Leon v. Cormier

• Court: Massachusetts Appeals Court
• Decided: March 24, 2017
• Docket: AC 16-P-61
• Status: Published

Opinion

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16-P-61 Appeals Court

NORBERTO A.Y. LEON vs. JESSICA S. CORMIER.

No. 16-P-61.

Suffolk. November 17, 2016. - March 24, 2017.

Present: Hanlon, Sullivan, & Blake, JJ.

Divorce and Separation, Parent coordinator. Contempt. Evidence, Refusal to comply with court order.

Complaint for divorce filed in the Suffolk Division of the Probate and Family Court Department on September 7, 2011.

Complaints for contempt, filed on January 2, 2015, were heard by Abbe L. Ross, J., and motions for relief from judgment were considered by her.

Peter A. Kuperstein (Mary Donahue also present) for the mother. Norberto A.Y. Leon, pro se.

HANLON, J. A judge of the Probate and Family Court held

the mother, Jessica Cormier, in civil contempt for violations of

a decision issued by an agreed-upon parent coordinator. Cormier

appeals, arguing that the parent coordinator's decision was not

an order or judgment of the court and therefore cannot be 2

enforced by a finding of contempt. After review, we conclude

that, at least under the circumstances of this case, the parent

coordinator's decision was, in fact, an order of the court

pursuant to the judgment of divorce nisi; we therefore affirm.

Background. On November 20, 2012, the parties executed a

separation agreement which was incorporated in the corrected

judgment of divorce nisi on December 7, 2012, as of November 20,

2012. According to the judgment, the terms of the agreement

were given the "full force and effect of an order of [the]

[c]ourt." The agreement provided, among other things, that

"[t]he parties may modify the parenting plan by agreement" and,

in so doing, agree to use the services of a mutually selected

parent coordinator to assist them if they are "unable to agree

on any matter related to the parenting plan[,] including

educational changes."1 The parties also agreed in advance that

the decisions of the parent coordinator "[would] be binding on

the parties unless altered, modified or terminated by [c]ourt

order."

Thereafter, following a series of disputes about several

things, including the location where the children were to be

picked up and dropped off during custody exchanges, the parties

1 The parenting plan in the separation agreement had provided that, after the mother returned to work, the father would have the option of adding to his visitation schedule "up to [three] more weekdays (once per week) in every [four] week period." 3

agreed to use the services of the mutually selected parent

coordinator. On December 21, 2013, the parent coordinator sent

an electronic mail (e-mail) message to the parties, clarifying a

previous decision and specifying, among other things, the

details of future visitation exchanges and the timing of e-mail

communications between the parties.2,3 At no point did the

mother indicate that she did not intend to be bound by the

decision of the parent coordinator, nor did she ask the judge to

modify or terminate the coordinator's order.

Over the next one and one-half years or so, the mother

failed to follow the prescribed exchange procedures and

frequently sent nonemergency e-mail messages to the father at

times other than the "designated Tuesday email time." She also

instructed the father, on several occasions, contrary to the

order, to pick up the children in Pepperell, rather than in

2 As to visitation exchanges, the parent coordinator stated that "the exchange at the front end of the visit shall occur at the Chelmsford Police Station and the back end shall occur at the Pepperell Police Station." With regard to e-mail communications, she stated, "[a]s a rule, emails between [the parties] should still occur during the designated Tuesday email time. The ONLY exceptions are in case of significant emergency or a necessary change in logistics that must be established for something that is to occur prior to the next Tuesday email time." 3 During the February 27, 2015, hearing on the father's complaints for contempt, he referred to two e-mail messages received from the parent coordinator in November, 2013, that were later clarified by a December 21 e-mail message; the November e-mail messages do not appear in this record. 4

Chelmsford. In January, 2015, the father filed three complaints

for contempt -- one for the alleged violations relating to e-

mail communications; one for alleged violations of the

visitation exchange protocol; and a third, described by the

judge as a "catchall" complaint.4

At the contempt hearing, each party appeared pro se. The

mother testified that, because she was not served with the

attachments to the plaintiff's complaint, she was not given

proper notice of the charges against her. Specifically, with

respect to the complaint relating to e-mail communications, the

mother argued that she had not been provided with a copy of the

e-mail messages the father offered in support of his complaint.

As to the complaint relating to the visitation exchange

location, she argued that the parties had "a clear order" from

the parent coordinator that "the exchanges took place

exclusively in Pepperell." Although the judge offered to

continue the hearing to another day so that the mother had

sufficient time to receive and review the documentation she

claimed she had not received, she responded that she "would

rather just get it over with today."

