In a new case, the Massachusetts Supreme Judicial Court addresses the important constitutional safeguards a defendant must receive in a child support contempt matter.
Case Facts
The parties in the case, Department of Revenue Child Support Enforcement v. Grullon, divorced in 2017. The court ordered the father to pay $123 per week in child support. The court further ordered the father to make child support payments through the Department of Revenue (hereinafter, “Department”). In 2018, the mother filed a complaint for civil contempt. In her complaint, she alleged the father was behind on his payments by $3,690. The Department served that complaint on the father on behalf of the mother.
With the assistance of legal aid, the father filed an answer. He also filed a counterclaim for modification of his child support order. First, in his answer, he denied that he had “willfully disobeyed a clear and unequivocal court order.” He reasoned he was unable to make his child support payments due to his past incarceration and subsequent difficulty obtaining a job. Second, regarding the counterclaim for modification, he claimed his income had decreased. Accordingly, he requested a reduction of his child support order.
Trial Court
At the Probate and Family Court child support contempt hearing, the mother and father appeared without attorneys. An attorney was present on behalf of the Department of Revenue. Before the hearing, the father filled out a financial disclosure form. In that disclosure, the father stated his income was $136.24. The father further stated he had $50 in weekly expenses. At the hearing, the father testified that he was unemployed. He also stated he was enrolled in a tractor trailer driver program, paid for by the U.S. Department of Veterans Affairs, and he would be graduating in a few weeks.
The judge asked if the father had filed a complaint for modification. The Department stated it was unaware of such a complaint. Meanwhile, the father stated he tried to do so at another court. The father did not tell the judge he had filed a counterclaim for modification in this case.
The Department requested that the father be incarcerated until he pays $500, known as the purge amount. The trial judge at first opposed incarceration. But, the judge later ordered incarceration after having an exchange with the father and noting that the father had “a poor attitude.”
The judge ordered the father to spend ten days in jail or pay the purge amount. The judge also increased the father’s child support payments to include an additional $30.75 per week towards the child support arrearage. Since the father could not pay the $500 purge amount, he served his full ten-day sentence.
Defendant Appeals
The father, through his attorney, then filed a notice of appeal from the civil contempt order. Additionally, he filed a motion to stay the contempt order pending appeal. At the hearing for that motion, the judge found the father’s claim to be moot, as he had already served his time in jail. The judge therefore denied the motion and entered judgment on the complaint for contempt.
The judge told the father he had to file and serve a complaint for modification. With the assistance of counsel, the father did so that day. After a hearing on the complaint for modification, the judge sided with the father. The judge reduced the father’s ongoing child support obligation to the amount the father requested, effective retroactively to the date he filed his answer and counterclaim.
The father filed a notice of appeal from the judgment on the complaint for civil contempt. He also renewed his notice of appeal from the civil contempt order.
Supreme Judicial Court: Direct Appellate Review
The Massachusetts Supreme Judicial Court (hereinafter, “SJC”) granted direct appellate review of the case. It held that the Probate and Family Court should not have found the father in civil contempt because the Department and the judge failed to provide proper procedural safeguards to the father. Namely, the SJC held the Department did not fulfill its duty of assisting the father with his child support modification and the judge erred in not accepting the father’s counterclaim for modification.
Ability to Pay Determination
The SJC looked to the United States Supreme Court’s 2011 decision in Turner v. Rogers, which established “the State must nonetheless have in place alternative procedures that ensure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”
In this case, the SJC held the father did not receive notice that his ability to pay was a critical issue in the child support contempt case. It was also unclear whether the trial judge referred to or considered the information on the father’s financial disclosure form. That form demonstrated his inability to pay, so the Department should not have requested incarceration. Further, the judge did not provide the father with an opportunity to answer questions about his financial status. “Based on the lack of discussion at the hearing of the contents of the financial disclosure form and the assertion by the counsel for the department that the defendant should be incarcerated, it appears the defendant’s form, although complete, was not used in any meaningful manner, and therefore this second safeguard, or its equivalent, was not fulfilled,” the SJC stated.
Finally, the SJC held the trial judge did not make an express finding that the father had the ability to pay the child support. The SJC stated a judge must determine the father’s ability to pay the child support obligation when it was due. Additionally, the judge must determine whether the father has the present ability to pay the purge amount. The “transcript reveals that the judge decided to find the defendant in civil contempt not because of an assessment of his ability to pay, but because of his ‘poor attitude,’” the SJC stated. “This decision by the judge was error, as it disregarded the procedural safeguard of ability to pay.”
Child Support Modification
The SJC further held the Department did not fulfill its statutory duty to assist the father with a child support modification. Citing the statute, the SJC noted the Department must provide services to modify child support obligations. The court further noted those services include child support modification through expedited administrative and judicial procedures.
Regarding the method of filing for a child support modification, here the SJC affirmed an Appeals Court decision. This decision stated that a judge can modify a child support order if a party files either a complaint for modification or a complaint for contempt. The SJC further held that a “‘modification on a complaint for contempt may occur even in the absence of a contempt finding.'”
Accordingly, the SJC vacated the civil contempt judgment against the father.
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