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Complaints for Contempt in Massachusetts: A Comprehensive Review of the Law of Contempt Actions in the Probate & Family Court

Massachusetts divorce lawyer Nicole K. Levy provides a comprehensive review of the legal standards used to determine a Complaint for Contempt in Massachusetts Probate and Family Courts.

Today is Part 1 of our blog series on Complaints for Contempt in Massachusetts Probate and Family Courts. Today’s blog (Part 1) provides a comprehensive overview of the law surrounding contempt actions filed in Massachusetts Probate & Family Courts. Check out Part 2 for our review of Complaints for Contempt for violations of visitation and custody orders in Massachusetts and Part 3 for our review for Complaints for Contempt violations of financial orders in Massachusetts.

Introduction to Massachusetts Contempt

Every Massachusetts resident whose been involved with a Probate and Family Court case eventually hears the dreaded word: contempt. The court’s contempt powers are the means by which a probate court judge enforces his or her orders. Defendants who are found “in contempt” can face a wide variety of penalties, from an order compelling the payment of the plaintiff’s legal fees, to a change in physical custody over their children, to a jail sentence. In some cases, multiple complaints for contempt are filed, some of which are heard independently, while others are merged with open litigation.

A complaint for contempt addresses non-compliance with any order, including temporary orders and final judgments. In the probate and family court, most contempt actions are civil in nature. Unlike criminal contempt, which focuses on punishment, civil contempt is designed to (a.) coerce a defendant into complying with the order and (b.) provide a remedy to the plaintiff for the violation. As the Supreme Judicial Court held in Furtado v. Furtado (1980), “[c]ivil contempt proceedings are ‘remedial and coercive,’ [and are] intended to achieve compliance with the court’s orders for the benefit of the complainant.” Simply put, knowing the ins and out of contempt proceedings is an important part of litigating in the probate and family court.

Simply put, if either party involved violates a court order, that party may be considered being in contempt of court. This includes actions such as failing to pay alimony or child support, failing to fulfill or denying visitation, refusing to pay on the mortgage, and any other refusals of court mandates.

This blog explores the legal standards used by Massachusetts probate and family court judges in contempt actions. The blog reviews the burden of proof in contempt actions, the two-pronged test for determining contempt decisions, some common defenses to contempt, and some of the tactical and strategic nuances of litigating contempt actions in Massachusetts probate and family courts.

Part 1: Plaintiff’s Burden of Proof: Clear and Convincing Evidence of Defendant’s Contempt

In the case of In re Birchall (2009), the Supreme Judicial Court explained the legal standard for contempt actions in Massachusetts as follows: “we require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall represented a tightening of the burden of proof in contempt cases. Prior to the decision, “the standard was a clear and undoubted disobedience of a clear and unequivocal command, proved by a preponderance of the evidence.” However, the phrase “clear and convincing evidence” is poorly defined under Massachusetts law. Here is what we know: in an ordinary civil case, the winning party must prove its case by a “preponderance of the evidence”. This means that one party need only prove that his or her position was more likely to be correct than the opponents. Thus, if the jury felt 51% sure than the plaintiff should win correct – and 49% convinced the defendant should win – then the plaintiff would prevail, because his or her case was slightly better than the defendant’s case.

In contrast, in a criminal case, the state must prove a defendant’s guilt “beyond a reasonable doubt”. This is a far more difficult threshold to meet than “preponderance of the evidence.” A judge or jury must find a defendant “not guilty”, in a criminal case, if the fact-finder has any reasonable doubt at all regarding the defendant’s guilt. Accordingly, “preponderance of the evidence” and “beyond a reasonable doubt” stand at opposite extremes in terms of evidentiary burdens. Preponderance of the evidence is a relatively low, easy to meet standard, requiring less persuasive evidence. Beyond a reasonable doubt is a high, difficult to meet standard, requiring much more persuasive evidence. The “clear and convincing” standard used in contempt cases is the often the ignored “middle-step-child” of legal standards in Massachusetts. It is largely defined as falling somewhere between a “preponderance of the evidence” and “beyond a reasonable doubt”.

