Family Law Newsletter Summer 2013: Reported Case Summaries

I.S.H. v. M.D.B., No. 11-P-224

By Alison Silber, Esq. & Mindy Markvan, Esq.

Father and Mother, who were never married to one another, lived together in Florida for a period of time ending in August 2006.  In July 2006, Mother gave birth to a child, whose birth certificate did not list a father.  In December 2006, Mother sought and obtained, in Florida court, an ex parte injunction against Father’s domestic violence and a temporary order of custody over the child. 

In October 2007, Mother moved with child from Florida to Massachusetts allegedly due to domestic violence by Father.  In Norfolk Probate and Family Court, Mother filed a paternity complaint against Father.  Father was served and failed to appear.  The Probate Court issued a paternity judgment against Father, which established the defendant as the father of the child and ordered payment of child support and uninsured medical expenses. 

In May 2008, Mother filed a 209A complaint for an abuse prevention order against Father.  Shortly thereafter, she filed a complaint for contempt, asserting nonpayment of child support, and a complaint for modification, seeking payment of medical expenses.  In July 2008, Father sent the court a fax, contesting service of process, denying violence, and stating his belief that this matter was to be settled by a Florida court. He provided a phone number for the court to contact him during the hearing.  He did not appear at the hearing, nor did the court contact him.  In October 2008, the judge entered judgment in Mother’s favor on the complaints, holding Father in contempt and increasing his obligation to pay medical expenses. 

In October 2009, Father filed a pro se modification request, requesting a reduction in child support and again contesting service of the original complaint.  Mother answered and counterclaimed for arrearages in child support and medical expenses.  At the pre-trial conference, where Mother appeared and Father appeared by telephone, the judge set a trial date of September 2010.

Shortly before the trial date, Father, represented for the first time by counsel, filed a motion pursuant to Mass. R. Dom. Rel. P. 60(b)(4) based on lack of jurisdiction and therefore asserted the paternity judgment was void except as to custody of the child.  Mother did not file a timely opposition.  The judge held a brief, nonevidentiary telephonic hearing with counsel and denied Father’s 60(b)(4) motion.   

Was the paternity judgment void for lack of personal jurisdiction over Father?

The appellate court considered a variety of ways the Probate Court may have had personal jurisdiction over Father, and ultimately determined that there was not enough information to make a decision.

Did Father waive personal jurisdiction?

The Probate judge relied exclusively on Father’s failure to appear at the paternity hearings, failure to file a responsive pleading prior to paternity judgment, and his subsequent modification request.  The appellate court determines that the real question is whether Father’s participation in proceedings after the entry of the paternity judgment but prior to the filing of the 60(b)(4) motion constituted a waiver.  If a defendant clearly objects to jurisdiction and is rebuffed, he may take part in subsequent litigation without waiving the objection; on the other hand, he may decide to withdraw his defense and voluntarily engage in the proceedings.  The appellate court concludes that Father did not waive personal jurisdiction by filing his modification request since he was consistently reluctant to come to Massachusetts, made statements to the court about Florida, and made it clear he was not having the case heard in Massachusetts voluntarily. 

Did personal jurisdiction exist as a result of minimum contacts or through 209D § 2-201(5)?

Mother did not identify any applicable basis for personal jurisdiction in the traditional long-arm statute.  Instead, Mother pointed to G.L. c. 209D § 2-201(5), which permits personal jurisdiction in a support or parentage action concerning a child if “the child resides in the Commonwealth as a result of the acts or directives of the defendant.”   Specifically, Mother claims that Father’s abusive and violent behavior caused her to flee Florida and bring the child to Massachusetts.  The record the parties presented to the court was sparse about what abuse occurred in Florida; the references to domestic violence are few and brief and do not explain why Mother moved to Massachusetts rather than pursuing a proceeding in Florida.

Accordingly, this matter is remanded to the Probate Court so that judge may determine whether the court had statutory authority to exercise personal jurisdiction over Father, and whether the exercise of jurisdiction would comport with due process. 

Moreno v. Naranjo, SJC-11070

The Plaintiff and Defendant were involved in an intimate relationship and had one child.  The relationship had a history of domestic violence, and the Plaintiff obtained a 209A order prior to the instant one.

Sometime after the prior 209A order expired, another assault allegedly occurred and Defendant moved out of state.  Defendant sent Plaintiff a text that he would “see [her] soon,” which triggered fear in the Plaintiff and led her to request another 209A despite Defendant’s location out of state. A judge in the District Court issued an ex parte no-contact, no-abuse order which granted Plaintiff custody of the child.  At the extension hearing ten days later, Plaintiff requested an extension of one year.  The District Court extended the order for six months, rather than one year as she requested, in consideration of the Defendant’s time-sharing access.

Did the District Court judge abuse her discretion by extending the order for six months, rather than a full year, because the judge improperly considered matters outside the purview of 209A, namely the impact the order would have on the Defendant’s visitation? 

