ISSUE:
Is there an absolute right to an
evidentiary hearing for contempt
of court? Yes.
Discussion.
Shirley contends that the
judge should have held an evidentiary
hearing before ruling on the merits
of the contempt complaint. She
urges that where, as here, the offers
of proof of counsel reveal that
the parties disagreed vigorously
as to all pertinent facts concerning
whether one party had satisfied
the requirements of the separation
agreement and divorce judgment,
and the parties did not waive an
evidentiary hearing, the court's
failure to hold such a hearing was
reversible error.
We begin
with basic principles. "To
constitute civil contempt there
must be a clear and undoubted disobedience
of a clear and unequivocal command."
. . .A complaint for civil contempt
is "'intended to achieve compliance
with the court's orders for the
benefit of the complainant. . .
Contempt proceedings must satisfy
the strictures of due process. .
. . [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.'
. . .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."
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.
. . . Typically, in such cases,
material facts are not in dispute.
. . . In some cases, an evidentiary
hearing is deemed waived and a judgment
of contempt may be founded upon
oral representations by counsel
(at least in the absence of objection
to such a procedure). 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.
CARRIE
L. KLINGEL vs. RUSSELL REILL.
Feb.
14th SJC
THE CASE OF NOBODY LIVING IN MASSACHUSETTS
ANYMORE Does Massachusetts still have
jurisidiction?
-
The parties, formerly husband
and wife, were divorced in Massachusetts
in 1990.
-
HUSBAND MOVE OUT OF MA: In 1991,
the husband moved to Tennessee
and, thereafter, to Utah, where
he presently resides.
-
WIFE
MOVES OUT OF MA: The wife and
children remained in Massachusetts
for some time, but, as of 2002,
were residing in New York.
-
WIFE FILES FOR CONTEMPT BUT NO
JURISIDICTION: On April 10, 2002,
the wife filed a pro se complaint
for contempt in the Probate and
Family Court seeking to recover
arrearages in child support and
medical payments.
-
The husband filed a motion to
dismiss on the ground that none
of the parties resided in Massachusetts.
That motion was allowed, and the
complaint was dismissed without
prejudice.
-
WIFE MOVES BACK TO MA AND SUES
AGAIN: In March, 2003, the wife
returned to Massachusetts with
the children and resumed residence
here. Represented by counsel,
the wife filed a new complaint
for contempt on July 8, 2003,
and an amended complaint on August
22, 2003.(1)
-
The husband again moved to dismiss
the contempt complaint, arguing
that, despite the wife's return
and resumption of residence in
Massachusetts, none of the parties
had "remain[ed]" continuously
in Massachusetts. G. L. c. 209D,
§ 2-205 (a) (1).(2)
-
The motion to dismiss was denied.
The husband was found in contempt
for failure to pay child support
and medical payments over a period
of two years, resulting in total
arrearages of $38,400, and was
ordered to make monthly payments
to reduce those arrearages.
2. Discussion.
The husband argues that Massachusetts
courts lost jurisdiction over the
child support order in question
when all parties (husband, wife,
and children) left Massachusetts
and resided elsewhere, and that
the return of the wife and children
to Massachusetts did not operate
to confer jurisdiction on Massachusetts
courts. His argument is based on
G. L. c. 209D, § 2-205 (a) (1),
which provides: "A tribunal
of the commonwealth issuing a support
order consistent with the law of
the commonwealth has continuing,
exclusive jurisdiction over a child
support order: (1) as long
as the commonwealth remains the
residence of the obligor,
the individual obligee, or the child
for whose benefit the support order
is issued . . . ."
The husband contends that the term
"remains the residence"
implicitly requires that, in order
for Massachusetts courts to have
jurisdiction, there must be no interruption
in the Massachusetts residence of
at least one of the parties, i.e.,
that residence in the Commonwealth
must be continuous from the time
the support order is issued up until
the time one of the parties brings
the action based on that order.
(Rinaldo’s Notes:
the husband was using the commonsense
approach.) Thus, according
to the husband, Massachusetts lost
jurisdiction over the support order
when the wife and children moved
to New York and, despite their return
to Massachusetts, any action to
enforce that order must now be brought
in Utah, where the husband resides.
WHEN ALL ELSE FAILS,
DEPART FROM THE PLAIN WORDS OF THE
STATUTE, AND THEN CITE A PROPOSED
“UNIFORM CODE,” WHICH MASSACHUSETTS
HAS NOT ADOPTED: “General Laws c.
209D was enacted in 1995, St. 1995,
c. 5, § 87, adopting the 1992 version
of the Uniform Interstate Family
Support Act (UIFSA).”
