Hashmi v. Omer

100 Mass.App.Ct. 1102

170 N.E.3d 726 (Table)

Saira HASHMI

v.Harun A. OMER.

20-P-1270

Appeals Court of Massachusetts.

Entered: July 16, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Harun A. Omer (father) appeals from a contempt judgment entered against him in the Probate and Family Court and the incorporated order granting the mother fourteen days of make-up parenting time. On appeal, the father challenges the judge's determination that the father failed to abide by a clear and unequivocal visitation order and argues that he was denied due process by the judge's acceptance of evidence after the hearing.² As we discern error only in the finding of contempt for one of the dates included in the judge's order -- May 4, 2020 -- we vacate so much of the judgment as includes that date and affirm the judgment in all other respects.

Background. We summarize the undisputed facts. The father and Saira Hashmi (mother) were married in 2011 and have one child, who was born in 2012. The mother filed a complaint for divorce in 2013, and a judgment of divorce nisi entered in June, 2015.³ Under the terms of the divorce judgment, the mother assumed sole legal and physical custody of the child subject to the father's parenting plan. Later, however, acting on the mother's complaint for modification and the father's counterclaim, a probate judge transferred custody of the child to the father.⁴ The resulting judgment granted the mother parenting time on alternating weekends, with the details of the schedule dependent on the child's school and camp schedule:⁵ when school was not in session, the mother's weekend visitation began Friday at 2:30 P.M. and ended Monday at 6 P.M. , with exchange at the Brockton police station (out-of-session schedule); when school was in session, the mother's weekend visitation began at the end of the school day, where the mother would pick up the child from school, and end with a "timely" return of the child to school on Monday (in-session schedule). The mother was also granted parenting time with the child on alternating Tuesday afternoons, subject to the same in-session and out-of-session scheduling differences.

In March, 2020, the father began homeschooling the child due to COVID-19 concerns. As we discuss in more detail, infra, the parties disagreed on the parameters of the mother's parenting time after the father began homeschooling the child. Within two weeks of withdrawing the child from school, the father filed a complaint in the Probate and Family Court for modification of the parenting time portion of the judgment in which he sought, inter alia, orders that the child's schedule be considered in-session at his home while being homeschooled, and that the mother's parenting time be suspended until after the COVID-19 crisis had been "reasonably mitigated." A judge dismissed the complaint in light of the mother's then-pending appeal of an earlier judgment.⁶

Ultimately, on April 13, 2020, the mother filed a complaint against the father in which she made three allegations of civil contempt. A telephonic hearing⁷ was held June 26, 2020, and the judge held a limited evidentiary hearing; the father testified and argued on his own behalf while the mother proceeded on her counsel's oral argument and documentary submissions.⁸ See, e.g., Kraft v. Police Commr. of Boston, 417 Mass. 235, 239, 241 (1994) (no error where judge did not take live testimony). In a judgment dated July 28, 2020, the judge found the father guilty of contempt for his failure to allow the mother's parenting time on March 17, March 31, March 20–23, April 3–6, May 4, May 12, and "other diverse dates," and the mother was granted fourteen days of make-up parenting time.⁹ This appeal followed.

Discussion. 1. Contempt. a. Standard of review. "We review the judge's ultimate finding of contempt for abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error." Commercial Wharf East Condominium Ass'n v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). "To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006), quoting Kraft, 417 Mass. at 239. "The contempt must be proved by clear and convincing evidence, and the court is to consider ‘the totality of the circumstances.’ " Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844 (2009). A finding of contempt may be avoided with proof of an "inability to comply with the relevant court order." O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 154 (2003).

b. Clarity of the order. We are satisfied that the parenting time order was clear and unequivocal as to the father's obligation to exchange the child with the mother on alternating weekends and Tuesday afternoons. That the order did not explicitly address the details of the child's unanticipated homeschooling, and so may have required some legal interpretation, does not change our view. See Stabile v. Stabile, 55 Mass. App. Ct. 724, 726 (2002), quoting Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002) ("An ambiguity does not arise merely because an order, otherwise clear, may require ‘some legal interpretation’ "). "[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Id. at 727, quoting Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995).

c. Father's clear disobedience. i. March 17 and 31, 2020. On the first day of the father's homeschooling the child, the mother and the father communicated by e-mail about the mother's parenting time. As part of that exchange, the mother presented three alternative schedules for the week, and stated that she was open to suggestions "that work[ed] for [everyone] and [did] not reduce and stop [her] parenting time."¹⁰ The father responded that the mother's alternatives did not work, and he canceled the March 17 visit.

A similar exchange took place for the March 31 visit; when the mother contacted the father in advance of the visit, the father responded asking that the mother "please ... not waste [her] time" because "in Massachusetts [she] should follow the stay-at-home advisory," and he canceled the visit.

The father concedes that he canceled these visits, and we discern no abuse of discretion in the judge's finding of contempt for these dates. While the father generally argues that he and the mother disagreed about whether school was "in-session" given that the child was being homeschooled, we disagree that the mother's proposal for alternative parenting time was license for the father to cancel the visits, or that COVID-19 rendered him unable to comply with the visitation order. We are sympathetic to the father's concerns related to COVID-19, and acknowledge the confusion felt by many during the early days of the COVID-19 pandemic, however we discern no abuse of discretion in the judge's rejection of the father's rationale. There were options at the father's disposal short of cancellation, and the father failed to "meet [the] burden of proving [an] inability to comply with the relevant court order." O'Connell, 59 Mass. App. Ct. at 154.

ii. March 20-23, 2020. On March 20, the father e-mailed the mother that the child was feeling ill and that due to "the covid-19 situation" the father would "like to give [the child] rest." The mother did not agree to cancel the visit, but the father did not bring the child to the exchange. Although at the hearing, the father contended that he canceled the visit because the child was experiencing a fever, the judge could have rejected that argument, particularly where the reasons the father provided in his answer to the complaint for cancelling the visit -- including both his concern that the mother "might ... claim[ ] quarantine" with the child and also the father's "observation" that the mother had previously prioritized "maximizing ... time with the child" over "the child's well-being ... at the expense of sleep" -- suggested that the father's explanation was a pretext. This is particularly so where the father produced no evidence to support his conclusion that he was required to quarantine the child or that the mother would have been incapable of addressing the child's needs.¹¹ See O'Connell, 59 Mass. App. Ct. at 154 (upholding contempt finding for parent's withholding of child's visit when child was sick).

iii. April 3-6, 2020. On April 2, the father explained to the mother via e-mail that he would not bring the child to Brockton due to the "circumstances ... explained in [his] motion" (presumably referring to his March 23 complaint for modification). He argues on appeal that the cancellation was justified by the mother's insistence that the child be brought to the Brockton police station by 3 P.M. (the time and place of exchange under the out-of-session schedule) when (a) the child was being homeschooled on that day, and so was "in-session," and (b) the mother's demand conflicted with the father's work schedule.

We...