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18-P-716                                               Appeals Court

       STANISLAW W. PIWOWARCZYK      vs.   EWA B. PIWOWARCZYK.


                              No. 18-P-716.

           Worcester.      April 3, 2019. - August 16, 2019.

             Present:    Milkey, Neyman, & Englander, JJ.


Divorce and Separation, Separation agreement, Judgment. Probate
     Court, Divorce. Contract, Construction of contract.
     Practice, Civil, Contempt.


     Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on May 5, 2016.

     A complaint for contempt, filed on November 6, 2017, was
heard by Geoffrey R. German, J.


    Luke Rosseel for the wife.
    Katarzyna J. Wennerberg for the husband.


    ENGLANDER, J.       In this contempt proceeding with respect to

a divorce judgment, the former wife (wife) was ordered to pay

for the former husband's (husband) health insurance even though

she had left her job in Massachusetts, moved to Florida, and no

longer had health insurance of her own.       The operative clause of

the parties' separation agreement (agreement), which was
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incorporated into the divorce judgment, provided that the wife

would maintain her "[c]urrently existing health insurance or

equivalent thereof" for the benefit of the husband "for so long

as he remains eligible under the plan at no additional cost to

the [w]ife."     Because we conclude that the judge erred in

construing this clause, we reverse.

     Background.    We recite those facts from the record that are

not disputed.1    The husband and wife were married for twenty-five

years, and divorced in 2016.     On December 14, 2016, a judge of

the Probate and Family Court issued a judgment of divorce

incorporating the parties' agreement.2    Relevant here is the

clause in Addendum B of the agreement, which addressed the

wife's obligation to maintain health insurance for the husband,

postdivorce (health insurance clause):

     "1. Currently existing health insurance or equivalent
     thereof shall be maintained by the [w]ife for the benefit
     of the [h]usband for as long as he remains eligible under
     the plan at no additional cost to the [w]ife. If there is
     an additional cost to provide health insurance for the
     [h]usband the [h]usband shall pay said additional amount to
     the [w]ife each and every month on the first day of each
     month or forfeit said insurance coverage."

     Prior to the divorce, the wife had worked at a local

savings bank for many years, and had maintained health insurance




     1 There was no evidentiary hearing, and there are no
separate findings of fact.

     2   The agreement survived the divorce judgment.
                                                                      3


for herself and the husband through the bank's plan.    The

husband worked in construction and apparently did not have

access to a health plan through his employer.    In October of

2017, after the divorce was final, the wife left her employment

and moved to Florida, to be closer to her two adult sons.       The

wife's health insurance was accordingly cancelled, leaving both

the wife and the husband without health insurance.    Although the

wife secured temporary employment in Florida she did not have

access to health insurance through her employer.     At the time of

these proceedings, the wife did not have health insurance.

     The husband filed a complaint for contempt in November of

2017.    After two days of nonevidentiary hearings, the judge

issued a judgment finding the wife in contempt,3 and a further

judgment ordering her to pay $369 per month toward the husband's

health insurance.    The thrust of the judge's reasoning, evident

from the transcript and the contempt judgment, is that the wife

violated the health insurance clause by "voluntarily leaving her

employment" and thus causing the husband to become ineligible

for coverage under her plan.    The wife appeals.4




     3 The judgment was captioned "Judgment on Complaint for
Criminal Contempt." The complaint was one for civil contempt;
we assume that the judgment caption was a scrivener's error.

     4 The judge subsequently stayed his order pending appeal, on
the condition that the wife pay the monthly amount into escrow.
                                                                    4


    Discussion.    To find the wife in contempt, the judge was

required to find "clear and convincing evidence of disobedience

of a clear and unequivocal command."    Birchall, petitioner, 454

Mass. 837, 853 (2009).    The contempt issue accordingly turns, in

the first instance, on the meaning of the health insurance

clause.    Neither party argued that the health insurance clause

was ambiguous, and the issue of the construction of the health

insurance clause was treated as a pure question of law for the

judge.    See Colorio v. Marx, 72 Mass. App. Ct. 382, 388 (2008).

No evidence was offered as to the intent of the health insurance

clause, or as to the negotiation of the agreement.

