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18-P-274                                                Appeals Court

           SUSAN GODFRIED FEINSTEIN    vs.    STEVEN FEINSTEIN.


                              No. 18-P-274.

            Norfolk.       January 14, 2019. - May 2, 2019.

               Present:     Agnes, Sacks, & Ditkoff, JJ.


Contempt. Contract, Separation agreement. Divorce and
     Separation, Separation agreement, Child support,
     Modification of judgment, Parent coordinator, Attorney's
     fees. Parent and Child, Child support. Practice, Civil,
     Contempt, New trial, Service, Computation of time,
     Attorney's fees. Rules of Domestic Relations Procedure.


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

     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.


     Elaine M. Epstein (Richard M. Novitch also present) for the
mother.
     Kelly N. Griffin (Donald G. Tye also present) for the
father.


    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
                                                                     2


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

noncontumacious 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
                                                                   3


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
                                                                    4


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
                                                                       5


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 was presented to the judge.   The

record reflects no contemporaneous objection by the father to

the child's decision not to apply to the father's university or

to a college in Massachusetts.




     1 In fact, based on a meeting with the mother, the parenting
coordinator suggested in an e-mail sent to the father in
September 2016 that she and the father meet to discuss the older
son's college application plans. The father replied that the
discussions should occur with the psychologist and be initiated
by the older child. This e-mail was attached to the mother's
rule 59 motion, and thus the judge did not receive it until
after she had ruled.
                                                                     6


     On April 24, 2017, seven days before the date the father

believed that the college decision had to be made, the father

first expressed concerns about the college selection process to

the mother, in the form of a letter from father's counsel to

mother's counsel requesting numerous documents, including a list

of colleges to which the older child had been admitted.     As the

child had been admitted to one college, the University of

Arizona, the mother committed the child to the University of

Arizona without consulting the father.   The father learned of

the commitment in May 2017 from a high school guidance

counsellor.

     In August 2017, the father filed a complaint for contempt,

alleging that the mother violated provisions of the agreement,

which were merged into the divorce judgment, by unilaterally

committing the older child to the University of Arizona and by

"[d]iscouraging the children from practicing the Jewish faith."2

The mother's answer requested attorney's fees for opposing the

complaint for contempt.   The mother also filed her own complaint

for contempt based on the father's failure to pay his share of

the older child's college expenses.3




     2 The father accuses the mother of attending a Christian
church and observing Christian holidays. The mother denies
this.
                                                                     7


     The judge did not hold an evidentiary hearing but instead

reviewed the pleadings and heard the representations of counsel.

The judge found that the agreement did not require that the

children be raised in the Jewish faith.    The judge further found

that the judgment required that the older child's college

decision be made jointly, but the judge found no willful

violation by the mother in light of the complexity of the

communication issues.    Accordingly, the judge found the wife not

guilty of contempt.   The judge found that "nonetheless there is

an impact on Father's financial obligations under the agreement

by [the mother's] unilateral action" and thus required the

father to pay only fifty-five percent "of the cost of tuition

[and] room and board he would have been responsible for if child

had attended U. Mass."   She made the mother responsible for the

balance.   She also denied attorney's fees to both parties.

     The judgment was docketed November 8, 2017, a Wednesday.

On November 20, 2017, a Monday, the mother served a motion for a

new trial or to alter or amend the judgment under Mass. R. Dom.

Rel. P. 59.   The judge denied this motion as untimely.    This

appeal followed.




     3 No ruling on this complaint had occurred by the time of
the filing of the notice of appeal, and this complaint is not
before us.
                                                                      8


     2.     Modification of payment of postsecondary education

expenses.    "To prove civil contempt a plaintiff must show two

elements:    there must be (1) clear disobedience of (2) a clear

and unequivocal command."     Smith v. Smith, 93 Mass. App. Ct.

361, 363 (2018).     These elements must "be supported by clear and

convincing evidence."     Rosen v. Rosen, 90 Mass. App. Ct. 677,

691 (2016), quoting Birchall, petitioner, 454 Mass. 837, 853

(2009).     Upon finding a contempt, a judge has "broad equitable

powers to fashion appropriate remedies."     Cabot v. Cabot, 55

Mass. App. Ct. 756, 768 (2002).

     "A Probate Court has power to modify a support order in the

context of either a complaint for contempt or a complaint for

modification."    Kennedy v. Kennedy, 17 Mass. App. Ct. 308, 312

(1983).     A modification on a complaint for contempt may occur

even in the absence of a contempt finding.     See Bloksberg v.

