L.F. v. L.J.
L.F. v. L.J.
Opinion of the Court
The defendant, L.J., has appealed from a judgment holding her in contempt for violating a G. L. c. 209A order and disregarding certain other orders.
1. Procedural history. The plaintiff, L.F., is an attorney, licensed to practice in New York, New Jersey, and Florida, apparently now residing in either New York or New Jersey. The defendant is a physician, licensed in Massachusetts and residing at all relevant times in the Commonwealth.
Sometime in 2001, the plaintiff represented the defendant in a legal matter. They became romantically involved, and a child was bom to the couple. The parties contested custody upon the child’s birth, each contending that the other was an unfit parent. The Department of Social Services (DSS) became involved and filed a petition seeking to terminate the defendant’s parental rights. See note 1, infra.
a. The G. L. c. 209A order. On January 20, 2004, the plaintiff and DSS filed complaints for abuse prevention orders pursuant to c. 209A against the defendant. Temporary restraining orders were issued. The orders prohibited the defendant from abusing the plaintiff “by harming, threatening or attempting to harm the Plaintiff physically or by placing the Plaintiff in fear of imminent serious physical harm, or by using force, or threat of duress to make the Plaintiff engage in sexual relations unwillingly.”
The orders also prohibited the defendant from any contact with the plaintiff and the child, ordered the defendant to refrain from contacting the plaintiff and child “either in person, by telephone, in writing or otherwise, directly or through someone else, and to stay at least 200 yards from [the plaintiff and the child] even if the plaintiff seems to allow or request contact. Notification of court proceedings is permissible only by mail, or by sheriff or other authorized officer when required by statute or rule.” The orders also required the defendant to stay away from the plaintiff’s residence and his office in New York. The orders were later modified to exclude the defendant from the entire building in which the plaintiff’s law office was located. The orders were made permanent on January 26, 2005. The defendant did not appeal the issuances of the orders.
During the conversation, the defendant explained the background of the Massachusetts matter, alleged that the plaintiff had violated a fiduciary duty to her, and informed Draisin that she had already contacted the State bar associations where the plaintiff was licensed to practice, informing them of her belief that he had violated his fiduciary duty. She also stated that she planned to pursue a legal malpractice action in conjunction with his representation of her. The defendant further said that she had information that the plaintiff had committed a felony which would
At the end of the conversation, the defendant handed Draisin a large envelope, entitled “Exhibits Offered on September 29, 2005 in Support of Motion for Custody and Visitation Rights dated August 31, 2005 or an Alternative Motion for Consideration of Exhibits.” The envelope contained thirteen pages of documents that the defendant stated she would be filing with the court that day. Draisin accepted receipt of the envelope. At the conclusion of the conversation, Draisin reported the defendant’s demands to the plaintiff, including the actions that the defendant planned to take if her demands were not met. The plaintiff rejected those demands.
c. Proceedings in Massachusetts after the New Jersey court hearing. On October 3, 2005, the plaintiff filed a complaint in the Probate and Family Court for civil contempt against the defendant, claiming multiple violations of the permanent abuse prevention order issued on January 26, 2005. The plaintiff alleged five violations by the defendant: (1) impersonating a courier service to gain access to the plaintiff’s private office in New York; (2) attempting to contact and threaten the plaintiff through a third party, i.e., Draisin; (3) serving Draisin with court papers in hand, rather than by mail; (4) appearing in the Superior Court of New Jersey seeking custody and visitation rights in direct violation of the decree terminating her parental rights; and (5) making threats to the plaintiff regarding actions she would take if he did not allow her visitation and custody of the child.
The defendant filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the Probate and Family Court
On November 15, 2005, a hearing was held on the plaintiff’s complaint for contempt. It was held before a probate judge who was familiar with the parties, having issued nearly all the temporary orders in this matter, as well having presided over the termination of parental rights case. The defendant was present. Both the plaintiff and Draisin testified at the hearing.
After the hearing, the judge found the defendant in contempt. The judge acknowledged that although the defendant could communicate with the plaintiff’s attorney as required by court proceedings, her communications “exceeded the scope of the litigation,” because they fell “outside the parameters of the disputed matter.”
The judge noted that under the G. L. c. 209A order, the defendant was ordered not to contact the plaintiff through a third party and that she could only serve papers on the plaintiff through the mail or through a legitimate process server. The judge mled that the defendant’s communications to Draisin and serving court papers on him violated the order.
The judge also ordered the defendant to return to the Probate and Family Court the previously impounded documents that she had taken, and also to identify all persons to whom those documents were disclosed; to post a three-year $50,000 bond as collateral against future violations of the Probate and Family Court’s impoundment and abuse prevention orders, to be used to “pay sanctions of Five Thousand . . . Dollars per [future] violation,” or to serve ninety days; and to report to the court by January 9, 2006, that the bond had been posted.
