Opinion
11-P-96
11-09-2011
EUGENE F. MCCARTHY v. MARGARET A. HALE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Margaret A. Hale appeals a civil contempt judgment of the Probate and Family Court in which the judge found that she violated the parties' child support agreement (agreement), apparently entered as a judgment of the court, by failing to execute Internal Revenue Service Form 8332 (Form 8332) upon request by Eugene F. McCarthy. She argues essentially that the contempt finding was unsupported by the evidence, and that the award of attorney's fees to McCarthy was improper given that she prevailed on two of the three claims for contempt. Because the evidence before the trial judge did not support the conclusion that McCarthy asked Hale to execute Form 8332 in a timely fashion, we reverse.
The record includes the agreement, which indicates the parties' consent to entry of the pertinent portions thereof in a judgment, but does not contain the judgment itself.
This form waives an individual's right to claim a child as a dependent in a given year, allowing the other parent to do so.
We have examined Hale's further contentions and find them to be either without merit or not properly before this court.
A finding of civil contempt must 'be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.' Birchall, petitioner, 454 Mass. 837, 853 (2009). The burden of proof is on the party seeking the finding of contempt. See id. at 852-853. On appeal, we review rulings of law de novo and findings of fact for clear error. In the Matter of a Grand Jury Investigation, 437 Mass. 340, 350 (2002). The provision of the agreement that Hale was found guilty of violating is as follows: 'The Parties agree to execute and deliver to the other, federal form 8332 and the compatible state forms, as appropriate, when requested by the other Party but in no event more than one time per year' (emphasis supplied). The agreement indicates that McCarthy would be eligible to claim the parties' child as a dependent in even-numbered years, and so would have been able to request Form 8332 for the 2008 tax year. It also states that, '[i]f either Party will receive no economic tax benefit by claiming the child as provided herein, then the other parent shall be allowed to claim such child as their dependent exemption(s) on his/her tax returns.'
The trial judge held a hearing on the contempt complaint on November 12, 2009. McCarthy's counsel argued that McCarthy requested Hale to execute Form 8332 in March, 2009, while Hale's counsel contended that the issue was not brought up until a letter sent by McCarthy's counsel on June 10, 2009, well after Hale was required to file her tax returns. However, no witnesses were called, sworn, examined, or cross-examined. The only evidence actually introduced was a collection of six letters from McCarthy's counsel to Hale's counsel, as well as a few photographs not relevant to this issue. The first of those letters was dated June 10, 2009, and makes a request for 'the tax releases' necessary to claim the child as a dependent, without referring to any earlier discussion. The agreement called upon Hale to execute Form 8332 only when requested to do so, and there was no clear and convincing evidence that such a request was made in time for the filing of 2008 tax returns. The implicit finding to the contrary was clearly erroneous.
Hale did not explicitly waive her right to an evidentiary hearing, which she could have requested given that material facts were contested. See Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540-541 (2006). Both sides introduced documentary evidence at the hearing, suggesting that they did not intend to proceed solely on representations of counsel. Cf. Abdallah v. Boumil, 4 Mass. App. Ct. 499, 500 (1976). Contrast Harper v. Harper, 329 Mass. 85, 88 (1952) ('The only evidence reported consisted wholly of the statements of counsel, which when uncontradicted may be taken as evidence').
In sum, McCarthy has not satisfied his burden of proof to establish by clear and convincing evidence that he made a timely request for Form 8332. Given our resolution of this issue and that Hale prevailed on the other two contempt charges, the award of attorney's fees cannot stand. See Pedersen v. Klare, 74 Mass. App. Ct. 692, 700 (2009).
Judgment of contempt dated
November 12, 2009, reversed.
Order awarding attorney's fees vacated.
By the Court (Kafker, Trainor & Meade, JJ.)