Bottom line: She
was given jurisdiction.
RINALDO’S
NOTES: “Remains the residence” seems
to be pretty clear. I fail
to see how the husband lost this
one. NOTE
THE LOCKSTEP OF THE COURT—NOT ONE
DISSENT.
LOGICAL
MELTDOWN: “The husband
tries to support his theory that
the term "remains the residence"
requires continuous residence by
pointing to the fact that the Legislature
has not adopted more recent revisions
to § 205 of the UIFSA that would
explicitly confer jurisdiction in
the circumstances presented by this
case. In 2001, § 205(a)(1) of the
UIFSA was revised to provide that
the issuing tribunal has continuing,
exclusive jurisdiction to modify
a child support order if, "at
the time of the filing of a request
for modification this State is the
residence of the obligor, the individual
obligee, or the child for whose
benefit the support order is issued"
(emphasis added).(5) UIFSA (2001)
§ 205(a)(1), 9 (Part IB) U.L.A.
192 (Master ed. 2005). The husband
thus argues that we should not interpret
"remains the residence"
to be satisfied merely because Massachusetts
"is the residence," as
the Legislature has not adopted
this new language. However, "[l]egislative
inaction gives no instructive signal
concerning the construction of a
statute enacted by a prior Legislature
. . . ."
Wait:
·
SJC says statute
is based on UIFSA.
·
The folks
who drafted UIFSA said that in a
move-out, move-back situation, there
is no jurisdiction, and propose
change in language.
·
Massachusetts
does not use new language that would
apply to residency at time of filing,
but somehow, UIFSA includes
the new language?
·
Apparently, you can
use any logic you want. The
Mass SJC uses UIFSA to justify its
own reading of fairly clear language,
AND THEN IGNORES THE UIFSA’S OWN
INTERPRETATION OF ITS OWN STATUTE.
·
Mass
SJC states, “Moreover,
the comment to § 205(a)(1) of the
2001 UIFSA explains that the purpose
of the new language was "to
clarify the original intent"
of the drafters, not to make any
"substantive change."
So they are relying on an interpretation
that the UIFSA committee admitted
itself was not clear?
·
There’s
a lot of statement about “legislative
intent,” that apparently the SJC
has appointed itself to divine.
I see no apparent intent of the
legislature to allow a mother to
seek child support in a state that
both parties have abandoned.
COMMONWEALTH vs. JOHN R. KENDRICK.
Restraining Order Violation Case
ISSUE: We consider
here whether a probation condition
that the defendant have "no
contact" with minors under
sixteen years of age gave him sufficient
notice that he was prohibited from
displaying his antique automobile
at a car show attended by minors.
HELD: “A "no
contact" order also obligates
a person to leave the area if a
protected party appears. Happening
on a protected person whom one did
not, and could not reasonably, know
to be present is not a violation,
but the party subject to the order
must end the encounter by leaving.
. . .Therefore, a defendant could
have violated a "no contact"
order by remaining near a protected
party at a band concert on the town
common. Although it was a public
event, and although there was no
evidence that the defendant was
present because the protected party
was there, he remained in proximity
to the protected party after becoming
aware of her presence. . . . .By
contrast, a defendant could be found
not in violation of a "no contact"
order if he entered a house where
he did not and should not reasonably
have known a protected party was
present, and then attempted to leave
promptly, but was restrained from
doing so.
The use
of the words "no contact"
in the defendant's probation condition,
then, is reasonably understood to
impose an obligation on the defendant
to avoid encountering or engaging
children in any way; to refrain
from attendance at places where
proximity to, and thus an encounter
with, children is likely; and promptly
to remove himself from such proximity
if an encounter arises unexpectedly.
The
condition is not, as the defendant
suggests, simply a requirement not
to touch or speak to a child. "No
contact" obviously includes
such conduct, but also requires
the defendant to avoid even the
opportunity for such touching or
direct communication.
RINALDO’S NOTES:
True, the guy is a certifiable reprobate,
but the order seems poorly written.
The order should clearly state that
the defendant is to avoid encountering
children in any way.
ADOPTION OF ELENA (and two companion
cases(1)).
January
31, 2006. SJC.
ISSUE: Before
forcibly giving a child away for
adoption, how much weight must be
given to the fact that the problems
may be temporary?
