Decisions of the MA Appeals Court Pursuant to Rule 1:28

Summaries by:
Brian J. McLaughlin, Jr., Esq.
Jordana Kershner, Esq.
Wendy O. Hickey, Esq; and
Jessica D. Whittaker, Esq.

November 2013 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Adoption of Salvio

13-P-148

Mother appeals from the determination of a Juvenile Court Judge which terminated her parental rights and denied her a post adoption visitation order. The mother contended that the judge had erred by finding her unfit without clear and convincing evidence.

The Appeals Court, relying on Adoption of Ilona, 459 Mass. 53, 59 (2011), reasoned that the decision to terminate parental rights involved a two-step analysis: whether the parent is unfit by clear and convincing evidence and whether termination of parental rights is in the best interest of the child.

The Appeals Court affirmed the judgment; holding that the Juvenile Court Judge’s decision was properly supported by clear and convincing evidence, namely, dysfunctional relationships and alcohol abuse. While mother argued that her successful completion of a domestic violence education course and distance from child’s abusive father was salient to the judge’s determination. Given multiple abusive relationships (at least three) the Court did not consider it dispositive.

The Juvenile Court was also not swayed by Mother’s argument that there was an insufficient nexus between her alcoholism and her ability to care for the child and that the evidence was stale. Mother had been reported to have been drinking recently and also was unable to produce AA logs to her social worker.

Mother finally contends that given the Juvenile Court Judge’s finding that continued contact was in the best interest of the child. Denial of her post adoption visitation was an abuse of discretion. The Appeals Court disagreed relying on Adoption of Illona. Once a judge has decided that visitation would be in the best interest of the child they must still determine whether such visitation is warranted. Id. at 64. Given the child’s bonding with the post adoptive family for 2 years and conferences with that family, it was within the Judge’s discretion to deny the visitation order.

 

Susan Meloa v. Mark Meloa

13-P-86

 

Wife appeals from a judgment of the Probate and Family Court that removed physical custody of the children from Wife and also suspended Father’s child support obligations. On April 17, 2009 a judgment of divorce nisi was entered which awarded physical custody of the children to the wife, ordered joint legal custody of the minor children, and awarded weekly child support to the wife.

In 2011 Wife filed a complaint for modification seeking increased child support. Husband counterclaimed for full physical custody and a suspension of his child support payments. Upon a hearing which wife did not attend Husband was granted full physical custody and a suspension of the support order. The case was again put on the trial list upon wife’s argument that she had not received notice of the hearing. At the next hearing wife’s attorney made a motion to withdraw and also requested a continuance so that wife could retain new counsel. Husband’s attorney objected to the continuance.

The trial judge made the following statement: “"we'll do this hopefully before one o'clock, but if not at two o'clock" and to "[c]heck back, my clerk tells me maybe within an hour we can get going." At 2 the case was called but by that time the wife had left. The Trial court then continued the proceedings in her absence and granted husband’s initial request.

The Appeals Court reversed, holding that all litigants have a right to be heard on the merits. Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 187 (2010). The Appeals Court concluded that while certainly intelligible to an Attorney, the Judge’s instruction lacked specificity that may have confused a pro se litigant.

The Appeals Court also held that the judge had not made sufficient findings due to a change in circumstances and best interest of the child as required by MGL 208 sec 28.  Corte v. Ramirez, 81 Mass. App. Ct. 906, 908 (2010). As a result, they reversed the order and remanded the case.

Adoption of Piers

13-P-430

 Father appeals from decrees of the Juvenile Court terminating his parental rights and accepting the permanent placement plan proposed by the department of children and families. Father argued that the DCF did not meet its burden of showing a change in circumstances in order to proceed with a redetermination hearing, the judge abused her discretion when she approved the permanency plan and it was error for the judge to order the termination of parental rights because it was not likely the children would be adopted.

On March of 2009 Piers and Adam (6,8) were removed from their mother’s case and placed into temporary custody of DCF. In April the mother waived her rights to a custody hearing and the children have been with DCF ever since. In 2011 before the determination of parental unfitness the father appeared before the court telephonically calling from a Florida Correctional facility. While his parental rights were not terminated, the father did stipulate to a finding of unavailability and an adjudication of unfitness with permanent custody of the child going to DCF.

The children in question have been placed for two years with a stable foster family that has taken significant training in order to deal with each child’s extensive special needs. The foster family had indicated they would be willing to care for each child indefinitely. However, the cost of caring for the children is probably prohibitive.

The father has a lengthy criminal history in both Massachusetts and Florida and had been serving a seven year sentence in Florida for arson and aggravated assault.  In 2011, the DCF contacted him and created a service plan. Although the father testified that he had completed the 10 week parenting classes he failed to submit any proof and the judge found that he had failed to comply with the department’s service plan. Father was also unaware of his children’s medical condition and testified unconvincingly that he had sent “money and stuff” to the children as support during the period of his incarceration. At the conclusion of the hearing, the judge found that DCF placement plan was in the best interest of the child and terminating the father’s parental rights.

            The Appeals Court affirmed and first held that father had waived his ability to object to the redetermination hearing because it had not been raised before the trial judge. Father’s contention that DCF did not demonstrate by clear and conniving evidence that the parent remains unfit was without merit. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810 (2006). The Appeals Court held further that the trial judge had not abused her discretion when she took into account his various criminal convictions in terminating father’s parental rights.

Finally, the Appeals Court held that the trial judge had properly considered the placement plan in light of the stability of the existing living situation. Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). Both children expressed a desire to remain with their foster family and both were having greater success in school.

Kimberly K. Robins vs. Michale J Zero

12-P-1880

Kimberly Robins appeals from a judgment of the Probate and Family Court that ordered Michael J. Zero to pay child support in the amount of $335 per week, retroactive to May 21, 2011. Robins also appeals from an order that denied her motion for reconsideration.

The Appeals Court first noted that the relevant standard in reviewing a judge’s decision in respect to support orders and a motion for reconsideration is abuse of discretion, relying on Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). During the hearing Ms. Robins had attempted to impeach Mr. Zero’s current wife as a biased witness based on her status as his wife and business partner. The trial court found that Mr. Zero was merely an employee of Stadium Oil (the business in question), and his new wife owned all the interests separately.

The Appeals court affirmed the judgment and held that the trial judge had carefully considered Robin’s position and determined that the father did not have a financial interest in the company in question. Zero filed W-2s and had no stock in the company.

Finally, the Appeals court distinguished the case from, Kane v. Kane, 13 Mass. App. Ct. 557, 558-559 (1982). In Kane findings strongly supported the conclusion that, despite a lack of a formal ownership; the husband, who skimmed cash from the gross daily receipts still had income properly the subject of an alimony and child support order.

