Defense for Contempt Not Paying Spousal Support Suffolk County Ma Family and Probate Court
ROSEMARIE IMPRESCIA vs. FRANCIS J. IMPRESCIA.
392 Mass. 101
February 8, 1984 - May 24, 1984
Suffolk County
Present: WILKINS, ABRAMS, NOLAN, & LYNCH, JJ.
On appeal from a default judgment entered on a petition for contempt in a Probate Courtroom as a result of the accused's flagrant disregard of certain discovery orders, this court, considering the policy confronting default judgments in domestic relations proceedings and the omission in Mass. R. Dom. Rel. P. 37 (b) (2) of default equally a sanction for failure to comply with discovery, remanded the instance for consideration of other appropriate sanctions under rule 37. [104-106]
LIBEL for divorce filed in the Probate Court for the county of Suffolk on May 30, 1973.
A complaint for antipathy filed on March 13, 1979, was considered by Fitzpatrick, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain farther appellate review.
Anthony M. Traini for the defendant.
George P. Lordan, Jr., for the plaintiff.
LYNCH, J. The defendant appeals from the default judgment of antipathy of a divorce decree, entered in the Probate and Family unit Court Section, Suffolk County, on his erstwhile wife'south complaint that he had failed to make certain payments of alimony and child support. Entry of the judgment was fabricated past a estimate in the Probate Court after the defendant's repeated failure to comply with discovery orders. The Appeals Court reluctantly remanded the case to the Probate Court for exploration of the possible imposition of other sanctions. Information technology reasoned that the traditional policy against default judgments in domestic relations proceedings and the absenteeism of default as a sanction for failure to comply with discovery in Mass. R. Dom. Rel. P.
Page 102
37 (b) (2) (C) (1982) (domestic rule 37) restricts the Probate Court's power to default a party even in so flagrant a case of discovery misbehavior as this. Imprescia v. Imprescia, xvi Mass. App. Ct. 378 (1983). We allowed the plaintiff's application for further appellate review. We agree with the Appeals Court that the availability of the sanction of default is significantly more restricted under the domestic rules and that the approximate should take explored the possibility of applying the sanctions specifically provided for in domestic dominion 37.
The parties were divorced on Oct 17, 1973. The decree nisi of divorce, entered on that date, incorporated an agreement of the aforementioned appointment, which provided for alimony, kid support, and sure other payments to be made past the defendant. The defendant alleges that on Jan 26, 1977, the parties entered into another agreement which significantly altered his fiscal obligations to the plaintiff. The plaintiff contends that this understanding was never entered equally an lodge of the court and therefore is not a valid modification of the 1973 agreement or, alternatively, that it was procured past fraud on the function of the defendant.
On March 13, 1979, the plaintiff filed a complaint for contempt, alleging that the defendant had failed to comply with the 1973 decree and was approximately $36,000 in arrears. The defendant pleaded compliance with the January 26, 1977, understanding as a defense to the complaint. In July, 1979, he was served with interrogatories and a notice to produce documents. Although the defendant produced some of the information requested, some of the documents, which primarily concerned his fiscal condition during the years 1976 through 1980, were never produced. Between September, 1979, and December, 1981, he was ordered past the estimate on seven divide occasions to complete discovery. He was warned that the sanctions of domestic rule 37 (b) (2) (C) would be imposed if he did non comply. He was ordered to pay $300 in attorney's fees to the plaintiff, which he did. On Nov 9, 1981, he was ordered to answer all unanswered deposition questions [Notation 1] and to
Page 103
provide all outstanding documents "or a judgment shall enter for plaintiff on the contempt without further activity past this Court." On December 17, 1981, the estimate ordered the accused committed for lx days until he should purge himself of his contempt by paying the plaintiff the amount of his arrearage for support, alimony, and other bills which the judge determined to be $53,451.70.
