A.P. v. J.C. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

J.C. (father), the former spouse of A.P. (mother), appeals from two contempt judgments, dated October 4, 2017, and February 13, 2018, issued by a judge of the Probate and Family Court. The father principally challenges (1) the finding of contempt against him for registering the parties' children for soccer without the mother's consent, and (2) the award of attorney's fees to the mother. We affirm.

Background. We summarize the relevant facts found by the judge, supplementing them with undisputed evidence in the record. See Pierce v. Pierce, 455 Mass. 286, 288 (2009).² The mother filed a complaint for divorce in the Probate and Family Court in August 2013, and was later granted temporary sole legal custody of the parties' two children during the pendency of the divorce proceedings. In June 2015, while the divorce was still pending, a judge of the Probate and Family Court found the father guilty of contempt for “registering the children for soccer without consent of mother who has [temporary] sole legal custody” (2015 contempt judgment). A two-day divorce trial was held before the same judge in October 2015, with the principal contested issue being legal custody of the parties' children. The divorce judgment, which was accompanied by the judge's findings of fact and rationale, issued on February 9, 2016. The divorce judgment granted the mother “sole legal custody of the minor children” (par. 2), and further provided that

“Mother shall contact Father for his input regarding activities she is considering scheduling for the children. Father shall respond to Mother within 48 hours with his thoughts on the proposed activity. Mother shall make the final decision with due consideration of Father's thoughts. Mother shall inform Father in writing of the activities she signs the children up for and shall use her best efforts to avoid having such activities scheduled on Father's parenting time, with the understanding it might not always be feasible depending on the activity, such as, but not limited to, summer camp week” (par. 11).

The judge's accompanying rationale provided, in relevant part, that

“[t]he children are each involved in sports, lessons and activities centered in Ipswich where Mother resides. Since moving to Newburyport, Father has also unilaterally signed them up for soccer there despite Mother having sole legal custody of the children. While the children may enjoy playing in Newburyport, Mother should hereinafter determine the location and extent of the children's extracurricular activities.”3

The father appealed from the divorce judgment, challenging the award of sole legal custody to the mother, which was affirmed by a different panel of this court. See A.C. v. J.C., 92 Mass. App. Ct. 1114 (2017).

On May 3, 2016, the mother filed an amended complaint for contempt (2016 complaint), asserting that

“[the father] ․ violated the [February 9, 2016] Judgment[ ] ․ [in] March of 2016 and ongoing dates by: Registering the Parties' son for soccer in Newburyport and the Parties' daughter for lacrosse in Newburyport ․ without Mother's consent, and by continuing to bring the children to practices and games despite Mother informing Father that she is not in agreement with same.”

On June 9, 2016, the judge issued a judgment on the mother's 2016 complaint, finding the father guilty of contempt for “registering the children for activities without mother's consent” (2016 contempt judgment).

Less than one year later, on May 16, 2017, the mother filed a complaint for contempt (2017 complaint) alleging that the father had again violated the divorce judgment by “[r]egistering the Parties' son ․ for soccer in Newburyport despite Mother's express disagreement with same,” and despite having “been found Guilty of Contempt on this exact issue twice before (see Judgments dated 6/18/15 and 6/9/16).”

An evidentiary hearing on the mother's 2017 complaint was scheduled for September 14, 2017 (September 14 hearing). The mother, along with her attorney, appeared at the September 14 hearing; the father did not appear. The father's counsel, who was present at the September 14 hearing, explained that the father had “approximately about two weeks ago ․ received notice of jury duty,” and that he had tried to reschedule the contempt hearing earlier that week, but the request was denied. The judge observed that “there [was] no date on the [copy of the jury summons]” produced by the father's counsel, and that it was “cut off at the top.” The judge expressed skepticism that the father had only learned of his jury service the week before, and noted that his eleventh-hour request for a continuance “caused the plaintiff to come here today and to incur counsel fees today.” The judge stated that “any request for counsel fees may include the fees to appear for today's hearing,” and continued the hearing to the following day, September 15, 2017 (September 15 hearing).

Both parties appeared and testified at the September 15 hearing. Because it was undisputed that the father registered the children for Newburyport soccer without the mother's consent, the principal contested issue at the September 15 hearing was whether the father's actions were prohibited by a clear and unequivocal order.

On October 14, 2017, the judge entered a judgment on the mother's 2017 complaint (2017 contempt judgment), finding the father guilty of contempt and ordering, inter alia, that (1) “[t]he children shall not participate in any activities without Mother having first given her consent as the sole legal custodian,” and (2) the father shall pay a portion of the mother's attorney's fees, in the amount of $4,823.75. The judge found that the father “violated the clear and unequivocal Judgment of this Court giving Mother sole legal custody of the minor children, and providing that Mother shall make the final decision regarding the children's activities after consideration of Father's input.” On February 13, 2018, the judge issued yet another contempt judgment (2018 contempt judgment) finding the father guilty of contempt for bringing the children to soccer in Newburyport on various dates, and ordering the father to pay the mother's attorney's fees in the amount of $2,000. The present appeal by the father followed.

