CRAIG KIRCHDORFER v. KELLY ANN KIRCHDORFER (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-846

24-P-1067

CRAIG KIRCHDORFER

vs.

KELLY ANN KIRCHDORFER (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The former husband, Craig Kirchdorfer (husband), appeals

from (1) a judgment on the former wife's, Kelly Ann

Kirchdorfer's (wife), complaint for contempt for failure to pay

child support and (2) an order dismissing his statement of

objections to a judgment of divorce nisi. We affirm.

Background. In 2005, the parties purchased a home, sharing

the expense equally. In 2007, the parties separated and sold

their home. In 2009, the parties reconciled, resumed living

together, and shared household bills equally. In 2013, the

parties married. In 2020, the parties stopped living together,

1 Craig Kirchdorfer vs. Kelly Ann Kirchdorfer.

and their marriage irretrievably broke down with no hope of

reconciliation.

The wife is a dental hygienist and earns an average weekly

income of $765.52. During the marriage, the husband was

employed by Keolis Commuter Services (Keolis). Between 2015 and

2022, the husband was in and out of work several times due to

multiple surgeries, most of which resulted from work-related

injuries. Between 2019 and 2022, the husband earned an average

of $134,879.75 per year from a combination of wages, medical

leave pay, and short term disability benefits. In 2020, the

husband received a workers' compensation settlement in the net

amount of $200,000. In 2023, the husband earned $2,341 per week

through April 18, 2023, when he received a letter from Keolis

removing him from service due to his alleged absences from

assigned locations on various dates when he was on duty. The

judge did not credit the husband's testimony that he stopped

working due to health issues. At the time of trial in December

2023, the husband alleged that he was receiving disability

benefits from Keolis, but he listed his sole sources of income

as unemployment insurance and worker's compensation, totaling

$788 per week. The husband has not sought further employment

with Keolis or any other employer. At the time of trial,

neither party had any significant assets, and both parties'

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weekly expenses exceeded their net income. The wife had no

financial liabilities, and the husband had $36,638.30 in debt.

In 2017, the parties' child was born. From January 2018 to

September 2020, when the parties separated, the wife was the

primary caretaker of the child. The child has been diagnosed

with anxiety, a speech disorder, and attention deficit

hyperactivity disorder, and he has been on an individualized

education program since 2020. Prior to the parties' separation,

the wife scheduled the child's medical and educational

appointments and cared for him on her days off from work. After

the parties separated, the husband took over scheduling

appointments. The husband did not adhere to the wife's request

that he schedule appointments on her days off from work so that

she could attend the appointments, which created "unnecessary

conflict" between the parties. The husband also scheduled

medical and educational appointments without informing the wife.

The judge did not credit the husband's allegations that the wife

consistently missed the child's therapy appointments and was

routinely late to pick up the child from school.

On November 18, 2021, the parties stipulated that the

husband would pay $215 per week in child support. At the time

of trial, it was undisputed that the husband was in child

support arrears in the amount of $8,412.14. The judge found

that, during the period that the husband failed to pay child

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support, he recklessly dissipated the parties' "only marital

asset," his $200,000 workers' compensation settlement, despite

being "on notice" that such dissipation violated the automatic

restraining order imposed by Rule 411(a)(1) of the Supplemental

Rules of the Probate and Family Court (2012). For disobeying

the order to pay child support and the automatic restraining

order, the judge entered two contempt judgments against the

husband.2

At the conclusion of trial, the judge did not order either

party to pay current child support. The judge ordered the

husband to pay the wife $8,412.14 for child support arrears at a

rate of $150 per week, in addition to twenty-five percent of his

workers' compensation settlement ($50,000). The judge required

the husband to keep the wife informed of the status of his

disability claim and of any change in his income. The parties

were ordered to share equally the costs of child care and

extracurricular activity expenses. The judge ordered the

parties to share legal and physical custody of the child,

including equal parenting time. The wife was ordered to be

responsible for arranging the child's appointments. On April 8,

2024, the judgment of divorce nisi entered. The husband filed a

2 The husband appeals only from the judgment of contempt for

failure to pay child support.

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statement of objections, on which the judge issued an order

declining to amend the divorce judgment.

Discussion. 1. Contempt judgment. "We review the judge's

ultimate finding of contempt for an abuse of discretion."

Martinez v. Lynn Hous. Auth., 94 Mass. App. Ct. 702, 705 (2019).

