NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-590

HEATHER B. MONTALVO

vs.

JOSE L. MONTALVO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (husband) appeals from an amended judgment of 

contempt entered November 16, 2021, including an award 

allocating the fees of the special master and granting the wife

attorney's fees. We affirm the amended contempt judgment to the 

extent the judge found that the husband failed to comply with 

the divorce judgment's requirement that the marital home be sold 

"forthwith." However, we vacate so much of the amended contempt 

judgment as rests on the judge's determination that the husband 

violated any other provision of the divorce judgment or

subsequent order, and remand the matter for reconsideration and 

reallocation of the special master's and attorney's fees.
2

Background. We summarize the findings of the judge, 

supplemented by certain undisputed facts.1 The essential facts 

are undisputed. After trial, a judgment of divorce nisi entered 

on July 24, 2019, nunc pro tunc to June 21, 2019 (divorce 

judgment). As pertinent to this appeal, the divorce judgment 

provided that

"[t]he marital home located at 25 Moses Wheelock Lane, Unit 

20, Westboro, MA, which is subject to a deed restriction, 

shall be sold forthwith. The parties shall list the home 

for sale with a real estate broker, subject to the deed 

restriction and the Department of Housing and Community 

Development Regulations. If the parties are unable to 

agree upon a real estate broker on or before September 1, 

2019, Attorney Thomas Donahue is appointed as Master to 

effectuate the sale of the marital home. The fees 

associated with a Master, as appointed by the Court, shall 

be paid from the proceeds from the sale of the property 

prior to any distribution to the parties. The Master shall 

have the authority to list the property for sale, subject 

to the deed restriction and the Department of Housing and 

Community Development Regulations, hire a real estate agent 

and agree upon a sale price. Upon the marital home being 

sold, the Master's Fees being paid and all normal and 

customary costs associated with said sale being paid, the 

parties shall share equally in the then remaining proceeds 

from the sale."

1 The husband correctly points out that the statement in the 

amended judgment that the defendant "continued to attempt to 

refinance the existing mortgage on said home, which indebted 

both parties" is inconsistent with the judge's findings and 

unsupported by the evidence. As correctly found in the judge's 

findings, the defendant was seeking to obtain financing for 

another home, not the marital home. The erroneous statement in 

the amended judgment should be corrected by the judge on remand.
3

At the time the divorce judgment entered, the husband was living 

in the marital home with the couple's two children, of whom he had 

primary physical custody.

The parties obtained the marital home through a lottery 

system for affordable homes. Title was in the husband's name 

alone, as was the mortgage. The property was encumbered by a 

deed rider requiring the husband to notify the Department of 

Housing and Community Development (DHCD) and the town of 

Westborough in writing of his intent to sell the property before

it could be put on the market. However, even after giving such 

notice, the husband retained the right to halt the sale of the 

property at any time, and DHCD was required to comply with any 

such request from the husband. The property could be sold only 

to a qualified buyer at no more than the maximum price set by 

DHCD.

The husband did not take the initial step towards sale, 

which was to notify DHCD of his intent to sell the property, 

until September 11, 2019. Thereafter, the husband completed a 

resale property information form, and the DCHD notified the town 

of its right of first refusal, which the town elected to waive. 

The property was placed on the open market on December 10, 2019.

The record supported the judge's findings that the husband 

took several steps thereafter that effectively caused the 

property to be taken off the market. Specifically, on December 
4

31, 2019, the husband informed DHCD that he would not be 

available for several weeks, which halted marketing efforts. On 

February 3, 2020, the husband informed DHCD that he was 

attempting to obtain financing on another home and would be 

seeking from the court additional time to comply with the 

divorce judgment.2 On April 27, 2020 -- shortly after the wife 

filed a complaint for contempt -- the husband reinitiated the 

sale process, but halted it again on May 13, 2020, by informing 

DHCD that he would be unavailable. On June 5, 2020, the husband 

informed DHCD that he wished to reinstate the sale process, but 

that his compliance with the divorce judgment was contingent 

upon his finding alternative housing. The divorce judgment did 

not permit the husband to impose such a contingency.

