REGAN v. SHOTTES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (father) filed a pro se complaint for contempt against the defendant (mother), alleging that she violated numerous provisions of the parties' separation agreement relating to joint legal custody of their two children. After a hearing a judge of the Probate and Family Court sua sponte dismissed the complaint with prejudice and ordered the father to pay the mother $2,500 in attorney's fees. The father appeals, arguing among other things that he did not have fair notice that the judge intended to dismiss the complaint with prejudice and that the award of attorney's fees was improper. We reverse and remand for entry of judgment dismissing the complaint without prejudice and for further proceedings on the issue of attorney's fees.

Background. In their March 2013 separation agreement, which was merged and incorporated into the judgment of divorce nisi (divorce judgment), the parties agreed to have shared legal custody of their two children, who would reside primarily with the mother. In August 2018 a modification judgment entered, suspending the father's parenting time until he completed ten joint therapy sessions with the children. A separate judgment entered dismissing the father's counterclaim, which sought sole legal and physical custody of the children and an order requiring that the mother engage in therapy. We affirmed both judgments in an unpublished memorandum and order. See Shottes v. Regan, 96 Mass. App. Ct. 1118 (2020).

Meanwhile, on May 1, 2019, the father filed a complaint for contempt against the mother. That complaint was dismissed without prejudice on June 3, 2019, per a stipulation between the parties. In that stipulation the parties agreed that they would share the cost of their daughter's college expenses and that the husband would be notified of the daughter's academic progress.

A month later, on July 2, 2019, the father filed his current complaint for contempt (contempt complaint). The contempt complaint, which is lengthy and discursive, alleged that the mother violated the divorce judgment by (1) denying the father an overnight visit with their son in September 2015, (2) enrolling the son in football in the summer of 2017 without the father's consent, (3) failing to consult with the father in October 2017 before obtaining treatment for their daughter's ruptured ear drum, (4) not informing the father that the daughter allegedly “suffers from a rare mental illness” caused by the mother's abuse, and (5) failing to consult with the father in late 2018 and early 2019 regarding the daughter's choice of college. In her answer the mother requested dismissal of the contempt complaint “on its merits with prejudice” and an award of attorney's fees and costs. She did not, however, file a motion to dismiss.

On August 7, 2019, the judge held a preliminary hearing on the contempt complaint, and, that same day, the mother filed a motion for attorney's fees. At the hearing the judge asked the father what relief he was ultimately seeking, to which he responded, “I believe my children are developing mental illnesses because they're living with their mother. So I want them to do counseling so we can determine if that's what's happening.” The judge then stated that she was “going to dismiss this contempt.” The judge's comments suggest that she was doing so because she found both the substance and the form of the contempt complaint to be deficient. As to the substance, the judge explained to the father that he “need[ed] to file a complaint for modification ․ with what [he was] looking to accomplish.” As to the form, the judge explained that “a contempt is one-liners. Here's the order, this was the violation. Not a whole description.” With that explanation, the judge told the father that he could “go forward on the contempt if they [were] very specific issues on contempt.” The judge declined to hear arguments on the mother's motion for attorney's fees.

Judgment entered later that day, dismissing the contempt complaint with prejudice. In a separate document, also titled a judgment but containing the judge's rationale, the judge stated that “[t]he [c]ourt does not find that [the] [f]ather's [c]omplaint for [c]ontempt is an appropriate pleading to file. If there is a basis for a substantial change in circumstances [the] [f]ather needs to file a [c]omplaint for [m]odification.” The judge recognized that the “[f]ather indicated that there were some provisions regarding shared legal custody that he still wished to pursue on a [c]omplaint for [c]ontempt.” But the judge found those issues to be nonmeritorious, appearing to rely, at least in part, on res judicata grounds. The judge thus ordered that the “[f]ather may not file any future [c]omplaint for [c]ontempt on the issue[s] raised in both his May 1, 2019 [c]omplaint and his July 2, 2019 [c]omplaint.” The judge also ordered the father to pay the mother $2,500 in attorney's fees.

