Sodones v. Sodones

• Decision Date: 05 August 1974
• Citation: 314 N.E.2d 906,366 Mass. 121
• Parties: Phyllis A. SODONES v. Stephen J. SODONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 906

314 N.E.2d 906

366 Mass. 121

Phyllis A. SODONES v. Stephen J. SODONES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1974.

Decided Aug. 5, 1974.

Richard M. Bluestein, Boston Legal Assistance Project, Boston (Gershon M. Ratner, Boston, with him), for Stephen J. Sodones.

Arthur E. Schoepfer, Boston, for Phyllis A. Sodones, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

The defendant, Stephen J. Sodones, appeals from a decree of the Probate Court which adjudged him guilty of contempt for failure to comply with a prior court order for separate support. He also appeals from the denial of several motions related to his appeal from the contempt decree.

We summarize the prior proceedings pertinent to this appeal. On December 4, 1970, the plaintiff Phyllis A. Sodones filed a petition for separate support against the defendant; after a hearing on May 18, 1971, at which the defendant, after notice, did not appear, the judge issued temporary orders which prohibited the defendant from imposing any restraint on the plaintiff's personal liberty, awarded her the custody of the couple's two minor children, and ordered the defendant to pay her $60 a week for support.

On December 29, 1971, the plaintiff filed a petition for contempt which alleged that the defendant had not obeyed the decree of May 18, 1971, in that he had not paid her the required weekly support payments and had also 'violated the terms of the restraining order by his actions on December 10, 1971 and other divers dates.' The petition stated that $1,380 was due the plaintiff in back payments. The defendant was served in hand with a citation to appear on February 3, 1972, to show cause why the petition for contempt should not be granted.

After a hearing held on the petition on that date, the probate judge found the defendant in contempt and sentenced him to ninety days in jail unless or until he should sooner purge himself by the payment of $1,580 and costs. ¹ The defendant was committed to the Charles Street jail the same day. He claimed a timely appeal from the contempt decree. On February 23, 1972, a single justice of this court denied without prejudice his petition for stay of execution.

On March 2, 1972, the probate judge filed his report of material facts which included the following. There was a full hearing on the petition for contempt at which both parties were present and represented by counsel; the defendant was $1,580 in arrears on the support order of May 18, 1971, and was capable of meeting that order; 'his failure to do so was his disregard of his children's welfare and his preference for drink over work.' On May 18, 1971, when the support order was issued, the defendant was a union carpenter with foreman status receiving a net pay of $306 a week; from August through November, 1971, he averaged $250 a week from June to August, 1971, and from November, 1971, to February, 1972, 'his employment was sporadic and marked by absenteeism and for several weeks before February 3, 1972, he was on unemployment compensation receiving $87.00 a week. Phyllis (the plaintiff) and the children were on welfare.' Since May 18, 1971, the defendant had 'violated the restraining order on several occasions. He assaulted Phyllis on the street. He hurled an ash barrel against the side of the family house and slashed the tires on her automobile.' The judge also stated in his report that he did not 'subscribe' to the argument of the defendant's counsel, presented on motion for rehearing, that the defendant had become an alcoholic and was physically incapable of working to support his family.

On April 7, 1972, a single justice of this, court granted the defendant's motion for a stay of execution pending appeal from the decree of the Probate Court, and on April 10, 1972, the probate judge ordered that the defendant be released from jail and that the case be continued generally for further disposition.

On April 20, 1972, the defendant filed in the Probate Court (1) a motion to expunge the contempt decree and sentence, or, alternatively, to quash the remaining sentence because of his inability to pay the $1,580 due; (2) an affidavit asserting his inability because of poverty to purge his contempt by paying the $1,580; (3) a motion to amend the release order of April 10 to clarify its meaning; and (4) a motion to enlarge the report of material facts. On April 24, the judge denied the defendant's motion to amend the release order and to report additional facts; on May 8, the defendant appealed from both denials. ²

