Massachusetts divorce lawyer Jason V. Owens reviews Complaints for Contempt for the violation of financial orders, including child support, alimony and asset division.
Today is Part 3 of our blog series on Complaints for Contempt in Massachusetts Probate and Family Courts. Today’s blog (Part 3) focuses on Complaints for Contempt arising out of alleged violations of monetary orders, including child support, alimony and payments arising out of the division of marital assets in Massachusetts Probate & Family Courts. Please check out Part 1 of the series for our comprehensive overview of Complaints for Contempt in Massachusetts and Part 2 for our review of Complaints for Contempt for violations of visitation and custody orders.
Part 1. Complaint for Contempt in Massachusetts: the Legal Standard
As covered in our previous blogs, the legal standard for a finding of contempt for failing to obey financial orders in Massachusetts requires a plaintiff to present “clear and convincing evidence of disobedience of a clear and unequivocal command.” Accordingly, there must be a clear and unambiguous financial order, that provides the defendant with notice of his or her financial obligations. Second, the plaintiff must provide clear and convincing evidence that the defendant disobeyed the order by failing to make the required monetary payments.
Part 2. Massachusetts Laws Specific to the Determination, Payment and Enforcement of Financial Orders in the Probate and Family Court
There are a variety of relevant statutes that give rise to financial orders in Massachusetts family law cases. These include:
- The Child Support Guidelines – Sets the amount of child support in most Massachusetts cases.
- 208, s. 28 and Ch. 209C s. 9 – The Massachusetts child support statutes for married and unmarried parents, setting the duration and terms of child support within the state.
- The Alimony Reform Act of 2011 – Sets the amount, duration and terms of alimony in Massachusetts.
- 208, s. 34 – The Massachusetts asset division statute, which provides for the division of marital assets.
- 215, s. 34 – the Massachusetts contempt statute, which sets out the authority of the probate and family court to enforce financial orders.
The vast majority of financial orders entered by Probate and Family Law cases arise out of the statutes above. These statutes form the basis of most financial orders set forth in separation agreements, stipulations for judgment, temporary orders and final judgments in Massachusetts.
Part 3. Contempt for Failure to Pay: Law Specific to Complaints for Contempt for Financial Violations
The primary Massachusetts statute dealing with the violation of financial orders in the probate court is Ch. 215, s. 34A, the Massachusetts contempt statute, which provides for legal fees and interest in cases in which a party is found in contempt for violating a financial order, which provides:
In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of [his or her] reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. The contempt judgment so entered shall include reasonable attorney’s fees and expenses unless the probate judge enters specific findings that such attorney’s fee and expenses shall not be paid by the defendant. …. Any monetary contempt judgment shall carry with it interest, from the date of filing the complaint, at the rate determined under the provisions of section six C of chapter two hundred and thirty-one of the General Laws. (Editor’s Note: the actual interest rate provided under Ch. 231, s. 6(c) is 12% per annum.)
The defining feature of Ch. 215, s. 34A is the presumption that a defendant who’s found to have violated a financial order will be required to pay the legal fees and costs of the plaintiff. As noted in prior blogs, many probate and family court judges feel an aversion to ordering legal fees, even when mandated by a presumptive statute. A common way for judges to avoid compliance with the legal fee component of Ch. 215, s. 34A is order so-called “contempt review hearings”, in which they hold that if a defendant complies with the financial order by a certain date, there is no need for the parties to return to court. Such review dates effectively allow the court to avoid finding a party in contempt, thereby eliminating the need for an order for fees (or the issuance of findings of fact explaining why fees were not required).
In any proceeding under this chapter, whether original or subsidiary, the court may, in its discretion, award costs and expenses, or either, to either party, whether or not the marital relation has terminated. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his or her counsel, or may be apportioned between them.
Part 4. Interest on Contempt Judgments
An additional statute of interest is Ch. 231, 6c, which sets the interest rate on child support and alimony arrears as follows:
In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action, provided, however, that in all actions based on contractual obligations, upon a verdict, finding or order for judgment against the commonwealth for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at a rate calculated pursuant to the provisions of section six I from the date of the breach or demand. If the date of the breach or demand is not established, such interest shall be added by the clerk of the court from the date of the commencement of the action.
