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-242
SUZIE PEREIRA
vs.
MICHAEL PEREIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (wife), representing herself, appeals from a
judgment of a judge of the Probate and Family Court finding her
guilty of contempt for failing to pay child support to the
defendant (husband) and ordering her to pay an arrearage. The
wife contends that the judge erred by (1) finding her in
contempt where she alleges she did not have the ability to pay
and (2) refusing to modify her child support obligation
retroactive to the date when the parties' child began living
exclusively with her. We affirm.
Background. On May 14, 2012, a judge of the Probate and
Family Court entered a judgment of divorce nisi incorporating
the separation agreement of the same date. The parties' separation agreement dictated that though the parties shared
legal custody of their only child, the wife possessed sole
physical custody. Only the provisions of the separation
agreement related to the child merged with the judgment of
divorce.
On June 26, 2017, the parties stipulated that the husband
would have sole legal and physical custody of the child. At the
time of the agreement, the wife was not employed, and the
parties stipulated that she was not required to pay child
support. However, the agreement required the wife to notify the
husband within forty-eight hours of her gaining employment and
permitted the husband to file a complaint for modification to
establish a child support order.
On July 26, 2018, the wife brought a complaint for
modification seeking physical custody of the child. The husband
counterclaimed, seeking child support because the wife had
gained employment since the parties' stipulation from the
previous year. The judge issued a temporary order requiring the
wife to pay $38 per week in child support, effective August 21,
2020.
On December 4, 2020, the wife requested an emergency
temporary order to extend her parenting time with the child,
which a second judge granted. Following a hearing twelve days
2 later, the original judge terminated the emergency temporary
order, requiring the wife to return the child to the husband.
On January 12, 2021, the parties executed a second stipulation,
which required the wife to return the child to the husband and
to continue to pay the husband $38 per week in child support,
and which was incorporated into a judgment. The wife has
neither returned the child nor paid child support to the husband
since the date of the second stipulation.
On February 8, 2021, the husband filed a complaint for
contempt based on the wife's failure to return the child and pay
child support. On April 6, 2021, the judge found the wife in
contempt for failing to return the child to the husband but made
no finding regarding the wife's failure to pay child support.
The judge also assessed a fine of $10, accruing daily, for each
day after April 25, 2021, that the wife failed to return the
child. On May 19, 2021, the husband filed another complaint for
contempt based on the wife's failure to return the child and pay
the $10 daily fine. The judge again found the wife guilty of
contempt for failing to return the child.
On December 20, 2022, the wife filed a complaint for
modification seeking to terminate her child support obligation
and to establish an obligation on the husband to pay child
support to her. On March 7, 2023, the judge issued a temporary
3 order requiring the husband to pay the wife $235 weekly in child
support for thirty one and one-half weeks and $335 weekly
thereafter. The judge reasoned that the husband's obligation
would be reduced for the first thirty one and one-half weeks of
the term to account for the $3,150 in arrearage accrued by the
wife in daily fines pursuant to the April 2021 contempt
judgment.
On June 7, 2023, the husband filed the complaint for
contempt from which this appeal arises. In the complaint, the
husband alleged, inter alia, that the wife had failed to pay $38
weekly in child support. On September 25, 2023, the judge held
a hearing on both the wife's December 2022 complaint for
modification and the husband's June 2023 complaint for contempt.
During the hearing, the wife presented evidence of her ability
to pay child support. This evidence included a canceled check
in the amount of $342 paid to the husband in October 2020 and
her financial statement, listing $700 in weekly income from
employment, $1,010 in a checking account, $258,000 in home
equity, and $5,875 in combined vehicle equity. After the
hearing, the judge found the wife guilty of contempt and ordered
the wife to pay $38 weekly toward the total arrearage of $4,636,
4 after applying a credit of $342, accounting for the canceled
check the wife presented at the hearing.1 The wife appealed.
Discussion. 1. Contempt. On appeal, the wife contends
that the judge erred in finding her in contempt for failing to
pay child support.
We review a finding of contempt for abuse of discretion.
Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). "[T]o
constitute civil contempt there must be a clear and undoubted
disobedience of a clear and unequivocal command" (citation
omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). The
plaintiff bears the burden of proving contempt by clear and
convincing evidence, and the judge shall consider "the totality
of the circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46,
54 (2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839,
844 (2009).
