Suzie Pereira v. Michael Pereira.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-242

SUZIE PEREIRA

vs.

MICHAEL PEREIRA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (wife), representing herself, appeals from a

judgment of a judge of the Probate and Family Court finding her

guilty of contempt for failing to pay child support to the

defendant (husband) and ordering her to pay an arrearage. The

wife contends that the judge erred by (1) finding her in

contempt where she alleges she did not have the ability to pay

and (2) refusing to modify her child support obligation

retroactive to the date when the parties' child began living

exclusively with her. We affirm.

Background. On May 14, 2012, a judge of the Probate and

Family Court entered a judgment of divorce nisi incorporating

the separation agreement of the same date. The parties'
separation agreement dictated that though the parties shared

legal custody of their only child, the wife possessed sole

physical custody. Only the provisions of the separation

agreement related to the child merged with the judgment of

divorce.

On June 26, 2017, the parties stipulated that the husband

would have sole legal and physical custody of the child. At the

time of the agreement, the wife was not employed, and the

parties stipulated that she was not required to pay child

support. However, the agreement required the wife to notify the

husband within forty-eight hours of her gaining employment and

permitted the husband to file a complaint for modification to

establish a child support order.

On July 26, 2018, the wife brought a complaint for

modification seeking physical custody of the child. The husband

counterclaimed, seeking child support because the wife had

gained employment since the parties' stipulation from the

previous year. The judge issued a temporary order requiring the

wife to pay $38 per week in child support, effective August 21,

2020.

On December 4, 2020, the wife requested an emergency

temporary order to extend her parenting time with the child,

which a second judge granted. Following a hearing twelve days

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later, the original judge terminated the emergency temporary

order, requiring the wife to return the child to the husband.

On January 12, 2021, the parties executed a second stipulation,

which required the wife to return the child to the husband and

to continue to pay the husband $38 per week in child support,

and which was incorporated into a judgment. The wife has

neither returned the child nor paid child support to the husband

since the date of the second stipulation.

On February 8, 2021, the husband filed a complaint for

contempt based on the wife's failure to return the child and pay

child support. On April 6, 2021, the judge found the wife in

contempt for failing to return the child to the husband but made

no finding regarding the wife's failure to pay child support.

The judge also assessed a fine of $10, accruing daily, for each

day after April 25, 2021, that the wife failed to return the

child. On May 19, 2021, the husband filed another complaint for

contempt based on the wife's failure to return the child and pay

the $10 daily fine. The judge again found the wife guilty of

contempt for failing to return the child.

On December 20, 2022, the wife filed a complaint for

modification seeking to terminate her child support obligation

and to establish an obligation on the husband to pay child

support to her. On March 7, 2023, the judge issued a temporary

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order requiring the husband to pay the wife $235 weekly in child

support for thirty one and one-half weeks and $335 weekly

thereafter. The judge reasoned that the husband's obligation

would be reduced for the first thirty one and one-half weeks of

the term to account for the $3,150 in arrearage accrued by the

wife in daily fines pursuant to the April 2021 contempt

judgment.

On June 7, 2023, the husband filed the complaint for

contempt from which this appeal arises. In the complaint, the

husband alleged, inter alia, that the wife had failed to pay $38

weekly in child support. On September 25, 2023, the judge held

a hearing on both the wife's December 2022 complaint for

modification and the husband's June 2023 complaint for contempt.

During the hearing, the wife presented evidence of her ability

to pay child support. This evidence included a canceled check

in the amount of $342 paid to the husband in October 2020 and

her financial statement, listing $700 in weekly income from

employment, $1,010 in a checking account, $258,000 in home

equity, and $5,875 in combined vehicle equity. After the

hearing, the judge found the wife guilty of contempt and ordered

the wife to pay $38 weekly toward the total arrearage of $4,636,

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after applying a credit of $342, accounting for the canceled

check the wife presented at the hearing.1 The wife appealed.

Discussion. 1. Contempt. On appeal, the wife contends

that the judge erred in finding her in contempt for failing to

pay child support.

