Opinion
No. 15–P–879.
10-04-2016
Paul F. HARDIMAN v. Katheryn M. HARDIMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Katheryn M. Hardiman (mother) appeals from a contempt judgment contending that there is no proof in the record demonstrating that she violated a clear and unequivocal order. For the reasons that follow, we vacate the adjudication of contempt and the related order awarding the mother's former husband, Paul F. Hardiman (father), his attorney's fees and costs, and remand the case to the Probate and Family Court for further findings.
Background. We recount the facts from the judge's findings, supplemented, where necessary, with undisputed facts from the record . After eighteen years of marriage, the parties divorced in March, 2013. They share legal custody of their three children. In relevant part, their separation agreement (agreement) required the parties to consult with each other regarding the education of their children. The agreement stated that “[a]ll decisions regarding ... selection of educational institutions ... shall be made by both parties in light of the circumstances, needs and desires of the children.” Furthermore, the agreement states that “[t]he parties have agreed that their children shall attend private school.” At the time of the divorce, the children attended Catholic private school. The father paid the son's high school tuition, and tuition for the two daughters to attend Saint Patrick's elementary school (St.Patrick's) was paid by “other family members.” The agreement further states, “If these family members cease paying for these tuitions, neither [parent] shall be obligated to pay any private school costs.”
The father did not submit an appellate brief.
At some point during the spring of 2014, an issue arose as to whether the daughters would continue to attend St. Patrick's. The mother wanted the girls to attend public school while the father wanted the girls to remain at St. Patrick's. On June 6, 2014, a parenting coordinator engaged by the parties reported that the parties had failed to reach an agreement between the choice of public or Catholic school for the daughters. Then, on July 1, 2014, the father filed a complaint for contempt, alleging that the mother had violated the agreement by “unilaterally taking steps to enroll [the daughters] in the Stoneham Public School system despite Father's objection and offer to pay the full costs of the girls['] attendance at St. Patrick's School, Stoneham, MA, where they currently attend.”
After a hearing at which the mother appeared pro se and the father appeared with counsel, the probate judge found the mother in contempt. In his findings, the judge stated that he considered documentary evidence “in the form of an [electronic mail message (e-mail) ] from mother” from which he concluded that the mother “without consulting with and in defiance of father's shared legal custody, had taken steps to place the children in public school and to discontinue their attendance at their current Catholic School.” The judge also relied on what he described as a “poignant written message” by the parties' twelve year old daughter in which the child expressed distress at the prospect of switching schools. The judge further found that the mother had “rebuffed” the father's attempts to resolve the dispute. The judge went on to conclude that the mother was guilty of contempt and ordered the father to file an updated affidavit and request for attorney's fees. Lastly, the judge allowed the father's motion to restrain the mother from enrolling the children in public school.
The record indicates that the written message may have been an Instagram post.
The father's complaint for contempt included a request for attorney's fees in the amount of $2,750.
A hearing on the father's updated request for attorney's fees was held on October 29, 2014. Both parties appeared with counsel. On the following day, the judge issued a written order requiring the mother to pay attorney's fees and costs in the amount of $4,552.50.
Discussion. A finding of contempt requires “a clear and undoubted disobedience of a clear and unequivocal command.” Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699, 700 (1995), quoting from United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972). The burden in a contempt action is on the complainant to prove such disobedience by clear and convincing evidence. Birchall, petitioner, 454 Mass. 837, 852–853 (2009). We review the judge's ultimate conclusion on the contempt finding for abuse of discretion. See K.A. v. T.R., 86 Mass.App.Ct. 554, 567 (2014).
We have carefully reviewed the record, such as it is, and conclude that the judge's findings do not support a judgment of contempt. Assuming without deciding that the provision of the agreement at issue constitutes a clear and unequivocal command, the judge's findings do not specify what “steps” the mother took in undoubted disobedience of the separation agreement to enroll the children in public school, nor does the e-mail in the record support a finding that the mother took any such steps. The absence of any findings identifying the actions taken by the mother precludes a judgment of contempt. As such, the judgment of contempt and the related order awarding attorney's fees and costs to the father must be vacated, and the case remanded for the judge to make further findings on the contempt issue.
The record in this case borders on the inadequate. We recognize that the mother's counsel properly filed a motion in the Probate and Family Court to clarify the record “to determine what documents, if any, were offered and or admitted into evidence, reviewed by this Court in reaching its conclusion that the [mother] was in Contempt,” and the motion was denied. On the other hand, the mother's brief makes reference to certain transcript pages that she has not provided to us. This is the mother's appeal and, therefore, she has the burden to produce an adequate record. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 603 n. 50 (2007).
We do not view the agreement as clearly prohibiting either parent from making inquiries about a change in schools or from raising the issue with each other or the parent coordinator.