Summary
The Massachusetts Supreme Judicial Court addresses a habeas corpus and supervisory-relief petition arising from the petitioner’s prolonged confinement for civil contempt in supplementary process proceedings. The court holds that continued confinement requires periodic evidentiary hearings establishing by clear and convincing evidence that the judgment debtor has the current ability to pay and revises the civil contempt standard to require clear and convincing evidence of disobedience of a clear and unequivocal command. It orders the District Court to conduct an evidentiary hearing and provides for the petitioner’s release if the judgment creditor cannot meet the required burden.
Topics
Practice areas
Questions Presented
- Whether the statutory prohibition on appeals from supplementary process orders precluded relief under the Supreme Judicial Court's general superintendence authority.
- Whether a judgment debtor may be confined through successive thirty-day civil contempt terms for failure to pay a judgment the debtor has the ability to pay.
- What evidentiary standard applies to a finding of civil contempt in supplementary process proceedings and other civil contempt cases.
- Whether due process required additional notice, a separate contempt hearing, a reasonable time to pay, and identification of specific assets before Birchall could be held in civil contempt.
- Whether Birchall was entitled to immediate habeas corpus relief on the record presented.
Holdings
- The prohibition that there shall be no appeal from supplementary process orders bars ordinary appellate review but does not deprive the Supreme Judicial Court of its general superintendence power under G. L. c. 211, § 3.
- When a judgment debtor is found able to pay and fails to comply with a payment order, a judge may impose successive civil contempt terms of no more than thirty days each, provided the debtor may purge the contempt by paying an amount the debtor is able to pay and the judge conducts an evidentiary hearing at least every thirty days.
- After issuance of the rescript, every finding of civil contempt, including in supplementary process proceedings, must be supported by clear and convincing evidence that the contemnor disobeyed a clear and unequivocal command.
- A judge need not identify with specificity the assets available to a judgment debtor before finding an ability to pay, but the judge must find by clear and convincing evidence that the debtor is presently able to pay, in whole or in part. Due process requires notice of the charges, a reasonable opportunity to respond, an opportunity to retain counsel, testify, and call witnesses, and an adequate time to pay before a civil contempt finding.
- Birchall was not entitled to immediate issuance of a writ of habeas corpus because he waived the habeas claim by failing to provide the ordered transcripts and failing to argue the claim in his brief. The case nevertheless required a prompt evidentiary hearing to determine his current ability to pay under the new clear-and-convincing standard.
Key quotations
“Therefore, after the issuance of the rescript in this case, we require that, in all cases and not limited to supplementary process actions, a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” (853)
“In essence, a judge who finds a judgment debtor in civil contempt because he has failed to pay a judgment that he has the ability to pay must hold an evidentiary hearing every thirty days to determine whether the debtor should again be found in contempt.” (849-850)
“Our review is confined to whether the petitioner may continue to be incarcerated for civil contempt.” (847)
Factual background
D'Amour obtained a default judgment against Birchall for $2,752,934.54, later increased by execution to $2,854,542.74, and commenced supplementary process proceedings. After Birchall failed to appear for an examination and later underwent nine days of proceedings concerning his assets and ability to pay, the District Court found that he could pay the judgment and ordered payment forthwith. Birchall remained confined for civil contempt for more than two years, while the judgment balance was reduced through the liquidation or conveyance of certain assets but remained unpaid.
Procedural history
D'Amour obtained a substantial default judgment against Birchall and initiated supplementary process proceedings to enforce it. After hearings in the District Court, Birchall was found able to pay and was confined for civil contempt. He sought habeas corpus and, alternatively, relief under the Supreme Judicial Court's general superintendence authority. The Supreme Judicial Court denied habeas corpus relief at that time, held that review under G. L. c. 211, § 3, was available, and remanded for an evidentiary hearing on Birchall's current ability to pay.
Remand instructions
The case was remanded to the county court for separate orders: one denying the petition for a writ of habeas corpus and another directing an evidentiary hearing in the District Court within thirty days after issuance of the rescript. At that hearing, D'Amour must prove by clear and convincing evidence that Birchall currently has the ability to pay the judgment in whole or in part. If she fails to meet that burden, Birchall must be released and the supplementary process action dismissed.