Opinion
No. 12–P–93.
2013-04-26
P.T.C. v. B.K.G.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from judgments of modification and contempt entered by a judge of the Probate and Family Court. On appeal he challenges the probate judge's factual finding that the child resides with the mother, and the judge's conclusion that his counterclaim for modification was filed in bad faith. The father also maintains that the judgment of contempt for nonpayment of back child support, and the attorney's fees awards, were improper. We affirm.
A judgment of paternity in favor of the mother was entered on December 7, 1995. This judgment required the father to pay $77 per week in child support. On August 20, 2009, the mother filed a complaint for modification to increase the child support order, which had remained unchanged since 1995. On March 1, 2010, a judge entered a temporary order requiring the father to pay $183 per week in child support retroactive to January 7, 2010, in addition to attorney's fees of $250, assessed on account of his failure to appear at a hearing on January 7, 2010. On June 22, 2010, the mother filed a complaint for contempt, alleging that the father had failed to pay the increased child support retroactive to January 7, 2010, and that he had failed to pay the attorney's fees, all as ordered on March 1, 2010. On July 29, 2010, the same judge entered an order on the mother's complaint for contempt, establishing an arrearage of $3,180 in unpaid child support and $250 in unpaid attorney's fees. The order required the father, inter alia, to pay $1,500 in unpaid child support and $250 in attorney's fees within forty-five days.
On November 1, 2010, the father filed an answer to the mother's complaint for modification and a counterclaim for modification, seeking custody of the child. The mother's complaint for modification was consolidated with the father's counterclaim for modification. Following trial, a different judge entered a judgment of modification requiring the father to pay $183 per week in child support. The judge found that the father's counterclaim for modification had been brought in bad faith, and assessed additional attorney's fees for the trial in the amount of $4,891.25. The judge also found the father guilty of contempt for failing to pay the child support, attorney's fees, and lump sum required by the March 1 and July 29, 2010, orders, and awarded $1,241.25 in attorney's fees incurred through July 29, 2010. She ordered payment of a portion of the arrearages and the fees within ten days, with the balance to be paid in accordance with the mandated schedule.
Counterclaim for modification. The father based his counterclaim for modification and request for custody on a school record that stated that the seventeen year old son of the parties was living with his maternal aunt. The father argues that the judge's subsidiary finding that the child's residence is with the mother is clearly erroneous. “However, we will not reverse findings made by the judge on the basis of oral testimony unless we are convinced they are plainly wrong. Consent to Adoption of a Minor, 363 Mass. 537, 539 (1973). Whitney v. Whitney, 325 Mass. 28, 28–29 (1949).” Felton v. Felton, 383 Mass. 232, 239 (1981), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). “The ‘plainly wrong’ standard is the same as the ‘clearly erroneous' standard.” Gates v. Reilly, 453 Mass. 460, 465 n. 9 (2009). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).
At trial, both the aunt and the mother testified that the mother and the child stayed with the aunt several nights a week because the mother worked the night shift, and the aunt and her family cared for the child while the mother was at work.
The judge's factual finding that this extended family living and child care arrangement did not undercut the fact that the child resided with the mother was supported by the evidence and was not clearly erroneous.
The home in which the mother and the child stayed with the aunt is the childhood home of the mother and the aunt.
The aunt testified that she had erroneously listed her nephew on a parental school form, rather than a caregiver school form. The judge did not credit the designation on the form, and instead credited the testimony of the mother and the aunt. It was for the judge to weigh conflicting evidence. While the judge could have found otherwise, she was not compelled to.
Of greater import is the fact that the judge's conclusions regarding custody were largely based on other facts. The judge concluded that, given the father's lack of involvement in his son's life over a period of many years,
the absence of any material or substantial change in circumstances since the original paternity determination in 1995, and the son's evident well-being with the mother, the counterclaim for modification was brought solely in response to the mother's request for an increase in child support, and was brought in bad faith. The judge considered all of the relevant facts before her; we do not substitute our judgment for that of the judge. See generally Wasson v. Wasson, 81 Mass.App.Ct. 574, 576 (2012) (and cases cited). The child's best interests is the ultimate “touchstone inquiry,” and the judge's determination of a custody issue is a “discretionary decision.” Smith v. McDonald, 458 Mass. 540, 544, 547 (2010). There was no abuse of discretion here.
For example, in 2010 the father did not see his son or send him a card for his birthday or at Christmas.
Attorney's fees. The judge did not abuse her discretion in awarding attorney's fees for the modification trial.
