Edgar v. Edgar, 549 N.E.2d 1128 (Mass. 1990). · Go Syfert
Edgar v. Edgar, 549 N.E.2d 1128 (Mass. 1990). Cases Citing This Book View Copy Cite
12 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: TRESCA BROTHERS SAND & GRAVEL, INC. v. EAMES STREET, LLC, & Others. (massappct, 2025-12-02)
Top citers, strongest first. 10 distinct citers. How cited ↗
cited Cited as authority (rule) TRESCA BROTHERS SAND & GRAVEL, INC. v. EAMES STREET, LLC, & Others.
Mass. App. Ct. · 2025 · confidence medium
"An issue not raised at the trial court is not entitled to review here." Edgar v. Edgar, 406 Mass. 628, 629 (1990).
cited Cited as authority (rule) Devon Susanne Smith v. Aaron Alfred Smith.
Mass. App. Ct. · 2025 · confidence medium
"An issue not raised at the trial court is not entitled to review here." Edgar v. Edgar, 406 Mass. 628, 629 (1990).
discussed Cited as authority (rule) Fabre v. Walton
Mass. · 2004 · confidence medium
Edgar v. Edgar, 406 Mass. 628, 630 (1990) (where liability for appellate attorney’s fees was established in original appeal, court need not reexamine issue in appeal from single justice’s award of fees).
cited Cited as authority (rule) Clark v. Trumble
Mass. App. Ct. · 1998 · confidence medium
Co. v. Blakely, 372 Mass. 86, 88 (1977); Edgar v. Edgar, 406 Mass. 628, 629 (1990).
cited Cited as authority (rule) E.H.S. v. K.E.S.
Mass. · 1997 · confidence medium
See Adoption of Mary, 414 Mass. 705, 712 (1993); Edgar v. Edgar, 406 Mass. 628, 629 (1990); Royal Indem.
discussed Cited as authority (rule) Reynolds Bros. v. Texaco, Inc.
Mass. · 1995 · confidence medium
See Commissioner of Correction v. McCabe, 410 Mass. 847 , 850 n.7 (1991); Edgar v. Edgar, 406 Mass. 628, 629 (1990); Petition for Revocation of a Judgment for Adoption of a Minor, 393 Mass. 556 , 563 n.12 (1984).
cited Cited as authority (rule) Noble v. Murphy
Mass. App. Ct. · 1993 · confidence medium
Edgar v. Edgar, 406 Mass. 628, 629 (1990).
cited Cited as authority (rule) Adoption of Jenna
Mass. App. Ct. · 1992 · confidence medium
See Burrell v. Whiting, 324 Mass. 243, 245 (1949); Edgar v. Ed gar, 406 Mass. 628, 629 (1990).
cited Cited "see" Stonehill College v. Massachusetts Commission Against Discrimination
Mass. · 2004 · signal: see · confidence high
See Edgar v. Edgar, 403 Mass. 616, 618-619 (1988), S.C., 406 Mass. 628 (1990); Fuller v. Sylvia, 240 Mass. 49, 52-53 (1921).
cited Cited "see" Smith-Clarke v. Clarke
Mass. App. Ct. · 1998 · signal: see · confidence high
See Edgar v. Edgar, 406 Mass. 628, 629 (1990); Kelsey v. Panarelli, 5 Mass. App. Ct. 480, 481-482 (1977).
Retrieving the full opinion text from the archive…
Cheryl A. Edgar vs. Charles M. Edgar
Massachusetts Supreme Judicial Court.
Feb 12, 1990.
549 N.E.2d 1128
James B. Krasnoo for Charles M. Edgar., John C. Ottenberg for Cheryl A. Edgar.
Liacos, Wilkins, Lynch, Greaney.
Cited by 11 opinions  |  Published
Lynch,

J. In April, 1987, the defendant Charles M. Edgar was found guilty of criminal contempt by a Probate Court judge, for failing to comply with a child support order. He was sentenced to jail for a fixed term and was also ordered to pay his former wife, the plaintiff, Cheryl A. Edgar, arrearages plus attorney’s fees, pursuant to G. L. c. 215, § 34A (1986 ed.). [1] The defendant appealed only from the judgment[*629] of criminal contempt, and this court affirmed. Edgar v. Edgar, 403 Mass. 616 (1988) (Edgar I).