The defendant did not post the $50,000 bond and did not appear before the court to surrender herself before January 9,
On appeal, the defendant raises three issues. She claims that (1) the c. 209A restraining order does not extend beyond the territorial limits of the Commonwealth and cannot be enforced by the Commonwealth courts; (2) the defendant’s statements to Draisin and her act of delivering to Draisin certain papers that she intended to file as exhibits with the New Jersey court did not constitute violations of the c. 209A restraining order even if they had been done in Massachusetts; and (3) the judge’s order, requiring the defendant to post a $50,000 bond in anticipation of, and as a remedy for, future contempts exceeded the court’s authority.
2. Discussion, a. Plaintiff’s claim that the appeal must be dismissed. The plaintiff claims that because the defendant has avoided service of the copias that issued on or after January 9, 2006, the defendant is a fugitive from justice, and her appeal must be dismissed. See Commonwealth v. Rezendes, 353 Mass. 228, 228-229 (1967).
Although the present appeal is not a criminal proceeding, we have dismissed an appeal where the appellant was a fugitive and his fugitive status, among other things, impaired the appellee’s ability to collect on a specific aspect of the judgment. Yousif v. Yousif, 61 Mass. App. Ct. 686, 690-691 (2004). The court noted, however, that “the violation of court order from which an appeal is taken does not alone constitute a sufficient basis to impose such a.severe sanction.” Id. at 688.
In considering whether to invoke the harsh equitable remedy of dismissal, we consider the following factors: “(1) whether [the defendant] is, at least constructively, a fugitive and [her] fugitive status is connected to the judgment appealed from; (2) whether [the defendant’s] fugitive status impairs enforceability of the judgment; and (3) whether lesser sanctions are available that would address the court’s concerns.” Id. at 689-690. Here, although the defendant has ignored the orders of the Probate and Family Court and may arguably be a fugitive from justice, her absence does not require dismissal of the appeal.
The plaintiff in this matter is not attempting to enforce a
b. Substantive issues, (i) Subject matter jurisdiction. The defendant first contends that the Probate and Family Court lacked subject matter jurisdiction to consider the plaintiff’s contempt complaint because the allegedly contumacious conduct took place in New Jersey.
The defendant’s argument, however, is without merit. A “G. L. c. 209A proceeding is a civil, and not a criminal, proceeding.” Frizado v. Frizado, 420 Mass. 592, 596 n.3 (1995). Here, the probate judge issued a judgment holding the defendant in civil contempt and issued sanctions aimed at coercing future compliance with court orders. Furtado v. Furtado, 380 Mass. 137, 141 (1980) (civil contempt proceedings are designed to coerce compli
Our courts routinely enforce civil orders notwithstanding that the claimed violative conduct took place outside the Commonwealth. Compare Scola v. Scola, 318 Mass. 9, 10-11 (1945) (defendant enjoined from selling a boat; held in contempt after sailing the boat from Boston to Maine and selling it there); Coyne Industrial Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 271 (1971) (violation of a decree prohibiting the defendant from soliciting a laundry business in “Massachusetts, Rhode Island and several Connecticut counties”); Qiuyue Shao v. Yue Ma, 68 Mass. App. Ct. 308, 315-316 (2007) (Probate and Family Court had personal jurisdiction over the husband and therefore had jurisdiction to distribute property both inside and outside the Commonwealth). More particularly, courts retain subject matter jurisdiction with respect to abuse prevention orders protecting individuals who live on Federally owned land because there is no entrenchment on the jurisdiction of the Federal government. Cobb v. Cobb, 406 Mass. 21, 26 (1989) (court could issue an effective c. 209A order within the confines of an area ceded to the Federal government). Here, it is claimed that the defendant’s actions violated the integrity of a Massachusetts order and that claim was properly addressed by a Massachusetts court. The probate judge correctly denied the defendant’s motion to dismiss for lack of subject matter jurisdiction.
(ii) Finding of contempt. The defendant next argues that her conduct as alleged may not be found in violation of the c. 209A order because her contact and communications with the plaintiff’s attorney were made in the context of the New Jersey legal proceedings. She contends that her actions were akin to settlement demands and were not so outrageous or inflammatory as to fall outside the privilege.
“In order to hold a party in contempt, the judge must find ‘a
There is an exception to the “no contact” order that allows a person who is the subject of a c. 209A order to engage in litigation against the person who obtained the order.
Here, although the defendant’s demands were directly related to the New Jersey custody hearings, her threats to the plaintiff, through his lawyer, to obtain those demands were designed to harass and coerce and were outside the parameters of the limited exception to the no-contact order. See supra at 817. The defendant was aware that her threats would be communicated to the plaintiff. As the judge found, the “Defendant’s attempt to contact [the] Plaintiff through a third party was a clear violation of the Abuse Prevention Order.” Such conduct, threatening the
We hold that the defendant’s conduct violated the no-contact order and that the judge did not commit error in holding the defendant in contempt.
(iii) Posting of the bond. The judge noted that the defendant “has a record before this Court of violating Court orders on multiple occasions.” The judge ordered the defendant to post a $50,000 bond “as collateral against future violations of this Court’s impoundment and abuse prevention orders” (emphasis
We recognize that the record does demonstrate the defendant’s persistent conduct in violating court orders prior to the judgment of contempt ordered in this matter. We discuss, therefore, in some detail, the posting of the bond by the judge after she found the defendant in contempt.
