Opinion
No. 11–P–524.
2012-06-12
Terri L. MAHONEY v. Peter MAHONEY.
The judge's findings, which are to stand unless they are clearly erroneous, amply support her conclusion that the husband made no diligent and energetic attempt to obtain the funds. 6 See Goodman v. Atwood, 78 Mass.App.Ct. 655, 657 (2011).
By the Court (GRAHAM, GRAINGER & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a December 10, 2010, judgment on the wife's November 10, 2010, complaint for contempt and a December 29, 2010, judgment on the wife's December 3, 2010, complaint for contempt.
A judge of the Probate and Family Court found the following facts. The parties were married for twenty-three years and have two children. The husband's parents are “the founders of a group of family businesses originally known simply as Mahoney's Garden Centers, a retail home gardening store, with approximately 120 employees in eight locations. These family businesses are apparently held in a number of corporate entities.” The husband is a minority shareholder in several of these entities.
On October 29, 2010, the judge issued a temporary order on the wife's June 8, 2010, complaint for divorce. She ordered, in part, that the husband pay the wife $3,400 per month in unallocated support for her and the two children starting on November 1, 2010. Apparently in response to the wife's motion for attorney's fees pendente lite, the judge ordered the husband to pay the wife $75,000, to be considered as a pre-distribution against the wife's equitable share of the final division of assets. The husband did not comply timely with either order. December 10, 2010, judgment. On November 10, 2010, the wife filed a complaint for contempt alleging that the husband failed to comply with the monthly support order. At a hearing held on December 10, 2010, the wife's attorney represented that the husband had paid the arrearage the night before. Although we do not condone delaying compliance until immediately before the contempt hearing, we agree with the husband that the judge erred in finding him in contempt. See Halpern v. Rabb, 75 Mass.App.Ct. 331, 333 n. 3 (2009). ,
This motion is not included in the record appendix. The husband's subsequent motion for reconsideration of the order was denied. Only the first page of that motion is included in the record appendix. The wife's opposition, with attached documents, is not included.
The wife concedes that this finding of contempt was in error.
The husband does not contest the award to the wife of $375 in attorney's fees.
December 29, 2010, judgment. On December 3, 2010, the wife filed a complaint for contempt alleging the husband's failure to comply with the order to pay $75,000 for the wife's attorney's fees. On December 20, 2010, the judge held an evidentiary hearing, and on December 29, 2010, she issued a judgment finding the husband in contempt.
We agree with the husband that his payment of the amount in question following the issuance of the contempt judgment does not make his appeal moot.
The husband argues that the judge erred in finding him in contempt without first finding that he had the ability to comply. We disagree. It is well established that the defendant bears the burden of proving his inability to comply with a court order. See Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 412 (1992). Here, the judge specifically found that the “[d]efendant failed to prove that he has an inability to comply with the order to pay....”
The husband's claim that the order was ambiguous fails for the reason, if no other, that it was not raised below. See Picciotto v. Chief Justice of the Superior Ct., 446 Mass. 1015, 1016 n. 2 (2006).
To the extent that the husband argues he proved his inability to pay, his argument also fails. To meet his burden of proving impossibility, the husband was required to “present evidence that [he] was ‘reasonably diligent and energetic in attempting to accomplish what was ordered.’ “ Ibid., quoting from Ricci v. Okin, 537 F.Supp. 817, 824 (D.Mass.1982). The judge found that the husband failed to do so:
“The defendant testified credibly that he asked that his request for a loan or advance of $75,000 from the businesses be put on the monthly family business meeting in November 2010. He stated that it was ‘discussed’ at the November meeting—apparently without resolution—and the issue is also on the agenda for the December meeting.... The defendant testified to no other attempts to obtain the funds ordered to be paid. His failure to do so is not reasonable and not in compliance with this order.”
The judge's findings, which are to stand unless they are clearly erroneous, amply support her conclusion that the husband made no diligent and energetic attempt to obtain the funds. See Goodman v. Atwood, 78 Mass.App.Ct. 655, 657 (2011).
The husband argues that he presented credible evidence of an inability to obtain funds from his business holdings. However, in evaluating these claims, the judge pointed out that the wife “has been hampered in being able to conduct discovery to determine the legitimacy of these claims due to her limited resources,” these limited resources and the parties' disagreement about the extent of the husband's holdings being the reason for the original order for the husband to pay the wife. Furthermore, the judge pointed out the availability of different sources to satisfy the husband's obligation, referring to his access to cash, business resources, and financing.
So much of the December 10, 2010, judgment as finds the husband guilty of contempt is reversed. The remainder of the December 10, 2010, judgment is affirmed.
The December 29, 2010, judgment is affirmed.
So ordered.