Julie A Adams vs. Paul O. Pisecco

12-P-714

Pisecco appeals from a 209A order entered in October 2011. He contends that after entering a finding that Adams had not satisfied her burden with respect to demonstrating abuse the trial judge abused her discretion by entering the extension order notwithstanding.

At the original 209A hearing Adam’s alleged that Pisecco had been verbally abusive and possessive throughout their marriage of five years. At issue were two specific incidents that involved a heated argument between Adam’s and Pisecco. On neither occasion was Adams struck by Pisecco.

At the continuation hearing the trial judge said the following: “Well, from the glimpse into their relationship, I have a sense of the dynamic that I've been introduced to. I don't believe that it rises to the level of reasonable fear of serious imminent harm.” Relying on Corrado v. Hedrick, 65 Mass. App. Ct. 477, 482-483 (2006), the Appeals Court held that the finding of reasonable fear of serious imminent harm was a sine qua non necessary to establishing a 209A protective order.

The Appeals Court reversed the trial judge’s order stating, “a 209A restraining order should not issue simply because it seems to be a good idea. Maintaining in place a c. 209A order is not a permissible remedy when abuse has not been proven.”

A.N vs. Department of Children and Families

13-P-210

Father appeals from a determination by DCF that allegations of abuse and neglect were supported.

In 2008 a mandated reporter contacted DCF and informed them that father was physically abusing his 14 year old son there was also a related report of neglect. DCF commenced a 51B investigation. After its investigation the DCF concluded that the allegation of abuse was supported. This was appealed by father to a trial court.

Father did not contest the factual allegations surrounding the finding. Rather he argued that he had a constitutional right to corporeally punish his son and arguments with his wife were not sufficient grounds to sustain a finding of neglect.

The Appeals Court affirmed the lower Court’s ruling and held that, “A finding of abuse is supported if the department has the requisite reasonable cause to believe that the parent's discipline created a substantial risk of physical injury. See Cobble v. Commissioner of Dept. of Social Servs, 430 Mass. 385, 393, 395 (1990). While nonviolent and controlling discipline did not support a finding of abuse in Cobble, in the instant case, the hearing officer found that father’s striking his son with an object, anger management issues, and ongoing conflict in the house was going to affect the development of the children. These circumstances were legally sufficient to warrant the finding by the hearing officer of father’s inability to provide minimal adequate care with respect to their safety and emotion development. 

 

 

 

Guardianship of Vasily

12-P-1856

Father applied for termination of guardianship of family friends that had originally been appointed after death of the mother and father’s incarceration in 2005. In 2009 father filed a petition for termination of the guardianship. At trial the father argued that the permanent guardians were abusive and neglectful. The judge rejected these assertions based on the father’s perceived lack of creditability and denied the petition for removal of fiduciary and appointment of successor.

The Appeals Court affirmed the ruling of the trial judge, holding that, “to remove a guardian of a minor, a petitioner must show that removal of the guardian would be in the child's best interest. G. L. c. 190B, § 5-212(a). See, e.g., Guardianship of Yushiko, 50 Mass. App. Ct. 157, 159 (2000).” Since father’s appeal did not address, this issue nor the issue of stability it was without merit. The Appeals Court also held that the judge did not commit error or abuse of discretion when he refused to admit a transcribed phone conversation as hearsay.

R.F. vs. N.F.

13-P-20

Defendant appeals from a two year extension of a 209A abuse prevention order issued by the Boston Municipal Court.  Plaintiff’s mother (Defendant) asserted substantive error in granting the order and also improper venue.

After litigation concerning parties minor child in March, 2012; in which a GAL recommended that for at least 2 years there be no contact between father and his child. A Probate and Family Court judge denied father’s petition for visitation. During May of the same year, father approached his child at a baseball game and offered him a ride home. Mother sought a 209A order to prevent any further contact. The defendant objected to venue due to location and a TRO was granted pending the case being reassigned to Boston Municipal Court.

The Appeals Court affirmed the judgment but modified the length of the extension to one year consistent with M.G.L 209A, section 3(c). “On the record before us, we cannot say that the Boston Municipal Court judge applied an incorrect legal standard or improperly found the minor child reasonably feared imminent serious physical harm, or that the order entered under c. 209A was not necessary. We remand the matter to the Boston Municipal Court with instructions that the order entered on June 28, 2012, be modified to terminate one year from that date, subject to possible renewal or extension on application.

Adoption of Thayer et al.

13-P-63

This case involves the welfare of two boys (8 and 9). A Juvenile Court judge issued decrees that found the two children in need of care and protection, found their mother unfit, granted permanent custody to the Department of Children and Families, and terminated the mother's parental rights. Mother appealed.

Mother appealed the judge’s reliance on her drug use as clear and convincing evidence that she was unfit and gave insufficient weight to her testimony that she had been clean by the time of trial. Mother had refused to participate in several drug screens and had failed others.

Mother also argued that per, Adoption of Katharine, 42 Mass. App. Ct. 25 (1997), the adjudication of unfitness should not stand based on her drug use. The Appeals Court disagreed and affirmed the lower court’s ruling, holding that while in Adoption of Katherine, the determination of unfitness was overturned due to sole reliance on drug use this was due partly to the lack of abuse or other evidence concerning the children’s being impacted. In the instant case, there was ample evidence for the judge to conclude that the children were neglected. The Court also agreed with DCF that at least some of the evidence of neglect or abuse could be tied to mother’s drug use. The trial judge also made findings related to mother’s lifestyle and repeated instances of domestic violence that weighed on its decision that mother was an unfit parent.

The Appeals Court then turned to both the post termination visitation and the termination of parental rights. Relying on Adoption of Nancy, 443 Mass. 512, 517 (2005), they held that while it is true that an adjudication of unfitness does not necessarily lead to termination of parental rights in this case it was in the best interest of the child given the need for stability (she had lived in 15 different places) and the presence of a potential adoptive parent.

In the case of the second child who did not have a foster family prepared to adopt him, the Appeals Court relied on Adoption of Nancy and held that DCF not having a foster family is not necessary to terminate parental rights.

Finally, there was no error in the post termination of visitation because the judge had in fact ordered DCF to provide visitation if it was in the children’s best interest. What mother effectively sought was protection from a future negative determination.

Adoption of Willis

13-P-228

Mother appeals from a decree of the Juvenile Court finding her unfit. Mother argues that there was insufficient evidence to sustain such a finding.

The Appeals Court, relying on Adoption of Quentin, 424 Mass. 882, 886 (1997) and Custody of Eleanor, 414 Mass. 795, 799 (1993), first stated that a judge must make specific detailed findings related to unfitness. The findings must then by clear and convincing evidence prove that the parent in question is unfit.

The judge in the case before the Appeals Court made myriad specific findings related to unfitness including but not limited to: poor abusive relationships, frequent moves, improper care, and fragile psychology (depression PTSD etc.). There was no error and the Appeals Court affirmed.

