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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 "selfsufficient, 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).