Bloksberg, 7 Mass. App. Ct. 233, 234-235 (1979).     Accord Smith,

93 Mass. App. Ct. at 364-365 (remanding for reconsideration of

modification order on unsuccessful complaint for contempt).4




     4 Of course, by statute, a court's power to modify child
support retroactively is limited. See G. L. c. 119A, § 13 (a);
Calabria v. Calabria, 91 Mass. App. Ct. 763, 765 (2017), quoting
Rosen, 90 Mass. App. Ct. at 683 ("In enacting § 13(a), 'the
Legislature limited the power of a judge to reduce retroactively
any arrearages in child support except for any period during
which there is a pending complaint for modification'").
                                                                   9


    In the case of an order of child support governed by the

Child Support Guidelines, "orders of maintenance and for support

of minor children shall be modified if there is an inconsistency

between the amount of the existing order and the amount that

would result from application of the child support guidelines

promulgated by the chief justice of the trial court or if there

is a need to provide for the health care coverage of the child."

G. L. c. 208, § 28.   See Child Support Guidelines § III.A

(2017); Morales v. Morales, 464 Mass. 507, 511-512 (2013);

Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 526 n.1

(2016).

    The Child Support Guidelines provide for discretionary

payment of no more than "fifty percent of the undergraduate, in-

state resident costs of the University of Massachusetts-Amherst,

unless the Court enters written findings that a parent has the

ability to pay a higher amount."   Child Support Guidelines

§ II.G.3.   In the commentary, the Child Support Guidelines Task

Force explained that "[t]he Task Force does not intend the

limitation to apply to children already enrolled in post-

secondary education before the effective date of these

guidelines or to parents who are financially able to pay

educational expenses using assets or other resources."     Here,

the older child was already enrolled in college when this

guideline became effective on September 15, 2017, and the
                                                                  10


parties agreed that each parent was financially able to pay the

full educational expenses.   Accordingly, Child Support Guideline

§ II.G.3 is inapplicable here.

     Where, as here, the Child Support Guidelines do not apply,

an action for modification generally requires that "the

petitioner must demonstrate a material change of circumstances

since the entry of the earlier judgment."    Pierce v. Pierce, 455

Mass. 286, 293 (2009), quoting Schuler v. Schuler, 382 Mass.

366, 368 (1981).   Accord Frost-Stuart v. Stuart, 90 Mass. App.

Ct. 366, 368 (2016).5   We discern no finding by the judge here

that there was a material change of circumstances, and the

sparse record provided to the judge does not make any such

change of circumstances evident.

     The mother committed the child to the University of Arizona

without the father's consent.    Under proper circumstances, a

unilateral commitment to a college could constitute a material

change in circumstances.   But see Rosen, 90 Mass. App. Ct. at

694-695 (violation of agreement that parties would jointly

participate in choice of college did not vitiate cost-sharing




     5 Another statutory exception applies to the duration of
alimony awards. See St. 2011, c. 124, § 4 (b) ("Existing
alimony awards which exceed the durational limits established in
[G. L. c. 208, § 49,] shall be modified upon a complaint for
modification without additional material change of circumstance,
unless the court finds that deviation from the durational limits
is warranted").
                                                                   11


agreement).   Under the scenario presented here, however, it is

not evident that such a material change in circumstances exists.

The scant information provided at the hearing and credited by

the judge suggested that the older child was reporting his

college application choices to the father, and the father raised

no objection to the mother until after the older child had been

accepted to only one college.   The older child expressed his

desire to attend a school in a warmer climate than

Massachusetts, again without apparent objection by the father to

the mother.   See Cooper v. Keto, 83 Mass. App. Ct. 798, 805

(2013) (parent's "awareness of, and acquiescence in, the child's

choice of [college]" constituted agreement).

    Under the facts here, it is not evident that, had the

mother consulted with the father prior to committing to that one

college, there was any reasonable choice but to commit to the

University of Arizona.   Although learning of the college

commitment in May, the father set forth no proposal for a gap

year or deferral of admission in the months in which the parties

would have lost only the enrollment deposit by not continuing;

rather, he waited until an October pleading to broach the idea,

after the older child had been attending college for over one

month.   See Mandel v. Mandel, 74 Mass. App. Ct. 348, 355 (2009)

("a party who has sat on his or her right to intervene, or to

seek approval from the court when the parties disagree, until
                                                                  12


the college selection process has been completed, may have

waived his or her right to object to the college and its

concomitant cost").   Without findings explaining the basis for

any material change in circumstances, we cannot be satisfied

that a modification was warranted here.   See Katzman v. Healy,

77 Mass. App. Ct. 589, 594 (2010) (modification of parenting

time required "findings reflecting substantial and material

changed circumstances supported by the evidence").

    Furthermore, even though it was uncontested that each

parent had the financial means to pay for the older child's

college, the judge was provided with no financial statements

with which to discern the relative financial condition of the

parties.   Similarly, the judge had only a thumbnail sketch of

the parties' communications regarding the college decision.      On

such limited information, it is impossible to discern a basis

for a modification in the absence of findings.   See Mandel, 74

Mass. App. Ct. at 354-355, quoting Schmidt v. Schmidt, 292 Ill.

