Is an Evidentiary Hearing Required in a Civil Contempt Proceeding?

In J.D.M. v. J.A.M. (April 12, 2023, Rule 23.0 Decision), the Massachusetts Appeals Court vacated the Probate and Family Court’s judgment of civil contempt and remanded.

Pursuant to the parties’ divorce judgment, mother had primary physical custody of the minor children, and father had parenting time on alternating weekends. Father filed a civil contempt complaint, alleging mother “interfered with his parenting time and placed tracking devices on the children’s possessions.” Mother “denied these allegations in her response to the contempt complaint and raised ‘waver’ as an affirmative defense.”

Following a nonevidentiary hearing, the Probate and Family Court entered a judgment of civil contempt against mother. Despite mother’s counsel’s request for an evidentiary hearing, the Probate and Family Court decided to “hear [the matter] on representations of counsel.” Mother’s assertions that father waived his parenting time or that the children’s health prevented father’s parenting time from occurring were not credited. The judge also instructed mother not to use tracking devices without father’s consent.

The Massachusetts Appeals Court determined that “[t]he hearing in the present case did not satisfy the demands of due process . . . . without the agreement of the parties, a judge cannot decide the merits of a contempt proceeding without taking evidence particularly where, as here, material facts are in dispute. It goes without saying that the representations of unsworn counsel are not evidence.”  Further, the material facts at issue were why father did not have his parenting time, which “strike at the heart of a contempt claim — whether there is ‘clear and convincing evidence of disobedience of a clear and unequivocal command.’” Mother was not permitted to present the Probate and Family Court with evidence regarding the allegation of disobedience of a court order.

The matter was remanded for the Probate and Family Court to hold an evidentiary hearing.


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