FACTS: The
Appeals Court vacated the orders
of a judge in the Juvenile Court
terminating the mother's parental
rights to three of her five children.(2)
The Appeals Court affirmed so much
of the orders as determined that
the mother was unfit to assume parental
responsibilities as of the time
of trial, but it concluded
that the trial judge failed to consider
properly whether the mother's unfitness
at the time of trial was temporary,
based on recent progress she had
made at a drug rehabilitation program.
HELD: We
granted the application of the Department
of Social Services (department),
joined by the children, for further
appellate review. We conclude that
the judge did consider whether the
mother's unfitness was temporary,
and that his decision to terminate
the mother's parental rights was
based on an appropriate assessment
of the evidence and was not an abuse
of discretion. We therefore affirm
the judgments.
STANDARDS FOR TERMINATION:
When reviewing a decision
to terminate parental rights, we
must determine whether the trial
judge abused his discretion or committed
a clear error of law. . . . .Subsidiary
findings must be established by
a fair preponderance of the evidence,
Care & Protection of Laura,
414 Mass. 788, 793 (1993), and will
not be disturbed unless clearly
erroneous. (Rinaldo’s
notes: Surprising,
because Santowsky case of US Supreme
Court suggest clear and convincing
is needed, but I don’t’ have time
to do a research project on this.)
"[I]n
this field it is neither possible
nor desirable to make decisions
with precision, and [] 'much must
be left to the trial judge's experience
and judgment,'" (Rinaldo’s
Notes: Is may not be “possible,”
but why isn’t it “desirable”?);
therefore, the judge's assessment
of the credibility of the witnesses
and the weight of the evidence is
entitled to deference. Where, as
here, the judge determines that
the mother currently is unfit to
parent her children, and where termination
of parental rights is sought, the
judge then "must determine
whether the parent's unfitness is
such that it would be in the child's
best interests to end all legal
relations between parent and child."
In determining
whether the best interests of the
child will be served by issuing
a decree dispensing with the need
for consent . . . the court shall
consider the ability, capacity,
and readiness of the child's parents
. . . to assume parental responsibility"
Where there is "credible evidence
[] [that] there is a reasonable
likelihood that the parent's unfitness
at the time of trial may be only
temporary[,] [a] judge may properly
be guided by evidence demonstrating
reason to believe that a parent
will correct a condition or weakness
that currently disables the parent
from serving his or her child's
best interests." "[A]
condition which is reasonably likely
to continue for a prolonged indeterminate
period, such as alcohol or drug
addiction . . . [that] makes the
parent . . . unlikely to provide
minimally acceptable care of the
child" is not a temporary condition
WHERE ARE THE DADS?:
Why are the fathers of the children
being contacted? Why are they
being given a hearing to determine
if they are fit?
Appeals
Court Slip Opinions
JURISDICTION CASE.The
case of the mom who slipped away
from Trinidad and decided to keep
the child in Boston against the
Trinidad order.
FACTS:
The parties in this custody
dispute are the mother and father
of a minor child who was born in
Trinidad, West Indies, but who currently
resides in the Allston section of
Boston with his mother. The father,
who lives in Trinidad, filed a petition
in the Suffolk Division of the Probate
and Family Court Department (Probate
and Family Court), pursuant to G.
L. c. 209B, §§ 12 and 14, seeking
enforcement of the terms of a consent
decree, and related orders, entered
in the Republic of Trinidad and
Tobago Family Court, Supreme Court
of Judicature (Trinidad Family Court),
which awarded the mother physical
custody of the son, but prohibited
either parent from taking the son
out of Trinidad, except by agreement
of the other parent or by court
order. PROCEDURAL HISTORY: A judge
in the Probate and Family Court
granted the father's petition for
enforcement of the Trinidad consent
decree and ordered the mother to
return the child to Trinidad no
later than July 27, 2005. The judge
denied the mother's motion for a
stay pending determination of a
motion for reconsideration and an
evidentiary hearing. The mother
obtained an emergency stay of the
order from a single justice of the
Appeals Court and appealed to that
court. We transferred the case here
on our own motion and now affirm
the order for enforcement of the
Trinidad consent decree.
MOM DECIDES NOT
TO RETURN SON: During the son's
visit with the mother in the summer
of 2003, the mother (who, by this
time, was married and living with
her husband in Allston) informed
the father that the son would not
be returning to Trinidad as planned.
She enrolled the son in public school,
and he resided that year in Allston
with the mother and her husband.
He spent the summer of 2004 with
the father in Trinidad and was due
to return to the mother in Massachusetts
on August 29. On August 24, the
father advised the mother by telephone
that the son would not be returning
to Massachusetts but would remain
with him in Trinidad. Beyond these
facts, the affidavits and complaints
of the mother and father present
widely differing accounts of the
dispute, which we need not set forth.