Yes, however, the matter is moot because the abuse prevention order has expired, the defendant has not appealed from it, and the Plaintiff did not seek to have it extended in trial court. 

The duration of the extension should be guided by the “time reasonably necessary to protect from abuse the plaintiff or any child in the plaintiff’s care or custody.” G.L. c. 209A, §3.  The statute does not authorize the judge to limit duration out of concern for a defendant’s visitation rights.  In fact, the Trial Court’s guidelines for proceedings under G.L. c. 209A suggests that an order after notice should be for a minimum of one year, unless the Plaintiff requests a shorter period or the court finds other reason to provide a shorter period not related to visitation. 

Phalla IV v. Samath HANG, No. 11P2181

Husband and Wife were married in 2004 and separated in 2010.  There were two children born to the marriage.  A judgment of divorce, dated April 27, 2011, awarded physical custody of the children to the Wife, ordered Husband to pay child support in the amount of $228.00 per week, and further ordered Husband to claim both children on his state and federal tax returns. 

Does a Probate and Family Court judge have the power to order dependency exemptions for State and Federal income tax returns to be allocated to the husband, over the objection of the wife, in conjunction with an order for child support?

Yes.  First, the court considers prior law and notes that probate courts have long allocated dependency exemptions to noncustodial parents (Bailey v. Bailey, 27 Mass.App.Ct. 502, 504 [1989]).  Next, the court considers current federal law.  Section 152(e) of the Internal Revenue Code, 26 U.S.C. §152(e) (2006), has a special rule allowing a noncustodial parent to claim a child and that rule requires the custodial parent to sign a written declaration that she or her will not such child as a dependent for the taxable year. 

Accordingly, the court finds that the lower court did not err in allowing Husband to claim the children as dependents for state and federal tax purposes.  This matter was remanded so the judge can consider issuing an order for the wife to execute a written declaration releasing her claim to the dependency deductions. 

Klairmont v. Gainsboro Restaurant, Inc. , SJC-11154

On April 1, 2007, Jacob Freeman ordered two beers at Our House East, after drinking at other locations earlier in the evening.  Around 1:45 in the morning, he walked into a hallway to make a phone call, and fell down a staircase into the cellar. He died two days later of a basilar skull fracture and a subdural hematoma.  His parents, Lisa Klairmont and Michael Freeman, sent a timely written demand letter to Our House East under G.L. c. 93A.  The plaintiffs then sued Our House East for the wrongful death of Jacob and G.L. c. 93A. 

Trial proceeded before a jury, but the judge reserved decision on the c. 93A claim.  The judge directed a verdict for the defendants on the counts alleging wrongful death.  The jury found that the defendants were negligent but that the negligence was not a substantial factor in causing Jacob’s death.  The judge accepted the jury’s conclusion that the defendants violated the building code and found that “Jacob fell and suffered a fatal injury because the stairs were in an unsafe, defective condition, having been built and rebuilt without the necessary building permits and not in compliance with the State Building Code.”  The judge awarded damages in the amount of $750,000 to each of the plaintiffs, and she also awarded $744,480 as the amount of economic loss Jacob’s estate had sustained as a result of his death.  She then trebled the award of damages, for a total of $6,733,440.  Finally, she awarded attorney’s fees in the amount of $2,098,875.25 and costs of $254,797.58.

Were the plaintiffs entitled to recover on the c. 93A claim? 

Yes, but the lower court judge erred in her calculation and award of damages.

Can building code violations constitute unfair or deceptive conduct within the purview of c. 93A?  Yes, liability may arise based on a building code violation if the conduct leading to the violation is unfair or deceptive and occurs in trade or commerce, as is the case here.  The defendants had built the stairs without obtaining necessary building permits and without complying with the building code.  The defendants knew permits were required, as evidenced by the fact the they filed, then abandoned, multiple permit applications.  Additionally, the kitchen manager informed the defendants that the stairs were hazardous and several employees had already fallen on them.  The defendants’ behavior was unfair because they violated the building code for more than twenty years, and deceptive because patrons very well might have taken their business elsewhere if they knew of the dangerous conditions. 

Can the plaintiffs bring a claim under c. 93A that is separate from their wrongful death claims?  Yes, the wrongful death is act is not the only statutory cause of action available to recover for allegedly unlawful conduct resulting in death.  The c. 93A cause of action at issue is the type that survives the death of the Plaintiff.  Furthermore, a judge may make independent (and different) findings on the c. 93A claim than on the parallel common law claim. 

What are proper damages and attorney’s fees?  In alleging a cause of action under c. 93A, the plaintiffs may only recover to the extent that Jacob would have been able to recover on such a claim.  Accordingly, with regard to c. 93A, the plaintiffs may recover only such damages as were causally related to the defendants’ unfair and deceptive conduct and were actually sustained by Jacob up to the point of his death.  The plaintiffs cannot seek recovery for any loss of earning capacity Jacob may have suffered, because such an award would be impermissibly duplicative of loss of support damages under their wrongful death claim.  This matter is therefore remanded for a calculation accordingly.

