Opinion
21-P-762
04-07-2022
Michele M. BURNS v. Douglass A. EWALD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Douglass A. Ewald, is the former husband of the plaintiff, Michele M. Burns. He appeals from an amended judgment of dismissal dated August 12, 2021. He also appeals from several related orders that preceded the judgment. We affirm.
Background. The parties, who were divorced in 2014, are the parents of one child. Pursuant to their separation agreement (incorporated into the divorce judgment), Ewald was not permitted to have any contact with the child and the parties further agreed "that there shall not be any complaint for modification [of the custody provision] unless it is in the child's best interest." Since the divorce, Ewald has filed five separate complaints seeking to modify the custody provision. The first four complaints were voluntarily dismissed by Ewald. The fifth complaint was filed in October 2019. On December 21, 2019, the judge issued an order requiring Ewald to undergo a psychiatric evaluation before any relief would be granted on the complaint for modification. The judge also noted in the order that Ewald had threatened Burns's counsel via e-mail and that court employees had expressed safety concerns following their interactions with Ewald. In April 2020, the judge issued a sua sponte order that required all further hearings to be conducted via telephone or video conference and prohibited Ewald from entering the courthouse in light of recent threatening statements that he had made to court staff. In June 2020, Burns obtained a permanent G. L. c. 209A order against Ewald.
Thereafter, in May 2021, the judge issued an order notifying Ewald that if he failed to obtain a psychiatric evaluation within thirty days, his complaint for modification would be dismissed. On June 30, 2021 (as amended on August 12, 2021), the judge entered a judgment that (1) dismissed Ewald's complaint for modification, (2) prohibited Ewald from filing any further complaints for modification unless he first completed a psychiatric evaluation, and (3) ordered Ewald to pay Burns's attorney's fees in the amount of $42,500 in light of Ewald's "recalcitrance and behavior throughout this litigation." This appeal ensued.
Discussion. As best as we can understand, Ewald, who is proceeding pro se, seeks the following relief: (1) to be "immediately reunite[d]" with the child; and (2) to be awarded $3.48 million in "legal damages and [c]ourt [c]osts." The thrust of Ewald's two-page argument is to accuse Burns's counsel of obtaining various court orders under false pretenses for the purpose of "illegally block[ing]" all forms of communication with his former wife and the child. Ewald has not directly addressed the judgment of dismissal or any of the related orders that proceeded the dismissal of his complaint. In any event, we have no doubt regarding the validity of the judge's orders. Because Ewald's mental health was "in controversy," the judge had the authority to order him to undergo a mental health evaluation pursuant to Mass. R. Dom. Rel. P. 35 (a). In addition, dismissal was a proper sanction for Ewald's repeated refusal to comply with court orders. We also conclude that the fee award was wholly appropriate given that Ewald caused Burns to incur $63,000 in legal fees by responding to dozens of filings, attending eleven different hearings, and deposing two witnesses.
Ewald's brief contains only two pages of "argument," which is difficult to follow and does not meet the requirements of Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). Nevertheless, we address the merits of his claims briefly. See Bassett v. Blanchard, 406 Mass. 88, 90-91 (1989).
Mass. R. Dom. Rel. P. 35 (a) states:
"When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."
Amended judgment affirmed.