A give-and-take of explanation is needed nigh the judgment. The certificate itself is a form entitled "Judgment of Contempt." It states, in pertinent role: "After hearing, it is adjudged that defendant is guilty of antipathy of this court for having willfully failed and refused to obey its order of October 17, 1981, in that accused neglected and refused to pay back up, pension and other bills the arrearage of which is fixed at $53,451.70." (Italics betoken those portions which were filled in past the judge.) [Note 2] It is articulate from the manifestly linguistic communication of this order and from the guess's order of November 9, 1981, that if the defendant failed to provide discovery within twenty days "a judgment shall enter for plaintiff on the antipathy without further action by this Court," that this judgment is a judgment on the initial complaint for contempt for failure to comply with the divorce decree. Since the judgment establishes without a hearing that the defendant owes the plaintiff $53,451.70 in arrears, it is in consequence a default judgment.
The Appeals Courtroom held that the sanction of default is "significantly more than restricted nether the domestic rules" than under the rules of ceremonious procedure. Massachusetts R. Civ. P. 37 (b) (2) (C), 365 Mass. 797 (1974), provides that a court may sanction a failure to obey an order to provide discovery with an guild "striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any role thereof, or rendering a judgment by default confronting the ill-behaved party." The linguistic communication of domestic rule 37 (b) (2) (C) tracks the civil rule exactly, except
Page 104
that it omits the last clause. This omission appears to reflect the traditional policy against default judgments in domestic relations cases. See, e.chiliad., the comment explaining that a counterpart to Mass. R. Civ. P. 55, 365 Mass. 822 (1974), was omitted from the domestic rules because such a dominion would have been "inappropriate to Domestic Relations cases." Reporters' Notes to Mass. R. Dom. Rel. P. 55, Mass. Ann. Laws, Rules of Domestic Relations Process at 179 (1982). Run into too Teuscher v. Teuscher, 9 Mass. App. Ct. 914 (1980), and J.V. Harvey & E.M. Moriarty, Massachusetts Domestic Relations Section 23.4, at 134 (1984) ("A party cannot be defaulted for failure to answer interrogatories . . .").
It is truthful that the implications of default in an ordinary domestic relations case (an action for divorce, or kid custody, for example) are very unlike from those in an ordinary civil case. Fifty-fifty in an uncontested divorce activity, for instance, a hearing will be held before the divorce is granted. At that place is a societal interest in the disposition of such matters, especially concerning issues such equally child custody and support, which would not be satisfied past a default judgment. In an activity for antipathy of a support order, still, this societal interest is not implicated. The dispute between the husband and wife in this instance is analogous to an activeness in contract where a specific amount of damages is sought. A judgment by default in this case, therefore, would not necessarily violate the traditional policy against defaults in domestic relations proceedings.
In the circumstances of this instance, however, we concur that the approximate should non take ordered the accused defaulted because other sanctions were available to her under the provisions of domestic dominion 37(b)(2). [Annotation three]
Folio 105
For case, domestic rule 37 (b) (two) (A) allows the judge to enter "[a]n order that the matters regarding which the lodge was made or any other designated facts shall be taken to be established for the purposes of the action in accord with the merits of the party obtaining the order." Since the plaintiff was seeking information about the defendant'due south fiscal situation and dealings during the years he is alleged to have been in contempt of his back up obligations, the judge could take ordered taken every bit established pursuant to domestic rule 37(b)(2)(A), for instance, that the defendant was financially able to pay the arrearage or that the amount the plaintiff claimed to be in arrears was the right amount.
