DocketNumber: No. 02-P-1509
Citation Numbers: 62 Mass. App. Ct. 215
Judges: Duffly
Filed Date: 10/4/2004
Status: Precedential
Modified Date: 6/25/2022
Irving Aaron Cohen was adjudged in contempt for failing to contribute to the educational expenses of his children as required by a judgment of divorce. The judgment purports to hold Cohen in civil as well as criminal contempt and he appeals, arguing that as to the criminal contempt, certain
1. Proceedings. The parties’ twenty-three year marriage ended in divorce, following a two-day trial in September, 1999. The January 4, 2000, divorce judgment,
A complaint for contempt filed by Aroesty and dated February 22, 2000, alleged, among other things, that Cohen had failed to pay child support and his share of the children’s uninsured medical expenses, and that he had not cooperated in applying for financial aid for the younger children’s private school costs and the oldest child’s college expenses. The parties’ stipulation, incorporated in a temporary order dated March 27, 2000, acknowledges Cohen’s payment of $4,250, and provides that Cohen will promptly complete financial aid applications and submit required documentation. He also agreed to pay $4,500 in attorney’s fees incurred by Aroesty in connection with that contempt proceeding, at the rate of $375 per month.
On August 14, 2000, Aroesty filed the complaint for contempt that is the subject of this appeal. She alleged that Cohen had not paid child support nor his share of medical expenses, and that he had failed to contribute his sixty percent share of the children’s private school and college costs. Cohen filed a timely answer to this complaint.
A hearing as to both complaints for contempt took place on September 11, 2000, before a different judge from the one who had presided over the divorce trial, and Cohen was ordered to pay the child support arrearages and medical expenses. Cohen sought an evidentiary hearing on the issues of his failure to pay nearly $50,000 as his share of the children’s education expenses, and his ability to pay such expenses. Trial of these issues was referred to the judge who had presided over the divorce.
Aroesty filed a motion, dated September 21, 2000, seeking leave to amend the August 14, 2000, contempt complaint to include a request that Cohen be found in criminal contempt. The motion refers to an attached proposed order, but no order appears in the record. Following a trial, conducted on October 4, and December 18, 2000, Cohen was adjudged in contempt.
2. Discussion, a. Timeliness of appeal. Aroesty’s claim that the appeal must be dismissed because notice of it was not timely
The contempt judgment (which is designated as “Event No. 15” on the docket) was rendered on August 13, 2001, and notice of it sent to the parties soon after.
We conclude that Cohen’s notice of appeal — accepted for filing on June 25, 2002, after entry of the judgment (as reflected by the numerical order of the events on the docket, see Mass.R. Dom.Rel.P. 79[a]) — was timely.
That Cohen also filed a motion seeking reconsideration of the
b. Criminal contempt. Some of Cohen’s claims as to the deficiencies in the criminal contempt proceeding have merit,
The judgment from which Cohen appeals provides: “The Defendant is found guilty of both civil and criminal contempt of Court. He is sentenced to jail for sixty (60) days or until he purges himself of all of these Contempts of Court.” Despite the reference to a “criminal” adjudication of contempt, however, the sole sanction imposed on Cohen was a sentence that was terminable upon payment of the amounts due to Aroesty. That sentence was suspended for seven weeks, at the end of which the parties were to appear at a hearing “to report on the status of payments.” It appears that the adjudication and orders were
Moreover, the probate judge found that Cohen had the present ability to pay, which is a prerequisite to a finding of civil, but not criminal, contempt. See Sodones v. Sodones, 366 Mass. 121, 130 (1974); Salvesen v. Salvesen, 370 Mass. 608, 611 (1976). Thus, “the contempt was dealt with civilly, and in no respect criminally.” Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 348 (1946).
Claiming that the proceeding was both criminal and civil, Cohen argues that the civil component of the judgment cannot be upheld because, in a contempt proceeding that is criminal even in part, the criminal feature is dominant and fixes the character of the trial. See Furtado v. Furtado, supra at 142. We think that Cohen’s reliance on Furtado for this proposition is misplaced. Even supposing that the motion to amend had been acted on, and Cohen given notice that the proceeding would also be one for criminal contempt, counsel for Aroesty did not press at trial for a punitive sentence of imprisonment and the trial judge imposed only a remedial order (a sixty-day sentence that could be purged on payment). It is only when a defendant is properly subject to both a criminal and a civil sanction that the trial must afford the defendant all of “the protections normally accorded to criminal defendants under the law of the Commonwealth.” Ibid. We also think that, even had Aroesty demanded that Cohen be punished in a manner consistent with that of a criminal contempt and the judge had imposed a jail sentence that was not subject to being purged on payment of the
c. Civil contempt. The trial judge found that Cohen, a real estate attorney and partner in a law firm, was earning “at [a] minimum,” $120,000 per year, and did not credit his testimony that he was earning less. She also found that his assets “closely approximate[] the amount he owes for the Children’s tuition.” She was not required to accept as credible Cohen’s testimony or that of his witnesses. Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). The judge’s findings that at the time the contempt judgment issued, Cohen had the present ability to pay the amounts due under the divorce judgment, were sufficiently supported by the evidence. Sodones v. Sodones, supra at 130.
d. Attorney’s fees. The contempt judgment awarded Aroesty her attorney’s fees in the amount of $37,543.13.
We think that these were not amounts that appropriately should have been included in the award, and as a result, we will vacate the award and remand for findings and an award that reflects consideration of the conservative principles appropriate to an award of fees in these circumstances.
