Opinion
11-P-827
03-07-2012
MARIO A. RANIERI v. AMY K. McCARRON.
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
The father, Mario A. Ranieri, who lived in Brighton, had sole legal custody of the parties' fourteen year old son, but the mother, Amy K. McCarron, who lived in Andover, had physical custody. The father had visitation, but the son apparently did not like to travel to or stay in Brighton. On May 19, 2010, a Probate Court judge allowed the mother's motion for temporary orders in part, suspending the father's visitation 'pending the father's move back to Andover area.' The judge also ordered that the son 'shall attend weekly counseling until further order.' On May 25, 2010, the judge issued an order providing that 'Child is in counseling on Thurs. . . . visitation to commence by father's pick up of [son] at counseling' and specifying that 'Tuesday visitation to resume upon father's return to residence in Lawrence area.'
On Thursday, May 27, 2010, the mother dropped the son off at the counseling session at approximately 5:00 P. M. The father actually arrived shortly thereafter, in time to see the mother leave, and he waited for the son in the waiting room. When the son emerged from counseling, he and the father walked to the father's car, but the son was hesitant and would not get in the car. The father was trying to talk to the son when, after a short period, the mother reappeared in her car. The mother testified that she had received a telephone call from the son while he was at the counselor's office. The father continued to try to get the son to go for the visit or talk, and tried to include him in a telephone conversation with the father's girlfriend. According to the mother, she waited nearby in her car for about twenty minutes, then asked the son if he wanted her to wait for him. After about twenty to twenty-five minutes more, she asked again. According to the father, the mother said to her son, 'Come on, let's go . . . [y]ou don't have to talk . . . . Come on . . . we can leave now.' The mother further testified that the current husband called the police, matters degenerated, and there was no further visit between the father and son that evening.
The son did not testify, and the judge sustained objections during the mother's testimony regarding what may have been said by the son during the phone conversation. The validity of that evidentiary decision has not been raised on appeal.
On June 2, 2010, the father filed a complaint for civil contempt, alleging that the mother violated the court's visitation orders 'by refusing to allow the minor child to visit with his father in contradiction with this Court's direct orders to do so.'
The father also alleged that the mother had obtained a G. L. c. 209A order against him by misleading the District Court to believe that there were no Probate Court proceedings pending. The judge in the instant matter did not rely on this allegation in finding the mother in contempt, and the record we have been presented does not provide sufficient information for us to consider this issue independently.
--------
On June 14, 2010, after an evidentiary hearing at which both the mother and father testified, the judge entered an order finding the mother guilty of civil contempt 'for having wilfully neglected and refused to allow the plaintiff visitation with the minor child on May 27, 2010 by picking up the child after counseling in the parking lot -- interfering with the scheduled visit ordered prior thereto.' There were no other specific fact findings resolving differences between the testimony of the father and the mother regarding the events at the pick-up. On September 29, 2010, this order was incorporated into the terms of a judgment, and the judge awarded the father costs and attorney's fees in the amount of $2,193.75. The mother has appealed from the order of June 14, the judgment of September 29, and the order awarding attorney's fees (but not from the subsequent order of December 15, 2010).
A finding of civil contempt requires 'a clear and undoubted disobedience of a clear and unequivocal command.' Birchall, petitioner, 454 Mass. 837, 852-853 (2009), quoting from Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699, 700 (1995). Proof must be by clear and convincing evidence. Ibid. We conclude that the judge's temporary orders respecting the father's visitation were clear and unequivocal. What was less clear, however, was whether the mother's return to the parking lot, and discussions with her son, were a 'clear and undoubted disobedience' in light of the telephone call she apparently received from the son concerning his reluctance to accompany the father. This is a close question, especially in the absence of (1) evidence of what the son said on the phone, (2) credibility determinations resolving differences in the mother's and father's testimony about what occurred in the parking lot, particularly whether the mother told the son he did not have to continue visiting with his father, and (3) a better record concerning the mother's past compliance or interference with the father's visitation. We ultimately conclude that the mother's return to the parking lot alone did not constitute clear and convincing evidence of a clear and undoubted disobedience of the judge's order, and we cannot discern from this record what else she did and why she did it. We are therefore compelled to vacate the judgment of contempt and the September 29, 2010, order imposing the payment of attorney's fees by the mother.
So ordered.
By the Court (Berry, Kafker & Mills, JJ.),