The court referred to a single justice the plaintiffs motion for attorney’s fees incurred in connection with that appeal. The single justice awarded counsel fees in the amount of $2,645, and it is from that decision of the single justice that the defendant again appeals. We conclude there was no error and uphold the decision of the single justice.

In his appeal from the order of the single justice, the defendant challenges the award of any attorney’s fees — both at the trial and appellate level — on several grounds. First, he argues that, because the fees were incurred in connection with criminal contempt proceedings, the plaintiffs private attorney should not have been allowed to prosecute him and therefore no fees may be awarded pursuant to G. L. c. 215, § 34A. Second, he asserts, applying the statute to require a defendant, held to be guilty of criminal contempt, to pay the attorney’s fees of the plaintiff, would violate a number of Federal and State constitutional rights.

We will not disturb a decision of a single justice absent clear error of law or abuse of discretion. Fogarty v. Commonwealth, ante 103, 106 (1989). Palaza v. Superior Court, 393 Mass. 1001, 1002 (1984).

The defendant never objected to the awarding of attorney’s fees in the Probate Court. Neither did the defendant appeal that order. See Mass. R. Dom. Rel. P. 60 (b) (1989). An issue not raised at the trial court is not entitled to review here. Petition for Revocation of a Judgment for Adoption of a Minor, 393 Mass. 556, 563 n.12 (1984). Furthermore, the defendant failed to raise the issue in his original appeal, and[*630] we see no reason why he should be allowed to do so now. New England Merchants Nat’l Bank v. Old Colony Trust Co., 385 Mass. 24, 26 (1982). Thus the judgment we affirmed in Edgar I established his liability for attorney’s fees. There is no fundamental difference between trial and appellate fees, and, even though he had actual notice prior to oral argument in this matter that appellate fees were being claimed, he failed to argue that there was any distinction between the two. It is now too late, therefore, to raise the issue of his liability for attorney’s fees, or to attempt to bifurcate the issue by questioning his liability for appellate attorney’s fees. Id. It was, of course, open for him to contest the amount of appellate attorney’s fees which could not be determined until the conclusion of the appeal. However, this court need not reexamine his liability for counsel fees since he chose not to raise the issue on his prior appeal. Peterson v. Hopson, 306 Mass. 597, 599 (1940). We conclude, therefore, that the liability for such fees both at the trial and appellate level was determined by Edgar I. The amount of these fees at the trial level was also determined by Edgar I. The only question not within the ambit of the decision in Edgar I is the amount of the appellate attorney’s fees. We turn then to this question.

The single justice was not required, as the defendant contends, to continue the hearing on the assessment of appellate fees to permit him to question the affidavit of the plaintiff’s attorney setting out an itemized breakdown of his fees. The defendant asked for and was granted additional time to prepare a memorandum in opposition to the award of appellate attorney’s fees. Prior to the hearing he could have initiated discovery. See Mass. R. Civ. P. 1, 365 Mass. 730 (1974); Mass. R. Civ. P. 26 (a), as amended, 382 Mass. 823 (1981). Instead, with knowledge of the affidavit’s contents, he chose simply to ask the single justice, in the last sentence of his memorandum in opposition to the award, to permit him “to inquire into [the] matters” of the amount of such fees. Relying on the single justice to fashion a remedy is inadequate. He filed no affidavit of his own nor did he make any attempt[*631] to comply with the rules of practice before the single justice. See S.J.C. Rules 2:11 and 2:12, as appearing in 382 Mass. 748 (1981). In those circumstances the defendant cannot be heard to complain that he was deprived of an opportunity to contest the amount of fees assessed against him.

The order of the single justice, assessing against the defendant the appellate attorney’s fees of the plaintiff, is affirmed.

So ordered.

1

In pertinent part, G. L. c. 215, § 34A, provides the following: “In entering a judgment of contempt for failure to comply with an order or judg[*629] ment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. The contempt judgment so entered shall include reasonable attorney’s fees and expenses, unless the probate judge enters specific findings that such attorney’s fee and expenses shall not be paid by the defendant.”