Opinion
21-P-898
06-30-2022
NAROMIE SAINT-CLAIR v. DARDINY SAINT-CLAIR.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is an appeal by Dardiny Saint-Clair (father) of a judgment of contempt dated April 12, 2021. This case has a somewhat complex history. On January 10, 2019, the trial court issued a judgment and rationale on the complaint for separate support filed by Naromie Saint-Clair (mother). That judgment ordered the father to pay $300 per week in child support, nunc pro tunc from June 15, 2018. It also ordered the father to pay $8,142.50 in child support arrears within 90 days. The father did not appeal from that judgment, and so the orders for payment of these amounts became final and may not be contested in this appeal.
On March 18, 2019, the trial court issued a supplemental judgment and rationale (supplemental judgment). This recalculated the father's child support obligations for 2018 and 2019 as well as current child support. It ordered current child support of $422.50 per week and recalculated his child support arrears as $13,695, to be paid by June 30, 2019.
The defendant filed an appeal of this supplemental judgment. Although the supplemental judgment was not stayed pending appeal, a panel of this court concluded on May 18, 2020, in a memorandum and order issued pursuant to our former Rule 1:28, that the judge erred in calculating the child support order by using an erroneous 2019 weekly income figure. Saint- Clair v. Saint-Clair, 97 Mass.App.Ct. 1118 (2020). The $422.50 per week nunc pro tunc order contained in the supplemental judgment, as well as some corresponding arrearage, was based on a finding of fact that the father's weekly income in 2019 was $1,613.60. Id. The paystub on which that amount was based was apparently misread by the judge, because it indicated that in fact the father's weekly pay was $979.52. Id. We vacated the child support order that required the father to pay child support to the mother in the amount of $422.50 weekly, and remanded the case to the Probate and Family Court for further factual findings, including the rationale, if any, for determining that the father's weekly income in 2019 was $1,613.60. Id.
On December 14, 2020, the judge issued a memorandum and order. It indicated that the remand of the supplemental judgment as well as a complaint for contempt filed by the mother on October 22, 2019, remained open. With respect to the original supplemental judgment, the judge concluded that the portion of the supplemental judgment requiring the father to pay the mother nunc pro tunc from June 15, 2018, $445 per week through January 4, 2019, remained in full force and effect, and was not affected by the decision of this court on appeal. Utilizing that amount, the judge calculated that there were an additional $4,350 of child support arrearages over and above those stated in the January 10, 2019, judgment, for a total arrears balance up to January 4, 2019 of $12,492.50.
After reviewing all submissions, the judge found that the father's income for 2019 was $1,070.65 weekly. This resulted in a guidelines calculation of $218 of weekly child support for the period January 4, 2019, through September, 2019. As the judge had done with all previous child support orders, she deviated above that guidelines number by 25% due to the father's lack of physical presence in the life of the child, who is in the mother's physical custody. Consequently, she ordered child support for the period from January 4, 2019, through September 20, 2019, in the amount of $272.50, and from the period beginning on September 27, 2019, when there was an increase in the mother's income, to the present, ordered child support in the amount of $248.75 per week.
Regarding the complaint for contempt filed by the mother, the judge concluded that, although the amount of the father's 2019 income was at issue in the appeal of the supplemental judgment, those aspects of the January 10, 2019, judgment and the supplemental judgment that did not depend on his 2019 income, remained in full force and effect. The judge found that the father had failed to comply with the order regarding payment of the established arrears and therefore would be found in contempt. The judge ordered presentation of an updated affidavit of fees concerning the contempt action to be presented at a subsequent hearing and ordered the parties to work together to calculate the current arrears based on payments made by the father during the pendency of the action.
Notwithstanding the conclusion just described, that the father would be held in contempt for failure to pay arrearage, in the memorandum and judgment dated April 12, 2021 on the complaint for contempt - the one on appeal here - the judge instead concluded that the father had violated a "clear and unequivocal order for father to pay weekly support" pursuant to the supplemental judgment. The judgment of contempt also concluded that child support arrears as of March 26, 2021 were $8,762.18, that the father should continue to pay child support in the amount of $248.75 each Friday, and that in order to address the outstanding arrearage, an additional payment of $62.20 per week should be made.
The judge acknowledged that following the entry of the January 10, 2019, judgment in which the father was ordered to pay $300 per week in child support, the father in fact paid $325 per week for four weeks and $400 per week for nine weeks through March 29, 2019. Following the entry of the supplemental judgment, however, the father stopped paying the $400 per week he had been paying and "began to make sporadic payments, paying $0 for several weeks at a time and then paying random amounts such as $600 twice a month from April 2019 through July 2019, and then one payment of $600 in August 2019 followed by bimonthly payments of $558 twice a month through August 2019[,] etc. Several weeks would go by with no payment of support and no explanation from [f]ather."
The judge found that "there was clear and unequivocal order for [f]ather to pay weekly support. Father deliberately and willfully failed to comply with that order by failing to make weekly support payments. Father is therefore found in contempt for each week in which he failed to make weekly child support payments."