On July 21, 2020, the judge held a hearing on the wife's 

contempt complaint. The judge credited the special master's 

report at the hearing that there was a buyer interested in the 

property, but that the sales process was on hold due to the 

husband's self-made condition that the sale of the property be 

contingent upon his finding alternative housing. The judge 

found the defendant in contempt for failing to comply with the 

2 On February 3, 2020, the husband filed a complaint for 

modification seeking more time to comply with the divorce 

judgment due to his difficulties in obtaining alternate housing. 

That complaint was dismissed, a ruling the husband did not 

appeal.
5

divorce judgment despite having the ability to comply and 

ordered the husband to "sign any offer from a qualified buyer 

with no contingencies." Further, the defendant was notified 

that "[t]he court may assess further fees and sanctions for 

failure to comply with this order."

Following the July 21, 2020, order, the husband entered 

into a purchase and sale agreement (P&S) with his live-in 

girlfriend, who had been deemed qualified by DHCD, at the 

maximum sale price set by DHCD. The wife then sought to halt 

the sale to the girlfriend as further relief on her contempt 

complaint. On August 31, 2020, the judge declared void the P&S 

on the ground that it was not in fact a bona fide offer. The 

judge also ordered the husband to accept an offer only from a 

"neutral third party buyer." The husband filed a timely 

petition for interlocutory relief from a single justice of this 

court. The petition was allowed on October 8, 2020, and the 

single justice concluded that the judge abused her discretion in 

voiding the P&S. The single justice found that, although the 

proposed purchaser was the husband's significant other, she had 

been approved by DHCD to buy the home for the maximum resale 

value and there was no evidence that the offer was made without 

good faith or fraudulently.

On October 26, 2020, after hearing, the judge entered a 

further order on the contempt complaint, requiring that "[a]ny
6

proceeds from the sale of [the property] shall be held in 

escrow" by the special master.

On November 5, 2020, the husband and his girlfriend entered 

into a subsequent P&S (second P&S) at the maximum sale price, 

with a deposit of $6,070, and a closing date of November 30, 

2020. On December 28, 2020, the special master filed an interim 

report in which he stated the closing did not occur as 

scheduled. The special master also reported that the closing 

was on hold because of an issue the lender had with appraisal 

associated with the loan to the girlfriend. On December 29, 

2020, the judge issued a further temporary order on the contempt 

complaint, in which she authorized the special master to obtain 

a copy of the second P&S and information concerning any pending 

loan applications.

On February 12, 2021, the special master filed a further 

supplement and interim report stating that, after some back-andforth concerning loan application and mortgage information, he 

had approved the transfer of the property on February 11, 2021. 

The closing took place the following day, February 12, 2021. 

Also on that day, the wife filed a motion seeking an order 

requiring that the husband be responsible for the fees of the 

special master. The wife claimed that the husband had delayed 

the sale of the property, and that the husband and his 

girlfriend had frustrated the special master's ability to obtain 
7

necessary information. Simultaneously, the wife filed a motion 

seeking an award of attorney's fees in the amount of $20,915.

On February 15, 2021, after having received a copy of the 

closing disclosure, the special master learned that the husband 

had given the girlfriend a credit of $7,982.81 toward the 

purchase price. The special master was told that the second P&S 

provided that the husband would "credit the buyer up to 6% of 

the purchase price as a closing cost credit at closing as 

allowed under the mortgage terms. This shall come out of his 

proceeds only. Any share of the proceeds being paid to other 

parties shall not be affected by this credit." The special 

master was also told by the closing attorney that the girlfriend 

would not have qualified for the mortgage without this credit. 

The effect of this undisclosed arrangement was that the special 

master would receive only $35,742.13 (plus the $6,070 deposit) 

from the sale, rather than $49,796 as he should have. The 

special master suggested to the judge that the husband's credit 

be paid directly to the wife, and that the proceeds from the 

sale be divided keeping "in mind the cost of the special master, 

the application for counsel fees filed by the [p]laintiff's 

attorney, and any sanctions that may be assessed."

