1:28 Decisions for August, September, October, 2013

by Melinda J. Markvan, Esq., Brian McLaughlin, Jr., Esq., and Wendy O. Hickey, Esq.

E.L.E v A.M.A, 12-P-1584

Where unmarried parents showed evidence supporting a relationship of joint responsibility and good communication, despite regrettable moments particularly during the litigation, the probate court judge’s ruling of joint legal custody and sole physical custody of the minor child to the mother was not clearly erroneous.  This is not a case where the parental relationship was ‘dysfunctional, virtually nonexistent, and on of continuous conflict.’ Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). The judge also found that the parties have the present ability to communicate and to plan regarding the child, though the mother has from time to time withheld cooperation, a finding fully supported by the record.

John H. Green v. Ruth E. Green, 112-P-1430

Where the trial judge terminated general term alimony of a 47 year marriage upon the husband’s retirement from teaching at age 68, beyond his full retirement age, the panel remanded the case to determine the amount of the husband’s teaching pension and what amount, if any, the wife should receive upon receipt of his pension.  The alimony reform act took effect shortly before this case.  The trial judge made findings supporting a deviation from the presumption that alimony terminates upon reaching full retirement age based on the wife’s age, poor health, and lack of employment opportunity.  However, the trial judge did not make apparent why alimony should terminate upon the husband’s retirement.  See Adams v. Adams, 459 Mass. 361, 371 (2011) (judge’s conclusions must be apparent in findings and rulings). The marital assets were divided 50/50 and the parties agreed to treat the husband’s engineering pension as a stream of income while continuing the wife as the beneficiary of the engineering pension.  The husband’s second pension, a teaching pension due upon retirement, was divided 50/50 as part of the property division.  Without any evidence of the value of the teaching pension benefit, it was error to assume that it would be an adequate substitute for alimony, and whether alimony should continue and, if so, in what amount. 

C.F. v. R.M., 12-P-1213

The defendant filed a motion to vacate and expunge a restraining order in district court brought by his step-daughter alleging sexual and physical abuse.  He argued on appeal that newly discovered evidence supported his contention that the allegations were false and designed to provide support on custody proceedings with his daughter.  Regardless of a GAL investigation, DCF investigation and SAIN interview, all without any evidence supporting the plaintiff’s allegations of sexual abuse, the defendant was not able to meet his burden that the plaintiff committed fraud on the court by clear and convincing evidence.  The judge also decided that the newly discovered evidence would not have changed his mind about entering the restraining order because he found the plaintiff and her mother’s testimony credible and consistent as to physical abuse alleged in the original affidavit, but not as to sexual abuse. 

Jennifer J. Jakulyte v. Omar S. Zaki, 12-P-1321

A judgment of contempt and denial of motions to alter and amend judgment and the parties’ 2008 separation agreement were affirmed on appeal.  The agreement stated “Wife shall receive the sum of $500,000 as a one-time lump sum payment, said payments shall be completed by 9/1/08.  On 10/18/11, the wife filed a complaint for contempt.  While the judge did not find the husband in contempt due to the agreement’s unclear language about who would actually pay the lump sum amount, however the husband was unable to present evidence supporting his argument that wife’s draws prior to execution of the separation agreement should have been credited toward his post-divorce transfer of assets and the wife was still owed $391,218.74.    Furthermore, the husband argued that he received ineffective assistance of counsel at the contempt trial because his attorney never called him as a witness to testify.  However, ineffective assistance of counsel does not constitute grounds for a new trial in a civil action. Commonwelath v. Patton, 458, Mass. 119, 124 (2010).

Linn v. Corr & another, 12-P-396

A former divorce client sues his ex-wife’s former counsel in superior court for tort claims related to probate court actions beginning in 1998.  The superior court judge dismissed the complaint as an attempted collateral attack on extensively litigated proceedings in probate court, almost all of which occurred well before the 3-year statute of limitations period.  The plaintiff’s argument of the discovery rule failed and the appeals court affirmed. 