Coercive sanctions, such as the posting of a bond, “look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience.” Labor Relations Commn. v. Fall River Educators’ Assn., 382 Mass. 465, 476 (1981), quoting from Latrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1344 (3d Cir. 1976). “[T]he amount of a coercive fine requires consideration of the defendant’s financial resources in order to arrive at a fine that will be effective but not unreasonably oppressive. ... In determining the amount of a fine imposed as a means of securing future compliance, a judge should consider the character and magnitude of the threatened harm, the probable effectiveness of any suggested sanction, the defendant’s financial resources, and the seriousness of the burden on that defendant.” Fall River Educators’ Assn., 382 Mass. at 481-482.
Here, the judge made no specific findings regarding the effectiveness of the bond requirement or the defendant’s financial resources (other than the fact that she is generally represented by private counsel) as required under the standard of Fall River Educators’ Assn., 382 Mass. at 481-482. There is no indication in the record how the bond amount of $50,000 was determined, and there is no indication of the defendant’s ability to post such collateral.
We vacate the order for posting of the bond. We hasten to add that considering the stormy relationship between the parties, the judge is free to order a bond be posted if the situation warrants it, in accordance with the steps outlined above.
So ordered.
On November 1, 2004, the child’s attorney filed a complaint for contempt
On November 10, 2004, a probate judge issued a contempt judgment against the defendant. The judge suspended all visits between the defendant and the child. In addition, the defendant was ordered to return various impounded documents to the Probate and Family Court. The defendant did not return the documents, and a copias was issued for the defendant’s arrest. As of December 5, 2005, the child’s attorney had not brought the copias forward for action.
On July 7, 2005, a decree was entered in the Probate and Family Court in regard to DSS’s care and protection petition. The defendant’s parental rights were terminated, the plaintiff was given custody of the child, and the defendant was denied any visitation rights. This court affirmed the judgment in an unpublished memorandum and order pursuant to our rule 1:28, as amended, 46 Mass. App. Ct. 1001 (1998). Adoption of Maurice, 66 Mass. App. Ct. 1117 (2006).
The plaintiff and the child lived in New Jersey at the time the defendant filed the complaint.
On September 29, the proceeding was rescheduled to October 24, 2005. Draisin filed a motion to dismiss on October 24 on the ground of lack of subject matter jurisdiction. The judge allowed the motion.
The judge stated that the plaintiff did not present any supporting evidence that the defendant violated the abuse prevention order by hand-delivering court documents to the plaintiff’s attorney (not Draisin) in New York. The judge stated that she would not make any ruling “at this time” on the plaintiff’s claim.
The defendant does not contest personal jurisdiction. Contrast Caplan v. Donovan, 450 Mass. 463, 468-472, cert. denied, 128 S. Ct. 2088 (2008) (c. 209A order requiring no abuse and no contact valid without personal jurisdiction over defendant because court may adjudicate status of relationship between multiple parties even where personal jurisdiction over all parties is not established).
The judge recognized the exception, ruling that in this matter, “[initiation of litigation regardless of its merits is not a violation of the Abuse Prevention Order issued by this Court.”
The judge recognized that the “threats” made to the plaintiff’s counsel to be communicated to the plaintiff were different from the type of “threats” set forth in G. L. c. 209A.
The “threats” uttered by the defendant, according to the judge, were intended “to hurt, punish, destroy . . . as in retaliation or intimidation.” We agree with the judge.
The defendant’s in-hand service of exhibits to Draisin relating to the ongoing litigation did not constitute a clear and unambiguous violation of the order.- An order must be “sufficiently clear, so that the party to be bound is provided with adequate notice of the required or prohibited activity.” Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 263 (2007), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. at 566. Here, the order explicitly prohibited in-hand service to the plaintiff or to a third party on his behalf. Prohibiting all communication, however, between a pro se litigant (the defendant) and the attorney for the holder of a c. 209A order (the plaintiff) would create an unworkable litigation situation. Thus, we conclude that the defendant in the circumstances shown here did not violate the order by giving to Draisin the documents that she planned to offer as an exhibit.
After the judge found the defendant guilty of contempt, she ordered, among other things, that the defendant “immediately produce all medical records and evaluations involving [the child], court-impounded records including any trial transcripts she has in her custody and transfer the records and any copy to the court’s custody.” The defendant was also ordered to report in writing “regarding all entities, agencies or individuals from which she sought the prohibited records and attach an affidavit describing the action she took to seek prohibited materials or letter or subpoena seeking same.”
It appears that the documents to which the judge referred were introduced in evidence at the contempt hearing and are now in the possession of the court. We note that the defendant’s appellate brief states that the documents have been returned to the court; the plaintiff’s brief makes no mention of the documents. We do not know the status of the affidavit, but there is nothing in this record that indicates whether it was filed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.