HEFNER v. HEFNER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father, Stephen P. Hefner (father), appeals from judgments issued by a judge of the Probate and Family Court that (1) dismissed the father's amended complaint for contempt against the mother, Carolyn G. Hefner (mother), (2) found him to be in contempt of certain orders contained in the judgment of divorce nisi (divorce judgment), (3) awarded the mother sole legal custody of the two minor children, (4) dismissed his amended complaint for modification seeking elimination of, or a decrease in, his child support and alimony obligations, and (5) awarded the mother a portion of her requested attorney's fees. The father argues that the trial judge abused his discretion in dismissing the father's amended contempt complaint; in finding the father in contempt; in granting the mother sole legal custody of the children; and in failing to find a substantial change in circumstances resulting in the dismissal of the father's amended modification complaint. The father argues that the judge also erred in awarding the mother a portion of her requested attorney's fees. We affirm.

Discussion. 1. Contempt complaints. We review contempt rulings for an abuse of discretion. See Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). The father contends that holding him in contempt for a failure to reimburse the mother for his share of child-related expenses, and for sending “excessive” communications to the mother via Our Family Wizard (OFW), was an abuse of discretion. We disagree.

“[T]o constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 851 (2009), quoting Manchester v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 212 (1980). “The contempt must be proved by clear and convincing evidence, and the court is to consider ‘the totality of the circumstances.’ ” Smith, 93 Mass. App. Ct. at 363, quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009).

Under the terms of the parties' separation agreement, which was merged and incorporated into the divorce judgment, the mother and the father were “jointly responsible for payment of fees” for the children's sports activities and equipment, with the expenses for such activities being “reimbursed within thirty (30) days of notice of the expense” to the party who incurred the cost. Both the OFW expense logs and the father's testimony at trial clearly established that the father refused to reimburse the mother for expenses that she incurred relating to the children's sport activities and equipment on at least seven separate occasions. By refusing to reimburse the mother for these expenses, the father was in clear disobedience of the divorce judgment, and therefore in contempt.² See, e.g., Cabot v. Cabot, 55 Mass. App. Ct. 756, 771-773 (2002) (father held in contempt for failing to pay his share of educational costs).

We similarly reject the father's argument that a prohibition against “excessive” communications via OFW ³ is not a “clear and unequivocal command,” and thus cannot be the basis for contempt. “[W]e have upheld findings of contempt where an order, although subject to some legal interpretation, has nonetheless provided sufficient notice to the party bound by the order that its actions could form the basis for contempt.” Judge Rotenberg Educ. Ctr. v. Commissioner of the Dep't of Mental Retardation, 424 Mass. 430, 448 (1997). We agree that a determination as to the meaning of “excessive” may in some cases require legal interpretation. Here, however, the father sent at least ten messages within twenty-four hours. We have little doubt that by sending these communications, the father knew (or should have known) that such actions could form the basis for contempt.

Having concluded that there was no error in finding the father in contempt, we move next to whether the judge abused his discretion in declining to hold the mother in contempt. We conclude that he did not. It is undisputed that the mother was not at all times in strict compliance with the provisions of the divorce judgment and certain postjudgment orders. However, “[t]he case law demonstrates that not every violation of a clear order will constitute contempt, and thus that the requirement to prove ‘clear disobedience’ has teeth.” Smith, 93 Mass. App. Ct. at 363-364. Where the mother's noncompliance with certain aspects of the divorce judgment or postjudgment orders can be attributed to something other than a clear disobedience,⁴ we see no abuse of discretion in the judge's conclusion that the mother was not in contempt of the divorce judgment.⁵

2. Legal custody. Like contempt decisions, we review the modification of a child custody order for an abuse of discretion. See Macri v. Macri, 96 Mass. App. Ct. 362, 369 (2019). We have previously recognized that the inability of parties to communicate following the entry of a divorce judgment can constitute a material change in circumstances. See, e.g., id. at 370. We have further recognized that joint legal custody is not in the best interests of children when “the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict.” Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). Based on the extensive record of parental conflict in this case, it is clear that the parties are unable to successfully coparent. Accordingly, awarding legal custody to one parent was proper here. See, e.g., id.

