MA high court avoids RTC question for civil contempt, but issues strong ruling/concurrence
06/26/2020, Litigation, Civil Contempt in Family Court
In DOR v. Grullon, the Supreme Judicial Court of Massachusetts considered whether there is a right to counsel for indigent defendants in child support contempt proceedings. Ultimately, the Court avoided the right to counsel claim while holding that both the Department and trial court judge had failed their obligations under Turner v. Rogers, although there is an excellent concurrence from Chief Judge Gants that lays out the roadmap for a future right to counsel case. The decision was covered by the Salem News, and the Boston Bar Association released a statement.
In Grullon, the custodial mother filed for contempt pro se but the Department served the complaint/summons and became involved in the case. The defendant noncustodial father denied he had the ability to pay (the child support order was for $123/week but his weekly income was only $136) and counterclaimed to modify the order. He also pointed out he was enrolled in a truck driver program paid for by the Department of Veterans Affairs that he was scheduled to finish in a few weeks. The Department sought to incarcerate him, and the judge was not inclined to do so until the defendant made a comment the judge didn’t like and the judge determined the father had a “poor attitude”, at which point it ordered him incarcerated for 10 days subject to a $500 purge amount and increased his weekly payments to $153. Eventually, the defendant (with help from counsel) filed a separate complaint for modification, which the judge granted.
The Court found that the requirements of Turner had been violated in a number of ways. First, the notices the father received didn’t inform him that ability to pay would be a critical issue. Second, neither the Department nor the judge referred to the financial information form provided by the defendant to determine if he was in fact indigent (on those forms, he indicated his weekly income after expenses was only $86 yet his weekly child support order was $123). Third, the defendant wasn’t given a chance by the judge to “respond to statements and questions about his financial status” as per Turner; instead, the judge only asked why the defendant hadn’t filed for modification before (and apparently didn’t realize he had counterclaimed for it in the instant case). And fourth, the judge never expressly found that the defendant had the ability to pay (in fact, the judge never checked the “defendant has the ability to pay” box on the form), instead relying on his “poor attitude”, which “blurred the line between civil contempt, which is remedial in nature, and criminal contempt, which is punitive in nature.” The Court also commented in a footnote that the $500 purge amount was not at all connected to an ability to pay.
In other findings, the Court found that the Department failed in its statutory obligation to help the defendant file for modification (the IV-D statute requires the Department to provide services to families, including to modify child support) since the defendant had testified he had reached out to the Department for help filing a modification in the past but got no response. The Court also held that the probate courts have the power to modify child support within the context of a civil contempt proceeding, and that it is not necessary for a separate complaint for modification to be filed.
Judge Gant’s concurrence lays out six several points, several of which suggest he would have found a right to counsel had the Court reached the issue:
- Turner itself stated that there was an “important caveat” to its holding that counsel was not required, which is that the procedural safeguards it outlined were actually available. Judge Gants noted that if the MA high court gets additional notice that the Turner safeguards are not being followed (i.e., that the instant case is not an outlier), “A right to counsel would be necessary to ensure that these procedural safeguards are faithfully applied.”
- The standard of proof to find someone guilty of civil contempt, which is “clear and convincing”, is a “demanding one.”
- Judge Gants took exception to Turner’s conclusion that ability to pay is essentially the same determination as the “routine” one made that a person is indigent for purposes of appointed counsel. Judge Gants observed that even if a person is appointed counsel, he/she might still be determined to be able to pay some amount because the “ability to pay” determination can include imputed income, and therefore the “ability to pay” determination is more complex. This point supports a categorical finding for a right to counsel.
- The Massachusetts Constitution has often been construed to provide greater rights to counsel than SCOTUS, and two examples of this are probation revocation and termination of parental rights. This point also supports a categorical finding for a right to counsel.
- The Court in 1990 recognized a right to counsel for those being incarcerated for inability to pay a fee or fine (a case called Commonwealth v. Gomes) and “If a defendant is entitled to counsel when he or she faces the risk of incarceration for failing to pay a fine, it is fair to ask why the same right would not apply where a defendant faces the risk of incarceration for failing to pay a court-ordered child support payment.” This is the third point that supports a categorical finding for a right to counsel.
- The “asymmetry of representation” created if a noncustodial parent is given counsel but the custodial parent is pro se isn’t clear cut because even where a custodial parent lacks counsel, “incarceration for civil contempt may not always be the most effective way to accomplish [the goal of providing child support], as illustrated by this case.” Here, the defendant was weeks away from finishing an educational program that could have increased his income. Also, counsel may help defendants increase their income in other ways, like helping the defendant apply for public benefits.
The NCCRC assisted with the merits and amicus briefing in the case.