Q: My ex was unable to refinance and buy me out of the house. Our divorce agreement says if that happens she has to list the house for sale. We really spent a lot of time on this provision because I knew this was going to happen. We had to agree on a broker and if we could not agree, a special Master was put in place to choose one. As I predicted, we needed the special Master — a former judge — to choose our real estate agent.
I signed the listing agreement with the broker chosen by the Master but my ex refuses. I don’t know what to do next — I am tired of paying all this money for her to just ignore orders. Is the Master’s report the same as an order? Can I file a complaint for contempt because she didn’t do what we were told to do? Is there any way to get her ordered to pay the Master? And if she isn’t out by the end of the school year, can I get the kids enrolled in the town I now live in so they don’t have to change high schools mid-year?
A: Often times a Master appointment includes the right for the Master to re-assess fees based on the conduct of the parties. If yours does, you should first go back to the Master and ask that all of the fees be shifted to your ex for her failure to operate in good faith. Where a Master has more time and fewer cases than the judge, your request may be better received there. Next, file the Master’s report with the court along with a motion to adopt it as a court order. Now you have a built-in fee shift and an order so you can now file a complaint for contempt. Ask for an order of legal fees for the contempt as well.
You are not going to get a change of custody or school system on a complaint for contempt for her failure to list the house for sale. But, you can also file a complaint for modification asking for an adjustment in the parenting plan and an order that the children go to school in your district. You will need to cite your ex’s failure to sell the house in a timely manner, which will then cause the children to change school districts mid-year, something that is not in their best interests as a change in circumstances.
But, a word of caution before you go to that extreme — if your ex is able to afford any housing in the current town she is likely to avail herself of that option so your children don’t have to change school systems in high school. If you want to avoid an unnecessary unsuccessful modification action, you should have a conversation with her first about your plans — that might be enough to light a fire under her feet for all purposes.