Furtado v. Furtado

• Citation: 380 Mass. 137,402 N.E.2d 1024
• Parties: Lynda Khourie FURTADO v. Nelson Miranda FURTADO.
• Decision Date: 14 March 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1024

402 N.E.2d 1024

380 Mass. 137

Lynda Khourie FURTADO v. Nelson Miranda FURTADO.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 3, 1979.

Decided March 14, 1980.

David Goldman, Cambridge & Somerville Legal Services, Cambridge, for defendant.

David H. Lee, Boston, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The defendant was convicted of criminal contempt in the Probate and Family Court of Middlesex County (Probate Court). His sentence of thirty days was stayed pending his appeal. The Appeals Court reversed the conviction and remanded the case to the Probate Court for further consideration of civil, but not criminal, contempt. Furtado v. Furtado, --- Mass.App. --- ^a, 389 N.E.2d 414 (1979). The Appeals Court held that the complaint was inadequate as a complaint for criminal contempt because it did not set forth any special elements of contumacy. Id. at --- - --- ^b, 389 N.E.2d 414. That court further concluded that the evidence did not justify a finding of criminal contempt. Id. at --- - --- ^c, 389 N.E.2d 414. We granted the plaintiff's application for further appellate review.

We disagree with these conclusions of the Appeals Court. The complaint, as supplemented by an order of a Probate Court judge, was sufficient to allege a criminal contempt of court and to give the defendant adequate notice of the charge. Further, the evidence warranted a finding of criminal contempt. We reject certain other arguments of the defendant. The record presents a problem, however, which the Appeals Court did not reach due to its disposition of the case. The judge's participation in the presentation of the evidence against the defendant cast the judge in a dual role which may have denied the defendant a trial before a neutral and impartial trier of fact. For this reason, we reverse the conviction and remand the matter for a new trial on the criminal contempt charge.

On April 29, 1976, a judge of the Probate Court granted the plaintiff a judgment of divorce nisi. The plaintiff received custody of a minor daughter, and the defendant was ordered to pay $40 a week on each Saturday "direct(ly) to the Family Service Office of this Court." Part of that amount was intended to make up arrears in support payments, which had been ordered previously.

On September 10, 1976, a complaint for civil contempt was filed by the Middlesex Probate Court probation department on behalf of the plaintiff. The complaint, which appears to be on a standard form, alleged that the defendant was ordered by a judgment, dated April 29, 1976, to pay $40 a week for support of his minor child and that the judgment was still in force. The complaint further alleged that the defendant had not obeyed that judgment; that $1,970 remained due and unpaid; and that the defendant had violated the order on May 1, 1976, and on various other occasions thereafter, by not paying the ordered support, adding that the defendant had made only five payments since the date of the court order. The complaint concluded by demanding that the defendant appear to show cause why he should not be adjudged "in civil contempt of Court." The words "and/or criminal" printed on the form after the word "civil" were struck.

When the defendant did not appear in response to the complaint, a capias for his arrest was issued on November 4, 1976. A deputy sheriff arrested the defendant and brought him before the Probate Court on May 23, 1977, at which time a Probate Court judge appointed counsel for the defendant. The matter was continued to June 28, 1977, when the judge made the following notation on the complaint for contempt: "D advised that in view of flagrant disregard of Court order, case would be considered as Criminal Contempt; D advised to hire attorney or procure attorney from legal service agency and be present in Court on 7/20/77 to which date case is continued, prepared to defend a charge of Criminal Contempt." The case was continued again to August 17, 1977, and was heard by the same judge who entered the order purporting to change the complaint to one for criminal contempt. We defer presentation of facts relating to issues arising out of the conduct of the trial until we discuss those issues.

The judge filed a "Statement of Findings." ¹ His essential findings were that between April 29, 1976, and August 27, 1976, the defendant was gainfully employed, earning net weekly wages ranging from a low of $102.22 to a high of $208.03. The defendant made five payments of $40 each to the probation department. He knew of the support order, and, although he had sufficient net earnings each week from May 5, 1976, to August 25, 1976, to pay the amount ordered, he wilfully refused to do so, except on five occasions. The judge concluded that the defendant's defiance of lawful orders was contempt of court, because the defendant's noncompliance violated "the orderly processing of the court('s) functions and unwarrantedly impeded the administration of justice." ²

1. Before considering the defendant's challenges to the determination of his criminal contempt of court, we think it appropriate to set forth our views of criminal contempt, particularly with respect to an individual's failure to comply with an order of support. ³ There is reason to believe that there is a good measure of confusion and uncertainty on this subject among judges and attorneys who deal with the question in the Probate and Family Department of the Trial Court. See G.D. McLellan, Contempt Actions in the Probate and Family Department, 23 Boston B.J. No. 11, p. 5 (Dec., 1979).