Here, the wife was required to pay the husband child
support in the amount of $38.00 per week from August 21, 2020,
pursuant to a temporary order and, later, a stipulation
incorporated into a judgment, until her obligation was
terminated as of February 24, 2023. The parties agree that the
1 At the contempt hearing, the judge retroactively terminated the wife's child support obligation as of February 24, 2023, the date the wife served the complaint for modification on the husband.
5 wife has paid only $342 in child support. The wife does not
dispute that the order is clear and unequivocal, nor does she
dispute her failure to follow the order.
The wife claims that the judge erred in finding her in
contempt because she lacked the ability to pay the child
support. This claim is unavailing. "[T]he defendant must be
found to have the ability to pay at the time the contempt
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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-242
SUZIE PEREIRA
vs.
MICHAEL PEREIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (wife), representing herself, appeals from a
judgment of a judge of the Probate and Family Court finding her
guilty of contempt for failing to pay child support to the
defendant (husband) and ordering her to pay an arrearage. The
wife contends that the judge erred by (1) finding her in
contempt where she alleges she did not have the ability to pay
and (2) refusing to modify her child support obligation
retroactive to the date when the parties' child began living
exclusively with her. We affirm.
Background. On May 14, 2012, a judge of the Probate and
Family Court entered a judgment of divorce nisi incorporating
the separation agreement of the same date. The parties' separation agreement dictated that though the parties shared
legal custody of their only child, the wife possessed sole
physical custody. Only the provisions of the separation
agreement related to the child merged with the judgment of
divorce.
On June 26, 2017, the parties stipulated that the husband
would have sole legal and physical custody of the child. At the
time of the agreement, the wife was not employed, and the
parties stipulated that she was not required to pay child
support. However, the agreement required the wife to notify the
husband within forty-eight hours of her gaining employment and
permitted the husband to file a complaint for modification to
establish a child support order.
On July 26, 2018, the wife brought a complaint for
modification seeking physical custody of the child. The husband
counterclaimed, seeking child support because the wife had
gained employment since the parties' stipulation from the
previous year. The judge issued a temporary order requiring the
wife to pay $38 per week in child support, effective August 21,
2020.
On December 4, 2020, the wife requested an emergency
temporary order to extend her parenting time with the child,
which a second judge granted. Following a hearing twelve days
2 later, the original judge terminated the emergency temporary
order, requiring the wife to return the child to the husband.
On January 12, 2021, the parties executed a second stipulation,
which required the wife to return the child to the husband and
to continue to pay the husband $38 per week in child support,
and which was incorporated into a judgment. The wife has
neither returned the child nor paid child support to the husband
since the date of the second stipulation.
On February 8, 2021, the husband filed a complaint for
contempt based on the wife's failure to return the child and pay
child support. On April 6, 2021, the judge found the wife in
contempt for failing to return the child to the husband but made
no finding regarding the wife's failure to pay child support.
The judge also assessed a fine of $10, accruing daily, for each
day after April 25, 2021, that the wife failed to return the
child. On May 19, 2021, the husband filed another complaint for
contempt based on the wife's failure to return the child and pay
the $10 daily fine. The judge again found the wife guilty of
contempt for failing to return the child.
On December 20, 2022, the wife filed a complaint for
modification seeking to terminate her child support obligation
and to establish an obligation on the husband to pay child
support to her. On March 7, 2023, the judge issued a temporary
3 order requiring the husband to pay the wife $235 weekly in child
support for thirty one and one-half weeks and $335 weekly
thereafter. The judge reasoned that the husband's obligation
would be reduced for the first thirty one and one-half weeks of
the term to account for the $3,150 in arrearage accrued by the
wife in daily fines pursuant to the April 2021 contempt
judgment.
On June 7, 2023, the husband filed the complaint for
contempt from which this appeal arises. In the complaint, the
husband alleged, inter alia, that the wife had failed to pay $38
weekly in child support. On September 25, 2023, the judge held
a hearing on both the wife's December 2022 complaint for
modification and the husband's June 2023 complaint for contempt.