    Clauses such at the one at issue, which require a divorced

spouse to maintain health insurance for his or her former

spouse, are common in separation agreements and divorce

judgments.   See, e.g., George v. George, 476 Mass. 65, 66

(2016); Barry v. Barry, 409 Mass. 727, 729-730 (1991).    The

language of these clauses may differ, and hence the construction

may vary from clause to clause.    Relying here upon the language

of the health insurance clause as a whole, its import is to make

the wife responsible for the husband's health insurance only if

the wife has health insurance under a plan that can also be used

to cover the husband -- and even in those circumstances, the

husband must cover any costs in excess of what it would cost the

wife to cover herself.    See Balles v. Babcock Power Inc., 476
                                                                    5


Mass. 565, 571 (2017) (in construing contract court looks first

to contract's plain language, construed as whole).

    The critical language is that the wife shall "maintain"

health insurance for the husband, "for as long as he remains

eligible under the plan."    "The plan" refers to the wife's

"[c]urrently existing health insurance or equivalent thereof."

Accordingly, the wife's obligation is conditional; it arises

only if the husband is "eligible under the plan."    As we read

the health insurance clause, the wife is not obligated to

maintain health insurance for the husband if she is not working,

or has no access to health insurance through her employment.

This is because if the wife has no access to health insurance

there is no "plan," and the husband therefore cannot be

"eligible under the plan."

    The alternative construction -- apparently adopted by the

judge -- would read the health insurance clause as requiring the

wife to "maintain," indefinitely, her "[c]urrently existing

health insurance or equivalent thereof."    We do not so read it.

If the health insurance clause were construed to require the

wife to arrange her employment so as to maintain health

insurance that could also cover the husband, that would mean

that the wife was restricted in her ability to change jobs (or

as here, to relocate), because she would then need to find a job
                                                                   6


with health insurance available for the husband.5   Reading such

an obligation into the health insurance clause would impose a

significant burden and limitation on the wife's personal

freedoms; we are unwilling to so read the health insurance

clause where the plain language lends itself to a more

reasonable and less intrusive obligation -- which is, that the

wife must offer health insurance to the husband when it is

otherwise available under her plan.   See Tremouliaris v. Pina,

23 Mass. App. Ct. 722, 725-726 (1987), quoting Clark v. State

Street Trust Co., 270 Mass. 140, 153 (1930) ("courts always

avoid, if possible, any construction of a contract that is

unreasonable or inequitable").   Moreover, our construction is

more consistent with the remainder of the health insurance

clause, which expresses the clear intent that the obligations

thereunder not give rise to "additional cost to the [w]ife."

Reading the health insurance clause to restrict the wife's job

selection -- or alternatively, to force her to incur the costs

of the husband's insurance -- would impose precisely the

additional costs the health insurance clause writes out.

     Accordingly, the judge erred in finding the wife in

contempt.   There was no "clear and unequivocal command,"




     5 Indeed, such a construction would apparently leave the
wife responsible for the husband's health insurance, even if she
retired.
                                                                   7


Birchall, petitioner, 454 Mass. at 853, that the wife maintain

health insurance for the husband even where she has no access to

health insurance through her employment.6   Furthermore, the order

requiring the wife to pay for the husband's additional health

insurance costs was plainly beyond what is required by the

language of the health insurance clause.

     Finally, while it is a relatively straightforward matter to

rule that the wife was not in contempt -- because the health

insurance clause did not provide a "clear . . . command" under

the circumstances -- such a ruling does not necessarily answer

the question of what the health insurance clause actually

requires.   Put another way, if the judge had found that the

health insurance clause was not "clear," but that nevertheless

the better reading of the health insurance clause was that it

required the wife to maintain the husband's health insurance

under the circumstances, the judge could have ordered the

insurance maintained even though he found no contempt.     See

Smith v. Smith, 93 Mass. App. Ct. 361, 364-365 (2018).     As

discussed above, however, here the correct reading of the health

insurance clause is that it does not require the wife to




     6 In the event that the wife obtains insurance through
future employment where the husband is "eligible under the
plan," then such should be offered to the husband, provided he
covers the additional cost.
                                                                   8


maintain health insurance for the husband where she has left her

job, even though she did so voluntarily.7

                                   Judgment and further judgment
                                    on complaint for contempt
                                    reversed.




     7 The husband does not appear to seriously dispute the
wife's motivation in moving, which she stated was to live closer
to her two sons. There is no allegation that the wife left her
position with malicious intent to cause the husband to lose his
insurance.