Table of Contents for this Blog:

  • a. Clear and Convincing Case Law: Mostly Drawn from Care and Protection Cases
  • b. Order Cannot Contain Gaps or Omissions
  • c. Order Must Provide Notice of Prohibited Conduct of Defendant
  • d. Order Must Generally be Clear on its Face
  • e. Order Cannot Have Multiple Meanings
  • f. Order Must be Unambiguous when Applied to the Specific Circumstances
  • g. Willful Disobedience Not Required
  • h. A Sometimes Blurry Line: “Ambiguous Orders” vs. “Clear Disobedience”
  • i. The Hoort Methodology
  • j. Defense of Inability to Comply / Inability to Pay / Necessity
  • k. Defense of Consent/Waiver
  • Related Blogs: (1.) Contempt Actions Involving Financial Orders and (2.) Contempt Actions Involving Visitation/Parenting Orders

Clear and Convincing Case Law: Mostly Drawn from Care and Protection Cases

The limited case law we have defining “clear and convincing” evidence is rather thin, since the legal standard is only applies to a narrow slice of Massachusetts cases. Indeed, most of the law surrounding the “clear and convincing evidence” standard is found in care and protection cases in which the Department of Children and Families has taken custody of children from parents who are deemed “unfit” by a juvenile court judge.

In Adoption of Iris (1997), the Appeals Court remarked that when applying the clear and convincing standard, the “requisite proof must be strong and positive; it must be ‘full, clear and decisive’”. In Adoption of Zoltan (2008), the Court said, “[t]o be clear and convincing, the ‘evidence must be sufficient to convey a high degree of probability’ that the proposition is true.” In the context of contempt proceedings, appellate courts have similarly suggested that the “clear and convincing” standard requires a strong showing of evidence by the plaintiff. For example, in City of Worchester v. College Hill Properties (2011) the Appeals Court held that a plaintiff carries a “burden to prove the defendants’ … clear and undoubted disobedience of a clear and unequivocal command … by clear and convincing evidence”. Merriam-Webster defines “undoubted” as “definitely true or existing” and “unequivocal” as “very strong and clear” and “not showing or allowing any doubt”. In truth, however, most appellate opinions reviewing probate court findings of contempt simply recite the “clear and convincing” standard. Few, if any, contempt opinions take the time to explain what the standard really means. We’ll probably never know exactly what “clear and convincing” means beyond acknowledging its middle position between the much better understood “preponderance” and “beyond a reasonable doubt” standards. Common sense tells us that a plaintiff must present fairly persuasive evidence to prove that a defendant should be found in contempt, however.

Part 2: The Order the Defendant is Alleged to have Violated Must be Clear and Unambiguous

In every contempt case, a plaintiff must satisfy a two-part test: (1.) that the defendant was required to act or refrain from acting by a clear and unequivocal order and (2.) that the defendant engaged in a clear and undoubted disobedience of the order. We will start by focusing on the first prong of the test: the requirement of a clear and unequivocal order. As the Supreme Judicial Court held in Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation (No. 1) (1997), “Where the order is ambiguous … there cannot be a finding of contempt.” What does “ambiguous” mean in this context? The SJC defined he term in the following way in Bercume v. Bercume (1999): a “term is ambiguous only if it is susceptible to more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” (Remember when your attorney put so much effort into the wording of a particular section of an agreement or a stipulation, to the point where your eyes glazed over? This is why. When it comes to the meaning of a particular order, Massachusetts law says: there can be only one.)

The clarity of language in a final stipulation, separation agreement or judgment is critical for the parties to understand their rights and obligations. Clarity is equally necessary for a future judge to determine whether a party should be found in contempt for violating an order set forth in the instrument. As the Appeals Court remarked in Sax v. Sax (2002):

In the end, ‘[a] final decree should be as definite and certain as the circumstances allow in order that a defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree.’

The same holds true for temporary orders, restraining orders and preliminary injunctions. Whenever a party is compelled to act (or not act) by a court, the order must be clear and unambiguous to be enforceable in contempt proceedings.

a. Order Cannot Contain Gaps or Omissions

A clear and unequivocal order leaves no room for interpretation. If your parenting schedule says, “Father shall pick up the children after soccer at 2:30 p.m. on Wednesdays and have parenting time until 6:00 p.m.”, what happens if there is no soccer? If your child support order says, “the parties shall share equally in agreed upon extracurricular activities”, what happens if one party will not agree to contribute to a cost? If you are sharing the cost of your children’s uninsured medical expenses – but there is no date by which reimbursement must be made – what happens if the other party fails to reimburse you within 60 days?