Richard Grey vs. Carol Grey

12-P-1947

Mother Carol Grey appeals from an order of the Probate and Family Court awarding the children of her deceased husband’s previous marriage, escrowed tax refunds from his estate and attorney’s fees.

In April 2003, a will compromise petition was stipulated too. In 2009 the Children filed an equity complaint following the party’s failure to enter a distribution agreement. There was approximately 600,000 USD in the account and the judge properly concluded that it was an issue for summary judgment.

The Appeals Court affirmed the lower Court’s ruling. They first noted that the agreements in question should be treated as integrated with the Will relying on  Stern v. Stern, 330 Mass. 312, 317 (1953). The settlement documents do not specifically reference tax refunds. Only the estate administration agreement referenced them:

"In the event that the estate taxes . . . are subsequently adjusted from the amount calculated on the amended estate tax return . . . then any increase or decrease therein shall be to the benefit or detriment of the Children and be borne by them from the Children's Share hereunder and not from Carol's share."

The Appeals court reasoned that this was unambiguous and overrode any residual clause. Turning to the question of the award of attorney’s fees the Appeals court relied on Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933) and concluded that they were both reasonable and not an abuse of judicial discretion.

 

Rosemary Palumbo vs. Sal Palumbo

12-P-1870

Plaintiff appeals from a judge denying her Abuse Prevention Order extension which she had previously obtained ex parte after hearing nine hours of testimony, from three police officers on the part of the plaintiff.

The Appeals Court, relying on Iamele v. Asselin, 444 Mass. 734, (2005), identified that the relevant standard is imminent serious harm. However, due to the lack of any specific findings on whether there was imminent serious harm. The Appeals Court reversed and remanded. They also indicated that comments that the trial judge made to the litigants to attempt to work it out amicably were inappropriate in the context of a restraining order.

 

Adoption of Ursa

12-P-1614

Father challenges a decree of unfitness and the approval of a DCF parenting plan. In particular, the Father argues that the judge’s findings were improperly influenced by a past tainted criminal conviction, the key findings under the fitness analysis were clearly erroneous, and a single justice of the Appeals Court abused her discretion by denying the motion to stay the Appeal.

At the time of child’s birth in September, 2009 the mother was 18 and lived with her father. The Father of the child was incarcerated at various times during this period. In November of 2009 a 51A report was filed with DCF alleging neglect by the child’s father. The underlying incident involved an ADW as the father was out for a walk with the child in a stroller.

During the remainder of the year at least six new supported 51A reports were filed involving malicious destruction of property, abuse of the child, and violation of existing Abuse Prevention Orders. Since the petition was filed Ursa has remained in DCF custody.

Due to a stint in jail due to a drug distribution charge the trial judge concluded that both parents were not sufficiently available for it to be in the best interest of the child and found them to be unfit. However, father’s criminal conviction was vacated on appeal. He filed a motion for reconsideration.

The judge held that the vacating of one of multiple criminal convictions, given the physical abuse of the child, exposing the child to violent confrontations etc. was not sufficient to change the analysis of unfitness.

The Appeals Court affirmed relying on Adoption of Nancy, 443 Mass. 512, 515 (2005). If the unfitness had be grounded solely in his vacated drug conviction that may have substantially shifted the analysis. However, the detailed findings entered by the trial judge on both the first and second occasion indicated clearly that the determination of unfitness was based on significantly more than one criminal charge.

Finally, The Court held that there was no error in denying his motion to stay. The judge had discretion and even if there had been error, the second ordered review accomplished exactly the same thing by remanding for a second hearing. Thus, there was no prejudice.

 

Philip Kahn v. Jana Kahn

13-P-429

 

Father appeals the modification of Father’s child support judgment and alimony.

            Father claimed that his alimony judgment should be reduced to zero retroactively by reason of the “new alimony laws.” Under G. L. c. 208, § 53(c)(2) [modified in March 2013 by Mass Gen Laws Chapter 124 section 3] Child Support must be deducted from any alimony award. Because the trial Judge used his full income rather than the income modified by the Child Support order the Appeals Court vacated the Alimony judgment and remanded for further proceedings consistent with the new statute.

December 2013 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Casey v. Casey

 12-P-1940 (December 2, 2013)

            After more than thirty years of marriage, the parties divorced in 2003.  Their separation agreement, which did not merge into the judgment of divorce, but survived as a contract with independent legal significance to be forever binding, provided that the former husband would maintain and pay for the former wife’s health and dental insurance.  This provision made no reference to retirement.  Five years later, in 2008, at sixty-two years of age, the former husband voluntarily retired.  The former wife filed three complaints for contempt regarding the former husband’s failure to pay her health and dental insurance.  The first such contempt was filed in September 2007, the second in June 2011, and the third, which was consolidated with the former husband’s complaint for modification that is the subject of his appeal, was filed in December 2011.  In his complaint for modification, the former husband alleged that he could not afford to pay the $439.81 monthly cost of the former wife’s health and dental insurance now that he was retired and had a monthly income of only $3,862.  He also alleged that because he had not been represented by counsel in the divorce, he had not understood the legal significance of the survival language in the separation agreement, which had been drafted by the former’s wife’s counsel, or that his obligation in connection with her health and dental insurance would continue after they both reached age sixty-five and retired.  Finally, he alleged that he had been coerced into signing the separation agreement by the former wife’s threat to reveal certain adverse information about him to his employer.

            Finding that, pursuant to Massachusetts Rule of Domestic Relations Procedure 56(h), there were no genuine issue as to any material fact and that the former wife was entitled to judgment as a matter of law, the trial court granted the former wife’s motion for summary judgment and dismissed the former husband’s complaint for modification.  In this resulting appeal by the former husband, the Appeals Court affirmed, holding that where a separation agreement survives, it is not sufficient to show a material change of circumstances, there must be countervailing equities, such as that one spouse is or will become a public charge.  The Appeals Court held that the former husband had failed to show any such countervailing equities: it was his choice to not be represented by counsel in the divorce; his argument that the separation agreement was not fair and reasonable must fail because he had previously acknowledged that it was and, in any event, such a challenge was untimely having been brought eight years after the divorce; and the facts were insufficient to support a finding of coercion.  

 

Creedon v. Haynes,

12-P-1934 (December 4, 2013)

            Former wife appealed from the trial court’s denial of her motion for relief from judgment.  The Appeals Court affirmed, holding that she had failed to demonstrate that the trial court erred in concluding that the disability portion of her former husband’s pension did not accrue during the marriage within the meaning of their separation agreement or that the trial court abused its discretion in its determination of the amount she was required to pay pursuant to their separation agreement.

