JOHN D. LUPOLI v. KIMMY R. JACKSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following their divorce in 2005, the parties became involved in a number of disputes, the most prominent of which, and the one underlying this appeal by the mother, Kimmy R. Jackson, concerns child support. The mother, who represents herself, appeals from two related Probate and Family Court judgments that (1) dismissed the mother's complaint for a downward modification of her child support obligations; and (2) held the mother in contempt for failure to pay child support.

The parties have one daughter, born in 1990, whose joint legal and physical custody they shared until a modification judgment entered, after trial, on April 26, 2006. The modification judgment transferred the daughter's physical custody to the father and ordered the mother to pay child support in the amount of $185.12 per week (through the Department of Revenue [DOR] ). That judgment also found the mother to be retroactively in arrears on her support obligations in the amount of $8,515.52. The mother did not appeal from that judgment.

The mother filed a complaint for modification on February 14, 2007, requesting a reduction in the child support payment because of a substantial decrease in her income; the father filed a complaint for contempt on March 27, 2007. On April 13, 2007, the judge issued a temporary order reducing the mother's weekly payment to $100 until a trial on the merits could be held. Pretrial conferences were held on August 21 and October 16, 2007. The consolidated trial was held on October 23, 2007.

In this appeal, the mother principally complains that she was denied due process in the proceedings (because the judge failed to provide her with reasonable guidance appropriate to her pro se status), that the judge abused his discretion in dismissing her complaint for modification, and that she should not have been found in contempt for failure to pay child support.

Discussion. 1. The complaint for modification. In challenging the judge's dismissal of her complaint, the mother asks that we vacate the judge's findings and remand the case to the Probate and Family Court “to ascertain the true child support obligation.” The judge concluded that the mother failed to establish a change in circumstances. The judge made a single finding in support of his dismissal of the mother's complaint:

“Mother failed to testify and did not call any witnesses other than Father, and Father did not call mother as a witness. Based upon her failure to testify and provide the Court with critical financial information concerning her income and the needs of the child, without cross-examination by Father's counsel, the Court lacks any rational basis for determining whether her weekly child support payment should be reduced, remain the same, or even be increased.” [Note 1]

The mother's financial statement was available to the judge. During the trial, however, no other testimonial or documentary evidence with respect to the mother's circumstances became part of the trial record. There appear on the record two reasons for this failure.

First, after opening the trial, and disposing of a preliminary matter, the judge stated that the mother's complaint for modification would be taken up first, and asked the mother to call her first witness. She called the father. Soon after beginning questioning of the father on an income tax return, the father's counsel objected that he had not seen any exhibits. The judge asked the mother whether she had complied with a pretrial order that all exhibits be reviewed by both parties and premarked. She stated she had not, and the judge ruled that her exhibits could not be introduced.

Second, what followed was a lengthy questioning by the mother of the father about his income and expenses, taking over fifty pages of some ninety-three pages of the transcript. At one time the judge questioned the relevance of the mother's questions, commenting that “[t]his is an issue of child support.” Soon after, the mother stated that she had “attempted to explain to the Court on numerous occasions that my income is not what we would call stable, or reliable.” The judge responded, “[I]s there a question to this witness?” At another time, the judge stated that he repeatedly had told the mother that she would be held to the same standard as an attorney with knowledge of the rules of evidence.

While the judge's comments show that he recognized the mother was pursuing an irrelevant line of inquiry, he did nothing to terminate it; nor did he focus the hearing by explaining, in neutral terms, that the issue before him in a modification proceeding is whether there has been a change in circumstances. It appears that the judge may have been under the impression that he lacked discretion to do so or that such interaction would have compromised his neutrality. However, the Supreme Judicial Court has “recognized that self-represented litigants must be provided ‘the opportunity to meaningfully present their cases.’ Judicial Guidelines for Civil Hearings Involving Self–Represented Litigants § 3.2 (2006).” Carter v. Lynn Hous. Authy., 450 Mass. 626 , 637 n. 17 (2008). Section 2.1 of the Judicial Guidelines states: “Judges should make a reasonable effort to ensure that self-represented litigants understand the trial process.” Section 3.2 provides: “Judges shall adhere to the applicable rules of evidence, but may use their discretion, when permissible, to provide self-represented litigants the opportunity to meaningfully present their cases.”

