Reported decisions for August, September and October, 2013

by Jordana Kershner, Esq., Meredith DeJesus, Esq., and Lauren Pond, Esq.

Carol BARNES v. James DEVLIN, 84 Mass. App. Ct. 159 (Aug. 16, 2013) 

The Court of Appeals upheld a judgment of contempt against the father for failure to pay child support and ordering him to pay a portion of his son’s education expenses in the amount of $6,448 per year.  At the time of the parties’ divorce in 2000, the provisions of their separation agreement relating to their son provided, inter alia, that the father would pay $140 per week to the mother in child support and that they would share their son’s post-high school education expenses, consistent with the financial abilities and resources available to each of them.  The separation agreement also provided that the parties would have shared legal custody of their son and that the mother would have sole physical custody.  These provisions merged into the judgment of divorce nisi. 

In the fall of 2009, when the son was 18, he enrolled in North Shore Community College and moved in with his maternal uncle, who lived closer to the school.  The mother filed a complaint for contempt in October 2009 alleging that the father had failed to pay child support.  The parties thereafter voluntarily entered into a court-approved stipulation (the “first modification”), pursuant to which the father would pay child support to the mother in the amount of $100 per week (rather than $140), the full amount of arrears, and pay child support directly to the uncle in the amount of $90 per week.  The mother would pay child support directly to the uncle in the amount of $50 per week.  A few months later, in January 2010, the parties voluntarily entered into a second court-approved stipulation (the “second modification”), pursuant to which the first modification was unchanged and the father would work out a payment plan with the uncle for arrears in the amount of $810.  Apart from returning to the mother’s home for the summer in 2010 and holidays, the son lived with the uncle until he enrolled in Salem State University and moved on campus there in January 2011.  The son remained at Salem State University, except for holidays, which he spent with the mother, through the spring semester of 2012.

In total, the father failed to provide child support from June 2010 through March 2012, when the contempt trial was held. The mother fully complied with her child support obligations to the uncle. After a one-day trial, the father was found in civil contempt for failure to pay his child support obligations and was ordered to pay the $9,200 in arrears to the mother and to continue to pay her $100 per week.  Even though the judge had not found the father in contempt for failure to contribute to college expenses, he ordered the father to pay $6,448 per year toward the son’s education expenses.  The judge also awarded the mother $7,000 in attorney’s fees.

On appeal, the father argued that he should not have been found in contempt because the mother had failed to demonstrate at trial that the domicile and principal dependence requirements of G.L. c. 208, § 28 for post-minority orders for the “maintenance, support, and education” of a child were met.  The Court of Appeals held that “[w]ithout deciding whether the son was in fact domiciled with the mother and principally dependent on her when the modifications were approved, we think it clear that the judge held the father in civil contempt because he ‘chose to unilaterally stop pay[ing the] child support’ obligations he ‘willingly, freely, and voluntarily’ entered into without objection. We agree with the judge and so hold, irrespective of a determination whether the child support obligations complied with the domicil and dependency conditions set forth in G.L. c. 208, § 28.”  In so holding, the Court of Appeals relied on Kotler v. Spaulding, 24 Mass. App. Ct. 515, 517-18 (1987) (“We are of opinion that there is a significant difference between a provision for education rendered by a judge pursuant to § 28 following litigation, and a judgment or order which incorporates and requires compliance with the provisions of a bargained-for agreement.”)  The Court of Appeals also noted that not only had the father agreed to modify his child support obligations through stipulation, but satisfied those modified obligations for six months without objection and that the father’s proper recourse, if he objected to further payments, was to initiate modification proceedings rather than engage in self-help by unilaterally stopping payments. The father did not appeal the portion of the order obligating him to contribute toward the son’s college education.

