Opinion
20-P-1270
07-16-2021
Saira HASHMI v. Harun A. OMER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Harun A. Omer (father) appeals from a contempt judgment entered against him in the Probate and Family Court and the incorporated order granting the mother fourteen days of make-up parenting time. On appeal, the father challenges the judge's determination that the father failed to abide by a clear and unequivocal visitation order and argues that he was denied due process by the judge's acceptance of evidence after the hearing. As we discern error only in the finding of contempt for one of the dates included in the judge's order -- May 4, 2020 -- we vacate so much of the judgment as includes that date and affirm the judgment in all other respects.
The mother filed an appearance in this appeal but did not submit a brief.
Background. We summarize the undisputed facts. The father and Saira Hashmi (mother) were married in 2011 and have one child, who was born in 2012. The mother filed a complaint for divorce in 2013, and a judgment of divorce nisi entered in June, 2015. Under the terms of the divorce judgment, the mother assumed sole legal and physical custody of the child subject to the father's parenting plan. Later, however, acting on the mother's complaint for modification and the father's counterclaim, a probate judge transferred custody of the child to the father. The resulting judgment granted the mother parenting time on alternating weekends, with the details of the schedule dependent on the child's school and camp schedule: when school was not in session, the mother's weekend visitation began Friday at 2:30 P.M. and ended Monday at 6 P.M. , with exchange at the Brockton police station (out-of-session schedule); when school was in session, the mother's weekend visitation began at the end of the school day, where the mother would pick up the child from school, and end with a "timely" return of the child to school on Monday (in-session schedule). The mother was also granted parenting time with the child on alternating Tuesday afternoons, subject to the same in-session and out-of-session scheduling differences.
A supplemental judgment issued on July 14, 2015.
While she had custody of the child, the mother engaged in what the judge characterized as "extreme efforts to frustrate [the] [f]ather's relationship with [the child]."
The same schedule applied to both school and camp days; for convenience, we omit specific reference to the camp days.
In March, 2020, the father began homeschooling the child due to COVID-19 concerns. As we discuss in more detail, infra, the parties disagreed on the parameters of the mother's parenting time after the father began homeschooling the child. Within two weeks of withdrawing the child from school, the father filed a complaint in the Probate and Family Court for modification of the parenting time portion of the judgment in which he sought, inter alia, orders that the child's schedule be considered in-session at his home while being homeschooled, and that the mother's parenting time be suspended until after the COVID-19 crisis had been "reasonably mitigated." A judge dismissed the complaint in light of the mother's then-pending appeal of an earlier judgment.
The propriety of that ruling is not before us in this appeal.
Ultimately, on April 13, 2020, the mother filed a complaint against the father in which she made three allegations of civil contempt. A telephonic hearing was held June 26, 2020, and the judge held a limited evidentiary hearing; the father testified and argued on his own behalf while the mother proceeded on her counsel's oral argument and documentary submissions. See, e.g., Kraft v. Police Commr. of Boston, 417 Mass. 235, 239, 241 (1994) (no error where judge did not take live testimony). In a judgment dated July 28, 2020, the judge found the father guilty of contempt for his failure to allow the mother's parenting time on March 17, March 31, March 20–23, April 3–6, May 4, May 12, and "other diverse dates," and the mother was granted fourteen days of make-up parenting time. This appeal followed.
Telephonic hearings at this time were consistent with Massachusetts Probate and Family Court Standing Order 2-20, "Court Operations Under the Exigent Circumstances Created by COVID-19," effective March 18, 2020 ("Whenever practical and possible, the Court shall conduct hearings by telephone or videoconference rather than ... in person").
The father did not object to this procedure.
The father was found not guilty of two other allegations, a failure to communicate with the mother regarding the child's extracurricular activities and a failure to provide her with information regarding the child's medical issues.
Discussion. 1. Contempt. a. Standard of review. "We review the judge's ultimate finding of contempt for abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error." Commercial Wharf East Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). "To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006), quoting Kraft, 417 Mass. at 239. "The contempt must be proved by clear and convincing evidence, and the court is to consider ‘the totality of the circumstances.’ " Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009). A finding of contempt may be avoided with proof of an "inability to comply with the relevant court order." O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 154 (2003).
b. Clarity of the order. We are satisfied that the parenting time order was clear and unequivocal as to the father's obligation to exchange the child with the mother on alternating weekends and Tuesday afternoons. That the order did not explicitly address the details of the child's unanticipated homeschooling, and so may have required some legal interpretation, does not change our view. See Stabile v. Stabile, 55 Mass. App. Ct. 724, 726 (2002), quoting Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002) ("An ambiguity does not arise merely because an order, otherwise clear, may require ‘some legal interpretation’ "). "[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Id. at 727, quoting Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995).
c. Father's clear disobedience. i. March 17 and 31, 2020. On the first day of the father's homeschooling the child, the mother and the father communicated by e-mail about the mother's parenting time. As part of that exchange, the mother presented three alternative schedules for the week, and stated that she was open to suggestions "that work[ed] for [everyone] and [did] not reduce and stop [her] parenting time." The father responded that the mother's alternatives did not work, and he canceled the March 17 visit.
Each of the mother's alternatives increased her parenting time.
A similar exchange took place for the March 31 visit; when the mother contacted the father in advance of the visit, the father responded asking that the mother "please ... not waste [her] time" because "in Massachusetts [she] should follow the stay-at-home advisory," and he canceled the visit.