"[A] civil contempt finding [must] be supported by clear and

convincing evidence of disobedience of a clear and unequivocal

command" (citation omitted). Department of Revenue Child

Support Enforcement v. Grullon, 485 Mass. 129, 133-134 (2020).

"In addition, the defendant must be found to have the ability to

pay at the time the contempt judgment enters" (citation

omitted). Poras v. Pauling, 70 Mass. App. Ct. 535, 540 (2007).

The husband contends that the judge erred by not crediting

him with $2,802.62 in alleged payments against the $8,412.14 in

child support that he owed the wife. The judge found the amount

of child support arrears was undisputed at the time of trial.

The husband did not include conclusive documentation of his

child support payments in the appellate record, and failed to

provide us with the trial transcript, so we cannot say that the

judge's findings were clearly erroneous. See Matter of Valerie

R. Pecce Supplemental Needs Trust, 99 Mass. App. Ct. 376, 381–

382 (2021).

The husband further argues that the judge's order to pay

child support was ambiguous because it did not specify how the

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husband was to be credited for paying child support. Despite an

alleged "lack of clarity about how [the] payments were to be

applied," the husband's responsibility to make the payments was

clear and unequivocal. See Stabile v. Stabile, 55 Mass. App.

Ct. 724, 726-727 (2002) ("a party's self-serving

characterization of a provision as 'ambiguous' does not make it

so").

The husband also asserts that he did not willfully violate

the order. Instead, he claims that he did not pay child support

because he could not afford to do so. The judge did not credit

the husband's and his mother's claims about his financial

situation, and we decline to disturb the judge's credibility

assessments or her findings of fact. See Corrado v. Hedrick, 65

Mass. App. Ct. 477, 484 (2006) ("Findings that are based on

credibility assessments are uniquely the province of the trial

judge, and we will not disturb them on appeal").

That the husband's parenting time might (as he claims) have

increased after the child support stipulation does not excuse

his noncompliance with it. He remained required to comply

unless and until he obtained a modification of his obligation,

which he failed to do. Nor was the wife limited to recovering

arrears from February 24, 2023, forward, as sought in her

complaint for contempt. The complaint also sought "such other

relief as the Court deems just," and the husband cites no

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authority preventing the judge from ordering payment of the

actual arrears amount.

Accordingly, because the husband willfully failed to comply

with the judge's order to pay child support, and he could afford

to do so, the judge did not abuse her discretion by finding the

husband to be in contempt and ordering him to pay the undisputed

arrears. See Poras, 70 Mass. App. Ct. at 539-540.

2. Denial of due process. On April 12, 2023, the judge

issued a temporary order that "[n]either party shall be

permitted to file any further motions or pleading without first

obtaining Court approval." The husband argues that this order

violated his right to due process, but he does not point to any

filing prevented or prejudicially delayed by the order. The

judge acted within her discretion to enjoin both parties from

filing additional pleadings without prior leave of the court

where such an injunction was necessary to put "a stop to

harassing, vexatious, and repetitious litigation." See State

Realty Co. of Boston v. MacNeil, 341 Mass. 123, 124 (1960). See

also Bishay v. Superior Court Dep't of the Trial Court, 487

Mass. 1012, 1013 (2021).

3. Dismissal of statement of objections. On July 2, 2024,

the husband filed a statement of objections pursuant to Mass. R.

Dom. Rel. P. 58 (c), seeking to prevent the divorce judgment

from becoming final as to custody and parenting time, child

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support, and the division of assets and liabilities. On July

12, 2024, the judge dismissed the husband's statement of

objections.3 "A [party] may seek relief from a judgment of

divorce nisi by filing a statement of objections pursuant to

Mass. R. Dom. Rel. P. 58 (c), for any cause sufficient in law"

(quotation and citation omitted). Franzosa v. Franzosa, 98

Mass. App. Ct. 179, 181 (2020). "We review the judge's

decision" to dismiss the statement of objections "for an abuse

of discretion or other error of law." Id. at 182.

Here, the "cause[s] sufficient in law," asserted by the

husband in his statement of objections were that (1) the judge

unjustly ordered that the wife would be responsible for

arranging the child's appointments; (2) the husband's right to

seek future modification was unjustly limited by the divorce

judgment's provision that his exercise of "mutually agreed upon"

additional parenting time shall not "in and of itself"

constitute a basis for such modification; (3) the husband was

required to pay $8,412.14 that he owed in child support arrears,

even though he was not required to pay current child support;

(4) the requirement that the husband keep the wife informed of

3 Although the husband complains that the judge erred by not

holding a hearing on the issue, his statement of objections did

not request such a hearing, rule 58 (c) does not require one,

and the husband cites to no authority requiring a hearing in the

circumstances presented.

