Opinion
21-P-608
10-19-2022
JOHN F. OLIVIERI, JR., &another[1] v. DANIEL CARRAHER.
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
Following a hearing, a judge of the Probate and Family Court found the defendant guilty of civil contempt. On appeal, the defendant claims that the judge abused his discretion by finding him in contempt because the temporary order (order) at issue was not clear and unequivocal, and because the defendant did not unequivocally disobey it. He also claims that the judge erred in failing to conduct an evidentiary hearing. We affirm.
Background.
The defendant is the father of a child, born in 2016. The plaintiffs are the child's maternal grandparents. In June 2020, following the death of the child's mother in 2019, the plaintiffs filed a petition for grandparent visitation alleging that they had a significant relationship with the 1 child, and that visitation with them was in the child's best interest. See G. L. c. 119, § 39D. After a contested hearing, the judge entered the order at issue here. It provided that, starting February 6, 2021, the plaintiffs "shall have" visitation with the child the first Saturday of every month and that "the parties shall follow all COVID-19 precautions in place in the Commonwealth . . . and his/her local community . . . during all parenting times . . . for the health and safety of the minor child, themselves, and others in the community." After the February 6 visit did not occur, the plaintiffs filed the complaint for civil contempt (complaint) at issue here.
After a hearing on the complaint, held by videoconference, the judge found the defendant guilty of civil contempt, ordered a "make up" visit, and assessed the defendant attorney's fees of $1,560.00, to be paid to the plaintiffs. This appeal followed.
The judge did not issue separate findings of fact or a rationale.
Discussion.
We review the judge's finding of civil contempt for abuse of discretion. See Voorhis v. Relle, 97 Mass.App.Ct. 46, 54 (2020). "[T]o constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command" (citation omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). "The contempt must be proved by clear and convincing evidence, and the judge is to consider 'the 2 totality of the circumstances.'" Voorhis, supra at 54, quoting Wooters v. Wooters, 74 Mass.App.Ct. 839, 844 (2009).
The order.
The defendant contends that the judge abused his discretion in finding him guilty of civil contempt because the order was not clear and unequivocal. As relevant here, paragraph one set forth the dates, times, and places for the visits, and allocated responsibility between the parties to transport the child. We are satisfied that paragraph one was clear and unequivocal, and the defendant does not argue otherwise. The defendant claims that paragraph three -- which required the parties to "follow all COVID-19 precautions in place in the . . . Commonwealth and his/her local community" -- was ambiguous because the obligations were not defined and were subject to more than one meaning. However, "[a]n ambiguity is not created simply because a controversy exists between parties" (citation omitted). Stabile v. Stabile, 55 Mass.App.Ct. 724, (2002). We read paragraph three to implicitly rely on guidance provided by the Center for Disease Control (CDC) and related agencies when it referenced "COVID-19 precautions in place the Commonwealth." Although not in the context of a visitation dispute, the Supreme Judicial Court explained its reliance CDC guidelines in addressing the spread of COVID-19 in prisons and jails. 3 See Committee for Pub. Counsel Servs. v. Barnstable County Sheriff's Office, 488 Mass. 460, 465-467 (2021) (CDC provided guidance for correctional and detention facilities). Moreover, the order required the parties to comply with COVID-19 precautions "at this time and in the future as precautions are updated." That the order contemplated the possibility that precautions could change did not render the order ambiguous. In Lynn v. Murrell, 489 Mass. 579, 585 (2022), the Supreme Judicial Court recognized the changing "factual and legal landscape" of the pandemic and acknowledged newly available testing and treatment as recommended by the CDC and others. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567 (1997) (order requiring some legal interpretation not so ambiguous to be incapable of enforcement through contempt).
