Summer 2014 Newsletter: Decisions issued by the Appeals Court pursuant to Rule 1:28

By Wendy O. Hickey, Esq., Brian McLaughlin, Jr., Esq., Ethan Rittershaus, Esq., and Meredith DeJesus, Esq.

April, 2014 1:28 Decisions:

deBeauport v. deBeauport

12-P-1822 (April 3, 2014)

            Wife appeals from an amended judgment of divorce challenging the denial of her request for legal fees and seeking a new trial.  The pre trial phase of the case was acrimonious resulting in substantial legal fees on both sides.  Wife filed seven complaints for contempt against Husband for failure to abide by financial orders.  Four of those contempt complaints resulted in judgments against Husband.  The court only ordered fees for Wife on one such complaint and reserved ruling on the fee issue in the other three contempts for the time of trial.

            Three months before trial, counsel for both parties were permitted to withdraw.  Husband hired successor counsel.  Wife did not.  Wife did not renew her motion for legal fees or request a continuance of the trial to permit her to obtain counsel.  The case was tried over 3 days after which the judge entered an order dividing the assets, establishing a custody and child support order, and ordered the parties pay their own legal fees.   The judge failed to make reference to the legal fees in the prior contempt proceedings.

            Wife claims the judge erred in denying her pre trial motion for legal fees arguing she was entitled to contemporaneous legal fees on the successful contempt actions.  There is a presumption under §34A that a prevailing plaintiff is entitled to “all of his reasonable attorney’s fees and expenses relating to the attempted resolution, initiation and prosecution of the contempt complaint.”  The presumption can be overcome by specific findings of the judge supporting a reduction in the fees.  Here, the judge failed to make any findings regarding the denial of Wife’s request for fees as the prevailing party in the contempts. 

            There is no new trial but the paragraph of the judgment regarding legal fees is vacated and case is remanded for further determination on that issue.

Ramirez v. Morgan

13-P-286 (April 3, 2014)

            Mother appeals from judgment on a cross complaint for modification of custody and visitation.  The modification judgment establishes a new parenting plan and requires the parties to communicate via email.  Mother proposes to replace direct email communication with a third party intermediary.

            Most of Mother’s issues raised on appeal relate to factors which occurred after entry of the judgment, namely father’s move to Illinois.  Such issues cannot be attached on appeal. Mother has not shown any abuse of discretion or error of law.

            Judgment affirmed.

DelBrocco v. Boisvert

13-P-1243 (April 4, 2014)

            In their separation agreement, the parties had a provision which permitted either to buy the other out of the marital home under certain time parameters.  If neither notified the other of their desire to buy the other out, the house would be sold.  The price was to be determined by an appraiser with the issue going to binding arbitration if they could not agree on the price set by the appraiser.

            Wife notified husband of her intent to buy him out then did not do so.  She did not inform him she changed her mind.  Husband never informed wife he wanted to buy her out.  Various contempts were filed in the Probate Court.  The court issued an order regarding arbitration followed by the arbitrator declining to continue and returning the parties retainers.  Thereafter the probate court issued an order that the home be sold with a price to be set by a realtor.  This action filed in the Superior Court for breach of contract on the arbitration issue followed.

            Summary judgment was entered on the contract claim in favor of the wife.  The ruling was proper.  The argument that the wife breached the contract by failing to participate in arbitration was barred by the prior Probate court case.

            Judgment affirmed.

Hilman v. Stotsky-Hilman

13-P-1364 (April 10, 2014)

            Following a May 31, 2011 divorce judgment and order clarifying the judgment, Wife filed an appeal.  Husband filed a cross appeal.  Thereafter, Wife, on advice of counsel, agreed to stipulate to the dismissal of both her appeal and Husband’s cross appeal.  Counsel prepared a stipulation which was signed by all of the parties.  On the morning after signing the stipulation (and before her counsel filed the stipulation with the Appeals Court), Wife sent her counsel an email retracting her stipulation for dismissal.  Nevertheless, the stipulation was submitted to the Appeals Court and the case was dismissed.

            Thereafter Wife filed a pro se motion to vacate the dismissal and reinstate her appeal on the ground of counsel’s excusable neglect.  The motion was allowed by the Single Justice.  Husband then appealed the decision of the Single Justice to the full panel.  The action of a single justice may be reviewed by the appellate court as if the single justice decision was a decision of the lower court. 

            A court may vacate a stipulation of dismissal only in extraordinary circumstances, such as a lack of authority to enter into the stipulation.  Wife did not show, as was her obligation, that her counsel lacked authority to sign the stipulation.  Rather, Wife’s evidence was that she had buyer’s remorse.  An agreement to settle claims is a binding agreement on the parties.

            The order of the single justice vacating the stipulation of dismissal and reinstating the appeal is reversed.

Steele v. Steele

13-P-1366 (April 11, 2014)

            Husband appeals from a divorce judgment awarding Wife 30% of his income (base and bonus) as alimony and dividing the marital estate with values as of the date of divorce.

            The parties separated in 2005 but remained married until 2013.  During the separation the court found that the parties maintained an economic partnership including filing joint income tax returns and maintaining the marital home.  Husband failed to present sufficient evidence of values of assets as of 2005 to permit the court to determine a value as of the date of separation anyway.

            The judge found that the parties lived a middle class lifestyle and that because of their choice for Wife to remain out of the workforce as homemaker, her earning capacity diminished while Husband’s increased over the years.  Wife needed and Husband had an ability to pay 30% of his income as alimony.  On the bonus, the judge determined the average bonus of the Husband during the marriage and capped Wife’s alimony at 30% of the average bonus.

            There was no abuse of discretion.  Judgment Affirmed.

Tatarinov-Levin v. Tatarinov-Levin

12-P-520 (April 24, 2014)

            Former Wife appeals from entry of QDRO amending a term of the original judgment of divorce from 2009.  She previously appealed multiple issues from the original judgment unsuccessfully.

            At issue was a misunderstanding of the nature of a retirement account.  At the time of divorce, the parties believed Wife’s requirement account was a defined contribution plan and the judge ordered a certain amount to be transferred to Husband.  Actually the plan was a defined benefit plan with no cash value.  When the issue arose, Husband filed a motion and the judge entered a QDRO modifying the original judgment to divide the retirement plan on a percentage basis based on a marital coverture formula. 

            Wife appealed pro se.  She insisted that the trial judge allowed the QDRO on an ex parte basis when the record clearly reflects her then counsel filed an opposition and that the judge did not rule on the motion for several months after all of the paperwork was in.  Wife is held to the same duties as a represented litigant.  Although the court can choose to relax the standards for pro se litigants, this is not a case where reasonable accommodation ought to be made.  Wife’s first appeal put her on notice of the possible sanctions and expense of appeal.  She had no reasonable likelihood of success on appeal so Husband should get appellate counsel fees.

Rae Callahan v. Alden Bedard

13-P-914 (April 24, 2014)

            In this case the parties were never married but have one young child.  They reached a settlement agreement which was incorporated into a judgment of paternity.  Father voluntarily acknowledged paternity and the parties agreed to a $550 per week support order with a visitation plan.  The parties’ stipulation included a provision where father would transfer the condo unit in which mother and the child were residing into a new trust to be formed with mother and child as equal beneficiaries.  The child’s share of the condo was to be used at a later date to pay for her college education.  In addition to the $550 per week child support, father also agreed to pay the taxes and condo fees on the unit even after transfer.

            Father filed a motion for relief from judgment pursuant to Rule 60(b) alleging that there is no authority for the court to transfer property to the mother in a paternity case.  Father’s motion was denied.  This appeal follows.

            The probate court had authority to approve the parties’ stipulation and enter it as a judgment authorized by multiple sources including general equity powers of the probate court, precedent, and G.L. c. 209C which gives the court the powers to enter orders to meet the child’s needs including college.  Father cannot use lack of jurisdiction to quell his buyer’s remorse.

