Greenstein v. Greenstein

• Decision Date: 29 June 2022
• Docket Number: 21-P-456
• Parties: JAMIE GREENSTEIN v. VICTOR GREENSTEIN.
• Court: Appeals Court of Massachusetts

JAMIE GREENSTEIN v. VICTOR GREENSTEIN.

No. 21-P-456

Appeals Court of Massachusetts

June 29, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Victor Greenstein, appeals from a judgment of contempt for failure to pay child support to the plaintiff Jamie Greenstein. On appeal, the defendant argues that the judgment of contempt should be vacated because: (1) the Probate and Family Court failed to provide immediate notice via e-mail, of the disposition of his court filings, thus infringing on his "federally recognized privilege" as a pro se litigant, and (2) the judge erred in failing to consider evidence of the plaintiff's period of voluntary unemployment, and her subsequent increase in income following the acceptance of a new employment position. We affirm.

Discussion.

The defendant claims that the failure to provide him immediate notice via e-mail, of the disposition of his filings with the Probate and Family Court, as provided to pro se litigants with the CM/ECF access program in the United States District Court for the District of Massachusetts,^[1] infringed on the defendant's "federally recognized privilege," and negatively impacted his ability to defend against the complaint for contempt as a pro se litigant. We disagree.

The defendant first raised the issue of insufficient electronic access to the disposition of his filings with the Probate and Family Court in a motion that was filed after the issuance of the judgment of contempt. Where the defendant failed to raise this issue prior to the issuance of the judgment of contempt, the issue is waived. See AA&D Masonry, LLC v. South St. Business Park, LLC, 93 Mass.App.Ct. 693, 697-698 (2018). Nonetheless, even if the issue was properly before us, we find neither error, prejudice, nor infringement on any "federally recognized privilege," in the Probate and Family Court's failure to provide the defendant with immediate notice of the disposition of his court filings via e-mail.^[2] See Sommer v. Maharaj, 451 Mass. 615, 621 (2008) (courts possess inherent power to manage own affairs to achieve orderly and expeditious disposition of cases).

The defendant, however, also claims that the judgment of contempt must be vacated where the judge failed to consider evidence of the plaintiff's unjust enrichment, as a result of her voluntary unemployment and subsequent increase in income. We disagree.

A civil contempt finding is warranted where there exists "clear and convincing evidence of [the] disobedience of a clear and unequivocal command" (citation omitted). Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 134 (2020). Here, the judge found the defendant's child support obligations to be clear and unequivocal. The defendant understood such child support obligations, but willfully failed to make any payments following the loss of his job, despite collecting unemployment benefits. Despite the defendant's unemployment, the judge found by clear and convincing evidence that the defendant still had the ability to pay some amount of support, even if he was unable to pay the full amount owed.^[3] Where the defendant willfully chose not to make any such payments though, he was found to be in contempt of the August 17, 2018 judgment of divorce, from which the defendant's child support obligations arose.

We review a judge's ultimate finding of contempt for an abuse of discretion. Department of Revenue Child Support Enforcement, 485 Mass. at 134. Here, much of the defendant's arguments on appeal though, including his argument that the plaintiff has been unjustly enriched amount to nothing more than dissatisfaction with the judge's failure to modify the child support order. The defendant did not, however, appeal from the denial of his complaint for modification. Instead, he appealed only from the judgment of contempt. Where the defendant essentially makes no argument that the judge abused her discretion in finding him in contempt of his child support obligations, and where the record supports the conclusion that the defendant willfully failed to make any payments towards his child support obligations, we see no reason to disturb the judge's finding of contempt.^[4] See L.L. v. Commonwealth, 470...