Below is an affidavit from a teenage son, which was signed and notarized.

What follows is the Verified Motion for Modification of a Contempt Order, from the father of that son.

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

PROBATE AND FAMILY COURT DEPARTMENT

DEFENDANT’S VERIFIED MOTION FOR MODIFICATION OF CONTEMPT ORDER

COMES NOW, Defendant/Father, [redacted], as a self-represented litigant, and files this Verified Motion for Modification of the Contempt Order dated May 17, 2023, pursuant to Mass. R. Civ. P. 60 (2013 amendment), and states as follows:

1.

PRELIMINARY STATEMENT

1. The phrase “you can’t get blood out of a turnip” is an idiom that means you cannot get something from a person, especially money, that they don’t have.[i] The phrase is one of the more colorful idioms in the English language. The meaning of the saying is that it is impossible to produce a desired item or outcome from an object or situation that could not, in any case, provide it.[ii]
2. In modern use of the phrase “get blood from a turnip” is often used as an allegory for financial gain. Someone might use the it to suggest that, regardless of aggressive tactics, a party may not be able to get payment of a bill from someone who is in poverty, or who does not have the discretionary capital to pay off the debt.

STANDARD OF REVIEW

3. Sometimes a party may want to change an order or judgment because there is a legitimate need to do so, and it would be unfair not to allow a change. Such is the case in this matter.
4. R. Dom. Rel. P. 60(a). This rule “seeks to ensure that the record of judgment reflects what actually took place,” and to correct mistakes created by some oversight or omission of the court, a clerk, or a party.
5. A judge may “relieve” a party from a final judgment or order to accomplish justice for the following reasons:
   • mistake, inadvertence, surprise, or excusable neglect;
   • newly discovered evidence which reasonably could not have been discovered within ten days after the judgment is entered (i.e., in time to move for a new trial under Mass. R. Dom. Rel. P. 59(b));
   • fraud, misrepresentation, or other misconduct of an opposing party;
   • the judgment is void (meaning the judgment is not valid, has no legal effect);
   • the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer fair that the judgment should have prospective application; or
   • any other reason that justice would require.
6. In the case of In re Birchall (2009)[iii], the Supreme Judicial Court explained the legal standard for contempt actions in Massachusetts as follows: “we require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall represented a tightening of the burden of proof in contempt cases.

ARGUMENT

1. Clear and Convincing Evidence Standard Was Never Met; Therefore, Justice Demands that this Contempt Order be Immediately Stricken.
2. The limited case law we have defining “clear and convincing” evidence is rather thin, since the legal standard only applies to a narrow slice of Massachusetts cases. Indeed, most of the law surrounding the “clear and convincing evidence” standard is found in care and protection case in which the Department of Children and Families has taken custody of children from parents who are deemed “unfit” by a juvenile court judge.
3. In Adoption of Iris (1997), the Appeals Court remarked that when applying the clear and convincing standard, the “requisite proof must be strong and positive; it must be ‘full, clear and decisive’. In Adoption of Zoltan (2008), the Court said, “[t]o be clear and convincing, the ‘evidence must be sufficient to convey a high degree of probability’ that the proposition is true.” In the context of contempt proceedings, appellate courts have similarly suggested that the “clear and convincing” standard requires a strong showing of evidence by the court. For example, in City of Worchester v. College Hill Properties (2011) the Appeals Court held that Plaintiff carries a “burden to prove the Defendants’ clear and undoubted disobedience of a clear and unequivocal command … by clear and convincing evidence.”^[iv] Merriam-Webster defines “undoubted” as “definitely true or existing” and “unequivocal” as “very strong and clear” and “not showing or allowing any doubt.” In truth, however, most appellate opinions reviewing probate court findings of contempt simply recite the “clear and convincing” standard. Nevertheless, common sense tells us that a Court must present extremely persuasive evidence to prove that a Defendant should be found in contempt.
4. This court’s order fails to meet the guidelines and qualifications to hold this Defendant in contempt of court under the “clear and convincing” evidence standards as thoroughly detailed above.^[v]
5. Specifically, the Defendant has time after time explained that the December 8, 2022 Judgement of Divorce income for him is inaccurate and incorrect. This court fails to listen! Not only is the December 8, 2022 Judgement of Divorce slightly incorrect, it is appallingly incorrect.
6. Time and time again, the Defendant has been ordered by this court to pay for the Plaintiff’s counsel fees^[vi] without the benefit of examining same. Attorneys are notorious for “over-billing” their clients; especially, if they believe there is a possibility of them being paid for by the opposing side. To simply pay these attorney’s fees without even being allowed to contest the amount of unjust, excessive, and unreasonable.
7. The Defendant/Father does NOT have sufficient income to satisfy his financial obligations.
   1. The Order the Defendant is Alleged to Have Violated is Ambiguous and Vague.
8. The requirement of a clear and unequivocal order is a must for any finding of contempt. As the Supreme Judicial Court held in Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept of Mental Retardation (No. 1) (1997), “Where the order is ambiguous there cannot be a finding of contempt.” The SJC defined “ambiguous” in Bercume v. Bercume (1999): a “term is ambiguous only if it is susceptible to more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” When it comes to the meaning of a particular order, Massachusetts law says: “there can be only one.”
9. The clarity of language in a final stipulation, separation agreement or judgment is critical for the parties to understand their rights and obligations. Clarity is equally necessary for a future judge to determine whether a party should be found in contempt for violating an order set forth in the instrument. As the Appeals Court remarked in Sax v. Sax (2002):

