| COMMONWEALTH OF MASSACHUSETTS APPEALS COURT No. 2004-P-558. Essex County Division.
Mary Healy, Plaintiff-Appellant, v. Robert E. Lockwood, Defendant-Appellee.ON APPEAL FROM A JUDGMENT OF THE PROBATE AND FAMILY COURT DEPARTMENT. Brief for the Defendant-Appellee, Robert E. Lockwood.
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| i. TABLE OF CONTENTS Statement of the Issues Presented For Review..................................................................1 Statement of the Case and Facts..........................................................................................2 Argument
Conclusion.............................................................................................................................26 Statutory and Rule Addendum..........................................................................................Post ii. TABLE OF AUTHORITIES Cases Allen v. Allen , 25 Mass. App. Ct. 515, 524(1988)..............................................................23 Allen v. Batchelder, 17 Mass. App. Ct. 453, 458(1984) .....................................................25 Avery v. Steele , 414 Mass. 450, 455(1993) .........................................................................25 Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429-433(1979)...............20 Boyer v. Bowles , 316 Mass. 90,94-95(1944)........................................................................22 Cahill v. TIG Premier Ins. Co., 47 F. Supp. 2d 87,90-91(D. Mass. 1999)..........................16 Connecticut Valley Sanitary Waste Disposal, Inc. v. Zielinski , 436 Mass. 263, 270-271(2002)................................................................................................................................15 Currier v. Malden Redevelopment Authy., 16 Mass. App. Ct. 906, 907(1983)........17;23;24 Davis v. Parker , 14 Allen 94, 110(1867)...............................................................................18 Davis v. Boston Elev. Ry ., 235 Mass. 482, 496(1920).........................................................20 Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 125(1986)..................21 Ellis v. Sullivan, 241 Mass. 60, 64(1922).............................................................................17 Felton v. Felton, 383 Mass. 232,239(1981)..........................................................................12 Foley v. City of Lowell, Mass., 948 F.2d 10(1st Cir. 1991)...................................................17 Hayden v. Hayden , 326 Mass. 587, 594-595 (1950).............................................................20 J.C. Higgins Company, Inc. v. Bond Bros. Inc., 58 Mass. App. Ct. 537, 539 (2003).......15-16 Johnson v. Hazen , 333 Mass. 636, 338 (1956)......................................................................22 iii.
Karen Construction v. Lizotte, 396 Mass. 143, 149(1985)....................................................21 Katz v. Savitsky, 10 Mass. App. Ct. 792, 798(1980) ..............................................................25 Krokyn v. Krokyn, 378 Mass. 206, 208(1979)........................................................................12 Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 320-321(1987)..................................................................................................................................15 Murphy's Case, 352 Mass. 233, 234-235(1967)......................................................................14 Olmstead v. Murphy, 21 Mass. App. Ct. 664,665-667(1986).................................................20 Perkins Sch. for the Blind v. Rate Setting Commn., 383 Mass. 825, 835(1981)..................16 Peters v. Wallach, 366 Mass. 622, 629(1975).........................................................17-18;23;24 Ratner v. Hill, 270 Mass. 249, 253(1930)...............................................................................18 Saint-Gobain Indus. Ceramics Inc. v. Wellons, Inc., 246 F.3d 64, 71-72(1st Cir. 2001)......16 Schuler v. Schuler, 382 Mass. 366, 368(1981)........................................................................12 Sterilite Corp. v. Continental Casualty Co., 397 Mass. 837, 841(1986)...............................16 Trinity Church in the City of Boston v. John Hancock Mutual Life Ins. Co. , 405 Mass. 682(1989)...................................................................................................................................14 