The Standard of Proof in Civil Contempt Cases

How do civil contempt cases work? What is the standard of proof: in other words, what must the plaintiff prove in order to prevail in a contempt action?

Kyle is divorced and has primary custody of his two children. Kyle is concerned that his former spouse, Kevin, constantly returns the children hours later than he is supposed to after visiting with them. Kevin has told Kyle repeatedly that he “doesn’t care” about the time he is supposed to bring the kids back, and that he will continue to bring them back “on his own time.”

Mariah received an order of alimony during her divorce from her former spouse Michael. Now, Michael hasn’t paid the appropriate payments ($500 weekly) for the past two months. Michael refuses to talk to Mariah and will not return her calls.

What do Kyle and Mariah have in common? They may both file an action for contempt against their former spouses.

Contempt actions

Contempt, generally, involves a failure to comply with something that the court has ordered. An action for contempt may be appropriate where the defendant has demonstrably disobeyed a court order. Just a few examples include:
• refusing to pay the appropriate amount of child support or alimony ordered by the court;
• refusing to leave the marital home when ordered to do so;
• violating a court order of protection from abuse or harassment;
• violating the terms of a child custody order or the provisions of parenting time.

There are two types of contempt: civil and criminal. In criminal cases, criminal charges are brought against the defendant for refusing to comply with a court order. In civil contempt cases, the plaintiff files a complaint for contempt against the defendant. The purpose of a civil action for contempt is to ensure the defendant’s compliance for the benefit of the plaintiff.

The standard of proof

In order to prove his or her claims, the plaintiff will have to meet the appropriate standard of proof. In cases of civil contempt, this means the plaintiff must prove “a clear and unequivocal command and an equally clear and undoubted disobedience.” 1

This means the plaintiff must show, first, that there was a clear and unambiguous court order. In one case, the Appeals Court held that there was no contempt by the wife when she disclosed certain financial misdeeds of her husband. The court held that the divorce decree was ambiguous as to this disclosure and did not specifically prohibit the wife’s conduct. 2

The plaintiff must show, second, that the defendant clearly disobeyed a court order. In one case, the Appeals Court held that there was no contempt by a wife who refused to allow her small children to visit their father out-of-state, unless an adult escort would accompany them on their flight. The husband filed an action for contempt and prevailed at trial, but the Appeals Court reversed, holding that the mother’s “reasonable” concerns and requests did not amount to a clear and undoubted disobedience of the divorce judgment and custody order. 3

1 Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990).
2 Sax v. Sax, 53 Mass. App. Ct. 765 (2002).
3 Pedersen v. Klare, 74 Mass. App. Ct. 692 (2009).

What Constitutes Domestic Abuse in Massachusetts?

According to the applicable statute, domestic abuse is defined in Massachusetts to include three different types of actions. 1

First, attempting to cause or causing physical harm constitutes domestic abuse. Actions such as punching, hitting, or kicking another family or household member may be examples of this part of the definition.

Second, placing another in fear of imminent serious physical harm also constitutes domestic abuse. Threatening to hurt another family or household member is an example of this part of the definition.

Third, causing another to engage involuntarily in sexual relations by force, threat of force or duress also constitutes domestic abuse.

Who is Covered Under the Statute?

The Massachusetts domestic abuse statute applies to family or household members. The definition of “family and household members” is fairly broad. It is defined by the statute as persons who:

“(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) have a child in common regardless or whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts in consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.” 2

What Remedies are Available?

Under the statute, there are many different remedies that a judge may order once a victim of domestic violence files a complaint against the abuser in the appropriate court. For example:

• The court may issue a restraining order against abusing and/or contacting the victim;
• The court may compel the defendant to leave the household;
• The court may grant temporary custody of minor children to the plaintiff, and may also order payment of child support or spousal support by the defendant;
• The court may order the defendant to pay the victim monetary compensation for the losses suffered as a direct result of the abuse;
• The court may order the defendant to attend a recognized batterers’ training program.

Need More Information About Domestic Violence?

Consult our Abuse FAQ and Harassment FAQ pages. Also, the Massachusetts Courts’ web page on domestic abuse has many helpful resources.

1 Mass. Gen. Laws c. 209A, s. 1.
2 Id., definitions.

Income Imputed Where a Party Left a Well-Paying Position Due to Unfortunate Circumstances

Under some circumstances, there may be income imputed to a party for purposes of calculating alimony and child support. For example, if a party voluntarily changes careers to a less lucrative or takes an early retirement, the court may impute income to that party to reflect his or her potential and demonstrated earning capacity. But what if the party left his or her job – though voluntarily – reluctantly and due to unfortunate circumstances? Should the court impute income? The Massachusetts Appeals Court recently addressed this issue.

