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Posted by attorney Mark Lee

Massachusetts General Laws Ch. 215 sec 34(a) provides that upon a finding of contempt of a court order to pay child support as ordered, the party bringing suit to enforce the Court’s order is entitled to an award of attorney’s fees, filing, and service costs. The underlying principal of law is to ensure the proper support of children and provide a sanction for those who do not take court ordered obligations seriously. Collection of unpaid child support commencing with the filing of a one-page Complaint that identifies the parties, their service addresses, the court order and the date setting the amount of child support and the amount of arrears owed at the date of filing. Once the complaint and filing fee are paid, the court assigns a return date for the hearing on the complaint. It is the Plaintiff’s obligation to have a copy of the complaint and contempt summons served upon the Defendant no less than 7 days prior to the return date for hearing. Upon receipt of the summons, counsel should mail a copy of the complaint and summons to the Defendant with an offer letter to dismiss the complaint if the defendant “purges" him or herself of contempt by paying the support owed and any fees accrued. A copy of this correspondence should then be incorporated by reference into counsel’s affidavit and Motion for Attorneys Fees. The Motion and Affidavit should be served upon receipt of the court summons and should calculate a reasonable estimate of court hearing time in the collection of fees. In the event the Defendant fails to purge him or herself of contempt prior to hearing, all parties, including the Plaintiff must appear at the contempt hearing. Plaintiffs will complain that insult is being added to injury by losing a days work to collect back support – but every action must have a plaintiff. A return of service on the Complaint may be filed along with the motion and accompanying affidavit for fees prior to hearing.

The jurisdiction of the Probate Court in contempt proceedings is set forth at Mass. Gen. Laws ch. 215 sec 34. The court shall determine arrears at hearing and may consider changes that have occurred in the circumstances of the parties, reduce the amount owed on that basis or modify an order retroactive pursuant to Mass. Gen. Laws ch. 215 sec 34(b). In the event a defendant fails to appear for hearing on the return date, the court may issue a capias for their apprehension and delivery to court or at the request of the Plaintiff it may enter a judgment fixing the amount of arrears owed plus any attorneys costs and fees. If the Defendant appears at hearing, his or her defenses principally are:

  1. An inability to pay as ordered due to unemployment, illness or other legitimate circumstances explaining their failure to comply with court orders; or,

  2. Payment prior to hearing.

The Plaintiff must prove at hearing:

  1. A prior judgment that is clear and unequivocal on its face as to what the Defendant is obligated to pay and when;

  2. Defendant’s knowledge of the judgment;

  3. The Defendant’s willful disobedience of the order.

Once these elements are proven by the Plaintiff, the burden shifts to the Defendant to prove his or her defenses and avoid being found in contempt.

If the Defendant can show an inability to pay, he or she cannot be sentenced to prison,Salvesen v. Salvesen371 Mass. 608.

In the absence of these defenses and a finding by the Court the Defendant is in contempt, the Court should set arrears, order their payment, award counsel fees, issue a suspended sentences where appropriate, and set a compliance date for the Defendant to show adherence to the court’s judgment of contempt. If at the compliance date the Defendant has not paid as ordered, counsel should seek implementation of the court’s sentence and additional fees. While there are no “contingency fee" cases permitted in probate and family practice in Massachusetts, the presumption of an award of attorney’s fees under Mass. Gen. Laws ch. 215 sec 34(a) makes it possible for a custodial parent to collect support without incurring costs charged to support and should be issued on every non-payment case. The statute should be affirmatively pled in all motions and in the event a judgment of contempt is entered and for non-payment of child support and award of fees is not given in accord with the statute, specific findings of fact must be made as to why an order was not appropriate.

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