On February 17, 2021, the wife filed a second complaint for 

contempt (second contempt complaint), claiming that the closing 

cost credit violated the judge's October 26, 2020, order because 
8

it was not disclosed by the husband to the special master and 

because it diverted funds to the girlfriend and away from the 

escrow to be held by the special master.

On April 27, 2021, after further hearing, the judge found 

the husband to be in contempt of the divorce judgment by failing 

to sell the property "forthwith." The judge divided the 

proceeds of the sale equally between the husband and wife 

($24,898 after accounting for the closing cost credit), found 

that the husband's failure to comply with the sale of the 

property resulted in the need for extensive involvement of the 

special master, ordered the husband to pay one hundred percent

of the special master fees ($7,280), and awarded $15,750 in 

attorney's fees for the wife. The judgment was later amended to 

reduce the attorney's fees award after the wife's counsel 

acknowledged an error as to the amount of the fees. This appeal

followed.

Discussion. The husband makes two major arguments on 

appeal. First, the husband argues that the judge abused her 

discretion in finding him in contempt of the divorce judgment. 

Second, he argues that the judge abused her discretion in 

ordering him to bear the full amount of the special master's 

fees and the wife's attorney's fees. We address each of these 

arguments in turn.
9

1. Finding of contempt. "We review the judge's ultimate 

finding of contempt for abuse of discretion, but we review 

underlying conclusions of law de novo and underlying findings of 

fact for clear error." Jones v. Jones, 101 Mass. App. Ct. 673, 

688 (2022), quoting Commercial Wharf E. Condominium Ass'n v. 

Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). "[A] 

judge's discretionary decision constitutes an abuse of 

discretion where we conclude the judge made 'a clear error of 

judgment in weighing' the factors relevant to the decision, such 

that the decision falls outside the range of reasonable 

alternatives" (citation omitted). L.L. v. Commonwealth, 470 

Mass. 169, 185 n.27 (2014). "A finding is 'clearly erroneous'

when, although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed." Rosen v. Rosen, 

90 Mass. App. Ct. 677, 692 (2016), quoting Martin v. Martin, 70 

Mass. App. Ct. 547, 549 (2007). "[W]e give 'due regard' to the 

trial judge's ability to judge the witnesses' credibility." 

O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 150 (2003).

"To constitute civil contempt there must be 'clear and 

convincing evidence of disobedience of a clear and unequivocal 

command.'" Jones, 101 Mass. App. Ct. at 687, quoting Birchall, 

petitioner, 454 Mass. 837, 853 (2009). "Civil contempt 'can be 

used as an enforcement mechanism only if the underlying order is 
10

sufficiently clear, so that the party to be bound is provided 

with adequate notice of the required or prohibited activity.'" 

Lynch v. Police Comm'r of Boston, 51 Mass. App. Ct. 772, 776 

(2001), quoting Demoulas v. Demoulas Super Mkts., Inc., 424 

Mass. 501, 565-566 (1997). "The requisite unequivocal clarity 

requires more than a general statement that might or might not 

include the accused's conduct." O'Connell, 59 Mass. App. Ct. at 

150.

"[V]ague or ambiguous language in a judicial decree will 

not suffice. Ambiguities are regularly resolved in favor of the 

alleged contemnor, and cannot be removed by examining the 

evidence underlying the judgment in which the ambiguous language 

is found." (Citations omitted.) Sax v. Sax, 53 Mass. App. Ct. 

765, 772 (2002). Findings of contempt "have been upheld where, 

although the operative language was facially unclear, the simple 

straightforward, and undisputed facts regarding the parties' 

post-agreement conduct, clearly showed not only what the 

language meant but also that the parties shared a common 

understanding of that meaning. Far different are cases where 

the order's language is filled with discretion . . . or cannot 

be understood without an extensive review of the evidence, 

findings, or other background materials on which it is based." 

(Citations omitted.) Id. at 772-773.
11

The divorce judgment ordered that "[t]he marital home

. . ., which is subject to a deed restriction, shall be sold 

forthwith," followed by a series of provisions prescribing the 

appointment of a special master. The husband argues that the 

divorce judgment's order was not a clear and unequivocal command 

"because it defers to the authority of DHCD and makes reference 

to deed restrictions and DHCD regulations creating ambiguity as 

to the judgment's directives." We disagree.