A contempt proceeding for failure to comply with a support order may be brought as a civil contempt proceeding, as a criminal contempt proceeding, or as both a criminal and a civil contempt proceeding. See Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 347, 65 N.E.2d 555 (1946). Compare Sodones v. Sodones, 366 Mass. 121, 129-130, 314 N.E.2d 906 (1974), with Kelley, petitioner, 292 Mass. 198, 200, 197 N.E. 861 (1935). Of course, there must have been a valid court order in effect on which to base the claim of contempt. See Nickerson v. Dowd, 342 Mass. 462, 464, 174 N.E.2d 346 (1961).

There is a reasonably clear distinction between a civil contempt proceeding and a criminal contempt proceeding in terms of the purpose of the judgment. See Krokyn v. Krokyn, --- Mass. ---, --- n.3 ^d, 390 N.E.2d 733 (1979); Sodones v. Sodones, supra at 130, 314 N.E.2d 906. Civil contempt proceedings are "remedial and coercive," intended to achieve compliance with the court's orders for the benefit of the complainant. Cherry v. Cherry, 253 Mass. 172, 174, 148 N.E. 570 (1925). A contempt proceeding for nonpayment of alimony or support "has never been regarded as partaking of criminal features" (see Blankenburg v. Commonwealth, 260 Mass. 369, 373, 157 N.E. 693, 696 (1927), Id., 272 Mass. 25, 172 N.E. 209 (1930), cert. denied, 283 U.S. 819, 51 S.Ct. 344, 75 L.Ed. 1435 (1931)), or supposed to be "criminal as commonly administered" (see Root v. MacDonald, 260 Mass. 344, 355, 157 N.E. 684 (1927)). On the other hand, a criminal contempt proceeding is "exclusively punitive. It is designed wholly to punish an attempt to prevent the course of justice." Blankenburg v. Commonwealth, 260 Mass. at 373, 157 N.E.2d at 696. See Cherry v. Cherry, supra at 174, 148 N.E. 570.

If the contempt proceeding is criminal even in part, "the criminal feature must be regarded as dominant and fixing the character of the trial" (Root v. MacDonald, supra at 367, 157 N.E. at 692), and, unless the contempt is one which may properly be dealt with summarily, the defendant is entitled to the protections normally accorded to criminal defendants under the law of the Commonwealth. See Sodones v. Sodones, 366 Mass. 121, 127, 314 N.E.2d 906 (1974). Due process requires that the alleged contemnor be advised of the charges against him and that he have a reasonable opportunity to meet them by way of defense or explanation. Id. The defendant is entitled to counsel if a sentence of imprisonment may be imposed and may waive counsel only as provided by constitutional principles and applicable court rules. See Meranto v. Meranto, 366 Mass. 720, 724, 323 N.E.2d 723 (1975); S.J.C. Rule 3:10, as amended, 370 Mass. 911 (1976); Supp.R.Prob.Ct. Rule 402 (1977). The defendant may not be called as a witness against himself. ⁴ Katz v. Commonwealth, --- Mass. ---, --- ^e, 399 N.E.2d 1055 (1979), and cases cited. The defendant is presumed to be innocent, and proof must be beyond a reasonable doubt. See Root v. MacDonald, 260 Mass. 344, 366, 157 N.E. 684 (1927); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911). The defendant is entitled to a trial by jury to the extent provided by the Constitution of the United States or of the Commonwealth and by any applicable rule of court. ⁵ Ordinarily, the criminal contempt proceeding should be held in the court whose order is alleged to have been contumaciously violated. ⁶ Because of the marked procedural distinctions between a civil and a criminal contempt proceeding, obviously the character of the proceeding must be established before trial. ⁷

In a criminal contempt proceeding involving an alleged failure to comply with an order to pay certain amounts for the support of a wife or a minor child, or both, one area of possible difficulty concerns the defendant's ability to pay. Unlike the case of a civil contempt where the ability to pay must be found at the time the contempt order or judgment is entered (Salvesen v. Salvesen, 370 Mass. 608, 611, 351 N.E.2d 499 (1976); Sodones v. Sodones, 366 Mass. 121, 130, 314 N.E.2d 906 (1974)), the judge in a criminal contempt proceeding may make a determination of contempt of court based on an ability to pay at the time of nonpayment, combined with a clear intention to disregard a valid court order. A showing that the defendant...