The hypotheticals above are all examples of orders that contain gaps. Such orders can be binding, so long as the behavior of the parties remains restricted to the limited scope of the order. In the first example, the order is not ambiguous as long as there is soccer practice on a Wednesday. Similarly, if the parties agree to share an extracurricular expense under the second example, a party that subsequently reimburse the other party for the agreed-upon amount could be found in contempt. And in the third example, there seems little question that a party will eventually be forced to make his or her reimbursement payment for the medical expense, even without a clear deadline.

Tweak the facts just slightly in these hypotheticals, however, and the orders become ambiguous due to their lack of detail. Returning again to the first”soccer” example: does the Father get parenting time on Wednesday if there is no soccer? It is tempting to say, “the parties clearly intended for Father to have parenting time on Wednesday afternoons, so shouldn’t Father always have parenting time at 2:30 p.m. on Wednesdays?” That may be a fair interpretations, but that does not mean that Mother will be found in contempt if she fails to provide parenting time to Father on a Wednesdays afternoon without soccer practice. As the SJC held in Demoulas v. Demoulas, Supermarkets, Inc. (1997),“We have … refused to hold a defendant in contempt if, in order to do so, the scope of the underlying order would be expanded beyond its plain meaning.” Moreover, as the Appeals Court found in Sax v. Sax (2002), “Ambiguities are regularly resolved in favor of the [contempt defendant]… and cannot be removed by examining the evidence underlying the judgment in which the ambiguous language is found.”

In short, probate court judges in contempt proceedings are not supposed to “read into” poorly written orders or agreement to try and find a larger meaning beyond the words on the page. If determining the meaning of the order requires leaps or logic or a detailed knowledge of the parties’ history, then the order is generally ambiguous for the purposes of a contempt finding. As we will see below, however, parties should be aware that probate court judges have the authority to enforce orders, even if the judge does not find a party in contempt of court.

b. Order Must Provide Notice of Prohibited Conduct of Defendant

In O’Connell v. Greenwood (2003), the Appeals Court focused on the issue of noticewhen discussing the need for an unambiguous order. The Court noted that “[o]nly a clear and unequivocal order provides all who are subject to [the] order’s command [with] fair notice of a conduct the order prohibits.” Similarly, in Stabile v. Stabile (2002), the Appeals Court observed that “[i]ndefinite and uncertain language cannot support a complaint for contempt because of a lack of fair notice to the person subject to the order”. In Meranto v. Meranto (1975), the SJC explained how a lack of notice prevented the defendant from knowing his conduct was wrong:

A person cited for contempt, civil or criminal, must be given notice of the charges against him prior to the hearing on the citation. …There was here no description of specific acts in the petition, with the exception of the allegation of late support payments, and nothing in the record shows that the husband knew, prior to the beginning of the hearing, where, when, or in what manner it was claimed that he had violated the provisions of the decree…

In short, for a finding of contempt to enter, the order must be clear enough for the defendant to understand what actions he was supposed to take. The order must explain what conduct a party must (or must not) engage in with enough detail and clarity to erase all doubt. If a reasonably intelligent person would be confused by the order – or the order can be reasonably interpreted in multiple ways – then the judge is unlikely to find a party in contempt.

c. Order Must Generally be Clear on its Face

In contempt proceedings, an order’s “ambiguity” is determined strictly from the words contained in the order itself. As the SJC said in Carroll v. Hinchley, (1944), “A decree should contain within its four corners the mandate of the court without reference to other documents.” This narrow focus on the “four corners” of the document marks an important difference between contempt proceedings and civil cases involving the interpretation of ambiguous contracts. In ordinary contract cases, a court faced with an ambiguous term will attempt to determine the term’s meaning by examining the facts and circumstances surrounding the contract. The judge will a focus on determining the intent of the parties at the time the contract was made in such a case.

The Appeals Court explored the difference between contract and contempt cases in Sax v. Sax (2002):

It is true that the meaning of ambiguous contractual language, even ambiguous contractual language embodied in a judgment of divorce, generally presents a question of fact. Accordingly, if the language is ambiguous, “[e]xtrinsic evidence bearing upon the background and purpose of the parties, as well as their understanding of the meaning of particular language [they] used … may be considered both in the construction of ambiguous … language and in resolving uncertainties in applying the terms of the written contract to the subject matter.”

