Opinion
16-P-1211
06-22-2017
June A. MUELLER v. Robert A. MUELLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a judgment entered by the Probate and Family Court, finding him guilty of contempt and awarding the wife $25,000 in attorney's fees. We conclude that the wife failed to prove the sole allegation underlying her complaint for contempt and, accordingly, reverse the judgment. Resolving the appeal on this basis, we do not address the husband's remaining arguments.
The husband also appealed from an amended judgment of divorce nisi. That appeal, no. 16-P-1212, has not been consolidated with this one, and we address it in a separate memorandum and order.
Background. After the wife filed a complaint for divorce, the parties stipulated in May of 2014 that they "shall not use, convey, transfer, spend, access or move any ... monies or property ... other than his/her designated ‘safe harbor account’ unless all counsel for both parties agree in writing by confirmed email." The judge incorporated the stipulation into a temporary order.
On June 29, 2015, the wife filed a complaint for contempt alleging that the husband violated the stipulation "on May 1, 2015[,] by ... [w]ithdrawing $2,362.50 from the [p]arties' joint Merrill Lynch Cash Management Account" without the requisite permission. In her prayer for relief, the wife requested that the husband "be required to pay attorney's fees associated with the bringing of the [wife's] [c]omplaint for [c]ontempt." The judge subsequently appointed a master to make findings on how the marital assets should be divided and whether the husband was in contempt "as alleged in" the wife's June 29, 2015, complaint.
Although both parties filed multiple contempt complaints, there is no dispute that the sole pending complaint before the master was the one filed by the wife on June 29, 2015.
After a hearing the master issued a report finding the husband in "contempt for ... his use of monies ... other than those monies in his ‘safe harbor account’ " and recommending that he be ordered to pay the wife $25,000 in attorney's fees. The master explained that the $25,000 figure "include[d] attorney's fees for the contempt, as well as those incurred through the discovery process." She made no finding, however, regarding the $2,362.50 withdrawal alleged in the June 29, 2015, complaint. Instead, it is clear from her report that she was relying on other acts of financial misconduct that the husband committed during the course of the proceeding.
The judge approved the master's findings of fact, rationale, and rulings of law and incorporated them into an amended judgment of divorce nisi. Separately, in the judgment now on appeal, the judge ruled that "[t]he [h]usband is guilty of contempt as alleged by the [w]ife in her [c]omplaint for [c]ontempt dated June 29, 2015." Based solely on the contempt finding, the judge ordered that the husband pay the wife $25,000 in attorney's fees.
The amended judgment of divorce nisi makes clear that the husband's liability for attorney's fees arises out of the "separate Judgment of Contempt."
Discussion. "A person cited for contempt, civil or criminal,[ ] must be given notice of the charges against him prior to the hearing on the citation." Meranto v. Meranto, 366 Mass. 720, 724 (1975). "Not only must the charges per se be set forth with adequate specificity, but there must be a description of the specific acts [that] underlie the charges." Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 87–88 (1977). A finding of contempt must, in turn, be based on the "specific acts" alleged in the contempt complaint. Meranto, 366 Mass. at 724. See Mills v. Mills, 4 Mass. App. Ct. 273, 278 (1976) ("Charges of other violations can be considered on this petition only if it is amended to include such charges and the defendant is given an opportunity to defend against them"). We review a judge's "ultimate conclusion on the contempt finding" for abuse of discretion. K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).
The husband argues that the judge found him in criminal contempt, as evidenced by the nonremedial nature of the sanction. We need not decide that issue because we conclude that the finding of contempt was erroneous even presuming that the sanction was civil in nature.
The husband contends that the judge abused his discretion here because the wife offered no evidence to support the sole allegation in her contempt complaint—that the husband withdrew $2,362.50 from the parties' joint Merrill Lynch account on May 1, 2015. We agree. As an initial matter, we reject the wife's assertion of waiver. The husband's submissions to the judge, while not models of clarity, were adequate to preserve his argument that the contempt finding lacked a sufficient evidentiary basis.
Turning to the merits, the wife does not contest that there is no evidence in the record relating to the specific act of contempt alleged in her complaint. It was the wife's burden to provide "clear and convincing evidence" supporting that allegation. Birchall, petitioner, 454 Mass. 837, 852 (2009). Because she offered no evidence, let alone clear and convincing evidence, the judgment of contempt should not have entered. See Meranto, 366 Mass. at 724 (where only allegations in contempt petition related to late support payments, "the finding of contempt ... was plainly wrong since ... the husband's payments were substantially up to date"). Cf. Lynch v. Police Commr. of Boston, 51 Mass. App. Ct. 772, 778 (2001) (contempt complaint properly dismissed where it "failed to allege any present disobedience" of court's order).
Although the wife represented at oral argument that such evidence exists, she was unable to provide any record citations. She then declined to file a postargument letter, despite being given leave to do so.
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We disagree with the wife's assertion that the parties stipulated that the master could find contempt based on acts alleged in previously dismissed complaints. The stipulation in question provides that the "parties agree to dismiss their respective complaints for contempt, without prejudice, with the understanding that the issues raised in those complaints will be addressed in the equitable distribution of assets." Consistent with the stipulation, the master's report considers the issues in the dismissed complaints "as part of the equitable division of assets." The stipulation did not authorize the master to consider those issues again as part of the contempt adjudication.
Judgment of contempt reversed.