JOSE H. CORREIA vs. SANDRA CORREIA.

KANTROWITZ, J. Jose Correia filed a complaint for civil contempt in the Bristol County Probate and Family Court (probate court) which was converted, sua sponte, to a criminal contempt. [Note 1] The defendant, Sandra Correia, appeals the trial judge's order denying her motion to recuse and the judgment of conviction entered against her for criminal contempt. [Note 2] Specifically, she argues (1) that the judge should have recused himself on grounds of bias [Note 3]; and (2) insufficiency of the evidence of contempt. Although we are concerned with certain aspects of the case, we nonetheless affirm.

Facts. Sandra filed a complaint seeking a divorce on grounds of irretrievable breakdown in September of 2001. On October 22, 2001, the judge entered a temporary order granting her sole legal and physical custody of the couple's two young children. Following allegations by Sandra that Jose sexually assaulted the children, the judge on August 1, 2002, appointed Dr. Sarah McLeod of the Children and the Law Program at Massachusetts General Hospital as guardian ad litem to conduct a forensic evaluation on the questions of visitation and whether abuse had occurred. Dr. McLeod filed her initial report on April 3, 2003, and supplemental reports on August 22, 2003, and November 5, 2003.

Dr. McLeod wished to conduct interviews and observation of Jose and the children jointly, which Sandra opposed. More than one year after Dr. McLeod had been appointed guardian ad litem, the sexual abuse evaluations still had not been completed and no recommendations regarding visitation had been made. Dr. McLeod's November 5, 2003, report indicated that the reason for the delay was that Sandra refused to permit the children to complete the evaluation sessions.

On December 9, 2003, Sandra filed a motion for instructions, seeking an order that the guardian ad litem not follow through

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with her proposed evaluation. [Note 4] Following a hearing on that motion, the judge issued an order on January 5, 2004, denying Sandra's motion and ordering the parties to comply forthwith with the evaluation proposed by Dr. McLeod. The guardian ad litem was instructed to complete the requested evaluation and file a report with the court within sixty days. The January 5, 2004, order also stated that while the judge found Sandra's actions up to that point "troublesome," he could not definitively say they were taken in bad faith.

Following the court's January 5, 2004, order, Dr. McLeod unsuccessfully attempted to schedule an interview with the children. She called Sandra three times during the week of January 26, 2004, and once each on February 15 and 20 and March 27, 2004, leaving messages indicating when she would be in the office. Sandra left messages for Dr. McLeod on three occasions, in the evenings and early morning, when the doctor was not in her office.

In February and March of 2004, Dr. McLeod wrote to Bruce Lider, Sandra's attorney at the time, seeking assistance in contacting Sandra. Despite these efforts, Dr. McLeod was unable to arrange an interview with the children at that time. In March of 2004, Attorney Lider filed a motion for leave to withdraw, citing a total inability to communicate with or contact his client. The attorney's mail to Sandra's last known address was returned and none of her known telephone numbers worked. It was later discovered that Sandra, along with her children, had moved to Iowa in January, 2004, to join her fiancé. Dr. McLeod finally met with the children in Boston on three occasions in May, 2004.

On November 16, 2004, Jose filed a complaint for civil contempt, alleging that Sandra had violated the January 5, 2004, order "on divers and numerous dates by failing to comply with the evaluation model proposed by Dr. McLeod and the Children

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and the Law Program." Sandra filed her answer on December 20, 2004, as well as a motion for summary judgment.

The parties appeared in court on December 31, 2004, for a hearing on Jose's complaint for civil contempt and Sandra's motion for summary judgment. The judge expressed concern at the amount of time it had taken to complete the guardian ad litem report. After some discussion, the judge indicated that there was "clearly no doubt" that Sandra was in contempt, and, sua sponte, converted the contempt complaint from civil to criminal. Trial on the criminal contempt was to be scheduled to take place at a later date. However, the judge at that point proceeded to question Sandra, without putting her under oath, about her efforts to schedule visits with Dr. McLeod. Counsel did not object. The judge then questioned Sandra's fiancé, Chris Kwiecien, regarding his relationship with Sandra and their recent activities. Once again, no objection was lodged.

On January 18, 2005, a decision was rendered, denying Sandra's motion for summary judgment and scheduling a hearing on both the criminal contempt charge and the divorce complaint for May 2, 3, and 4, 2005.

On May 2, 2005, the morning of the first scheduled day of trial, Sandra filed a motion seeking the judge's recusal from hearing the criminal contempt charge. [Note 5] Following a hearing that morning, the motion was denied. The trial proceeded for three days, upon the conclusion of which Sandra was found guilty of criminal contempt for failing to comply with the court's order of January 5, 2004, in that she failed to permit a joint interview of Jose and the children as part of the guardian ad litem's evaluation. [Note 6] Sandra was sentenced to 100 days in jail, suspended until May, 2006.

