Dep't of Revenue Child Support Enforcement v. Grullon, SJC-12784

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: CYPHER, J.
• Citation: 147 N.E.3d 1066,485 Mass. 129
• Parties: DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT & another v. Joshua GRULLON.
• Docket Number: SJC-12784
• Decision Date: 25 June 2020

485 Mass. 129
147 N.E.3d 1066

DEPARTMENT OF REVENUE CHILD SUPPORT ENFORCEMENT & another¹
v.
Joshua GRULLON.

SJC-12784

Supreme Judicial Court of Massachusetts, Essex..

Argued January 9, 2020
Decided June 25, 2020

Anna S. Richardson (Eve C. Savage Elliott & Catherine Fisher, Boston, also present) for the defendant.

David C. Kravitz, Assistant Attorney General, for Department of Revenue Child Support Enforcement.

The following submitted briefs for amici curiae:

Michael Dsida & Andrew Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Martin W. Healy, Boston, & Thomas J. Carey, Jr., Hingham, for Massachusetts Bar Association & others.

Jamie Sabino & Deborah Harris, Boston, for Massachusetts Law Reform Institute.

Harvey Weiner & Lincoln A. Rose, Boston, for Jewish War Veterans of the United States of America, Inc.

Ruth A. Bourquin for American Civil Liberties Union of Massachusetts, Inc.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

485 Mass. 130

The defendant, Joshua Grullon, appeals from a civil contempt order and subsequent judgment by a judge of the Probate and Family Court on a complaint for unpaid child support filed by the defendant's former wife (mother). At the hearing on

147 N.E.3d 1068

the complaint, the defendant and the mother appeared pro se, and an attorney represented the child support enforcement division of the Department of Revenue (department). Without making findings about the defendant's ability to pay $500 to prevent incarceration for contempt (purge amount), the judge ordered the defendant to spend ten days in jail. We granted the defendant's application for direct appellate review. The defendant raises the issues whether (1) the judge abused her discretion in finding the defendant guilty of civil contempt; (2) a right to counsel exists for indigent defendants in civil contempt proceedings where the defendant faces a realistic risk of incarceration; (3) the department fulfilled its statutory obligations to assist the noncustodial parent; and (4) the judge erred in not accepting the defendant's counterclaim for modification. We hold that it was an abuse of discretion for the judge to hold the defendant in civil contempt, that the department did not fulfill its statutory obligations to assist the noncustodial parent, and that the judge erred in not accepting the defendant's counterclaim for modification. Although this case is moot, we reach the merits of these three issues because they are "capable of repetition, yet evading review" (citation omitted), Commonwealth v. McCulloch, 450 Mass. 483, 486, 879 N.E.2d 685 (2008), and are issues of public importance and have been briefed by both parties, Commonwealth v. Yameen, 401 Mass. 331, 333, 516 N.E.2d 1149 (1987),

485 Mass. 131

cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 198 (1988). We need not answer the question whether there is a right to counsel where the procedural safeguards or their equivalent are provided.²

Background. We present the relevant facts and procedure. The defendant and the mother divorced in November 2017. The divorce judgment provided that defendant pay $123 per week in child support (payments) through the department. In July 2018, the mother filed a pro se complaint for civil contempt (complaint) in the Probate and Family Court, alleging that the defendant was $3,690 behind in his payments. The complaint was marked "DOR full service case," meaning that the department was providing services in the case.

The department served the complaint and summons on the defendant on behalf of the mother. With assistance from Veterans Legal Services, the defendant filed an answer and counterclaim for modification.³ In his answer, the defendant denied that he had "willfully disobeyed a clear and unequivocal court order" as he lacked the ability to make his payments due to his past incarceration and subsequent difficulty obtaining employment. In the defendant's counterclaim for modification, he requested a reduction in the child support order because his income had decreased, resulting in a difference between the order in place and the proper amount under child support guidelines.

The judge held a hearing on the complaint, at which the defendant appeared without counsel. Counsel for the department was present and participated at the hearing. Before the hearing, the defendant completed a financial disclosure form, stating

147 N.E.3d 1069

that his weekly income was $136.24 and that he had fifty dollars in weekly expenses. At the hearing, the department's attorney reported that the defendant owed $5,636 in payments to the mother.⁴ The judge reviewed the defendant's answer to the complaint, observing that the defendant said that he had been incarcerated

485 Mass. 132

from December 2017 to March 2018 and from July to August 2018.⁵ The department's attorney did not challenge these factual assertions. The defendant informed the judge that he was unemployed at the time of the hearing, but that he was enrolled in classes in a tractor trailer driver program, with his graduation date a few weeks away. The defendant informed the judge that the classes had been paid for through the United States Department of Veterans Affairs.

The judge inquired whether the defendant had filed a complaint for modification, and the department attorney stated, "Not to my knowledge." The defendant said he had tried to file a complaint for modification at a different court. When the judge explained that he had to file the complaint for modification at the court where the hearing was being held, the defendant responded that he understood and that "It is crystal clear. I actually have an attorney." The defendant did not inform the judge that he had filed a counterclaim for modification with his answer to the complaint.

Counsel for the department requested incarceration, subject to a $500 purge amount. At first, the judge opposed incarceration, but then ordered it after having an exchange with the defendant, in which the judge stated the defendant had a "poor attitude." The judge ordered the defendant to spend ten days in jail or pay the $500 purge amount. The judge further ordered that the defendant's weekly child support payments be increased to $153.75 per week, an amount that included $30.75 toward arrearage. The defendant was unable to pay his $500 purge amount and was taken into custody and incarcerated, serving his full ten-day sentence.

Insofar as relevant here, through counsel, the defendant filed a notice of appeal from the civil contempt order and a motion to stay the contempt order pending appeal. At a hearing, the judge found that the defendant had complied with the civil contempt order, and therefore denied as moot his request to stay further contempt proceedings, and instead entered judgment on the complaint for civil contempt. During this hearing, the judge again informed the defendant that he had to file and serve a complaint for modification. The defendant, with assistance of counsel, filed a complaint for modification that day.

After a hearing, the judge entered judgment on the defendant's

485 Mass. 133

complaint for modification, reducing his ongoing child support obligation to his requested amount, effective retroactively to the date he filed his answer and counterclaim. The defendant filed a notice of appeal from the judgment on the complaint for civil contempt and renewed his notice of appeal from the civil contempt order.

Discussion. 1. Legal framework. "Two important public policies are furthered by the Massachusetts child support scheme: (1) providing for the best interests of children, and (2) ensuring that the taxpayers are secondary to the parents in meeting the financial needs of dependent children."

147 N.E.3d 1070

Department of Revenue v. Mason M., 439 Mass. 665, 669, 790 N.E.2d 671 (2003). See G. L. c. 119A, § 1 ("It is the public policy of the commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the citizens of the commonwealth").

The department administers the State child support program and is the Commonwealth's sole, so-called IV-D agency. See G. L. c. 119A, § 1 ; 45 C.F.R. § 302.12(a) (2019). An IV-D agency is the single organizational unit within a State "that has the responsibility for administering or supervising the administration of the State plan under title IV-D of the [Social Security] Act." 45 C.F.R. § 301.1 (2019) ("State plan means the State plan for child and spousal support under section 454 of the [Social Security] Act"). The department provides IV-D services to children and families, including services for the "establishment, modification, or enforcement of child support obligations." G. L. c. 119A, § 1A (defining "IV-D services"). The services provided also...