Jean Waxman v. Lee Waxman, 84 Mass. App. Ct. 314 (September 30, 2013)

            Plaintiff wife filed a civil action in Superior Court following her husband’s untimely death during the pendency of the couple’s divorce proceeding, seeking (1) the entire proceeds from the sale of the couple’s condominium unit that they had held as tenants by the entirety; (2) conversion of a jointly owned automobile; and (3) the value of the deceased husband’s individual retirement account, based on the fact that the deceased husband violated the automatic restraining order in effect during the pendency of the divorce proceeding when he changed the beneficiary from Wife’s name to his children’s name three days prior to filing for divorce.

            The Superior Court granted Wife summary judgment on her claims related to the condominium proceeds and the automobile, but denied summary judgment on her claim related to the IRA account.  The deceased husband’s children appealed the decision related to the condominium and the automobile and the Wife cross appealed from the award of the individual retirement account to the children.  The Appeals Court affirmed the lower court’s judgment.

            The Court found that where the parties held title to the condominium as tenants by the entirety and maintained the title to the automobile in both names throughout the marriage, the lower court did not err in awarding the proceeds of the condominium sale and the automobile to the Wife.

            With respect to the IRA, the Court upheld the lower court’s decision that the deceased husband did not violate the automatic restraining order because he changed the beneficiary three days prior to filing for divorce.  The Court relied on the literal interpretation of Rule 411(a), which states that an automatic restraining order becomes effective “upon the filing of the complaint,” and left open as an issue of fact whether the deceased husband and/or his attorney possessed knowledge of the automatic restraining order “rendering the change of beneficiary an anticipatory evasion of its purpose.” The Appeals Court held that where the record showed that Wife did not pursue the factual point of the deceased husband’s state of mind at trial, it prohibited its review on appeal.

Nicholas C. Adams v. Nancy W. Adams (October 17, 2013)

In 2011, Nicholas Adams appealed a judgment of divorce.  The part of the judgment presently valuing the husband’s partnership interest in Wellington Management Company was vacated, and the case was remanded for proceedings to value the interest as consistent with the Court’s opinion.  In all other respects, the divorce judgment was affirmed.

After the case was remanded, the trial judge referred the case to a “special master to determine the valuation issue.”  The order stated that this special master would only hear from witnesses who had testified in the original proceedings.  Husband filed a petition to seek relief from this order because he wanted to call a new expert witness.  The Appeals Court justice denied the petition.  Husband later filed a second petition seeking relief from an order of the trial judge denying his motion for an instruction to the special master to “not exceed or otherwise depart from the mandate of the SJC” and overruling his objection to a discovery order.  This petition was also denied.  The husband then filed his petition in the county court, presenting the same arguments that he should be allowed a new expert witness and that the special master’s orders exceeded the mandate of the remand order.

The Court held that the husband has already sought review of the trial judge’s rulings and is not entitled to additional review.  The husband can obtain review of the orders in a direct appeal after final judgment. 

Ms. 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.

Meredith DeJesus is an associate at Sugarman Rogers Barshak & Cohen representing clients in complex family law matters. Her practice involves divorce and separation proceedings, asset division, alimony modification, support and child care arrangements, paternity proceedings, child custody and visitation matters, removal cases and postdivorce modification. In addition, Meredith routinely negotiates and drafts pre-nuptial agreements.  Prior to joining SRBC, Meredith was a domestic relations associate at another Boston law office.

Lauren Ann H. Pond is a trial lawyer at DLA Piper.  She very active in the Boston office's signature pro bono Special Education Project, representing Massachusetts Advocates for Children (MAC). She assists families through the procedural hurdles associated with the Free Appropriate Public Education (FAPE) process and works with children who have physical, emotional and psychological disabilities.  Ms. Pond also works on pro bono matters through the Women’s Bar Association.  She is an active member of the Boston Bar Association Family Law Section Newsletter Committee.

Prior to joining DLA Piper, Ms. Pond was a law clerk at the Superior Court of Massachusetts, where she worked extensively with justices on trials, hearings and motions sessions in all phases of civil and criminal litigation.