DocketNumber: No. 04-P-1545
Citation Numbers: 65 Mass. App. Ct. 537, 842 N.E.2d 461, 2006 Mass. App. LEXIS 144
Judges: Katzmann
Filed Date: 2/15/2006
Status: Precedential
Modified Date: 10/18/2024
Shirley A. Mahoney appeals from a judgment of the Probate and Family Court holding her in civil contempt for failing to comply with an earlier order of the court providing for the disposition of the former marital home. She claims that she was denied her right to an evidentiary hearing and that the judge should have granted her motion to dismiss the contempt complaint. We affirm the denial of the motion to dismiss, but we vacate the judgment of contempt and remand the case to the Probate and Family Court for an evidentiary hearing.
Background. On April 23, 2004, Christopher A. Mahoney
The judge held a hearing on May 20, 2004. At the hearing, the parties, through representations and offers of proof of their respective counsel, presented two markedly different versions of the relevant facts. Christopher’s counsel claimed that Shirley refused to sell the property as agreed. Counsel explained that the quitclaim deed and check were part of a postseparation refinancing agreement to remove some of the equity in the property to pay off marital debts. Counsel stated that Christopher’s name was taken off the mortgage to allow him to purchase another home, and that each party took out approximately $15,000 from the equity in the house to pay preexisting credit card debt. Counsel also claimed that Christopher did not believe that he was transferring all of his interest in the property through the deed.
In response, Shirley’s counsel claimed that the deed and the check for $16,000 were products of a simple negotiation that satisfied the order of the separation agreement. Counsel focused on the statement on the deed that the property was sold for “other good and valuable consideration.” Counsel contended that this language represented their negotiated agreement by which Shirley received the property and Christopher received (1) the check for $16,000; (2) removal of his name from the mortgage; (3) payment of his half of the sewer bond; and an agreement (4) that Christopher need not pay his share of the children’s activities or home improvements, and (5) that he need not turn over one-half of the interest in his 401K plan. Counsel argued that these benefits compensated Christopher for his share of the equity in the property and, thus, that Shirley had complied with the separation agreement.
While Christopher’s counsel was in the midst of responding to claims articulated by opposing counsel, the judge concluded the hearing and stated that she would take the matter under advisement.
Discussion. Shirley contends that the judge should have held an evidentiary hearing before ruling on the merits of the
We begin with basic principles. “To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” Kraft v. Police Commr. of Boston, 417 Mass. 235, 239 (1994), quoting from United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 36 (1972). A complaint for civil contempt is “ ‘intended to achieve compliance with the court’s orders for the benefit of the complainant.’ Furtado v. Furtado, 380 Mass. 137, 141 (1980).” Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000). Contempt proceedings must satisfy the strictures of due process. See Sodones v. Sodones, 366 Mass. 121, 128 (1974); Milano v. Hingham Sportswear Co., 366 Mass. 376, 379 (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 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.’ In re Oliver, 333 U.S. 257, 275 (1948).” Sodones, 366 Mass. at 127. “A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial.” Milano, supra. “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.” Ibid.
Christopher contends that Shirley waived an evidentiary hearing. To be sure, under certain circumstances a judge may properly rule on a complaint for contempt without an evidentiary hearing, or without receiving live testimony. See Harper v. Harper, 329 Mass. 85, 88 (1952); Cooper v. Cooper, 43 Mass. App. Ct. 51, 57 (1997). Typically, in such cases, material facts are not in dispute. See Milano, supra (right to hearing waived where no factual disputes and attorney did not request hearing or object); Kraft, 417 Mass. at 241 (right to evidentiary hearing waived on contempt complaint). In some cases, an evidentiary
Applying these principles to this case, we conclude that Shirley did not waive her right to an evidentiary hearing. This is not a case where a party waived its right to an evidentiary hearing because it knowingly failed to assert that right when presented with the opportunity to exercise it.
Conclusion. We affirm the denial of Shirley’s motion to dismiss. We vacate the judgment of civil contempt and remand for an evidentiary hearing on the merits of the contempt complaint.
So ordered.
Henceforth, in the interest of clarity, we shall refer to the parties by their first names. We intend no disrespect by this nomenclature.
The separation agreement provided as follows:
“Shirley shall have the first option to buy out [Christopher’s] 50 percent interest in the home by refinancing on or before June 30, 2003. ... If Shirley is not able [to buy] out [Christopher’s] interest, by June 30, 2003, the premises shall be placed on the market and sold with the parties splitting the proceeds 50-50.”
Neither party was represented by counsel during this transaction.
Christopher’s counsel also suggested that an evidentiary hearing be held to resolve some of the factual disputes.
Shirley’s counsel then entered into a brief colloquy with the court concerning the deed, after which he stated: “Judge, if that is the case then I won’t say anymore. I think you understand my position.”
The docket sheet entry for May 20, 2004, the date of the hearing, indicates only that a hearing on a motion to dismiss took place.
We do not reach the merits of such a claim.
There appear to be a number of other outstanding factual issues. For example, Shirley claims to be able to prove that a comprehensive list of the items Christopher has received in exchange for the house will show that she has complied with the separation agreement. Christopher claims that he can demonstrate that Shirley failed either to appraise and buy the property or to sell it outright.
Christopher’s request for appellate attorney’s fees is denied.