Discussion. Once the matter was converted to a criminal one, Sandra was entitled to certain protections afforded all charged with a crime. Such protections were spelled out in the seminal case of Furtado v. Furtado, 380 Mass. 137 , 142-143 (1980):

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"Due process requires that the alleged contemnor be advised of the charges against him and that he have a reasonable opportunity to meet them by way of defense or explanation. The defendant is entitled to counsel if a sentence of imprisonment may be imposed and may waive counsel only as provided by constitutional principles and applicable court rules. The defendant may not be called as a witness against himself. The defendant is presumed to be innocent, and proof must be beyond a reasonable doubt. The defendant is entitled to a trial by jury to the extent provided by the Constitution of the United States or of the Commonwealth and by any applicable rule of court. Ordinarily, the criminal contempt proceeding should be held in the court whose order is alleged to have been contumaciously violated." (Citations and footnotes omitted.) [Note 7]

The judge's questioning of Sandra, even if not under oath, was improper. [Note 8] We note, however, that her attorney lodged no objection to the questioning and even constitutional protections may be waived. See Commonwealth v. Amirault, 424 Mass. 618 , 649-650

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(1997). Also, we have not been directed to any prejudice that she might have suffered. [Note 9]

Notice. Sandra complains on appeal that she did not receive adequate notice of the charge against her. As the issue was not raised below, [Note 10] we need not consider it here. See Palmer v. Murphy, 42 Mass. App. Ct. 334 , 338 (1997) ( "Objections, issues, or claims -- however meritorious -- that have not been raised at the trial level are deemed generally to have been waived on appeal"). Even if we were to consider it however, she would fare no better.

In order to provide sufficient notice, a charge of criminal contempt must delineate allegations that there was a "clear, outstanding order of the court, that the defendant knew of that order, and that the defendant clearly and intentionally disobeyed that order in circumstances in which [s]he was able to obey it." Furtado v. Furtado, 380 Mass. at 145. "Technical accuracy of pleading has not traditionally been required in contempt cases, but the alleged contemnor should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation." Fay v. Commonwealth, 379 Mass. 498 , 502 (1980), quoting from Katz v. Commonwealth, 379 Mass. 305 , 312-313 (1979).

Here, Jose's complaint for contempt alleged that Sandra had violated the January 5, 2004, court order "on divers and numerous dates by failing to comply with the evaluation model proposed by Dr. McLeod and the Children and the Law Program." Sandra was present at the December 31, 2004, hearing in which the matter was converted from a civil to a criminal contempt. Following that hearing, the judge issued an order on January 18, 2005, clearly indicating the change from civil to criminal

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contempt. Sandra had roughly three and one-half months from that point until the commencement of the trial on May 2, 2005, to prepare her defense. In these circumstances, Sandra had sufficient notice of the charge against her, see Furtado v. Furtado, 380 Mass. at 145, and adequate time to prepare a defense.

Applicability of Mass.R.Crim.P. 44(c). Sandra argues that "[j]udicial deference to Mass.R.Crim.P. 44(c)[, 378 Mass. 920 (1979),] in the circumstances of this case required allowance of the motion for recusal." Rule 44(c) states: "The contempt charges shall be heard by a judge other than the trial judge whenever the nature of the alleged contemptuous conduct is such as is likely to affect the trial judge's impartiality."

We first observe that Sandra's conduct was not personal to the judge and therefore was not likely to affect the judge's impartiality. See Berlandi v. Commonwealth, 314 Mass. 424 , 453 (1943). [Note 11] Moreover, the parties direct us to no authority addressing the applicability of rule 44(c) to criminal matters arising in the probate court. Furtado v. Furtado, 380 Mass. at 152, mentions rule 44(c) only in passing. In Edgar v. Edgar, 403 Mass. 616 , 618, 620 (1988), after discussing the criminal contempt defendant's lack of right to a jury trial in probate court under Mass.R.Crim.P. 44(a), 378 Mass. 920 (1979), the court concluded, "we are satisfied that nonapplication of rule 44 to parties in Probate Court proceedings is reasonable." We will not belabor the point, however, as the issue presented here is whether the judge should have recused himself, a matter not raised in Edgar. We thus turn our attention to that question.

