C.C. v. J.C. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff mother (mother) appeals from the amended judgments (on her second amended complaint for modification, and on the father's complaint for contempt) to include a fee award to the father in the amount of $65,399.69, and postjudgment orders as they relate to the fees.² On appeal, the mother argues that the judge abused her discretion in awarding the father, postjudgment, a portion of his requested attorney's fees, without an evidentiary hearing or specific written findings. We affirm.

Background. In September 2011, a stipulated judgment entered on the father's complaint to establish paternity, granting the mother sole legal and primary physical custody of the parties' minor child; the father was provided regular parenting time. After the father's arrest in November 2011 for an alleged violation of an abuse prevention order obtained by the mother against the father pursuant to G. L. c. 209A (restraining order), the mother filed a complaint for modification seeking supervised visitation between the father and the child.³ Several days later she amended her complaint, adding a request that the father's retroactive child support obligation be paid through the Department of Revenue. The father counterclaimed, alleging that the mother neglected the child, and had him falsely arrested for violating the restraining order; he also sought primary physical custody of the child.

In April 2012, the mother again amended her complaint (second amended complaint), requesting, in addition to the previous relief sought, an order requiring the father to maintain a $100,000 life insurance policy for the child's benefit, and to share equally (after the first $250) in the payment of the child's uninsured medical and dental expenses. The father amended his counterclaim (amended counterclaim), alleging that the mother had violated the court-ordered parenting schedule, and had failed to cooperate with the parenting coordinator in setting up parenting time for the father during vacations and on holidays.

In August 2014, the father filed a complaint for contempt (contempt complaint), asserting that the mother had deprived him on numerous occasions of his scheduled parenting time with the child and that he had not had parenting time with the child for several months prior to filing his complaint. The mother's request to consolidate her second amended complaint and the father's contempt complaint was allowed. On February 20, 2015, the first day of trial (which occurred over eight nonconsecutive days in February, March, and May 2015), the father filed an updated motion for attorney's fees,⁴ seeking the reimbursement of $80,000 in fees and costs incurred in pursuing his contempt complaint and amended counterclaim, and in defending against the mother's second amended complaint. An itemized affidavit accompanied the motion. The mother submitted an opposition and counter request for attorney's fees.

On June 19, 2015, the judge issued two separate judgments -- one in the mother's modification action, and the other in the father's contempt action (collectively, the judgments). With regard to the modification action (on the second amended complaint and amended counterclaim), the judge, after determining that the mother had not met her burden of showing a material change in circumstances warranting modification, ordered, among other things, that the mother retain sole legal and physical custody of the child, but allowed the father direct access to the child's medical, dental, and psychological records; that the child remain in individual therapy; and that within one year, parenting time between the father and the child resume under the direction and in a manner determined by the child's therapist.⁵ As to the contempt action, the mother was found guilty of contempt and ordered, among other things, to fully cooperate with the reunification and resumption of parenting time between the father and the child.⁶ Although the judge's findings and rationale acknowledged the father's motion for attorney's fees and costs, the judgments did not provide disposition of the father's motion.

On July 2, 2015, the father filed, and the mother opposed, a motion for clarification and amendment of the June 19, 2015 judgments. In his motion he requested that the judge make a determination on his request for attorney's fees, and amend the judgments to include such disposition. On July 30, 2015, the judge ordered an award of attorney's fees to the father in the amount of $65,399.69, requiring payment by the mother by January 15, 2016; the father's motion for clarification and amendment of the judgment was allowed separately on July 31, 2015. The mother's motion to amend the “amended” judgment in which she claimed error with regard to the fee award was denied by another judge.⁷ The mother appealed.

Discussion. The mother contends that the judge erred in awarding the father attorney's fees because the judge failed to comply with the statutory requirements for awarding fees pursuant to G. L. c. 231, § 6F, which include holding an evidentiary hearing and making specific findings regarding how the judge derived the fee award. Yet, nowhere in the judgments does the judge determine that “all or substantially all of the [mother's] claims ․ were wholly insubstantial, frivolous and not advanced in good faith.” G. L. c. 231, § 6F. Therefore, we see no basis to infer that the judge awarded the father his requested attorney's fees pursuant to § 6F. Because we conclude that the award was not grounded on § 6F, the judge was not obliged to adhere to its procedural requirements.

