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Feinstein v. Feinstein

Appeals Court of Massachusetts, Norfolk

May 2, 2019


          Heard: January 14, 2019.

         Complaints 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.

         Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on December 21, 2011.

          Elaine M. Epstein (Richard M. Novitch also present) for the mother.

          Kelly N. Griffin (Donald G. Tye also present) for the father.

          Present: Agnes, Sacks, & Ditkoff, JJ.

          DITKOFF, J.

         The 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.

         1. Background.

         In 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.

         The 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.

         Regarding 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."

         On 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 independent contract.

         The 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.

         The 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.”[1]

         The 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 ...

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