Opinion
18-P-1649
12-30-2019
David M. GREIN v. Kristen M. GREIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (father) filed a complaint for contempt against the defendant (mother), alleging that she violated the parties' divorce judgment by not submitting to hair follicle testing at his request. A judge of the Probate and Family Court dismissed the complaint, and the father appeals.
The parties were divorced in 2014. The divorce judgment provides that "[i]f the father believes the mother is abusing alcohol or other substances, he may send an e-mail message or text message to the mother requesting ... [t]hat the mother participate in a hair follicle test at a facility identified in the message, the father to pay for the test in advance." The judgment further provides that "[u]pon receipt of such a message, provided the father has paid in advance for the test, the mother shall promptly report to the testing facility identified in the message and participate in the test, signing a release of information to permit the father to receive the test results."
The judgment contains reciprocal provisions allowing the mother to request that the father participate in hair follicle testing or alcohol testing if she "believes the father is abusing alcohol or other substances."
According to the complaint, the father sent the mother both a text message and an e-mail message on May 16, 2018, asking that she participate in a hair follicle test. The messages included a receipt from the laboratory showing that the father had paid for the test in advance. The mother did not report for the test as requested.
After a hearing the judge concluded, based "upon sworn testimony of both parties," that the father failed to prove that the mother was guilty of contempt. The judge found in particular that the father's request that the mother "submit to the hair follicle test was not advanced in good faith, after due consideration of his proffered reasons." The father argues on appeal that this was error because the divorce judgment did not require him to support his request with reasons. Alternatively, he argues that he proved that his request was made in good faith.
We review the judge's decision only for abuse of discretion. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 (2009). "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Cooper v. Keto, 83 Mass. App. Ct. 798, 804 (2013), quoting Birchall, petitioner, supra at 852.
We discern no abuse of discretion in the judge's determination that the father failed to meet his burden of proving contempt. It is implicit in the divorce judgment that a party's request for hair follicle testing must be advanced in good faith; that is, the requesting party must honestly "believe[ ]" that the other party is abusing substances. At a minimum it was reasonable for the mother to construe the judgment in this manner.
After hearing the sworn testimony of both parties, the judge was warranted in finding that the father's request was not made in good faith. The mother testified that the father had "no reasonable cause" to ask her to participate in a hair follicle test and that he was "us[ing] the court system to harass [her]." The father, for his part, could not articulate a credible reason to support his belief that the mother was currently abusing substances. In these circumstances the judge was within her discretion to conclude that the mother's refusal to submit to the test did not constitute "clear and undoubted disobedience" of the divorce judgment. Birchall, petitioner, 454 Mass. at 853. Cf. Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009) ("husband's disagreement [with how to interpret divorce judgment] or misunderstanding of the issue [did] not constitute clear and undoubted disobedience of a clear and unequivocal command").
The father cited the following reasons: the mother had been found guilty of contempt on May 16, 2018, for not paying medical bills; she was "belligerent" and refused to complete a financial statement; she "has a pattern of drug abuse"; and she "bleached her hair." As the judge indicated, these reasons did not support a conclusion that the mother was currently abusing substances.
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Judgment affirmed.