7 Mass. App. Ct. 522 | Mass. App. Ct. | 1979
The basis of this proceeding is a complaint filed Sepember 10, 1976, specifically for civil contempt. (The word "criminal” had been struck in the form used, Mass.R.Dom.Rel.P. Form 103 [1975].) The complaint alleges that the defendant "has not obeyed” a judgment entered on April 29,1976, which ordered him to pay child support of $35 per week, plus $5 per week on account of accumulated arrearages. Payments were to be made directly to the Family Service Office of the Probate Court. The complaint further alleges that the defendant "has violated the order on May 1, 1976 and on various other occasions thereafter by not paying the support order of $40 as ordered on April 29, 1976. The Defendant has made only five (5) payments since the date of the Court order.” The complaint was brought on the plaintiffs behalf by the Middlesex Probate Probation Department. G. L. c. 276, § 85B.
From the docket and the notations on the complaint, it appears that the complaint was returnable on November 4, 1976, when the defendant was defaulted and a capias issued. (The defendant had been served on October 9, 1976.) As appears from the capias, the defendant was not arrested until May 23,1977, when he was brought before the court. The case was continued to June 28, 1977, and
The course of these proceedings parallels Ainslie v. Ainslie, 6 Mass. App. Ct. 692 (1978), and we reverse the judgment on the principles set out in that case. See Bolduc v. Dahlstedt, 6 Mass. App. Ct. 946 (1978). As we said in the Ainslie case at 694, "The complaint... does not set out any 'special elements of contumacy.’ Cherry v. Cherry, 253 Mass. 172, 175 (1925), quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442 (1911). Root v. MacDonald, 260 Mass. [344,] 358 [1927] (no 'distinctively criminal feature’).” Further, "[t]he judge’s notation ... [see fn. 1, supra] that the proceeding was to be treated as criminal contempt does not cure the difficulty in the complaint; it does not serve to give the defendant notice of 'specific acts’ which can serve as a basis for criminal contempt proceedings. Meranto v. Meranto, 366 Mass. 720, 724 (1975).” Ainslie v. Ainslie, 6 Mass. App. Ct. at 694-695.
We have also examined the transcript of the testimony and the findings by the judge. The transcript contains evidence that during the period April 29,1976, to August
The plaintiff asks us to find criminal contempt from the finding of the defendant’s ability to pay the order and the further finding that "[t]he continued defiance by the Defendant of lawful orders of various judges of the Middlesex Probate Court constitute such open and notorious examples of contempt of court that they violated the orderly processing of the courts functions and unwarrantedly impeded the administration of justice.” It may well be that a defendant’s failure to appear — to which this finding may refer — could, in appropriate circumstances, so color a civil contempt "as to permit a finding beyond a reasonable doubt ... [cases cited] of such interference with or manipulation of the judicial process, beyond the disregard of a court order [to pay] as to warrant punishment for criminal contempt.” Ainslie v. Ainslie, 6 Mass. App. Ct. at 695. And thus, too, a defendant who falsifies financial information or who deliberately pauperizes himself by terminating his employment or by divesting himself of property may well be subject to criminal contempt. Bennett v. Bennett, 21 N.C. App. 390, 393 (1974).
In this case the transcript is devoid of any mention of the failure to appear. The defendant was never confronted at the hearing on the criminal contempt with the default and thus given an opportunity to explain. It appears that the judge was relying on matters which he learned outside the hearing. But it is elementary that "[rjeliance by the judge on information gathered outside the hearing would ... be improper.” Sodones v. Sodones, 366 Mass. 121, 127 (1974). See Day v. Crowley, 341 Mass. 666, 669-670 (1961).
Accordingly, as we said in the Ainslie case at 696, "there is neither a foundation for criminal contempt nor, for that matter, for imprisonment for civil contempt. [See fn. 4, supra.] Sodones v. Sodones, 366 Mass. at 130.” As in Ainslie, the judgment is reversed, and the case is remanded to the Probate Court for further consideration of civil contempt in the light of the defendant’s present circumstances. Ainslie v. Ainslie, at 696, citing Sodones v. Sodones, 366 Mass. at 131.
So ordered.
Addendum by Goodman, J. I believe that it may be useful to emphasize that "criminal contempt is a crime in every fundamental respect.” Bloom v. Illinois, 391 U.S. 194, 201 (1968). Gompers v. United States, 233 U.S. 604, 610 (1914). Hurley v. Commonwealth, 188 Mass. 443, 445 (1905). School Comm. of New Bedford v. Dlouhy, 360 Mass. 109, 117 (1971). Thus, Rule 44 of the new Massachusetts Rules of Criminal Procedure, effective July 1, 1979, provides that contempt in the Superior and District Courts — apart from summary contempt proceedings under Rule 43
Since the probation officers who testified were only witnesses, it was not necessary to address in the opinion
"6-28-77 Defendant] advised that in view of flagrant disregard of Court order, case would be considered as Criminal Contempt; Defendant] advised to hire attorney or procure attorney from legal service agency and be present in Court on 7/20/77, to which date case is continued, prepared to defend a charge of Criminal Contempt. Order to stand.”
"After hearing, it is adjudged that defendant is guilty of criminal contempt of this court, and is sentenced to thirty (30) days for the reasons set forth in the Statement of Findings annexed hereto and incorporated herein.”
The findings set out a weekly "net pay” which is more than the figure set out in the transcript by $35.00, a weekly payment to a credit union.
On August 27, 1976, he had lost his job; and (from the testimony at the hearing) since then to the date of the hearing he had no ability to make the payments.
Rule 43 provides for limitations when "summary punishment is necessary to maintain order in the courtroom.” The Reporter’s Notes