Contempt Actions

Unfortunately, it is rather common for a party to fail or refuse to comply with a court order. The remedy for the aggrieved party is to file a Complaint for Contempt seeking a determination that the disobedient party be found in contempt. The purpose of civil contempt is remedial: its aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant .

Standard for a Finding of Civil Contempt:

A civil contempt finding must be supported by clear and convincing evidence of disobedience of a clear and unequivocal command. A command or order is clear and unequivocal if the person subject to it can understand what is required of him. The defendant must be found to have the ability to pay at the time the contempt judgment enters. A party may not be sentenced to incarceration if he or she shows that he or she is unable to comply. The party seeking contempt must prove his or her case by a preponderance of the evidence.

Incarceration:

When a judge finds a judgment debtor in contempt for his failure to pay a judgment that he is able to pay, the judge may jail the debtor for a period not to exceed thirty days, with the proviso that the debtor shall be released from jail if he purges his contempt by paying the judgment in full, with interest and assessed costs. If the contemnor has failed to purge his contempt during the maximum thirty-day term of civil contempt, the judge, after hearing, may impose another thirty-day term of civil contempt, with the same proviso. The paradigmatic coercive, civil contempt sanction involves confining a contemnor indefinitely until he complies with an affirmative command such as an order ' to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.' In a civil contempt action, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus carries the keys of his prison in his own pocket.

Recovery of Attorney's Fees and Costs Incurred:

Pursuant to M.G.L. c. 215, §34A, there is a presumption that if a defendant is found in contempt the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his or her reasonable attorney's fees and expenses unless the probate judge enters specific findings that such attorney's fees and expenses shall not be paid by the defendant. An award of attorney fees and expenses of the litigation in civil contempt proceedings is a matter properly left to the sound discretion of the trial judge. A probate court is also afforded discretion to award reasonable attorney's fees and costs to one who successfully prosecutes a contempt action or successfully defends a frivolous contempt action. Even if a party escapes a judgment of contempt by paying overdue sums on the eve of the contempt hearing, there is ample basis for the judge to exercise his or her discretion under G. L. c. 208, §38, to order an award of attorney's fees payable to the plaintiff's counsel in order to mitigate expenses incurred as a result of the defendant's obstructionist conduct.

Awarding of Statutory Interest on Money Judgments:

A successful plaintiff in a contempt action involving a money judgment is entitled to statutory interest on the principal amount awarded. General Laws c. 235, §8, states that every judgment for the payment of money shall bear interest from the day of its entry. It has been held that the six percent standard statutory rate found in M.G.L. c. 107, §3, applies to contempt judgments.

Conclusion:

In sum, if the plaintiff is able to demonstrate by a preponderance of the evidence by clear and convincing evidence that the defendant violated a clear and unequivocal court order, the plaintiff shall be awarded his or her attorney's fees and expenses unless the court makes specific findings to the contrary, and shall be awarded pre-judgment statutory interest at the rate of 6% per annum. The presumptive right to receive an award of attorney's fees and expenses in contempt actions provides appropriate redress for those individuals who elect to employ counsel in these matters.

David M. Baker, Esq.- your Massachusets and Rhode Island Divorce & Family Law Attorney!

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