JOHN A. GIFFORD
ANDREW J. BURKE & another.
Heard: December 6, 2017.
action commenced in the Land Court Department on
December 30, 2008.
complaint for contempt, filed on July 20, 2016, was heard by
Alexander H. Sands, III, J.
Michael J. Traft for the plaintiff.
J. Cotton, pro se.
Present: Milkey, Henry, & Wendlandt, JJ.
Gifford and Debra F. Gifford, who are married, together held
a fifty percent, undivided interest in waterfront property in
Revere (property). In 2008, the Giffords filed a petition for
partition in Land Court against their coowner, Andrew J.
Burke. A Land Court judge appointed a partition commissioner
(intervener Robert J. Cotton, henceforth, the commissioner)
to assist the parties and the judge in resolving the matter.
See G. L. c. 241, § 12. Nevertheless, the process did
not go smoothly. Indeed, the case, together with related
litigation spawned in the Land Court, the Superior Court, and
the United States Bankruptcy Court, took a path that best can
be described as tortuous.
current appeal, which is the third one having come before
this court, is limited in scope. In it, John Gifford appeals
a contempt judgment that, in pertinent part, required him to
pay certain fees and costs to the commissioner. We agree that the
majority of the contested fees and costs are not recoverable,
and we therefore vacate the contempt judgment and remand for
further proceedings consistent with this opinion.
begin by summarizing only those milestone events relevant to
the current appeal. In 2011, the Land Court judge ordered the
Giffords to sell their share of the property to Burke and to
pay off their mortgage on it. In an unpublished memorandum
and order issued on December 7, 2012, pursuant to our rule
1:28, that Land Court order was affirmed on appeal.
Gifford v. Burke, 83 Mass.App.Ct. 1101 (2012). After
the Giffords failed to comply, Burke filed a contempt
complaint, but the matter was stayed after each of the
Giffords filed for bankruptcy protection. Once the bankruptcy
of John Gifford concluded, the property was in fact conveyed
to Burke and the mortgage was discharged. After some
additional Land Court proceedings related to the bankruptcy,
final judgment in the partition action entered on April 6,
2015 (2015 judgment).
2015 judgment, the judge ordered the Giffords to pay the
commissioner $30, 635 within thirty days after the entry of
the judgment. That amount represented 100% of the
commissioner's then-outstanding fees and costs. The
judgment also referenced the judge's order of the same
date, which included the following language relevant to the
"If [the Giffords] fail to timely comply with this
[o]rder, the [c]ommissioner may seek additional relief
against [the Giffords] in order to compel such compliance,
including, without limitation, the entry of a monetary
judgment against [the Giffords] in the amount of the
[c]ommissioner's unpaid legal bills and/or an order of
contempt for non-compliance with this [o]rder, and [the
Giffords] may be held liable for any further legal fees as
may be incurred by the [c]ommissioner in connection with
enforcing this [o]rder."
Giffords filed a notice of appeal from the 2015 judgment on
April 17, 2015 (second appeal). They challenged the
judge's allocation to them of 100% of the
commissioner's outstanding fees, arguing that the judge
erred in not requiring Burke to pay a share of those fees.
The Giffords also argued that the ...