VMS Realty Investments, Ltd. v. Keezer, 34 Mass. App. Ct. 119, 130(1993).........................25 Ward v. American Mutual Liability Ins. Co., 15 Mass. App. Ct. 98, 100-101(1983)............21 Whaler Motor Inn, Inc. v. Freedman, 9 Mass. App. Ct. 884, 885(1980).....................17;23;24 iv. Statutes and Other Authorities G.L.c. 215, Section 34A.......................................................................................................22-23 G.L.c. 231, Section 6C...................................................................................................... passim G.L.c. 235, Section 8.................................................................................................................22 Mass. R. App. P. 25..................................................................................................................25 1 Statement of the Issues Presented for Review. 1. Did the Probate Judge abuse his discretion in assessing interest on the contempt judgment against the Husband from the date when he found the Husband in contempt instead of from the date when the Wife filed her complaint for contempt? 2. Did the Probate Judge abuse his discretion in refusing to assess prejudgment interest against the Husband for his contempt where the Wife's own conduct in committing waste of the former martial home delayed the Husband's planned refinancing of the home, his timely buyout of the Wife's interest and his ability to perform consistent with the parties' Agreement? 3. Where the issues of whether the Husband had acted contumaciously or whether the Wife's conduct had also contributed to his inability to perform in a timely manner consistent with the Agreement were not resolved until the Probate Judge actually decided these fact questions for himself, did he abuse his discretion in then refusing to impose interest on the contempt judgment from the date of the Wife's contempt complaint? 4. Is the Wife's appeal frivolous where the Wife's Brief ignores the relevant decisional law of this Court which recognizes the Probate Judge's discretion to adjust or eliminate altogether prejudgment interest when the prevailing party herself has been responsible for the unnecessary delay in the rendition of judgment? Statement of the Case and Facts. On July 15, 2003, the plaintiff-appellant Mary Healy (“the Wife”) and the defendant-appellee Robert E. Lock-wood (“the Husband') were divorced because of the irre-trievable breakdown of their marriage(A.8;12). On the same day, the Husband and the Wife executed a compre-hensive Separation Agreement (“the Agreement”) which resolved all of their property and personal rights inter sese as well as their respective obligations to their children(A.13-34). This Agreement was “incorporated but not merged in [the] Judgment and...survive[d] and re-main[ed] as an independent contract except [for] child related issues and alimony which provisions shall merge and not survive”(A.12). The Agreement recited inter alia that the parties were married on September 11, 1982, in Cambridge, Mass-achusetts; that they had two sons (Robert E. Lockwood III, born on July 20, 1987; and Thomas F. Lockwood, born on January 7, 1990), and that they last lived together on or about July 22, 2002, at 89-91 West Street in Beverly Farms, the former marital home(A.13). They further agreed that the Husband would buyout the Wife's interest in the former marital home at 89-91 West Street for the sum of $1,835,000(A.31). Specifically, the Husband promised to pay the Wife within thirty (30) days $200,000 and then pay her $1,635,000 on or before Novem-ber 1, 2003, in furtherance of their Agreement and the buyout(A.31). This payment by the Husband would “be se-cured by a mortgage on the 89-91 West Street property to be drafted by [the Husband's] counsel and approved by [the Wife's] counsel”(A.31). For the purposes of this buyout and their divorce, the marital home was appraised at $4,700,000; and the parties contemplated refinancing the outstanding mortgage of $1.2 million on the home at current low interest rates: the first refinancing would provide the Wife with the first $200,000; and a second refinancing, after the Wife had vacated the home, would be used to pay her the remaining sum of $1,635,000 on or before November 1, 2003 (A.52-53). During all of this time, the Husband was living with his two sons in the