3.1 Unlike its criminal counterpart, civil contempt is not punitive but it is "intended to achieve compliance with the court’s orders for the benefit of the complainant". Com. v. Rape Crisis Services of Greater Lowell, Inc., 416 Mass. 190, 193 (1993); Furtado v. Furtado, 380 Mass. 137, 141 (1980).

3.2 "[T]he purpose of civil contempt is remedial: its aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant." Sodones v. Sodones, 366 Mass. 121, 130 (1974).

3.3 Contempt is a remedy to compel compliance with a court order, whether a final judgment or interlocutory order. See Cherry v. Cherry, 253 Mass. 172, 174 (1925).

3.4 A complaint for civil contempt filed pursuant to G. L. c. 215, § 34A, is the usual method of remedying a failure to pay a continuing order for child support or alimony. See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000).

3.5 A contempt action may be utilized to punish a party for failing to comply with other orders, Benglian v. Benglian, 9 Mass. App. Ct. 891 (1980), or to enforce a debt that becomes due upon the happening of some event. See Mills v. Mills, 4 Mass. App. Ct. 273 (1976).

3.6 In order to find a party in civil contempt, the judge must find a clear and unequivocal disobedience of a clear and unequivocal command. Judge Rotenberg Educ. Ctr., Inc. v. Com’r of Dept. of Mental Retardation, 424 Mass. 430, 442-443 (1997); Whelan v. Frisbee, 29 Mass. App. Ct. 76, 82 (1990); Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990); Nickerson v. Dowd, 342 Mass. 462, 464 (1961).

3.7 For civil contempt to be found, "there must be a clear and undoubted disobedience of a clear and unequivocal command." Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), quoting from United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972), cited with approval in Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).

3.8 The command must be clear and unequivocal to the extent that it can be understood by the person subject to it "without resort to the evidence at trial." Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981), cited with approval in Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).

3.9 An ambiguity does not arise merely because an order, otherwise clear, may require "some legal interpretation." Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567 (1997).

3.10 Indefinite and uncertain language cannot support a complaint for contempt because of a lack of fair notice to the person subject to the order, and because "ambiguity carries with it the potential for becoming 'an instrument of [judicial] severity.'" Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 89 (1977).

3.11 Appellate courts ordinarily resolve ambiguities in divorce decrees in favor of the person charged with contempt. Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), citing Cohen v. Murphy, 368 Mass. 144, 147 (1975), and Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981).

3.12 While vague or ambiguous language in a judicial decree cannot constitute a "clear and unequivocal command," Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), a party's self-serving characterization of a provision as "ambiguous" does not make it so. Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).

3.13 "[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). See Mayer v. Medical Malpractice Joint Underwriting Assn. of Mass., 40 Mass. App. Ct. 266, 269 (1996) (party's interpretation of insurance policy language "appear[ed] to represent a strained attempt to create ambiguity where none exists").

3.14 If a party is uncertain about obligations under an agreement or court order, the proper remedy is to bring an action requesting clarification. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 451 (1997), citing Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 91 (1977); Krapf v. Krapf, 439 Mass. 97 (April 2, 2003) (declaratory relief used to resolve case of first impression in Massachusetts.)

3.15 A civil contempt judgment is premised on the proposition that the defendant has the ability to pay the arrearages at the time of the contempt proceeding.

3.16 Upon a showing that a defendant in a civil contempt case is in arrears on his support or other obligations, the burden of going forward is on the defendant who must present evidence, which by its preponderance, convinces the judge that he has a present inability to comply with the judgment. If no such credible evidence is presented, the defendant can be found in civil contempt of court. Diver v. Diver, 402 Mass. 599, 603 (1988).

3.17 Breach of implied covenant of good faith and fair dealing does not require showing of bad faith; lack of good faith may be inferred by considering totality of circumstances. Nile v. Nile, 432 Mass. 390, 398-399 (2000). (Putting assets into revocable inter vivos trust in favor of his new wife violated decedent’s agreement to bequeath the majority of estate to the children of his former wife.)

3.18 By destroying or injuring the rights of the children of his first marriage to receive the benefit of his agreement with his former wife, the decedent breached his continuing duty of good faith and fair dealing. Nile v. Nile, 432 Mass. 390, 398-400 (2000), cited with approval in Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).

3.19 A court of equity will not countenance such "questionable logic," nor permit "an individual to have an estate to live on but not an estate from which his debts could be paid." Nile v. Nile, 432 Mass. 390, 400 (2000). Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).

