CONTEMPT
J.D.M. VS. J.A.M., 22-P-499; Memorandum and Order Pursuant to 23.0, case may be cited for its persuasive value, but not as binding precedent.
Evidentiary hearings in contempt matters.
In this case, the appeals court remanded a case to the Probate & Family Court concerning a finding of contempt. In this matter, the plaintiff ex-husband filed a Complaint for Contempt alleging that the defendant ex-wife had prevented him from having parenting time with his children; was trying to alienate him from his children and was placing tracking devices on the children’s possessions.
The defendant’s attorney requested an evidentiary hearing, but the Court said it would need to be heard on another date. The defendant’s attorney then proceeded to state that he would be “happy to present the case and see what you think about it,” but added that the facts are in dispute. The Judge said she would hear the case on representations of counsel. Throughout the hearing, the defendant’s attorney raised repeated objections to an affidavit as well as the absence of an evidentiary hearing. The Appeals Court found, “While we recognize the exigencies of the court schedule, without the agreement of the parties, a judge cannot decide the merits of a contempt proceeding without taking evidence particularly where, as here, material facts are in dispute. It goes without saying that the representations of unsworn counsel are not evidence.”
The appeals court went on to state that, “The record shows that material facts were in dispute regarding the reason for the defendant’s noncompliance with the requirements for parenting time….The disputed facts strike at the heart of the contempt claim — whether there is ‘clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 853 (2009). The defendant never had a full opportunity to answer the claim of disobedience by presenting evidence, offering a defense or explanation, testifying, or calling witnesses. Finally, the Appeals Court found that, “The absence of an evidentiary record also deprives the appellate court of its ability to review the judge’s findings and conclusions under governing standards. See, e.g., Commercial Wharf E. Condominium Ass’n v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018), remaining citations omitted.
As a result, the appeals court vacated the contempt judgment and remanded the case to the Probate & Family court for an evidentiary hearing. Thus, this case should be considered in contempt matters as parties can request evidentiary hearings instead of proceeding solely based on the arguments of counsel.
