
insurance plan; the father, therefore, had not been eligible
for a death benefit under any life insurance benefit
administered by the town.
evidence, the trial judge found the father in contempt and
awarded the mother a creditor's claim against the
father's estate for $100, 000, to be reduced by any life
insurance policy naming the mother as the beneficiary at the
time of the father's death. The trial judge announced his
decision at the conclusion of the trial on March 21, 2012,
and his ruling is reflected in the official transcript. The
terms of the decision were not otherwise recorded in writing,
and the judgment was not entered on the docket.
about the lack of written record of the judgment or its
terms, the mother filed a "motion for final judgment and
order to issue on complaint for contempt, " seeking to
have the trial judge's decision reflected in a separate
judgment and entered on the docket. The father did not oppose
this motion. Nonetheless, apparently without hearing (at
least, the docket does not reflect one),  a second judge (the
trial judge having retired) dismissed the contempt complaint
on the ground that "[t]he issue of [f]ather maintaining
life insurance for the benefit of the children to secure his
child support payment pursuant to the March 15, 1995[, ]
[s]eparation [a]greement is moot as the children are now 29,
33 and 35 years old.", 
mother, proceeding pro se, moved pursuant to
Mass.R.Dom.Rel.P. 60(a) and Mass.R.Dom.Rel.P. 60(b)(1),
(4)-(6), seeking relief from what she termed the
"secondary judgment, " i.e., the second judge's
dismissal of the contempt complaint. The father, appearing
for the first time relevant here, filed an opposition in
which he stated merely that the parties' three children
were in their thirties. The second judge denied the motion on
the ground that "the court did not issue a
'secondary judgment.'" This appeal followed.
extent, the issues raised by this appeal can be traced to the
initial failure to comply with Mass.R.Dom.Rel.P. 58(a) and
79(a). Rule 58(a) provides that, "upon a decision by the
court . . ., the court shall promptly approve the form of the
judgment" and, further, that "[e]very judgment
shall be set forth on a separate document." See
Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977). Here,
although the judge found the defendant in contempt and
decided the relief to which the plaintiff was entitled as a
result, the requirements of rule 58(a) were not met; the
judgment was not recorded in a separate document and the form
of judgment was not approved by the judge. Moreover, contrary
to Mass.R.Dom.Rel.P. 79(a),  the judgment was not
entered on the docket. "A judgment is effective only
when" set forth as required by rule 58(a) "and when
entered as provided in [r]ule 79(a)." Mass.R.Dom.Rel.P.
58(a). In other words, although the trial judge found the
defendant in contempt and determined the relief to which the
plaintiff was entitled --and announced those matters on the
record in open court -- there was no effective judgment on
the contempt complaint. ...