Roman v. Gonzalez,

12-P-1809 (December 6, 2013)

            On motion from appellee, the trial court issued an order prohibiting appellant from filing any additional pleadings unless first screened by a judicial case manager, who would confer with the judge.  The order was issued by margin endorsement and did not specify what pleadings or proceedings were to be covered by the order.  Although such orders are within the court’s discretion in appropriate circumstances, because of this ambiguity, that could, for example, be interpreted to apply to responsive pleadings, the order is vacated, but without prejudice as to a new order, if appropriate, with a clearly defined scope.  The parties’ respective motions for attorneys’ fees were denied.

January 2014 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Silva v. Silva,

SJC-11560, slip op. (January 10, 2014)

            During the pendency of their divorce action, the husband filed a complaint for contempt alleging that the wife disobeyed a visitation order.  After the wife was found not guilty of contempt by the trial court, the husband filed an appeal with the Supreme Judicial Court pursuant to M.G.L. Chapter 211, Section 3 (regarding the Supreme Judicial Court’s superintendence over inferior courts and power to issue writs and process.)  A single justice denied his appeal without a hearing and the husband appealed to the full court.  The full court affirmed the denial of the husband’s request for relief, holding that the extraordinary relief permitted by M.G.L. Chapter 211, Section 3 was not available to him because the alleged error could adequately and effectively be remedied through the normal appellate process.

Acquoi  v. Acquoi,

12-P-1816 (January 17, 2014)

            The husband appealed from the denial by a single justice of the Appeals Court, upon reconsideration, of his motion to file a late notice of appeal.  In August 2011, the wife filed for divorce and petitions for guardianship of the husband’s two biological children.  In December 2011, the trial court appointed the wife as guardian for each child and in March 2012 judgment nisi entered in the parties’ divorce.  The father did not appeal either judgment, but in June 2012 filed a motion to vacate the judgment of divorce, which was denied a few days later.  In September 2012, the husband, now represented by counsel, filed a motion with a single justice of the Appeals Court to enlarge the time for filing a notice of appeal as to the divorce and guardianships.  His motion was denied.  The husband filed a motion to reconsider with the single justice, who allowed the motion to reconsider, but denied relief.  In the instant appeal, again to a single justice, the husband argued that his time for filing should be enlarged because he was pro se in the trial court and unfamiliar with the American judicial system.  Husband’s argument was rejected.  It is well established that pro se litigants are bound by the same rules, requirements, and standards as parties represented by counsel.  The Appeals Court also found that husband’s motion must fail because he failed to present a meritorious issue on appeal; there was no indication that the judge misapplied the statutory standard in awarding guardianship to the wife.

Prevost v. Cutone,

13-P-400 (January 24, 2014)

            Wife unsuccessfully appealed from judgment of divorce denying her request to remove the parties’ minor child to Canada.  The wife also asserted that the judgment required her to live in Newton, Massachusetts, thus violating her constitutional rights, and that the judge abused his discretion in ordering a fixed duration for alimony and in the division of the marital estate.  The trial court applied the Yannas “real advantage test” to the wife’s request to remove the parties’ daughter to Canada, where both parties were citizens.  The daughter, who was nearly twelve at the time of the judgment, had special needs, having been diagnosed with pervasive developmental disorder and allergies to approximately twenty different foods.  Under step one of Yannas, the trial court found that there was no real advantage to be had by moving with the child to Canada because the wife’s mother would not be able to provide the type of support the wife anticipated, which had been the purported primary reason for the removal request.  The Appeals Court found this consideration proper and further held that there was no error in determining that removal was not in the best interests of the child because the quality of services available in Canada to meet the child’s special needs were lacking as compared to the services currently being provided in Massachusetts.  The wife’s asserted constitutional claim was based on the directive in the divorce judgment that the child “continue to attend the Newton public schools until further Order of this Court or prior written agreement of the parties.”  The Appeals Court held that because this provision was directly related to the award of joint legal custody, and that by contemplating that the parties might require a court order to resolve disagreements in the future, the judgment did not create an additional restriction on the wife’s ability to move within Massachusetts.  The Appeals Court also held that deviation from the statutory time limit for alimony in this short-term marriage was not warranted because of the wife’s education and experience, which permit her to earn an annual salary of $40,000. The trial court did not err in concluding that assets that the wife claimed were her premarital assets (a condominium unit and two bank accounts) were, in fact, joint, based on evidence at trial that they were, in part, funded by the husband.

Kasparian v. Kasparian,

11-P-1600 (January 27, 2014)

            The defendant husband brought an appeal following the denial of six motions he brought in connection with his divorce, sought to estop the plaintiff wife and court-appointed receiver, alleging that they abused the judicial process, and requested that the Appeals Court amend Massachusetts Rule of Civil Procedure 66 to increase the requirements for receivers.  The parties’ separation agreement, which was incorporated but not merged into the judgment of divorce dated August 3, 2004, appointed Gary L. Fialky as the receiver of marital assets.  The defendant subsequently filed six motions, five of which related to Fialky and his duties, and the sixth seeking reconsideration of a request for the transcript of a motion hearing.  Of the five motions relating to Fialky, the Appeals Court found that the trial court properly acted in its discretion in denying four of the motions and that the defendant had waived his argument on the fifth, and that the motion for reconsideration was also properly denied.  The Appeals Court rejected the defendant’s estoppel argument because it was not convinced that the plaintiff or Fialky had directly contradicted themselves or that there was a real risk of unfair advantage or detriment.  The Appeals Court rejected the defendant’s request to alter Massachusetts Rule of Civil Procedure 66 because it was not the proper forum for such a request.  The Appeals Court found that the defendant’s appeal was frivolous and wholly without merit and therefore allowed the plaintiff’s and Fialky’s requests for attorney’s fees and costs.

Schilder v. Hazelton,

12-P-1396 (January 28, 2014)

            Mother filed a complaint for modification, her third since the parties’ divorce in 2006, seeking sole custody of the children and support from the father.  The trial court dismissed the mother’s complaint for modification, finding that there was no material and substantial change in circumstances, but changed the parenting plan in connection with summer vacation and ordered child support to the father in the amount of $123.33 per week.  The trial court also awarded attorneys’ fees to the father. 

            The modification resulting from the mother’s first complaint for modification filed in 2007 established that the parties would first consult a parenting coordinator, and then seek mediation, prior to initiating litigation.  The present modification judgment incorporated a stipulation selecting Dr. Robert Zibell as parenting coordinator; Dr. Zibell would be the fourth parenting coordinator.  The Appeals Court affirmed the portions of the judgment modifying the parenting plan, ordering child support for the father, and awarding attorneys’ fees, but remanded as to the parenting coordinator because it was undisputed at oral argument that the mother never signed, nor agreed to, the stipulation appointing Dr. Zibell.  Recognizing that there is no statutory authority for the appointment of a parenting coordinator, this portion of the judgment was remanded to give the parties and the trial judge a further opportunity to explore whether there could be an agreement over the appointment of a parenting coordinator.  The Appeals Court held that the trial court did not err in modifying the order in a manner contrary to that which the mother requested even when it did not find that there had been a substantial change in circumstances.  The Appeals Court found that there had been a substantial change in circumstances regarding summer vacation parenting: the current manner of determining summer visitation had proved unworkable.  Relying on Morales v. Morales, 464 Mass. 507 (2013), the Appeals Court affirmed the trial court’s modification of child support because the new amount, $123.33 per week to the father, reflected the amount to be paid under the guidelines, whereas the previous order, under which neither party paid any child support to the other, did not.

