Opinion
20-P-1113
06-07-2021
Lindsey J. TSAVIDIS v. Kostantinos TSAVIDIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In June 2020, the defendant father brought a complaint for contempt against his ex-wife, the plaintiff mother, alleging that her failure to produce their four year old son for travel to Greece violated their separation agreement, as incorporated into their judgment of divorce. After a hearing, a Probate and Family Court judge found the mother not guilty of contempt, and the father appealed. We affirm.
We review the judge's finding of no contempt for abuse of discretion. See Voorhis v. Relle, 97 Mass. App. Ct. 46, 54 (2020). "To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command" (citation omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). "The contempt must be proved by clear and convincing evidence, and the judge is to consider ‘the totality of the circumstances.’ " Voorhis, supra at 54, quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009).
The parties' 2019 separation agreement stipulated that the son was to spend time in Greece with the father each summer and obligated the father to provide the mother with flight information and copies of return tickets by May 1 each year. The father failed to do so in 2020 and the mother did not produce the child for travel that year.
The father argues that his obligations to furnish the flight information and return tickets were excused by the impossibility of his performance, citing the COVID-19 pandemic. See Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371, 373 (1991). As a threshold matter, we note that there is no evidence in the record to support that claim. The father asserts that the parties stipulated to certain facts concerning the pandemic at the contempt hearing, but did not provide us with a transcript of that hearing. It is the appellant's burden to provide us with a record sufficient to evaluate any claimed errors, and the father's failure to do so here is fatal to his arguments. See Allen v. Christian, 408 Mass. 1007 (1990). See also Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).
Even accepting that the father's impossibility argument had a basis in the record, we cannot say the judge's finding of no contempt was an abuse of discretion. First, the requirements to furnish the flight information and return tickets are fairly viewed as a conditions precedent to the mother's obligation to produce the child for travel, and after the father failed to satisfy those conditions the mother's obligations were no longer "clear and unequivocal." Birchall, 454 Mass. at 851. Cf. Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420-421 (2005) (failure to perform contractual conditions precedent excuses nonperformance by counterparty). Second, the same pandemic-related considerations that the father offers as proof of impossibility also make plain that the mother's obligations were not "clear and unequivocal" at the time, in the unique circumstances of the pandemic -- including but not limited to shifting and often indefinite travel restrictions, an evolving understanding of transmission vectors, and the then-unknown risk the disease posed to young children. Birchall, supra. We discern no grounds to disturb the judgment.
The father also complains that the judgment constituted an improper modification of the custody order. Such modification is within the court's power at a contempt proceeding, see Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233, 234-235 (1979), and we cannot say on the incomplete record before us that the judge abused her discretion in doing so. We note as well that the judge provided alternative contact between the child and the father during the summer, despite the inability to travel to Greece.
Judgment affirmed.