Summer 2014 Newsletter: Reported Case Descisions

By Wendy O. Hickey, Elizabeth Silvestri, and Meredith DeJesus

April 2014 Reported Decisions:

Holmes v. Holmes

SJC-11538 (April 2, 2014)

The parties were married for 15 years.  During the pendency of the divorce, Husband was ordered to pay temporary alimony and child support.  Thereafter, the judgment required he continue to pay child support and alimony.  In 2011, Wife filed a complaint for modification seeking and increase in alimony as she was no longer able to work on account of her cancer diagnosis.  Husband counterclaimed for a decrease in child support as one of the children was no living with him. 

After the effective date of the Alimony Reform Act, the judge issued a modification judgment.  Husband did not get his decrease but all of the payments to Wife were converted to alimony giving Husband the tax break.  The judge ordered Husband to pay the maximum duration of alimony under the statute (12 years based on a marriage of 15 years 7 days).  The alimony was ordered to continue for the maximum duration.  The judge did not subtract the temporary orders period of alimony from the calculation of duration (2 years, 3 months and 25 days).

Husband appeals on the grounds that the temporary orders phase of alimony should be included in the overall calculation of the durational limits of alimony. 

The alimony reform act did not amend, nor did it even reference G.L. c. 208, sec 17 which provides for the payment of temporary alimony during the pendency of a divorce action.  Under the Alimony Reform Act, general term alimony is one of four types of alimony available.  The form of alimony is not determined by the judge until the issuance of the judgment of divorce.  Therefore, general term alimony may commence only on the issuance of the judgment declaring the termination of the marriage.  Temporary alimony is not general term alimony.  Section 17, by its express terms, assumes that the parties are still married.

Husband raises concern that an alimony recipient could unnecessarily prolong the divorce to prevent the clock from starting on the duration of alimony.  The trial judge has discretion here.  If the judge suspects that is what is going on, the judge does not have to award the maximum duration for alimony and is not obligated to make specific findings when choosing not to award the maximum duration.  Findings are only necessary when the trial judge extends the alimony beyond the maximum durational limits contemplated in the statute.

Judgment affirmed.

June 2014 Reported Decisions:

Singh v. Capuano

(June 11, 2014)

Aneeta Singh filed a complaint on February 14, 2013, in District Court seeking an abuse prevention order against Scott Capuano pursuant to G.L. c. 209A. A temporary order was issued granting custody of the parties’ child to Singh and instructing Capuano to have no contact, to stay at least fifty yards away from the child, and to not abuse Singh or the child. After this order was issued, Singh filed a police report concerning the events underlying the c. 209A complaint and applied for criminal complaints against Capuano. A renewal hearing on the 209A matter was scheduled for February 22, 2013.

On February 22, 2013, Singh requested an evidentiary hearing and an extension of the abuse order for one year, but the judge declined both. The judge stated that he believed Probate and Family Court was the appropriate forum for the matter and was also concerned about the possible consequences for Capuano in the criminal proceedings if he were to testify in the c. 209A proceeding. The judge extended the order and continued the hearing until April 11, 2013. On April 11, 2013, Singh again requested an evidentiary hearing and order extension but the judge declined, reiterating his previous concerns. He extended only the no-abuse portion of the order until July 11, 2013.

On July 11, 2013, Singh again sought an evidentiary hearing and one-year extension of the original order. An evidentiary hearing was conducted at which Capuano asserted his privilege against self-incrimination and did not testify. Singh requested an adverse inference to be drawn against Capuano but the judge refused, extending only the no-abuse provision of the order for three more months. Singh appealed.

The SJC held that G.L. c. 209A requires a judge to hear the evidence before vacating any provision of an order issued under c. 209A where there is an objection. Both parties are entitled to an evidentiary hearing within ten days. Any decision by a judge to continue/suspend a hearing or postpone the receipt of evidence must be made in consideration of the judicial responsibility to hear and decide cases in a manner consistent with the purposes of the statute and the interests of justice. Neither a pending criminal proceeding against one party nor the option of a party to seek relief in Probate and Family Court are adequate reasons for continuing without holding an evidentiary hearing.

The SJC also held that when a defendant asserts his privilege not to testify, the judge must carefully consider all the circumstances of the case in deciding whether or not to draw an adverse inference. Furthermore, a defendant’s pending criminal proceedings or his visitation rights should not be considered in establishing the duration of a c. 209A order.

