Contempt And Modifications

When the Court enters judgment on a matter, that judgment is an order that must be followed.  Failure to do so may constitute a contempt.   See M.G.L. c. 215, section 34.   A plaintiff who files a contempt complaint must prove by clear and convincing evidence of a “clear and unequivocal command” that was disobeyed by the defendant.  There is a presumption that a defendant who is found in contempt of a judgment or order shall be held to pay the Plaintiff’s reasonable attorney’s fees and expenses incurred in the prosecution of the contempt action, including attempted resolution prior to filing the complaint for contempt.   A Judgment of contempt shall include reasonable attorney’s fees and costs unless the Court enters specific findings as to why Defendant shall not pay attorney’s fees in a particular instance.

A defendant may defend against a contempt complaint by demonstrating that the judgment or order was vague, ambiguous, and otherwise did not constitute a clear and unequivocal command.  The Defendant may also prove that he or she is unable to comply with the order.  

A Defendant found in contempt may be ordered to pay the full amount of arrears alleged, make regular payments toward arrears, actively seek employment, participate in community service, participate in a job training program, or, may be sentenced to jail until the arrears are paid in full.

Contempt actions are serious and a party charged with contempt faces serious consequences.   Attorney McKenna will advise the client of all possible defenses, and will work toward swift resolution, to minimize exposure, and to prepare for evidentiary hearing if the parties are unable to resolve their differences.  Attorney McKenna also assists clients who require Contempt actions to enforce their judgments, and will vigorously seek enforcement, inclusive of attorneys’ fees and costs.


Modification Actions

All matters within a judgment that relate to the children, including child support, parenting schedule, legal and physical custody, college expenses, health insurance, uninsured medical and extra-curricular expenses, may be modified upon a showing of a material and change in circumstances, and that a modification is necessary in the best interests of the children.  M.G.L. c. 215, sec. 6C. and M.G.L. c. 208, sec. 28.  Relative to child support, modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the guidelines. See Morales v. Morales, 464 Mass. 507 (2013); Child Support Guidelines 2013.

A party seeking a modification of a judgment must file a complaint for modification, which is an independent legal action, placed on an eight month trial track, complete with discovery phase, pre-trial, and trial.  Attorney McKenna represents parties at all phases of modification actions, and advises clients as to whether an action for modification is necessary.

Child support arrears that pre-date a complaint for modification of said child support may not be modified.  Likewise, a party seeking an increase in child support may not seek retroactive increased child support prior to the date of filing a complaint for modification.  It is therefore important to understand when one is entitled to a modification of a judgment.  For example, if a payor of child support loses his or her job and is no longer able to pay the child support order, any arrears accrued before the payor files a complaint for modification must be paid, and will not be reduced.  If a party loses one’s employment, it is imperative to file a complaint for modification right away, to protect against the accrual of arrears, and potential contempt of court.

Alimony terms may also be modifiable if the alimony terms merge into the divorce judgment and do not survive as an independent contract.  Duration of alimony may also be modified, pursuant to the alimony statute, upon a material change in circumstances, such as a change in employment status, a material change in income, or, the parties’ exceeding the durational limits as imposed in the new Alimony Reform Act which went into effect on March 1, 2012.  If you believe you may qualify for a modification of the durational limits of your alimony term, Attorney McKenna may advise you accordingly.