Discussion. The father principally argues that the judge erred in finding him in contempt for registering the children for Newburyport soccer during his own parenting time. The father also argues that the judge improperly ordered him to pay the mother's attorney's fees as a sanction for his failure to appear at the September 14 hearing, despite having mandatory juror service on the same day. We address the father's arguments in turn.

Contempt. We review a judge's decision on a complaint for contempt for abuse of discretion. See Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). In a civil contempt proceeding, the plaintiff has the burden of proving, by clear and convincing evidence, “two elements: ․ (1) clear disobedience of (2) a clear and unequivocal command.” Id. Here, the father contends that the mother failed to prove the second element (clear and unequivocal command), arguing that there is nothing in the divorce judgment prohibiting him from registering the children for Newburyport soccer, or any other “non-extracurricular” activity,⁴ during his own parenting time. We disagree.

“[T]he requirement for clear and unequivocal language is designed to insure that all who are subject to an order's command have fair notice of the conduct the order prohibits.” Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002). Although par. 11 of the divorce judgment did not expressly prohibit the father from registering the children for Newburyport soccer without the mother's consent, the accompanying rationale provided, in relevant part, that the “Father ․ unilaterally signed [the children] up for soccer” in Newburyport, and “[w]hile the children may enjoy playing in Newburyport, Mother should hereinafter determine the location and extent of the children's extracurricular activities.”

Accordingly, to the extent that the language in par. 11 was not sufficiently clear to support the contempt finding against the father, see id. (“vague or ambiguous language in a judicial decree will not suffice,” and “[a]mbiguities are regularly resolved in favor of the alleged contemnor”), any uncertainty was cured by the language in the rationale specifically vesting sole decision-making authority regarding soccer with the mother. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567 (1997) (contempt finding proper “where the court order, although subject to some legal interpretation, has nonetheless placed the party bound by the order on notice that certain actions could constitute the basis for contempt”).

The father, who is an attorney, testified at the September 15 hearing that he had reviewed the rationale in the past. The father also admitted that the children's soccer registration was a “substantial issue brought up at [the divorce] trial,” and he had been found in contempt twice before regarding the soccer issue. Thus, “[a]ny viable argument that the [divorce judgment and rationale] did not constitute a sufficiently clear and unequivocal command ended [with the 2016 contempt judgment], when the judge clarified the [divorce] judgment” and found the father guilty of contempt for registering the children for Newburyport soccer without the mother's consent. Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App. Ct. 80, 87 (2002). Indeed, it is apparent from the September 14 hearing transcript that the judge considered the 2016 contempt judgment relevant to the question whether the father knew that he was prohibited from registering the children for soccer without the mother's consent. See Smith, 93 Mass. App. Ct. at 363, quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009) (“the court is to consider ‘the totality of the circumstances’ ” when determining civil contempt).

To the extent the father argues that the judge improperly found him in contempt for scheduling soccer during his own parenting time, that argument is, in essence, an attack on the divorce judgment, which is not before us. See Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 263 (2007) (“The purpose [of contempt proceedings] is not to determine the validity of the underlying order”). The question in the present appeal is narrow: whether the father violated a clear and unequivocal order by registering the children for Newburyport soccer without the mother's consent. As discussed supra, that soccer registration issue was the subject of extensive testimony during the divorce trial, was addressed explicitly in the judge's divorce findings and rationale, and was the subject of the 2016 contempt judgment entered against the father. “[C]onsider[ing] the ‘totality of the circumstances,’ ” Smith, 93 Mass. App. Ct. at 363, quoting Wooters, 74 Mass. App. Ct. at 844, we cannot say the father did not have “fair notice” that his conduct was prohibited, Sax, 53 Mass. App. Ct. at 772. Accordingly, we discern no abuse of discretion in the finding of contempt against him. See Smith, supra.

Attorney's fees. The father next contends he was improperly “sanctioned over $4,000” for failing to appear at the September 14 hearing due to appearing for mandatory juror service in a different court. We disagree. The fee award in the 2017 contempt judgment was not a sanction for the father's failure to appear. Rather, it was “an appropriate element of a successful civil contempt proceeding.” Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 130 (1999), quoting Demoulas, 424 Mass. at 571. Moreover, the judge only awarded a portion of the attorney's fees requested by the mother. We discern no abuse of discretion in the fee award. See Eldim, Inc., supra at 129.⁵

Judgments affirmed.

FOOTNOTES

2.   We also take judicial notice of certain court records in related appeal no. 16-P-1362. See Allen v. Allen, 89 Mass. App. Ct. 403, 405 n.3 (2016).

3.   The judge's findings further provided that“[t]he children are involved in numerous extracurricular activities. [The parties' son] plays soccer in both Ipswich and Newburyport. [The parties' daughter] plays soccer in Newburyport ․ Father registered the children for soccer in Newburyport without consultation with Mother.”

4.   Although the father appears to concede that the divorce judgment grants the mother sole decision-making authority with respect to “extracurricular” activities, he asserts that Newburyport soccer is not an “extracurricular” activity, as it is a private, nonschool-affiliated program. However, it is apparent from the judge's rationale that she considered Newburyport soccer to be an “extracurricular” activity. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 448 (1997) (specific provision must be read in context of whole document).

5.   The mother's request for appellate attorney's fees and costs is denied.