See DeMatteo v. DeMatteo, 436 Mass. 18, 38–39 (2002). “[T]he statutory authority to shift fees in marital custody disputes, G.L. c. 208, § 38, has been read to extend to nonmarital children.” J .S. v. C.C., 454 Mass. 652, 665 n. 19 (2009). See Doe v. Roe, 32 Mass.App.Ct. 63, 68–69 (1992). A finding of bad faith may also be a separate, permissible basis for the award of fees. See Wasson v. Wasson, supra at 582.
The father also argues that the $250 attorney's fees awarded by the orders dated March 1, 2010, and July 29, 2010, arising out of the father's failure to appear at the January 7, 2010, hearing was improper. Assuming the $250 fee award is properly before us, the first judge did not abuse his discretion in awarding fees under these circumstances. The father failed to appear when he faxed a request for a continuance and simply assumed it would be granted.
Contempt. We review the judge's finding of contempt for abuse of discretion. L.F. v. L.J., 71 Mass.App.Ct. 813, 821 (2008). The father does not contest that there was “a clear and unequivocal command and an equally clear and undoubted disobedience,” Larson v. Larson, 28 Mass.App.Ct. 338, 340 (1990); he concedes that he failed to pay any of the amounts ordered. He maintains instead that “[he] must [have been] found to have the ability to pay at the time the contempt judgment enters,” and that such proof was lacking. Ibid.
The father had the burden of proving that he was incapable of complying with the order. See G.L. c. 215, § 34; Diver v. Diver, 402 Mass. 599, 603 (1988). “[T]he judge was warranted in finding that the [father] had disobeyed [the] order.... Nothing in the record demonstrates that, as a matter of law, the [father] satisfied his burden of proving his inability to comply with the judge's orders.” Diver, supra.
The father testified at trial to a steady income from his job in the Department of Veterans Affairs. He further testified that he had previously taken on extra work to pay his child support obligations, but had not done so on this occasion. This alone was sufficient basis for a finding of contempt, as the judge was “authorized to consider the defendant's earning capacity in setting the amounts to be paid.” Id. at 602. In addition, his financial statement showed that he owned his own home and that he had equity in his home. Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213–214 (1979). In light of these facts, the judge's determination that the father was able, but unwilling, to pay was not an abuse of discretion. We also see no abuse of discretion in the judge's award of attorney's fees incurred through July 29, 2010, in connection with the contempt proceedings. See Kennedy v. Kennedy, 400 Mass. 272, 276 (1987); Bisienere v. Buccino, 36 Mass.App.Ct. 749, 753 (1994); Coppinger v. Coppinger, 57 Mass.App.Ct. 709, 714 (2003).
The judge did not make specific findings on the issue of inability to pay. We base our summary of facts on the evidence at trial and the contempt judgment. see Richards v. Mason, 54 Mass.App.Ct. 568, 570 (2002). There is nothing in the record before us to show that the father claimed a total inability to pay at trial. No reference was made to inability to pay in opening statements. The parties waived closing argument. The parties' proposed findings and rulings were not included in the record appendix. The issue was raised on a motion for reconsideration, which was denied. A claim raised for the first time on a motion for reconsideration is waived, and the judge is not obligated to consider it. Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312–313 (2009). We consider the argument here because neither party has argued waiver.
Appellate attorney's fees. Both parties have requested fees on appeal. The father's request is denied as he has not prevailed. Having affirmed the judge's findings on contempt, as well as the findings of bad faith in the modification action, fees are awarded to the mother in the exercise of this court's discretion. See G.L. c. 208, § 38; G.L. c. 215, § 34A (presumption of entitlement to fees in contempt action in Probate Court); Brash v. Brash, 407 Mass. 101, 107 (1990) (an award of fees in a divorce action is akin to an award for support or maintenance); Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 614 (1992) (the authority to award attorney's fees for civil contempt would “ring hollow if it did not necessarily include a fee for the appeal”); Crossman v. Crossman, 14 Mass.App.Ct. 966, 969 (1982); Bisienere v. Buccino, 36 Mass.App.Ct. at 753 (“presumption in favor of an award of reasonable fees and costs for a successful party in a contempt action”). Cf. Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989) (the right to appellate fees under statutes which provide for attorney's fees are “is beyond dispute”).
The mother, within fifteen days of the date of the rescript, may file with this court and serve on the father an application, including an affidavit or affidavits detailing and supporting the amount of attorney's fees and costs incurred on appeal in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The affidavit should include (1) contemporaneous time records, (2) the hourly rate charged, and (3) evidence of the reasonableness of the hourly rate. The father, within fifteen days thereafter, may file with this court and serve on the mother, an opposition to the amount of fees so claimed.
In the alternative, we also find that fees are warranted pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1978), as a matter of discretion, and G.L. c. 231, § 6F. See Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 329–330 (1997); Wasson v. Wasson, 81 Mass.App.Ct. at 582.
Judgment of modification affirmed.
Judgment of contempt affirmed.