So ordered.
Specifically, Cohen claims that he was (1) not informed that the proceeding would be criminal in nature; (2) called to testify against himself; (3) denied the right to competent counsel; (4) denied a trial by jury; and (5) not given a reasonable opportunity to meet the charges against him. He also claims there was error in the findings and the admission of evidence; the burden of proof was erroneously applied; and the award of attorney’s fees was unreasonable.
The docket reflects that a judgment nisi dated November 18, 1999, was entered on November 24, 1999. The judgment was vacated on January 4, 2000, and a new divorce judgment issued “as of November 18, 1999.” This new judgment, entered on the docket on June 29, 2000, see note 5, infra, is identical to the first except that it provides for incorporation of “a permanent Chapter 208, Section 18 Restraining Order against the husband” whereas the vacated judgment referred to “a permanent Chapter 209A Restraining Order.”
Cohen, an attorney practicing primarily in the field of real estate law, was earning $132,000 per year at the time of the divorce, $30,000 less than his earnings for the preceding year. His income had been twice that for the years 1993 through 1995. At the time of the divorce, Aroesty was earning $42,000 per year as assistant director of annual funds at Brandéis University.
Neither the date the judgment was rendered nor the date notice was sent to the parties is relevant to our determination. See Brown v. Quinn, 406 Mass. 641, 643 (1990) (provision that clerk is to send notice is merely for the convenience of litigants and does not relieve the parties of their procedural obligations); Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 571-572 (1993) (“Time for filing the [notice of appeal] did not run from the date when the judgment was rendered . . . but from the date of the entry of that judgment on the docket”).
The notice of appeal also contains a handwritten date in the right margin, “9/11/01,” that is not initialed. If the notice had been filed on that date, see Mass.R.Dom.Rel.P. 77(d), it would have been premature. See Mass.R.A.P. 4(a). It is apparent that assignment of the June 25, 2002, filing date — which appears to have no bearing on the actual date on which the notice of appeal was received by the court — was made to avoid any unfair consequences resulting from the delay in recording the judgment. It would of course have been better had the judgment been entered as required by Mass.R.Dom.Rel.P. 58 (requiring judgment to be prepared “forthwith,” “promptly” approved, and
It is highly unlikely that a motion to amend that was not acted on will in any circumstances provide sufficient notice to a defendant that the proceeding is to be criminal in nature. Assuming that notice was sufficient and that all the parties and the trial judge were thus aware that Cohen was “entitled to the protections normally accorded to criminal defendants under the law of the Commonwealth,” Furtado v. Furtado, 380 Mass. 137, 142 (1980), Aroesty’s attorney should not have been permitted to call Cohen as the first witness to testify against himself. Ibid.
Regarding his asserted right to a jury trial, for example, it is settled that “[(¡here is no constitutional right to a jury trial in a criminal contempt proceeding in which the penalty is six months’ imprisonment or less.” Edgar v. Edgar, 403 Mass. 616, 618 (1988).
The August 14, 2000, contempt complaint is not designated as either a civil or criminal contempt, but because it seeks an order that Cohen “be held in the county jail until such time as he purges himself of this contempt,” it is civil in nature. See discussion, infra.
Although Aroesty requested expenses as well as attorney’s fees, only attorney’s fees were awarded. The judge acknowledged in her rulings of law that G. L. c. 215, § 34A, permits an award of both.
Aroesty’s attorney deducted from his total time charges the $4,500 that the parties’ had stipulated Cohen would pay in connection with the February contempt, but this does not entirely address our concern that the award was
If, on remand, expenses are awarded, see note 9, supra, such an award should be based on the same conservative principles as attorney’s fees. We note that in addition to itemized expenses for service of summonses, stenographers, and the cost of sending facsimiles, which are passed on to the client, Aroesty’s attorney charges “five percent of the hourly time each month as a general administrative fee,” in lieu of itemized charges for expenses such as long distance telephone calls, local in-hand delivery, and postage. In connection with the subject contempt proceeding, this category of expense, identified solely as “general administrative,” was $1,739.34. Even if the method employed by Areosty’s attorney to recover expenses is one that prevails in the matrimonial bar (there is no indication in the record that it does), we are reluctant to approve it as reasonable when employed against one who has not agreed to it. Only the actual, reasonable costs of an expense that was reasonably incurred in connection with the prosecution of the civil contempt matter should be assessed against Cohen. See ABA Annotated Model Rules of Professional Conduct rule 1.5, comment [1] (5th ed. 2003) (attorney’s charges for services performed in-house should reflect “a reasonable amount to which the client has agreed in advance or ... an amount that reasonably reflects the costs incurred by the” attorney). Cf. Mass.R.Prof.C. 1.5, as amended, 432 Mass. 1301 (2000).
We question the assumed reasonableness of a $5,000 “per diem” rate, reflected in the detail of services. In his affidavit, Aroesty’s attorney states he charged her $350 per hour for work in, and $400 for work outside of, the office. Even assuming that those rates were reasonable for the work performed, because the per diem charge does not reflect the amount of time actually expended on Aroesty’s behalf, nor the specific nature of the services rendered, the reasonableness of the charge cannot be assessed. See ABA Annotated Model Rules of Professional Conduct rule 1.5.
The factors to be considered are set forth in Robbins v. Robbins, 19 Mass. App. Ct. 538, 543 n.9 (1985), in which we quoted from Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933) (“ ‘In determining what is a fair
Aroesty’s request for appellate attorney’s fees and costs is denied.