In the case, 1 the husband had a high-paying position as head of a private school: including his base salary, bonuses, and other benefits, his compensation package equaled approximately $450,000 annually. However, after engaging in an affair with one of his subordinates, the husband resigned from his position. The parties separated, and the husband engaged in an extensive job search—he applied for dozens of comparable positions, traveled frequently to meetings and interviews, worked with recruiters, and honed his professional skills to increase his marketability. After eleven months, the husband received one job offer, which he accepted. However, his new position paid him considerably less. In fact, he was making about a third of his previous salary.

Meanwhile, the parties divorced. The trial judge ordered the husband to pay child support and alimony and based the respective calculations on the husband’s previous income, with income imputed to the husband. After accepting his new offer of employment, the husband petitioned the court for a modification of his child support and alimony payments. He noted that his income was substantially less than it had been at the time of divorce. The wife, meanwhile, filed several complaints for contempt, alleging that the husband owed her back alimony and child support.

During the trial proceedings, the divorce judge concluded “that no material change in circumstances had occurred because the husband’s ‘actual earnings…are less than his potential and demonstrated earning capacity,’ and the reduction in the husband’s income was caused by ‘his voluntary decision to resign from [his job.]’” 2

On appeal, the Appeals Court disagreed with the divorce judge’s decision. “The facts of this case are distinguishable from the voluntary career change line of cases. The husband did not take an early retirement, nor did he resign from [his job] to pursue a less lucrative career in a completely unrelated field. Moreover, while the judge found that ‘[t]he [h]usband’s position…remained available to him, but for his resignation.’ there was no evidence demonstrating that the husband’s employment with [his previous employer] would continue indefinitely,” the Appeals Court stated. 3

The Appeals Court also noted that the trial judge failed to give proper consideration to the efforts of the husband to find higher-paying employment. “not only did the judge fail to make a specific finding that the husband could earn more with reasonable effort, it is apparent that such a finding cannot be made on this record.” 4

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

1 Emery v. Sturtevant, No. 16-P-443 (December 2, 2016 – May 12, 2017).
2 Id., at 6.
3 Id., at 15-16.
4 Id., at 19.

Intellectual Property Counts As Marital Property During Divorce

In what ways is intellectual property important during a divorce? Is it something that may be divided by the court between the parties?

Intellectual property and domestic relations

Intellectual property includes patents, trademarks, copyrights, trade secrets, and trade dress. Each of those categories may present property to be considered by the court as part of a couple’s marital estate. Therefore, during a divorce, it is important to consider any intellectual property holdings in property assignment.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. Intellectual property, like all other property, will be divided in this manner.

Future income from intellectual property

In addition to present property values, future income must also be considered. For example, royalties from copyrighted work or licensing fees from patents and trademarks may present considerable future income opportunities.

In one 2015 case, 1 the Appeals Court held that future royalties derived from a wife’s tremendously successful novel should be divided equitably between the parties. In that case, the trial judge noted that the husband supported his wife financially and emotionally while she wrote the novel. The judge also noted that the wife’s earnings from the novel neared $3,000,000 at the time of the divorce, and he ordered that she pay the husband a lump sum of $570,000. As for future royalties, the trial judge held that because they were too speculative, the husband was not entitled to them.
The husband appealed, seeking equitable distribution of future royalties obtained by the wife.

The Appeals Court agreed with the husband, holding that the wife’s “contractual rights to future royalty and other payments do not, in our view, involve mere expectancies as described in the foregoing cases. While the amount of the royalty and other payments to be received by [the wife] in the future cannot yet be ascertained, the right to receive those royalties and other payments was contractually established at the time of the divorce. Indeed, [her] interests in the present case are, in certain respects, analogous to a party’s interest in the payment of pension rights which has been recognized as marital property subject to division.” 2

The Court suggested that future royalties were particularly suited to “division on an “if and when received” basis, with the judge determining the percentages of any future payments to be assigned to [wife and husband.]” 3

Valuing intellectual property during a divorce

In many cases, it may be possible (whether through past royalties or payments or expert valuation) to establish the value of intellectual property. In those cases, the court may use those reasonable values in calculating marital property division.