guest house located on the grounds of the former marital home and the Wife was living in the main home and it “was the Husband's intention that upon [the] Wife's vacating the home, he and [his] two sons [would] return to the former marital home, complete the second refinancing to pay off [the] Wife and rent the guest house...to help pay the increased debt service” (A.53;207). The Husband duly paid the Wife $200,000 within thirty (30) days of the Agreement consistent with its terms (A.53;206-207). However, when the Husband was unable to pay the Wife the remaining $1,635,000 on or before November 1, 2003, the Wife immediately brought a com-plaint for contempt on November 4, 2003, alleging this failure by the Husband and seeking payment forthwith (A.9;35-42). The Wife requested an expedited hearing and a short order of notice on the Husband(A.9;35-42). In addition, she sought the appointment of a real estate Master in order “to execute all documents necessary for the listing, marketing and sale of 89-91 West Street, Beverly Farms, Massachusetts”(A.9;43-50). A hearing was scheduled for November 13, 2003(A.9). The Husband's counsel was unable to appear on November 13, 2003, and on that day, the Clerk rescheduled the hearing on the Wife's complaint for December 4,2003 (A.9;51). In the meantime, the Husband filed an Opposi-tion to the Wife's complaint for contempt asserting that the Wife had committed waste and, in fact, had vandalized the former marital home before her vacating the premises so that it was now uninhabitable(A.52-64). He contended that because of the Wife's actions, he was prevented from refinancing the property in an amount sufficient to fund the buyout and that an amendment of the judgment was accordingly warranted(A.52-57). As the Husband made clear in his Opposition,
(A.54)(emphasis in original). For these reasons, the Husband claimed that he was not in contempt of the judgment but rather has been prevented from complying with the judgment by the Wife's waste of the former marital home, conduct which cost him $123,000 in order to rectify, i.e., $28,000 in a prepay-ment penalty for his first refinancing; $20,000 in lost rent caused by the Wife's waste; and up to $78,000 in provable repairs to the property(A.53;56-57). He there-fore sought an order dismissing the Wife's contempt complaint and amending the judgment to extend the time for his final payment of $1,635,000 to the Wife to April 1, 2004, an amount to be reduced by $123,000 for the Wife's established waste of the marital home and her frustration of his refinancing of the property(A.54-64). After the parties had filed Financial Statements, these contentions came on for hearing in the Probate and Family Court Department before Stevens, J., on December 4, 2003(A.73-97;191-215). At this time, the Wife also sought an award of her counsel fees in the amount of $7,860.50 as well as an award of $18,276.02 in statutory interest through December 4, 2003, in association with her complaint for contempt(A.9;99-111). Statutory in-terest was calculated on the basis that the Husband owes the Wife $1,635,000 pursuant to the Agreement since November 1, 2003; that the statutory interest rate of 12% annually on the sum of $1,635,000 is $537.53 daily; and that by December 4, 2003, 34 days had passed since Novem-ber 1, 2003, yielding total statutory interest due the Wife of 34 X $537.53 or $18,276.02(A.110). On December 9, 2003, after hearing the parties, the Probate Judge issued an order on the Wife's complaint for contempt filed November 4, 2003, and the motions to amend the judgment and to appoint a real estate master(A.9;112-113). He adjudged the Husband guilty of contempt for having willfully failed to pay the Wife as agreed and for failing to have his counsel prepare a mortgage on the 89-91 West Street property in a form approved by the Wife's counsel in order to secure payment(A.112). Judge Stevens further ordered the Husband to pay the Wife as agreed by January 10, 2004, and then noted that since the parties' Agreement contains no provisions for the imposition of interest, “as a matter of discretion, there shall be no interest awarded from November 1 st to the date of this order”(A.114). In addition, he ruled that
