My ex filed a complaint for contempt and a complaint for modification. She wants more child support and I can’t keep up with the support I am currently supposed to pay. Our son attends private high school and I have been current with the school but occasionally fall behind with the weekly amount. I work on commission and work has been slow in the last year. I am now almost $10,000 behind on support. My only asset is my retirement account, which was divided in the divorce. My commissions are paid quarterly so I pay the school and catch up on what I can with the child support each quarter.
My ex served a motion for summary judgment asking that instead of a trial, the judge just find me guilty, order me to pay all her legal fees and increase my support obligation. She scheduled a hearing four weeks out. Am I going to lose before even going to trial?
Summary judgment is a process where the court can make a ruling in a case instead of going through a contested trial. It is only applicable when there are no material facts in dispute if viewed in a light most favorable to the defendant. So, your ex is well within her right to file for summary judgment in connection with the modification.
The contempt is altogether different. If your ex can prove that you willfully violated a clear and unequivocal order, you may be in contempt. However, it sounds like the “willful” part is missing. If you do not have the present ability to pay, you did not willfully violate the order. In other words, your ability to pay is a material fact in dispute, which means summary judgment cannot be used. If the facts are viewed in a light most favorable to you and you cannot pay, her motion would fail.
Summary judgment is a highly technical process. The rules in the Probate and Family Court are different from the rule used in other civil courts. Many lawyers don’t know that. I suspect because a hearing has been scheduled on the motion, your ex or her lawyer are operating under the rules of civil procedure generally and not those tailored to family court.
If you want to try to respond substantively, you should google “MA Probate and Family Court summary judgment rules.” This will take you to rule 27C, which gives particulars of filing the motion, the opposition and how to get a hearing. Because of the technical nature, it may be worth hiring an attorney even for the limited purpose of opposing the motion, at which point s/he can seek fees because of the improper filing in the first place.