The cases just cited, however, all deal with claims for breach of contract. Contempt is different. In that context, vague or ambiguous language in a judicial decree will not suffice. Ambiguities are regularly resolved in favor of the alleged contemnor, and cannot be removed by examining the evidence underlying the judgment in which the ambiguous language is found.

A plaintiff in contempt proceedings must prove an order is unambiguous based strictly on the words of the order itself. However, a defendant in contempt proceedings often has more leeway to present outside evidence showing an order that seems clear on its face is actually ambiguous. We will explore some of the reasons for this seemingly preferential treatment below, but in general, we can say that contempt proceedings are weighted heavily in a defendant’s favor, where the plaintiff bears the burden of presenting “clear and convincing proof” of the contempt.

d. Order Cannot Have Multiple Meanings

In Bercume v. Bercume (1999), the SJC held that a “term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” In Sax v. Sax (2002), the Appeals Court similarly noted that an order ambiguous if it “supports more than one meaning and to the extent that those meanings place different boundaries on the action the provision prohibits”. Perhaps the easiest way for a defendant to avoid a finding of contempt is by providing the judge with a reasonable, differing interpretation of an order’s meaning compared to the plaintiff. If the judge finds that the defendant’s interpretation was reasonable, there should be no finding of contempt.

e. Order Must be Unambiguous when Applied to the Specific Circumstances

Clearly, a defendant could not be found in contempt for violating a weekly child support order if the only misconduct alleged is that the defendant failed to drop a child off at the plaintiff’s house at 8:00 p.m. It would not matter how clear the child support order is. Child support is totally unrelated to the parenting schedule.

This example seems rather obvious. However, an otherwise clear order may be deemed ambiguous if it does not specifically address the circumstances in question. For example, lets return to our hypothetical soccer order (“Father shall pick up the children after soccer at 2:30 p.m. on Wednesdays and have parenting time until 6:00 p.m.”). The order is quite clear about what should happen on Wednesdays if there is soccer practice: the father picks the child up at 2:30 p.m. What if you change the facts? Assume the child only participates in soccer after school for four months, from March to June. Is the father entitled to parenting time at 2:30 p.m. in the summer, when the child has neither school nor soccer?

Occasionally, a judge in contempt proceedings will simply ask both parties what each believes is the meaning of an order. In Sax v. Sax (2002), for example, the Appeals Court noted that even ambiguous words could be sufficiently clear for a contempt if the parties “shared a common understanding of that meaning.” However, this logic generally only applies to a single word or phrase that might hold a special meaning for the parties. For example, “medical treatment” might be ambiguous when applied to a healthy child, but parties might have a specific, shared understanding of the phrase if their child suffers from cancer. In most contempt cases, a judge will be interested in how each party interpreted an order’s meaning. A party whose interpretation is unreasonable on its face is unlikely to prevail.

The lesson is that a narrowly worded order might be clear and unambiguous if the surrounding circumstances closely match the order’s language. The more circumstances change from the order’s language, however, the more ambiguous the order becomes when applied to the parties and surrounding circumstances.

Part 3: The Defendant’s Disobedience Must be Clear and Undoubted

The second prong of the contempt standard is the requirement that the defendant’s disobedience be clear and undoubted. Before going further, we should note that although contempt is decided under a two-part test, the line between the “ambiguous order” prong and “disobedient conduct” prong is often quite blurry in practice. In Warren Gardens Housing Cooperative v. Clark (1995), the SJC remarked that in a contempt action, a plaintiff must demonstrate “what steps [defendant] was required to take” and that defendant “disobediently refrained from” taking the steps in question. In other words, to understand if “disobedience” has occurred, one must first understand the clear meaning of the order.