The divorce judgment unambiguously required the husband to 

"list the home for sale with a real estate broker, subject to 

the deed restriction and the [DHCD] Regulations" so that the 

property could be sold "forthwith." The divorce judgment also 

required the parties to agree on a real estate broker by 

September 1, 2019. The failure to meet the September 1 deadline 

resulted in the appointment of the special master. That is not 

to say, however, that the husband was insulated from 

responsibility under the divorce judgment once a special master 

was appointed. The husband remained responsible for listing the 

marital home for sale, which he had the power to do under the 

deed rider and DHCD regulations.3

3 The husband -- not the wife -- participated in the DHCD's local 

initiative program, and he was given the opportunity to purchase 

the marital home at an affordable price. Accordingly, his was 

the only name on the deed to the property, and he was required 

to follow the process outlined in section 4 of the deed rider to 

sell the property. That process required him to notify DHCD and 
12

The obligation to list the property for sale and sell it 

"forthwith" would naturally include the obligation not to 

withdraw the home from the market once listed, as well as an 

obligation not to impose conditions of the husband's own making 

on the listing or sale. See Demoulas, 424 Mass. at 567 ("We 

have upheld findings of contempt where the court order, although 

subject to some legal interpretation, has nonetheless placed the 

party bound by the order on notice that certain actions could 

constitute the basis for contempt"). The record supported a 

conclusion that the husband violated the divorce judgment by 

withdrawing the house from the market on multiple occasions, and 

by imposing conditions on the sale of his own making. 

Accordingly, the judge did not abuse her discretion in finding 

that the husband was in contempt of his obligation under the 

divorce judgment to list the property with a real estate broker, 

subject to the deed restrictions, in a manner to accomplish the 

sale of the property "forthwith."

However, the judge also concluded that by giving a closing 

credit to the girlfriend, the husband had violated both (1) the 

the town of Westborough that he intended to sell the property; 

at that point DHCD calculated the maximum resale price and 

commenced the marketing process (once the town waived its option 

to purchase the property). However, "once the resale process 

outlined in Section 4 of the Deed Rider commences, . . . it is 

not DHCD's normal practice to compel the homeowner to continue 

with the sale of the property," when a homeowner decides they no 

longer wish to sell.
13

divorce judgment, which provided that "[u]pon the marital home 

being sold, the Master's Fees being paid and all normal and 

customary costs associated with said sale being paid, the 

parties shall share equally in the then remaining proceeds from 

said sale"; and (2) the temporary order dated October 26, 2020, 

which required that "any proceeds" of the sale be held in escrow 

by the special master. "[I]n order to find a defendant in civil 

contempt there must be a clear and unequivocal command and an 

equally clear and undoubted disobedience." Hoort v. Hoort, 85

Mass. App. Ct. 363, 365 (2014), quoting Larson v. Larson, 28 

Mass. App. Ct. 338, 340 (1990). Neither the divorce judgment,

nor the October 26 temporary order was a clear and unequivocal 

order that the husband could not extend a closing credit that 

would not affect the amount the wife was to receive from the 

sale. We note in this regard that "normal and customary costs 

associated with said sale" as used in the divorce judgment is 

silent as to the handling of credits, and that "any proceeds" 

was undefined in the temporary order and could easily be 

understood to mean net proceeds from the sale.

Accordingly, we affirm the finding of contempt only to the 

extent it is based on the husband's failure to list and maintain 

the property for sale in a manner to accomplish its sale 

"forthwith."
14

2. Award of special master's fees and attorney's fees. 

The husband argues that the judge abused her discretion by

awarding the full amount of the wife's attorney's fees without 

any examination of the reasonableness of the fees. Second, the 

husband argues that the judge abused her discretion by ordering 

the husband to pay one hundred percent of the special master's 

fees without considering the wife's own conduct in delaying the 

sale. Third, the husband claims that the judge erred in 

awarding fees without finding that he had the ability to pay 

them.