App. 3d 229, 237 (1997) ("In determining whether college

expenses are reasonable," courts consider factors including "the

financial resources of both parents, the standard of living the

child would have enjoyed if the marriage had not been dissolved,

the financial resources of the child, . . . the cost of the

school, the programs offered at the school, the child's

scholastic aptitude, how the school meets the child's goals, and
                                                                     13


the benefits the child will receive from attending the school").

Accordingly, we must vacate so much of the judgment that

modifies the father's payment of postsecondary school education

expenses and remand for further proceedings.

     3.     Motion for new trial.   A motion for a new trial or to

alter or amend a judgment "shall be served not later than 10

days after" the entry of judgment.     Mass. R. Dom. Rel. P.

59 (b), (e).6    Here, the modification judgment was entered on

November 8, 2017.     Because November 18 was a Saturday, the

mother had until the succeeding Monday, November 20, to serve a

rule 59 motion.     See Mass. R. Dom. Rel. P. 6 (a); Bellanti v.

Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 406 (2007).

The mother mailed the motion to father's counsel on November 20.

"Service by mail is complete upon mailing."     Mass. R. Dom. Rel.

P. 5 (b).    The judge, however, rejected the motion as untimely,

finding that, when service of a rule 59 motion is made by mail,

Mass. R. Dom. Rel. P. 6 (d) requires that it be served three

days earlier.    This was error.

     Rule 6 (d) states, "Whenever a party has the right or is

required to do some act or take some proceedings within a

prescribed period after the service of a notice or other papers

upon him and the notice or paper is served upon him by mail, 3


     6 These provisions are identical to Mass. R. Civ. P. 59 (b)
and (e), 365 Mass. 827 (1974).
                                                                  14


days shall be added to the prescribed period" (emphasis added).7

The purpose of rule 6 (d) is to add time when a period is

started by the filing or service of a paper or notice that is

then mailed, rather than hand-served.   See Albano v. Bonanza

Int'l Dev. Co., 5 Mass. App. Ct 692, 693 n.1 (1977); Tisei v.

Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 380 n.3

(1975).   Thus, for example, if a party hand-serves

interrogatories, the recipient has thirty days8 to serve answers

and objections.   Mass. R. Dom. Rel. P. 33 (a).   If, however, the

party serves interrogatories by mail, rule 6 (d) provides an

extra three days, or thirty-three days in all, for the recipient

to serve answers and objections.   These extra three days

represent the court system's best estimate of the maximum time

it should take, under ordinary circumstances, for the mail to

reach its recipient.

     Nothing in rule 6 (d) allows a court to shorten the time

period to do anything.   If the father had had any time-limited

duty to respond to the mother's motion, rule 6 (d) would have




     7 This provision is identical to Mass. R. Civ. P. 6 (d), 365
Mass. 747 (1974). A substantially similar provision exists in
Mass. R. A. P. 14 (c), as appearing in 481 Mass. 1626 (2019).

     8 Or up to forty-five days, if the interrogatories are
served within fifteen days of service of the summons and
complaint. See Mass. R. Dom. Rel. P. 33 (a).
                                                                  15


allowed him an extra three days to do so.   It, however, provides

no basis for reducing the mother's time to serve her motion.

    A motion under rule 59 "is addressed to the judge's sound

discretion."   Gannett v. Shulman, 74 Mass. App. Ct. 606, 615

(2009).   Accord Gath v. M/A-COM, Inc., 440 Mass. 482, 492

(2003).   Where, as here, the judge was under the mistaken

impression that she did not have the discretion to address a

motion, the usual course of action is to "remand to allow the

judge to exercise discretion in the first instance."   Balistreri

v. Balistreri, 93 Mass. App. Ct. 515, 521 (2018).   Especially

here, where the motion provided an e-mail exchange demonstrating

that the father specifically rejected the invitation for the

father to discuss the college application process through the

parenting coordinator, the judge may well have wanted to

consider this information.   In any event, because we are

remanding, the judge will have the opportunity to consider this

information and obtain a more complete picture of the college

selection process.