Let’s return to the soccer practice example above (“Father shall pick up the children after soccer at 2:30 p.m. on Wednesdays and have parenting time until 6:00 p.m.”). The order seems perfectly clear on days on which there is soccer, but offers no information about what happens on days there is no soccer practice. In order to “disobey” an order, the order must be clear enough for the court to define disobedience. If this seems like a “chicken or the egg” argument, it is not. The first prong of the contempt test comes “first” for a reason. A court must first determine that an order is unambiguous, which then allows the court to determine if the defendant’s conduct qualifies as “disobedience”. The test’s sequence matters, in other words.

a. Willful Disobedience Not Required

In Warren Gardens, the SJC also noted that when an order requires a party to take specific actions, the evidence must demonstrate the defendant “disobediently refrained from doing so”. What constitutes “disobedience” can be a thorny issue. One thing a plaintiff does not need to prove is that the defendant “wilfully” violated an order. In other words, the plaintiff does not need to prove the defendant specifically meant to violate a court order. Thus, a defendant who feels he is acting consistently with the order can be found in contempt if a judge determines that the defendant’s interpretation of the order was wrong. However, Massachusetts courts have been wobbly (for lack of a better word) on this point. In Wooters v. Wooters (2009), for example, the Appeals Court held that “the husband’s disagreement or misunderstanding of the issue does not constitute clear and undoubted disobedience of a clear and unequivocal command”. And in the recently decided Hoort v. Hoort (2014), the Court remarked that the “[t]he term ‘disobedience’ can include, but does not depend upon, a concept of wilfulness.”

What is abundantly clear is that judges do not take kindly to parties who wilfully and intentionally violate orders, not because of some misunderstanding or mistake, but out of plain defiance or disrespect for the court’s authority.

b. A Sometimes Blurry Line: “Ambiguous Orders” vs. “Clear Disobedience”

In a case like Wooters, we can see the blurring of lines between the “unambiguous order” and “clear disobedience” prongs of the contempt standard. In Wooters, the Appeals Court found that the husband’s non-compliance with the order did not constitute “disobedience” because the husband’s “misunderstanding” of the order was based on a legitimate ambiguity within the order itself. The Court found that even though the husband in Wooters was ultimately wrong in his interpretation of the order, his interpretation was no unreasonable. Therefore, there was no disobedience.

Meanwhile in Sax, the Appeals Court held that an order is ambiguous if it “supports more than one meaning and to the extent that those meanings place different boundaries on the action the provision prohibits”. As such, another way to read Wooters is that the husband could not be found in contempt because the order had “more than one meaning” and was therefore ambiguous.

The blurred lines between the two prongs of the test helps explains why the courts are unclear on how must “willfulness” should factor into findings of contempt. Clearly, the husband in Wooters “wilfully” acted based on his interpretation of the order, which turned out to be wrong. However, because the husband’s actions were based on a reasonable reading of the order, the court likely felt his actions were not willful. In contrast, an individual who simply refuses to pay child support, despite having the money, cannot argue that the order he or she is violating is subject to “multiple meanings”.

All that said, parties should be very cautious when claiming that their actions are based on an “alternate interpretation” of an order. In Lumbermens Mut. Cas. Co. v. Offices Unlimited (1995), the SJC noted that “an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other.” And in Mayer v. Medical Malpractice Joint Underwriting Assn. of Mass. (1996), the Appeals Court remarked that one party’s interpretation of insurance policy language “appear[ed] to represent a strained attempt to create ambiguity where none exists”. In short, a party cannot avoid a finding of “disobedience” simply by declaring that they believed their actions complied with their interpretation of the order. Even if such a party sincerely believes that his conduct did not violate the order, he or she can be found in contempt where “[t]he term ‘disobedience’ can include, but does not depend upon, a concept of wilfulness.” If the order is clear on its face, even an honest mistake regarding its meaning can result in a finding of contempt.

c. The Hoort Methodology

In 2014, the Appeals Court decided Hoort v. Hoort (2014). In Hoort, the Court expressed dissatisfaction with the probate court judge’s methodology in a contempt case. The Court held, “Notably absent from the findings is any reference to ‘clear and convincing evidence of disobedience’ by the husband of the terms of the temporary order.” The opinion then sought to tighten the methodology used by probate court judges in contempt cases.

Hoort does not change the two-prong test used in contempt cases of (1.) the order must be unambiguous and (2.) the disobedience must be clear. The opinion suggests a more concise approach, however. Hoort suggests that a probate court judge who finds a party in contempt should follow these steps:

  1. Determine if the order is ambiguous
  2. Specify in writing what the judge’s own interpretation of the order
  3. Define in writing how the defendant’s conduct specifically violated the order, as the order was interpreted by the judge

In Hoort, the Appeals Court reversed the probate court’s finding of contempt because the defendant’s conduct – as described in the probate court judge’s findings – appeared to satisfy the judge’s own interpretation of the order in the same findings. The Hoort decision suggests that probate court judges should take a deliberate, methodical approach to defining an order’s meaning, then applying that meaning to the parties’ specific conduct to determine whether a violation occurred.

