ROSEMARIE IMPRESCIA vs. FRANCIS J. IMPRESCIA.

LYNCH, J. The defendant appeals from the default judgment of contempt of a divorce decree, entered in the Probate and Family Court Department, Suffolk County, on his former wife's complaint that he had failed to make certain payments of alimony and child support. Entry of the judgment was made by a judge in the Probate Court after the defendant's repeated failure to comply with discovery orders. The Appeals Court reluctantly remanded the case to the Probate Court for exploration of the possible imposition of other sanctions. It reasoned that the traditional policy against default judgments in domestic relations proceedings and the absence of default as a sanction for failure to comply with discovery in Mass. R. Dom. Rel. P.

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37 (b) (2) (C) (1982) (domestic rule 37) restricts the Probate Court's power to default a party even in so flagrant a case of discovery misbehavior as this. Imprescia v. Imprescia, 16 Mass. App. Ct. 378 (1983). We allowed the plaintiff's application for further appellate review. We agree with the Appeals Court that the availability of the sanction of default is significantly more restricted under the domestic rules and that the judge should have explored the possibility of applying the sanctions specifically provided for in domestic rule 37.

The parties were divorced on October 17, 1973. The decree nisi of divorce, entered on that date, incorporated an agreement of the same date, which provided for alimony, child support, and certain other payments to be made by the defendant. The defendant alleges that on January 26, 1977, the parties entered into another agreement which significantly altered his financial obligations to the plaintiff. The plaintiff contends that this agreement was never entered as an order of the court and therefore is not a valid modification of the 1973 agreement or, alternatively, that it was procured by fraud on the part of the defendant.

On March 13, 1979, the plaintiff filed a complaint for contempt, alleging that the defendant had failed to comply with the 1973 decree and was approximately $36,000 in arrears. The defendant pleaded compliance with the January 26, 1977, agreement as a defense to the complaint. In July, 1979, he was served with interrogatories and a notice to produce documents. Although the defendant produced some of the information requested, some of the documents, which primarily concerned his financial condition during the years 1976 through 1980, were never produced. Between September, 1979, and December, 1981, he was ordered by the judge on seven separate occasions to complete discovery. He was warned that the sanctions of domestic rule 37 (b) (2) (C) would be imposed if he did not comply. He was ordered to pay $300 in attorney's fees to the plaintiff, which he did. On November 9, 1981, he was ordered to answer all unanswered deposition questions [Note 1] and to

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provide all outstanding documents "or a judgment shall enter for plaintiff on the contempt without further action by this Court." On December 17, 1981, the judge ordered the defendant committed for sixty days until he should purge himself of his contempt by paying the plaintiff the amount of his arrearage for support, alimony, and other bills which the judge determined to be $53,451.70.

A word of explanation is needed about the judgment. The document itself is a form entitled "Judgment of Contempt." It states, in pertinent part: "After hearing, it is adjudged that defendant is guilty of contempt of this court for having willfully failed and refused to obey its order of October 17, 1981, in that defendant neglected and refused to pay support, alimony and other bills the arrearage of which is fixed at $53,451.70." (Italics indicate those portions which were filled in by the judge.) [Note 2] It is clear from the plain language of this order and from the judge's order of November 9, 1981, that if the defendant failed to provide discovery within twenty days "a judgment shall enter for plaintiff on the contempt without further action by this Court," that this judgment is a judgment on the initial complaint for contempt for failure to comply with the divorce decree. Since the judgment establishes without a hearing that the defendant owes the plaintiff $53,451.70 in arrears, it is in effect a default judgment.

