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Leon v. Cormier

Appeals Court of Massachusetts, Suffolk

March 24, 2017


          Heard: November 17, 2016.

         Complaint for divorce filed in the Suffolk Division of the Probate and Family Court Department on September 7, 2011.

         Complaints for contempt, filed on January 2, 2015, were heard by Abbe L. Ross, J., and motions for relief from judgment were considered by her.

          Peter A. Kuperstein (Mary Donahue also present) for the mother.

          Norberto A.Y. Leon, pro se.

          Present: Hanlon, Sullivan, & Blake, JJ.

          HANLON, J.

         A judge of the Probate and Family Court held the mother, Jessica Cormier, in civil contempt for violations of a decision issued by an agreed-upon parent coordinator. Cormier appeals, arguing that the parent coordinator's decision was not an order or judgment of the court and therefore cannot be enforced by a finding of contempt. After review, we conclude that, at least under the circumstances of this case, the parent coordinator's decision was, in fact, an order of the court pursuant to the judgment of divorce nisi; we therefore affirm.


         On November 20, 2012, the parties executed a separation agreement which was incorporated in the corrected judgment of divorce nisi on December 7, 2012, as of November 20, 2012. According to the judgment, the terms of the agreement were given the "full force and effect of an order of [the] [c]ourt." The agreement provided, among other things, that "[t]he parties may modify the parenting plan by agreement" and, in so doing, agree to use the services of a mutually selected parent coordinator to assist them if they are "unable to agree on any matter related to the parenting plan[, ] including educational changes."[1] The parties also agreed in advance that the decisions of the parent coordinator "[would] be binding on the parties unless altered, modified or terminated by [c]ourt order."

         Thereafter, following a series of disputes about several things, including the location where the children were to be picked up and dropped off during custody exchanges, the parties agreed to use the services of the mutually selected parent coordinator. On December 21, 2013, the parent coordinator sent an electronic mail (e-mail) message to the parties, clarifying a previous decision and specifying, among other things, the details of future visitation exchanges and the timing of e-mail communications between the parties.[2], [3] At no point did the mother indicate that she did not intend to be bound by the decision of the parent coordinator, nor did she ask the judge to modify or terminate the coordinator's order.

         Over the next one and one-half years or so, the mother failed to follow the prescribed exchange procedures and frequently sent nonemergency e-mail messages to the father at times other than the "designated Tuesday email time." She also instructed the father, on several occasions, contrary to the order, to pick up the children in Pepperell, rather than in Chelmsford. In January, 2015, the father filed three complaints for contempt -- one for the alleged violations relating to e-mail communications; one for alleged violations of the visitation exchange protocol; and a third, described by the judge as a "catchall" complaint.[4]

         At the contempt hearing, each party appeared pro se. The mother testified that, because she was not served with the attachments to the plaintiff's complaint, she was not given proper notice of the charges against her. Specifically, with respect to the complaint relating to e-mail communications, the mother argued that she had not been provided with a copy of the e-mail messages the father offered in support of his complaint. As to the complaint relating to the visitation exchange location, she argued that the parties had "a clear order" from the parent coordinator that "the exchanges took place exclusively in Pepperell." Although the judge offered to continue the hearing to another day so that the mother had sufficient time to receive and review the documentation she claimed she had not received, she responded that she "would rather just get it over with today."

         Based on the evidence presented at the hearing, the judge found the mother in contempt, concluding that, although the mother had the ability to comply, she "willfully [had] violated" the orders of the parent coordinator. The judge noted in her findings that the court had "played no role in the parties' decision to give the [p]arent [c]oordinator binding authority" and that the parties "clearly [had] expressed their advance consent to be bound by a decision of the [p]arent [c]oordinator in their [s]eparation [a]greement." The judge also found that "the fact that the [s]eparation [a]greement provided that either party could bring the matter before the [c]ourt before the decision was to take effect to try and ...

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