by Rachel Biscardi
On January 9, 2020, the state’s highest court, the Supreme Judicial Court (SJC), held oral arguments in the case of the Department of Revenue (DOR) v. Grullon to determine whether a defendant facing incarceration in a civil contempt case has a right to a court appointed attorney under the federal and/or state constitutions. Most people understand, from popular media, that defendants have a right to counsel in criminal matters because of the possibility of jail and the accompanying loss of liberty. What happens in civil cases, such as family law matters, where the court can also deprive a litigant of the same constitutionally protected loss of liberty?
The facts of Grullon demonstrate the dangers defendants face when they are not represented by counsel. After Mr. Grullon’s divorce, the court ordered him to pay child support through DOR. When he failed to pay, DOR filed a complaint for contempt against him. Mr. Grullon, working with Veterans Legal Services, filed all the necessary paperwork to respond to the complaint and requested a modification seeking a reduction in child support. However, on the day of the hearing, Mr. Grullon represented himself against DOR. The hearing lasted only eight minutes, but by the end of the hearing, Mr. Grullon found himself ordered to spend ten days in jail. Mr. Grullon had made two mistakes before the court that a competent, experienced lawyer would never have made.
First, Mr. Grullon did not know the law: the court must find that he had the ability to pay child support before finding him in contempt. SeeSalvensonv.Salvenson, 370 Mass. 608 (1976); Larsonv.Larson, 28 Mass.App.Ct. 338 (1990). The legal standard for child support contempt is fairly straightforward: the order must be clear, and the child support payor must have the ability to pay child support at the time of the contempt hearing. See id.The transcript indicates that almost no time was spent discussing whether Mr. Grullon had the ability to pay the child support order. Had Mr. Grullon hired an attorney, the lawyer would have argued that Mr. Grullon was a veteran, received veteran’s benefits, and could not afford the child support amount. The lawyer would have corrected the DOR attorney who implied that Mr. Grullon had the ability to pay, despite the evidence to the contrary on his financial statement. A lawyer would have argued that Mr. Grullon’s earlier filing of a modification seeking a lower child support order also evidenced his inability to pay the current child support order.
Second, Mr. Grullon did not communicate appropriately with the court. Mr. Grullon attempted to tell the judge that the child was receiving veteran’s benefits, but he failed to express himself clearly. The judge, initially sympathetic to Mr. Grullon, misunderstood him and presumed he was being flippant about his ex-wife’s need for child support. Mr. Grullon later admitted to the Court that he really “stepped in it”. It is hard to say whether his words, his tone, or maybe even facial expressions made the judge angry, but the judge’s next act was to order Mr. Grullon’s incarceration. With as many as fifty motions before the court each day every second counts, and Grullon shows how quickly a judge can change their mind about a litigant. Through training and experience, lawyers know how to prioritize what the court needs to hear. More importantly, attorneys know how to stop clients from the accidental self-sabotage that could lead to jail time.
The United States Supreme Court has held that due process does not require a state to provide counsel to unrepresented child support payors if the state, through alternative procedures, can fairly determine the “crucial incarceration-related question of whether the supporting parent is able to comply with the child support order.” Turner v. Rogers, 131 S.Ct. 2507 (2011). The SJC must now decide whether the court violated Mr. Grullon’s due process rights by not providing him with counsel. Their decision will determine whether civil courts must provide counsel to a civil defendant at a hearing where incarceration is possible, and if so, is that right to counsel limited to cases where the government is a party, a situation in which its cadre of experienced attorneys creates a significant power imbalance against the unrepresented individual defendant.
If the SJC finds that a right to counsel only exists in cases involving the government as a party, a large percentage of child support payors will continue to be unrepresented, and will continue to make the same mistakes Mr. Grullon made, leading to their incarceration. It may be that the courts will have to take a more proactive role in ascertaining information about the defendant’s ability to pay, forcing judges closer to abdicating their role as neutral fact finders in order to make the case for the child support payor.
Regardless of the outcome, DOR v Grullon has alerted the general public to the possibility of incarceration in civil matters and not just in criminal cases. Hopefully, this case will also serve as a reminder that lawyers, as protectors of the constitution, need to be appointed in cases where a fundamental right is at stake.
We invite you to contact PiltserCowan Law at 617-749-2353 with any questions you have about family law, custody, child support, or the Grullon case.