If the value of intellectual property is too speculative to consider, however, the judge may opt to exclude the property from marital property calculations. In one case, for example, 4 the court considered the invention of the husband, who held patents on artificial skin. The trial judge held that future income from those patents was so speculative that they did not need to be included as part of property assignment. The Supreme Judicial Court agreed that the judge did not abuse his discretion in his division of the marital assets.

“He was not obliged to place a value on the husband’s royalties, patents, or copyrights. He was warranted in declaring uncertain the value of the husband’s patents on artificial skin,” the high Court noted. “The judge could have concluded on the evidence that the present value of the husband’s future income from this source was too speculative to consider. The asset was not one which obviously has current value but is difficult to appraise (such as a close corporation).” 5

1 Canisius v. Morgenstern, 87 Mass. App. Ct. 759 (2015).
2 Id., at 767.
3 Id., at 771.
4 Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985).
5 Id., at 714.

Protections of the Anti-SLAPP Statute Apply to Recipients of Restraining Orders

Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.

In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. The ex-husband was prohibited from contacting the ex-wife in any manner, with an exception carved out for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband, and he was charged with criminally violating the order.

The charges were later dismissed, as the court found no evidence that the restraining order was violated. The ex-husband defended by noting that his mailing to the ex-wife (the mailing which was the basis of the purported violation) actually contained court filings, which were covered under the exception to the restraining order. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official and was told by the clerk that no such filings existed. The investigating officer also called and was told the same thing.

As it turned out, the ex-husband did file those papers with the court, and the filings were misplaced by court personnel and not docketed until after these events transpired. As a result, the criminal charges were filed when no violation could be proven.

After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife, claiming that she caused him to be arrested without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute, claiming that the lawsuit was based entirely on her protected petitioning activity.

The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the ex-wife’s activities in reporting the suspected criminal activity to police was protected.

“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Spouse’s Waiver of Estate Claim by Agreement

Tim and Terri are getting married, and Terri has two children from a previous marriage. Terri would like her estate, upon her death, to pass to her kids, rather than to Tim and his family. She wants to know whether she and Tim could sign a waiver or contract to this effect.

Tim and Terri may certainly sign an antenuptial (also known as prenuptial) agreement, by which they waive their respective interests in each other’s estates upon death. The Massachusetts courts have long recognized this type of waiver. In addition, an applicable Massachusetts statute regarding antenuptial agreements notes the following:

At any time before marriage, the parties may use a waiver. They make make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property, and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.

Generally, in order for a prenuptial agreement to be considered valid and enforceable, it must be in writing; signed by the parties voluntarily under no signs of duress or fraud; made after full disclosure of the parties’ assets; conscionable to enforce, as the agreement is not against countervailing equities; and the parties don’t relieve themselves of their legal obligations during the marriage through the agreement.

In a 2009 case, the Appeals Court discussed the claim of a widow who sued the executor of her husband’s estate after signing a waiver. She claimed that, even though she signed a prenuptial agreement in which she waived any claims against her husband’s estate, the agreement was invalid, and that she was unduly influenced in signing the agreement. The widow claimed that because her husband failed to list some of the mortgages on his properties, the agreement was invalid due to lack of full disclosure; also, she claimed that she had inadequate legal representation due to the “inexperience” of her attorney, whom she had chosen herself.

The Court upheld the agreement and held that it made fair and reasonable provisions to the widow. The Court also noted that the husband’s failure to list his mortgage liabilities did not materially affect the widow’s decision to sign the waiver or the agreement—in fact, it played in her favor as applied to determining her husband’s net worth. The Court upheld the agreement.

Further, the widow claimed that her husband’s will ought to be invalidated, as he had promised her multiple provisions from his estate, yet left her only a lump sum cash devise. She claimed that the husband was unduly influenced by his attorney in making his will, and that the will was contrary to the husband’s intentions for distributing his property after his death. Moreover, she argued “that at the time she signed the antenuptial agreement, she and the decedent had a confidential relationship and that he violated that relationship with his fraudulent assurances that the agreement pertained only to divorce and that he would provide for her in his will.”

“We find nothing in the record before us to warrant or to justify disturbing the judge’s conclusion that the ‘[p]laintiff introduced no credible evidence that when the [d]ecedent executed the [w]ill he was not in good health, lacked free will to execute the [w]ill, or did not make a natural disposition of his assets[,]’” the Court explained. “It follows from our conclusion that by entering into the valid antenuptial agreement, the plaintiff waived any right that she might otherwise have had as the decedent’s widow pursuant to [the applicable statute.]”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] Mass. Gen. Laws, ch. 209 s. 25

[2] Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 (2009).

