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Appeals Court of Massachusetts.



Decided: October 08, 2021

By the Court (Rubin, Milkey & Henry, JJ.1)


The defendant husband appeals from a judgment of contempt entered in the Probate and Family Court dated August 30, 2019, entered nunc pro tunc to August 1, 2019, and an August 30, 2019 order awarding attorney's fees to the wife. We affirm.

1. Contempt. “[I]n order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience․ In addition, the defendant must be found to have the ability to pay at the time the contempt judgment enters.” Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). We review a judge's finding of contempt for an abuse of discretion. Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018).

The husband argues first that the judge's statement that “[a]ny and all arrears shall survive the judgment [of contempt]” indicates a lack of conviction that the husband still owed child support arrears. We disagree.

As an initial matter, we note that the husband has not met his obligation to provide an adequate record to permit consideration of his claim. The parties each introduced in evidence Department of Revenue (DOR) records of the husband's child support payment history and payroll withholdings. The wife testified, without objection, that DOR records showed an arrearage of $8,027. The husband did not include these documents in the record. It is an appellant's obligation to provide us with a record sufficient to review the appeal. Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011).

Even considering the husband's arguments on the merits, he fares no better. The husband admitted in his testimony that he had not made most of the child support payments required by the support order in the abuse prevention order dated December 18, 2017, which was incorporated into the temporary order for child support dated April 23, 2018. He was ordered to pay the arrearage in full by May 15, 2018. The findings of fact and rationale in support of the judgment of divorce expressly stated that the judge found that the husband had voluntarily reduced his hours and thereby reduced his income. Accordingly, the judge attributed income to him. The judge also considered the wife's Social Security disability as well as the needs of the children. Poras v. Pauling, 70 Mass. App. Ct. 535, 542 (2007) (“The totality of the paying spouse's circumstances will have to be considered in making this determination [i.e., whether to hold a spouse in arrears in contempt], which involves the exercise of the probate judge's sound discretion”). While it may have been the better practice to state the amount of the arrears in the contempt order, we do not discern an abuse of discretion or reversible error on this record.

The husband also argues that he could not be found in contempt when he was making payments to reduce the arrearage. We disagree. The husband was ordered to pay the arrearage in full by May 15, 2018, and it was undisputed that he did not do so.2

2. Attorney's fees. The husband claims that because the March 25, 2019, contempt order was vacated, the work of the wife's attorney was “frivolous,” and therefore, not properly included in the fee award. The husband also contends that the wife's attorney did not properly record the hours worked on the vacated order of contempt. Here, the March 25 order of contempt was vacated based on lack of service when service was rejected at the address in Georgia that the husband provided. The question of the reasonable amount of attorney's fees rests in the sound discretion of the judge. See Tatar v. Schuker, 70 Mass. App. Ct. 436, 451 (2007); Olmstead v. Murphy, 21 Mass. App. Ct. 664, 665 (1986). We discern no abuse of discretion in including in the fee award “prior time” expended in connection with the complaint for contempt that failed based on lack of service -- an amount verified by affidavit and implicitly found reasonable by the judge.3

Judgment of contempt dated August 30, 2019, affirmed.

Order dated August 30, 2019, requiring defendant to pay attorney's fees affirmed.


2.   To the extent the husband maintains that the judge erred by ordering a judgment that was “detrimental” to the wife and “contrary to” her interest, he does not have standing to raise these arguments. Moreover, nothing is preventing the husband from making voluntary, additional payments towards his arrears.

3.   We also note that the husband failed to object to the wife's motion for attorney's fees when it was brought to the judge's attention at the hearing.

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