Attorney Nicole K. Levy reviews a recent Massachusetts Appeals Court decision that may include an incorrect legal standard.
This blog started out as an analysis of recent unpublished Appeals Court decision, Ceurvels v. Murphy (2018), which provided a useful jumping off point for discussing informal agreements to reduce child support, which are problematic under Massachusetts law. As the blog proceeded, however, another issue came to the forefront: a possible error of law in the Appeals Court decision itself.
In an effort to cover both subjects, I have broken the blog into two parts. In Part 1, I discuss the issue of informal agreements to reduce child support, and the (very) limited circumstances in which Massachusetts courts might enforce such agreements. In Part 2 of the blog, I review a potential error that I detected in the recent unpublished Appeals Court opinion, Ceurvels v. Murphy (2018).
Part 1. The Problematic Nature of Informal Agreements to Modify Child Support
Once judgement enters for child support in Massachusetts, any agreement between the parents to reduce child support must generally be approved by a judge in order to be enforceable. Informal, “out of court” agreements between parties to reduce child support are not usually enforceable. This is because a statute, G. L. c. 119A, § 13(a), prohibits Massachusetts Probate Court Judges from retroactively modifying any child support obligations or child support arrearage that accrued prior to the filing a of Complaint for Modification. In other words, unless parties take steps to have their child support agreement formally entered by a court as part of a modification case, the original child support order will remain in effect, regardless of any informal agreement between the parties to reduce child support.
We blogged about the narrow exception to the unenforceability of informal child support agreements around the time the Appeals Court decision in Rosen v. Rosen (2016) case was announced. Today, we will look at another case that seems to provide an exception – or at least a way around – the ordinary rule that informal child support agreements are not enforceable.
Ceurvels v. Murphy: Inability to Pay and Informal Agreements to Reduce Child Support
In a recent unpublished decision, Ceurvels v. Murphy (2018), the Massachusetts Appeals Court held that a father was not in contempt for failing to pay child support to the mother after the parties entered an informal agreement to reduce child support that was never entered as an order by the Court. In its decision, the Appeals Court cited the Rosen opinion, noting that ordinarily, “an agreement to reduce child support that has not been approved by the court cannot constitute a defense to a complaint for civil contempt.”
As we will discuss further below, the Rosen case created a very narrow exception to the ordinary rule against the enforceability of informal child support agreements. In Ceurvels, the parties entered a divorce settlement that required the father to pay $500 per week. At a hearing on the mother’s post-divorce Complaint for Contempt, the father admitted to paying as little as $250 per week at times. The Appeals Court record suggests that the father’s underpayment was the result of an informal agreement with the mother to reduce child support which was never entered as an order in the probate and family court.
The narrow exception presented in the Rosen case was not present in the Ceurvels case. However, the father in Ceurvels still avoided being found in contempt for failing to pay back child support. The key argument in the father’s case was his defense that he lacked the ability to pay to pay the current child support of $500 per week and/or the arrears that had accrued since he alleged the mother had agreed to accept less child support. In its analysis, the Appeals Court noted:
In addition to establishing that the father was in "disobedience of a clear and unequivocal command," the mother also bore the burden of establishing that the father had a present ability to pay. Birchall, petitioner, 454 Mass. 837, 852-853 (2009), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997).
(The Appeals Court’s reliance on the Birchall standard may not have been appropriate. It is not clear, however, if an inappropriate application of the Birchall standard affected the outcome of the case. I discuss this issue in Part 2 of the blog below. The remainder of Part 1 maintains the focus on informal agreements to reduce child support.)
The Court went on to find that the mother failed to present evidence to the trial court proving that the Father had the ability to pay:
[T]he father testified that he was unemployed and unable to meet the financial obligations to which he agreed in the divorce settlement. This testimony is uncontroverted. Additionally, as conceded by the mother, she did not establish the extent of the father's unpaid child support, nor the time periods he had failed to pay the full amount. On this record, therefore, we cannot conclude the judge abused his discretion in finding that the mother had failed to establish that the father was in contempt.