The Appeals Court held that the sanction of default is "significantly more restricted under the domestic rules" than under the rules of civil procedure. Massachusetts R. Civ. P. 37 (b) (2) (C), 365 Mass. 797 (1974), provides that a court may sanction a failure to obey an order to provide discovery with an order "striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." The language of domestic rule 37 (b) (2) (C) tracks the civil rule exactly, except

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that it omits the last clause. This omission appears to reflect the traditional policy against default judgments in domestic relations cases. See, e.g., the comment explaining that a counterpart to Mass. R. Civ. P. 55, 365 Mass. 822 (1974), was omitted from the domestic rules because such a rule would have been "inappropriate to Domestic Relations cases." Reporters' Notes to Mass. R. Dom. Rel. P. 55, Mass. Ann. Laws, Rules of Domestic Relations Procedure at 179 (1982). See also Teuscher v. Teuscher, 9 Mass. App. Ct. 914 (1980), and J.V. Harvey & E.M. Moriarty, Massachusetts Domestic Relations Section 23.4, at 134 (1984) ("A party cannot be defaulted for failure to answer interrogatories . . .").

It is true that the implications of default in an ordinary domestic relations case (an action for divorce, or child custody, for example) are very different from those in an ordinary civil case. Even in an uncontested divorce action, for instance, a hearing will be held before the divorce is granted. There is a societal interest in the disposition of such matters, particularly concerning issues such as child custody and support, which would not be satisfied by a default judgment. In an action for contempt of a support order, however, this societal interest is not implicated. The dispute between the husband and wife in this case is analogous to an action in contract where a specific amount of damages is sought. A judgment by default in this case, therefore, would not necessarily violate the traditional policy against defaults in domestic relations proceedings.

In the circumstances of this case, however, we hold that the judge should not have ordered the defendant defaulted because other sanctions were available to her under the provisions of domestic rule 37(b)(2). [Note 3]

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For example, domestic rule 37 (b) (2) (A) allows the judge to enter "[a]n order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order." Since the plaintiff was seeking information about the defendant's financial situation and dealings during the years he is alleged to have been in contempt of his support obligations, the judge could have ordered taken as established pursuant to domestic rule 37(b)(2)(A), for example, that the defendant was financially able to pay the arrearage or that the amount the plaintiff claimed to be in arrears was the correct amount.

Domestic rule 37 (b) (2) (B) allows the judge to enter "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence." The defendant claims that he is not in arrears because he and the plaintiff privately agreed to "modify" the original alimony and support order in January, 1977. [Note 4] Some of the information sought by the plaintiff through discovery relates to the defendant's financial condition in January, 1977, and is directly relevant to her claim that her consent to the "modification" and forgiveness of arrears was fraudulently induced. To the extent that the defendant refused to provide information relevant to this issue, the judge could certainly have entered an order precluding him

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from asserting the "modification" as a defense, or prohibiting him from introducing any evidence respecting this defense. See In re Fine Paper Antitrust Litigation, 685 F.2d 810, 823 (3d Cir. 1982), cert. denied sub nom. Alaska v. Boise Cascade, 459 U.S. 1156 (1983) (judge may exclude evidence when it is directly related to a party's refusal to comply with discovery). Similarly, domestic rule 37(b)(2)(C) permits the judge to enter "[a]n order striking out pleadings or parts thereof." The fact that striking out the defendant's only defense would have the same practical effect as any entry of default, International Mining Co. v. Allen & Co., 567 F. Supp. 777, 790 (S.D.N.Y. 1983), is not a bar in this case, given our discussion above on the availability of default in domestic relations cases, generally, and, in this case, specifically.

Finally the judge had the option of treating the defendant's failure to comply as a contempt of court. Domestic rule 37 (b) (2) (D). As a consequence of the defendant's being found in contempt, the judge can order him imprisoned or fined to compel his obedience to her discovery orders. G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 41 n.13 (1st Cir. 1980). Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946).

There are, therefore, two possible contempts in this case; contempt pursuant to domestic rule 37 (b) (2) (D), and contempt of the divorce decree. The order of December 17, 1981, was a judgment on the merits of the plaintiff's complaint for contempt of the divorce decree and thus merged the distinction between the two. This sanction should not have been applied, at least while an alternative was available to the judge within the provisions of domestic rule 37 (b) (2) for dealing with contempt of the discovery order.

Because it is our view that the judge could find the sanction she wanted within the four corners of domestic rule 37 (b) (2), the default judgment is vacated and the case is remanded to the Probate Court for further proceedings consistent with this opinion.

So ordered.