#77, Drano Series
Answer to Complaint for
Contempt for NOT Paying
Child Support
When You Had NO Custody or Visitation
COMMONWEALTH OF MASSACHUSETTSPLYMOUTH, SS. PROBATE & FAMILY COURT
CIVIL NO. 91-D-xxxxx-------------------------------------------------
Lynda
Plaintiff and
Defendant-in-Counterclaimv.
Paul
Defendant and
Plaintiff-in-Counterclaim
-------------------------------------------------ANSWER TO LYNDA'S COMPLAINT FOR CONTEMPT DATED 5/14/02
AND DEFENSESDefendant and Plaintiff-in-Counterclaim Paul hereby answers the Complaint by Plaintiff and Defendant-in-Counterclaim Lynda and expressly reserves all rights to seek relief or rely upon additional defenses to the allegations in the complaint by appropriate motion. Paul by his attorney answers each numbered paragraph of the complaint as follows:
1. Paul alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations as to the current residential or mailing address of Lynda, and calls upon Lynda to prove the same.
2. Paul calls upon Lynda to prove that the order1 of 28 January 1994 cited in paragraph 2 of the Complaint for Contempt is still a lawful order -- i.e., that the court-appointed Settlement Agreement is neither void nor void ab initio -- as regards the issue of support.
1Paul's present counsel has not yet seen the Settlement Agreement referred to in the Complaint as "the order." It is not yet known whether that Settlement Agreement was merged into the judgment or survived the divorce judgment and became an independent enforceable contract and retain independent legal significance. DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231 (1987).
Bracci v. Chiccarelli, 53 Mass.App.Ct. 318 (2001). The Complaint for Contempt did not have the Settlement Agreement or the relevant provisions of the Agreement attached to it.NOTE: The file was unavailable.
3. Paul denies so much of paragraph 3 which alleges that he is in violation of the order referenced in paragraph 2, for(a) the Settlement Agreement is a contract, which was executed by the parties and soon thereafter breached by Lynda. As soon as Lynda breached it, Paul was thereafter, in accordance with well-settled law, under no obligation to perform under it. Lafayette Place Associates v. Boston Redevelopment Authority et al, 427 Mass. 509, 519-520 (1998), citing Leigh v. Rule, 331 Mass. 664, 668 (1954) and other cases gathered there; 4. Although Paragraph 4 is Lynda's prayer and need not be answered, Paul states, however,(b) Lynda was to fulfill a condition precedent, so that Paul could have visitation with his sons, and failed to do so, and therefore breached the contract and thereby not only relieving Paul of any financial obligations to Lynda but also failing to perfect any rights she might have had under the Settlement Agreement. Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers, 411 Mass. 39, 45 (1991) ("A condition precedent defines an event which must occur before a contract becomes effective or before an obligation to perform arises under the contract"). "If the condition is not fulfilled, the contract, or the obligations attached to the condition, may not be enforced. Id., citing 5 S. Williston, Contracts sec. 663 (3d ed. 1961 & Supp. 1990); Restatement (Second) of Contracts sec. 225 (12981). Cf. Ng Brothers Const., Inc. v. Cranney, 436 Mass. 638, 2002 WL 750869 *2 (2002); Nile v. Nile, 432 Mass. 390, 401 (2000) ("settlement agreement had as a condition precedent the approval of a Massachusetts probate judge").
(c) to seek equity, Lynda must come in with clean hands, and she has long since the date of the parties' Settlement Agreement violated that order not only on a continual basis but on a continuous basis. Fidelity Management & Research Co. v. Ostrander, 40 Mass.App.Ct. 195, 201 (1996):
"`[S]he who comes into equity must come with clean hands'.... [T]hus 'the doors of equity' are closed 'to one tainted with inequitableness or bad faith relative to the matter in which [s]he seeks relief, however improper may have been the behavior of the' other party." United States v. Perez-Torres, 15 F.3d 403, 407 (5th Cir.1994), quoting from Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814 (1945). "[W]hile 'equity does not demand that its suitors shall have led blameless lives' ... as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue." Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. at 814-815.
