In re Birchall

Decision Date23 September 2009
Docket NumberSJC-10444.
Citation454 Mass. 837,913 N.E.2d 799
PartiesRichard G. BIRCHALL, petitioner.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Richard J. Cohen, Centerville, for the petitioner.

Jennifer E. Vecchi for the intervener.



Richard G. Birchall filed a petition for a writ of habeas corpus in the county court pursuant to G.L. c. 248, § 1, seeking relief from his continued detention in the Barnstable County house of correction, where he has been held since April 19, 2007. The petitioner asserts that his incarceration is pursuant to a contempt "order" of a judge in the Orleans Division of the District Court Department that never issued and does not appear on the court docket. He also argues that any contempt order was unlawful because it was based on his failure to pay a civil judgment for which there has been no identified asset (or res) to be liquidated or turned over to the judgment creditor and for which he has no income to pay. The petitioner further contends that the judge lacked jurisdiction to sentence him to jail for contempt, as was done here, during supplementary process proceedings, without giving him a reasonable time to pay the judgment, or a fair hearing on the charge of contempt, in accordance with constitutional principles of due process and the requirements of certain statutes governing supplementary process proceedings, specifically, G.L. c. 224, §§ 15, 16, and 18.

A single justice of this court reserved and reported the case to the full court without a decision. For reasons that follow, we conclude that the petitioner is not entitled to the issuance of a writ of habeas corpus at this time. We order that an evidentiary hearing be held in the District Court, within thirty days of the issuance of the rescript in this case, to determine whether the judgment creditor in this case, Suzanne D'Amour, has proven by clear and convincing evidence that the petitioner has the current ability to pay the judgment, in whole or partial payments. If the judgment creditor fails to meet this burden of proof, the petitioner shall be released from confinement and an order shall enter in the District Court dismissing the supplementary process action.

We also take this opportunity to revise the standard for a finding of civil contempt in all actions, not only supplementary process actions. Until now, the standard was a clear and undoubted disobedience of a clear and unequivocal command, proved by a preponderance of the evidence. After the issuance of the rescript in this case, we require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.

Background. On July 21, 2005, a separate and final default judgment in the amount of $2,752,934.54 entered in the Superior Court against the petitioner and in favor of D'Amour.1 The petitioner did not appeal from the judgment, and on November 16, 2005, execution on the judgment issued in the amount of $2,854,542.74. On December 20, 2006, D'Amour initiated supplementary process proceedings, pursuant to G.L. c. 224, § 14, in the Orleans Division of the District Court Department to recover on the judgment. On February 1, 2007, after the petitioner failed to appear for a scheduled examination, a capias issued for his arrest. He was arrested on April 18 and brought before the court on April 19. A judge (a different judge from the one who imposed the contempt order we review in this case) deemed his failure to appear for the scheduled examination a contempt of court,2 and ordered the petitioner held in the Barnstable County house of correction until April 23, 2007, the date set for the continuation of the supplementary process examination, unless bailed by a master in chancery.3 The petitioner filed a motion the same day to reconsider the mittimus, which was denied. The petitioner did not appeal from the denial and remained in custody until the examination.

Evidence was taken over nine days (from April 23 until May 7, 2007) at the supplementary process examination. On April 27, the judge allowed a motion to withdraw filed by the petitioner's counsel, and the hearing continued with the petitioner proceeding pro se. At the end of each day of the hearing, the petitioner was returned to the jail, and a mittimus issued for his return on the next scheduled day of the hearing.