The father argues, however, that the mother's “consistent interference” in the father's relationship with the children, as well as other parental shortcomings,⁶ precluded the court from granting the mother sole legal custody. On the record before us, we are not persuaded. Although we recognize that the mother is not without fault, we see no abuse of discretion in the judge's decision not to award the father sole legal custody here. There is evidence that the father (1) repeatedly threatened the mother via OFW, (2) followed the comings and goings of both the mother and the children's babysitter from his car, and (3) referred to one of the children as “disgusting” in open court. These actions alone could reasonably support a presumption that granting sole legal custody to the father is not in the best interests of the children. See Malachi M. v. Quintina Q., 483 Mass. 725, 736-737 (2019) (discussing “rebuttable presumption that it is not in the best interest of a child to be placed in the custody of an abusive parent”). In addition, one of the children reported to the court appointed guardian ad litem, as well as to school personnel and his therapist, that the father had become physical with the child on numerous occasions.⁷ Such behavior by the father is a factor considered when determining parental custody in the best interest of a child. See id. at 733.

Moreover, the grant of legal custody to the mother is supported by findings that the children's mental health improved during the period in which the father had been estranged, and that the children expressed a preference for the mother to have custody. See J.F. v. J.F., 72 Mass. App. Ct. 782, 795 (2008) (though not determinative, child's preference is factor considered in custody determinations). Cf. Adoption of Xarina, 93 Mass. App. Ct. 800, 805 (2018) (child's improvement since being placed in foster home supports finding that placement in child's best interests). Given the evidence of alleged abuse, the improvement to the children's overall wellbeing since being in the mother's custody, and the children's preferences, we see no abuse of discretion in the judge's decision to grant sole legal custody to the mother.

3. Modification of the alimony and child support orders. We move next to the issue of alimony and child support modification. We review a decision not to modify support obligations for an abuse of discretion. See Emery v. Sturtevant, 91 Mass. App. Ct. 502, 507 (2017). Generally, “[t]o be successful in an action to modify a judgment for alimony or child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment.” Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting Schuler v. Schuler, 382 Mass. 366, 368 (1981). However, child support payments also may be modified if there “is an inconsistency between the amount of the existing order and the amount that would result from the application of the guidelines.” Massachusetts Child Support Guidelines III.A.1 (2018) (guidelines). See Morales v. Morales, 464 Mass. 507, 511 (2013).

The father argues that he sufficiently demonstrated a material change in circumstances since entry of the divorce judgment to warrant a reduction in his alimony obligation by presenting evidence as to a decrease in his annual salary, and in establishing that the mother was cohabitating with her current boyfriend. He also claims that the inconsistency between the amount of the existing child support order, and the amount that would result after calculation of child support in accordance with the guidelines, warranted modification to his child support obligation. We are unconvinced.

First, as the trial judge found, despite a ten percent decrease in base salary, the father's total income decreased by less than one percent. Such a de minimus decrease did not constitute a material change in circumstances. See Schuler, 382 Mass. at 377-378 (no material change in circumstance where, despite losing his job and thus suffering decrease in income, husband still had ability to pay). In addition, the judge concluded that the mother was not cohabitating with her current boyfriend, after finding that they each maintained their own primary residence, alternated staying at each other's homes, did not intermingle finances, were not financially dependent on each other, and generally spent only weekends together. “Persons are deemed to maintain a common household when they share a primary residence together with or without others” (emphasis added). G. L. c. 208, § 49. Based on the father's failure to establish a material change in circumstances, or that the mother was cohabitating with her boyfriend, we discern no error in the judge's conclusion not to modify the existing alimony order.