Domestic rule 37 (b) (2) (B) allows the gauge to enter "[a]northward guild refusing to allow the disobedient party to back up or oppose designated claims or defenses, or prohibiting him from introducing designated matters in bear witness." The accused claims that he is not in deficit because he and the plaintiff privately agreed to "modify" the original alimony and back up society in January, 1977. [Note 4] Some of the information sought past the plaintiff through discovery relates to the defendant'southward financial condition in January, 1977, and is directly relevant to her claim that her consent to the "modification" and forgiveness of arrears was fraudulently induced. To the extent that the defendant refused to provide information relevant to this issue, the gauge could certainly accept entered an order precluding him
Folio 106
from asserting the "modification" as a defense, or prohibiting him from introducing any testify respecting this defense. See In re Fine Paper Antitrust Litigation, 685 F.2nd 810, 823 (3d Cir. 1982), cert. denied sub nom. Alaska five. Boise Cascade, 459 U.Due south. 1156 (1983) (approximate may exclude evidence when it is directly related to a party's refusal to comply with discovery). Similarly, domestic rule 37(b)(ii)(C) permits the approximate to enter "[a]n order hit out pleadings or parts thereof." The fact that hit out the defendant'southward just defence force would have the aforementioned applied effect equally any entry of default, International Mining Co. five. Allen & Co., 567 F. Supp. 777, 790 (S.D.N.Y. 1983), is not a bar in this instance, given our give-and-take in a higher place on the availability of default in domestic relations cases, generally, and, in this case, specifically.
Finally the approximate had the option of treating the defendant's failure to comply as a contempt of courtroom. Domestic rule 37 (b) (2) (D). Equally a consequence of the accused's being constitute in antipathy, the gauge can order him imprisoned or fined to compel his obedience to her discovery orders. G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 41 n.thirteen (1st Cir. 1980). Parker v. United states, 153 F.2d 66, 70 (1st Cir. 1946).
There are, therefore, 2 possible contempts in this case; contempt pursuant to domestic dominion 37 (b) (2) (D), and contempt of the divorce prescript. The guild of Dec 17, 1981, was a judgment on the merits of the plaintiff's complaint for contempt of the divorce decree and thus merged the distinction between the 2. This sanction should not take been applied, at least while an culling was available to the judge within the provisions of domestic rule 37 (b) (2) for dealing with contempt of the discovery gild.
Considering it is our view that the judge could find the sanction she wanted within the four corners of domestic rule 37 (b) (2), the default judgment is vacated and the instance is remanded to the Probate Court for further proceedings consistent with this opinion.
So ordered.
FOOTNOTES
[Note one] These questions related to the sale of property past the accused in 1979.
[Notation ii] Since there was no order entered on October 17, 1981, in this example, we assume that the gauge was referring to the defendant'southward failure to obey the club of October 17, 1973, the date of the divorce decree.
[Note three] Since the domestic rule does provide the judge with sanctions appropriate for this sort of infraction, we demand non delve into the consequence of the Probate Court's inherent power to default. See Societe Internationale v. Rogers, 357 U.S. 197, 207 (1958) (Rule 37 is exclusive source for sanctions for failure to comply with discovery); Independent Prods. Corp. v. Loew'southward Inc., 283 F.2nd 730, 733 (2d Cir. 1960) ("The courtroom below should have dealt with the issues pertinent to the motility to compel answers past following the specific procedures set up along in Rule 37(a) and (b) instead of ignoring these procedures and summarily dismissing the complaint, fifty-fifty though this precipitate action is sought to be justified as beingness within the court'south inherent powers. . . . The lower court need not and should not accept resorted to the use of its inherent ability"). Come across also C. Wright, Federal Courts 442 (3d ed. 1976) ("[R]esort to other authorisation is needless and confusing. With the exception of . . . [Rules 45(f) and xxx(thou)] . . . Dominion 37 is, as the Supreme Court has now held, the exclusive authority for sanctions for discovery procedures"). Cf. Davis v. Superior Court, 580 P.2d 1176, 1178 (Alaska 1978) ("Since Civil Rule 95(b) expressly provides for a sanction . . . it was non necessary to rely on any reservoir of the court's inherent powers . . .").
[Annotation iv] Although we do not determine the consequence, the validity of a private understanding betwixt hubby and wife made subsequent to a judgment of divorce which purports to change the fiscal obligations of the parties, simply which is never brought before the Probate Court or canonical as a modification of the original order, is at to the lowest degree open to serious question.
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