Like legal fees, many judges express discomfort with ordering interest on arrears in support cases. There are a variety of reasons judges feel uncomfortable with ordering interest, with the first being that the arithmetic for calculating interest can actually be quite challenging. The math challenges are particularly present when additional arrears are accruing on a weekly basis, creating a “moving target” for judges.
In the child support context, the best way for litigants to ensure they receive interest on arrears is by using the Massachusetts Department of Revenue (DOR) to collect child support and track arrears. DOR’s authority for enforcing child support orders on behalf of Massachusetts parents is provided under 830 CMR 18.18A.1, which is part of a rather dense regulatory scheme that is partially mandated by federal law.
Part 5. Leading Massachusetts Cases Affecting Contempt of Financial Orders
For cases affecting contempt actions as a whole in Massachusetts, we recommend a look at our comprehensive blog featuring Massachusetts case law on contempt. Cases specific to financial orders frequently focus on the defense of a party’s alleged “inability to pay” the order in question. For example, in Cooper v. Keto (2013), the Court noted “[t]he defendant must have the ability to comply with the order” for contempt to lie. Of note, however, is that under G.L. c. 215, § 34, the burden shifts to a defendant to prove his or her inability to pay:
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.
Similarly, in O’Connell v. Greenwood (2003), the Appeals Court remarked that “[a] putative contemnor may no doubt avoid a finding of contempt if she meets her burden of proving her inability to comply with the relevant court order.” Despite the burden falling on a defendant to prove his or her inability to comply with a financial order, decisional law suggest that a plaintiff may be required to provide at least some evidence regarding a defendant’s ability to pay. For example, in a recent unpublished opinion, Lohnes v. Lohnes (2016), the Appeals Court vacated a finding of contempt against a defendant whose attorney had missed the contempt hearing, noting:
[I]n the absence of the husband and his counsel, the judge relied on unsworn representations by the wife’s lawyer to find that the husband was able to pay the amounts that were alleged to be in default. The husband was provided no opportunity to address his burden on the issue of ability to comply.
Clearly, the Lohnes case involved an unusual situation in which the defendant and his attorney were totally absent from the hearing in question. Nevertheless, the case suggests that a defendant is entitled to a meaningful hearing regarding his inability to pay. Parties and practitioners should also note that it can be challenging to rebut a defendant’s claim that he or she is unable to pay if his or her financial order reflects no available assets. Additional complexities arise when a defendant has the theoretical ability to pay an arrears from tax-affected assets, such as 401(k) account, but lacks employment income to pay the order.
Part 6: Issues Relating to the Calculation, Collection and Enforcement of Child Support and Alimony Arrears
As noted above, many child support recipients use the Department of Revenue to enforce and collect child support on their behalf. DOR is an outstanding resource for obtaining direct payment of child support from defendants’ employers, as well as tracking arrears and interest, but the Department is generally regarded as inferior to private attorneys when it comes to obtaining findings of contempt against non-paying defendants. Like public defenders, DOR attorneys frequently appear in Probate and Family Courts representing more than 30 plaintiffs in a single day. This makes it difficult for DOR attorneys to fully understand the facts of any one client’s case.
Parties should also be aware that there is no statute of limitations on the collection child support arrears. Child support obligations never go away in Massachusetts, and arrears can even be sought against a defendant’s estate following his or her death. Further, parties should know that under G. L. c. 119A, § 13(a), Massachusetts judges are unable to reduce child support arrears that pre-date the filing of a Complaint for Modification. Indeed, in Quinn v. Quinn (2000), the Appeals Court noted:
[G. L. c. 119A, § 13(a)] no longer permits a judge to moot or reduce arrearages for child support except for any period during which there is pending a complaint for modification.
Moreover, the Quinn court also made clear that an out of court agreement by a plaintiff to accept less child support is unenforceable if the parties failed to enter the agreement as a new order of the court. Thus, child support payors should never assume that a recipient’s waiver of child support will hold up in court if the recipient changes his or her mind, and later decides to collect. The Quinn court addressed the issue in plain terms: “we therefore conclude that the plaintiff’s agreement to accept less money than provided by the court order in this case did not constitute a defense to the plaintiff’s complaint for contempt.”