The mother, who represented herself at the hearing (but had an appellate attorney), argued that the trial court judge abused his discretion by failing to schedule the contempt for an evidentiary hearing, but the Appeals Court noted that the mother needed to object to the lack of an evidentiary hearing when the parties appeared before the court for the original contempt hearing. The Appeals Court also noted:
[T]he judge gave the mother ample opportunity to supplement the record, which resulted in the mother raising additional issues once the judge began winding down the hearing but did not result in the proffer of any other evidence regarding the father's finances or his nonpayment.
The Risks Associated with Informal Agreements to Reduce Child Support
When we consider the risks involved with informal child support agreements, most of the risk falls on the party who is paying child support at a reduced rate. When child support payers enter informal agreements to pay reduced child support, they often assume that the recipient will be required to honor the agreement if the parties later return to Court. In the vast majority of cases, however, the child support payer is in for a rude awakening: The Court is unlikely to enforce an informal agreement to reduce child support, and the payer will be on the hook for all of the unpaid arrears that have built up while he or she has paid child support at a reduced rate.
As noted above, in 2016’s Rosen decision, the Appeals Court created a narrow exception to the ordinary rule against enforcing informal agreements to reduce child support. In order to satisfy the Rosen exception, however, a child support payer must meet every element of a rigorous, six-part test:
[T]he support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child’s best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient.
In most cases involving informal agreements to reduce child support, the Rosen exception/defense simply isn’t available. However, the Ceurvels decision demonstrates that the risk is not totally one-sided when parties enter informal agreements to reduce child support. Ceurvels shows that a child support recipient who agrees to accept less child support than provided in a judgement also faces some risk.
Inability to Pay Defense and Informal Child Support Agreement: What’s the Connection?
Under Massachusetts law, a party cannot be found in contempt for failing to pay child support if he or she lacks the ability to pay the child support owed. If a parent receiving child support has agreed to allow the other parent to pay child support at a reduced rate for a lengthy period of time, the natural consequence is large child support arrears. The larger the child support arrears, the easier it may be for a defendant to claim he or she lacks the ability to pay the child support is due in a contempt case.
Judges might not be able to enforce informal agreements for reduced child support, but they will often have more sympathy for a defendant whose failure to pay full child support was part of an agreement with the child support recipient versus a party who unilaterally decreases child support payments. Similarly, judges may be more skeptical to plaintiffs who agreed to accept less child support, only to change their mind and seek the arrears at a later date. (Nothing in the Appeals Court’s recitation of facts suggests these issues were present in Ceurvels; indeed, the Appeals Court decision suggests that the parties had an agreement to reduce child support, but provides no further details.)
Part 2: Did the Ceurvels Decision Contain A Rare Legal Error from the Appeals Court?
The Ceurvels opinion is notable because it may contain a rare legal error from the Appeals Court. The Appeals Court decision includes the following statement of law and citation:
In addition to establishing that the father was in "disobedience of a clear and unequivocal command," the mother also bore the burden of establishing that the father had a present ability to pay. Birchall, petitioner, 454 Mass. 837, 852-853 (2009), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). (Emphasis added.)
However, the Appeals Court assertion – that a plaintiff in a contempt for non-payment of child support has the burden of proving the defendant’s ability to pay child support – seems to be contradicted by the plain terms of the Massachusetts contempt statute, G.L. c. 215, § 34, which indicates that it is the defendant who must prove that he or she has an inability to pay child support:
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.
So which legal standard is correct for proving an inability to pay child support? Is it the Birchall standard, which places the burden for proving an inability to pay on the plaintiff? Or is it G.L. c. 215, § 34, which explicitly places the burden of proof on the defendant?
As a matter of common law, the burden of proof for civil contempt in ordinary commercial cases, like in the supplementary process setting, is on the complainant. See, e.g., Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997); United States Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279, 282 (1963). The Legislature has assigned a different burden, however, in family law matters concerning, for instance, arrearages in alimony and child support. See G. L. c. 215, § 34 ("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 pre-existing order or judgment of which the complaint alleges violation"); Diver v. Diver, 402 Mass. 599, 603 (1988); R.W. Bishop, Prima Facie Case § 63.3, at 299 (5th ed. 2005). (Emphasis added.)