During the hearing, the wife presented evidence of her ability
to pay child support. This evidence included a canceled check
in the amount of $342 paid to the husband in October 2020 and
her financial statement, listing $700 in weekly income from
employment, $1,010 in a checking account, $258,000 in home
equity, and $5,875 in combined vehicle equity. After the
hearing, the judge found the wife guilty of contempt and ordered
the wife to pay $38 weekly toward the total arrearage of $4,636,
4 after applying a credit of $342, accounting for the canceled
check the wife presented at the hearing.1 The wife appealed.
Discussion. 1. Contempt. On appeal, the wife contends
that the judge erred in finding her in contempt for failing to
pay child support.
We review a finding of contempt for abuse of discretion.
Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). "[T]o
constitute civil contempt there must be a clear and undoubted
disobedience of a clear and unequivocal command" (citation
omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). The
plaintiff bears the burden of proving contempt by clear and
convincing evidence, and the judge shall consider "the totality
of the circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46,
54 (2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839,
844 (2009).
Here, the wife was required to pay the husband child
support in the amount of $38.00 per week from August 21, 2020,
pursuant to a temporary order and, later, a stipulation
incorporated into a judgment, until her obligation was
terminated as of February 24, 2023. The parties agree that the
1 At the contempt hearing, the judge retroactively terminated the wife's child support obligation as of February 24, 2023, the date the wife served the complaint for modification on the husband.
5 wife has paid only $342 in child support. The wife does not
dispute that the order is clear and unequivocal, nor does she
dispute her failure to follow the order.
The wife claims that the judge erred in finding her in
contempt because she lacked the ability to pay the child
support. This claim is unavailing. "[T]he 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). However, the wife presented
insufficient evidence to substantiate her claim that she did not
have the ability to pay the $38 weekly obligation ordered by the
judge. At the September 2023 hearing, the wife emphasized her
inability to pay the arrearage in full, stating that she does
not "have that kind of money," and presented a canceled check in
the amount of $342 paid to the husband in November 2020. In
response, the judge suggested an order that the wife pay $38
weekly toward the arrearage -- an arrangement the wife said was
"fine." Because the wife failed to meet her burden to show that
she had a present inability to comply with the child support
order, we discern no error. See Id., quoting C.P. Kindregan,
Jr., & M.L. Inker, Family Law & Practice §§ 72:3, 72:4 (3d ed.
2002) ("Upon a showing that a defendant in a civil contempt
proceeding is in arrears on his adjudicated support obligations,
6 the defendant must come forward with evidence of a present
inability to comply with the order or judgment, and if no such
proof of inability is forthcoming the defendant can be found in
civil contempt").
Furthermore, in the judgment, the judge credited $342
toward the wife's child support to reflect the canceled check.
The record demonstrates that the judge considered "the totality
of the circumstances" in finding the wife in contempt and that
she carefully crafted an order that accounted for the wife's
previous payment and concerns about her ongoing ability to pay.
See Voorhis, 97 Mass. App. Ct. at 54, quoting Wooters, 74 Mass.
App. Ct. at 844. The judge therefore did not abuse her
discretion in finding the wife in contempt. See Birchall, 454
Mass. at 851.
2. Retroactive termination of child support. The wife
contends that the judge abused her discretion by refusing her
request to modify child support retroactive to the date when the
parties' son began living exclusively with the wife. This claim
is unavailing because the retroactive relief requested would
have violated G. L. c. 119A § 13 (a), which prohibits
"retroactive modification except with respect to any period
during which there is pending a complaint for modification, but
only from the date that notice of such complaint has been
7 given." Here, the wife served the complaint for modification to
terminate the child support order on February 24, 2023. That
date, which was the date of termination ordered by the judge,
was the earliest date that the judge could have permissibly
chosen to modify the order. See G. L. c. 119A § 13 (a). We
discern no error in the judge's decision not to grant earlier
retroactive relief to the wife. Nor did the judge abuse her
discretion by declining to retroactively impose a child support
obligation on the husband, where the judge reasoned that it
would be unjust in the circumstances because the wife relied on
"self-help" to effect a custodial change without first obtaining
a court order. See Boulter-Hedley v. Boulter, 429 Mass. 808,
809–810 (1999) ("Whether to give retroactive effect to a
modification order is a decision within the discretion of the
judge").
Judgment affirmed.
By the Court (Rubin, Neyman & Tan, JJ.2),
Clerk
Entered: August 11, 2025.
2 The panelists are listed in order of seniority.