Opinion
16-P-885
06-26-2017
Kimberlie D. CONDON v. John V. CONDON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Condon (husband) appeals from a judgment of a Probate and Family Court judge finding him guilty of contempt for violating a temporary order by sending a disparaging text message to his ex-wife, Kimberlie Condon (wife). On appeal, the husband argues that the judge abused her discretion by finding him in civil contempt of the temporary order. We affirm.
Background. The wife commenced divorce proceedings on August 8, 2013. After a hearing on October 9, 2013, the judge granted a temporary order stipulating, among other things, that the husband "shall not interfere with the personal liberty of [the w]ife."
On October 29, 2015, the wife filed a complaint for contempt claiming that the husband had violated the temporary order by sending a text message to her on or around October 26, 2015, which stated:
"You have no moral authority to claim the children's best interest anymore. You [smashed] yourself in the face over and over, then you told them and the court that I threw a curling iron at your mentally deranged head. They know this. They don't trust you. It's obvious by the way [daughter] can't stand to be in the same room with you. You ruined their family and their financial future so you could starve and puke in the shower with no husband around to tell you you're a [deranged] freak. So go away and stay out of our lives. We do not want you."
After a hearing, the judge found the husband guilty of contempt for violating the temporary order by "impinging upon [the wife's] personal liberties" by making statements "to the extent of verbal insults and abuse." The judge further found that "[s]uch behavior cannot help but have a chilling effect upon [the wife], and most certainly adversely impact [the wife's] willingness to communicate with [the husband] on important matters for the sake of the children." The husband appeals from the judgment of contempt.
Discussion. In order to find an individual in civil contempt "there must be a clear and unequivocal command and an equally clear and undoubted disobedience." Nickerson v. Dowd, 342 Mass. 462, 464 (1961). The court order must be sufficiently clear so that the party to be bound is provided with adequate notice of the required or prohibited activity. See Warren Gardens Hous. Co-op. v. Clark, 420 Mass. 699, 701 (1995). The judge's ultimate finding of contempt is reviewed for abuse of discretion. See L.F. v. L.J., 71 Mass App. Ct. 813, 821 (2008). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 183 n.25 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
Here, the husband acknowledges that the prohibition in the October, 2013, temporary order prohibiting the husband from "interfer[ing] with the personal liberty" of the wife is a routine order in a divorce proceeding, and that the language was clear and unambiguous in its ordinary usage. He submits a dictionary definition, which defines "personal liberty" as "the liberty of an individual to do his or her will freely except for those restraints imposed by law to safeguard the physical, moral, political, and economic welfare of others." Random House Dictionary of the English Language 1075 (1973) Accord Black's Law Dictionary 1058-1059 (9th ed. 2014) ("One's freedom to do as one pleases, limited only by the government's right to regulate the public health, safety, and welfare"). The husband argues that the judge's interpretation of the order to prohibit statements he acknowledges were abusive went beyond the scope of the language of the order. While this is a close question, we discern no abuse of the judge's very broad discretion in her determination that the husband violated the order. The "personal liberty" language at issue here derives from G. L. c. 208, § 18, which provides:
"The probate court ... may, upon petition of the wife, prohibit the husband, or upon petition of the husband, prohibit the wife from imposing any restraint upon her or his personal liberty during the pendency of the action for divorce. Upon the petition of the husband or wife or the guardian of either, the court may make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty."
G. L. c. 208, § 18, as amended through St. 1989, c. 341, § 93. One purpose of this statutory grant of authority is to "allow[ ] a judge to respond with some immediacy and flexibility to harassing behaviors that may be temporarily exhibited by parties during divorce proceedings, but which do not rise to the level of ‘abuse’ justifying 209A." Hennessey v. Sarkis, 54 Mass. App. Ct. 152, 155 (2002). See Sertel v. Kravitz, 54 Mass. App. Ct. 913 (2002). While the better practice is for Probate and Family Court judges to expressly state that one spouse should not harass or verbally abuse the other, we conclude that the order was sufficiently clear. The judge's finding that the husband's text constituted "clear and undoubted disobedience" of the order because it interfered with the wife's willingness to communicate with the defendant for the sake of the children did not fall outside the range of reasonable alternatives and was not an abuse of discretion. In the text, the husband purported to speak for the children and interfered with the wife's parental relationship with them.
At argument, the husband also challenged the further order that "[the husband] shall conduct all communications with [the wife] in a straightforward, polite and dignified manner" as ambiguous. The husband was not alleged to have violated this new order. As the parties have not briefed this issue, we need not address it. See Mass. R. A. P. 16(a)(4), as amended 367 Mass. 921 (1975). The husband agrees that it would not be ambiguous to the extent it means he should not disparage the wife and should be construed that way.
Judgment affirmed.