Heard: January 14, 2019.
for contempt, filed on August 16 and September 21, 2017, were
heard by Elaine M. Moriarty, J., and a motion for a
new trial was considered by her.
for divorce filed in the Norfolk Division of the Probate and
Family Court Department on December 21, 2011.
M. Epstein (Richard M. Novitch also present) for the mother.
N. Griffin (Donald G. Tye also present) for the father.
Present: Agnes, Sacks, & Ditkoff, JJ.
father, Steven Feinstein, filed a complaint for contempt
against the mother, Susan Godfried Feinstein, alleging that
she violated merged provisions of their separation agreement.
A Probate and Family Court judge found the mother not guilty
of contempt but substantially reduced the father's
obligation to pay for the older child's college
education. On the mother's appeal, we conclude that the
judge has the authority to modify a judgment based on the
merged provisions of a separation agreement upon a finding of
a non contumacious violation of an agreement term merged into
the divorce judgment, but that such modification must be
based on a finding of a material change in circumstances. As
the record does not reflect such a finding, and the record
does not reveal an obvious material change in circumstances,
we vacate the judgment in part and remand for further
consideration. Further concluding that the mother's
motion for a new trial or to alter or amend the judgment
under Mass. R. Dom. Rel. P. 59 was timely, we vacate the
denial of that motion.
December 2011, the parties separated after fourteen years of
marriage. In December 2014, they signed a comprehensive
separation agreement (agreement) to settle their financial
affairs and to govern the raising of their two sons.
Pertinent here, they agreed to "confer with each other
in an effort to reach mutual agreement concerning major life
decisions not part of the children's daily routine which
affect their well-being, including without limitation . . .
religious upbringing [and] educational choices and
alternatives." They ascribe to the Jewish faith, and the
agreement contains a schedule of which parent would have the
younger child for which Jewish holidays.
agreement provides that the older child and the father shall
remain in counselling with a named psychologist. Parenting
issues regarding the older child are to be addressed by the
psychologist in the first instance. The parties agreed to
submit any "non-financial disputes regarding the
children, limited to disputes regarding each child's
education, physical and psychological health . . ., religious
education, after school and extra-curricular activities,
and/or welfare and/or changes to the Parent Schedule" to
a parenting coordinator (in this case, a licensed social
worker) prior to submitting them to the court.
college, the parties agreed that "[t]he choice of
college or other educational institution shall be made
jointly, with due regard to each child's wishes, welfare,
needs and aptitudes. Neither party shall make a commitment to
an educational institution for a child without the prior
agreement of the other party, which agreement shall not be
unreasonably withheld, conditioned or delayed." The cost
of college is to be paid initially by college educational
accounts held by the father. Expenses not covered by those
accounts or scholarships are to be paid fifty-five percent by
the father, and forty-five percent by the mother. The
expenses contemplated by the agreement include "tuition,
room and board while residing away from both parties during
college or post-secondary educational program, registration,
books, activity and other fees, books, and other expenses
customarily appearing on the billing statements from any
educational institution, . . . computer and reasonable
transportation to and from school."
December 22, 2014, a Probate and Family Court judge approved
the agreement and issued a judgment of divorce nisi. Although
numerous provisions of the agreement survive as an
independent contract, the provisions described supra
merged with the judgment and did not survive as an
father quickly became concerned that the children were not
actively practicing Judaism. In or about July 2015, the
father brought his concerns about the younger child's
religious upbringing to the parenting coordinator, who
apparently stated that the father could arrange for religious
education himself during his parenting time. When the younger
child proved resistant, the father did not pursue the matter.
older child's senior year in high school began in
September 2016. The representations of counsel, credited by
the judge, reflect that the mother believed that the older
child was discussing his college application process with the
father during the sessions with the psychologist. The father
asserts that the psychologist "did not want to get
involved in any of this process.”
father is a professor at a private university in
Massachusetts, and it appears that his children would be
entitled to attend his university tuition-free. In December
2016, the older child sent an e-mail to his father, copying
his mother, that he would not be applying to the father's
university because he had a strong interest in computer
science, and that university did not have a strong computer
science program. He also stated that he did not want to
attend the university at which his father taught and, in any
event, wanted a college with warmer weather. The child
reported in the e-mail that he had told his father the
schools to which he was applying and had shared his "SAT
scores, [his] video and other important information."
This e-mail ...