On the last day of the evidentiary hearing, D'Amour filed an amended complaint of fraud under G.L. c. 224, § 19, asserting that the petitioner had taken multiple steps to conceal, from herself and from the court, his assets in bank accounts in other countries since judgment had entered against him in 2005.4

On May 8, in his memorandum and order regarding the fraud charges, the judge found the petitioner guilty of fraud under G.L. c. 224, § 19, finding by a preponderance of the evidence that the petitioner had fraudulently conveyed, concealed, or otherwise disposed of part of his property with the intent either to secure it to his own use or to defraud D'Amour of it. The judge sentenced the defendant to thirty days in the house of correction for this fraud, with credit for time served (twenty days).5

Also on May 8, in a separate memorandum and order, the judge determined by a preponderance of the evidence that the petitioner had the ability to pay the judgment against him in full or in partial payments (together with interest and costs), and ordered payment forthwith. This order made no mention of contempt, but the judge, after announcing his orders to the parties at the May 8 hearing, told the petitioner that he would remain incarcerated after the completion of his thirty-day sentence until the judgment was paid.6 The petitioner did not appeal from his fraud conviction.7 Nor, until he filed this petition, did he seek appellate review of the order of civil contempt.

The petitioner has been held in the Barnstable County jail since April 19, 2007. His mail and telephone correspondence have been severely restricted and closely monitored.8 Since the entry of the orders described above, at least twenty-three hearings have been held in the District Court at which the petitioner and D'Amour have been present. These hearings were electronically recorded, but, without transcripts or copies of the recordings themselves, we have no way to confirm the statements made in regard to the petitioner's continued confinement for civil contempt. According to the petitioner, virtually each time he has appeared before the judge, the judge has inquired whether he was prepared to pay the judgment, and he has responded that he lacks the financial means to pay. It appears from the District Court docket that the most recent hearing took place on April 28, 2009, and lasted six minutes. The docket also discloses that the petitioner filed motions requesting his release from incarceration on May 24, 2007; October 19, 2007; January 23, 2008 (this was a renewed motion for release); and June 5, 2008. All were unsuccessful and, with the exception of the first, were denied without a hearing.

In July, 2007, D'Amour filed a motion seeking to transfer funds held in a Swiss bank account to satisfy the judgment against the petitioner. On August 31, 2007, the petitioner's mother (since deceased) conveyed the account to D'Amour, and it was liquidated over a period of approximately six months. As a result of this conveyance, plus the conveyance of at least one item of property (a Rolex watch) and a personal injury settlement belonging to the petitioner, the judgment was credited, on March 14, 2008, in the amount of $1,536,394.19. The current balance on the judgment is $1,318,148.55 (plus interest and costs).

At a hearing on October 14, 2008, the judge considered a motion filed by the petitioner on August 13, with an accompanying memorandum, requesting a further hearing on the issue of contempt. The petitioner reminded the judge (and the judge agreed) that the order entered on August 13, 2008, stated that "[t]he Court will continue to hold regular hearings to determine whether [the petitioner] is prepared to purge himself of the contempt found." The petitioner contended that, pursuant to G.L. c. 224, § 18, he was entitled to a full, speedy hearing every thirty days and that § 18 did not contemplate such a hearing to consist simply of the question: "Are you prepared to purge?" The petitioner argued that he was sentenced on May 8, 2007, essentially, to ten more days of confinement for the fraud conviction, but was not brought before the court on May 18, and there was no motion for contempt filed in May. Nor, he contended, had a separate hearing on the issue of contempt ever taken place. The petitioner noted that the memorandum and order entered on May 22, 2008, stated that the petitioner "was found in contempt of an order of May 9th, 2007," but asserted, correctly, that the docket entry sheets for the supplementary proceedings (which numbered twenty-five pages at the time of oral argument) did not reflect a contempt order.

In response to these statements, counsel for D'Amour responded: "Your Honor, I believe we have been over this about four or five times in the past. And, Your Honor, it's my understanding that the question for him today is whether he is ready to purge himself of the contempt."

After further arguments, the judge stated that another hearing would be set up within thirty days (on or before November 13, 2008). When the petitioner continued to maintain that his incarceration was unlawful, the judge advised him to "file an appeal with the Supreme Judicial Court, go to the Appeals Court, go to the United States District Court, do something. Don't just come in here and talk."

On March 3, 2009, the petitioner filed his petition for a writ of habeas corpus with the county court. In a supplemental brief he filed the same day, the...

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