As presented to the judge, there were three potential 

procedural mechanisms by which she could make an award of 

attorney and special master fees against the husband. The first 

was on the wife's contempt complaint and the temporary orders 

entered on that complaint. The second was on the wife's motion 

for an award of attorney's fees based on the husband's purported

"various and sundry actions and behavior to obfuscate the sale 

of the home in order to frustrate the" divorce judgment. The 

third was on the wife's motion for an order allocating the fees 

of the special master based on similar allegations, as well as 

the refusal to provide necessary information to the special 

master. In the end, the judge awarded fees solely on the 

contempt complaint, and took no separate action on the wife's 

two motions. That said, the judge based the award of fees not 
15

only on the husband's violation of the divorce judgment, but 

also on her finding that the husband's closing credit violated 

both the divorce judgment and the October 26 temporary order.

In light of our conclusion that the judge erred in finding 

the husband in contempt for giving the closing credit, a remand 

is necessary to permit the judge to reconsider the allocation 

and amount of the special master and attorney's fees. There is 

no doubt that "the awarding of attorney's fees and costs is an 

appropriate element of a successful civil contempt proceeding." 

Martinez v. Lynn Hous. Auth., 94 Mass. App. Ct. 702, 708 (2019), 

quoting Ventresca v. Town Manager of Billerica, 68 Mass. App. 

Ct. 62, 65 (2007). But the award must be grounded in the legal 

fees incurred "as a consequence of the [husband's] violation of 

the court order." Ventresca, quoting Demoulas, 424 Mass. at 

571. Where a party has not prevailed in a contempt proceeding, 

fees should ordinarily not be awarded. See id. at 65-66. In 

this case, the pertinent order is the command in the divorce 

judgment that the husband list the property so that the property 

could be sold forthwith. It necessarily follows that, on 

remand, the judge should consider the extent to which the wife's 

own actions may have delayed the sale. The wife is not entitled 

to recover fees resulting from any delay she may have caused.

In addition, it appears from the record that the judge may 

have accepted the wife's application for fees without close 
16

examination of its reasonableness or relationship to the 

contumacious actions of the husband. We note in this regard 

that the judge accepted the first fee application at face value 

even though it contained a significant error resulting in more 

than twice the amount of fees that should have been claimed, and 

that she does not appear to have engaged in any examination of 

the reasonableness of the second fee affidavit. On remand, we 

are confident that the judge will give close examination to the 

amount of attorney's fees claimed and their relationship to the 

husband's contempt.

We do not mean to suggest that, on remand, the judge cannot 

make an award of attorney's fees against the husband, or that 

she cannot allocate more than fifty percent of the special 

master fees to him. However, any award should take into account 

the considerations we have set out above.

Finally, the husband argues that the judge did not consider 

his ability to pay the award of fees. This argument, however, 

appears to be targeted to the original contempt judgment, which 

resulted in a net judgment against the husband in excess of his 

half of the proceeds from the sale. As we have already noted, 

the amount was significantly reduced in the amended contempt 

judgment, with the result that the husband would receive some 

amount from the sale. The husband has made no argument 

concerning his ability to pay the amended amount. In any event, 
17

because the judge, as a result of this decision, will reconsider 

the amount and allocation of attorney's and special master's 

fees, the father's argument is best directed to the trial court 

on remand.

Conclusion. We affirm so much of the amended judgment of 

contempt as found the husband in contempt of the divorce 

judgment provision requiring the marital home to be sold

forthwith. We vacate the remainder of the amended judgment of 

contempt, and remand the matter for reconsideration and 

reallocation of the special master's and attorney's fees. We 

allow the wife's request for appellate attorney's fees. In 

accordance with the procedure specified in Fabre v. Walton, 441 

Mass. 9, 10-11 (2004), the wife may, within fourteen days of the 

issuance of this decision, submit an application for attorney's

fees with the appropriate supporting materials. The husband 

shall have fourteen days thereafter to respond.

So ordered.

By the Court (Wolohojian, 

Shin & Ditkoff, JJ.4),

Clerk

Entered: October 5, 2023.

4 The panelists are listed in order of seniority.