            Because father should have known that his appeal lacked any reasonable likelihood of success, Mother’s request for appellate fees is allowed.

Greeley v. Greeley

12-P-1996 (April 25, 2014)

            The former wife filed complaints for contempt and in equity against the former husband.  She appeals from the judgments and from the denial of her post trial motion to amend and alter judgment.

            Husband has been employed by Fidelity since the early 1980’s.  At the time of the divorce, his compensation was made up of base pay, bonus and various Fidelity Shares plans (these plans change periodically and are sometimes known as incentive shares or performance shares or performance options the shares vest over a period of time from the date of grant and are based on the performance of the Fidelity company overall whereas Husband’s bonus is based on his individual performance and that of the employees he oversees.)  The shares were treated in the divorce as assets and divided as property upon vesting.

            Husband’s child support and alimony are based on his base pay plus earned bonus.  There seems to be a dispute about what the word earned bonus means.  Each side claims the language is clear and unambiguous but each seems to have a different definition of the word earned.  Wife says Husband is in contempt for failing to pay alimony on future grants of shares.  Husband says those future shares are not in the nature of earned bonus income and therefore are his and not subject to further property division.

            Upon review the appeals court concluded that the judge could conclude it was more probable than not that the intent of the parties was to measure the husband’s alimony obligation only on the bonuses which were based on his performance and that of his managed employees and not that of Fidelity overall.  So, Husband was not guilty of contempt.

            However, the other issue raised by Wife was a claim that after an account was given to her, Husband made unauthorized withdrawals from the account.  Initially the Appeals Court could not tell whether the trial judge had considered the withdrawal issue and requested clarification.  The judge then issued a Remand Memorandum claiming there was no evidence offered to indicate that Husband had improperly withdrawn the funds.  However in reviewing the trial transcript and the Husband’s proposed findings, the issue was clearly raised and evidence was presented thereon.  So the judgment is vacated as it relates to this issue and remanded.

Mussmann v. Pieczarka

13-P-1330 (April 28, 2014)

            Defendant brother appeals from plaintiff’s sister’s 209A order.  Brother, who resides in New York, went to the home of the parties’ father in May, 2013 after receiving word of his mother’s death.  When he arrived he pushed his way into the home.  Brother testified that he thought it was his elderly father having difficulty opening the door.  In fact it was Sister, who now resides in Pennsylvania, on the other side of the door and she did not recognize brother having not seen him since 1971. 

            Sister then sought and obtained a 209A order based on a claimed fear stemming from the sexual abuse perpetrated by brother when the parties were children.  Sister brought along another sister to the hearing and the other sister testified to similar sexual abuse by the brother when they were children.  The sister seeking the order claimed fear for her safety based on the past.  Brother on the other hand testified he was only home for a brief visit after his mother’s passing and did not want any further contact with his sister. 

            The trial judge clearly tried to reason his way through the facts – commenting he was unsure why the sisters would lie about such things and, in an effort to look at the totality of the circumstances issued the requested 209A order. 

            On appeal, Brother claimed there was no evidence of abuse on May 30th and that the decades old sexual abuse allegations were insufficient to establish a reasonable fear of imminent physical harm.  The record contains no evidence that the alleged sexual abuse which occurred some 40 years ago when the parties lived together might resume.  The appeals court sided with Brother and vacated the 209A order.

T.T.L. v. A.T.L.

13-P-1525 (April 28, 2014)

            Wife got a 1 day 209A order against Husband.  The following day a different judge in the district court extended the order for one year following a hearing at which both parties participated.  Wife did not tell the first judge that the parties were in the process of a divorce but the second judge knew.  Wife sought the order based on alleged unconsensual sexual intercourse.  She reported one incident to the police and at the time said there was a history of more than 20 other occasions.

            The hearing judge credited Wife’s testimony not Husband who claimed the sex was consensual.  Husband filed two motions to terminate and expunge the order – both of which were denied.

            Husband appeals from the order and from the denial of his motions claiming that Wife committed fraud on the court by failing to notify the first judge of the ongoing divorce.  Disclosure of a divorce is required at the time of obtaining a 209A.  Wife disclosed the divorce at the extension hearing which is the order Husband seeks to terminate and expunge.  Therefore his claim of fraud on the court fails.

            Orders affirmed.

Guardianship of Mary E. Nickerson

13-P-266

            Thomas Nickerson, as an individual and as executor of his mother’s estate, appealed from a judgment on Conservator Richard Garmil’s substituted temporary account and inventory and substituted permanent account and inventory. He contended that the judge impermissibly shifted the burden of proof to him, the findings were clearly erroneous, the judge exceeded the Probate Court’s jurisdiction, and the fee awarded to the conservator was excessive.

            As to the burden of proof, the Appellate Court affirmed the Probate Court ruling. Relying on  Rhode Island Hosp. Trust Natl. Bank v. Burns, 12 Mass. App. Ct. 251, 255, 423 N.E.2d 1 (1981), quoting from First Natl. Bank v. Brink, 372 Mass. 257, 264, 361 N.E.2d 406 (1977), the Court held that: “It is settled that in a probate proceeding the burden of proof is on the accountant, after he has admitted the relation and the receipt of a certain sum, to prove that he has disposed properly of the amount for which he is accountable, and to show what that amount is." Nickerson’s objections failed to meet the statutory obligation of production held within M.G.L. c. 190B s. 1-401(e). An objector must state, "the specific facts and grounds upon which the objection is based." Various findings stated that Nickerson had provided no evidence to support particular objections to the account.

            As to the erroneous findings, the Appellate Court affirmed the Probate Court judgment. The court had made explicit credibility determinations and drew reasonable inferences from Nickerson’s late productions of two additional passbooks. "On appeal, we are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence." Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420, 837 N.E.2d 1121 (2005), citing Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 452, 677 N.E.2d 127 (1997).

            Nickerson finally contended that State and Federal Medicaid provisions preclude the judge’s award of fees to the guardian. Relying on the naked assertion that 42 U.S.C. 1396 et seq. bars the fees. The Appeals Court held that a reference to the entire Medicaid statute without particularity was an inadequate legal argument.

           

 Matthew Taylor vs. Theresa Taylor

13-P-997

Father appealed from a judgment of the Probate and Family Court that adjudicated Mother not in contempt, and a denial of a post judgment motion for reconsideration. Father alleged that mother had not paid her portion of the child support and her share of the extracurricular expenses per a modification of a previous divorce judgment.

The Appeals Court first turned to Birchall, 454 Mass. 837 (2009) to identify the relevant standard for a contempt. “We require that…a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” The Appeals Court reviewed for an abuse of discretion in the lower court’s ruling, “An abuse of discretion consists of judicial action that no conscientious judge, acting intelligently, could honestly have taken.” turned to L.F. v. L.J., 71 Mass. App. Ct. 813, 821, 887 N.E.2d 294 (2008).

As to father’s first claim, that wife had not compensated him for the children’s activities, the trial judge found that per the stipulation that had been merged with the modification judgment,  any expense over $300 had to be agreed to in writing. While, father represented that he had made attempts to communicate with mother, there was nothing in writing, and it was not a mistake for the judge to find wife not in contempt on these facts.

With respect to the child support, according to the merged stipulation, father was granted physical custody of the two children, and mother would pay weekly support in the amount of $100. Mother represented at the contempt hearing that one of her daughter’s had moved back into her house in in September 2009, and that father had signed a document which waived support payments.

The Appeals Court found that to the extent the judge found the waiver of child support based on the document, the finding was erroneous. Relying on Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000), the court held that pursuant to M.G.L. c. 119 s. 13(a), that an out of court agreement, with no judicial input, after a child support order has been entered, does not constitute a defense to a complaint for contempt.  In addition, it is worth noting that per the same statute, a judge cannot moot or reduce arrearages for child support except when there is a pending modification.

