What is the Standard for Civil Contempt?

In Tsavidis v. Tsavidis (Memo and Order Pursuant to Rule 23.0, June 7, 2021), the Massachusetts Appeals Court affirmed the Probate and Family Court’s finding that there was no contempt by the mother.

Pursuant to the father and mother’s Separation Agreement, the father and child were to have time together each year in Greece during the summer. The Separation Agreement also specified that each year by May 1, the father was to give the mother details regarding flights and copies of the airline tickets for return. The father did not provide details or copies to the mother in 2020, so the mother did not make the child available to travel. The father filed a contempt action against the mother, and then appealed the Probate and Family Court’s finding of no contempt.

The father argued that, given the impossibility of providing details and copies due to the COVID-19 pandemic, he was not obligated to comply. The Appeals Court indicated there was no evidence submitted in support of that assertion. The father claimed facts related to the COVID-19 pandemic were stipulated to during the hearing on the contempt, but the father did not provide the Appeals Court with a transcript for consideration, which was his responsibility.

The Appeals Court went further to state that even if there was such evidence, “we cannot say the judge’s finding of no contempt was an abuse of discretion.” The Appeals Court noted that “[t]o constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command” (quoting Birchall, petitioner) and “[t]he contempt must be proved by clear and convincing evidence, and the judge is to consider ‘the totality of the circumstances.’” (quoting Voorhis v. Relle).

Given that the father’s obligations were a “condition[s] precedent” to the mother making the child available to travel and the father did not fulfill those obligations, the Appeals Court explained that the mother’s responsibilities pursuant to the Separation Agreement were not “clear and unequivocal.” Further, the mother’s responsibilities were also not “clear and unequivocal” given the COVID-19 pandemic, a justification of which father tried to avail himself.


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