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Mahoney v. Mahoney, Appeals Court of Massachusetts, Unpublished Disposition No. 11-P-524, June 12, 2012

In Mahoney v. Mahoney, the Massachusetts Appeals Court reversed a finding of contempt where the defendant had made payment the evening before the contempt hearing. The Massachusetts Appeals Court upheld a second finding of contempt since the defendant made no diligent and energetic attempt to obtain funds needed to comply with the Court Order.

The parties were married for 23 years and had two children. The husband was a minority shareholder in several family corporate entities which own Mahoney’s Garden Centers, a retail gardening store. Following motions for temporary orders, the husband was ordered to pay the wife $3,400 per month in unallocated support and $75,000 as a pre-distribution of assets against her equitable share of the marital estate for attorneys fees. The wife filed her first complaint for contempt for the husband’s failure to make the unallocated support payments. Although the husband paid the arrears the night before the hearing, he was found guilty of contempt. The wife later filed a second complaint for contempt for the husband’s failure to pay the $75,000 advance distribution. The husband was again found to be in contempt of the temporary order. The husband appealed both findings.

With regard to the wife’s first complaint for contempt, the Massachusetts Appeals Court held that it was error for the husband to be found in contempt since he paid the support arrears prior to the hearing. With regard to the second complaint, the husband argued that the trial court failed to find that he had the ability to pay. The Appeals Court noted that it is the defendant who bears the burden of proving an inability to comply with a court order. Moreover, the contempt judgment specifically found that the husband failed to prove an inability to pay. Further, to meet the burden of proving "impossibility," the husband needed to present evidence that he was reasonably diligent and energetic in attempting to accomplish what was ordered. The Appeals Court found that the judge’s findings must stand because they amply supported her conclusion that the husband made no diligent and energetic attempt to obtain the funds.