4 The father's "catchall" complaint for contempt was dismissed during the hearing after the judge determined that the allegations therein were duplicative of those contained in the first two complaints. 5

Based on the evidence presented at the hearing, the judge

found the mother in contempt, concluding that, although the

mother had the ability to comply, she "willfully [had] violated"

the orders of the parent coordinator. The judge noted in her

findings that the court had "played no role in the parties'

decision to give the [p]arent [c]oordinator binding authority"

and that the parties "clearly [had] expressed their advance

consent to be bound by a decision of the [p]arent [c]oordinator

in their [s]eparation [a]greement." The judge also found that

"the fact that the [s]eparation [a]greement provided that either

party could bring the matter before the [c]ourt before the

decision was to take effect to try and obtain a contrary order,

does not in any way diminish the binding authority delegated to

the [p]arent [c]oordinator by the parties" (emphasis in

original).

Regarding the e-mail communications, the judge concluded

that "on seventy . . . separate occasions between December 23,

2013, and February 25, 2013,"5 the mother had violated the

5 The judge reviewed "each and every email" message submitted by the father at the hearing, but considered only those sent after the coordinator's December 21, 2013, clarifying e-mail message. Some of the mother's e-mail messages appear in this record, but it is unclear if these represent all of the e- mail messages the judge considered. This does not, however, affect the result. 6

order.6 With regard to the custody exchanges, the mother

likewise committed violations "on fifteen . . . separate

occasions between September 3, 2014, and December 30, 2014," by

"consistently delivering the children to the Pepperell Police

[s]tation instead" of the Chelmsford Police station as ordered.7

As a result, the judge ordered that, if the mother

continued to violate the parent coordinator's order relating to

e-mail communications, her parenting time might be suspended

until she addressed her behavior with a family therapist. The

father was allowed to make up twelve days of parenting time, and

the mother was to reimburse him a total of eighty-eight dollars

for the costs associated with the service of process.

The judge denied the mother's motions for relief from the

judgments pursuant to Mass.R.Dom.Rel.P. 60. Thereafter, the

judge also issued a supplemental judgment and findings nunc pro

tunc as to each complaint, more fully explaining her rationale.

6 The judge noted that many of the e-mail messages sent by the mother were "written in all capital letters and reference[d] 'MY CHILDREN' demonstrat[ing] the [mother]'s ongoing urge to struggle with the [father]. The hostile and dictatorial tone of the emails is counter-productive to effective co-parenting of the minor children." 7 At the contempt hearing, the mother did not claim that she was unable to comply with the coordinator's order, but argued instead that the father had misunderstood the directives contained in earlier e-mail messages of the parent coordinator; the judge did not find the argument credible. Instead, she found that, by insisting on bringing the children to the wrong pickup location, the mother deliberately had interfered with the father's scheduled parenting time. 7

She noted that the mother "had the opportunity to review the

emails before the hearing had she chosen to since they were

authored by her." Also, based on the mother's demeanor and

testimony at the hearing, the judge did not credit her statement

that she had believed, based on the parent coordinator's

decision, that the proper place for weekday drop off was

Pepperell. The wife timely appealed.

Discussion. The mother now argues that the judge erred in

treating the parent coordinator's decision as a court order.

She contends that the decision held no legal weight because it

was not approved by the court or incorporated into a judgment

entered by the court; she maintains further that it was the

father's responsibility to seek judicial approval of the

coordinator's decision and to have it entered as a court order

before it could be enforced. We disagree.

First, it is undisputed that the separation agreement

provided that the parties freely granted advance consent to be

bound by the decisions of a mutually selected parent

coordinator; the agreement also included an option for either

party to seek judicial modification or termination of any

disputed order. The separation agreement stated that "[t]he

decisions of the [p]arenting [c]oordinator will be binding on

the parties unless altered, modified, or terminated by [c]ourt

order." The agreement was then incorporated into the judgment 8

of divorce nisi, and entered on the court's docket, giving it

the full force of an order of the court. Mass.R.Dom.Rel.P.

58(a); Mass.R.Civ.P. 79(a), 365 Mass. 839 (1974). This language

clearly and unequivocally required the parties to abide by the

parent coordinator's future decisions unless the court ordered

otherwise. A violation of any part of a final decree, such as

the divorce judgment entered here, may constitute civil

contempt. See Wooters v. Wooters, 74 Mass. App. Ct. 839, 843

(2009), quoting from Mahoney v. Mahoney, 65 Mass. App. Ct. 537,

540 (2006) ("To constitute civil contempt there must be a clear

and undoubted disobedience of a clear and unequivocal command").