Bresler v. Bresler,

13-P-858 (January 29, 2014)

            Both parties appealed from judgments entered on a complaint for modification by the wife and complaints for contempt by each party.  The Appeals Court vacated and remanded all three judgments.  The trial court’s judgment on wife’s complaint for modification, seeking a change in child support, did not include written findings as to three of the statutorily directed topics (the amount of the child support order that would result from the application of the child support guidelines, that the guidelines would be unjust or inappropriate under the circumstances, and that departing from the guidelines is consistent with the best interests of the child) and the trial court’s commentary on the fourth statutorily directed topic (the specific circumstances that justify departure from the guidelines) was largely conclusory and therefore the judgment is deficient.  The judgments on each of the contempts are also devoid of findings of fact to support them and cannot stand.

Anderson v. Anderson,

13-P-163 (January 29, 2014)

            During the pendency of father’s complaint for modification, the parties stipulated to a parenting plan increasing the father’s parenting time.  In the modification judgment, the trial court reduced the father’s child support obligation from $417 per week, which was set by the parties’ separation agreement, to $370 per week.  On appeal, the father argued that this decrease was insufficient.  The Appeals Court was not persuaded.  The parties separation agreement clearly provided that so long as the mother had physical custody more than 50% of the time, the father shall pay child support of $417 per week.  Even with the modification to the parenting plan, the mother still had physical custody more than 50% of the time.  Because it is appropriate for the modification judgment to take into account the earlier, expressed desires of the party, Bercume v. Bercume, 428 Mass. 635 (1999), the trial court could have left the child support order alone, but there was no abuse of discretion in reducing it based upon the mother’s position in court that she was willing to accept an 11% reduction in child support.  It was also within the trial court’s discretion to give little or no weight to father’s unsupported assertion that sporadic contribution from the mother’s boyfriend (now husband) toward household expenses for himself and his three children should have been considered as part of the mother’s income.

Emmons v. Linn,

12-P-1099 (January 30, 2014)

            Former husband appealed from the denial of various motions by him under Massachusetts Rule of Domestic Relations Procedure 60(b) for relief from Probate and Family Court judgments related to his former wife, who was the original appellee, but who had died during the pendency of the appeal.  Her husband substituted her as personal representative of her estate.  The Appeals Court found that this was yet another attempt by the former husband to relitigate matters he previously challenged unsuccessfully and held that because his fraud claims are substantively inadequate, untimely, and barred by principles of res judicata, his appeal must fail.

Moore v. Thomas,

13-P-464 (January 31, 2014)

Mother appeals from judgment on complaint for modification awarding legal and physical custody of parties’ child to the father and dismissing her complaint for contempt.  Although the mother challenged, inter alia, aspects of the guardian ad litem (GAL) report, because she did not provide an adequate record in compliance with the rules of appellate procedure, review of all issues except the order for child support and the allegation of judicial bias were foreclosed.  The Appeals Court rejected the mother’s argument that because she spends less time with the child than the child support guidelines presume (one-third for the noncustodial parent), her support obligation should be lower, holding that that would be a basis for an increase, not a decrease, in the mother’s support obligation.  The Appeals Court found mother’s claim that the trial judge was biased against her was meritless and based only on his making rulings.

February 2014 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Brookes v. Brookes,

11-P-2156 (February 4, 2014)

 

            Wife appeals from further amended judgment of divorce arguing that the judge abused her discretion by not including Husband’s potential future restricted stock units (RSU’s) in the husband’s total employment income for purposes of determining child support and alimony.

            Wife is a physical therapist by education and training who is actively seeking re-employment after a period of time out of the workforce raising the parties’ four children.  Husband is an executive / attorney working in the biotech industry.  Husband’s compensation is made up of a base salary plus cash bonus and some amount of RSU’s which vest over a period of three years from the grant date.

            In dividing the assets, the court included all of the then granted RSU’s in the marital estate and ordered them divided equally, including those RSU’s which had not yet vested.  In fashioning the support order, despite the Husband acknowledging at trial that there could be additional alimony paid on a percentage basis of the future grants of RSU’s the court chose not to order additional support on account of such future grants.  The court based this decision on the fact that Wife had intentionally inflated her expenses and lifestyle during the divorce to a level above that which the parties enjoyed during the marriage.  As such, the child support and alimony calculated on husband’s base and bonus were sufficient to meet the wife’s actual needs.  Beyond that, wife was employable as a physical therapist and was actively seeking work.

            The judge did not abuse her discretion.

Creer v. Creer

13-P-117 (February 4, 2014)

            Wife argues the judge violated her due process rights by “misapplying” G.L. c. 119A, §13(a), and dismissing “over her objection, the enforcement action at law under the existing support order for the period 2003-2009 thereby forcing her to seek relief under the court’s general equity power” which relief was not granted.  However, the appeals court determined based on the comments of Wife’s counsel during opening statements that Wife was in agreement with the judge when the judge precluded her from seeking past college expenses under G.L. c. 119A, §13(a).  It was clear on appeal that there was no such objection.

            In the equity action, the judge concluded that the parties had a discussion about college at the time the issue arose.  As a result of those discussions, Husband was going to continue to pay full child support and wife was to work with the children on choosing a school and arrange financing.  The parties also set up a mechanism whereby if they could not agree on expense allocation for college, they would get help from the probation department before filing a complaint for modification.  Accordingly, the trial court concluded that Wife had an adequate remedy which she chose not to avail herself of.

            Because Wife could not raise claims in the appeal which differed from the claims raised below and because she had other remedies available to her at the time which she chose not to pursue, the trial judge’s decision in husband’s favor was affirmed.

Szewczyk v. Szewczyk

13-P-603 (February 5, 2014)

            This was an appeal from the denial of a Rule 60(a)&(b) motion.  Essentially Rule 60(a) did not apply as there was no clerical error in the judgment.  Husband’s motion was filed late so he was not entitled to relief under Rule 60(b).

            Even if Husband’s motion had been timely and was properly before the court, there was no indication in the record that husband’s due process rights were violated as he claimed and as such the judgment was not rendered void.