Unlike child support, case law does suggest that a defendant may reduce or eliminate an alimony arrearage that predates the filing of a Complaint for Modification. See Binder v. Binder, 7 Mass. App. Ct. 751, 760 (1979) (“A Probate Court has the power to reduce the alimony provisions of its divorce judgment retroactively, as well as prospectively…”). In Lombardi v. Lombardi (2007), the Appeals Court suggested a defendant might be able to cite a defense of laches if a plaintiff waits too long to collect alimony arrears.
Finally, it should be noted that the Massachusetts contempt statute, Ch. 215, s. 34, has several things to say about the relationship between financial arrears and the modification of support orders. Specifically, the statute provides:
An order or judgment in a contempt proceeding for payment of an arrearage shall not be contingent on a reduction in the amount of current support payable under an existing order or judgment for support of a spouse, former spouse or child absent a finding that a substantial change of circumstances has occurred. Neither the existence of an arrearage nor the amount of any arrearage shall constitute a substantial change of circumstances or grounds for modification of an outstanding order or judgment for support.
In short, the statute says that a defendant cannot cite the burden of his or her unpaid support as grounds for a reduction in current or future support payments. The defendant must provide some other evidentiary basis to reduce current support.
Part 7. Penalties for failing to Pay Support
The Massachusetts contempt statute, Ch. 215, s. 34 says the following about parties found in contempt for failing to pay financial orders:
When a judge of the probate court finds that a defendant is in civil contempt for failure to obey any order or judgment of the court relative to support of a spouse or child, the judge shall issue an order for the defendant to do one or more of the following:
(1) serve a sentence in jail; provided, however, that such sentence shall be stayed if the defendant purges himself of the contempt by taking such action as may be specified in the order, including one or more of the actions specified in clauses (2) to (6), inclusive;
(2) pay the full amount due under the order or judgment for support;
(3) make regular payments of current support and an additional specified amount towards arrears, pursuant to a payment schedule ordered by the court that requires payment of not less than the amount required under section 12 of chapter 119A and that meets all other requirements of said section 12 of said chapter 119A;
(4) actively seek paid employment and report at regular intervals, as specified in the order, to a probation officer on actions taken to seek employment;
(5) participate in a program of community service, as specified in the order, for up to 40 hours per week and report at regular intervals to a probation officer to present proof of participation in such program; or
(6) participate in an appropriate job readiness or job training program, as specified in the order, and report at regular intervals to a probation officer to present proof of participation in such program.
Among these penalties, the most underused is likely subparagraph (5), which provides that courts may order a non-working party to participate in community service if he or she is not paying support. In my experience, a 20-hour per week community service order is the most effective means of forcing an unemployed person to return to work. Invariably, a defendant who is sentenced to community service concludes that even a minimum wage job that is reduced by a support order is a better option than working for no pay at all.
The statute makes clear that non-payors of support may be sentenced to jail, so long as the order includes a “purge” amount that permits the defendant’s release if the arrearage is paid. As a practical matter, jail sentences are generally restricted to child support payors who habitually fail to pay support or find gainful employment. Many judges prefer to rely on suspended sentences that provide for incarceration if a defendant fails to pay within a short period. The problem with such orders, of course, is that police may be unable to locate a non-paying defendant seven days later.
Part 8: Collecting and Enforcing Financial Orders
The Department of Revenue has a variety of tools for enforcing child support orders, including garnishing paychecks, attaching bank accounts, suspending driver’s licenses, placing liens on homes, and intercepting tax refunds. Many of these tools work best when a defendant is employed and/or owns substantial property. DOR also has strong interstate authority, and can work with child support enforcement agencies in other states to collect arrears. Against habitually unemployed non-payors, DOR’s only tool may be tracking the arrears and calculating interest.
Notably, DOR’s collection efforts are largely limited to child support cases. To collect alimony or asset division payments, most parties must turn to a private attorney, who has different tools at his or her disposal for collecting arrears. Like DOR, attorneys can attach bank accounts. With sufficient information, however, a private attorney can often attach funds in more comprehensive, instantaneous manner than DOR. Private attorneys also tend to have superior abilities to obtain payment through seizing or liquidating other assets, including retirement accounts or real estate, when compared to DOR.
In the end, both DOR and private attorneys have strengths and weaknesses. DOR services are free, while private attorneys cost money. DOR can leverage the power of the government demand direct payment from employers, suspend driver’s licenses and intercept federal tax refunds. However, DOR is less effective when it comes to targeting specific assets, and its attorneys lack the time to pay special attention to each recipient’s case.