We review a finding of contempt for abuse of discretion.

Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018). "[T]o

constitute civil contempt there must be a clear and undoubted

disobedience of a clear and unequivocal command" (citation

omitted). Birchall, petitioner, 454 Mass. 837, 851 (2009). The

plaintiff bears the burden of proving contempt by clear and

convincing evidence, and the judge shall consider "the totality

of the circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46,

54 (2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839,

844 (2009).

Here, the wife was required to pay the husband child

support in the amount of $38.00 per week from August 21, 2020,

pursuant to a temporary order and, later, a stipulation

incorporated into a judgment, until her obligation was

terminated as of February 24, 2023. The parties agree that the

1 At the contempt hearing, the judge retroactively
terminated the wife's child support obligation as of February
24, 2023, the date the wife served the complaint for
modification on the husband.

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wife has paid only $342 in child support. The wife does not

dispute that the order is clear and unequivocal, nor does she

dispute her failure to follow the order.

The wife claims that the judge erred in finding her in

contempt because she lacked the ability to pay the child

support. This claim is unavailing. "[T]he defendant must be

found to have the ability to pay at the time the contempt

judgment enters" (citation omitted). Poras v. Pauling, 70 Mass.

App. Ct. 535, 540 (2007). However, the wife presented

insufficient evidence to substantiate her claim that she did not

have the ability to pay the $38 weekly obligation ordered by the

judge. At the September 2023 hearing, the wife emphasized her

inability to pay the arrearage in full, stating that she does

not "have that kind of money," and presented a canceled check in

the amount of $342 paid to the husband in November 2020. In

response, the judge suggested an order that the wife pay $38

weekly toward the arrearage -- an arrangement the wife said was

"fine." Because the wife failed to meet her burden to show that

she had a present inability to comply with the child support

order, we discern no error. See Id., quoting C.P. Kindregan,

Jr., & M.L. Inker, Family Law & Practice §§ 72:3, 72:4 (3d ed.

2002) ("Upon a showing that a defendant in a civil contempt

proceeding is in arrears on his adjudicated support obligations,

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the defendant must come forward with evidence of a present

inability to comply with the order or judgment, and if no such

proof of inability is forthcoming the defendant can be found in

civil contempt").

Furthermore, in the judgment, the judge credited $342

toward the wife's child support to reflect the canceled check.

The record demonstrates that the judge considered "the totality

of the circumstances" in finding the wife in contempt and that

she carefully crafted an order that accounted for the wife's

previous payment and concerns about her ongoing ability to pay.

See Voorhis, 97 Mass. App. Ct. at 54, quoting Wooters, 74 Mass.

App. Ct. at 844. The judge therefore did not abuse her

discretion in finding the wife in contempt. See Birchall, 454

Mass. at 851.

2. Retroactive termination of child support. The wife

contends that the judge abused her discretion by refusing her

request to modify child support retroactive to the date when the

parties' son began living exclusively with the wife. This claim

is unavailing because the retroactive relief requested would

have violated G. L. c. 119A § 13 (a), which prohibits

"retroactive modification except with respect to any period

during which there is pending a complaint for modification, but

only from the date that notice of such complaint has been

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given." Here, the wife served the complaint for modification to

terminate the child support order on February 24, 2023. That

date, which was the date of termination ordered by the judge,

was the earliest date that the judge could have permissibly

chosen to modify the order. See G. L. c. 119A § 13 (a). We

discern no error in the judge's decision not to grant earlier

retroactive relief to the wife. Nor did the judge abuse her

discretion by declining to retroactively impose a child support

obligation on the husband, where the judge reasoned that it

would be unjust in the circumstances because the wife relied on

"self-help" to effect a custodial change without first obtaining

a court order. See Boulter-Hedley v. Boulter, 429 Mass. 808,

809–810 (1999) ("Whether to give retroactive effect to a

modification order is a decision within the discretion of the

judge").

Judgment affirmed.

By the Court (Rubin, Neyman &
Tan, JJ.2),

Clerk

Entered: August 11, 2025.

2 The panelists are listed in order of seniority.

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