The father concedes that he canceled these visits, and we discern no abuse of discretion in the judge's finding of contempt for these dates. While the father generally argues that he and the mother disagreed about whether school was "in-session" given that the child was being homeschooled, we disagree that the mother's proposal for alternative parenting time was license for the father to cancel the visits, or that COVID-19 rendered him unable to comply with the visitation order. We are sympathetic to the father's concerns related to COVID-19, and acknowledge the confusion felt by many during the early days of the COVID-19 pandemic, however we discern no abuse of discretion in the judge's rejection of the father's rationale. There were options at the father's disposal short of cancellation, and the father failed to "meet [the] burden of proving [an] inability to comply with the relevant court order." O'Connell, 59 Mass. App. Ct. at 154.
ii. March 20-23, 2020. On March 20, the father e-mailed the mother that the child was feeling ill and that due to "the covid-19 situation" the father would "like to give [the child] rest." The mother did not agree to cancel the visit, but the father did not bring the child to the exchange. Although at the hearing, the father contended that he canceled the visit because the child was experiencing a fever, the judge could have rejected that argument, particularly where the reasons the father provided in his answer to the complaint for cancelling the visit -- including both his concern that the mother "might ... claim[ ] quarantine" with the child and also the father's "observation" that the mother had previously prioritized "maximizing ... time with the child" over "the child's well-being ... at the expense of sleep" -- suggested that the father's explanation was a pretext. This is particularly so where the father produced no evidence to support his conclusion that he was required to quarantine the child or that the mother would have been incapable of addressing the child's needs. See O'Connell, 59 Mass. App. Ct. at 154 (upholding contempt finding for parent's withholding of child's visit when child was sick).
To the contrary, the mother had cared for the child on other occasions when he was sick.
iii. April 3-6, 2020. On April 2, the father explained to the mother via e-mail that he would not bring the child to Brockton due to the "circumstances ... explained in [his] motion" (presumably referring to his March 23 complaint for modification). He argues on appeal that the cancellation was justified by the mother's insistence that the child be brought to the Brockton police station by 3 P.M. (the time and place of exchange under the out-of-session schedule) when (a) the child was being homeschooled on that day, and so was "in-session," and (b) the mother's demand conflicted with the father's work schedule.
We need not determine which schedule the parties should have followed; assuming that the father was correct in his understanding that the in-session schedule was to be followed on that day, and further accepting as true the father's representation that it would have been impossible for him to bring the child to Brockton by the time the mother requested, where the contempt was based not on the timing of the exchange but on the father's refusal to make the exchange at all on that day, we discern no abuse of discretion or error in the judge's determination that the father was in contempt.
iv. May 4, 2020. The father's argument for the May 4 visit fares better. As the father points out, the mother's own submissions demonstrate that the father insisted to the mother only that the child be returned to New Bedford in accordance with the in-session schedule. Securing her agreement, the father then brought the child for the visit. Without more detailed findings by the judge, we cannot determine a basis upon which the judge could have concluded that the father was in contempt of the visitation order on this date, and we vacate so much of the judgment as applies to May 4.
v. May 12, 2020 and "other diverse dates." Finally, as the father has not made any argument concerning the judge's finding of contempt for May 12, and other "diverse" dates (which we take to mean the dates of missed visits in April, May, and June not included in the mother's original complaint for contempt), he has waived his challenge to the judge's findings of contempt on those dates. See Barkan v. Board of Appeals of Truro, 95 Mass. App. Ct. 378, 389 (2019) (point not argued in court or brief deemed waived).
2. Due process claim. Contempt proceedings must satisfy due process, which requires that one charged with contempt "be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses on his behalf, either by way of defense or explanation." Mahoney, 65 Mass. App. Ct. at 540, quoting Sodones v. Sodones, 366 Mass. 121, 127 (1974).
We are not persuaded that the judge's consideration of posthearing submissions denied the father his due process rights. At the conclusion of the hearing, the judge invited both parties to submit additional documents via e-mail; in the ensuing month between the date of the hearing and the issuance of the judge's decision, the mother submitted additional documents, but the father did not. Having failed to take advantage of the opportunity to respond to the mother's additional documents, the father cannot now complain that he was not afforded a meaningful opportunity to challenge the documents and arguments included in the mother's additional submissions.
We do not view as significant that the judge used the words "additional documents" while speaking to the mother and "your documents" when speaking to the father. The judge did not impose any limitations on the documents the parties could submit.
Even if that were not our conclusion, we note that the additional documentation submitted appears to have been offered for the limited purpose of rebutting the father's representations at the hearing that the mother did not pursue her parenting time with the child, and that the additional written argument was a rehash of the mother's representations at the hearing. Accordingly, there was little in the mother's submissions on which the father had not already been heard.
Finally, the father's argument that the judge's findings of contempt on the dates suggested by the mother is an endorsement of the mother's interpretation of the visitation schedule or evidence of the judge's improper consideration of evidence submitted by the mother is not availing. That the judge credited the mother's argument that she was denied visits on certain dates (which, for some dates, the father does not even contest) was not a due process violation.
Conclusion. The portion of the judgment dated July 28, 2020, finding the father guilty of contempt for the May 4, 2020 visit is vacated. The judgment is otherwise affirmed.
So ordered.
Vacated in part; affirmed in part