The Appeals Court also found that, to the extent the Probate Court relied on the defense of laches in determining the wife to be not guilty of contempt, there was also clear error. Relying on Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214 (1997), the Appeals Court stated that overdue support payments are judgments by operation of law; prohibition against retroactive modification of child support obligations is clear and unequivocal; and defense of laches is unavailable.

Finally, the Appeals Court found procedural problems with the original contempt hearing being adjudged on the basis of representations by the parties rather than an evidentiary hearing. Relying on Abdallah v. Boumil, 4 Mass. App. Ct. 499 (1976), the Appeals Court stated that, while a contempt hearing could be conducted on representation, given the lack of agreement on material facts presented, they were unsure that Father’s due process rights had been sufficiently protected.

            The Appeals Court upheld the contempt judgment with respect to the unpaid extracurricular activities, and remanded/vacated the judgment with respect to the unpaid child support.

L.T vs. J.T

12-P-1476

            Husband appeals from an order of the Probate and Family Court denying his 60(b) motion in which he sought relief from the portions of the judgment of divorce NISI related to paternity, custody, and support of the parties’ two minor children.

            The parties were divorced March 29, 2011. On March 19, 2012 the husband filed a motion for relief from judgment. This motion was based on alleged misrepresentations by wife about father’s paternity, and other unspecified misrepresentations which led up to the signing of the separation agreement.

            On a first appeal, the matter was remanded back to the trial judge in order to obtain a statement of reasons. After receiving this statement, the Appeals Court found the following: that the papers which were purportedly the DNA testing were not included in any of the case file and thus were not part of the record per Mass. R.A.P. 8(a). The Appeals Court further found that the Rule 60(b)(3) motion was based on bald and conclusory statements and thus subject to denial without a hearing. Knott v. Racicot, 442 Mass. 314 (2004).

Finally, the Appeals Court held that the trial judge was entitled to apply her knowledge of the case and her familiarity with the parties to conclude that husband’s claim was disingenuous and that the true basis for the motion was to obtain relief from his child support obligations in derogation of the policy established in Paternity of Cheryl, 434 Mass. 23 (2001).

The order of the lower court was affirmed in all respects and the wife’s request for costs and attorney’s fees was granted pending a hearing on the merits.

Julie Doherty Pagano vs. Michael P. Dolaher

13-P-1260

Husband appeals from entry of a default judgment against him and the denial of his 60(b) motion for reconsideration.

The judgment was entered after defendant and defense counsel failed to attend the pretrial conference. In relevant part, the judgment held that Husband had to pay 50% of his son’s college expenses in the amount of $46,236.50. A judgment of civil contempt was then entered for failure to pay.

The Appeals Court reviewed the denial of the motion for reconsideration under the standard of an abuse of judicial discretion. Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764 (2006). While, defense counsel’s conduct (failing to notify the court of a change in address or telephone number which led to the original nonappearance by defendant) was both inappropriate and irresponsible, the Appeals Court held a default judgment was too severe a sanction to impose. Especially, in light on the subject matter of the case.

Relying on the six factor analysis contained in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 (1979), the Appeals Court concluded that the default judgment was too severe a sanction to impose as was denying the motion for relief from that judgment. This was the case because of both the Berube factors being met and the severity of the sanction in light of the failures of defendant’s counsel. However, the Appeals Court took pains to add that simply meeting the 6 factors of the Berube analysis was not, in and of itself, sufficient to demonstrate an abuse of discretion and compel a default judgment to be vacated.

In addition, the Appeals Court held that the award of a default judgment in a case where child support was an overarching issue was a violation against the traditional policy in cases of that type. Imprescia v. Imprescia, 392 Mass. 101 (1984).

Thus, denying the motion for relief from the judgment was an abuse of discretion. The default judgment and the contempt judgment were vacated and the matter was remanded for further proceedings.

Collum v. Fross

13-P-1398

Fross appealed from a contempt judgment entered by the Probate and Family Court. Mr. Fross was not found in contempt of court, but rather, contends that the “clarification” of the contempt judgment has aggrieved him. As a threshold matter, the Appeals Court did see merit in orders seeking to bring clarity to uncertain terms.

Parties were divorced in 2009 via a merged and incorporated separation agreement. The two provisions most at issue were, a requirement that defendant provide wife a copy of his W2 and other tax documentation so long as an alimony obligation existed, and a requirement to maintain life insurance policies.

Fross contended that the order requiring him to provide unredacted tax returns was in violation of M.G.L. c. 208 s. 54. The statute provides, in the event of payor’s remarriage, the income and assets of payor’s spouse shall not be considered in a determination of alimony in a modification. As this was at best tangentially related to the issue before the court (whether he had to provide the tax returns), the Appeals Court found no support for the contention that producing the tax information in some way ran aground of the statutory requirements. Affirmed.

In his second argument, Fross contended that the judge should not have clarified the order with respect to life insurance. He had attempted to substitute the policy in the judgment for a lower cost alternative. Given the record on the issue: that the proposed substitution would be amenable to Collum so long as the policies proposed as replacements were transferred to her name; the Appeals Court declined to opine on the matter further except to say it was not clear error. Affirmed.

Debi Ray-Chaudhuri v. Dancia Marie Phelps

13-P-1133

Plaintiff appealed from a judgment dismissing her complaint seeking a declaration that she is a de facto parent to a child and denying her motion to amend the complaint. Child was conceived in vitro using sperm donated by the plaintiff’s cousin. Plaintiff asserts error to the dismissal and the denial of her motion to amend.

Plaintiff argues that she should be considered the de jure parent due to the following: that a New York Court had determined that the plaintiff was in essence the defendant’s family for purposes of an eviction, and direct contractual rights or estoppel arising from the donor insemination agreement.

The Appeals Court rejected both arguments holding that, [in Massachusetts] “private agreement alone does not suffice to create parental rights in one who is not the child’s biological or adoptive parent.” A.H. v. M.P., 447 Mass. 828, 837, 857 N.E.2d 1061 (2006). As it is undisputed that the parties never entered into a formal domestic partnership recognized under NY law or became married, and that the plaintiff never adopted the child, relying on the donor agreement is fruitless.

Reliance on the NY civil judgment was also unpersuasive. The New York Civil Court did not have jurisdiction to determine parental rights and did not consider the child’s best interest. The question before that court was the relationship of the parties before the child was even born for purposes of an eviction. The judgment of the lower court was affirmed.

Mary Meg Walsh v. Michael F. Walsh

13-P-796

            Wife appealed from a Probate and Family Court judgment dividing marital property and awarding spousal support. Wife argued on appeal that the judge abused her discretion in awarding alimony below the suggested child support guidelines amount, awarding the husband his full interest in the real estate, and declining to allocate the wife’s student loan debt between the parties.

            On September 2011, Wife filed for divorce. Following a trial, a judge made the following findings: parties had three emancipated children, two in college, one who spent approximately even time with both parents. Both parties had college degrees, good career prospects, and good health. While wife had spent the majority of the 22 year marriage as a homemaker, she also made an income of approximately $225 weekly working as an outreach worker. Wife owed approximately 66K in student debt and credit cards. Husband made approximately 3K weekly, held bank accounts in the amount of 75K, and approximately 26K in debt, as well as 50% interest in a property for which his father held a life estate. The husband also paid approximately 2k per month towards his daughter’s college tuition, all the children’s uninsured medical expenses, and his daughter’s car insurance and maintenance.

            The judge than entered an order allowing husband to retain full interest in the property he owned, subject to the loan, which he would be solely responsible for. Husband would also be responsible for maintaining a life insurance policy naming wife as the beneficiary, and maintaining the children on his health insurance. The husband’s 401K would be divided and the husband would pay the wife $500 per week in alimony.

            The Appeals Court first determined the standard of review, relying on Drapek v. Drapek, 399 Mass. 240 (1987), and holding the standard to be an abuse of discretion. Following this determination, the Appeals Court reviewed the judge’s findings for clear error per Adams v. Adams, 459 Mass. 361 (2011).