“In the end, ‘[a]final decree should be definite and certain as the circumstances allow in order that a Defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of an ambiguity in the decree.

15. Whenever a party is compelled to act (or not act) by a court, the order must be clear and unambiguous to be enforceable in contempt proceedings.
16. For instance, there remains ambiguity regarding the Qualified Domestic Relations Order (hereinafter “QDRO”) regarding who pays for these related fees. The Contempt Order states, “It was also not proven the Father was timely requested to pay the expert fees.” What exactly does that mean?
17. In short, court judges in contempt proceedings are not supposed to “read into” poorly written orders to try and find a larger meaning beyond the words on the page. If determining the meaning of the order requires leaps or logic or a detailed knowledge of the patties’ history, then the order is generally ambiguous for the purposes of a contempt finding.
18. The first prong of the contempt test comes “first” for a reason. A court must first determine that an order is unambiguous, which then allows the court to determine if the Defendant’s conduct qualifies as “disobedience.” The test’s sequence matters!
    1. Massachusetts Law & Defense of Inability to Comply.
19. This court may be surprised to find that Massachusetts actually has a clear statute regarding the defense of inability to comply in contempt proceedings. G.L. c. 215, 34 provides:

“At a hearing of a complaint for civil contempt, the Defendant shall have the burden of proving his or her inability to comply with the preexisting order or judgment of which the complaint alleges violation.”

20. In short, this means that a Defendant who has failed to comply with an unambiguous order may provide evidence that he or she was unable to comply.
21. “Inability to pay” is a strong defense for an individual whose financial statement(s) demonstrates that he or she lack the means to pay the amount required under the order.
22. Specifically, Defendant’s business income has been substantially less than as reported on the December 8, 2022 Judgment of Divorce.
23. Judges typically recognize that parties are not miracle workers and will generally decline to find a party in contempt for violations arising out of events beyond the Defendant’s control.
24. The good faith inability to comply with a decree is a complete defense to a contempt action.
25. The simple findings of facts in this case are not sufficient for the conclusion that

Defendant’s conduct was willful and deliberate.

26. It is Defendant’s opinion that under present Massachusetts practice, court appointed counsel must be appointed.^[vii]

Unjust Imposition & Enforcement of Civil Infractions Violate Constitutional Principles.