The defendant raises three arguments to support his contention that the contempt decree and sentence should be reversed: first, that the notice he received of the contempt proceeding was constitutionally invalid in that it failed to inform him of the specific actions for which the contempt decree was sought and further failed to notify him whether he was being charged with civil or criminal contempt; second, that the judge's admission in evidence of unsworn statements of the plaintiff's counsel and his reliance on other evidence from a prior hearing violated the defendant's rights to due process under the Fourteenth Amendment to the United States Constitution; and third, that since the defendant, due to his poverty, was unable to pay the $1,580 ordered by the judge both at the time the sentence was imposed and thereafter, the part of his sentence ordering him to serve ninety days in jail denied him due process and equal protection of the laws in violation of the Fourteenth Amendment. Before reaching these claims, however, the defendant first raises questions concerning the judge's denial of his motion to enlarge the report of material facts.

1. The defendant argues that the judge's report does not contain findings necessary for this court to determine his constitutional claims relating to the contempt decree. His motion to enlarge the report sought to have the judge include therein certain suggested findings which he asserts would have cured the alleged deficiencies, ³ and he argues that it should have been allowed.

Assuming that an appeal can be taken from the denial of the defendant's motion, see Cesarone v. Cesarone, 329 Mass. 217, 219, 107 N.E.2d 312 (1952), it is well settled that a request to enlarge a report of material facts is a matter for the discretion of the trial judge. Plumer v. Houghton & Dutton Co., 277 Mass. 209, 214--215, 178 N.E. 716, (1931). Fields v. Paraskis, 318 Mass. 726, 727--728, 63 N.E.2d 906 (1945). Vergnani v. Vergnani, 321 Mass. 699, 701, 75 N.E.2d 497 (1947). Cesarone v. Cesarone, supra. As was said in Fields v. Paraskis, supra, at 727--728, 63 N.E.2d at 907, '(T)he material facts that a judge . . . may be required to report are facts that the judge acting in good faith thinks material to the decree entered by him and that form the basis for it, and not facts material merely to the case in some aspect of it. This is fully explained in our decisions. . . . The right of an appellant to require a report of material facts is not a right to catechize the judge, or to require him to deal specifically with alleged facts selected by the appellant. The appellant must accept the report that the judge makes, and argue his appeal upon that report together with the rest of the technical record, which does not include the evidence unless the appellant has taken the precaution of seasonably requiring, and thereby making part of the record a report of the evidence under G.L. (Ter. Ed.) c. 214, § 24 or c. 215, § 12.' ⁴

We emphasize this last point. If the defendant wished to have a review of the facts found by the probate judge, whether because he claimed that they were inadequate or that they were plainly wrong in light of the competent evidence presented, he should have taken the necessary steps before the hearing to have a stenographer appointed and the evidence reported. See G.L. c. 215 § 18; Rule 18 of the Probate Court (1959). Absent a report of the evidence, an appellate court is bound by the facts reported. ⁵ We must accept the report as including all the facts considered material by the judge to his decision, and cannot infer the existence of other facts not included therein. And we must accept the facts found as true unless the report itself indicates that they are mutually inconsistent or plainly wrong. If they are not, the only question before us is whether the decree entered was supported by the material facts reported. Sidlow v. Gosselin, 310 Mass. 395, 397--398, 38 N.E.2d 665 (1941). Thompson v. Thompson, 312 Mass. 245, 246--247, 44 N.E.2d 651 (1942). Cf. Brooks v. National Shawmut Bank, 323 Mass. 677, 680--681, 684--685, 84 N.E.2d 318 (1949). We hold there was no error in the judge's denial of the defendant's motion to enlarge the report of material facts.

2. The failure to to have the evidence reported similarly precludes us from considering the defendant's claim that he was denied due process of law by the judge's reliance on unsworn testimony and evidence from outside the hearing in his report of material facts.

It is clear that 'due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf either by way of defense or explanation.' In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948). See Cooke v. United States, 267 U.S. 517, 536--537, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Crystal, petitioner, 330 Mass. 583, 588--589 (1953); Garabedian v. Commonwealth, 336 Mass. 119, 124--125, 142 N.E.2d 777 (1957). If, as the defendant asserts, the judge did admit in evidence and rely on unsworn statements of the plaintiff's counsel over objection of the defendant's counsel at the...