Discussion. The father argues that he was denied the right to be heard before his contempt complaint was dismissed with prejudice. While acknowledging that the judge gave notice at the hearing that she intended to dismiss the contempt complaint, the father asserts that the judge led him to believe that the dismissal would be without prejudice. He further notes that the mother never moved to dismiss and argues that he should have received notice of and an opportunity to respond to any such motion. After reviewing the hearing transcript, we are constrained to agree.

The judge indicated several times at the hearing that the father would have the opportunity to refile his contempt complaint. When the father asked -- “Your Honor, do I have the opportunity to pare some of that down based off of your guidance?” -- the judge explained that, “if [he] want[ed] to refile,” the complaint “should have three lines” and “[n]ot a running narrative.” Later, the judge expressly stated that the father could “go forward on the contempt if they [were] very specific issues on contempt.” When the mother's counsel then complained that the father was “going to file again,” the judge replied, “I can dismiss things. But I cannot prohibit somebody from filing.”

Fairly read, these statements conveyed that the dismissal would be without prejudice and that the father would be allowed to refile his contempt complaint once it was in the proper form. The mother's contention that dismissal was warranted under the doctrine of claim preclusion is not relevant to whether the father was on notice that dismissal would enter with prejudice. The mother did not file a motion to dismiss, nor did the judge indicate at the hearing that she intended to dismiss the contempt complaint with prejudice on the basis of claim preclusion. The father was therefore not on notice of the issue and had no opportunity to respond. Thus, while we believe that the judge was well intentioned,² we conclude that dismissing the contempt complaint with prejudice was in error. See Gomes v. Metropolitan Prop. & Cas. Ins. Co., 45 Mass. App. Ct. 27, 32 (1998) (judge erred in dismissing claims without notice and hearing and without “alerting the parties of his intentions”).³

We also conclude that the issue of the amount of attorney's fees must be remanded for reconsideration.⁴ Judges of the Probate and Family Court have the authority “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). “[M]uch discretion is afforded trial judges in setting counsel fees ‘if their findings of fact are not clearly erroneous.’ ” Id., quoting Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 179 (1986). Here, however, the judge made no findings on how she determined the award, and so we do not know what factors she considered. We cannot ascertain, for instance, whether the judge considered that the dismissal was made sua sponte and not on motion. Remand is therefore necessary for a determination of an award “not incommensurate with an objective evaluation of the services performed.” Ross v. Ross, 385 Mass. 30, 38-39 (1982). See Aroesty v. Cohen, 62 Mass. App. Ct. 215, 222 (2004) (vacating award and remanding “for findings and an award that reflects consideration of the conservative principles appropriate to an award of fees in these circumstances”); Krock, supra at 533 n.6 (“awards in domestic relations litigation are to be governed by caution and restraint, for fees in such cases are awarded strictly on conservative principles”).

Finally, the father's argument that the judge was involved in a criminal conspiracy to fraudulently dismiss his complaint and steal his money warrants no discussion. See Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). Suffice it to say that the argument is unsupported by the record and is wholly without merit.

Conclusion. The two judgments of dismissal each dated and entered on August 7, 2019, are reversed, and the matter is remanded to the Probate and Family Court for the entry of judgment dismissing the contempt complaint without prejudice, and for redetermination of the award of attorney's fees.⁵

So ordered.

Reversed and remanded.

FOOTNOTES

2.   As evident from her comments, the judge was concerned, quite reasonably, that the father's claims were not properly brought in contempt and that he could be liable for a substantial award of attorney's fees were he to move forward. Notwithstanding our disposition here, we agree with the judge's assessment of the substance of the father's claims.

3.   We do not construe the father's brief to be arguing that it would have been error even to dismiss the case without prejudice. To the extent he so argues, we disagree. The judge gave clear notice at the hearing that she intended to enter a dismissal, and the father did not object.

4.   The mother argues that the father waived his challenge to the fees award by not filing a separate notice of appeal from the judge's margin endorsement allowing the mother's motion for fees. We disagree. Two documents titled “judgment” entered on the trial court docket on the same day -- the first is a form judgment, and the second is the document setting forth the judge's rationale. The father's notice of appeal specifies that he is appealing from the second of these judgments, which incorporates the fees award. Contrary to the mother's contention, this was more than adequate to preserve the issue.

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