            In commenting on the deviation from the child support guidelines, the Appeals Court, relying on C.D.L v. M.M.L., 72 Mass. App. Ct. 146 (2008), held that the guidelines do not preclude the court from deciding that any order be denominated in whole or in part as alimony, and that the guidelines provide a rebuttable presumption for the appropriate amount of support which may be overcome through a best interest analysis supported by specific findings. Department of Rev. v. Foss, 45 Mass. App. Ct. 452 (1998). In regard to child support, the son spent nearly equal time with each parents, both parties had good employability, good earning potential, and the husband paid for most of the son’s expenses; there was no abuse of discretion in the decision to award alimony below the statutory guidelines.

            The Appeals Court next turned to an analysis of the division of assets and debt governed by M.G.L. Ch. 208 section 34. Quoting Adams, the court held that they would only find an abuse of discretion if they found a division which was “plainly wrong or excessive.” The required section 34 findings were properly made, and while the division was not exactly equal, it was not inequitable. Judgment affirmed.

Nystrom v. Nystrom

13-P-54

In 2010, Wife filed a complaint for divorce after a 21 year marriage. Among other terms in the judgment of divorce nisi, the judge ordered that the husband pay rehabilitative alimony in the amount of $300 per week for six months and that the wife compensate husband for any costs associated with her health insurance. Wife appealed from both of these terms and from the dismissal of the post judgment modification she had filed.

Parties had one child, 21, attending school but not principally dependent on either parent. Wife held a bachelor’s degree and a masters of education. While wife had made approximately 80K per year working in pharmaceutical sales, she had been laid off five years prior, and had not been able to find more work. Husband made between 58 and 74 thousand dollars yearly.

Disposing of the dismissal of her modification, the Appeals Court held that the trial judge had dismissed the modification after counsel for the husband argued that upon submission of a notice of appeal, the modification had to also be submitted to the court of appeal; a plainly incorrect ruling based on a groundless argument. In fact, the Probate Court retains jurisdiction to entertain actions for modification until the very time of the docketing of the appeal pursuant to Mass.R.A.P. 10(a)(1). See Braun v. Braun, 68 Mass. App. Ct. 846, 852, 865 N.E.2d 814 (2007).

            The Appeals Court reviewed the trial court’s findings for clear error and abuse of discretion. While the court held that M.G.L. c. 208 s. 34 still grants “considerable discretion in fashioning an alimony award,” Sampson v. Sampson, 62 Mass. App. Ct. 366, 369, 816 N.E.2d 999 (2004), quoting from D.L. v. G.L., 61 Mass. App. Ct. 488, 508, 811 N.E.2d 1013 (2004), the award must contain findings concerning entitlement, need, employability, and earning capacity. “"The standard of need is measured by . . . what is required to maintain a standard of living comparable to the one enjoyed during the marriage." Sampson v. Sampson, 62 Mass. App. Ct. at 369.” The court also examined M.G.L. c. 208 s. 48-53 to determine the appropriate form of alimony.

            Turning to the instant case, the Appeals Court found that the trial judge had entered the unusual alimony order due to finding that she had refused work (a commission based sales position that would have required her to relocate), her average income for a five year span had been 50K, she had the ability to work, and she had sufficient education.

            As there were no findings a to the impact of wife’s age on becoming reemployed as required by M.G.L. c. 208 s.53(a), the Appeals Court vacated the judgment as to both alimony and health insurance, and remanded for updated findings as to wife’s earning capacity. While this was the only statutory hook the court employed, it is clear that they simply disagreed factually with the judge’s assessment even from the trial record. Specifically, as to wife’s earning capacity and her ability to find new work.

Brady v. Brady

13-P-1729

Defendant filed various challenges to the finding of contempt regarding his failure to pay college expenses. The Appeals Court observed that the defendant did not argue at the contempt hearing that the evidence was insufficient to establish the amount of college expenses due. As a result any challenges resulting were waived.

            As to his inability to pay the contempt, the Appeals Court found that after remand he paid his expenses. This supports the implicit finding by the hearing judge that he had the ability to pay. Additionally, the finding of contempt stands regardless of the merits due to the remaining unchallenged grounds:

We note that an award of attorney's fees to the plaintiff by the trial court may be made in the circumstances, even in the absence of contempt, on the basis of the defendant's initial refusal to pay the college expenses, "in order to mitigate expenses incurred as a result of the husband's obstructionist conduct." Hennessey v. Sarkis, 54 Mass. App. Ct. 152, 157, 764 N.E.2d 873 (2002). Judgments affirmed.

Poster v. Biller

13-P-792

Mark Poster brought a legal malpractice action against Richard C. Biller, the first of four divorce attorneys in his action. Poster blames Biller for the loss of his primary residence and home office, the equity in his vacation home, rental income, and retirement savings. He appeals from a summary judgment dismissal of his claim based on the fact that the opinion letter of Attorney Robert Monheimer, Poster's liability expert witness, was inadequate as matter of law.

            According to Attorney Monheimer, Biller committed three violations of the standard of care during the six-month period he represented Poster: (1) limited the relief requested in his July 12, 2005, "motion for temporary orders regarding the marital expenses" to an order to obtain a home equity loan on the  property; (2) agreed to continue the hearing on Poster's September 27, 2005, "motion for temporary orders regarding marital finances" in order to explore settlement; and (3) advised Poster to allow the mortgages on the marital properties to go into default. This opinion was legally insufficient because it (1) ignores critical undisputed facts; (2) was based upon unsupported facts; and (3) would not permit a jury to infer that any act or omission of Attorney Biller caused harm to Poster.

Poster, relying on the advice of several friends adamantly refused to discuss settlement until he was “made whole,” operating on the assumption that wife had wrongfully manipulated him into carrying marital debt. To that end, Poster insisted wife sign another home equity loan, a request which Attorney Biller attempted to facilitate by filing a motion to order wife’s cooperation in obtaining such a loan. While, Monheimer (expert witness), contented that Attorney Biller should have requested alimony etc., the motion in question requests such other relief as the court deems just. A request denied by the motion judge. In his letter Monheimer did not opine that a Probate Court judge would have likely granted this relief if requested. See Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500, 930 N.E.2d 1262 (2010) (client alleging negligence in prosecution of claim must prove "that he probably would have obtained a better result had the attorney exercised reasonable skill and care"), quoting from Fishman v. Brooks, 396 Mass. 643, 647, 487 N.E.2d 1377 (1986); Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 114-115, 515 N.E.2d 891 (1987) (concluding, in context of malpractice claim alleging failure to perform work, that expert testimony was required to prove that attorney would probably have obtained the relief sought by the clients).

The Appeals Court also, “decline(d) Poster's invitation to extend the loss of chance doctrine to legal malpractice claims. See NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8, 992 N.E.2d 291 (2013) (argument raised for first time on appeal deemed waived). The question whether to significantly change Massachusetts law should be made on a well-developed record with full briefing from the parties.

Finally, the Appeals Court held that, “The judge did not "neglect" other record evidence concerning Biller's professional negligence that would have satisfied the expert witness requirement. Although Attorney Helman (successor counsel) provided some favorable deposition testimony regarding Biller's failure to act with alacrity, so far as appears, Helman has not been retained as an expert witness willing and able to testify at a trial. Moreover, Helman's deposition testimony was too vague to support a viable legal malpractice claim arising from the professional negligence of Biller. Poster's second expert, Russell Lightman, relied upon Attorney Monheimer's opinion in formulating his own opinion regarding damages. A certified public accountant, Lightman, a non-attorney, neither attempted nor was qualified to render an independent opinion on Biller's negligence.

Absent appropriate expert testimony regarding any alleged deviations from the standard of care proximately causing loss to Poster, essential elements of Poster's legal malpractice case, summary judgment was properly granted. See Global NAPs, Inc. v. Awiszus, supra at 500. Judgment affirmed.