(A.114)(emphasis supplied). The Husband was further ordered to pay the Wife's attorney's fees in the amount of $6,045.00; and his counsel was ordered to deliver to the Wife's attorney an executed mortgage in recordable form by December 15, 2003 (A.114-115). Finally, the Probate Judge continued this contempt until January 15, 2004, for enforcement(A.115). If the Husband was in full compliance, neither party needed to appear; if he was not in compliance, the Husband was to appear for appropriate disposition(A.115). Judge Stevens thereupon denied the Husband's motion to amend the judg-ment as well as the Wife's motion for the appointment of a real estate master(A.115). Motions by the Wife to correct certain clerical er-rors in the Probate Judge's order ensued(A.9-10;116-133). In addition, the Wife renewed her motion for the imposi-tion of interest from the date of the filing of her com-pliant until the Husband's obligation was paid in full (A.116-117;130-131). The Husband opposed these motions (A.127-128). On December 16, 2003, Judge Stevens issued a memoran-dum and further amended order, nunc pro tunc to December 9, 2003, correcting some clerical errors, reaffirming the elements of his prior order and denying the Wife's motion to impose interest on the contempt judgment from the date of the filing of her complaint(A.10;134-135). The Wife filed a motion for reconsideration which was subsequent-ly denied(A.10; 136-171). Because the Wife failed to provide a discharge of the prior mortgage on the marital home, the closing on the refinancing scheduled by the Husband could not take place on January 6, 2004(A.225-226). The closing attorney eventually obtained a letter of indemnification in lieu of the Wife's discharge but this delayed the Husband's refinancing by a week(A.226). Even though the refinancing was now finally resolved and the Wife was to be wired funds sufficient to purge the Husband of any contempt, the Wife pursued a hearing before the Probate Judge on January 15, 2004, where she once again sought monetary sanctions against the Husband, her counsel fees to date and statutory interest on the contempt judgment in the amount of $19,888.61(A.172-188). On January 15, 2004, the Probate Judge heard the parties and citing the Wife's failure to provide a discharge of the prior mortgage on the marital home, causing a one-week delay in the Husband's refinancing, he refused to impose sentence on the Husband's contempt at that time, instead giving him another six days to pay off the Wife as agreed(A.226-227). On January 15, 2004, a further order accordingly entered obligating the Husband to pay the Wife on or before January 21, 2004: (1)the sum of $1,635,000; (2) per diem interest on this amount as previously ordered from December 10, 2003; and (3) and the Wife's attorney's fees in the amount of $2,100(A.10;189-190). The Husband timely paid the Wife these amounts and the Wife has now brought this appeal(A.10). Argument . 1. Judge Stevens Neither Erred As A Matter Of Law Nor Abused His Discretion By Assessing Interest On The Judgment From The Date Of His Finding Of Contempt Against The Husband Rather Than From The Date When The Wife Filed Her Complaint For Contempt . The Wife has reproduced in her record appendix the pleadings, the parties' motions, the hearing transcript and the Probate Judge's memorandum and orders which contain his findings of fact and rulings of law. This Court therefore has before it a sufficient record to review and decide every question of law, fact and dis-cretion made by Judge Stevens below and raised by this appeal. Felton v. Felton , 383 Mass. 232,239(1981) quoting Schuler v. Schuler , 382 Mass. 366, 368(1981) and Krokyn v. Krokyn, 378 Mass. 206, 208(1979). Given this standard of review, the Husband submits that Judge Stevens neither erred as a matter of law nor abused his discretion when he decided not to assess prejudgment interest on the contempt judgment entered against the Husband on December 9, 2003, instead ordering him to pay only postjudgment interest at the per diem rate of $537.53 until his obligation was paid in full. As for the contractual rate of interest, the Probate Judge accurately found on this record that the parties' Agreement contained no provision for interest and there-fore an interest rate was not “established” for purposes of G.L.c. 231, Section 6C. Moreover, given the absence of agreement about assessing interest and the Wife's waste of the former marital home which delayed the Husband's refinancing and the eventual buyout, Judge Stevens possessed the discretion to adjust the prejudgment interest award so