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the status of his disability claim and of any change in income

violated his right to privacy; and (5) the order that the

husband pay the wife twenty-five percent of his workers'

compensation settlement was improper because the settlement was

"governed by" a Federal statute, among other reasons.

The judge has "broad discretion to fashion judgments in

divorce proceedings that will best protect the interests and

welfare of the parties' minor children" (citation omitted).

Fleming v. Fleming, 62 Mass. App. Ct. 103, 108 (2004). Here,

the judge concluded that the child's best interests would be

served by allocating to the wife responsibility for arranging

appointments. The judge's decision was supported by the finding

that the husband's scheduling practices "created unnecessary

conflict between the parties." Accordingly, the judge acted

within her discretion by determining that assigning scheduling

to the wife would be in the child's best interests. See id.

The husband objected to the judge's order that the husband

could have additional parenting time as agreed on by the

parties, but that such additional parenting time would not "in

and of itself" constitute a basis for any future modification

action. The husband asserts that this unfairly restricts his

ability to modify parenting time, even if such modification

would be in the child's best interest. To the contrary, the

order does not restrict any future modification that would be in

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the child's best interest. The judge acted within her

discretion by ordering that the parties could agree to

additional parenting time for the husband, see Fleming, 62 Mass.

App. Ct. at 108, and such additional time, being contemplated by

the divorce judgment, is not "in and of itself" a material

change in circumstances, see G. L. c. 208, § 28 (modification

requires finding "that a material and substantial change in the

circumstances of the parties has occurred and the judgment of

modification is necessary in the best interests of the

children").

The husband contends that the judge's order that he pay

$8,412.14 in child support arrears, but that he not pay current

child support, was unfairly "contradictory." On November 18,

2021, the husband stipulated that he would pay the wife $215 per

week in accordance with the child support guidelines, and he did

not pay $8,412.14 of the child support that he owed. On the

record before us, we cannot say the judge abused her discretion

in declining to retroactively adjust father's child support

obligation at the time of the divorce judgment.

The husband argues that the requirement that he keep the

wife informed of the status of his pending disability claim and

of any change in his income violated his right to privacy. A

subsequent modification to the child support order would depend

on the extent to which "the parties' financial circumstances

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have changed since the entry of the prior judgment." See Emery

v. Sturtevant, 91 Mass. App. Ct. 502, 508 (2017). Accordingly,

it was within the judge's discretion to require the husband to

apprise the wife of changes in his financial circumstances.

The husband also asserts that the judge erred by concluding

that his workers' compensation settlement was marital property

because his injury was "governed by" 45 U.S.C. §§ 51-60, the

Federal Employers' Liability Act.4 The husband cites no

applicable support for the argument that the judge lacked the

authority to conclude that the settlement was marital property.

The sole case he cites, Monheim v. Union R.R. Co., 996 F. Supp.

2d 354 (W.D. Pa. 2014), appears to have no bearing on the

question. Because "the accident occurred during the marriage

and the settlement was received before the judgment of divorce

4 To whatever extent the judge may have excluded from

evidence, as outside of the business records exception to the

rule against hearsay, a "non-wage allocation/[Railroad

Retirement Board] lien letter" assertedly bearing on the nature

of the settlement, this would not have been an abuse of

discretion. Among other reasons, the husband has failed to show

that the record was made by a business, as opposed to the

husband himself.

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nisi became final," the settlement was a marital asset. See

Warnajtys v. Warnajtys, 97 Mass. App. Ct. 690, 692 (2020).5,6

Judgment of contempt for

nonpayment of child support

affirmed.

Order dismissing statement of

objections affirmed.

By the Court (Desmond,

Sacks & Brennan, JJ.7),

Clerk

Entered: July 23, 2025.

5 On the record before us, the husband appears to contend

for the first time on appeal that the judge engaged in judicial

misconduct and ethical violations. We find no support in the

record for these contentions. Rather, the husband's arguments

amount to a disagreement with the judge's imposition of

financial obligations on him.

6 To the extent that the husband makes additional arguments,

"they 'have not been overlooked. We find nothing in them that

requires discussion.'" Commonwealth v. Sosa, 493 Mass. 104, 124

n.12 (2023), quoting Commonwealth v. Domanski, 332 Mass. 66, 78

(1954).

7 The panelists are listed in order of seniority.

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