Callahan vs. Bedard

13-P-1619

            Parties, who had had a child but were never married, entered into a stipulation concerning custody and support of their minor child. Of note, the stipulation called for the creation of a trust into which title to a condominium (which mother and child resided but father owned) would be placed. After the stipulation parties agreed that the counsel for father would subsequently prepare the trust instrument and that within 90 days the document would be signed.

            Parties were unable to agree on the final terms of the trust instrument, and the judge accordingly appointed a special master to prepare a trust document in accordance with the Stipulation and Judgment and pick a Trustee. The contemplated trust provided that 50% of the condominium equity was to be for the benefit of the child and 50% was to the benefit of mother and her heirs.

On Appeal, the father argued that the special master exceeded his authority in supplying a provision to the trust that was not contained in the stipulation and that the judge erred in accepting the special master’s recommendation as to that term. The term in question was, “if the condominium is sold, the "trustee may distribute, in the trustee's sole discretion, up to $100,000 of [the mother's] portion of the net proceeds to [her] to be applied to the purchase of a new residence. Any such distribution will be deemed to be an outright distribution, free of all trusts and will be deemed to be solely for the benefit of [the mother].”

            In the instant case, pursuant to rule 53(d) of M.R.C.P. the Special Master was properly appointed to prepare a trust instrument “in accordance” with the stipulation because the parties could not agree to terms. It was reasonable to conclude that given the parties lack of agreement that the terms supplied by the Special Master were intended to harmonize the entered stipulation with the proposed trust. As the trust existed to provide a place of stable housing for the mother and child it was not error to accept the Special Master’s recommendations. Judgment affirmed.

M.M. v. C.K.

13-P-404 (June 2, 2014)

            The appeal stemmed from a lengthy divorce process which began in 2000 when Wife initially filed.  The parties initially stipulated that Wife have sole physical custody of the parties’ two sons then ages 1 and 3 with some supervised visitation to Husband.  There was a parallel 209A action preventing contact between Husband and the children.  The following year, the court appointed a GAL to investigate the issue of custody and parenting.  In February 2002 the GAL concluded that there was credible data supporting mother’s allegation that father had sexually abused the older son.  The GAL report contained graphic detail of the evidence that led the GAL to reach the conclusion.

            In May 2003, the court made the 209A order permanent.  Wife was granted sole custody of the sons and husband was generally prohibited from having any contact with them.  Around the same time, in the divorce action, the court suspended Husband’s visitation. 

            In November 2003 the court entered a bifurcated judgment of divorce nisi at which point nothing happened for several years.  In 2009 Wife filed a complaint for contempt over non-payment of child support reviving the action.  As a result, the court scheduled a trial on the other outstanding issues which had never been adjudicated.  The trial was scheduled for January 13, 2012.  However, on December 29th, the court mailed notice to the parties that the trial was being advanced by 4 days to January 9th.  Wife was pro se and attempted to explain that she had lined up all of her witnesses for January 13th.  The trial judge was unsympathetic and insisted the trial go forward as rescheduled.  Wife was unable to present evidence inasmuch as her witnesses were not present (when they appeared on day 2 of the trial the following day the judge prohibited them from testifying because Wife had “rested”).  The one witness who was present, a probation officer who had long involvement in the case, was not permitted to testify because he had not been formally subpoenaed by wife despite being present and readily willing to testify.  Further the GAL who did the initial investigation had died in intervening years so the court prohibited any mention of the report at trial.

              On day 3 of trial Wife had a limited appearance lawyer who made an impassioned plea to the court that justice required Wife be allowed to present evidence of sexual abuse.  The judge denied Wife’s motion on grounds that she had not technically filed a motion for more time. 

            At the conclusion of trial, the judge found Wife had not substantiated her burden of proving Husband had sexually abused Andrew however he did credit Wife’s testimony about Andrew’s belief Husband had sexually abused him and of Andrew’s mental health issues but he concluded he needed more information before any reconciliation could be attempted.  The court appointed Dr. Andrew Clark as mental health professional to opine on whether reconciliation ought to occur.  Strict limitations were placed on Dr. Clark’s evaluation.  Dr. Clark’s report did not recommend reconciliation with husband and did give reasons why contact was a bad idea from a mental health stand point.

            Nevertheless, another judge held a follow up hearing and after which issued a supplemental judgment including findings that Wife was not credible and had been on a 12 year campaign to accuse and disparage husband with no proof.  The judge noted the boys were adamant in their disdain for Husband.  The judge set a reunification goal with the younger child but declined visitation with Andrew.  The judge also vacated the no contact order.  At that same time, she issued a modification of the 209A order vacating the no contact provisions and the provisions addressing visitation rights.

            Because Wife failed to timely appeal the January 2012 divorce judgment, that is not an issue to be addressed.  However Wife did timely appeal the issue of the modification of the permanent restraining order.  Husband did not have the right to appeal a decade old order.  If anything he needed to show by clear and convincing evidence a material change in circumstances to modify the old order – something he did not do.  The judge effectively vacated the order without taking any evidence at all.  Even worse, the judge essentially found Wife had fabricated the allegations of sexual abuse from the outset. 

            Both the supplemental judgment of divorce and the modification to the 209A were vacated.

Peterson v. Peterson

12-P-1536 (June 17, 2014)

            Wife appeals from an unequal division of the marital estate where Husband was awarded 60% of the marital home and Wife 40% (the remainder of the assets were divided 50/50) and a finding of contempt for disobeying portions of the judgment including non-payment of child support and failure to cooperate in refinancing the marital home.

            The trial judge awarded Husband more of the equity in the marital home because Wife had withdrawn $33,000 from a joint account with no explanation of what the money was used for, there were limitations on Husband’s employment opportunities because he had sole parental responsibility for the parties’ children, and Wife admittedly indulged in affairs for most of the marriage.  The court also credited Husband for principal payments made on the mortgage in the amount of $11,054 since the separation.  Husband was ordered to pay 6% interest on Wife’s 40% equity payable upon Husband’s remarriage, sale of the home or August 31st of the youngest child’s senior year of high school.

            In fashioning the child support order, the court attributed income to Wife at the rate of $60 per week above her current earnings.  This was not an abuse of discretion inasmuch as the child support guidelines permit the court to consider potential earning capacity rather than actual earnings if the court finds the party is earning less than s/he should through reasonable effort. 

            The division of marital assets was not plainly wrong where the trial judge clearly considered the section 34 factors. 

            There was one finding regarding Husband’s back injury which Husband conceded was not part of the trial evidence but Husband argued it was immaterial to the judgment as it was not relied upon by the judge in his rationale. 

            Wife failed to abide by the order of the discovery master which resulted in the court excluding her expert’s real estate appraisal – also not an abuse of discretion.

            Wife complained she should not have been ordered to pay the discovery master’s fees due to her alleged conduct during discovery because she was not able to cross examine the master.  The Appeals Court concluded the argument has been waived because wife failed to cite any authority.

            On the contempt, Wife’s argument that the initial order was not clear and unequivocal as to the amount of the interest calculation is valid.  However she is still in contempt on the failure to pay child support and failure to subrogate the mortgage note.

            Finally, wife argued the judge erred in awarding attorney’s fees in the contempt but the award appears to be a discretionary award of fees for wife filing a frivolous contempt complaint against Husband.

Kleya v. Kleya

13-P-152 (June 24, 2014)

            Wife appeals from the divorce judgment as it divides the marital estate and fails to consider alimony and support and college expenses for the parties’ daughter.

            The parties have two children, one in college and one in high school.  Husband has income from employment ($1,094) per week and rental property ($432) per week.  The three rental properties came to be owned primarily due to the generosity of Wife’s family, albeit Husband made significant improvements to the properties and handled all of the rental management for the last several years (Wife did the management for a period of time).  The court found the parties made different but equal contributions to the marriage and that the estate should be divided equally and made an allocation of real estate with husband retaining he rental properties and wife retaining the marital home with a small equalization payment to Wife. 