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Part 4: Common Defenses to Contempt

The defenses to contempt are similar to those in other claims. Simply google the phrase “affirmative defenses”, and you will see myriad examples of flexible defenses, including consent (plaintiff agreed to defendant’s conduct), laches (plaintiff waited too long to file), duress (party pressured into violating order), waiver (plaintiff voluntarily waived rights) and necessity (defendant had no choice but to violate order). What we can say about affirmative defenses in general is that they often involve a degree of risk, since many defenses require a defendant to admit that he or she engaged in the conduct alleged by the plaintiff. Accordingly, most defenses are built not around denying the defendant’s conduct, but in arguing that the defendant’s conduct was justified.

Many of affirmative defenses can be effective in contempt actions. For the purposes of this blog, however, we will focus on two of the more common defenses seen in contempt actions: (a.) inability to comply/necessity and (b.) consent/waiver.

a. Defense of Inability to Comply / Inability to Pay / Necessity

Many lawyers are pleasantly surprised to find that Massachusetts actually has a clear statute regarding the defense of inability to comply in contempt proceedings. G.L. c. 215, § 34 provides:

At the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the preexisting order or judgment of which the complaint alleges violation.

In short, this means that a defendant who has failed to comply with an unambiguous order may provide evidence that he or she was unable to comply. We see this defense most commonly in child support and alimony cases in which a party argues that he or she lacks the ability to pay a financial order. “Inability to pay” is a strong defense for an individual whose financial statement demonstrates that he or she lack the means to pay the amount required under the order. However, this defense becomes more complicated if the party has some assets on his or her financial statement that could, at least in theory, be used to satisfy the order.

The classic example is a child support payor who loses his job – making it impossible for him to meet his child support from his current income – but who retains substantial 401(k) funds that could be used to satisfy the order. Clearly, it would not be impossible for the defendant to comply with the order if he or she were willing to withdraw funds from his or her 401(k). In this scenario, it is essential that the defendant file a Complaint for Modification seeking a reduction in support, since a judge will often reduce or eliminate support following a job loss, even if the party retains the technical “ability to pay” by raiding his or her retirement assets.

In the custody context, an “inability to comply” defense is often practical in nature. Perhaps a car broke down, or the defendant faced a massive traffic jam on the way home from work. Perhaps a flight was canceled, forcing the defendant to extend his or her vacation another day. Judges recognize that parties are not miracle workers, and will generally decline to find a party in contempt for violations arising out of events beyond the defendant’s control. However, parents must understand the limits of the inability to comply defense in the custody context. (Just because a child is sick, for example, it does not necessarily make visitation with the other parent “impossible”.)

Indeed, there are enough complexities surrounding an “inability to pay” argument that it warrants its own blog, which we will explore in our upcoming blog on financial contempts. Similarly, our blog on parenting/visitation contempts explores the “inability to comply” defense in the parenting context.

b. Defense of Consent/Waiver

In the custody and visitation context, the most common defense to contempt is often that the other party consented to a change in the parenting plan. The argument is simple: a father accused of contempt for failing to provide a child to the mother for her regularly scheduled parenting time shows the judge screen shots of a text message exchange in which the parties seemed to agree to switch the parenting schedule. Mother seemed to agree to the switch in the text messages, so why should father be found in contempt?

And yet a close examination of the text messages show father saying, “I am taking Sally to my Aunt Milly’s birthday party tonight. You can have her on Tuesday instead.” In response, the mother writes, “fine.” Notably, the father’s text messages don’t show him asking mother to change the schedule. It reads more like a demand. And at the hearing, mother argues that father routinely changes the parenting schedule unilaterally, and that she only said “fine” in this instance because she knew that arguing with the father was useless. Who wins?

(One irony of our digitally connected world is that all of the new connectivity has not really improved the quality of evidence in many probate court cases. Parties routinely present judges with disjointed text message exchanges that read more like a messy telephone transcript than a written agreement. Instead of sending an email – which shows the date/time sent, the sender and recipient, includes a clear subject and uses complete sentences – many parties insist on communicating with each other like middle schoolers. The result is exasperated judges trying to make sense of incoherent text messages that each party claims mean something different.)