    4.    Failure to submit issue to parenting coordinator.     The

relevant provision of the agreement, which merged into the

divorce judgment, required the parties to submit to a parenting

coordinator any "non-financial disputes regarding the[]

children, limited to disputes regarding each child's education,

physical and psychological health . . . , religious education,
                                                                   16


after school and extra-curricular activities, and/or welfare

and/or changes to the Parent Schedule . . . prior to their

filing of any motion or complaint with the Court relative to

said issue(s)."    "[P]arent coordinators, whose backgrounds may

be in mental health, family law, or other relevant fields, are

understood to serve as neutral third parties who assist

separated or divorced parents in resolving conflicts that arise

in the implementation of custody and visitation arrangements in

a manner that reduces the impact of the parents' conflict on

their children."     Bower v. Bournay-Bower, 469 Mass. 690, 694

(2014).    Parenting coordinators play a "valuable role . . . in

assisting families involved in the Probate and Family Court

system."   Id. at 707.    Parties may agree to be bound by

decisions of a parenting coordinator, so long as the agreement

"retain[s] the judge's 'nondelegable duty to make the final and

binding resolution of the case.'"     Leon v. Cormier, 91 Mass.

App. Ct. 216, 221 (2017), quoting Gravlin v. Gravlin, 89 Mass.

App. Ct. 363, 366 (2016).     Regardless of any agreement, however,

"the parties have the right to access the court so that the

court can determine fundamental issues of care and custody

and/or parenting time and support, even where the parties have

agreed to binding decision-making authority of the parenting

coordinator."     Probate and Family Court Standing Order

1-17 (5) (c) (iii).
                                                                    17


       The mother argues that the judge erred in considering the

father's complaint for contempt where he did not submit the

dispute first to the parenting coordinator.    Although it cannot

be gainsaid that the judge has the discretion to refuse to hear

a dispute because the parties failed to submit it first to a

parenting coordinator as required by a separation agreement, see

Leon, 91 Mass. App. Ct. at 221, the mother provides no support

for the proposition that a judge lacks the authority to hear a

dispute because a requirement to present it to a parenting

coordinator was not satisfied.    As the Supreme Judicial Court

recognized, there may be important disputes of such urgency that

they cannot be submitted to a parenting coordinator and then

effectively reviewed by a court.    See Bower, 469 Mass. at 704-

705.   We need not resolve this question, however, because the

parties specifically excluded financial disputes from the

parenting coordinator's ken.    Here, the older child had already

begun attending the University of Arizona, and the primary

relief sought by the father was the reduction or elimination of

his duty to pay for that education.    We discern no abuse of

discretion in the judge's implicit determination that the

dispute, at least as presented to the court, was a financial

dispute not falling within the ambit of the parenting

coordinator provision of the agreement.
                                                                    18


    5.      Attorney's fees.   The mother appeals the judge's

failure to award her attorney's fees for defending herself

against the father's complaint for contempt.      "A judge has broad

discretion in awarding attorney's fees under G. L. c. 208, § 38,

and, it follows, broad discretion to deny an award."      Freidus v.

Hartwell, 80 Mass. App. Ct. 496, 504 (2011), quoting Wolcott v.

Wolcott, 78 Mass. App. Ct. 539, 546 (2011).      Accord M.C. v.

T.K., 463 Mass. 226, 242 (2012).     Here, the mother committed the

older child to the University of Arizona without obtaining the

father's assent.     However reasonable that action may have been

under the circumstances, the father had a viable complaint for

contempt.    Although the father's complaint about the younger

child's religious upbringing may have had less viability, the

judge acted well within her discretion in deciding the

attorney's fees question based on the litigation as a whole,

rather than disaggregating the complaint as the mother desires.

See Schechter v. Schechter, 88 Mass. App. Ct. 239, 260 (2015)

(listing relevant factors).     Indeed, nothing in the billing

records submitted by the mother provides any basis for

separating out the attorney's fees between the two claims.

Accordingly, "[w]e cannot say that the judge abused her broad
                                                                    19


discretion in declining to award the wife statutory attorney's

fees."   Freidus, supra.9

    6.      Conclusion.   So much of the judgment entered on

November 8, 2017, as modifies each parent's obligation to pay

postsecondary school education expenses for the older child is

vacated, and the matter is remanded for further proceedings

consistent with this opinion.    The remainder of the judgment is

affirmed.    The order denying the mother's motion for new trial

or to alter or amend the judgement under Mass. R. Dom. Rel. P.

59 is vacated.

                                     So ordered.




    9  The mother also raises the prospect of attorney's fees
under G. L. c. 231, § 6F, but she did not file a separate notice
of appeal pursuant to G. L. c. 231, § 6G. A party appealing a
§ 6F order incorporated into a final judgment is required to
file two notices of appeal, one to appeal the § 6F order to a
single justice and the other to appeal the balance of the
judgment to a panel. Troy Indus., Inc. v. Samson Mfg. Corp., 76
Mass. App. Ct. 575, 584 (2010), quoting Bailey v. Shriberg, 31
Mass. App. Ct. 277, 284 (1991). In the absence of such, "we
shall treat [the notice of appeal] only as an appeal to a panel
from those portions of the judgment that are within the panel's
jurisdiction." Troy Indus., Inc., supra, quoting Bailey, supra.