Second, it is well established that judges of the Probate

and Family Court possess the inherent authority to appoint

parent coordinators in certain circumstances and within certain

boundaries. See Bower v. Bournay-Bower, 469 Mass. 690, 698-700

(2014). They may not, however, compel an unwilling party to

submit to a nonjudicial third-party decision-making authority.

Id. at 701.

In this case, however, unlike in Bower, the judge played no

role in the appointment of the parent coordinator. Rather, the

parties clearly expressed their agreement to use a parent

coordinator, specifically naming the coordinator to be retained,

and consenting in advance to be bound by the coordinator's

decisions, unless either party sought judicial review and an 9

alternate order. The fact that the right to judicial review was

included in the agreement ensured an adequate safeguard of each

party's constitutional right to free access to the court. See

id. at 704. "When such an agreement exists, no improper

delegation of a judge's authority follows." Gravlin v. Gravlin,

89 Mass. App. Ct. 363, 366 (2016). Cf. Bower, supra at 708 ("in

some circumstances the delegation of certain judicial tasks to

quasi judicial officers or third-party neutrals is

permissible"). Contrast Ventrice v. Ventrice, 87 Mass. App. Ct.

190, 193 (2015), discussing and quoting from Bower, supra at 703

n.12 ("While recognizing that courts have the inherent power to

appoint dispute resolution officials in appropriate

circumstances, the Supreme Judicial Court stressed that it is

the judge -- and, absent agreement of the parties, only the

judge -- who shall make the final, binding decision in each

case" [emphasis supplied]).

When the judge approved the agreement, she did not "shift

the final decision-making authority granted by a statute to a

third party" rendering "the order an unlawful delegation of

judicial authority." Contrast Bower, supra at 707. Instead,

the authority granted to the parent coordinator through the

parties' consent was a beneficial feature of the agreement,

while retaining the judge's "nondelegable duty to make the final

and binding resolution of the case." Gravlin, supra at 366-367, 10

quoting from Ventrice, supra at 194. The judge correctly

determined that "[i]f the language that the parties agreed to be

bound by is not enforceable, it would be meaningless." See Rae

F. Gill, P.C. v. DiGiovanni, 34 Mass. App. Ct. 498, 502 (1993).

Third, the order of the parent coordinator did not affect

the material terms of the judgment as to the children's primary

custody or the father's right to visitation. The parent

coordinator's order merely altered the logistical coordination

of visitation, and limited the mother's "ongoing urge to

struggle" with the father through the use of "hostile and

dictatorial tone[d]" e-mail messages, which the judge found to

be "counter-productive to effective co-parenting." This

effective and permissible use of the parent coordinator's

services did not impinge on the judge's inherent authority. See

Gravlin, supra.

For these reasons, we agree that the father met his burden

of establishing as to both complaints "a clear and undoubted

disobedience of a clear and unequivocal command."8 Wooters,

supra, quoting from Mahoney, supra. After finding by clear and

convincing evidence that the mother violated a court order, the

8 The mother stated at the hearing that the violation dates listed in the father's complaint for contempt were correct as to Wednesday night visits with the children; the judge determined that, on those occasions, the mother brought the children to the Pepperell police station for pickup by the father rather than the Chelmsford police station as the parent coordinator had ordered. 11

judge did not abuse her discretion in finding the mother in

contempt. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).

The judgment on the e-mail violations, dated March 5, 2015,

and the supplemental judgment on the e-mail violations, dated

May 19, 2015, nunc pro tunc March 15, 2015, is affirmed. The

judgment on the visitation exchange violations, dated March 5,

2015, and the supplemental judgment on the visitation exchange

violations, dated May 19, 2015, nunc pro tunc March 5, 2015, is

affirmed.

So ordered.9

9 As stated in the March, 2015, contempt judgment and May, 2015, supplemental judgment on the e-mail violations, the judge did not consider any e-mail messages sent by the mother prior to December 21, 2013; also, there is nothing in the contempt hearing transcript indicating that the father submitted for the judge's review a copy of the contract between the parties and the parent coordinator. For these reasons, the mother's motion to strike the contents of the addendum to the father's brief is allowed, as are any references contained in his brief that refer to the addendum. The mother's request for attorney's fees is denied.