            When the issue of alimony arose at trial, the judge responded that alimony was “not going to be litigated at all” as the wife had not plead it.  Wife only earned $435 per week from her job as a teaching assistant, a position she had held for years.  There was no finding that she was underemployed but the court did find she had a good opportunity for future acquisition of assets, a finding the Appeal Court found lacking. 

            The judge made no findings as to Wife’s need.  Wife argues that the judge’s findings and judgment regarding division of assets and alimony were plainly wrong and left the parties in disparate financial circumstances.  The Appeals Court agreed.  The judge did not adequately consider all of the relevant section 34 factors. 

            Further despite the evidence concerning wife’s inheritance, the judge made no findings reflecting the consideration of wife’s inheritance in the contributions to the marital estate or explaining why those contributions ought not to be considered. 

            As for college, the judge stated at the outset that there would be no orders regarding college expenses in the judgment as the judge found such orders to be unconstitutional.  Wife present evidence that she is paying all of the daughter’s college expenses.  The court took the position that allocation of college was something to be worked out between the parties.  The statute and child support guidelines are clear – the court may make appropriate orders of maintenance, support and education of any child who has attained age eighteen but who has not attained age twenty-one and who is principally dependent upon the parents for maintenance.  When asked, Wife said any determination of college contributions by Husband should be discussed with the daughter.  The Appeals court found this unsatisfactory and remanded the case for a new hearing on the issue of support for the daughter.

            In sum, portions of the property division, alimony and child support for the daughter were all vacated and/or remanded for reconsideration.

Smith v. Parker

10-P-2146 (June 24, 2014)

            This is a second appeal after a remand to the probate court following a first appeal of a modification judgment regarding custody and visitation.  In the first appeal, Father contended that the trial judge modified the custody and visitation portion of the divorce judgment without finding a substantial change in circumstances or that such a change was in the best interest of the children.  The judgment was remanded for further consideration by the trial judge.

            After remand the judge held additional hearings and thereafter issued a consolidated judgment after remand.  Mother now seeks reversal of the judgment and father seeks affirmation.  Essentially the trial judge now changed the schedule to permit alternating weeks between the parties.  The difference this time around is the child’s age, then almost 17 (now 18).  A GAL was appointed to represent the interests of the child and advocated for a parent schedule that approximated that most recently entered.

            Mother did not show the judge committed error of law or abused his discretion.  Judgment affirmed.

Tarkoy v. Tarkoy

12-P-1647 (June 24, 2014)

            Father appeals from a modification judgment increasing his weekly child support and granting primary custody of the child to mother. 

            At the time of divorce, Father was ordered to pay alimony, child support and the parties shared joint legal and physical custody of their child.  Four years later, father filed a complaint for modification to eliminate alimony and reduce child support.  After a three day trial, the judge eliminated his alimony obligation, changed custody to mom and increased child support.  After trial, Mother filed a motion seeking to clarify whether the termination of alimony included a termination of the arears.  The trial judge indicated the alimony termination was prospective only.  Father filed a notice of appeal from that order as well.

            In changing custody, the trial judge failed to make specific or detailed findings based on the evidence or that a change in custody was in the best interest of the child.  The error, however, is moot inasmuch as the child is now over 18.  Because there could still be an ongoing support obligation, the issue of child support is remanded to the trial court.

            The judge terminated alimony because of Father’s retirement.  However, the trial judge must still weight all the statutory factors in light of the facts in the case as they relate to both parties – not simply the party seeking to reduce alimony.  The statute requires the award remain grounded in the recipient spouse’s need for support and the supporting spouse’s ability to pay. 

            The case is remanded for further proceedings relating to child support and prospective alimony payments.

           

Lindsay Hurley v. Jeb Stephen Hurley,

13-P-1302 (July 1, 2014)

            Husband appealed from contempt and divorce judgments that among other things (i) found him in contempt for failure to pay temporary alimony pending trial in the amount of approximately $47,000; (ii) ordered him to pay alimony; and (iii) divided the martial assets.  Husband appealed on the basis that the Trial Court lacked subject matter jurisdiction because Wife did not reside in the Commonwealth for at least one year prior to filing for divorce. 

            The Appeals Court affirmed the lower Court’s decision despite claims made by Husband that Wife resided in Utah with him just two months prior to filing for divorce in Massachusetts, and despite the fact that she signed a joint Federal income tax return for the year prior in Utah and failed to file an income tax return in Massachusetts.  The Appeals Court held that “whether a person has established domicile in a State is a question of fact for the trial judge, and is based upon numerous factors, including without limitation, whether the person has purchased a home in the State, or has a driver’s license or professional license or motor vehicle registered in the State, or a bank account, personal property or household goods in the state.”  The Court upheld the Trial Court’s finding that the Wife was a resident of Massachusetts, because she continued to reside in the marital home in Massachusetts until its sale, she lived and worked in Massachusetts at the time the divorce complaint was filed, and she maintained a Massachusetts bank account, a Massachusetts professional license and a Massachusetts driver’s license at the time of filing and during such periods that Husband contended she resided in Utah. 

Sharon Hackett v. John P. Arahovites,

13-P-1537 (July 1, 2014)

            Father appealed from an order of the Probate and Family Court on a complaint for modification which required each party to contribute $5,000 towards the college expenses of each of the parties’ two children.  Father contested that the order was erroneous as Mother failed to establish a material change of circumstances and the order conflicted with the Trial Court Judge’s findings that “neither party can afford the cost of higher education without ‘mortgaging their financial health.’” Father also argued that the Trial Court’s judgment constituted an abuse of discretion because it exceeded the child support guidelines and that allowable amounts under G. L. c. 119A, § 13(a).

            The Appeals Court affirmed the Trial Court’s judgment on the basis that the parties’ Separation Agreement expressly reserved for judicial resolution the issue of the children’s college expenses, and therefore the “judge neither entered a new child support order, nor modified an existing order,” but merely addressed the college expenses, which the parties expressly anticipated as drafted in their Separation Agreement, which stated:

The Husband and Wife agree that the children should receive the best post-secondary school education or vocational training available to them in light of their aptitudes and interests. Both parties recognize that the post-secondary school education of the children may require substantial financial expenditures, and agree that they will attempt to contribute to the post-secondary school educational expenses of the unemancipated children consistent with their financial abilities at the time… the parties shall contribute to their children’s post-secondary school educational expenses… to the extent they are             financially able at the time said expenses are incurred.  The parties will start to confer by no later than September of each child’s senior year in high school to attempt to reach agreement as to how college expenses will be paid. In the event of a dispute, either party may seek determination from the court…

 The Appeals Court described the Trial Court’s order as an “invocation of the equitable jurisdiction of the Probate Court to interpret and enforce the parties’ separation agreement.”

Heather McSween v. James Iannibelli,

13-P-1253 (July 8, 2014)

            Father appealed from a modification judgment increasing his weekly child support payments to $321 and requiring an additional payment of $79 to account for retroactive support owed.  Additionally the judge ordered him to pay 35% of the daughter’s private high school tuition for her junior and senior years and 40% of the cost of her extracurriculars for that same period.  The parties were divorced on April 3, 2001.  A modification judgment was entered on May 19, 2005, which served to increase Father’s parenting time and provided that the parties would submit disputes concerning their shared legal custody to a parent coordinator, including issues regarding education. 

            The parties were unable to come to an agreement concerning the child’s private school education and Mother subsequently filed a complaint for modification.  Father argued, and the Trial Court Judge credited the Father’s testimony, that there was no express agreement between the parties to share in private school tuition beyond the child’s first year of private high school.  The Trial Court also found that the Mother enrolled the daughter at a different private school for her sophomore year without the agreement of the Father and after he expressed an inability to pay for it.  The parties had previously agreed that the child would attend the school she attended her freshman year for all four years.  The Trial Court Judge found that Father acquiesced to Mother’s unilateral decision to enroll the child after an agreement could not be reached by failing to file a complaint for contempt.  The Appeals Court disagreed, stating that Father did not waive any rights because he objected to the child’s private school attendance and suggested to Mother that they consult the parent coordinator to resolve the dispute. 