27. The April 20, 2023 letter from the United States Department of Justice, Office of the Associate Attorney General to all Colleagues states (in part) outlines seven (7) constitutional principles, as follows:

“(1)     The Eighth Amendment prohibits the imposition of fines and fees that are grossly disproportionate to the severity of the offense;

• The Fourteenth Amendment prohibits incarceration for nonpayment of fines and fees without first conducting an ability-to-pay determination and establishing that the failure to pay is willful;
• The Fourteenth Amendment requires the consideration of alternatives before incarcerating individuals who are unable to pay fines and fees;
• The Fourteenth Amendment prohibits the imposition of fines and fees that create conflicts of interest;
• The Fourteenth Amendment prohibits conditioning access to the judicial process on the payment of fees by individuals who are unable to pay;
• The Sixth and Fourteenth Amendments require due process protections, such as access to counsel in appropriate cases, as well as notice, when imposing and enforcing fines and fees; and
• The Fourteenth Amendment prohibits the imposition of fines and fees in a manner that intentionally discriminates against a protected class.”

28. In addition to constitutional responsibilities and related public policy concerns, the letter outlines the obligations of recipients of federal financial assistance (including courts) under Title VI of the Civil U.S. Department of Justice Office of the Associate Attorney General Rights Act of 1964 (Title VI), the Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act), and other statutes with nondiscrimination provisions. Collectively, these statutes, and their implementing regulations, prohibit recipients of federal financial assistance from discriminating on the basis of race, color, national origin, religion, and sex.
29. The Eighth Amendment prohibits imposing excessive fines. A fine is unconstitutionally excessive under the Eighth Amendment when it “is grossly disproportional to the gravity of the defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 336-37 (1998). In limbs v. Indiana, the U.S. Supreme Court unanimously held that the Excessive Fines Clause is incorporated by the Fourteenth Amendment’s Due Process Clause and is therefore applicable to the states. 139
30. Ct. 682, 687 (2019). The Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.”‘ Austin v. United States, 509 U.S. 602, 609-10 (1993) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989)).
31. When assessing fines and fees that are at least in part punitive, courts are required to consider the severity of the offense. Bajakajian, 524 U.S. at 336-37; Austin, 509 U.S. at 609-10. As part of this broader analysis, we recommend that courts also consider individuals’ economic circumstances when assessing fines and fees. The U.S. Supreme Court in Timbs noted that the Magna Carta “required that economic sanctions . . . ‘not be so large as to deprive [an offender] of his livelihood.”‘ 139 S. Ct. at 688 (second alteration in original) (quoting Browning-Ferris, 492 U.S. at 271).
32. The Fourteenth Amendment Prohibits Incarceration for Nonpayment of Fines & Fees Without First Conducting an Ability-To-Pay Determination & Establishing that the Failure to Pay is Willful.
33. The due process and equal protection principles of the Fourteenth Amendment prohibit “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983). Thus, the

U.S. Supreme Court has repeatedly held that the government may not incarcerate individuals solely because of their inability to pay a fine or fee. In Bearden, the Court explained that cases about equal access to justice involve both equal protection and due process principles, and they therefore require courts to conduct a “careful inquiry” that balances the individual’s interests against the state’s interests. Id. at 666-67. After conducting this inquiry, the Court prohibited the incarceration of an indigent probationer for failing to pay a fine despite bona fide efforts to do so because “[t]o do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.” Id. at 672-73. “Such a deprivation,” the Court continued, “would be contrary to the fundamental fairness required by the Fourteenth Amendment.” Id. at 673; see also Tate v. Short, 401 U.S. 395, 398 (1971) (holding that the state could not convert defendant’s unpaid fine for a fine-only offense to incarceration because that would subject him ”to imprisonment solely because of his indigency”); Williams v. Illinois, 399

U.S. 235, 241-42 (1970) (holding that an indigent defendant could not be imprisoned longer than the statutory maximum for failing to pay his fine). The U.S. Supreme Court reaffirmed this principle in Turner v. Rogers, 564 U.S. 431 (2011), holding that a court cannot jail a parent for failure to pay child support without providing adequate procedural safeguards to ensure consideration of the parent’s ability to pay. Id. at 445-48.17.

