J.D.M. v. J.A.M. ( 2023 )

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
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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
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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.
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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
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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.
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