that the Wife as the prevailing party did not benefit from her own delay in performing the Agreement and the Husband was not unfairly punished financially for events beyond his control. Secondly, the issues of the Husband's willful dis-obedience of the Agreement and the Wife's conduct in committing waste of the former marital home thereby sabotaging the Husband's refinancing efforts were disputed fact questions for the Probate Judge as trier of fact to resolve upon the parties' competing contentions at the hearing on December 4, 2003. He eventually did so on December 9, 2003, by adjudging the Husband in contempt for failing to pay the Wife $1,635,000 as agreed and for failing to have his attorney prepare a mortgage on 89-91 West Street in order to secure payment(A.112;114;134). Accordingly, December 9, 2003 , when Judge Stevens issued his order resolving the disputed fact question of whether the Husband had committed contempt, is the date of the “breach” of contract for purposes of computing interest under G.L.c. 231, Section 6C. The Probate Judge therefore was correct as a matter of law to impose 12% interest on the judgment from this date onward consistent with the statute's plain terms. For these reasons, then, Judge Stevens neither erred as a matter of law nor abused his discretion when he de-cided not to assess prejudgment interest on the contempt judgment entered against the Husband on December 9, 2003. This Court should therefore affirm the judgment below in all respects. Interest is paid as compensation for delay. Trinity Church in the City of Boston v. John Hancock Mutual Life Ins. Co. , 405 Mass. 682, 684(1989) citing Murphy's Case , 352 Mass. 233, 234-235(1967). Prejudgment interest “com-pensates the prevailing party for the loss of the use of money that party, as determined by the judgment, should have had in the first place and had not been obliged to chase.” Connecticut Valley Sanitary Waste Disposal, Inc. v. Zielinski , 436 Mass. 263, 270-271(2002) quoting City Coal Co. of Springfield v. Noonan , 434 Mass. 709, 716 (2001) and Makino, U.S.A., Inc. v. Metlife Capital Credit Corp. , 25 Mass. App. Ct. 302, 320-321(1987). G.L.c. 231, Section 6C, reflects this principle of delay in payment and provides that in “all actions based on contractual obligations” which results in a “judgment for pecuniary damages,” interest shall be added to the judgment at the rate specified in the contract or, if not so specified, at the rate of 12% per annum from the date of the breach or demand. In addition, if the date of the breach or demand is not established, then interest was to be added at the contract rate or at the rate of 12% per annum “from the date of commencement of the action.” As this Court recently observed in J.C. Higgins Com-pany, Inc. v. Bond Bros. Inc. , 58 Mass. App. Ct. 537, 539 (2003), Section 6C's purpose is “to compensate a party for the loss of use, or unlawful detention, of money after the date that payment is due.” Id . citing Perkins Sch. for the Blind v. Rate Setting Commn. , 383 Mass. 825, 835(1981). The aim is that a party wrongfully deprived of the use of money “should be made whole for his loss.” Sterilite Corp. v. Continental Casualty Co. , 397 Mass. 837, 841(1986) quoting Perkins, supra . However, the governing principle of Section 6C is to restore to the party only that which he has lost . Id . As the Sterilite Court held,
Id . at 841;842. Accord , Saint-Gobain Indus. Ceramics Inc. v. Wellons, Inc. , 246 F.3d 64, 71-72(1st Cir. 2001)(in-terpreting Massachusetts law); Cahill v. TIG Premier Ins. Co. , 47 F. Supp. 2d 87,90-91(D. Mass. 1999)(interpreting Massachusetts law). Thus while on its face G.L.c. 231, Section 6C, may provide for the award of prejudgment interest at the rate of 12% per annum measured from the commencement of the plaintiff's action or from the date of the breach or demand, the statute does not disturb the Probate Judge's recognized and longstanding discretion to adjust and even eliminate an award of prejudgment interest where the prevailing party herself has been responsible for the unnecessary delay in the rendition of judgment. Peters v. Wallach , 366 Mass. 622, 629(1975). Currier v. Malden Re-development Authy., 16 Mass. App. Ct. 906, 907(1983). Whaler Motor Inn, Inc. v. Freedman , 9 Mass. App. Ct. 884, 885(1980). Accord , Foley v. City of Lowell, Mass. , 948 F.2d 10, 17-18(1st Cir. 1991)(interpreting Massachusetts law); Pacific Ins. Co., Ltd. v. Eaton Vance Management , 260 F. Supp. 2d 334, 345(D. Mass. 2003)(interpreting Massachusetts law). See also Ellis v. Sullivan , 241 Mass. 60, 64(1922). In Peters v. Wallach , supra , for example, the High Court, responding to the prevailing party's contention that besides the award of contract damages they were also entitled to interest either from the date of the agreement or from the date of the suit, noted that the payment of interest