            See Szewczyk v. Szewczyk 12-P-1439, a companion case but not consolidated in the appeals court decided below.

Szewczyk v. Szewczyk

12-P-1439 (February 5, 2014)

            When the husband moved out of the marital home, there was no mortgage on the home.  The following day, Husband obtained an equity line of credit from a credit union in the amount of $58,438.45.  The parties stipulated to the value of the marital home at $310,000.  The judge, in dividing the assets, deducted the equity line from the value of the home and gave the asset to the wife at the net value of $251,562.

            Wife testified at trial that there was a mistake by the credit union and the equity loan was not properly recorded.  Husband argued that because it was not properly recorded the court was wrong in deducting the debt from the value of the home because the bank was not entitled to the money where they did not hold a valid lien.  Husband failed to cite any law in support of his position.

            Husband also appealed the court’s attributing $80,000 income to him when the parties stipulated he was capable of earning $72,112 per year which figure was based on his 2002 income as opposed to subsequent income earned between 2004-2006.  The court was not obligated to apply outdated data when there was more recent data available.

            Husband also appealed the child support order which the court ordered paid out of Husband’s share of the equity in the home.  There is adequate case law permitting the court to provide security for payment of child support in such circumstances.

            Judgment affirmed and wife was awarded double costs due to husband’s frivolous appeal.

Simpson v. Bonanni

12-P-1768 (February 5, 2014)

            The parties have one child who is severely autistic and a has been placed in full time institutional care at Melmark School the cost of which is shared equally by the parties.  The parties share the child’s weekends and school vacations equally such that they have a true 50/50 parenting plan when he is not at school.  The parties agreed to split the cost of the child’s health insurance and uninsured medicals which mother paid up front. 

            Mother spent money on the child for extras which the father did not including special devices that enable the child to communicate in some limited ways, special assistants to assist mother when the child is with her, classes to help educate the mother in the child’s needs and abilities, etc all to the tune of $825 per week. 

            After trial, the court ordered father to pay child support of $300 per week which was reduced from the $590 he had been paying prior to the child entering the Melmark School.  Father objects to the court not making the modification retroactive but the court’s failure to do so was not an abuse of discretion inasmuch as father did not initially split the cost of the Melmark school, nor did he agree to share uninsured medicals and health insurance at the outset.  The $300 per week order was a figure father was well able to afford, included father’s contribution to health insurance and went directly to benefiting the child even though the father chose not to make similar expenditures.

            Judgment affirmed.

Donaghey v. Donaghey

12-P-1911 (February 7, 2014)

            Former wife filed a complaint for modification seeking an increase in alimony and an increase in the amount of life insurance the former husband was obligated to carry.  Since the divorce, wife’s income has decreased which has necessitated her increasing her debt and lowering her assets while the former husband’s income has increased along with his assets while his debt was lowered. 

            After trial the court found that former wife had the need and former husband had the ability to increase alimony from $400 to $600 per week.  The court declined to increase the life insurance obligation as requested.  And the court ordered that alimony cut off when the former husband attained age 65 although neither party made such a request during the proceedings.

            While the wife complains that the alimony increase was insufficient because the court did not consider all of the mandatory factors or make adequate findings the appeals court disagreed and upheld the increase. 

            Wife further argued on appeal that the court should not have ordered the husband’s alimony obligation to terminate upon his possible retirement at 65 or thereafter.  The divorce judgment was silent on alimony termination.  Husband did not seek a termination date at 65 or retirement.  On the record, there is no way to determine the appropriateness of the termination order so that part of the judgment is vacated and remanded to the trial court.

Squires v. Squires

13-P-576 (February 12, 2014)

            Wife appeals from an order denying her post judgment motions to stay the judgment and for relief from judgment on the ground that the court should have sua sponte appointed a GAL to represent her interests during trial.

            Neither the wife’s current nor her former counsel requested the appointment of a GAL for wife during the proceedings.  Wife suffers from mental illness as found by the court.  She has a tendency not to take her prescribed medications which leads to an increase in her symptoms.  After trial, husband was awarded custody of the parties’ two minor children and the home was ordered sold with the proceeds divided equally.

            There is nothing in the record to indicate a finding that wife was incapacitated at the time of trial.

            Judgment affirmed.

Shepard v. Greene

12-P-1546 (February 13, 2014)

            Husband appeals from judgment of contempt for his failure to provide Wife with title documents to a vehicle.

            Husband argues that he believed the vehicle was leased and had no value to be divided at the time of the divorce despite the fact that Wife listed the vehicle on her financial statement with at stated value with a car loan against the equity.  Wife only discovered the title was in husband’s name when she went to trade in the vehicle at which time the dealership was offering her $15,000.

            The parties’ agreement required that each party sign and deliver necessary documents to the other in order to carry out the terms of the agreement.  Husband refused to sign the title over to wife unless she agreed to put $7,500 in escrow which she did in order to get the vehicle sold (it was having problems and she wanted it off her hands).

            Husband asserted that he could not be in contempt because he honestly and legitimately believed that the vehicle was leased and not owned and as such he could not be held to have wilfully or knowingly disobeyed a clear and unequivocal court order.  The trial judge found husband’s testimony not credible.  Husband was found guilty of contempt, ordered to return the $7,500 held in escrow and pay $5,000 in legal fees to wife’s counsel.

            Wife argued that husband’s appeal was frivolous.  The appeals court agreed and ordered Wife to submit a detailed affidavit of fees and provided husband 14 days to respond.

Monette v. Monette

13-P-79 (February 14, 2014)

            Husband appealed the divorce judgment arguing that the judge erred by finding that the parties agreed neither would pay child support, by ordering husband to pay the AMEX bill and by incorporating two distinct parenting plans into the divorce judgment.

            Leading up to trial, the parties entered into two separate stipulations for temporary orders.  In the first stipulation, they agreed to joint legal and physical custody of the children with an allocation for financial responsibility for the children and no child support order.  In the stipulation, Wife was to pay one credit card bill and the husband was to pay AMEX.  Some months later the initial parenting plan was amended to include holiday and vacation plans.

            Neither party raised custody or child support at trial.  The only issues tried were real estate holdings and moneys gifted by grandparents for the children’s education.

            During the trial the court asked each of the parties if they believed the terms they reached regarding their children were in the children’s best interest and both parties replied in the affirmative.

            The court did not decide the debt allocation in a vacuum.  The judge did not abuse her discretion.  Judgment affirmed.

Monahan v. Monahan

13-P-29 (February 21, 2014)

            Charles and Cheryl were divorced in 1999.  They signed a surviving separation agreement which was approved by the court at the time.  The only asset was Charles’ military pension which was less than a year away from payout status.  The agreement provided “Wife shall be entitled to receive one-half of the Husband’s pension from the US Navy.  Husband agrees to execute such documents as are necessary to put his agreement into effect.”  Thereafter Charles waived his military pension in order to receive Veterans’ disability payments – a higher monthly value.  At first, Charles paid Cheryl the monthly equivalent of what she would have received under this military pension but then stopped.