Recusal. Sandra argues that the comments and conduct of the

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judge during the December 31, 2004, hearing indicated not only a bias, but a prejudgment of the matter. Generally, recusal is a matter left to the discretion of the judge. Commonwealth v. Gogan, 389 Mass. 255 , 259 (1983). See Fogarty v. Commonwealth, 406 Mass. 103 , 110-111 (1989), S.C., 419 Mass. 456 (1995). When faced with a motion to recuse, a judge must "consult first his own emotions and conscience" and, if he "pass[es] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] a proceeding in which his impartiality might reasonably be questioned." Commonwealth v. Gogan, 389 Mass. at 259, quoting from Lena v. Commonwealth, 369 Mass. 571 , 575 (1976) (quotation marks omitted).

The record reflects that the judge engaged in such an inquiry. He heard the parties and then retired to his chambers to reflect upon the motion. Upon his return to the bench, he denied the motion, having previously asserted that he harbored no bias toward either party, and had formed no opinion on the charge of contempt. The judge was inwardly satisfied that he could be an impartial trier of fact and, therefore, met the first prong of the two-part test.

The judge was clearly frustrated by the extreme delay in completing the evaluations, and words he uttered from the bench reflected those feelings. When considering whether to convert the contempt to a criminal action, the judge did say, regarding Sandra's relocating with the children to Iowa, "there's clearly no doubt in January until she returned, she was in contempt." A reading of the record as a whole, however, belies Sandra's claim that the judge had predetermined her guilt. The judge repeatedly stated that he would hold an evidentiary hearing on the criminal contempt at a later date. In fact, his comment that Sandra was "clearly in contempt" occurred amid discussion of what he would have to find to hold her in contempt, what the evidence at trial might show, and what arguments for and against contempt existed. When defense counsel disagreed with the assessment that the evidence would show her in contempt, the judge responded he would "give [her] an opportunity" to dispute it at trial. [Note 12] Considered

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in context, the isolated comments cited by Sandra are insufficient to require the judge's disqualification. [Note 13]

Further, and most troubling, is the fact that the recusal motion was filed on the morning of trial, four months after the December 31, 2004, hearing upon which it was based. During that interval, forty-six entries appear on the case docket, including at least ten filings by Sandra. She also unsuccessfully pursued two motions to continue the contempt trial. [Note 14]

It is well established that "one seeking the disqualification of the judge must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification." Demoulas v. Demoulas Super Mkts., Inc. 428 Mass. 543 , 548-549 (1998), quoting from United States v. Kelly, 519 F. Supp. 1029, 1050 (D. Mass. 1981). Given the eleventh hour filing and the fact that recusal would have resulted in further delay of an already drawn out proceeding, the judge was within his discretion, after applying the two-step test, to deny the motion to recuse. Also of significance was Sandra's satisfaction with the judge deciding the other aspects of the divorce action. [Note 15]

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Sufficiency of evidence of contempt. Sandra argues that the evidence did not warrant a finding of guilt on the charge of criminal contempt and that the judge erred in denying her motion for a required finding of not guilty. Since the proceeding was criminal in nature, proof beyond a reasonable doubt was required to show that (1) there was a clear, and unequivocal order; (2) Sandra knew of the order; and (3) she intentionally disobeyed the order. See Shaw v. Commonwealth, 354 Mass. 583 , 586-587 (1968); Furtado v. Furtado, 380 Mass. at 150.

The judge's order of January 5, 2004, was clear, unequivocal, and in effect throughout the period considered by the judge. Similarly, there is evidence that Sandra knew of the order. The order was issued upon Sandra's motion for instructions. She was not only present for that hearing, but was provided with a copy of the written order by her attorney and the court.

The issue thus boils down to whether Sandra wilfully disobeyed the order. At trial, Dr. McLeod testified that she called Sandra three times during the week of January 26, 2004, once each on February 15 and 20 and March 27, 2004. Dr. McLeod further testified that "[m]y message machine states clearly that I'm in the office on Tuesdays and Wednesdays, and I left her a message saying specifically that it would be easiest for us to arrange the times for the interviews if she would try calling me on a day when I was present." Sandra's telephone records, which were introduced at trial, indicate that notwithstanding these instructions, she called Dr. McLeod on Thursday, January 22, 2004, at 7:32 P.M., Friday, February 13, 2004, at 6:33 P.M., and Tuesday, February 24, 2004, at 7:16 A.M.

Kwiecien testified that he, Sandra, and her children resided in Iowa from January, 2004, until March or April of 2004, and that they made several trips back to Massachusetts during that interval. Although each of these trips was around four or five days in length, Sandra did not schedule an evaluation with Dr. McLeod on any of those occasions. In fact, Dr. McLeod was unable to interview the children until May of 2004, nearly two years after she had been appointed guardian ad litem.

Given the evidence before him, the trial judge was justified

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in finding that Sandra wilfully disobeyed the court's unequivocal January 5, 2004, order; one which she had the ability to obey. [Note 16]

Judgment affirmed.