Opinion
14-P-572
02-20-2015
JONATHAN ALDEN BEDARD v. JACQUELINE RAE CALLAHAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an amended judgment of contempt decided before the Supreme Judicial Court decision in Bower v. Bournay-Bower, 469 Mass. 690 (2014). We address the issues raised under traditional principles applicable to contempt proceedings.
"To find a civil contempt, 'there must be a clear and undoubted disobedience of a clear and unequivocal command.'" Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013), quoting from Birchall, petitioner, 454 Mass. 837, 851-852 (2009). The Probate and Family Court judge here concluded that the command at issue was in material respects ambiguous, but nonetheless found that the mother was in contempt. "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Ibid., quoting from Birchall, petitioner, supra. Based on these principles, and for the reasons that follow, the amended judgment of contempt is vacated and the matter is remanded for further proceedings.
We note that no notice of appeal was filed from the amended judgment, only from the judgment. Nevertheless, we exercise our discretion to entertain the appeal. See Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 410 (2007).
The parties entered into a stipulation on August 6, 2012, that stated, "All disputes related to the child shall first be referred to the Parental Coordinator before being presented to the Court." The stipulation was incorporated into and made part of an August 6, 2012, judgment.
The mother then filed a complaint for modification in November of 2012, alleging, among other things, that the father had raised issues with the parenting coordinator such as "additional holiday time, unscheduled parenting time, and other relief that is beyond the scope of the Parenting Coordinator's appointment." The mother also asserted that she could not afford the services of the parenting coordinator. The father sought to hold the mother in contempt, by complaint dated December 5, 2012, for filing the complaint for modification and an additional emergency motion for sole legal custody, without first consulting with the parenting coordinator. No finding of contempt was issued on this specific basis. Instead, on January 10, 2013, a different judge "off-listed" the complaint for modification until the mother could present her concerns to the parenting coordinator. The mother's share of the parenting coordinator's retainer was paid in full before the hearing and no contempt finding entered for nonpayment.
The judge's finding that the January 10, 2013, order found the mother in contempt for failing to use the parenting coordinator is without foundation in the record.
The father then filed a second complaint for contempt in February of 2013, claiming -- among other things -- that the mother was not cooperating with the parenting coordinator. The judge found that the mother had violated the parenting coordinator provision of the stipulation by filing the November, 2012, complaint for modification and by failing to pay the parenting coordinator, matters which previously had been heard and decided by the judge issuing the January 10, 2013, order.
At the time of trial, the mother testified she was on a payment plan of sixty-five dollars per month for additional fees. The judge did not find much of the mother's testimony credible, but it is not clear from the judge's rationale whether she discredited the mother's testimony that she was paying in accordance with the payment plan. It is for the judge, in her discretion, to revisit this issue on remand.
Moreover, as the judge acknowledged, "Unfortunately the terms of the [parenting coordinator's] appointment are not clearly defined in the Stipulation so the parties have had to even litigate what the role of the [parenting coordinator] has been." Thus, the order was not clear and unambiguous. The judge adjudged the mother in contempt because of her unwillingness to meet or to address issues with the parenting coordinator, or to follow the recommendations of the parenting coordinator. However, nothing in the express terms of the August, 2012, stipulation or judgment required the mother to follow the recommendations of the parenting coordinator, or to meet with him. The stipulation and the judgment required the parties to refer their disputes to the parenting coordinator before coming to court, but set forth no procedure or schedule. Because this language was ambiguous, it cannot be enforced by means of contempt proceedings.
The judge also found the mother in contempt for filing a counterclaim for contempt on April 3, 2013, without first conferring with the parenting coordinator. There was some dispute as to whether the parties had agreed that the parenting coordinator served as a mediator, and whether their substantive communications with the parenting coordinator were privileged and therefore should be excluded. There was, however, evidence at trial that there had been one three-party meeting with the parenting coordinator in January, 2013 -- before the April 3, 2013, counterclaim was filed. Because of the dispute regarding the communications, there was no evidence as to the substance of the January meeting. Hence, there is no clear and convincing evidence that the mother violated the August, 2012, order when she filed the April 3, 2013, counterclaim.
The judge also found that the father's attempts to refer matters to the parenting coordinator were excessive.
It bears emphasizing that we do not disturb the judge's factual findings that the mother interfered with the father's visitation, that the father made excessive use of the parenting coordinator, and that the history of the case shows a high degree of litigiousness.
The judge also found that the mother was in contempt by bringing a motion "seeking an elimination of the" parenting coordinator. After the father's second complaint for contempt was filed, the mother sought removal of the parenting coordinator, claiming an apparent conflict of interest, her inability to pay, and her surprise at learning that the father was having individual meetings with the parenting coordinator.
The motion was denied by a different judge without opinion on April 10, 2013.
Neither the parties nor the judge had the benefit of Bower at the time the stipulation was entered into or approved. Nor did the judge have the benefit of Bower when she made her findings of contempt and imposed new terms for referral to the parenting coordinator. While Bower states that a parenting coordinator agreement may be enforced according to contract principles, Bower also states that an order requiring the use of a parenting coordinator prior to seeking relief in court, when imposed over the objection of a party, raises significant due process concerns, and that the appointment of a paid parenting coordinator may generate expenses that violate our State Constitutional guarantee of the right of access to the courts. 469 Mass. at 701-703, 709.
In view of our earlier discussion, see note 4, supra, we need not reach the judge's finding that the mother was in contempt for filing a counterclaim for contempt on April 3, 2013, without first going to the parenting coordinator, while her motion to remove the parenting coordinator was pending. We also need not decide whether, and in what circumstances, consent to referral to a parenting coordinator may be withdrawn, or the effect of a subsequent objection to the use of a parenting coordinator.
In light of these concerns, the amended judgment of contempt is vacated and the matter is remanded for further proceedings consistent with this decision.
We decline the mother's request for appellate attorney's fees and double costs. We also decline the father's similar request
So ordered.
By the Court (Grainger, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 20, 2015.