9 September 2015
The requirement is there “must be a clear
and unequivocal command and an equally clear and undoubted disobedience.” M.M. v. D.A., 79 Mass. App. Ct. 197,
198 (2011).
This means that the court order cannot be
ambiguous (unclear) and that it is clear that you did not comply. That is the general idea. But who has the burden of proof and what if
you cannot comply?
Well, for there to be a finding of
contempt, the putative contemnor must be able to fulfil the court’s order. Diver v. Diver, 402 Mass. 599, 603
(1988); O’Connell v. Greenwood, 59 Mass. App. Ct. 147, 154 (2003) (“A
putative contemnor may no doubt avoid a finding of contempt if she meets her
burden of proving her inability to comply with the relevant court order.”).
When it comes to the debtor context, when
the question is usually whether the debtor has paid the amount he was ordered
to, the burden is on the party complaining that there was a violation. Mass. Gen. Laws c. 224 §
16; In re Birchall, 454 Mass. 837, 852 (2009). And it must be met with clear and convincing
evidence. Id. at 853. It is not adequate to claim that the payment
order did not specify what assets the debtor was to liquidate to support the
argument that the payment order was unclear.
If the person complaining, usually a
plaintiff in a supplementary process action, meets the burden and the court
determines the debtor is in contempt for failure to pay, the court has the
power to incarcerate the debtor for 30 days.
At the end of the 30 days, there should be another hearing to determine
whether the debtor is still in contempt.
As long as the debtor remains able to pay and does not, this can
continue.
However, the purpose of civil contempt, as
opposed to criminal contempt, is to get the contemnor to comply. Sodones v. Sodones, 366 Mass. 121,
129-130 (1974). It has been said that
the civil contemnor “carries the keys of his prison in his own pocket” because
all he has to do is comply to get out of jail.
International Union, United Mine Workers v. Bagwell, 512 U.S.
821, 828 (1994). (Criminal contempt is different and beyond the scope of this
blog.). Also, if the court believes that
the incarceration is no longer a motivation to stimulate the contemnor’s
compliance, it is to release the contempt.
However, it is a fools folly to rely on this principal.
When it comes to the domestic relations
context, when the question is usually whether a party has complied with a
probate/divorce court’s order to perform or refrain, the burden is on the
possible contemnor. Mass. Gen. Laws c. 215 §
34; Diver v. Diver, 402 Mass. 599, 603 (1988). This means if you are accused of contempt in
the probate court, you should take is quite seriously and be prepare to prove
either you complied or were unable to comply.
In the event that you find yourself facing a contempt
complaint/accusation or believe another party has violated a court order, feel
free to contact this office to discuss.