            Charles argued that the Federal Government made it impossible for him to pay Cheryl any of the $336,000 he collected since 2005.  However the trial court found there is nothing in the Federal law that bars Charles from satisfying the terms of a voluntary agreement with money received from disability benefits.  The fact that the contracted for method of paying Cheryl her equitable share of the marital estate was no longer available did not void the agreement. 

            By converting the pension benefits to disability pay, “Charles denied Cheryl ‘the fruits of her bargain in breach of his continuing duty to exercise the utmost good faith and fair dealing in performing his obligations’ under the separation agreement.

            The change in circumstances which rendered Cheryl’s interest in the pension worthless was compelling enough to warrant a modification of the surviving judgment.

Alemu v. Jansen

13-P-771 (February 24, 2014)

           

            Jansen appeals from two extensions of 209A abuse prevention orders obtained by Alemu.  The parties lived together and have a child together.  In her initial affidavit, Alemu detailed threats Jansen had made against her and her lawyer including threats to kill her and beat her lawyer with a baseball bat.

            During the first return order there was an evidentiary hearing during which Alemu testified in more detail about the threats including threats to kill, threats of her falling out a 3rd floor window, threats to replace her and when she refused to open the door for him, threats that someday a door would open and there he would be.  Based on Alemu’s testimony and notwithstanding Jansen’s differing testimony, the judge could reasonably credit Alemu and conclude that she was in fear of imminent serious physical harm which fear was objectively reasonable thus meeting the standard.

            The first judge only extended the order for 8 days until the scheduled hearing on the motion for temporary custody, support and visitation.  At that time, the judge did not have the benefit of the Moreno v. Naranjo, 465 Mass. 1001, 1002 (2013) case where the court held it was improper for the judge to limit duration of an abuse prevention order based on concerns about impact of the order on defendant’s visitation rights with a child.

            A different judge heard the case at the motion hearing at which time further extension of the 209A order was sought.  That judge reasonably inferred that the limited extension was to preserve the defendant’s rights at the temporary order hearing.  There was no need to have a further evidentiary hearing at the second renewal hearing, representation of counsel was sufficient to meet the standard.  This was especially so when neither party requested an evidentiary hearing.

            Judgment affirmed.

Ryan v. Ryan

13-P-567 (February 25, 2014)

            Wife sought a 209A from the BMC which was extended for one year after the 10 day renewal hearing.  At that time the parties were going through a divorce and had separated.  Wife testified that Husband began drinking heavily and became aggressive when intoxicated.  During one instance he picked her up and threw her on the bed.  On another occasion when he forgot his keys he kicked the door down to get in the house. 

            One evening he called at 3:00 AM and said he would come into the house whenever he wanted.  She fled the home to a friend’s house for safety.  When she returned the next day she discovered he had been there, had dumped out the dresser contents, ripped sheets off the bed, and consumed vodka. 

            The judge was entitled to credit wife’s testimony and to conclude that she was in reasonable fear of imminent serious harm based upon husband’s past physical aggression and his inability to control himself while heavily intoxicated.  The judge hearing witness testimony and having an opportunity to observe their demeanor gets the utmost deference under the case law.

            Judgment affirmed.

Young v. Young

12-P-1573 (February 27, 2014)

            The parties separated in 1996.  They were married for 40 years but did not divorce until 2011 when their case went to trial.  After trial, the judge divided the estate equally with the exception of some trust assets which Husband got more of on account of the fact that his interest vested after the separation and the trusts came from his family.

            Husband argued that the estate should have been divided as of 1996 when they separated but the court distinguished these facts from Savides when the trial judge found on ongoing financial ties post separation including joint ownership and management of rental properties until 1999; filing of joint tax returns until 2001, sharing of children’s college and wedding expenses, wife’s ongoing residence in and maintenance of the marital home and Husband’s providing Wife with ongoing health insurance coverage.

            The judge did not abuse her discretion in dividing the marital estate in present day values as opposed to going back to 1996. 

            Husband also argues that the judge abused her discretion in ordering him to pay wife half of his pension payments from the 20 months prior to trial because such order appears to be a lump sum alimony payment.  However, section 34 permits the judge to assign retirement benefits in lieu of alimony.

            Husband also complained that the judge made an error in calculating the value of certain bank accounts at the time of division.  However, if there was such an error as Husband asserts, it was less than 1% of the value of the marital estate and not significant enough to warrant a reversal of the decision.

            Judgment affirmed.

 

Sordillo v. Sordillo

13-P-465 (February 28, 2014)

            Antonio and Maria were divorced in 2000.  They signed a surviving separation agreement which was approved by the court at the time.  The agreement provided that for Antonio to pay Maria, to whom he had been married for twenty-three years, $400 per month in alimony. 

            First, Antonio argued that he was entitled to invoke the alimony-restricting provisions of the Alimony Reform Act of 2011 (Act). The Act defeats this argument because it states that the pertinent provisions “shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act.” St. 2011, c.124, § 4(a). Additionally, since the alimony obligation derived from an agreement that survives the divorce judgment, the Act does not “provide a right to seek or receive a modification of an existing alimony judgment.” St. 2011, c. 124, § 4(c). 

            Second, Antonio argued that the motion to dismiss was improperly converted to one for summary judgment, when the judge considered matters outside the pleadings, specifically evidence that Maria had not remarried. However, he did receive ample notice that the motion would be treated as a motion for summary judgment and he failed to demonstrate any prejudice.

            Third, Antonio argued that judgment should not have been entered because he adequately raised a claim of “countervailing equities.” The parties’ agreement terminated alimony only in the event of remarriage or death, not cohabitation. Therefore, Maria’s cohabitation did not rise to the level of a countervailing equity.

            There was no abuse in discretion in awarding attorney’s fees, because the fees sought by Maria’s counsel were fair and reasonable.  However, Maria was not entitled to fees on appeal.

 

March 2014 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

DiCenso v. DiCenso

13-P-98 (March 11, 2014)

            Mary Ann, a dentist, and Paul, who is not a dentist, were divorced in 2010.  The surviving settlement agreement provided that Paul would continue to manage the three dental practices for a five year period, at which time the practices would be sold and the proceeds would be equally divided between the parties. The agreement provided that Paul would provide Mary Ann with financial details and that Mary Ann could audit the books at her convenience. Within six months, Mary Ann filed a complaint for contempt for failure to make the books available and acts that had a negative impact on the value of the practices. Paul filed his own complaint for contempt alleging mismanagement by Mary Ann. During the discovery process, Paul was ordered to produce records.  Paul produced files that could not be audited, would not provide the forensic accountant with the hard drive, and later discarded the computer. The judge allowed for Paul’s employment was to be terminated.