. . . . On October 1, 2004, the
mother and the son departed for
the United States without the permission
of the father (who was in London
at the time) and without notifying
the Trinidad Family Court. After
an ex parte hearing on October 18,
2004, the Trinidad judge once again
made the son a ward of the court
and ordered the mother to return
the son to Trinidad forthwith for
a hearing and determination of custody.
The son has remained with the mother
in Allston and has not returned
to Trinidad.
HOLDING: We conclude
that the judge in the Probate and
Family Court properly declined to
exercise jurisdiction over the custody
dispute. The judge recognized that
G. L. c. 209B, § 2 (d),(7) bars
the exercise of jurisdiction while
a custody proceeding is pending
in another jurisdiction, and that
§ 7 (a)(8) provides a judge with
discretion to decline to exercise
jurisdiction at any time prior to
making a custody determination on
concluding that jurisdiction would
be based on the "wrongful conduct"
of the party seeking jurisdiction.
The judge further reasoned that,
under the clear language of § 14,
she had no authority to disregard
the custody determination of the
Trinidad Family Court. The provisions
of §§ 2 and 7 are generally phrased
in reference to custody proceedings
that are pending in other States,
not proceedings in which a final
custody determination has been made.
See Custody of Brandon, supra at
8-9. The judge was correct, however,
to recognize their applicability
to circumstances in which a determination
of custody had been entered in a
court of another country. See Custody
of a Minor (No. 3), 392 Mass. 728,
733 (1984).(9) It is § 14, however,
the third statutory provision on
which the judge relied, on which
we base our conclusion that the
judge properly deferred to the Trinidad
Family Court in this matter.
THOMPKINS V THOMKINS
Feb 2, 2006. Mass. Appeals Court.
All I will say
about this case, is that I was in
a similar situation concerning QDROs.
The issue occurred when the QDRO
that was assented to (Qualified
Domestic Relations Order) didn’t
reconcile with the original order.
Often, courts use QDROs to get at
401Ks and IRA’s under federal law.
I refused to sign the QDRO without
a release form my client when I
determined the QDRO didn’t accurately
reflect the underlying order.
ISSUE:
WHAT RELEIF DO YOU HAVE IF A QDRO
DOESN’T RECONICILE WITH THE ORIGINAL
AGREEMENT AND THE QDRO JUDGMENT
IS MORE A YEAR OLD?
ANSWER: NONE. Rule
60(a) "seeks to ensure that
the record of judgment reflects
what actually took place,"
Rule 60(a) does not apply unless
the mistake springs from some oversight
or omission; it does not cover mistakes
which result from deliberate action."
The DRO contains exactly the terms
to which the parties had stipulated
and approval of the DRO was consistent
with the parties' request, as set
forth in their joint motion. There
was thus no mistake in the judgment.
(RINALDO’S NOTES:
“DRO” is equivalent to QDRO’s for
government workers. Obviously,
the mistake being asserted was that
the DRO didn’t reflect original
agreement—not that it reflected
the contract both parties looked
at.)
FURTHER
HELD: Moreover, although
Robert claims he did not become
aware of the "mistake"
in the judgment until he began receiving
benefits three years later,
any mistake was apparent on the
face of the DRO. To
the extent that Robert had a viable
claim for relief from the judgment
based on mistake, that claim could
have been raised by a motion for
postjudgment relief pursuant to
Mass.R.Dom.Rel.P. 60(b)(1),
but
under that rule, the claim must
have been made not more than one
year after the DRO entered.
Because the claim
for relief is based on an asserted
mistake in the DRO, Robert may not
bring his claim under rule 60(b)(6),
which by its terms is available
only when the relief sought is "based
upon some other reason than those
stated in Rule 60(b)(1)- (5)."
AS TO MISTAKE:
"Mistake"
in drafting the stipulated terms.
We next consider Robert's claim
that the parties' proposed DRO,
as prepared and submitted to the
court in March, 2000, reflects a
mistake that is apparent by comparing
that document to the provisions
of the earlier separation agreement,
which he describes as the "central
contract."(9)
Robert asserts,
and we agree, that it is within
the Probate Court's authority to
declare the parties' rights under
their separation agreement, pursuant
to G. L. c. 231A, see Krapf v. Krapf,
439 Mass. 97, 107 (2003), and to
modify a divorce judgment so that
it conforms to the judge's determination
regarding the parties' respective
rights under that agreement. See
id. at 104, quoting from Bell v.
