Opinion
20-P-720
05-13-2021
Joseph AUSTIN v. Adrienne MCGLONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties, Adrienne McGlone (mother) and Joseph Austin (father), who were never married, have one child together. The child was born in 2005. On December 23, 2019, following a trial on the mother's complaint for modification and the father's counterclaim for contempt, a judge of the Probate and Family Court issued a judgment denying the mother's requests for sole legal custody and for permission to apply for a passport for the child over the father's objection, and adjudicating the mother guilty of contempt for failing to comply with the parenting time provision of a prior judgment dated May 30, 2013 (2013 judgment). The mother appeals from the December 23, 2019, judgment, principally challenging the contempt adjudication. We reverse the portion of the judgment adjudicating the mother in contempt. The remainder of the judgment is affirmed.
Discussion. We review a judge's decision on a complaint for contempt for abuse of discretion. See Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). In a civil contempt proceeding, the plaintiff has the burden of proving, by clear and convincing evidence, "two elements: ... (1) clear disobedience of (2) a clear and unequivocal command." Id. Here, the mother argues that the contempt finding cannot stand because the parenting time provision in the 2013 judgment is too vague to satisfy the second element of contempt (clear and unequivocal command). We agree.
"[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
"[T]he requirement for clear and unequivocal language is designed to insure that all who are subject to an order's command have fair notice of the conduct the order prohibits." Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002). "[V]ague or ambiguous language in a judicial decree will not suffice," and "[a]mbiguities are regularly resolved in favor of the alleged contemnor." Id. Here, the judge found that the mother had "failed to comply with the parenting schedule set forth in the [2013 judgment]." The 2013 judgment provided, in relevant part, that the "[f]ather shall have visitation with [the child] at reasonable times as agreed with [the] [m]other." Although the 2013 judgment entitled the father to visitation at "reasonable times," the term "reasonable" was not defined. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 566 (1997), citing Pendoley v. Ferreira, 345 Mass. 309, 310 (1963) (injunction referring to "unreasonable manner" and "reasonable enjoyment" rejected as too "generally phrased"); Smith v. Atlantic Props., Inc., 12 Mass. App. Ct. 201, 210 (1981) ("reasonable dividend at the earliest practical date" too vague to enforce through civil contempt). Moreover, the 2013 judgment contained no parenting schedule specifying the periods during which the father was entitled to visit with the child. Compare O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 153-154 (2003) (affirming contempt finding against mother where she refused to produce child for visitation on dates specifically assigned to father in judgment). Instead, the father's parenting time was to be determined by agreement of the parties. See O'Connell, supra at 150 ("The requisite unequivocal clarity [to support a contempt finding] requires more than a general statement that might or might not include the accused[ ] [contemnor's] conduct").
We therefore conclude that the visitation provision in the 2013 judgment is too vague to constitute a clear and unequivocal command. See Sax, 53 Mass. App. Ct. at 772. In the absence of a clear and unequivocal command, it was an abuse of discretion to find the mother in contempt. See Smith, 93 Mass. App. Ct. at 363.
We note that although the judge chose not to impose sanctions in connection with the contempt finding against the mother, the contempt finding could have been considered by a judge in a future custody proceeding. Given that potential collateral consequence, we do not think it an "empty exercise" to determine whether the mother should have been held in contempt, notwithstanding the lack of sanctions. Keville v. McKeever, 42 Mass. App. Ct. 140, 154-155 (1997).
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The mother also claims error in the denial of her request for permission to apply for a passport for the child, arguing, among other things, that the judge improperly excluded certain evidence. We have conducted a careful review of the record and discern no abuse of discretion or error of law. To the contrary, the judge gave the parties a full opportunity to be heard, and the mother conducted a fulsome cross-examination of the father. Ultimately, questions of credibility are for the judge to resolve. Here, we are confident that there was nothing unfair about the proceedings.
Conclusion. So much of the December 23, 2019, judgment that adjudicates the mother guilty of contempt is reversed. The remainder of the judgment is affirmed.
So ordered.
Reversed in part; affirmed in part