In the parenting context, a consent/waiver argument is often a legitimate defense against a finding of contempt. However, the party making such an affirmative defense typically bears the burden of presenting clear evidence that his or her failure to comply with the order was legitimate. This means parties should document all changes to a parenting plan in writing, preferably by email – and preferably not by text message. For reasons we will review in our upcoming blog on financial contempts, parties should know that consent/waiver is generally not a defense in contempt actions for non-payment of child support.

Part 5. Modification of Orders in Contempt Actions

It is important to note that probate court judges have the authority to modify orders through contempt proceedings, even if neither party is found in contempt. In Cooper v. Keto (2013), the Appeals Court reviewed a judge’s authority to enforce and modify an ambiguous order through a contempt proceeding. In Cooper, the father was not found in contempt because the order in question (which was found in the parties’ divorce agreement) was ambiguous. The probate court judge accepted evidence surrounding the parties’ intent at the time of the agreement, however, and ultimately determined that the father’s conduct was inconsistent with the intent of the agreement. Again, the agreement was ambiguous, and where the father’s conduct fell short of a clear disobedience, he could not be found in contempt. Instead, the court entered orders clarifying the agreement with which the father was required to comply moving forward. Notably, the Appeals Court upheld the lower court’s order requiring the father to pay the mother’s legal fees – despite the absence of a contempt finding – where the husband’s “obstructionist conduct which prolonged the proceedings.”

Similarly, the Wooters case, mentioned above, involved a case in which the husband was not found in contempt, but where the court entered orders clarifying the parties’ ambiguous agreement in a manner that favored the wife’s interpretation. In Kennedy v. Kennedy (1983), the Appeals Court noted that “[a] Probate Court has power to modify a support order in the context of either a complaint for contempt or a complaint for modification.” Similarly, in Furtado v. Furtado (1980), the SJC affirmed a probate court judge’s authority to enter orders to compel a defendant’s compliance with the court’s order and provide restitution to the plaintiff.

It is important for parties to distinguish between a court’s finding that a party is contempt versus the orders the court may make through a contempt case. A finding of contempt represents a “black mark” on a party’s record, so to speak, for the remainder of the probate court’s involvement in that party’s life. A finding of contempt may not result in major changes to the orders affecting the parties. Indeed, cases like Cooper, Wooters and Kennedy tell us that a probate court judge has the authority to substantially modify orders, even if a party is not found in contempt. Parties and counsel must be mindful of these distinctions when determining whether filing a complaint for contempt is the right move.

Part 6. The Contempt Backlash: Approach with Caution

We will finish this blog with a word of caution on contempt filings. Our experience suggests that many judges have decidedly mixed feelings about contempt filings. Most judges feel strongly about the need to enforce the court’s orders. However, judges will also criticize plaintiffs for filing too many contempts – even if some of those filings have resulted in successful findings of contempt. Many judges find it difficult to separate the bad acts of one party – in the context of a new contempt filing – from the historic behavior of the parties during the case.

Lastly, the reality of litigation is that a contempt filing will often prompt a retaliatory contempt filing from the opposing party. Plaintiffs must carefully consider if a judge may turn against them in a contempt hearing, or if filing a contempt on a relatively minor issue is worth the risk if a defendant may retaliate with his or her own contempt filing raising a more serious issue. It is considerations like these that make consulting with a qualified attorney – rather than relying on blogs and other material from the internet – so important for individuals considering a contempt filing in probate and family court.

Related Blogs: (1.) Contempt Actions Involving Financial Orders and (2.) Contempt Actions Involving Visitation/Parenting Orders

In our upcoming blog on contempt actions involving financial orders, we will dig deeply into the unique features of financial contempts, including the availability of statutory awards of legal fees, a party’s ability to “cure” financial arrears prior to a contempt hearing, and the unenforceability of out-of-court agreements regarding child support.

Meanwhile, in our blog on contempt actions involving alleged violations of visitation/parenting plans (published 6/20/16), we explore issues including the limited remedies available to judges for enforcing visitation violations, the discretionary nature of fee awards in visitation contempts, how the absence of a “cure” remedy can affect visitation contempts, and tactical and strategic considerations in contempts involving parenting issues.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.

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