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16-P-184                                              Appeals Court

           LAURA MARIE CREEDON   vs.   JOSEPH E. HAYNES, SR.


                             No. 16-P-184.

       Suffolk.         October 13, 2016. - December 6, 2016.

             Present:   Wolohojian, Carhart, & Shin, JJ.


Rules of Domestic Relations Procedure. Contempt. Divorce and
     Separation, Agreement respecting life insurance, Judgment.
     Probate Court, Judgment. Judgment.


     Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on June 14, 1990.

     A complaint for contempt, filed on November 4, 2011, was
heard by Jeremy A. Stahlin, J.; entry of an order dismissing the
contempt complaint was ordered by Abbe L. Ross, J., and a motion
for postjudgment relief was heard by her.


    Laura Marie Creedon, pro se.


    WOLOHOJIAN, J.      The mother appeals from the dismissal of

her contempt complaint by a judge of the Probate and Family

Court, who was not the trial judge.     We vacate the order

dismissing her complaint and order that judgment enter

reflecting the trial judge's decision.
                                                                    2


     The parties1 entered into a separation agreement on March

15, 1995, which was incorporated, but did not merge (with the

exception of provisions relating to the parties' unemancipated

children), into a judgment of divorce nisi.   Among other things,

the agreement provided that the father "agrees to designate the

minor children as beneficiaries of his life insurance policy

presently in place with the . . . [f]ire [d]epartment" of the

town of Lexington (town), which the father, during negotiations,

represented had a value of $100,000.   In fact, there was no such

policy, and the father never designated his children as

beneficiaries.   Upon learning this, the mother filed a complaint

for contempt in 2011.

     At the first day of the contempt trial, the mother produced

a letter from the town manager certifying that the father did

not have life insurance in place at the time of the separation

agreement.   The father did not contest that fact, but

represented that he had instead a line-of-duty death benefit2 for

which he had designated the children as beneficiaries.    Based on

this representation, the trial judge continued the matter to


     1
       The parties are proceeding pro se.   The father has not
filed a brief on appeal.
     2
       The record does not contain the transcript of the first
day of trial. However, the transcript of the second day reveals
the judge's recollection of the father's representation from the
first day, and his recollection is corroborated by the order
continuing the trial.
                                                                   3


determine whether the father had a line-of-duty death benefit

and, if so, the identifies of the named beneficiaries.3

     The father did not appear at the subsequent (and final) day

of trial.   The mother, however, did, and produced additional

documentation from the town manager stating that the town

provided only life insurance, and that no other form of death

benefit was offered.   A search of town records had revealed no

records showing the father had been enrolled in a group life

insurance plan; the father, therefore, had not been eligible for

a death benefit under any life insurance benefit administered by

the town.

     On this evidence, the trial judge found the father in

contempt and awarded the mother a creditor's claim against the

father's estate for $100,000, to be reduced by any life

insurance policy naming the mother as the beneficiary at the

time of the father's death.   The trial judge announced his

decision at the conclusion of the trial on March 21, 2012, and

his ruling is reflected in the official transcript.   The terms

of the decision were not otherwise recorded in writing, and the




     3
       It is unclear whether the father was referring to the
line-of-duty death benefit provided under G. L. c. 32, § 100A,
which, at the time, provided for a $100,000 line-of-duty death
benefit, administered by the State board of retirement.
                                                                   4


judgment was not entered on the docket.4

     Concerned about the lack of written record of the judgment

or its terms, the mother filed a "motion for final judgment and

order to issue on complaint for contempt," seeking to have the

trial judge's decision reflected in a separate judgment and

entered on the docket.   The father did not oppose this motion.

Nonetheless, apparently without hearing (at least, the docket

does not reflect one),5 a second judge (the trial judge having

retired) dismissed the contempt complaint on the ground that

"[t]he issue of [f]ather maintaining life insurance for the

benefit of the children to secure his child support payment

pursuant to the March 15, 1995[,] [s]eparation [a]greement is

moot as the children are now 29, 33 and 35 years old."6,7


     4
       A docket entry dated March 21, 2012 (the last day of
trial), states "judgment on contempt." On our own initiative,
we obtained the docket to which this entry refers and determined
that the entry relates to a different contempt complaint. We
have made the same inquiry with respect to two similar entries
dated eight days later; they, too, relate to different contempt
complaints.
     5
       Although the docket does not reflect that a hearing
occurred, the basis for the judge's decision suggests that
additional information (the age of the children) came to his
attention by some means. Those means, however, do not appear in
the record.
     6
       The judge's ruling was dated September 25, 2015; the
docket entry is dated October 13, 2015.
     7
       The dismissal is not reflected in the docket, which
instead states only that "[j]udgment/[d]ecree of [c]ontempt
filed 11/16/2011." The ambiguity of this entry is not lessened
                                                                    5


    The mother, proceeding pro se, moved pursuant to

Mass.R.Dom.Rel.P. 60(a) and Mass.R.Dom.Rel.P. 60(b)(1), (4)-(6),

seeking relief from what she termed the "secondary judgment,"

i.e., the second judge's dismissal of the contempt complaint.

The father, appearing for the first time relevant here, filed an

opposition in which he stated merely that the parties' three

children were in their thirties.    The second judge denied the

motion on the ground that "the court did not issue a 'secondary

judgment.'"   This appeal followed.

    To some extent, the issues raised by this appeal can be

traced to the initial failure to comply with Mass.R.Dom.Rel.P.

