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NISSENBAUM’S STANDARD SET OF
SUMMARIES OF LAW
Contempt
DISCLAIMER
II. The Law on Criminal Contempt.
Jurisdiction.2.1 The Probate and Family Court Department has the "power and authority for enforcing orders, sentences, judgment and decrees made or pronounced in the exercise of any jurisdiction vested in it and for punishing contempts of such orders, sentences, judgments and decrees and other contempts of [its] authority...." G. L. c. 215, § 34.
2.2 The judgment at issue in the case at bar was properly issued by this court which had jurisdiction over the parties and the issues. Said judgment was not obtained by fraud. G. L. c. 215, § 34 B.
2.3 The court has jurisdiction over the parties and the subject matter of the within complaints for contempt.
2.4 The defendant was given fair advance notice of the proceedings and of the fact that the proceeding was both criminal and civil in nature. Sodones v. Sodones, 366 Mass. 121, 127 (1974).
2.5 When the defendant and counsel have notice of the trial date, they are obligated to come to court ready for trial.
Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984).Purpose.
2.6 A criminal contempt proceeding is punitive. It is intended to punish a person for having violated the order of the court. Blankenburg v. Comm., 260 Mass. 369 (1927).
No Jury Trial Required in the Probate Court.
2.7 The probate court does not provide, and a defendant is not entitled to. a jury trial in the probate court. Furtado v. Furtado, 380 Mass. 137 (1980).
Beyond a Reasonable Doubt.
2.8 In order to find the defendant guilty of criminal contempt, the charges must be proven beyond a reasonable doubt.
Ability to Pay at Time Obligation was Due.
2.9 A criminal contempt is based on a finding that the defendant had the ability to pay the obligation when it was due, but knowingly and intentionally failed to obey the order. Furtado v. Furtado, 380 Mass. 137 (1980).
2.10 In a criminal contempt, it must be established that the defendant had the ability to comply with the order or judgment at the time when he was obligated to obey it.
2.11 The defendant cannot be excused if, prior to the time he was obligated to obey the order, he intentionally spent or otherwise disposed of assets that would have permitted payment of said obligation. Bisienere v. Buccino, 36 Mass. App. Ct. 749 (1994) (rejecting defendant’s claim he could not comply with a support order because he did not have the ability to pay, where defendant voluntarily terminated his prior employment and entered his own business; defendant also unsuccessfully attempted to misrepresent his income and to manipulate his earning potential to create the appearance of an inability to pay support.)
Length of Sentence in Probate Court Criminal Contempt Trial is a Maximum of Six (6) Months.
2.12 At bar, as a matter of federal constitutional law, because the defendant was not offered a jury trial, the court may not impose a sentence in a criminal contempt of more than six (6) months. Bloom v. Illinois, 391 U.S. 194 (1968).
2.13 There is no constitutional right to a jury trial in a criminal proceeding in which the penalty is six months or less in prison. Cheff v. Schnackenberg, 384 U.S. 373, 379-380 (1966).
2.13 G. L. c. 215, § 34 provides that the judge, in "sentencing a person to jail for failure to obey a judgment of the court relative to the support of his wife or minor child may order that a sentence be served during such hours as will permit the person to continue his employment."
52.14 Nothing in c. 215, § 34 prevents a limited order of confinement when there has been a finding of criminal contempt.