Mother and Father entered into a dispute about the appointment of a parenting coordinator. Father’s complaint for the appointment of an alternate parenting coordinator was dismissed at the trial level.

Parties were divorced by a judgment nisi in October of 2010. Pursuant to a separation agreement that had been entered by the parties, a Dr. Cavallaro was to be the parenting coordinator for at least one year after the judgment was entered.  In November of 2011, Mother took exception to some of Dr. Cavallaro’s recommendations and consequently, refused to acknowledge Dr. Cavallaro as the parenting coordinator. Father filed a complaint to appoint a new parenting coordinator and the probate judge dismissed the complaint.

On Appeal, both parties contended that the separation agreement unambiguously supported their position. This agreement held in relevant part,

“Linda Cavallero, PhD . . . shall serve as the parties' parent coordinator (the 'Parent Coordinator') to put helpful co-parenting parameters in place and serve as a neutral resource when the parties reach an impasse around a given issue… The Parent Coordinator will serve a term of one (1) year, which shall be renewable for successive periods by agreement of the parties, or, if the parties are unable to reach agreement, the Parent Coordinator will be determined by the Probate & Family Court."

The Court citing, Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008), first held that the interpretation of separation agreements is a question of law. Next, relying on,  American Venture 594 Corp. v. A. Russo & Sons, Inc., 79 Mass. App. Ct. 770, 775 (2011), the Court held that usual and ordinary meaning of words would control their interpretation of the contract. 

Because the separation agreement stated that, “the parent coordinator will (emphasis added) be determined by the Probate & Family Court,” the Appeals Court took this to mean that there was no judicial discretion to deny the complaint. As a result, they vacated the dismissal and remanded the case to a different Probate & Family Judge to appoint a parenting coordinator.


Father and Mother both appeal after a determination of a judge that they are both unfit parents pursuant to M.G.L Ch. 210 § 3.

In May of 2011, DCF responded to a 51A report that, following an incident with Mother, the Father had left the home with the child clad only in a diaper.  During the course of this incident, Father had also apparently threatened a neighbor with a knife after the neighbor inquired about the child’s clothing.

On June of 2011, the Father, via a voluntary placement agreement returned the child to DCF. Upon return, the child was suffering from various ailments and neglect. She was placed into a foster home.

In affirming the original judgment, the Appeals Court first established that, DCF must prove by 'clear and convincing evidence that a parent is currently unfit to further the child's best interest[s].' Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997). Further, that in determining parental unfitness, the issue is, 'whether… the parent is so bad as to place the child at serious risk of peril from abuse.' Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

In the instant case, the Appellate Court found that the judge had made no error when her findings were based on father admitting in a hearing he could not care for the child, that he had a history of substance abuse which had interfered with his daily life, that he been uncooperative with DCF investigators, that he lacked a stable housing situation, and that he had failed to comply with a DCF service plan.

The father also contended that, bonding with the child was a relevant factor to be considered in a determination of parental unfitness. The Appeals Court disagreed, “While the child's bonding with her foster parents must be considered, it cannot be the determining factor in deciding parental unfitness. Adoption of Nicole, 40 Mass. App. Ct. 259, 263 (1996). Adoption of Rhona, 57 Mass. 479, 491-493 (2003).”

Finally, the Appeals court found no merit in father’s contention that it would not be in the child’s best interest to stay with him. The Court had considered after determining that father was unfit that it was within the child’s best interest to be placed with a foster family.


Husband appealed from a judgment of the Probate and Family Court entered March 2011, ordering him to pay $150 per week to his former wife, an order to pay $8400 in attorney’s fees, and a contempt, dated November 2011, for noncompliance with the original order. Husband argued that because alimony was not reserved after the first trial the judge did not have the discretion to enter a judgment during the contempt and because the judge had already denied a motion for attorney’s fees she could not reinstate the judgment.