366 Mass. at 629. (emphasis supplied). This is precisely what occurred here. Contrary to her own obligations of good faith and fair dealing under the Agreement, the Wife committed waste of the marital home before she vacated the premises rendering it uninhabit-able(A.52-64). This interfered with the Husband's timely refinancing of the property in an amount sufficient to fund the buyout consistent with the Agreement's timelines(A.52-57). As the Husband made clear in his Op-position to the Wife's contempt complaint,
(A.54)(emphasis in original). While this conduct by the Wife might not have been reason enough for Judge Stevens to dismiss outright her complaint for contempt against the Husband, the Wife's established waste of the marital home and her frustration of the Husband's timely refinancing of the property was sufficient for the lower court, in the exercise of its sound discretion, to deny her any prejudgment interest on the contempt judgment eventually entered. Any other result would have rewarded the Wife with a windfall for the unnecessary delay she caused in these proceedings and unfairly punished the Husband financially for events over which he had no control. Sound judicial discretion implies “the absence of arbitrary determination, capricious disposition, or whim-sical thinking.” Berube v. McKesson Wine & Spirits Co. , 7 Mass. App. Ct. 426, 429-433(1979) quoting Davis v. Boston Elev. Ry ., 235 Mass. 482, 496(1920). See Hayden v. Hayden , 326 Mass. 587, 594-595 (1950); Olmstead v. Murphy , 21 Mass. App. Ct. 664,665-667(1986). Judge Stevens wisely exercised this discretion by concluding from all the evidence before him that to assess prejudgment interest on the contempt judgment here would have been punitive to the Husband and would provide the Wife with a windfall for the very delay which she herself caused, all contrary to the purposes of G.L.c. 231, Section 6C. In addition, until the Probate Judge found and ruled on December 9, 2003, that the Husband was in contempt “as of this date” for failing to pay the Wife consistent with the Agreement, there was no “breach” of contract for the purposes of G.L.c. 231, Section 6C, and there was no sound reason for assessing interest before that date in any event. Consistent with G.L.c. 231, Section 6C, interest was thereafter rightfully assessed on the amount due the Wife, even though she subsequently again inter-fered with the Husband's refinancing of the property in January of 2004 by failing to provide a discharge on the prior mortgage on the marital home. The date of an alleged “breach” for the purposes of Section 6C was a question of fact for the Probate Judge as the trier of fact in this case. Deerskin Trading Post, Inc. v. Spencer Press, Inc. , 398 Mass. 118, 125(1986). Karen Construction v. Lizotte , 396 Mass. 143, 149(1985) and cases cited. A breach of contract does not neces-sarily occur when a dispute arises between the parties to an agreement. A “breach of contract” is confined to some kind of wrongful conduct by one of the parties thereto. Realty Development Co., Inc. v. Wakefield Ready-Mixed Concrete Co., Inc. , 327 Mass. 535, 537(1951). A party's nonperformance, if justified , is not a “breach.” Id . Ward v. American Mutual Liability Ins. Co. , 15 Mass. App. Ct. 98, 100-101(1983). Thus until Judge Stevens, after hearing the parties, had determined on December 9, 2003, that the Husband committed a breach of the Agreement and was now in contempt, there was no “breach” of contract and no reason in equity or in law to impose interest under Section 6C before that date. See Johnson v. Hazen , 333 Mass. 636, 338 (1956)(a judgment for the payment of money upon the finding of a judge bears interest from the date of the judgment); Boyer v. Bowles , 316 Mass. 90,94-95(1944) (same). See also G.L.c. 235, Section 8. Accordingly, December 9, 2003 , when Judge Stevens issued his order resolving the disputed fact question of whether the Husband had