58(a) and 79(a).   Rule 58(a) provides that, "upon a decision by

the court . . . , the court shall promptly approve the form of

the judgment" and, further, that "[e]very judgment shall be set

forth on a separate document."     See Mass.R.Civ.P. 58(a), as

amended, 371 Mass. 908 (1977).     Here, although the judge found

the defendant in contempt and decided the relief to which the

plaintiff was entitled as a result, the requirements of rule

58(a) were not met; the judgment was not recorded in a separate

document and the form of judgment was not approved by the judge.




by the fact that the contempt complaint was not filed on the
stated date. Instead, the contempt complaint was dated November
2, 2011, and filed on November 4, 2011. The date discrepancy
makes no difference to this appeal.
                                                                   6


Moreover, contrary to Mass.R.Dom.Rel.P. 79(a),8 the judgment was

not entered on the docket.   "A judgment is effective only when"

set forth as required by rule 58(a) "and when entered as

provided in [r]ule 79(a)."   Mass.R.Dom.Rel.P. 58(a).   In other

words, although the trial judge found the defendant in contempt

and determined the relief to which the plaintiff was entitled --

and announced those matters on the record in open court -- there

was no effective judgment on the contempt complaint.    See

Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc.,

70 Mass. App. Ct. 326, 331 (2007), and cases cited

("Massachusetts courts generally continue to require strict

compliance with rule 58[a]'s 'separate document' rule").9,10



     8
       Rule 79 of the Massachusetts Rules of Domestic Relations
Procedure incorporates by reference sections (a)-(c) of rule 79
of the Massachusetts Rules of Civil Procedure, as amended, 385
Mass. 1216 (1982).
     9
       Federal authority is to similar effect with respect to the
corresponding Federal rules. For example, the First Circuit
"interpret[s] [r]ule 58 fairly strictly; as the Supreme Court
has instructed, [r]ule 58 'must be mechanically applied to avoid
new uncertainties as to the date on which a judgment is
entered.'" Mullane v. Chambers, 333 F.3d 322, 336 (1st Cir.
2003), quoting from United States v. Indrelunas, 411 U.S. 216,
222 (1973). Separate judgments should generally be "self-
sufficient, complete, and describe the parties and the relief to
which the party is entitled." Ibid. (collecting cases).
Separate judgments must also be separate and distinct from any
judicial opinion or memorandum, and docket entries are
insufficient to satisfy rule 58. See id. at 337, citing Domegan
v. Ponte, 972 F.2d 401, 405 (1st Cir. 1992), vacated, 507 U.S.
956 (1993); Green v. Nevers, 196 F.3d 627, 630 (6th Cir. 1999).
                                                                    7


     In these circumstances, the plaintiff was correct to move,

pursuant to rule 58(a), for entry of final judgment.11    Such a

motion, in essence, seeks a largely ministerial act:     that a

previously-made decision be recorded in a separate writing and

entered on the docket.   A rule 58(a) motion is not a vehicle for

substantive reconsideration of an earlier decision, and a judge

is not free to treat it as such, especially absent further

procedural protections, such as notice to the parties and an

opportunity to be heard -- neither of which appear to have

occurred here.

     The peril of proceeding otherwise can be seen from what

happened in this case.   The second judge's decision necessarily

rested on a reading of the separation agreement that was

rejected by the trial judge.   The father did not contend at

trial that his life insurance obligation was limited to securing

his child support obligation, nor did he contend that the

obligation expired when the children reached majority -- an


     10
       We have recognized some flexibility in the rule to the
extent that it is a precondition for maintaining an appeal
(which is not the situation we face here). See Hodge v. Klug,
33 Mass. App. Ct. 746, 750-751 (1992).
     11
       At oral argument, the plaintiff represented that she had
also orally asked for the same relief from the trial judge when
she appeared before him for separate reasons. However, these
informal requests are not reflected in the record, and we do not
take them into account. Motions, unless made during a hearing
or a trial, must be made in writing. See Mass.R.Civ.P. 7(b),
365 Mass. 748 (1974); Mass.R.Dom.Rel.P. 7(b).
                                                                     8


obvious claim to make (if true) because the children were

already emancipated at the time of the contempt trial.    Instead,

the father's defense was that he had satisfied his obligation

through his employer's line-of-duty death benefit.   Whereas the

trial judge accepted the plain language of the separation

agreement, the second judge did not, concluding that the

father's life insurance obligation was limited to securing his

child support obligation and that the obligation expired when

all the children reached majority.   The second judge could not

have reached these conclusions without resorting to extrinsic

evidence, which, in turn, also necessarily depended on her

having determined that the contract language was ambiguous or

that its plain language did not accurately reflect the intent of

the parties -- all factual matters the second judge was in no

position to decide differently than the trial judge.     Seaco Ins.

Co. v. Barbosa, 435 Mass. 772, 779 (2002) (if a contract "has

terms that are ambiguous, uncertain, or equivocal in meaning,

the intent of the parties is a question of fact to be determined

at trial"); Bank v. Thermo Elemental Inc., 451 Mass. 638, 649

(2008) ("extrinsic evidence may be used as an interpretive guide

only after the judge or the court determines that the contract

is ambiguous on its face or as applied").
                                                                   9


     For these reasons, we vacate the order dismissing the

contempt complaint and direct that, pursuant to rule 58(a),

judgment enter consistent with the decision of the trial judge.12

                                   So ordered.




     12
       Although we express no view on the merits of any such
motion, we note that our decision does not foreclose the father,
upon motion and an appropriate showing, to be relieved of the
contempt judgment, pursuant to rule 60(b).