We recognize that presiding over cases involving self-represented litigants can be difficult and challenging for judges, particularly where one party is represented by counsel and the other is not. The judge may, however, exercise his broad discretion as “the directing and controlling mind at the trial,” Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236 , 241 n. 4 (1990), quoting from Commonwealth v. Wilson, 381 Mass. 90 , 118 (1980), to provide a self-represented party with a meaningful opportunity to present her case by guiding the proceedings in a neutral but engaged way. Because the judge here may not have understood the parameters of his discretion, we think the modification matter should be reheard.

2. The complaint for contempt. As a necessary consequence of our ruling as to the modification judgment, and for the reasons discussed below, we also vacate the contempt judgment and remand that matter for further proceedings. The court “has power to modify a support order in the context of either a complaint for contempt or a complaint for modification. This power may be exercised not only as to future obligations, but also as to arrearages.” Kennedy v. Kennedy, 17 Mass. App. Ct. 308 , 312 (1983) (citations omitted). “In the usual case, in order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience. In addition, the defendant must be found to have the ability to pay at the time the contempt judgment enters.” Larson v. Larson, 28 Mass. App. Ct. 338 , 340 (1990) (citations omitted).

At trial on the contempt complaint, the father testified to various amounts of child support owed; the judge and father's counsel also referred to various amounts, as well as to a chalk. Before the trial concluded, the mother filed a financial statement and a child support guidelines worksheet, and the judge asked for proposed findings, conclusions, and judgment to be submitted by October 30, 2007.

The judge made five findings that involve amounts of child support paid through DOR, the amounts paid by the mother, and a calculation of the amount due from the previous modification judgment of April 26, 2006, at the then ordered rate of $185.12 per week. The evidentiary basis for these findings is not apparent in the record, and the judge did not refer to the above submitted materials or the child support guidelines in his decision.

It is obvious that the judge's temporary order reducing the mother's payment was in response to her complaint, in which, as the judge acknowledged, the mother alleged that “her income has been significantly reduced.” It is a reasonable inference that such a reduction in income not only would affect her ability to pay the previous support order, but also would affect her ability to pay the arrearage. Contrast Schuler v. Schuler, 382 Mass. 366 , 375 (1981) (“It makes no sense to find that a support provider has the ability to pay amounts owed when he has fallen into arrearage, yet not find that the same economic circumstances constitute ability to make current or prospective monthly payments as they become due”). We think the reasoning in Schuler is applicable in the circumstances of this case where, if the mother were found unable to pay the previously ordered level of child support, her ability to pay the arrearage based on that level likely would be affected. [Note 2]

A judgment of contempt and an order to pay a sum of money must be based on a finding that the contemnor has the capability to pay. Cf. Sodones v. Sodones, 366 Mass. 121 , 130 (1974). The ability to pay must be determined both for arrearages and continuing support payments. Compare Newman v. Newman, 12 Mass. App. Ct. 874 , 875 (1981), and cases cited. There must be a new hearing.

3. The judge's rationale. The judge wrote at some length in his rationale about two collateral matters that appear to have affected his view of the mother's credibility, even though he made no findings as to those matters. Because the views he expressed may be perceived as suggesting that he was predisposed to summary disposition of the complaints, we think it best that the case be heard by a different judge on remand.

Conclusion. We vacate the two judgments of November 13, 2007, and we remand the matter to the Probate and Family Court for further proceedings consistent with this memorandum and order before a different judge.

So ordered.