[3] Id., at 116.

[4] Id., at 115.

[5] Id., at 117.

Appointment of Representation for Indigent Guardians – Recent Case Law

Is an indigent guardian or de facto parent whose guardianship of a child is subject to removal entitled to legal counsel? This was the issue addressed in a recent decision of the Massachusetts Supreme Judicial Court.

Guardianship of K.N. addressed the case of a child, born to a 15-year-old mother, whose maternal grandmother was granted guardianship of the child. Ten years later, the mother of the child filed a petition for removal of the child from the grandmother’s care. The mother also filed an emergency motion to return the child to her, which was granted. The grandmother filed a motion the following day, seeking the appointment of counsel; that motion was denied.

The grandmother filed a motion to reconsider, having retained counsel, but her motion was dismissed due to a procedural error, and her counsel then withdrew. The child eventually appealed, through counsel, claiming that the guardian’s procedural due process rights required that she be allowed to have counsel appointed in order to represent her interests. Alternatively, the child argued, the equitable powers which reside with the Probate and Family Court allowed the Court to appoint counsel for the guardian.

“We conclude that guardians who have established a de facto parent relationship with their wards do not have a liberty interest in that relationship such that they have a procedural due process right to counsel,” the Court noted. “We hold, however, that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child.” As with all issues involving the custody of children, the best interests of the child will be the governing factor here.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Guardianship of K.N., 476 Mass. 762 (2017).

[2] Id., at 762.

Granting Property While Also Reserving a Power of Appointment Recent Case Law

In a recent case, the Massachusetts Appeals Court reviewed whether a testator may grant property while reserving to herself a power of appointment over the same property. Skye v. Hession involved a testator who granted her home to her three daughters and her son-in-law in equal shares, while reserving for herself a life estate, which allowed her to live in the home while she was alive. The testator’s intent in doing this was to avoid certain “spend-down” provisions or lien provisions of MassHealth, the Massachusetts Medicaid program, which currently has a “look-back” period of five years.

In the deed, the testator also reserved for herself a special power of appointment, which allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. This option was exercisable by either deed or will.

Two years later, the testator executed a new will, whereby she decided that her daughters and son-in-law should receive unequal shares of her property. She left one daughter (the plaintiff in the case) 5% of the property, reducing her share by exercising her power of appointment. The daughter sued, claiming that the power of appointment in the original deed was improper and void.

Ultimately, the Appeals Court sided with the defendants but acknowledged the plaintiff’s argument regarding the invalidity of the power of appointment. “We acknowledge the existence of some apparent tension between the grant of the remainder interests and the reservation of the power,” the Court noted. “The former granted the parties a present ownership interest, but the latter permitted Margaret to effectively terminate or alter those interests by exercise of the special power of appointment.”

The Court explained that interests are considered repugnant to one another where a grant of property includes two different conditions, the fulfillment of one of which breaching the other. However, the Court explained, that was not the case here: because the testator reserved for herself the power of appointment, she did not grant to the grantees a fee simple absolute—a grant with no limitations. Instead, she granted a fee simple defeasible, which is a lesser estate.

“Because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation, and they were in the nature of fees simple defeasible,” the Court held. “Had the deed merely reserved to [the testator] a life estate, this, of course, would have been the case. Here, the additional reservation of the power of appointment resulted in a grant of a lesser estate.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Id., at 5-6.
Id., at 8.
Id., at 7.

Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye one two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).

Affidavits of Care and Custody in Massachusetts

What is an affidavit of care and custody, and when does a party need to file one?

The short answer to the latter part of that question: a party needs to file an affidavit of care and custody whenever there is a proceeding involving the care or custody of a child. In addition to filing with the court, the party must also provide a copy of the affidavit to all other parties involved.

The affidavit must include relevant information regarding care and custody of the child or children involved. Per Massachusetts General Laws, chapter 209b, section 3, this includes the following:

• The present address of residence of the child and each address at which the child has resided during the past two years;
• The names and addresses of any party to any custody proceedings involving the child in the past two years; and
• Information regarding whether the party has participated in any prior custody proceeding involving the child, whether in Massachusetts or in any other jurisdiction; the capacity in which the party has participated; and copies of any pleadings or determinations which were involved.

The affidavit must be written in a form which is in conformance with the relevant court rules. In addition, it must be revised if any new relevant information is discovered regarding care and custody. Unless good cause is shown and an extension is granted by the court, failure to file this affidavit may result in a party being sanctioned by the court.