C.M. v. D.M.

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

23-P-1445

C.M.

vs.

D.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

C.M. (husband), the former spouse of D.M. (wife), appeals

from a Probate and Family Court contempt judgment dated October

20, 2022, entered on the wife's two contempt complaints (2022

contempt judgment). That judgment adjudicated the husband

guilty of civil contempt for failing to pay the wife $7,500 in

legal fees previously ordered in connection with contempt and

modification actions commenced by the husband that were

dismissed with prejudice in May 2021. The 2022 contempt

judgment ordered the husband to make specified periodic payments

until the $7,500 was satisfied, and to pay a sanction of $50 per

day for each day a periodic payment was late. We affirm the

2022 contempt judgment.
The husband claims error in the underlying fee award

ordered in connection with the May 2021 judgments of dismissal.

But the propriety of the $7,500 fee award is not before us.

Although the husband filed a notice of appeal from the May 2021

judgments of dismissal, that appeal was dismissed in March 2022.

The husband's subsequent motion seeking leave to file a late

appeal from those judgments was denied in July 2022. The

husband appealed the order denying him leave to file a late

appeal, and that order was affirmed in an unpublished memorandum

and order issued by another panel of this court. C.M. v. D.M.,

104 Mass. App. Ct. 1101 (2024). Thus, in the present appeal,

the husband cannot challenge the correctness of the $7,500 fee

award itself.

The husband also claims that the judge erred in finding him

guilty of contempt because, although he conceded that he had not

paid the $7,500 fee award, there was no clear and convincing

evidence of his ability to pay it. It is true that the burden

of proof in civil contempt cases is ordinarily on the party

complaining of contempt, but "[t]he Legislature has assigned a

different burden . . . in family law matters." Birchall,

petitioner, 454 Mass. 837, 850 n.13 (2009). In the Probate and

Family Court, "[a]t the hearing of a complaint for civil

contempt, the defendant shall have the burden of proving his or

her inability to comply with the pre-existing order or judgment

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of which the complaint alleges violation." G. L. c. 215, § 34.

See Birchall, supra.

Accordingly, in this case the burden was on the husband, as

the defendant in the wife's contempt actions, to prove his

inability to pay the $7,500 fee award. The husband argued to

the judge that he was unable to pay. By thereafter finding the

husband in contempt, the judge implicitly found that the husband

had failed to prove his inability to pay. On appeal, the

question is whether the husband, as the appellant, has carried

his burden of showing that the judge's finding was clearly

erroneous. Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014).

A judge's factual findings will "not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge . . . the credibility of

the witnesses." Mass. R. Dom. Rel. P. 52 (a). "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."

Barboza v. McLeod, 447 Mass. 468, 469 (2006), quoting Marlow v.

New Bedford, 369 Mass. 501, 508 (1976).

The husband cannot carry his burden here, because he has

not furnished us with a complete transcript of the evidentiary

hearing on the wife's complaints for contempt. The transcript

he has provided ends after approximately twelve and one-half

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minutes, just as the wife was beginning to testify. Without a

record of the "entire evidence" offered at the hearing, Barboza,

447 Mass. at 469, we are in no position to determine that the

judge clearly erred in finding the husband able to pay. See

Matter of Valerie R. Pecce Supplemental Needs Trust, 99 Mass.

App. Ct. 376, 381–382 (2021).

We recognize the husband's claim that the audio recording

of the contempt hearing was itself incomplete, preventing him

from obtaining a complete transcript. This was the subject of a

hearing held by a single justice of this court on March 8, 2024,

at which the parties were informed that if the recording was

unrecoverable, they could seek to reconstruct the record. See

Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019)

(procedures for reconstructing record when transcript

unavailable, matters were omitted from record, or recording was

inaudible). The wife declined to undertake the process of

reconstructing he record, and the husband expressed no interest

in doing so.

It is "a fundamental and long-standing rule of appellate

civil practice" that the appellant has an obligation "to include

in the appendix those parts of the [record that] are essential

for review of the issues raised on appeal." Shawmut Community

Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991),

S.C., 411 Mass. 807 (1992). Where the appellant has the burden

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of showing that a finding of fact was clearly erroneous, but has

not provided a sufficient transcript, "[w]e cannot determine

that a finding of fact was clearly erroneous under these

circumstances." Matter of Valerie R. Pecce Supplemental Needs

Trust, 99 Mass. App. Ct. at 381.

The husband appears to argue that, because he is indigent

as defined in G. L. c. 261, § 27A, he is as a matter of law

unable to pay the fee award. But he cites no authority for this

proposition.1 He asserts that he qualifies as indigent because

he receives food stamps and MassHealth benefits, but he fails to

demonstrate that eligibility for such benefits necessarily

equates to inability to pay the fee award, particularly through

periodic payments such as those required by the 2022 contempt

judgment.

His brief further claims that he qualifies as indigent

because he "is unable to pay the judgment without depriving

[himself] or his dependents of the necessities of life,

including food, shelter and clothing." He asserts that the

judge erroneously "denied" his affidavit of indigency. But the

1 He sensibly does not assert that the judgment ordering him
to pay the wife's attorney's fees was a "cost" that should have
been waived, substituted, or paid by the Commonwealth under
G. L. c. 261, §§ 27A-27G; he appears to concede that it was not.
Cf. Frechette v. D'Andrea, 494 Mass. 167 (2024) (use and
occupancy payments that indigent tenant was required to pay
during pendency of summary process appeal were not "costs" under
§ 27A).

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portion of the record he cites in support of this argument is so

illegible that we cannot determine the basis upon which he

claimed indigency or how the judge may have ruled on whatever

request he was making. We can, however, discern that either the

request or the ruling was dated February 2021, which was twenty

months before the October 2022 contempt hearing at issue here,

and therefore was of limited relevance in determining his

ability to pay at the time of the hearing.

Contempt judgment affirmed.

By the Court (Sacks, Shin &
Hershfang, JJ.2),

Clerk

Entered: November 21, 2024.

2 The panelists are listed in order of seniority.

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