9:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

Civil contempt proceedings are expressly authorized in G.L. c. 209A, § 7. Since, by definition, civil contempt proceedings must be brought to coerce compliance with a court order for the benefit of the other party rather than to punish, they are appropriately used when the defendant has failed or refused to do something he or she has been ordered to do, rather than where the defendant has done something that has been forbidden. Thus, for example, civil contempt is appropriate when the defendant has refused to make support or compensation payments, or has refused to turn over car or apartment keys, or take some other act.

Commonly, if it is determined that the defendant knew of and understood the order, and had the ability to take the required action but failed or refused to do so, he or she is incarcerated until the act is accomplished.

A written complaint should be required from the victim, but may be informal. In the Probate and Family Court, plaintiffs should complete the Complaint for Contempt form (CJ-D 103). Reasonable notice and the opportunity to be heard must be provided to the defendant. There is no right to a jury trial in such proceedings. Presumably, appeal on issues of law would be available.

There is a method for using civil contempt in the usual context of c. 209A orders, i.e., where the defendant has been ordered not to do something (e.g., not to abuse the plaintiff further, not to contact the plaintiff, not to come near the plaintiff). It has been held that civil contempt may be used to find that the defendant violated a c. 209A order and to commit the defendant to jail, subject to the posting by the defendant of a cash bond. With the amendments to the Massachusetts Rules of Civil Procedure effective July 1, 1996, Mass. R. Civ. P. 65.3, regarding civil contempt, is applicable to such proceedings in the District Court and Boston Municipal Court. The defendant should be given adequate notice of the charge, be represented by counsel and be offered the opportunity to be heard. Mahoney v. Commonwealth, 415 Mass. 278 (1993). In Mahoney, the defendant was orally charged with civil contempt following arraignment on a separate statutory criminal charge for violating the order. He was given one and one-half hours to prepare with counsel for the civil contempt hearing. After the court found him in civil contempt, he was committed to jail subject to the posting of a cash bond in the amount of $5,000. Thus he could "purge" the contempt and avoid jail by posting $5,000 cash, the return of which was conditioned upon avoiding contact with the victim.

If the defendant in a civil contempt proceeding is not before the court when charged, he or she should be served with a complaint in hand, together with an order to show cause and notice of the date of the hearing. If the defendant fails to appear for the hearing, a capias should issue for the arrest of the defendant. The hearing would then proceed when the defendant was before the court. Service of process in civil contempt cases will require the plaintiff to pay the constable or deputy sheriff. If the plaintiff is indigent, it is not clear how service can be obtained, even if the court orders state assumption of the cost under the provisions of G.L. c. 261, §§ 27A et seq.

Again, the most appropriate use of civil contempt (at least where the defendant is not before the court) is where some particular act, such as return of property, has been ordered but not taken by the defendant. Violations involving danger to the plaintiff will usually involve criminal charges or criminal contempt and prompt arrest with or without a warrant.

A refusal to pay support as ordered, where the plaintiff is receiving AFDC and there is no issue of paternity, can result in an income assignment order to the defendant's employer and does not require contempt proceedings. See G.L. c. 119A, § 12.

G.L. c. 209A, § 5A provides that "any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the Commonwealth and enforced as if it were issued in the Commonwealth for as long as the order is in effect in the issuing jurisdiction." See Appendix A and Guideline 14:00. This may include enforcement through contempt proceedings. [Back]