In addition, the parties' subsequent actions demonstrated that they understood the order. In fact, at the contempt hearing, the defendant's attorney stated that "[w]hat is clear and unequivocal is the requirement that parties follow all mask COVID-19 precautions." She then described additional precautions to include vaccinations, social distancing, and not mixing households, especially for people over the age of sixty- five. All of this demonstrates that the defendant understood the order, and thus that it was clear and unequivocal. See Sax v. Sax, 53 Mass.App.Ct. 765, 772-773 (2002), citing Vyskocil v. Vyskocil, 7 Mass.App.Ct. 857, 858 (1979) (postagreement 4 conduct showed what language meant and parties common understanding of meaning).
The defendant's conduct.
After receipt of the order, the defendant's attorney sent a letter to the plaintiffs' attorney stating his intention to file a "60(b) motion" in response to the order. The letter indicated that the defendant did not intend to comply with the order, and it proposed that the plaintiffs drive from their home in Franklin to Andover to visit with the child for four and one-half hours outdoors, in February. The defendant claims that this letter did not prove that he refused to comply with the order, but rather that it expressed reasonable concerns for the child's health and safety. We are not persuaded.
The letter was not part of the record on appeal, nor does it appear that it was presented to the Probate and Family Court judge, although parts of it were described to the judge.
Although the letter referenced a plan to file a "60(b) motion," a motion for reconsideration was not filed until October 27, 2021.
It is undisputed that the defendant did not comply with paragraph one of the order. He did not seek clarification, modification, or further instructions pertaining to the visits. Instead, he exercised self-help in violation of the order. See Barnes v. Devlin, 84 Mass.App.Ct. 159, 164-165 (2013) (contempt upheld where self-help was tantamount to flouting 5 valid court order). The defendant's reliance on Pedersen v. Klare, 74 Mass.App.Ct. 692 (2009), is misplaced. In Pedersen, we vacated a finding of civil contempt where the defendant sent a letter to the plaintiff in which she expressed concerns about placing their young children on an airplane unaccompanied, and proposed that a mutually agreed upon adult accompany them on the flights. See id. at 694. On those facts, we reasoned that the defendant did not unequivocally refuse to permit visitation, and therefore the finding of civil contempt was vacated. See id. at 698-699. By contrast, here, the defendant did not comply with the order. Instead, he suggested wholesale changes, including the location of the visit, and eliminated his responsibility for transporting the child. This was far more than an expression of reasonable concern. It was an effort to recast the order in terms he preferred. Because the defendant willfully disregarded a clear and unequivocal order, the judge did not abuse his discretion in finding the defendant guilty of civil contempt.
Evidentiary hearing.
Lastly, the defendant claims that the judge erred by failing to conduct an evidentiary hearing, despite the defendant's request for one. The record, however, does not support this contention. In fact, the defendant acknowledged in his brief that his attorney did not formally object to the lack of an evidentiary hearing, but argued that she "offer[ed] to introduce evidence to help the [t]rial 6 [j]udge." In addition, at the close of the hearing, the judge asked both attorneys whether the parties wanted to say anything; neither did. The defendant's attorney then noted that no evidence had been presented. Taken together, this did not constitute a request for an evidentiary hearing. Accordingly, this claim is waived. See Boss v. Leverett, 484 Mass. 553, 562563 (2020) (issues not raised in lower court cannot be argued for first time on appeal). The judge permissibly proceeded by representation of counsel. See Mahoney v. Mahoney, 65 Mass.App.Ct. 537, 540-541 (2006) (contempt may be found on oral representations of counsel).
The defendant's attorney asked the judge if he wanted her to send an e-mail message with the child's medical records to the court. The judge said no.
Attorney's fees.
Both parties have requested attorney's fees and costs. The defendant's request is denied. The plaintiffs' request is allowed. The plaintiffs shall file, within fourteen days following the date of issuance of the rescript in this case, documents supporting their fee request, 7 and the defendant shall have fourteen days to respond in accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment of civil contempt affirmed.
Wolohojian, Blake & Desmond, JJ. 8
The panelists are listed in order of seniority.