(d) to seek equity, there must be no direct connection between the couple's problems or the way Lynda handled them and her claim for specific enforcement of the Settlement Agreement. "In order to deny relief to a party because of inequitable conduct, the conduct at issue must directly affect the claim being brought." Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 156 (1993) (internal cite omitted). In the instant case, the alleged inequitable conduct does, indeed, directly affect Lynda's claim for specific performance [Id.];(e) to seek equity, a plaintiff with unclean hands must not have caused harm to the defendant. Lima v. Lima, 30 Mass.App.Ct. 479, 486 (1991). In the instant case, Paul has, indeed, been harmed by Lynda's unclean acts;
(f) to seek equity, Lynda wants to benefit by her own turpitude. Edinburg v. Edinburg, 22 Mass.App.Ct. 199, 208 (1986) ("our conclusion is fortified by the principle that a court or equity will not look kindly on one who seeks to benefit be his own turpitude");
(g) to be in violation of the order of 28 January 1994, the order must be clear and unequivocal and in the context of this case, the relevant part of the order is not clear and unequivocal.
(a) that Lynda is not entitled to a judgment of contempt or to an order for payment of alleged arrearages, given that Lynda refused to take the children to counseling -- one of the provisions prior to providing visitation to Paul -- refused to allow him to visit with the children, and alienated their affection for him; (b) that "[t]he Guidelines are based on traditional custody and visitation arrangements." Child Support Guidelines, II(D)(1),
(c) that therefore, Paul was justified in not paying child support since 10 October 2000 -- and, of course, during the time he was unlawfully incarcerated for 193 days in 1994-95 for an alleged violation of a 209A order as a result of third-party contact: his mother was dying of cancer and Paul was trying to let Lynda know through her sister that his mother wanted to see her grandchildren before she died. He was brought to his mother's wake in ankle chains.
PART II: DEFENSES FIRST AFFIRMATIVE DEFENSE
5. Lynda's complaint in contempt must fail because she who seeks equity must come with clean hands, as under the doctrine of unclean hands.
SECOND AFFIRMATIVE DEFENSE
6. Lynda's complaint in contempt must fail for failure to state a claim upon which relief may be granted. Mass.R.Civ.P. 12(b)(6).
THIRD AFFIRMATIVE DEFENSE
7. Lynda is barred by estoppel from recovering on any theory of law.
FOURTH AFFIRMATIVE DEFENSE
8. Because of the fraudulent acts of Lynda, she is barred from recovery.
FIFTH AFFIRMATIVE DEFENSE
9. Paul was justified in his acts and conduct, and is therefore not liable to Lynda as alleged in its complaint.
SIXTH AFFIRMATIVE DEFENSE
10. Lynda's claims against Paul are wholly insubstantial, frivolous, and not advanced in good faith, and are therefore in violation of section 6F of chapter 231 of the Massachusetts General Laws.
SEVENTH AFFIRMATIVE DEFENSE
11. The Settlement Agreement that was approved by the court should not have been approved absent any provision which provided what Paul's obligation(s) would be in the event of breach by Lynda.
EiGHTTH AFFIRMATIVE DEFENSE
12. Where Lynda did not fulfill the condition precedent of the Settlement Agreement, the obligations of Paul attached to the condition may not be enforced. Id., citing 5 S. Williston, Contracts sec. 663 (3d ed. 1961 & Supp. 1990); Restatement (Second) of Contracts sec. 225 (12981).
NINTH AFFIRMATIVE DEFENSE
13. The condition precedent provided the legal basis which had to be satisfied before the Child Support Guidelines could be lawfully applied.
TENTH AFFIRMATIVE DEFENSE
14. Paul hereby gives notice that he intends to rely upon such other and further defenses as may become available or apparent during trial in this action, and hereby reserves the right to amend his Answer and to assert any such defense by appropriate motion.
PART III: COUNTERCLAIMS
Paul in the above-entitled action hereby asserts the following claims as counterclaims against Lynda in the above-entitled action: (1) unjust enrichment, (2) violation of M.G.L. c. 231, sec. 6F, (3) reserved.
COUNT 1. UNJUST ENRICHMENT
COUNT 2. VIOLATION OF M.G.L. c. 231, sec. 6F
1 July 2002 Barbara C. Johnson, Esq.Respectfully submitted,.
DEFENDANT PAUL xxxxx,
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833