M.M. v. D.A.

• Decision Date: 04 April 2011
• Docket Number: 10–P–758.,Nos. 09–P–2247,10–P–757,s. 09–P–2247
• Parties: M.M.v.D.A.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 197

945 N.E.2d 395

M.M.

v.D.A.

Nos. 09–P–2247

10–P–757

10–P–758.

Appeals Court of Massachusetts, Bristol.

Submitted Oct. 14, 2010.Decided April 4, 2011.

Kimberly Moses Smith for the father.Ann Ponichtera DeNardis, Bedford, for the mother, submitted a brief.Present: COHEN, BROWN, & KATZMANN, JJ.BROWN, J.

D.A. (father) appeals from a contempt judgment of the Probate and Family Court (09–P–2247), as amended and supplemented (10–P–757), and an order of the court denying his motion for relief from the judgment on which the contempt was brought (10–P–758). These actions, which were heard together by the panel, all have their genesis in the father's failure to return the parties' child to M.M. (mother) after the child was taken to Costa Rica by the father in 2006. We affirm the judgment, as supplemented, and the order.

1. Background and proceedings. a. General background. The parties were never married. In 2000 they moved from Massachusetts to Costa Rica where members of the father's family control an Internet gambling company, and where the father has lived “off and on” since he was seventeen years old.¹ The parties returned to the United States in 2001, and the child was born in Massachusetts on July 27, 2003. A voluntary acknowledgment of parentage was executed by the parties that same month.

Between 2001 and 2004 the parties had a “rocky relationship” and were together off and on until the father moved back to Costa Rica in January, 2004. Subsequent to the father's move, the mother spoke with the father five to seven times per week at his place of employment in Costa Rica.

In June, 2004, the child was removed from the mother's custody by the Department of Children and Families (DCF) and was placed in the care of the father's mother for approximately one year. Upon the child's removal from the mother, the father returned from Costa Rica once a month for one week at a time and stayed with his mother at her home on Chavenson Street in Fall River. Throughout the period when she had custody of the child, the father's mother spoke to the father almost daily regarding the well-being of the child. ²

In May, 2005, the child was returned to the mother's care, and in December of that year, the mother took the child to Costa Rica to visit the father. The mother and child stayed at the father's brother's house; the mother did not know the father's address in Costa Rica.

In August, 2006, the mother, who was then unemployed and experiencing financial difficulties, became “reinvolved” with DCF. Following a conversation between the parties about the father taking the child to Costa Rica for a few weeks while the mother “got back on her feet,” the mother agreed to allow the father to take the child and obtained a notarized letter giving him permission to remove the child out of the country. The mother and child met the father in Florida in late August, 2006. At the mother's insistence, the father signed a document stating that he would return the child to the mother in the United States on or before September 10, 2006.

On September 19, 2006, the mother, who had been in daily contact with the father and child in Costa Rica, asked the father when he would be sending the child home. The father responded that he had “tricked her” and that he would not be returning the child.

On September 21, 2006, the mother filed a complaint for support and custody pursuant to G.L. c. 209C which indicated that the father lived in Costa Rica. She directed the sheriff to serve the father at his last known address at Chavenson Street in Fall River.³ A temporary order was also issued on September 21 awarding the mother sole legal and physical custody of the child, directing the father to return the child to the mother forthwith, and assigning the matter for review on October 6, 2006. The mother notified the father about her filing of the complaint and the issuance of the temporary order giving her custody of the child, and told him of the October, 2006, court date. In addition, the mother told the father that she sent the papers to his mother's home on Chavenson Street in Fall River.

No further orders were entered on October 6, 2006, and no other orders were entered in the case until 2008. Between 2006 and 2008, the mother worked with Federal, State, and local authorities to secure the return of the child. The mother has not seen the child since 2006.

In July, 2008, the father was arrested in Costa Rica and was extradited to the United States to face criminal charges arising from his conduct. On August 8, 2008, a Massachusetts attorney entered a special appearance on behalf of the father in connection with the mother's complaint for custody. Counsel indicated that the “Special Appearance [did] not waive the [Defendant's] right to challenge the jurisdiction of the court [or] the improper service of process.” ⁴ No further pleadings were filed by the father's attorney.