Hassey v. Hassey

(June 25, 2014)

The Parties married on September 18, 1988, and lived together until December 20, 2009. They had two children. In 1982, prior to the marriage, the husband became an equal partner in a dental practice with his father pursuant to a buy-in agreement where he worked full time throughout the marriage. The wife was a homemaker. The family enjoyed a comfortable lifestyle.

In 1996, the wife inherited a one-third share of a real estate partnership with her siblings that holds title to a property in Chatham on Cape Cod. It was rented out to vacationers but also used as a vacation getaway by the wife and her siblings. In 1997, the husband’s father gifted him the rest of his interest in the dental practice and forgave the $125,000 outstanding balance from the buy-in agreement. Another dentist joined the practice as partner and pursuant to a buy-in agreement the husband received an additional $90,000 annually for five years (ending in 2010). The husband’s gross annual income at the time of divorce was $359,858 with $22,000 in his 401(k). A judge entered a divorce judgment with a self-modifying alimony order. The husband was awarded the stipulated value of his dental practice and the wife was awarded her interest in the real estate partnership. The judge ordered the sale of the marital home, with the first $238,000 (representing the husband’s share in the dental practice) going to the wife and the remainder divided equally. The judge also ordered the husband to pay base alimony of $8,500 per month and additional alimony equal to 30% of his gross income in excess of $250,000 from all sources paid quarterly. To facilitate this self-modifying alimony order, the husband was ordered to provide quarterly documentation of his income to his wife. Alimony was to continue until either the wife’s remarriage/cohabitation, the death of either spouse, or the husband’s retirement as defined in the Act. The husband appealed.

The SJC held the amount and the form of the alimony order is improper. The judge’s failure to consider each parties’ ability to maintain the marital lifestyle made the alimony order, which constituted nearly 41% of the difference in incomes, invalid. The judge’s self-modifying order is also insufficient. It is not based on the judge’s determination of the parties’ needs and incomes at the time the order was issued as required by statute. It also is not one of the four types of alimony stipulated in the Act. Furthermore, the self-modifying order would allow for modifications in the alimony order without judicial determination and would place a burden only on the husband in its requirement for quarterly reports. The SJC found the judge did not give reasons to justify his departure from the statute in ordering that alimony remain until one of four stipulated factors were met including “retirement as defined in the Act” rather than just “full retirement age” as dictated in the statute. 

The SJC also held the assignment of property in the order is incorrect. The judge did not provide specific findings of the parties’ financial needs nor is it clear that the alimony order was properly factored into the order for the division of marital property. Additionally, the judge should have considered the wife’s interest in the Chatham property in his division because it was used during their marriage and if they had not, they would have incurred significant costs renting a vacation home. The SJC stated this constituted a reliance on the interest as a financial interest during the marriage and it should be considered in the assignment of property.

July 2014 Reported Decisions:

Robert N. Schmidt v. Sandra McCulloch-Schmidt,

86 Mass.App. Ct. 902 (July 2, 2014)

            Father appealed from an amended judgment reducing his child support obligation.  The Trial Court took into account both Father’s reduced business income since the time of divorce and Mother’s increased income resulting from her receipt of Social Security Disability Income (SSDI). 

            Father appealed on the basis that the trial Judge failed to provide him with a credit against the amount of child support owed under the guidelines for the amount of SSDI dependency benefits paid to Mother on behalf of the minor child. 

            The Appeals Court affirmed the Trial Court’s judgment, and held that such a credit is appropriate where it is the noncustodial parent who receives the SSDI benefits because the inclusion of the child’s SSDI dependency benefits in the noncustodial parent’s gross income results in an increased child support obligation under the guidelines. 

Wendy O. Hickey is admitted to practice in Massachusetts, the U.S. District Court, the U.S. Court of Appeals, and the US Supreme Court.  She has been with Nissenbaum Law Offices since 1994 in supporting roles at first and for the last eleven years, as an attorney.

Wendy 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 has lectured on various family law topics, mostly dealing with international kidnapping cases under the Hague Convention on Civil Aspects of International Child Abduction.

Wendy has written articles published in MA lawyers weekly and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.     

Elizabeth Silvestri is a graduate of Boston College (2012) and a soon to be graduate of Suffolk University School of Law (2015). She has worked as a Summer Associate for Collora LLP and a law clerk for the Law Offices of Adrienne J. Vaughn LLC. She hopes to practice in the field of family law upon graduation. 

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.