            Paul argued that the judge improperly modified the final property division by terminating his employment.  The existing agreement that the practices were operated for five years, sold, and divided equally was not modified. Paul breached his fiduciary duties by mismanaging the practices. 

            Paul further argued that the judge abused her discretion by imposing sanctions, because: the spoliation did not prevent Mary Ann from using other avenues of discovery; the dismissal of his complaint for contempt was punitive; and his rights of due process were violated. However, Paul failed to demonstrate that the sanctions were prejudicial and Paul was able to cross-examine Mary Ann and her witnesses.

            Mary Ann was awarded attorneys’ fees based on the contempt judgment.

Silva v. Silva

13-P-1130 (March 24, 2014)

            On February 7, 2011 a restraining order pursuant to G.L. c. 209A was issued against Robert Silva in favor of Heather Silva by Quincy District Court.  At hearing, Robert’s only objection was the prohibition of contact with the couple’s daughter.  The judge allowed telephone contact. On January 12, 2012, Robert moved to have the order vacated and Heather requested the order be extended. The court extended the order.

            Robert argued that there was improper judicial conduct.  The record shows the judge heard evidence of threatening behavior and that Robert was treated with courtesy and respect. No action by the judge was inappropriate.

S.B. & another v. W.M.

13-P-385 (March 26, 2014)

 

            The parties were never married and have a daughter born May 5, 2004. The mother and father separated in 2011. The mother was a homemaker who had not held employment since the birth of the child in 2004 and father was a commercial fisherman, sole owner of the business, and sole employee at the time of trial. On the first day of trial the parties entered into a stipulation where mother would have sole physical custody of the child and the parties would have shared legal custody.  The judgment incorporated the stipulation; ordered the father to pay $282 per week in child support, based on the Massachusetts Child Support Guidelines (2009), and maintain health insurance for the child; ordered each of the parties to pay half of the child’s uninsured medical costs and half of her enrichment activities; ordered the parties to maintain life insurance for the benefit of the child; and ordered the mother to pay $6000 of the father’s legal fees.

            Mother argued that the judge should have attributed additional income to the father for 2011 and 2012, based on the business’s gross receipts for 2008-2010. Father argued that regulatory changes to the fishing industry would reduce his income moving forward and that he was not receiving any unreported cash income. Mother failed to prove that father did not report his income accurately. Additionally, mother argued that the child support was insufficient to spend as she did when the parties lived together and that father lived an upper middle class lifestyle.  The Mother was not considered to be credible and her own bank records did not support her arguments. The guidelines are not used to equalize the households, only to allow the child to benefit from the higher income. 

            The Father was awarded the attorneys’ fees to compensate him for the additional expenses incurred due to Mother’s allegations, which were not supported by credible evidence and were unreasonable.

Cooper v. Cooper

13-P-103 (March 28, 2014)

            Wife appeals from a January 28, 2008 order denying her Rule 60(b) motion with regard to the January 22, 2007 amended judgment of divorce.

            Wife claims to have discovered newly discovered evidence that Husband lied on his court filed financial statement.  Wife’s allegations include that Husband listed his retirement account on one financial statement as a defined benefit account and on another statement as a 401K account.  Wife also presented evidence of an account statement she located in her attic for $349 in an account as of 1988.  Wife provided no proof that this small account was still an asset at the time of divorce.

            Wife did not meet her burden of proving by clear and convincing evidence that the trial judge abused his discretion.  The trial judge has broad discretion in this situation and Wife would have had to prove his discretion was “abused to such an extent that his decision constituted an arbitrary determination, capricious disposition, whimsical thinking or idiosyncratic choice which no conscientious judge, acting intelligently, could honestly have reached and which effectively amounts to a miscarriage of justice.”  See Care & Protection of Georgette, 54 Mass. App. Ct. 778, 779 (2002).

            Judgment affirmed.

Smith v. Dixon

13-P-558 (March 28, 2014)

            Dixon appeals from an order denying her motion to vacate a permanent 209A order obtained by her stepfather, Vincent Smith.  Smith is 77 years old and married to Dixon’s mother who is incompetent.  Smith is the mother’s attorney-in-fact.

            The judge who heard the motion to vacate is the same judge who issued the original order followed by the first two extensions and eventually the permanent order.  At the time of the prior orders, the judge took testimony and assessed credibility of the parties.

            In late 2011 Dixon moved to vacate the order alleging she was never given an opportunity to see Smith’s affidavit and contest the allegations.  The judge from memory and review of the transcript denied the motion because the allegations were without basis.  Thereafter Dixon obtained affidavits from her mother and niece who both state she is not an abusive person.  The mother also said she was “tricked” into signing whatever she originally signed.  Nevertheless, the judge found there was no new credible evidence and denied the motion to vacate.

            This court affirms.

Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC.  His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation.  He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.

Brian is a graduate of Boston College, magna cum laude and Boston College Law School. His article Not Your Average First Year appeared in the July 2011 edition of the Massachusetts Lawyers Journal.

Ms. Jordana Kershner graduated from Tulane University in 2005 cum laude and after two years as a litigation paralegal at the Washington, DC law firm now known as Cohen, Milstein, Sellers & Toll, PLLC went on to receive her J.D. from Boston University School of Law cum laude in 2011. While at Boston University, Ms. Kershner was the Editor-in-Chief of the American Journal of Law & Medicine and interned at the Special Litigation Department of the Connecticut Office of the Attorney General as well as for the Honorable Dominic J. Squatrito, District Court Judge for the District of Connecticut.

After a fellowship with Shelter Legal Services, Ms. Kershner joined The Law Office of Nancy F. Baskin in February 2012, where she has been representing clients in all areas of family law practice. Ms. Kershner is admitted to the Massachusetts bar and a member of the Massachusetts Bar Association and the Boston Bar Association.

Attorney Wendy Overbaugh Hickey is a graduate of Fisher College (1994), Suffolk University (1998) and Suffolk University School of Law, cum laude (2003).  She has been employed by Nissenbaum Law Offices since 1994 and, since 2003 has been practicing all aspects of family law.

Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).  She is active in the Boston Bar Association (Member of the Family Law Section Steering Committee and Co-Chair of the Family Law Section Newsletter Committee) and is also a member of the Massachusetts Bar Association, the Women’s Bar Association and the American Bar Association.  Wendy is also a member of the American Academy of Matrimonial Lawyers Foundation.

Wendy co-authored “What You Need To Know About Vaughan Affidavits” which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.         

She has lectured at CLE’s on the topic of International Child Abductions under the Hague Convention.

Wendy has been named a Super Lawyer by Boston Magazine’s publication of Super Lawyers in 2013 and prior to that as a Rising Star for the last few years.