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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 
2

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.