The mother also argues that the judge erred in awarding fees pursuant to G. L. c. 215, § 34A, because that provision only permits the award of attorney's fees in contempt actions “for failure to comply with an order or judgment for monetary payment,” and the father's contempt complaint did not involve any monetary issues. Additionally, she argues that the father should be limited to the amount of fees incurred in connection with the contempt action ($1,800).

In so arguing, the mother overlooks the primary source of the authority of a judge of the Probate and Family Court to award fees, G. L. c. 208, § 38.⁸ See Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012) (“judge has discretion to award fees even in the absence of bad faith or frivolous claims or defenses”). The mother acknowledges that this provision has been extended to proceedings brought under G. L. c. 209C (relating to children born out of wedlock), but contends that it is limited to actions seeking financial support. Contrary to the mother's argument, “the statutory authority to shift fees in marital custody disputes, G. L. c. 208, § 38, has been read to extend to nonmarital children” in proceedings brought under G. L. c. 209C. J.S. v. C.C., 454 Mass. 652, 665 n.19 (2009).

Further, there is no language contained in either G. L. c. 208, § 38, or G. L. c. 209C, requiring a judge to hold an evidentiary hearing, or make specific findings, before awarding attorney's fees pursuant to either statute. Even in the absence “of a specific statutory authority, a judge may properly award legal fees under G. L. c. 209C.” A.B. v. C.D., 44 Mass. App. Ct. 331, 336-337 (1998), citing Doe v. Roe, 32 Mass. App. Ct. 63, 68-69 (1992). “A judge has broad discretion in awarding attorney's fees under G. L. c. 208, § 38.” Feinstein v. Feinstein, 95 Mass. App. Ct. 230, 239 (2019), quoting Freidus v. Hartwell, 80 Mass. App. Ct. 496, 504 (2011).

Here, the mother had adequate opportunity to address the issue of attorney's fees in her written submission. See Silverman v. Spiro, 438 Mass. 725, 731 (2003). Additionally, “[t]he attorney's fees sought ․ were awarded in connection with both the modification judgment and the contempt judgment, thus embodying an award that simultaneously granted reimbursement to the father and sanctioned the mother.” Id. at 730-731. Thus, we see no error or abuse of discretion in the postjudgment award of attorney's fees to the father in the total amount of $65,399.69. See J.S., 454 Mass. at 665-666, quoting DeMatteo v. DeMatteo, 436 Mass. 18, 38-39 (2002) (award of attorney's fees is “within the sound discretion of the judge and will not ordinarily be disturbed”).

So much of the June 19, 2015 judgments, as amended to include an award of attorney's fees in the amount of $65,399.69 to the father, and the postjudgment orders relating to those fees are affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   The original judgments dated June 19, 2015 entered on the mother's complaint for modification dated November 4, 2011; her amended complaint for modification dated November 14, 2011; her second amended complaint dated April 4, 2012; the father's counterclaim for modification dated November 22, 2011; his amended counterclaim dated December 10, 2012; and the father's complaint for contempt filed on August 29, 2014.

3.   The criminal charges against the father relating to the two alleged restraining order violations (October 22 and 26) were resolved by way of a pretrial probation disposition. The judge found that the father did not violate the restraining order on those dates; she also found that the father's behavior did not “escalate” as alleged by the mother, nor was he a threat to the mother.

4.   The father previously filed on June 18, 2014, a motion for attorney's fees; the judge reserved the issue for trial.

5.   Shortly after the father expressed concerns that the mother was drugging the child before his visits (because the child slept through the entirety of several visits with him), the mother made allegations of sexual abuse against the father. The judge, due to conflicting testimony by the sexual abuse evaluators, could not make a definitive finding concerning whether the father had sexually abused the child. The Department of Children and Families (department) did not support the allegations by the mother of sexual abuse by the father. The judge did find, however, that the extreme animosity between the parties was so excessive that it had detrimentally affected the child to the point that the judge was concerned for the child's longterm development, and mental and emotional health.

6.   The judge found that the mother had systematically alienated the child from the father, continuously making negative statements about him in front of the child, especially that the father was a “bad man.” The mother's family and friends (the child's core family unit) also often commented negatively about the father causing the child “loyalty issues.” The mother had failed, the judge found, to encourage the child to participate in visits with the father; and she was largely responsible for the father missing his scheduled parenting time with the child. The mother was opposed to the father having any relationship with the child.

7.   Due to the retirement of the trial judge, the case was assigned to another judge.

8.   Section 38 of G. L. c. 208 provides: “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.”