In late September and early October, 2008, the mother returned to the Probate and Family Court to obtain a permanent custody order. On October 8, 2008, a judgment was entered granting the mother sole legal and physical custody of the child (noting that such an order was in the child's best interests) and stating that the father was under a continuing obligation to return the child to the mother forthwith.⁵

In November, 2008, the father's brother and his common-law wife obtained guardianship of the child through a Costa Rican court.

b. The contempt action. On April 6, 2009, the mother filed a complaint for contempt (twice amended) alleging that the father had violated the judgment of October 8, 2008, by failing to return the child to her and by failing to observe her right to sole legal and physical custody of the child.⁶ At some point during the first day of trial the father's counsel moved orally to dismiss the contempt action. The motion to dismiss, grounded in the alleged insufficient service of process of the mother's underlying complaint for custody, was heard on May 20, 2009, and taken under advisement.

By a judgment dated September 24, 2009, the father was adjudged guilty of contempt for failing or refusing to comply with the court's judgment dated October 8, 2008, and its prior temporary order of September 21, 2006.⁷ The judge ordered the father to arrange to have the child returned to the United States forthwith and returned to the mother's custody by November 1, 2009. Recognizing, however, that the involvement of the Costa Rican court through the father's brother's guardianship proceeding had made “return of the child more complex,” ⁸ the court found that an alternative remedy was necessary. The court ordered that should the father fail or be unwilling to produce the child in the United States, he would have to pay $40,000 to the mother by December 1, 2009, as a “coercive sanction” so that she could prosecute an action in Costa Rica to seek return of the child to the United States. The judge found that the father “clearly ha[d] the ability to pay this sum, as evidenced by the undisputed fact that he has posted bail set at $400,000 in the criminal case.” The matter was assigned for compliance review on December 17, 2009, the judge reserving for that hearing “consideration of entry of a jail sentence on the civil contempt.” Return of the child or payment of the $40,000 would be deemed sufficient to purge the contempt.⁹ The father has appealed from the judgment of contempt.

c. The supplemental judgment. By order dated December 15, 2009, on the father's motion to stay the contempt judgment, a single justice of this court determined that while “coercive damages do not apply where the record is, at best, unclear in establishing the [father's] ability to comply, these circumstances allow an award of compensatory damages to the [mother] allowing her to pursue the result that ought to have followed from compliance by the [father], in the event that he does not or cannot remedy his failure to comply.” Continuing, the single justice stated, “In that event, the specific amount of the compensatory award should be determined through findings of the actual costs incurred or reasonably estimated in advance, ultimately supported by a precise accounting from the [mother].” The stay was denied, conditional upon the recasting of the judge's order as specified by the single justice.

In accordance with the order of the single justice, a hearing was held and a supplemental judgment dated January 19, 2010, was issued amending and supplementing the contempt judgment. The probate judge ordered, inter alia, that should the father fail or be unwilling to produce the child in the United States, he would pay the mother the sum of $55,000 as compensatory damages to allow her to pursue the result that ought to have followed from compliance by the father. The mother was also awarded counsel fees on the contempt in the amount of $30,000 and attorney's fees pendente lite in the amount of $5,000 for the defense of the appeal. The judge ordered the father committed to jail for ninety days or until he partially purged himself of the contempt by payment of $40,000 (of which $23,000 was to be credited towards the compensatory damages and $17,000 towards the attorney's fees awarded for the prosecution of the contempt and the defense of the appeal) ¹⁰ or until further order of the court or until the father was otherwise discharged by due course of law. If the father had not purged himself by the end of the ninety-day sentence, he was to be brought before the court for “re-sentencing.” The remainder of the terms of the contempt judgment were to remain in effect. It appears that the father was taken immediately into custody. The father has appealed.¹¹ d. The motion for relief from judgment. On September 29, 2009, the father filed a motion for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60(b)(4) seeking relief from the judgment that was entered on October 8, 2008, on ...