The Appeals Court denied husband’s petition, holding that, husband had not met his burden of proof to demonstrate abuse of discretion by showing that the award was 'plainly wrong and excessive.' Heins v. Ledis, 422 Mass. 477, 481 (1996). The Appeals court went on to note that, “the judge did not abuse her discretion in concluding the husband had the ability to pay $150 per week in alimony, as the award was properly 'grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.' Woodside v. Woodside, 79 Mass. App. Ct. 713, 721 (2011).” The Court also noted that the divorce judgment did reserve the issue of alimony; and furthermore, that alimony had been alleged in plaintiff’s complaint throughout the procedural history of the case.

Moving to Husband’s second argument, husband asserted that there was no evidence at the contempt hearing (which he did not attend). However, the Appeals Court noted that upon a showing of arrearages in a support obligation it is the Defendant’s burden to prove an inability to pay. Diver v. Diver, 402 Mass. 599, 603 (1988).

The husband has failed to meet his burden demonstrating that he is unable to comply with the court order. The judge did not err in finding him in contempt.


JANE DOE vs. JOHN DOE, 12-P-1354

Husband appealed from a judgment of divorce that awarded custody of children to wife, ordered eighty dollars a week in alimony, and permitted Wife to remove the children from Massachusetts to California. After having a motion for reconsideration and a motion for a new trial denied. Husband appealed.

            The Appeals court first examined whether denying Husband’s motion for a continuance given his cancer was an abuse of discretion by the lower Court. While sympathetic, the Appeals Court held that, the judge did not abuse his discretion in denying the motion for continuance. The husband's motion was made on the day of trial and without notice to the wife. The judge properly considered that despite the husband's illness, the husband presented no affidavits (medical or otherwise), or other medical documentation to support his position that he was unable to participate meaningfully at the trial.

            In determining whether the removal was proper, the Appeals Court applied the test set forth in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985). The Appeals Court held that there was a real advantage in the children being removed because of the economic support Mother’s new fiancé would provide. Finally, the Court concluded that the move was in the best interests of the children because, “the husband's failure to visit the children with any type of consistency has not been in their best interests and I cannot find that a removal to California would lessen the children's contact with the husband when such contact has been sporadic or non-existent." While recognizing that the husband has had serious medical issues, the judge stated that, "it appears that the failure to visit is a result of more than just his medical issues."



Mother appeals from Father’s complaint for contempt. The parties were divorced by a separation agreement in Feb, 2012. This agreement contained a provision that allowed for the splitting of college costs for their child between the two parents.

Father contended that Mother had not properly split the outstanding 80k that had accrued during their child’s college career. The judge agreed, saying that husband had overpaid by approximately 8k but declining to hold the wife in contempt. The judge did order her to pay the 8k in the judgment of divorce nisi.

            The Appeals Court declined to grant relief to wife because of an ineffective appeal; “The mother's appeal fails because she did not provide a record appendix which would allow for a review of her claims. She included only four pages of the fifty-four page transcript of the contempt hearing and did not include most of the parties' submissions.



Husband filed a 60(b) motion for relief from judgment.  Among other allegations, the husband claimed fraud and misrepresentation on the part of the wife, ineffective assistance of his former counsel, fraud on the court by the attorneys, and error on the part of the divorce judge (who also was motion judge) for her failure to inquire more thoroughly into the parties' financial statements.

Parties were divorced in November of 2009 by a judgment nisi. Husband did not appeal. After acquiring new counsel, husband filed a 60(b) motion for relief from judgment. Because more than 1 year had passed since entry of the divorce judgment, the judge denied husband’s motion.

The court than examined husband’s claim for ineffective assistance of counsel and denied it noting that such a claim would only be available in a criminal proceeding or a case in which DCF had seized the parties children. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Care & Protection of Stephen, 401 Mass. 144, 149 (1987).

