J.D.M. v. J.A.M.

• Court: Massachusetts Appeals Court
• Decided: April 12, 2023
• Docket: 22-P-0499
• Status: Unpublished

Opinion

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

22-P-499

J.D.M.

vs.

J.A.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed a civil contempt complaint in the

Probate and Family Court against the defendant, his former wife.

He alleged that the defendant did not comply with a court order

regarding parenting time with their two children. Following a

nonevidentiary hearing, the judge found the defendant guilty of

contempt. The defendant appeals from that judgment. For the

reasons set forth below, we vacate the contempt judgment and

remand this matter for an evidentiary hearing.

Background. On April 20, 2021, the Probate and Family

Court issued a judgment of divorce nisi that incorporated

portions of a divorce agreement. The agreement granted physical

custody of two minor children (son and daughter) to the

defendant and allowed the plaintiff parenting time every other

weekend from 9 A.M. Saturday to 5 P.M. Sunday. On November 22, 2021, the plaintiff filed a complaint for

civil contempt alleging that the defendant violated the divorce

judgment relating to parenting time. He alleged that the

defendant had interfered with his parenting time and placed

tracking devices on the children's possessions. The defendant

denied these allegations in her response to the contempt

complaint and raised "waiver" as an affirmative defense.

On February 9, 2022, the judge held a nonevidentiary

hearing. Defense counsel requested an evidentiary hearing, but

the judge said that she would have to continue the matter to

another day. Defense counsel added that he would be "happy to

present the case and see what you think about it" but added that

the "facts are in dispute." The judge said that she would "hear

it on representations of counsel." Throughout the hearing,

defense counsel raised repeated objections to an affidavit as

well as the absence of an evidentiary hearing.

During the hearing, both parties' counsel outlined the

disputed facts. Counsel agreed that the required parenting time

had not been provided to the plaintiff, but they offered

different explanations. Plaintiff's counsel asserted that the

defendant attempted to alienate the children from their father.

Defense counsel alleged that on almost all the dates cited, the

plaintiff waived parenting time or agreed to reschedule.

Defense counsel asserted that, in some instances, the children

2 experienced medical issues that prevented strict compliance with

the required parenting time. The brief hearing concluded, and

the judge took the matter under advisement.

On March 10, 2022, the court entered a judgment finding the

defendant guilty of civil contempt. The judge rejected the

defendant's claim regarding waiver of parenting time: "The

Court does not find Mother's argument that Father voluntarily

relinquishes his parenting time to be credible." The judge also

rejected the defendant's claim regarding medical necessity:

"The Court finds that the illnesses and injuries described by

counsel at the time of the hearing are not significant or

serious conditions that would warrant cancellation of Father's

parenting time." The judge also ordered, "Further, absent the

consent of Father, Mother shall not place tracking devices on

the children or in the children's belongings."

Discussion. "A contempt proceeding must satisfy the

requirements of due process." Milano v. Hingham Sportswear Co.,

366 Mass. 376, 378 (1974).

"It is clear that 'due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.'"

Sodones v. Sodones, 366 Mass. 121, 127 (1974), quoting In re

Oliver, 333 U.S. 257, 275 (1948). "A defendant in a contempt

3 proceeding may, of course, waive [the] right to an evidentiary

trial." Milano, supra at 379. "Typically, in such cases,

material facts are not in dispute." Mahoney v. Mahoney, 65

Mass. App. Ct. 537, 540 (2006). The hearing in the present case

did not satisfy the demands of due process. While we recognize

the exigencies of the court schedule, without the agreement of

the parties, a judge cannot decide the merits of a contempt

proceeding without taking evidence particularly where, as here,

material facts are in dispute. It goes without saying that the

representations of unsworn counsel are not evidence.

The record shows that material facts were in dispute

regarding the reason for the defendant's noncompliance with the

requirements for parenting time. Plaintiff's counsel alleged

that noncompliance stemmed from a plot to alienate the children

from their father while defense counsel blamed the noncompliance

on waiver, agreement, and medical necessity. The disputed facts

strike at the heart of a contempt claim –- whether there is

"clear and convincing evidence of disobedience of a clear and

unequivocal command." Birchall, petitioner, 454 Mass. 837, 853

(2009). The defendant never had a full opportunity to answer

the claim of disobedience by presenting evidence, offering a

defense or explanation, testifying, or calling witnesses. See

Sodones, 366 Mass. at 127.

4 Despite the absence of evidence on the issue of

disobedience, the judge made significant credibility

determinations as well as factual findings. The judge did not

credit the "Mother's argument" that the plaintiff voluntarily

relinquished parenting time. The judge also found that the

alleged illnesses and injuries were too insignificant to

"warrant cancellation of Father's parenting time." Such

conclusions on disputed facts are not possible without the

benefit of an evidentiary hearing or an agreement to waive the

hearing. The absence of an evidentiary record also deprives an

appellate court of its ability to review the judge's findings

and conclusions under governing standards. See, e.g.,

Commercial Wharf E. Condominium Ass'n v. Boston Boat Basin, LLC,

93 Mass. App. Ct. 523, 532 (2018) (appellate courts review

"underlying conclusions of law de novo and underlying findings

of fact for clear error"); Smith v. Smith, 93 Mass. App. Ct.

361, 363 (2018) (civil contempt "must be proved by clear and

convincing evidence" based on totality of circumstances).

Conclusion. The contempt judgment docketed on March 10,

2022, is vacated, and this matter is remanded for an evidentiary

hearing. Pending the outcome of the evidentiary hearing, the

5 judge retains discretion to enter temporary orders as she deems

necessary.

So ordered.

By the Court (Wolohojian, Shin & Hodgens, JJ.1),

Clerk

Entered: April 12, 2023.

1 The panelists are listed in order of seniority.