Diver v. Diver
| Decision Date | 15 June 1988 |
| Citation | 524 N.E.2d 378,402 Mass. 599 |
| Parties | JOAN F. DIVER vs. JOSEPH C. DIVER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: HENNESSEY, C.J., LIACOS, ABRAMS, LYNCH, & O'CONNOR, JJ.
George F. Mahoney for the defendant.
Joan F. Diver, pro se.
On July 18, 1986, the defendant was adjudged guilty of civil contempt "for having wilfully failed and refused to obey the court's order of June 16, 1986, in that defendant failed to obtain a position as a salesman comparable to the position he held as salesman between the years 1964 and 1983," and he was committed to jail for six months. He appealed, and on August 5, 1986, a single justice of the Appeals Court stayed his sentence. On January 21, 1987, the defendant was again adjudicated in civil contempt in that he "failed to cooperate with the Family Service Office with reference to ... acquiring a position in sales or a sales related occupation," and he was committed to jail for thirty days. He appealed the second judgment. That sentence was stayed by a judge of the Probate and Family Court. The appeals were consolidated, and we took them on our own initiative. We affirm the first judgment and reverse the second.
The judgments arose out of an action for divorce brought in 1983 by the plaintiff. A judge issued a temporary order granting custody of the parties' children to the plaintiff and requiring the defendant to pay $165 per week for their support. At the time the order was entered, the defendant was employed as a salesman earning approximately $460 weekly.
On May 6, 1985, the plaintiff filed a contempt petition alleging the defendant's failure to meet his child support obligations. After a hearing, a judge found that the defendant was able to meet the support order but had failed to do so. The weekly support payments were ordered increased to make up for the arrearage. Subsequently, in July, 1985, the judge found the defendant in additional arrears and found that the defendant continued to be able to comply with the support order.
On April 10, 1986, following a hearing on March 21, the judge determined that the defendant had been unemployed since December 11, 1985, and that substantial arrears had accumulated. He continued the matter on condition that the defendant report to the Family Service Office weekly "concerning his job seeking efforts and employment status," and he ordered the defendant "to have a job on or within 30 days from the date of the hearing."
A further hearing took place on June 16, 1986. In a memorandum relative to that hearing, dated July 3, 1986, the judge observed that "this case has a history of the defendant's failure to work up to his talents, that of a salesman." He found that, at the time of the hearing, the defendant was employed as a taxi cab driver with a weekly take home pay of $119.20. The judge reported in the memorandum that he had continued the matter to July 18, 1986, "with the admonition to the defendant that he obtain a position as a salesman comparable to the position he held as a salesman between the years 1964 and 1983." The support obligation was modified to $25.00 per week.
After a hearing on July 18, 1986, the judge made the first contempt order to which this review is addressed. In an explanatory memorandum, the judge stated that, on June 16, 1986, he had "ordered the defendant to obtain a position as a salesman comparable to the position he held as a salesman between the years 1964 and 1983," and that he was adjudicating the defendant in civil contempt for his "failure to obtain a position as a salesman and for his continued refusal not sic to work up to his capabilities and talents." The judge concluded that "by such conduct the defendant was in open defiance of the court's orders to support the children of the parties," and he imposed a six-month jail sentence with the stipulation that the defendant "would be released when he indicated when he would be in compliance with the orders of the court."
On October 6, 1986, following the Appeals Court single justice's order staying the execution of the sentence, the judge conducted another hearing with respect to which he wrote another memorandum. That memorandum contained the following order:
Evidence presented at a hearing on January 21, 1987, shows that shortly after October 6, 1986, the Family Service Office attempted to communicate with the defendant to obtain his release of information relating to his job applications....
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