committed contempt, is the date of the “breach” of contract for purposes of computing interest under G.L.c. 231, Section 6C. The Probate Judge therefore was correct as a matter of law to impose 12% interest on the judgment from this date onward consistent with the statute's plain terms. Finally, G.L.c. 215, Section 34A, provides no relief to the Wife on her claim that she is entitled to prejudgment interest either from November 1, 2003, when the Husband's payment was originally due, or from Novem-ber 4, 2003, when she filed her contempt complaint. This statute provides in pertinent part that any “monetary contempt judgment shall carry with it interest, from the date of the filing of the complaint, at the rate deter-mined under the provisions of [G.L.c. 231, Section 6C].” However, Section 34A is qualified by the same discretion of the Probate Judge which qualifies G.L.c. 231, Section 6C, i.e., when the prevailing party is herself responsible for some or all of the delay in accomplishing an order of the Court or the agreement of the parties, delay which results in a judgment of con-tempt, the Probate Judge has the discretion to adjust or even eliminate altogether an award of prejudgment in-terest. Peters v. Wallach , supra . Currier v. Malden Redevelopment Authy., supra . Whaler Motor Inn, Inc. v. Freedman , supra . In any event, contempt actions brought under Section 34A contemplate arrearages “already due” at the com-mencement of the action, a claim which presupposes that the plaintiff has not wrongfully interfered with or frustrated the debtor's ability to make payment. Allen v. Allen , 25 Mass. App. Ct. 515, 524(1988). Such is not the case here. 2. The Wife's Appeal Is Frivolous. The Wife's Brief on appeal: 1. sanitizes by ignoring altogether her failure to cooperate in the Husband's buyout under the Agreement when she committed waste of the former marital home and frustrated his timely refinancing of the property; 2. misstates the standard of review on appeal, i.e., whether the Probate Judge abused his discretion in making the interest calculation that he did; 3. ignores the authoritative decisional law of this Court which recognizes the discretion of the Probate Judge to adjust or even eliminate altogether the imposition of prejudgment interest where the prevailing party herself has been responsible for the unnecessary delay in the rendition of judgment. See Peters v. Wallach , supra . Currier v. Malden Redevelopment Authy., supra . Whaler Motor Inn, Inc. v. Freedman , supra . 4. offers an incomplete legal analysis which discusses just some of the relevant law addressing Judge Stevens' discretionary power in the circumstances of this case; 5. reconstructs the record without any support to argue that the Husband's “breach” of contract occurred earlier than December 9, 2003; and 6. does a disservice to the Probate Judge's patient and assiduous attention to the facts and to the equities of this case. Where an appeal raises no serious questions of fact or of law and where the Wife's Brief fails to address the controlling facts which Judge Stevens heard or the con-trolling law which justifies the Probate Judge's interest computation, there is no reasonable expectation of reversal and it is frivolous. Avery v. Steele , 414 Mass. 450, 455(1993). VMS Realty Investments, Ltd. v. Keezer , 34 Mass. App. Ct. 119, 130(1993). Allen v. Batchelder ,17 Mass. App. Ct. 453, 458(1984). Because of this frivolous appeal by the Wife, this Court should exercise its discretion under Appeals Court Rule 1:28 and affirm summarily the judgment below. In addition, pursuant to Mass. R. App. P. 25, this Court should award the Husband damages in the form of his appellate attorneys' fees together with double costs. Katz v. Savitsky , 10 Mass. App. Ct. 792, 798(1980). Conclusion. For all of the reasons identified herein, Judge Stevens neither erred as a matter of law nor abused his discretion when he decided not to assess prejudgment interest on the contempt judgment entered against the Husband on December 9, 2003. This Court should therefore affirm the judgment below in all respects and provide the Husband with such other relief as is fair and just in the circumstances of this case, including an award of his appellate attorneys' fees and costs which he has incurred in responding to this frivolous appeal by the Wife. Respectfully submitted,
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