            Father also argued that the increase in child support did not take into account his increased parenting time.  Father argued that the child support guidelines addresses how parenting time is to be factored in where “two parents share equally, or approximately equally, the financial responsibility and parenting time for the child.” The Appeals Court was unable to determine whether and how the judge considered the increased parenting time in making a decision on child support on modification because the trial judge made no findings on the issue.

            The Appeals Court vacated the order and remanded the case back to the Trial Court so that the judge could make specific findings with respect to (1) whether Father had the ability to pay 35% of the education costs during the child’s third and fourth years of high school, and (2) whether it was in the child’s best interest tin attend private secondary school. 

Paul M. Harris v. Gail Harris,

13-P-1408, July 9, 2014

            Husband appealed from a Probate and Family Court order on Wife’s complaint for contempt that reinstated the alimony payments contained in a 2008 modification judgment and ordered him to pay Wife's attorney’s fees related to the contempt action.  In 2010, Husband unilaterally decided to reduce his support payments to Wife.  Despite the fact that Wife acquiesced to the reduced payment of support, the agreement was never made into a court order.  In 2012, Husband stopped paying any support to Wife and in January 2013 Wife brought a civil contempt action, which Husband cured two days prior to the contempt hearing. The Trial Court Judge awarded Wife reasonable attorney’s fees for the entirety of the contempt proceedings and reinstated the 2008 modification judgment, which ordered support at a rate of over $1,000 more per month than the unilateral reduced rate Husband had been paying to Wife for two years prior to the contempt action.

            The Appeals Court affirmed the Trial Court's decision, stating that the judge did not modify a support order, the judge enforced the alimony provisions of the 2008 modification.  Additionally, the Appeals Court found that the Trial Court’s finding that Husband’s financial situation had improved since the 2010 informal agreement decreasing his support payment, was well supported by evidence on the record.  The Appeals Court also upheld the Trial Court's awarding Wife attorney’s fees, stating that the mere fact that Husband was not found to be in contempt is not sufficient grounds to reverse the judge's award of counsel fees, as the "judge could take into account the 'imbalance of power and control' between the parties throughout the proceeding, [the husband's] obstructionist tactics, and the parties' respective financial positions.'"

Ann H. Kip v. Jeffrey Kip,

13-P-1461 (July 9, 2014)

            Wife appealed from a Probate and Family Court judgment on Wife’s complaint for contempt, which found former Husband was not required to pay alimony on income realized from certain restricted stock, stock options, and deferred cash grants that he received from his employer, and adjudging him not in contempt of Court for failure to pay alimony on this income.  At the time of divorce, Husband’s compensation consisted of a base salary, an annual incentive bonus, and compensation pursuant to his company’s Long-Term Incentive Program, which included deferred cash grants, restricted stock units, and nonqualified stock options.  According to the parties Separation Agreement, Husband was required to pay a fixed monthly alimony payment to wife as well as additionally periodic payments based on the “gross bonus payment” that Husband received from his employer.  The Separation Agreement also excluded from Husband’s gross bonus payment “payments received by Husband under the Long-Term Incentive Program,” which appear to have been divided pursuant to Baccanti.  The Separation Agreement also contained a waiver of “any right [the wife] may have in and to” future stock options and restricted stock issued to the husband, designating these options and stock as “[Husband’s] sole property, free and clear of any claim by Wife.”

            The Appeals Court affirmed the Trial Court’s decision, stating that the broad exclusion in the alimony provision in the parties’ Separation Agreement referenced the Long-Term Incentive Program generally, and the Judge’s interpretation of that language to read as the parties’ intent to deal with the Long-Term Incentive Program as a whole, when read with other provisions of the Separation Agreement, demonstrated a common purpose and intent to “limit Wife’s future right” to all Long-Term Incentive Program payments after the divorce.

David W. Adams v. Linda M. Adams,

13-P-1138 (July 11, 2014)

            Husband appealed from a judgment of the Probate and Family Court dismissing his request for a modification of his child support and alimony obligations, and adjudging him in contempt for failing to obtain life and health insurance for Wife and the minor child.  The parties were divorced on December 3, 2009.  Husband receives Social Security Disability Income benefits, which include a dependency benefit on behalf of the minor.  Husband was incarcerated in March 2010, at which point the SSDI dependency benefit began to be paid directly to Wife, and his child support obligation was reduced accordingly. 

            In July 2011, Husband sought a modification of his child support and alimony obligations, arguing that he was no longer able to afford either.  Wife filed a contempt stating Husband had failed to maintain life and health and insurance for the benefit of herself and the minor child.  During the pendency of the action, the Trial Court issued a temporary order reducing Husband’s child support obligation significantly. The Trial Court judge eventually issued a judgment and rationale dismissing Husband’s complaint for modification and finding him in contempt of court for failing to obtain health and life insurance pursuant to the divorce judgment.  The Trial Court ordered Husband to pay support in the reduced amount as outlined in the temporary order of the Court.  The Trial Court also ordered Husband to pay approximately half of Wife’s anticipated prospective health premium expenses.

            The Appeals Court affirmed the Trial Court’s decision on all points, but vacated it as it related to the reimbursement to the Wife for “ongoing costs of maintaining medical insurance.”  With respect to support, the Appeals Court found that there was ample support in the record to support the Trial Court’s findings and no basis to conclude that the findings were “clearly erroneous.” 

            On the life and health insurance issue, the Trial Court Judge found that Husband could have obtained life and health insurance shortly after the divorce, before he became incarcerated, and he failed to do so.  The Appeals Court found that the Trial Court did not err in finding Husband in contempt for his failure to obtain life insurance and maintain health insurance for Wife and the minor child when he had the ability to do so.  The Appeals Court did note, however, that Husband’s disability excused him from obtaining medical insurance prospectively.

Erich B. Otting v. Julie A. Otting

13-P-1174 (July 18, 2014)

            Wife appealed from a judgment of divorce nisi arguing, among other things, that the Trial Court erred in treating loans from the husband’s parents and certain tax liabilities as marital debts. The Appeals Court affirmed

            Husband’s parents loaned Husband money during the pendency of the action, which monies were used primarily for family expenses, most notably, the mortgage on the marital residence where Wife and the children resided.  Husband’s parents filed an action in Superior Court to recover the amount loaned to the parties, and the parties entered into a stipulation agreeing to repay Husband’s parents from the proceeds from the sale of the marital home. 

            The Appeals Court affirmed the Trial Court’s decision, finding that that despite that the monies were loaned while the parties were separated and during the pendency of the divorce proceedings, the parties continued to maintain merged finances and the loaned monies were used to maintain the family when Husband’s income was reduced during the separation, and therefore the loans became marital debt.  

            With respect to the unpaid taxes, historically the parties had filed joint tax returns. For tax years 2007 through 2011, neither party paid any taxes.  The Trial Court found that Wife’s filing separate returns was “designed to leave the husband with tax liabilities of $105,000 despite the fact that the income on which those taxes was based had benefited the family as a whole.”  The Trial Court found the tax liabilities to be a part of the marital estate and divided the liability in kind.  The Appeals Court affirmed. 

J.P.S. v. M.M.,

13-P-1447 (July 21, 2014)

            Wife appealed a contempt judgment issued by the Probate and Family Court.  Wife is a Spanish citizen who resided in Barcelona with the parties’ two minor children.  In January 2005, Wife moved from Spain to Texas, where she met Husband and the parties were married in April 2005.  In the summer of 2006, the parties moved to Massachusetts, and one month later, they returned to Spain.  The parties resided together in Spain for the next two and one-half years, where both children were born.  In December 2008, husband returned to Massachusetts, while Wife and children remained in Spain.  Husband filed for divorce in May 2009, but the parties reconciled.  In June 2009, Wife returned to Massachusetts with the children.  In December 2009, the parties and the children returned to Spain.  Husband claimed the parties traveled to Spain for an intended three-week vacation, and based his testimony on the fact that the parties had return airline tickets to Massachusetts in January 2010, and Wife had told employees at the daycare facility in Massachusetts, that the child would be returning to day care in late January 2010.  Wife claimed the parties were returning to Spain to live there permanently. 