The award of attorney’s fees in the amount of $2,098,875.25 should be reconsidered in light of the reduction of damages the plaintiffs may receive on remand. 

Are the trustees liable personally to the plaintiffs?

Although trustees may be personally liable, it is unclear how the lower court found them personally liable in this instance.  In light of the remanded calculation of damages, which may reconsider the plaintiff’s motion for a writ of attachment, this court declined to address whether the lower court properly ruled on the trustees’ personal liability. 

Lisette Cooper v. Eric Keto, 83 Mass. App. Ct. 798

The father appealed a judgment of contempt against him for failure to pay for 50% of “agreed upon” college expenses as defined in the parties’ 1999 separation agreement incorporated into a California divorce judgment. 

After the divorce, the parties each relocated to Weston, Mass. and each had accumulated comparable wealth.  The child always attended private school, and after 7th grade, he attended an exclusive private prep school.  After the child’s first year of college, the mother requested reimbursement of half of the college expenses pursuant to the separation agreement.  The father requested documentation from the mother, yet refused to reimburse her for half of the college expenses on the basis that the choice of college was never mutually agreed upon.  The mother filed a complaint for contempt, and the father filed an answer and counterclaim.  The California judgment was registered in Mass. pursuant to the Uniform Interstate Family Support Act G. L. 209D. 

At the two-day evidentiary, the mother presented evidence that once the child’s UTMA account was exhausted, she should be reimbursed one-half of the total of $182,412.57 paid by the mother on the child’s behalf, which included tuition, room, board, rent, fees, transportation, AMEX charges, cash allowances, health and dental expenses. The father presented evidence that he neither supported the child’s decision to attend Bard nor expressly agreed upon any of the requested expenses for his son to pursue a double major in photography and East Asia studies.   In fact, the parties were barely on speaking terms after the divorce.  The probate court judge found that the father’s awareness of and acquiescence in the child’s choice of Bard, the step-mother’s involvement in the child’s application process, and the father’s failure to object at any stage in the application process constituted his acceptance to be bound for half of the college expenses.  The probate court judge entered a judgment of contempt against the father and ordered him to pay half of the Mother’s requested expenses and mother’s legal fees of $90,263.25.

The first issue on appeal was whether the choice of law provision in the agreement requires enforcement of the California standard for civil contempt.  Under UIFSA, the law of the issuing state governs when interpreting substantive provisions of the incorporated agreement.  In Massachusetts, the standard of civil contempt is clear and convincing evidence that the defendant violated a clear and unequivocal order and that he has the ability to pay.  The California standard for civil contempt is the higher standard of proof beyond a reasonable doubt.  The Appeals Court held that the father waived his right to appeal the issue of applying the California standard of law to the California agreement because it had not been raised prior to appeal, and in fact submitted proposed rationale in the contempt proceedings incorporating the Massachusetts standard. 

The second issue was whether the father was contractually bound to pay 50% of the college expenses.  While the Appeals Court applied the Massachusetts standard of contempt in this case, it followed California law in interpreting the substantive meaning of “agreed upon educational expenses” as a question of law.  California case law supports that where there is duty to act or speak, his silence or inactivity will constitute his assent.  California case law also supports an implied covenant of good faith and fair dealing and an ongoing fiduciary duty between husband and wife concerning their child…

On the issue of contempt, the Appeals Court held, that while contractually bound to pay half of the child’s college expenses, the father’s silent acquiescence was not a clear and unequivocal violation of the order sufficient to support a finding of contempt. 

While there was no finding of contempt on appeal, the Appeals Court supported the Probate Court’s judgment requiring the father to pay the mother’s legal fees and costs and remanded the case for further proceedings to determine whether certain expenses were truly college related.

Alison Silber is a family lawyer in private practice in Cambridge.  She specializes in mediation and negotiation,  and also appears regularly in Middlesex, Suffolk, and Norfolk Probate and Family Courts.  Prior to opening her practice, Alison clerked for the Superior Court of the District of Columbia.  Alison is a member of the Boston Bar Association and Massachusetts Bar Association, and she provides pro bono services for the Boston Volunteer Lawyers Project and the Women’s Bar Foundation Family Violence Project. 

Melinda Markvan (Mindy) is a family law attorney practicing in Massachusetts. She received a Bachelor’s Degree in Philosophy & Women’s Studies from Goucher College in Baltimore, Maryland, and a Juris Doctor from Massachusetts School of Law in North Andover, Massachusetts. Prior to starting her own practice, Mindy was an associate family law attorney with Lewis & Leeper, LLP in Framingham, Massachusetts and a paralegal & law clerk with Nissenbaum Law Offices in Boston, Massachusetts. Mindy’s career as a paralegal and an attorney has given her over 1o years of experience exclusively in family law.  Mindy has appeared in Probate and Family Courts throughout the Commonwealth on matters involving complex divorce and post-divorce matters. She is a member of the Boston Bar Association, Family Law Newsletter and Steering Committees and is committed to Pro Bono work.