5 Mass. App. Ct. 858

July 26, 1977

The wife appeals from a judgment entered in a Probate Court in a proceeding she initiated to have the husband adjudged in contempt for substantial arrearages in complying with a child support order. The judgment appealed from was based on evidence and representations of counsel from which the judge might properly find changed circumstances and had the effect of reducing the husband's support obligation from $120 a week to $75 a week ($25 of which was allocated to repayment of arrearages). The wife argues on appeal that the Probate Court has no power in a contempt proceeding to modify the underlying support obligation, at least prospectively (see Watts v. Watts, 314 Mass. 129 [1943]), and that the exercise of such a power would violate the notice requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. No such contentions, however, were raised by her (previous) counsel below. The transcripts of the June 30, 1975, and October 17, 1975, hearings make it clear that the judge contemplated modifying the underlying support obligation from the outset, and the only concern voiced on behalf of the wife when the judge proposed the amount reflected in the judgment appealed from was a doubt whether the husband would keep current with that lesser amount. The transcript justifies, in our opinion, the judge's characterization of his order as having been agreed upon in open court. The wife's objections to the procedure followed may not be raised for the first time in this court. Schlichte v. Schlichte, 2 Mass. App. Ct. 862 (1974). Judgment affirmed.


5 Mass. App. Ct. 858

July 27, 1977

1. There was no error in the admission in evidence of the cash receipts journal of Ford Motor Credit Company to prove the absence of a cash payment by the plaintiff's son. The point is controlled by Commonwealth v. Torrealba, 316 Mass. 24 , 30 (1944), and Cohen v. Boston Edison Co. 322 Mass. 239 , 241-242 (1948), or Donovan v. Boston & Me. R.R. 158 Mass. 450 , 454-456 (1893), rather than by Riley v. Boehm, 167 Mass. 183 , 187 (1896), and MacIntosh v. Cioppa, 245 Mass. 152 , 155 (1923), on which the plaintiff relies. See also 5 Wigmore, Evidence Section 1531 (Chadbourn rev. 1974); Leach & Liacos, Massachusetts Evidence 313-314 (4th ed. 1967).

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2. As evidence of the absence of an entry in the journal was admissible, the absence could also be proved by the testimony of one who had examined the journal. Commonwealth v. Best, 180 Mass. 492 , 495 (1902). Cohen v. Boston Edison Co., supra at 241. 3. The plaintiff cites no authority, and we know of none, for her contention that the trial judge was required to admit in evidence a ten-year-old hospital record indicating that the plaintiff's son had a learning disorder, offered apparently to explain inconsistencies and lapses in his testimony. Compare Commonwealth v. Ennis, 2 Mass. App. Ct. 864 (1974). 4. We have reviewed the evidence and conclude that the judge was not clearly erroneous in finding that the plaintiff's son did not make a cash payment to Ford Motor Credit Company. 5. The plaintiff's claims under G. L. c. 255B, Section 20A(B), as in effect prior to St. 1973, c. 629, Section 2, and G. L. c. 93A, Section 9(3) and (4), fail because there was evidence to warrant the trial judge's finding that the letter was mailed on August 16, 1974.

Judgment affirmed.