            A domestic issue took place in Spain in January 2010 and Wife sought and obtained a restraining order against Husband in Spain, and she was granted temporary custody of the children and Husband was ordered to pay support to Wife.  The temporary order also allowed Husband specified visitation with the children.  Husband returned to Massachusetts in January 2010.  In early January 2010, he had his mother file a new divorce complaint on his behalf in the Barnstable division of the Massachusetts Probate and Family court.  By a motion dated March 17, 2010, Wife moved to dismiss that action on the basis of pending Spanish proceedings. 

            The Massachusetts Trial Court judge held an evidentiary hearing in December 2010, and Wife attended the hearing with a Spanish attorney via Skype.  Husband denied ever being served with a Spanish divorce complaint, but acknowledged that he was aware that a Spanish court had issued an order addressing custody and visitation and he personally appeared in a Spanish court and had been represented by Spanish counsel.  The Massachusetts Trial Court judge found in favor of Wife and dismissed Husband’s complaint for divorce in January 2011.  Husband filed a notice of appeal.  The Trial Court judge instructed the parties to supply him by August 2011 with a stipulation as to “whether or not a divorce proceeding [had] been filed in Spain and, if so, when it was served.” No stipulation was produced, and thus in August 2011, the Trial Court judge vacated his judgment, and ordered that the divorce case be litigated to conclusion in Massachusetts.

            Husband also began questioning his paternity of the children and the Husband filed a motion that requested an order that both children born during the marriage submit to a paternity test.  After hearing, the Trial Court judge ordered the mother return to Massachusetts with the children for such testing within 45 days.  Husband filed a complaint for contempt in October 2011 when Wife refused to return to Massachusetts.

            The Spanish court divorce proceedings continued to move forward, and documentation supported that Wife filed the Spanish complaint sometime in 2010.  Yet, Wife failed to produce evidence that she properly served Husband, specifically, Wife never offered any evidence as to why she failed to send a copy of the Spanish divorce complaint to Husband’s Massachusetts attorney. In fact, Wife communicated to the Spanish court that Husband’s whereabouts were unknown and on the basis of that communication, the Spanish court allowed service by publication. When Husband did not appear for the hearing, the Spanish court issued a final divorce judgment in April 2012. 

            At the Massachusetts contempt hearing in May 2012, Wife brought the Spanish divorce decree to the attention of the Trial Court judge through a motion to enforce foreign judgment of divorce.  The Trial Court judge denied Wife’s motion and found her in contempt.  The Trial Court judge stated that in August 2011 the Massachusetts court ruled that Massachusetts had jurisdiction to hear the parties’ divorce and issue custody orders, and because that order was never appealed by Wife, coupled with her failure to properly serve Husband with the Spanish complaint, that she had demonstrated an intent to ignore the Massachusetts proceedings and “sneak” a divorce judgment and custody order against Husband in Spain.  The Trial Court judge found Wife in contempt and awarded Husband sole legal and physical custody of the children to Husband in Massachusetts.  Wife appealed.

            The Appeals Court affirmed the Trial Court’s decision as it related to Wife’s failure to return to Massachusetts for the paternity testing.  The Appeals Court agreed that Wife failed to demonstrate that the entry of the Spanish divorce decree precluded enforcement of the paternity test order, and further, there was no evidence on the record that the Wife properly served Husband or that she ever informed the Spanish court of the pending proceedings in Massachusetts.  The Appeals Court went on to question the Spanish court’s jurisdiction as to whether it could properly exercise jurisdiction in the divorce proceedings, as Spain was not technically the children’s home state when the suit was filed in early 2010.

            On the issue of the Trial Court’s ordering that Husband be granted sole physical and legal custody of the children, the Appeal’s Court vacated that portion of the order, stating that the “the best interests of the child is the ‘touchstone inquiry’ in child custody, visitation, and relocation cases.’” Smith v. McDonald, 458 Mass. 540, 540 (2010), quoting Custody of Kali, 439 Mass. 834, 840 (2003).  The Appeal’s court noted that the Trial Court Judge did not focus on the best interests of the children in awarding custody to Husband, rather he awarded custody to Husband as a form of sanction against Wife. 

Suzanne Thatcher v. Steven Johnson,

13-P-1242 (July 30, 2014)

            Father appealed from a Probate and Family Court ordered awarding attorney’s fees and costs to Mother.  The parties were divorced on December 4, 2006.  The judgment incorporated the parties’ separation agreement, which survived except for all provisions related to the children and alimony.  Father was ordered to pay a weekly sum of child support to Mother.  In September 2007, Father filed a complaint for modification challenging the child support provision.  After a four-day trial, a judgment was issued on January 17, 2009 denying Father’s complaint for modification, affirming the child support obligation and awarding $113,720.14 in attorney’s fees and costs to Mother which were incurred opposing Father’s complaint for modification. 

            Following the entry of the modification judgment, Father made weekly child support payments but did not comply with the provisions related to repayment to Mother for attorney’s fees.  Mother filed a complaint for contempt in September 2009 seeking enforcement of the modification judgment.  On the eve of the scheduled hearing on the contempt action, Father filed a petition for bankruptcy in the United Stated Bankruptcy Court seeking discharge of the fees and costs as well as other obligations.  Mother was forced to litigate the Bankruptcy action and the contempt action for an additional one and one-half year.  The Bankruptcy Court ultimately found that the fees and costs constituted a non-dischargeable domestic support obligation under 11 U.S.C. §§ 523(a)(5), 523 (a)(6) or 523 (a)(15).

            Mother filed a motion for interest, attorney’s fees and costs with the Probate and Family court and after hearing the Trial Court awarded Mother interest, attorney’s fees and additional fees.  Father contested the award of Mother’s attorney’s fees and costs accrued after Father filed his bankruptcy petition in the amount of approximately $100,000. 

            The Appeals Court affirmed the Trial Court’s decision stating that Father’s counsel promptly filed an affidavit explaining that Father had not failed to prosecute an appeal following the Trial Court’s initial dismissal of Father’s Modification, but that the appeal was subject to an automatic stay while the bankruptcy proceedings were ongoing, stating that the “affidavit cures the dismissal.”  The Appeals Court therefore found that an action was still pending in the Trial Court when Mother’s motion for interest, attorney’s fees and costs was allowed in November 2011.  Father further argued that the Trial Court erred in failing to make factual findings in support of the order.  The Appeals Court found that “findings of fact and conclusions of law are unnecessary on decision of motions…”

            Lastly, Father argued that the Trial Court abused its discretion in awarding fees because the fees were excessive due to “poor litigation strategy by Mother’s counsel,” and that the award of fees to both Mother’s counsel and the outside counsel utilized by Mother’s counsel in litigating the bankruptcy action was duplicative. The Appeal’s Court found that “due to Father’s vigorous opposition to the adversary complaint,” Mother was forced to litigate, and “if attorneys are to be willing to undertake efforts to obtain enforcement of support orders, they need to know they will be fairly compensated,” and this is all the more important the “more recalcitrant or obstructionist the defaulting spouse.” Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 181 (1986).


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. 

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.

Ethan Rittershaus graduated from Suffolk University Law School in 2012; he is a member of both the Massachusetts and Federal Bar.  His is a 2008 Graduate of the University of Maine at Orono with a B.A. in political science. His practice is primarily focused on family law and bankruptcy.

Ethan has represented clients at the federal level in bankruptcy cases, and at the state level in Probate and Family Court matters with a focus on contested divorces.  He is a Volunteer Lawyer Project panel attorney in the bankruptcy section, and also writes for the Boston Bar Association Family Law Newsletter.

Ethan has a deep commitment to access to justice for lower income clients and frequently volunteers at the Lawyer for the Day program in various State Probate Courts.

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.