Part 9: Curing the Contempt
Unlike parenting orders, financial arrears can typically be “cured” at any time before a hearing a defendant. Thus, even if the defendant has failed to comply with a financial order by paying a certain amount by a certain deadline, Massachusetts law suggests that he or she cannot be found in contempt, so long as the monies are paid prior to the contempt hearing.
However, defendants who choose to wait until the last minute to cure a contempt should know that a court can enter an award for legal fees, even if there is no finding of contempt. Massachusetts has a broad statutory scheme that gives Massachusetts Probate and Family Court judges broad authority to order legal fees in family law cases on a wide variety of grounds.
Part 10. Modification of Orders in Contempt Cases
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.” However, a strict modification is only permissible if the Court finds that there is a substantial change in circumstances. Courts have greater flexibility to enter so called “remedial orders”, which are “intended to achieve compliance with the court’s orders for the benefit of the complainant.” See Furtado v. Furtado (1980). Such orders are designed to right whatever wrong the plaintiff has suffered as a result of the contempt, and to coerce the defendant into compliance with the order.
Finally, Massachusetts law permits judges to clarify ambiguous orders in contempt cases. For example, in Cooper v. Keto (2013), the Appeals Court held that although the husband’s interpretation of the parties Separation Agreement was ultimately incorrect, the husband’s misinterpretation was not so unreasonable as to qualify as “disobedience”. Thus, the husband was not found in contempt, but the court’s order of clarification provided that husband must pay the amounts sought by the wife. Similarly, in Colorio v. Marx (2008), the Appeals Court held that a judge reviewing an ambiguous order in a contempt case may clarify the order based on contract principles – which focus on the intent of the parties at the time agreement was made – to resolve the dispute over the meaning of the agreement’s language.
It should be noted, however, that all of these powers are greatly restrained in interstate child support contempt cases, if another state retains sole and exclusive jurisdiction over the modification of child support.
Part 11: Common Defenses to Financial Contempt
By far, the most common defense relied on by defendants in contempt cases involving financial orders is an alleged inability to pay. The complicating factor in such a defense often comes down to assets. For example, if a support payor loses his or her job, he or she may legitimately argue that he lacks the ability to pay support from a current stream of income. However, in Schuler v. Schuler (1981), the SJC held that capital assets may be considered in determining a defendant’s ability to pay. A recent unpublished opinion of the Appeals Court, PTC v. BKG (2013), articulates the dilemma:
The father does not contest that there was `a clear and unequivocal command and an equally clear and undoubted disobedience,’ …; he concedes that he failed to pay any of the amounts ordered. He maintains instead that `[he] must [have been] found to have the ability to pay at the time the contempt judgment enters,’ and that such proof was lacking.
The father had the burden of proving that he was incapable of complying with the order. … `[T]he judge was warranted in finding that the [father] had disobeyed [the] order. . . . Nothing in the record demonstrates that, as a matter of law, the [father] satisfied his burden of proving his inability to comply with the judge’s orders.’
The father testified at trial to a steady income from his job in the Department of Veterans Affairs. He further testified that he had previously taken on extra work to pay his child support obligations, but had not done so on this occasion. This alone was sufficient basis for a finding of contempt, as the judge was `authorized to consider the defendant’s earning capacity in setting the amounts to be paid.’ Id. at 602. In addition, his financial statement showed that he owned his own home and that he had equity in his home. Capital assets may be considered in determining the ability to pay. … In light of these facts, the judge’s determination that the father was able, but unwilling, to pay was not an abuse of discretion. We also see no abuse of discretion in the judge’s award of attorney’s fees incurred through July 29, 2010, in connection with the contempt proceedings. (Citations omitted.)
As G.L. c. 215, § 34 makes clear that a defendant has the burden of proving his or her inability to pay:
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.
For defendants, the take away is that it is very risky to present an inability of pay defense unless he or she is truly destitute. The better practice is to file a Complaint for Modification and seek a temporary order suspending or reducing child support. While a judge may have the authority to enter such a temporary order through a contempt action, the judge lacks the authority to reduce child support arrearages under Ch. 119A, s. 13.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.