Second, although an inconsistency between the existing child support amount and the amount prescribed by the guidelines may result in a modification, such modification is not required where at the time of entry of the initial support obligation the parties agreed, as they did here, to deviate from the presumptive application of the guidelines. When a modification is sought of an existing support order that deviated from the guidelines, “the [c]ourt shall apply the existing deviation to the modification action if: [ (1) ] the facts that gave rise to deviation still exist; and [ (2) ] deviation continues to be in the child[ren]'s best interest; and [ (3) ] the guidelines amount would be unjust or inappropriate under the circumstances.” Guidelines III.B.

At the time that the divorce judgment entered, the parties' income exceeded the $250,000 maximum combined annual gross income on which the guidelines are calculated, resulting in the agreed upon deviation from the guidelines amount. See Guidelines II.C.2. The facts that gave rise to that deviation still existed at the time that the father filed his modification complaint. For this reason, and because the father failed to show a material change in circumstances since entry of the divorce judgment, it remains in the children's best interest not to disturb the father's existing child support obligation. See Morales, 464 Mass. 507, 512 n.9 (2013) (“under the inconsistency standard, some change of circumstances must occur in order for a modification request properly to be made”). Accordingly, we discern no error, nor an abuse of discretion, in the judge's dismissal of the father's amended complaint for modification.

4. Attorney's fees. “The probate judge has discretion in awarding attorney's fees in appropriate circumstances.” Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004). Likewise, the judge has “discretion to award reasonable attorney's fees and costs to one who successfully defends a frivolous contempt action.” Krock v. Krock, 46 Mass. App. Ct. 528, 533 (1999). Here, where the judge found that the father substantially caused extensive litigation, and is in a far superior financial position, we see no abuse of discretion in the award of a portion of the mother's requested attorney's fees. See Hennessey v. Sarkis, 54 Mass. App. Ct. 152, 157 (2002) (attorney's fees can be assessed to mitigate expenses incurred as result of other party's conduct).⁸

The judgments on the father's amended complaint for contempt and amended complaint for modification and the mother's amended complaint for contempt and amended counterclaim for modification, all entered on December 26, 2018, are affirmed. The order awarding attorney's fees to the mother is affirmed.

So ordered.

FOOTNOTES

2.   The trial judge did not credit the father's claims that he was not provided with receipts for the covered activities and thus was not required to reimburse the mother. We will not disturb the judge's credibility determination. See Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012). Thus, any arguments that the father did not receive the receipts are without merit.

3.   Per the separation agreement, “[p]osts to OFW shall not be excessive in frequency and length.”

4.   For example, although the mother did not respond to all of the father's OFW communications as required by the divorce judgment, such failure to respond is attributable to the father's excessive communications and abusive language in such communications. The mother could have reasonably believed that a response to such communications was not required in accordance with the requirements of the divorce judgment. See Wooters, 74 Mass. App. Ct. at 844 (“disagreement or misunderstanding of the issue does not constitute clear and undoubted disobedience of a clear and unequivocal command”). Likewise, the mother's failure to reimburse the father for certain child-related expenses could similarly be explained by the fact that gifts for team coaches were not clearly included as sports expenses, and in light of the fact that the father had failed to reimburse the mother for his share of sports costs incurred by the mother. As another example, although the father argues that the mother failed to require the children to call the father, the record indicates that she consistently reminded the children and otherwise made a good faith effort to ensure that this requirement was met. Though not discussed here, the remaining instances of the mother's noncompliance can be similarly explained.

5.   We are similarly unconvinced that the judge abused his discretion in considering the totality of the circumstances to determine whether the mother was in contempt. See Wooters, 74 Mass. App. Ct. at 844 (“In light of the totality of the circumstances, we conclude that a finding of contempt was not warranted”).

6.   The father alleges, for example, that the mother failed to provide structure for the children, failed to consistently engage in mental health services for the children, failed to send one child to summer school, and consistently involved the children in the parents' conflict.

7.   As a result of these reports by the child, G. L. c. 119, § 51A, reports of abuse and neglect were filed with the Department of Children and Families.

8.   Because the father's arguments on appeal were not entirely frivolous, we deny the mother's request for appellate attorney's fees.