Finally, the Court awarded wife attorney’s fees because the appeal was frivolous. Fabre v. Walton, 441 Mass. 9, 10 (2004)


The defendant, a subject of an APO originally granted in 2007, sought to vacate its extension in 2011. The Court denied the petition holding that,” having failed to pursue an appeal from the 2007 orders (or the order denying his 2008 motion to vacate), he cannot now challenge the 2007 orders. To the extent that he argues that the 2010 and 2011 orders were too remote in time to the underlying initial incident, several of the judges made findings, over a period of years, that the plaintiff was in fear of serious imminent physical harm from the defendant, and while the proof was not overwhelming, the defendant has made no showing of error or abuse of discretion.

D.P. v. B.W.

The mother appeals from the denial of her request to remove a 10 year old child from MA to NC.  The parties to this action were never married.  Father began visiting the child when he was 4 years old.  There was no custody or visitation order prior to this case and no child support order.  Informally, the parties agreed to a visitation schedule where they had almost equal time with the child. However, because the parties were never married and there were no prior paternity cases, mother has sole legal and physical custody of the child.

Mother married and has two other children ages 2 and 3.  Her husband is a merchant marine who travels for months at a time.  If Mother relocated to NC, her husband would only have to be away from home for a week at a time.  Mother argued the Yannas real advantage standard should apply to her request to remove.  Father argued that this was a shared custody situation and the Mason best interest of the child standard should prevail.  The judge concluded that the mother should not be permitted to remove under either standard and found it was not in the child’s best to move.

The appeals court made clear that mother was correct – the Yannas real advantage standard applies.  The Yannas test requires a good sincere reason for wanting to remove to another jurisdiction and soundness of the reason for moving.  The appeals court concluded the mother met her burden and remanded the case to the probate and family court for further determination of the second part of the Yannas evaluation – i.e. whether that real advantage would trickle down to the best interest of the child.

Hyre v. Hyre

The trial was a consolidated contempt and modification case.  Mother was alleging, among other things, child support arrears.  Father was seeking a decrease in child support obligation on account of an alleged reduced income.  The trial judge did not find Father credible.  He was looking to reduce his child support on account of alleged reduced income but had failed to file income tax returns for the prior three years.  Father’s bank records were agreed trial exhibits and showed over $90,000 of deposits to his account during those three years which is on par with his income as of the time of the child support order.  The trial judge did not find the father had demonstrated the requisite material and substantial change in circumstances sufficient to justify the reduction in his child support. 

Defeudis v. Defeudis

The Wife appealed from an unequal division of the marital estate and a judgment granting custody of the parties’ four minor children to Husband.  The Appeals court found the trial judge did not abuse her discretion.

The trial judge carefully constructed findings of fact which made clear she had considered all of the requisite factors in determining the allocation of assets.  After this 17 year marriage where the parties had enjoyed an upper middle class lifestyle, the judge made certain Wife would be able to sustain that lifestyle post divorce through a combination of alimony and asset division.  The judge also found that Wife could increase her income by working more now that she did not have primary custody of the parties’ four children.

The bulk of the parties’ assets came from the husband’s mother.  As such a 34/66 division of the assets was equitable.  The judge allocated debt free real estate to the Wife and left the marital debts which were owed to Husband’s mother to Husband.  Husband’s alimony obligation was reduced to account for the fact that Wife was not required to pay child support.

Wife argued that she had been the primary caretaker of the children prior to the commencement of the divorce action and that she was being penalized for her abusive conduct toward the Husband.  However, the judge clearly found that once the parties had separated, the Husband took over as primary caretaker of the children and the children had a strong connection to him and were thriving in his care.  While Wife’s abuse of Husband occurred in the children’s presence, the judge was clear that the determination of custody was based on the best interest of the children and not as a penalty for Wife’s behavior.

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.

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.

Wendy is a graduate of Suffolk University School of Law (2003 cum laude), Suffolk University (1998 cum laude) and Fisher College (1994).  She has been working at Nissenbaum Law Offices since 1994 first as a paralegal and, since 2003, as an associate handling all aspects of family law cases. 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).

Wendy co-authored an article 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.   

Wendy was named a Rising Star by Boston Magazine’s publication of Super Lawyers in 2011.