32. State and local courts have an affirmative duty to determine an individual’s ability to pay and whether any nonpayment was willful before imposing incarceration as a consequence. See Bearden, 461 U.S. at 672 (holding that in probation revocation proceedings “for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay”). State and local courts should conduct this analysis even if a defendant does not specifically raise the issue. See id.
33. When assessing whether nonpayment was willful, the key question is whether the individual has made “sufficient bona fide efforts legally to acquire the resources to pay.” Bearden, 461 U.S. at 661-62, 672. In making ability-to-pay assessments, courts should rely on “criteria typically considered daily by sentencing courts throughout the land.” Id. at 673 n. 12. Historically, in undertaking this analysis, courts have not considered how an individual spends money, but have instead focused solely on whether the individual has sufficient income and financial resources to pay the fine at issue while still meeting basic needs. See, e.g., Tate, 401 U.S. at 396 n. 1.
34. A willfulness determination must be fair and accurate. Due process requires that courts uniformly and consistently apply standards for making such determinations, such as notifying the defendant that their ability to pay will be considered by the court and providing a meaningful opportunity for the defendant to be heard regarding their ability to pay. See Turner, 564 U.S. at 447-48 (holding that such procedures are adequate safeguards against unrepresented parties being jailed based on an inability to make child-support payments).

CONCLUSION

35. “[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Rosen v. Rosen, 90 Mass. App. Ct. 677, 692 (App. Ct., Essex, 2016), citing In re Birchall, 454 Mass. 837, 853 (2009). Here, the order cited by Plaintiff — the Judgment of Divorce dated December 8, 2022 — contains no “command” of any kind, let alone the legally-required “clear and unequivocal demand,” for Defendant to pay any future attorney’s fees to Plaintiff. This cannot support of complaint for contempt as a matter of law.
36. “[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Rosen v. Rosen, 90 Mass. App. Ct. 677, 692 (App. Ct., Essex, 2016), citing In re Birchall, 454 Mass. 837, 853 (2009). Here, the order cited by Plaintiff — the Judgment of Divorce dated December 8, 2022 — contains no “command” of any kind, let alone the legally-required “clear and unequivocal demand,” for Defendant to pay any future attorney’s fees to Plaintiff. This cannot support of complaint for contempt as a matter of law.

WHEREFORE, Defendant respectfully requests that the Contempt Order be stricken in its entirety; or in the alternative, be rewritten to accurately reflect that the Defendant does not have the financial ability to pay the delinquent fees.

In fact, Defendant/Father does NOT have sufficient income from which to satisfy his financial obligations.

Dated: July 18, 2023

ENDNOTES

• [i] com.
• [ii] Language humanities.org. In other words, this phrase is used to show that where potential does not exist, none can be realized.

[iii] 454 Mass. 837.

[iv] To prove civil contempt a plaintiff must show two elements: there must be (l) clear disobedience of (2) a clear and unequivocal command. See Birchall, petitioner, 454 Mass. 837, 852 (2009). The contempt must be proved by clear and convincing evidence, and the court is to consider “the totality of the circumstances.” Wooters v. Wooters, 74 Mass. App. ct 839, 844 (2009).

[v] The case law demonstrates that not every violation of a clear order will constitute contempt, and thus that the requirement to prove “clear disobedience” has teeth. For example, a person cannot be found in contempt of an order to pay money that he or she is unable to pay. See Birchall, petitioner, 454 Mass. at 852. And in Wooters, 74 Mass. App. Ct. at 844, this court ruled that a supporting spouse had failed to pay the alimony required by a court order, but nevertheless ruled that there was no contempt:

[vi] Opposing counsel’s fees awarded are in excess of twenty-one thousand four hundred ten dollars ($21,410.00).

[vii] The decision of the court makes it clear that incarceration as a result of a contempt finding is just as harmful as incarceration in a criminal case. Before jail can be imposed for non-payment of child support, the court must either appoint an attorney to represent the Defendant or provide “substitute procedural safeguards.” Substitute procedural safeguards include (I) notice to the Defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the Defendant has the ability to apply. Massachusetts practice includes the last three of these safeguards. What is lacking is the notice to the Defendant that his ability to pay is a critical issue.