Bell, 393 Mass. 20, 26 (1984), cert.
denied, 470 U.S. 1027 (1985) (Abrams,
J., dissenting) ("a separation
agreement is a 'judicially sanctioned
contract' that is valid and enforceable
only if and as approved by the judge").(10)
Here, however, the parties are receiving
benefits pursuant to a DRO that
is consistent with their written
stipulations and is not unconscionable
on its face.
CONSIDER WHOLE:
“When construing the separation
agreement and stipulated terms of
the DRO, we adhere to the established
principle that all parts "are
to be construed together as constituting
a single and consistent arrangement.
The intent of the parties must be
gathered from a fair construction
of the contract as a whole and not
by special emphasis upon any one
part."
RINALDO’S NOTES:
I have omitted the interpretation
of the original contract, and the
reasoning why the DRO was held to
be reconcilable with it. The contractual
interpretation law is brought forward,
nonetheless, because it is generally
applicable.
CHRISTINE CORRADO vs. HUNT R. HEDRICK,
JR., & another.(1)
January 31, 2006.
Appeals Court.
RESTRAINING ORDER
CASE
ISSUE: In this
appeal, we consider the constraints
on a judge's power to award relief
under G. L. c. 209A. We conclude
that when, at a contested hearing,
a plaintiff fails to prove that
"abuse" has occurred,
a judge may not continue an ex parte
order that directs the defendant
to vacate and remain away from the
household because of subjective
concerns that violence may occur
if both remain in the same household.(2)
RINALDO’S PRAYER:
Please don’t tell me a judge was
actually considering otherwise.
BUT THERE WAS ANOTHER
SIDE TO THE STORY: Randy also testified
that Corrado had a volatile temper.
She would yell, scream, stomp around,
slam doors, and throw things, including
liquids in his face. He stated that
the incident involving the refrigerator,
referenced in Corrado's affidavit,
had actually occurred a year prior.
According to his testimony, in the
course of an argument Corrado threw
a beer bottle at him. He laughed
at her, causing her to become even
more irritated. As he went to get
a towel to clean up the beer, Corrado
hit him in the testicles with the
beer bottle. When he "instinctively
impulsively" pushed her away
from him, she "stumbled and
fell into the refrigerator."
After considering the testimony,
the judge told Corrado that he found
Randy's version of events more credible
than hers, and that "[l]egally
I don't feel that you have proven
your case."
EVEN WHEN YOU WIN,
YOU LOSE: Before continuing the
hearing, the judge reiterated to
Corrado that she had not proved
that Randy had physically abused
her or threatened her with imminent
serious physical harm. He told her
that he believed that she had come
to court solely to gain leverage
in their ongoing property dispute.
Nevertheless, the judge stated that
he would extend the order that Randy
and Hunt III (boyfriend and son)
remain away from the property for
a week because of his concerns that
a vacuum regarding the right to
use and occupy the premises could
lead to an explosive situation should
both sides sit in the house and
refuse to leave.
RINALDO’S NOTE:
Judge was more honest than most—most
judges would just lie and say that
there was abuse, when they were
really trying to prevent abuse.
HELD: The judge
expressed unambiguously his disbelief
of Corrado's allegations that Randy
had caused her physical harm or
placed her in fear of imminent serious
physical harm. The judge specifically
concluded that Randy's version was
more credible than Corrado's and
that she had come to court seeking
c. 209A protection as a wedge in
her property dispute with Randy.(8)
See Jones v. Gallagher, 54 Mass.
App. Ct. at 887 n.4, and cases cited
therein (recognizing that litigants
may abuse the c. 209A process for
purposes of harassment); Szymkowski
v. Szymkowski, 57 Mass. App. Ct.
at 287. Once the judge concluded
that Corrado had failed in her burden
of proof, he erred in extending
the order that directed Randy to
vacate and remain away from 12 DiCarlo
Road. Before the available remedies
for dealing with domestic abuse
may be invoked, "abuse"
must be proved. Indeed, to remedy
the problems of domestic abuse,
the Legislature has seen fit to
permit the District Court, and other
courts that are not courts of general
equity jurisdiction, the power to
issue equitable orders in instances
where abuse is found. See Zullo
v. Goguen, 423 Mass. 679, 682 (1996)
("orders made under c. 209A
are equitable in nature").
Absent proof of abuse, the judge
lacked authority to impose the equitable
remedies available under the statute.
RINALDO’S NOTES:
Only probate and superior courts
have equity jurisdiction.
HELD: To his credit,
the judge did not rubber stamp Corrado's
complaint.
If this only happened
more often.
Custody
and Visitation Index Page