The Birchall decision entered in 2009. Since 2009, other published and unpublished Appeals Court decisions seem to have affirmed that the burden of proof for showing an inability to pay child support falls on the defendant, as required under G.L. c. 215, § 34, and not on the plaintiff, per Birchall. For example, in MM v. DA (2011), the Appeals Court noted in a child support arrearage case, “that it was the father's burden, as he acknowledges, to show an inability to pay”. Similarly, in PTC v. BKG (2013), the Court cited G.L. c. 215, § 34 as the legal standard after a father failed to pay court-ordered legal fees:
The father had the burden of proving that he was incapable of complying with the order. See G. L. c. 215, § 34; Diver v. Diver, 402 Mass. 599, 603 (1988). `[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.' Diver, supra.
Similarly, the Court noted the following in Elsaid v. Elsaid (2014):
At the hearing on a complaint for civil contempt, the defendant has the burden of proving his or her inability to comply with the preexisting order or judgment of which the complaint alleges violation. See G. L. c. 215, § 34.
To be clear, this blog is merely an informational review of the case law. The author has not briefed of issue of the Birchall standard vs. the applicability of G.L. c. 215, § 34 to inability to pay arguments in child support cases. These are complex issues, and a complete analysis of the legal standard would exceed the scope of an informational blog. Assuming, however, that G. L. c. 215, § 34 should have assigned the burden of proof in the Ceurvels case to the father, this may have impacted the Court's analysis - if not the final outcome of the case - in significant ways.
Could Ceurvels Have Been Decided Differently on Appeal?
In Ceurvels, the core of the Appeals Court’s analysis of the contempt issue focused on the plaintiff mother’s failure to meet her burden of proof to show that the father had the ability to pay the child support order:
Although the judge did not include any comment about the mother's lack of proof on this element in the rationale for his judgment, the father testified that he was unemployed and unable to meet the financial obligations to which he agreed in the divorce settlement. This testimony is uncontroverted. Additionally, as conceded by the mother, she did not establish the extent of the father's unpaid child support, nor the time periods he had failed to pay the full amount. On this record, therefore, we cannot conclude the judge abused his discretion in finding that the mother had failed to establish that the father was in contempt.
As noted above, the case law suggests that the burden to prove an inability to pay falls on a child support payer under G.L. c. 215, § 34. It is unclear from the text of the decision whether the Appeals Court would have found that the father met his burden to prove an inability to pay child support, if G.L. c. 215, § 34 were the applicable standard. The Court simply did not analyze the facts from this perspective. If we contrast the analysis in Ceurvels with another case, Dolansky v. Dolansky (2013), the differences appear somewhat problematic:
While asserting that there was no evidence at the contempt hearing (which he did not attend) concerning his ability to pay the alimony and attorney's fees arrearages, the husband glosses over the burden of proof on the issue. General Laws c. 215, § 34, inserted by St. 1982, c. 328, provides that `[ a]t the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges violation.' See Diver v. Diver, 402 Mass. 599, 603 (1988) ('burden of proof on the ability issue is on the defendant'). `Upon a showing that a defendant in a civil contempt proceeding is in arrears on his adjudicated support obligations, the defendant must come forward with evidence of a present inability to comply with the order or judgment, and if no such proof of inability is forthcoming the defendant can be found in civil contempt.' Poras v. Pauling, 70 Mass. App. Ct. 535, 540 (2007), quoting from Kindregan & Inker, Family Law & Practice §§ 72:3, 72:4 (3d ed. 2002). The husband has failed to meet his burden demonstrating that he is unable to comply with the court order. The judge did not err in finding him in contempt. (Emphasis added.)
Again, it is very possible that the Appeals Court could have found that the father in Ceurvels met his burden of proof to establish that he lacked the ability to pay the child support order. After all, the Court notes that the mother in Ceurvels offered no evidence or testimony to counter the father’s claim that he lacked the ability to pay. However, if the burden properly belonged to the father, it is also possible that this could change the Court's analysis to alter the outcome.
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.