3.20 G. L. c. 215, §34 provides that "at the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges in violation."

3.21 Noncompliance with a court order may be excused when compliance becomes impossible, but the burden of proving impossibility lies with the alleged contemnor and is a difficult burden to meet. Com. v. One Ford Econoline Van, 413 Mass. 407, 413 (1992); Diver v. Diver, 402 Mass. 599, 603 (1988).

3.22 Ownership of capital assets can be considered an ability to pay obligations under a judgment without further inquiry as to whether the obligation can be enforced directly against the asset. Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (1997); Krokyn v. Krokyn, 378 Mass. 206, 213-214 (1979).

3.23 A judge can consider an alleged contemnor’s earning capacity in determining ability to comply with a judgment, particularly where the claimed reduced income is the result of voluntary circumstances. Cooper v. Cooper, 43 Mass. App. Ct. 51, 53 (1997); Flaherty v. Flaherty, 42 Mass. App. Ct. 289, 291 (1996).

3.24 Ability to pay includes all forms of income and assets possessed by a defendant. Krokyn v. Krokyn, 378 Mass. 206, 210 (1979).

3.25 A court in equity will not sanction voluntary action that amounts to an "evasion of the spirit of the bargain." Larson v. Larson, 37 Mass. App. Ct. 106, 110 (1994), quoting Restatement (Second) of Contracts §§ 205 comment d (1981). See Nile v. Nile, 432 Mass. 390, 398-399 (2000); Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).

3.27 Nothing in the record demonstrates that the defendant, as a matter of law, satisfied his burden of proving his inability to comply with the judgment and orders of the court. Diver v. Diver, 402 Mass. 599, 603 (1988).

3.28 The judge can consider if the defendant wasted, divested or otherwise placed his assets beyond his reach at a time when the defendant knew or should have known his assets would be required to meet his court-ordered obligations.

3.29 In a civil contempt proceeding, there is no right to a jury trial, nor any limit on the length of time that a defendant can be kept in jail because it is the defendant who hold the key to his cell by complying with the order. See, Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976).

3.20 In a civil contempt, a limited order of confinement is consistent with permitting the defendant to continue his employment and thus provide needed support for the plaintiff and the parties' minor children.

Legal fees on a Contempt

3.21 General Laws c. 215, §§ 34A, creates a presumption in favor of an award of reasonable fees and costs for a successful plaintiff in a contempt action. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)

3.22 The presumption "can be overcome only by specific findings supporting a reduction in a request for reasonable fees." T.M. v. L.H., 50 Mass. App. Ct. 856, 863 (2001), quoting from Kennedy v. Kennedy, 23 Mass. App. Ct. at 181. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)

3.24 The court will "assume a construction of 'best efforts' in the natural sense of the words as requiring that the party put its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom." Macksey v. Egan, 36 Mass. App. Ct. 463, 472 (1994). See Brewster v. Dukakis, 675 F.2d 1, 4 (1st Cir. 1982) (upholding provision in consent decree requiring state officials to "use their best efforts to insure . . . full and timely financing" before making cuts in services subject to that decree); Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225-226, 228 (1st Cir. 1987), cert. denied, 485 U.S. 935 (1988) ("best efforts" is the equivalent of acting in good faith, although it does not mean every conceivable effort).

Interest on Judgments of Contempt.

3.25 Where the award in a non-contempt judgment is announced as a certain monetary sum, G. L. c. 235, § 8, acts to provide interest over any period of delayed payment. To hold otherwise would ignore clear legislative intent in enacting that statute and fly in the face of strong public policy supporting the inclusion of interest on monetary judgments.

3.26 Although interest is available upon a finding of contempt, it is not a substitute for statutory interest upon a money judgment under G. L. c. 235, § 8.

3.27 Under G. L. c. 215, § 34A, the interest rate is calculated by referring to G. L. c. 231, § 6C, which ordinarily only applies to damages in contract actions.

3.28 Because there is no interest rate specified in a contract, the rate of 12% is applicable on a contempt order. See G. L. c. 231, § 6C.

3.29 Interest under G. L. c. 215, § 34A, is a remedy for an ongoing failure to comply with an order for periodic support or alimony that may not qualify as a "judgment for the payment of money" under G. L. c. 235, § 8, and might not thus carry such statutory interest.

3.30 G. L. c. 215, § 34A, fills in a gap and provides for interest that may not be otherwise available - for example interest on weekly or monthly payments of alimony or child support. See Kennedy v. Kennedy, 20 Mass. App. Ct. 559, 560-563 (1985).

3.31 The ordering of interest on an award of counsel fees is proper in Robbins v. Robbins, 22 Mass. App. Ct. at 984. Compare Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 272 (1985) (no interest accrues on attorney's fees awarded under G. L. c. 93A).