Karen I. Kohan v. Ariel Kohan. ( 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-559
KAREN I. KOHAN
vs.
ARIEL KOHAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The husband appeals from a judgment, issued by a judge of
the Probate and Family Court, adjudicating him guilty of civil
contempt. On appeal, the husband argues that the wife did not
prove her case by clear and convincing evidence, and that the
judge erred by failing to hold an evidentiary hearing and
instead holding a trial based on oral representations that was
prejudicial to the husband. We affirm.
Background. Following divorce proceedings, a judge of the
Probate and Family court incorporated the parties' separation
agreement (agreement) into a judgment of divorce nisi (divorce
judgment). Exhibit E of the agreement, titled "Division of
Assets," outlined how the husband and the wife would handle the
division and exchange of household property. The agreement
provided, among other things, that the husband would leave the
wife's personal property in a storage facility, for her to
retrieve within twenty days of the judge's approval of the
agreement.
On December 20, 2021, the wife's counsel notified the
husband's counsel that the husband had not complied with the
agreement because the wife had searched the storage unit and had
only found one photo, had found no photo albums, and had found
no business records or personal papers, among other things. 1 The
next day, on December 21, 2021, the wife filed a complaint for
civil contempt in the Probate and Family Court. By his timely
answer, the husband maintained that he had provided each item
that the agreement required.
A hearing was held on January 14, 2022, before a judge of
the Probate and Family Court. At the hearing, the parties were
sworn in, counsel for each party made an argument to the judge,
and each party spoke. The wife told the judge that the family
photos she was seeking held a lot of sentimental value because
she does not see her son at all. She also said her personal
papers included (1) immigration documents, which were
"priceless" to her because if she did not have them she could be
1 The e-mail also stated that the husband had failed to return
most of the wife's jewelry, some footwear, "a vast collection of
cookbooks" (including a cookbook that the wife received from her
mother), part of a silver metal boat, a matching linen and
window treatment set, and a pottery set and basket, all of which
were included in the agreement.
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in legal trouble; and (2) her daughter's social security card,
which would be difficult to replace. The husband told the judge
that the wife had previously picked up her personal documents at
the home and, while he did unsuccessfully search for the missing
items, he did not "flip the house upside down . . . just to find
the little things."
On January 26, 2022, the judge entered a judgment finding
the husband in contempt and ordering him, within thirty days, to
produce "the wife's personal identification documents," "the
daughter's social security card," and "a copy of the family
photos in albums." Failure to produce these items would result
in sanctions of $2,500 per item. The judge also ordered the
husband to pay the wife's attorney's fees in the amount of
$2,500. The judge issued findings of fact and conclusions of
law on May 26, 2022, in which she credited the wife's testimony,
and declined to credit the husband's testimony that he made a
good faith effort to find the wife's personal property. The
husband timely appealed from all aspects of the judgment.
Discussion. 1. Civil contempt. "'[A] civil contempt
finding [must] be supported by clear and convincing evidence of
disobedience of a clear and unequivocal command,' for which the
burden of proof rests with the plaintiff." Martinez v. Lynn
Hous. Auth., 94 Mass. App. Ct. 702, 705 (2019), quoting
Birchall, petitioner, 454 Mass. 837, 853 (2009). For such a
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finding, "there must be [1] a clear and unequivocal command and
[2] an equally clear and undoubted disobedience." Hoort v.
Hoort, 85 Mass. App. Ct. 363, 365 (2014). "We review the
judge's ultimate finding of contempt for an abuse of
discretion." Martinez, supra.
a. Unequivocal command. The husband first argues that the
language in the agreement did not serve as a clear and
unequivocal command requiring him to provide the items listed to
the wife. Specifically, he references the following language
contained in Exhibit E, section II(B), paragraph three:
"The [h]usband has placed the [w]ife's property in storage
. . . and provided permission for her to access [the
storage unit]. Within twenty (20) days of the Court's
acceptance of the within agreement, the [w]ife shall pick
up her personal property from the storage facility. The
property she is picking up is identified in the below
paragraph four (4)."
Among the wife's personal property listed in paragraph four were
"[s]ome [f]ramed photographs of her children and family," "photo
albums," and "personal papers for herself and [her daughter]."
We view this language as sufficiently clear and unequivocal to
meet the standard for civil contempt. A civil contempt finding
may be upheld "where, although the operative language was
facially unclear, the simple, straightforward, and undisputed
facts in the record . . . clearly showed not only what the
language meant but also that the parties shared a common
understanding of that meaning." Sax v. Sax, 53 Mass. App. Ct.
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765, 772-773 (2002). Additionally, "contempt findings have been
upheld in cases where the governing order, although requiring
some legal interpretation, was couched in terms that provided
clear notice of its boundaries" (quotation and citation
omitted). Id. at 772. See Demoulas v. Demoulas Super Mkts.,
Inc., 424 Mass. 501, 567 (1997), and cases cited.
Both parties understood that the agreement served to divide
assets between them, including the wife's "personal property"
identified paragraph four. The listed personal property
included the items that the wife alleged had not been returned
by the husband, i.e., family photographs and personal papers for
the wife and her daughter. Moreover, both the agreement and the
judge's findings reflect the parties' understanding that the
agreement placed an affirmative duty on the husband to return
the listed personal property to the wife: the husband
acknowledged this obligation by stipulating that he had already
placed the listed items in the storage unit for the wife to
retrieve, and he further acknowledged his affirmative duty to
produce these items when testifying that he had looked for them
in good faith (but conceded that he did not "flip the house
upside down" in his search).
b. Undoubted disobedience. Once the judge finds that the
defendant received a clear and unequivocal command, the judge
must then find, by clear and convincing evidence, that the
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defendant "disobediently refrained" from following that command.
Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699, 701 (1995).
See Birchall, petitioner, 454 Mass. at 853.
In her complaint, the wife provided the husband with a list
detailing the items of which she most urgently wished to regain
possession. The divorce judgment, which incorporated the
parties' agreement, required the husband to move all listed
items from the house to the storage unit. As of the date of the
contempt hearing, the husband had not placed the listed items in
the storage unit. Because the divorce judgment unequivocally
commanded the husband to move the listed items to the storage
unit, and the judge found that the husband did not make a good
faith effort to comply, the judge was "warranted in inferring a
wil[l]ful disobedience of the court's order." Furtado v.
Furtado, 380 Mass. 137, 150 (1980). We therefore conclude that
the judge's ultimate contempt finding was not an abuse of
discretion. Martinez, 94 Mass. App. Ct. at 705.
c. Amount of contempt penalty. We also review the trial
judge's imposition of a contempt penalty to ensure that the
judge did not abuse her discretion when determining the penalty
amount. "[T]he amount of a coercive fine requires consideration
of the defendant's financial resources in order to arrive at a
fine that will be effective but not unreasonably oppressive."
L.F. v. L.J., 71 Mass. App. Ct. 813, 823 (2008), quoting Labor
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Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465,
481 (1981). "In determining the amount of a fine imposed as a
means of securing future compliance, a judge should consider the
character and magnitude of the threatened harm, the probable
effectiveness of any suggested sanction, the defendant's
financial resources, and the seriousness of the burden on that
defendant." L.F., supra, quoting Labor Relations Comm'n, supra
at 482.
Explaining her reasoning behind the contempt penalty, the
judge found that the wife would suffer harm if the husband did
not return the requested items and that there was "legitimate
concern that [the] [h]usband did not act in good faith to locate
[the] [w]ife's personal property and secure it in a storage
unit." The judge also found that the husband had "sufficient
financial resources" to pay the $2,500 contempt penalty for each
of the important items he failed to return to the wife. Because
the judge's reasoning demonstrates adequate consideration of the
relevant factors, we conclude the judge was within her
discretion to impose the contempt penalty.
2. Due process. "A contempt proceeding must satisfy the
requirements of due process." Milano v. Hingham Sportswear Co.,
366 Mass. 376, 378 (1974). "[D]ue 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
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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. Evidentiary hearing. The husband argues that the judge
was required to hold an evidentiary hearing and erred by failing
to do so. First, we consider whether the judge was required to
hold an evidentiary hearing in this case. "A defendant in a
contempt proceeding may . . . waive his right to an evidentiary
trial." Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006),
quoting Milano, 366 Mass. at 379. "Such a waiver may result, in
effect, from a failure to assert rights in the trial court in a
manner which permits effective appellate review." Mahoney,
supra. While "under certain circumstances a judge may properly
rule on a complaint for contempt without an evidentiary hearing,
or without receiving live testimony . . . [t]ypically, in such
cases, material facts are not in dispute." Id. "In some cases,
an evidentiary hearing is deemed waived and a judgment of
contempt may be founded upon oral representations . . . (at
least in the absence of objection to such a procedure)." Id. at
541.
Second, we consider whether the judge actually held an
evidentiary hearing. While the parties were sworn in at the
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beginning of the hearing, we cannot say that the husband had "a
chance to testify" by way of formal direct and cross
examination, or to "call other witnesses in his behalf, either
by way of defense or explanation'" as due process requires.
Sodones, 366 Mass. at 127, quoting In re Oliver, 333 U.S. at
275. Therefore, the hearing conducted before the judge did not
amount to a formal evidentiary hearing.
While we conclude that a full-blown evidentiary hearing did
not take place, we also conclude that one was not required in
this case. Because the record does not show that the husband
either requested an evidentiary hearing, or that he objected in
the trial court to the absence of an evidentiary hearing, we
conclude that the husband waived his right to such a hearing.
See Mahoney, 65 Mass. App. Ct. at 540-541.
b. Prejudicial trial. The husband next argues that he was
prejudiced by a flawed trial process. To support his argument,
he points to the length of the hearing (thirteen minutes), the
evidence relied on by the judge, and the wife's testimony which
he argues was unsworn and unchallenged. While the husband is
correct as to the length of the hearing, the record confirms
that both the husband and the wife were sworn in at the start of
the hearing. The husband also spoke to the judge at greater
length than the wife did, although for most of the hearing it
was the parties' attorneys who spoke. The husband was given an
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opportunity to explain his efforts to locate the wife's items
and, in doing so, admitted that his search had been limited.
Because the hearing was not a formal evidentiary hearing, the
judge was not required to permit the husband to call witnesses
or to admit evidence. We conclude that the judge adequately
heard both parties' perspectives on the issues before her and
did not conduct the hearing in a prejudicial manner.
Judgment affirmed.
By the Court (Meade,
Hershfang & D'Angelo, JJ. 2),
Clerk
Entered: October 10, 2023.
2 The panelists are listed in order of seniority.
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