MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Former spouses Christine A. Daniels and George M. Ferreira were divorced in 2006, pursuant to a divorce judgment incorporating their separation agreement (agreement). The agreement provided in relevant part that, “[c]onsistent with their respective financial circumstances, the parties agree to use their best efforts to contribute equally to reasonable costs of ․ college education (whether private or public) for each of the [c]hildren.”
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In October 2019, Daniels filed a complaint for contempt alleging that Ferreira had failed to comply with the separation agreement by refusing to pay for one-half of the eldest childs college expenses. After a hearing, a judge of the Probate and Family Court found Ferreira not guilty of contempt on the basis that “[t]here is no clear and unequivocal order as to payment for college costs.” See Birchall, petitioner, 454 Mass. 837, 838-839 (2009) (“a civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command”). Daniels appeals from the judgment, arguing that the judge erred as a matter of law in concluding that the college expense provision of the agreement lacked a “clear and unequivocal command.” Id. We agree with Daniels. Accordingly, we vacate the judgment and remand the case for further proceedings consistent with this memorandum and order.
Discussion. Although we review the judges ultimate decision on the complaint for contempt for abuse of discretion,
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see Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018), the judges interpretation of the agreement is subject to plenary review. See Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008). “[T]he requirement for clear and unequivocal language is designed to insure that all who are subject to an orders command have fair notice of the conduct the order prohibits.” Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002). “[V]ague or ambiguous language in a judicial decree will not suffice,” and “[a]mbiguities are regularly resolved in favor of the alleged contemnor.” Id.
Here, it is apparent from the record that the judge viewed the agreements college expense provision as too vague to support a contempt finding due to the inclusion of the phrase “best efforts.”
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This was error. In Stabile v. Stabile, 55 Mass. App. Ct. 724, 728 (2002), the court held that language in a separation agreement was sufficiently clear and unequivocal where it provided that the father “will use his best efforts to maintain a college ․ fund for each of the parties minor children, and shall contribute $10,000[ ] annually to each fund.” Id. at 725. Like the court in Stabile, “we assume a construction of ‘best efforts’ in the natural sense of the words as requiring that the party put its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom․ The term ‘best efforts’ thus helps to delineate, rather than to obscure, [Ferreiras] responsibilities under the order.” Id. at 727-728, quoting Macksey v. Egan, 36 Mass. App. Ct. 463, 472 (1994).
We therefore conclude that the agreement contains a clear and unequivocal command requiring each party to contribute equally to the childrens reasonable college expenses, consistent with their respective financial circumstances, if by using his or her best efforts he or she may do so. The presence of qualifying language regarding the parties financial circumstances does not render the agreements college expense provision ambiguous. Rather, that qualifying language informs the other prong of the contempt inquiry, i.e., whether there has been a “disobedience” of a clear and unequivocal order. Birchall, petitioner, 454 Mass. at 839. Put another way, Ferreira may not be found guilty of contempt if, despite his using best efforts, his financial circumstances render him unable to contribute equally to the childrens college expenses. See Smith, 93 Mass. App. Ct. at 364 (“a person cannot be found in contempt of an order to pay money that he or she is unable to pay”). Here, however, the judge never reached the “disobedience” prong of the contempt inquiry because he erroneously concluded that there was no clear and unequivocal order for Ferreira to disobey. Accordingly, a remand is necessary for a determination whether or not Ferreira failed to comply with the agreements clear and unequivocal mandate to contribute equally to the childrens reasonable college expenses. See Stabile, 55 Mass. App. Ct. at 728-729.
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The judge may take any additional evidence necessary to make this determination.
Conclusion. The January 6, 2020 judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.
FOOTNOTES
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. The agreement further provided that “[s]uch costs shall include tuition, room and board, fees, books, reasonable transportation expenses, and customary incidental expenses billed by a ․ college (private or public) such as medical and athletic fees. All such costs due from the [w]ife ․ may be paid first from the respective accounts, if any, for the [c]hildren.”
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. “[A] judges 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.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
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. Although the judge did not explain his rationale in the judgment issued on January 6, 2020, at the hearing earlier that day, the judge asked Daniels: “How is there a clear order if [the agreement] says, ‘use their best efforts to contribute equally’?” The judge also opined at the hearing that the language requiring the parties to “use their best efforts to contribute equally ․ doesnt say that [the parties] would contribute equally” (emphasis added).
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. We note that, even if Ferreira is not adjudged in contempt on remand, the judge is nevertheless “empowered to enter an order for payment of monies due pursuant to [the judges] determination of the parties rights under the separation agreement.” Colorio, 72 Mass. App. Ct. at 389, quoting Krapf v. Krapf, 55 Mass. App. Ct. 485, 491 (2002), S.C., 439 Mass. 97 (2003).