Put another way, the father was found in contempt for failing to pay what turned out to be an erroneously large weekly child support payment. The order to make those payments, however, was not stayed pending appeal, and we agree with the judge that the order was clear and unequivocal.
Of course, holding someone in contempt for failure to pay an amount that was erroneously calculated and larger than it should have been may work a substantial unfairness. Any unfairness, however, is addressed by the rule that one cannot be held in contempt for failure to pay an amount that one is not able to pay. Salvesen v. Salvesen, 370 Mass. 608, 611 (1976).
The father argued below, as he does before us, that he did not have the ability to pay. The judge rejected that argument stating, "[f]ather was, up until the entry of the March 18, 2019 [s]upplemental [j]udgment paying $400 per week, $100 more than the order in effect at the time of the payment. The court does not find it credible that he was suddenly unable to pay the $422.50 order or in fact any amount of support for several weeks at a time."
Of course we recognize that it was the conclusion of this court that the $422.50 per week order was in error due to a mistaken finding of fact by the judge concerning the father's income. Nonetheless, on this record we cannot say that the judge's finding was clearly erroneous that the father had an ability to pay the ordered amount. The judgment of contempt therefore is affirmed. This means there was authority for the judge to order the father to pay the mother's attorney's fees, and we see no error or abuse of discretion in the amount of those fees calculated by the judge.
The father appears to contest all of the judge's conclusions, although we have some difficulty understanding some of his arguments. To begin with, to the extent he challenges the initial arrearage amount that was set out in the original January 10, 2019, judgment, that judgment was not appealed from and has become final and we have no authority to disturb it. To the extent the father argues that the amounts calculated for child support from 2019 forward remain erroneous in some way, we do not think that he has made the case. The father specifically asserts that he should have been given credit for a payment of $822 that was apparently seized by the Department of Revenue, but, at least on the record before us, the judge's conclusion that he had not met his burden of proving the money in fact went to the mother is not clearly erroneous.
The mother asserts that the father in fact agreed that these amounts were correct in the trial court. We do not have in our record appendix adequate documentation to assess this claim.
"As appellant, it [was the father's] obligation to provide an adequate record for review." Smith v. Jones, 67 Mass.App.Ct. 129, 134 (2006).
The father complains that the arrears were "created," which we take to mean that he objects to the creation of arrearages through the alteration of child support obligations nunc pro tunc. The adjustment however of child support amounts nunc pro tunc is not by itself a basis for objection to the imposition of an arrearage. To the extent the father objects to the 25% departure from the guidelines amounts, we are not persuaded that there was any error of law or abuse of discretion in the judge's imposition of that departure.
Much of the father's brief involves a complaint about the mother's actual income. We see no error in the calculation of child support by the judge. If the mother's income has changed since the entry of the order at issue here, or indeed, if the father has become aware that her income is different from what was reported to the court prior to the entry of the order, he may of course seek modification.
Beyond this, the father raises a laundry list of objections that appear unrelated to the order actually on appeal before us and which we have no authority to address. These include apparently seeking relief for payments made for the child's private school, an issue that does not appear to have been raised below. The father also asks for a number of forms of relief that are not available in a proceeding like this, the purpose of which is to determine the proper amount of child support and whether the father was in contempt for failure to adhere to orders of the court. These include a request for "restitution" from the Commonwealth of Massachusetts, including for money that might otherwise have been placed in a college account for the parties' child, a claim for college tuition and a return of payments made under the contempt order to the mother's attorney's law firm, and a request for "restitution" from the probate court, the county, and the State for airfare, lost wages, funds taken from the father's 401K, and attorney's fees. Of course, none of these are available in this proceeding to which none of the named entities are even a party.
Finally, the father asks that we order the case to be reassigned to a different judge. We see no basis for doing so.
The father asserts that he has brought a motion for recusal before the judge and that she has never ruled upon it. Were we to treat the judge's action in proceeding without ruling on that motion as a denial of the motion sub silentio, we would have no basis for reversal, as the father has not shown it would have been an abuse of discretion. "The matter of recusal is generally left to the discretion of the trial judge, . . . and an abuse of that discretion must be shown to reverse a decision not to allow recusal." Haddad v. Gonzalez, 410 Mass. 855, 862 (1991). Accord Tatar v. Schuker, 70 Mass.App.Ct. 436, 451 (2007). Because the judge does not appear to have ruled upon the motion, the father will be entitled to renew it should there be further proceedings in the trial court.
The judgment of the Probate and Family Court is affirmed. The mother has requested fees and costs and, under G. L. c. 215, § 34A, having prevailed she is entitled to reasonable appellate attorney's fees and expenses. See Kennedy v. Kennedy, 400 Mass. 272, 275-276 (1987) (awarding appellate attorney's fees in contempt action). She therefore shall have fourteen days from the date of the rescript to submit to this court an application for appellate attorney's fees and costs, together with supporting documentation, under the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment of contempt dated April 12, 2021, affirmed.
The panelists are listed in order of seniority.