Fall 2014 Newsletter: Case Summaries

Below are the case summaries for the Fall Newsletter as completed by: Jordana Kershner (August), Wendy Hickey (September), Elizabeth Silverstri (October), Brian J. McLaughlin and Emily Nowlin (November).

 August Case Summaries

Zaleski v. Zaleski, SJC-11391 (August 1, 2014)

This case presented an issue of first impression following the enactment of the Alimony Reform Act: “whether a Probate and Family Court judge abused her discretion in determining that rehabilitative alimony, with its presumptive five-year payment period, was the appropriate form of alimony to be ordered, rather than general term alimony.”  However, this was not the only basis on which the wife challenged the judgment.  The wife challenged the judgment on three additional bases: (1) that the judge excluded the husband’s bonus income from the calculation of the amount of the alimony award; (2) that the wife was ordered to maintain her present life insurance policies as security for her obligations under the judgment; and (3) the division of the marital assets, including allocation of marital debt.  The Supreme Judicial Court concluded that it was not an abuse of discretion to award rehabilitative alimony, and that the division of property was warranted by the evidence, but remanded as to the amount of alimony to be paid by the husband because it was error not to include the husband’s bonus in the calculation of the amount of alimony, and that there was no basis to require the wife to maintain her present life insurance policies.

The parties had been married for approximately sixteen years and four months, had two children, and, at the time of trial, the husband was forty-eight years old and the wife was forty-five years old.  The parties lived an upper middle class lifestyle and spent beyond their means.  The husband was a real estate executive and had substantial income, which always greatly exceeded the wife’s.  The wife had a background in business and sales, including pharmaceutical sales, but was terminated from her position of sales district manager in 2007 where she had been earning total income of approximately $170,000.  She was not employed outside of the home since 2008.  The judge found that the wife was not presently self-supporting and although she found that the wife had the ability and desire to work, she also found that she had not used her best efforts to secure employment and that with reasonable effort, she could be employed within five years.  The husband was ordered to pay alimony of $11,667 per month for five years, which figure represented 35% of his base salary of $400,000.

The drawbacks of an award of rehabilitative alimony from the wife’s perspective were twofold.  First, rehabilitative alimony has a durational limit of five years, whereas, based on the length of the parties’ marriage, the wife would have been eligible to receive general term alimony for up to thirteen years.  Second, in order to extend the term for receipt of rehabilitative alimony past five years, the wife would have to make a showing of compelling circumstances that “unforeseen events” prevent her from being self-supporting despite her efforts to become so and the court would have to give due consideration to the length of the marriage, whereas general term alimony can be extended beyond its presumptive maximum upon the less difficult showing of “good cause” that there has been a material change of circumstances, which circumstances must be supported by clear and convincing evidence. 

The Supreme Judicial Court stated that “[w]here a determination is made that rehabilitative alimony, with its shorter durational limits, is the most appropriate form, findings based on [the factors identified in Massachusetts General Law chapter 208, section 53] must support the conclusion that a recipient spouse’s economic dependence is temporary, and that, at a predictable date, the dependent spouse can become self-sufficient by undertaking reasonable efforts.”  The Supreme Judicial Court held that the judge gave consideration to all of the necessary factors.  The crux of the wife’s argument was that it was an abuse of discretion to award rehabilitative alimony because there was no specific event upon which termination was based.  The Supreme Judicial Court rejected this argument, concluding that “in some circumstances, the potential of future reemployment may provide a basis for deciding that rehabilitative, rather than general term, alimony should be awarded.”  There does not need to be an expectation that a specific, identifiable job will materialize on a date certain.  The Supreme Judicial Court went on to state that “‘employability’ in this context means that a party has the capability of being employed . . . Thus, although a party may not be employed or employable at the time of entry of the alimony award, that party could still have predictable prospects of future employment in a specific type of work or position.  In such circumstances, if a party’s employability in the near future is a realistic prospect, rehabilitative alimony might, with other considerations, be appropriate.”  The Supreme Judicial Court did not feel that the trial judge had abused her discretion in this case where she found that the wife wished to work, was highly employable in the area of sales, which skills were transferrable to other areas, and that with reasonable diligence she could find employment that would render her self-sufficient.

The Supreme Judicial Court next turned to wife’s argument that it was error not to include husband’s bonus in the court’s calculation of the amount of alimony.  The husband argued that the alimony award based on 35% of his base income was sufficient to meet the wife’s needs; that any future bonuses were properly excluded because they would result solely from his hard work; amount of future bonuses were speculative; and that by ordering him to pay all of the children’s private school costs, the judge essentially excluded from his income an amount she had already considered for setting a child support order.  The Supreme Judicial Court rejected all of these arguments and remanded the issue, relying on the language of the Alimony Reform Act that makes clear that all of the payor spouse’s income, as defined by the Massachusetts Child Support Guidelines (which definition specifically includes bonus income), must be included in any calculation of alimony.

The Supreme Judicial Court also disagreed with the judge regarding her order that the wife must maintain her life insurance policies in effect at the time of the trial, which policies had a death benefit of $1.6 million.  Although the wife is to be responsible for half of the children’s extracurricular, enrichment, and uninsured medical and dental costs, the Supreme Judicial Court held that even if some security for these obligations were appropriate, to require the wife to maintain policies with a death benefit of $1.6 million was an abuse of discretion.

Finally, the Supreme Judicial Court addressed the wife’s contention that the division of marital property and allocation of liabilities was plainly wrong in that a greater amount of debt was allocated to her, and, she claimed, the judgment failed to value certain of the husband’s accounts, and incorrectly divided one asset based on present value rather than ordering that she receive half of any future proceeds.  Approximately 75% of the total debts were allocated to the wife, consisting of over $16,000 to repay loans from members of her family and over $57,000 in credit card debts she alone incurred.  The judge based this unequal allocation on her finding that the wife continued to live a lifestyle beyond that which she could afford and because the debts were incurred during a period when the husband was paying all of the family’s living expenses in addition to paying weekly cash support to the wife.  The Supreme Judicial Court did not find any abuse of discretion with the allocation of the parties’ assets.  In particular, the Supreme Judicial Court held that because the wife did not challenge the present value of the investment account assigned by the judge and because there were sufficient assets for the wife to receive a present payout, it was not an abuse of discretion to order a present payout of the wife’s interest in that account rather than award her half of any future proceeds.

M.B. v. J.B., 13-P-204 (August 7, 2014)

Husband appealed from abuse prevention order issued by the Worcester Probate and Family Court alleging that: (a) the Worcester Division of the Probate and Family Court Department lacked jurisdiction; and (b) the wife failed to establish that she was in reasonable fear of imminent serious physical harm.  The husband’s appeal was denied.  The case has a complex procedural history.  The wife moved from the marital home in Worcester County to Barnstable County in August 2011 and a divorce action was commenced in Worcester Probate and Family Court in November 2011.  After husband violated multiple stipulations restricting his contact with the wife as well as no contact orders from the court, the wife filed an application for an abuse prevention order pursuant to Massachusetts General Law chapter 209A.  A Worcester Probate and Family Court judge began hearing evidence on the wife’s application on May 21, 2012, but continued the evidentiary hearing for more than three months to August 30th; the no contact order was to remain in full force and effect in the interim.  The husband continued to send the wife dozens of text messages, some of which indicated that he was following and watching her, and to call her numerous times.  On June 13, 2012, wife was granted, on an ex parte basis, an abuse prevention order from the Falmouth District Court in Barnstable County.  Later that day, a global positioning system tracking device was found on wife’s car.  On June 22nd, when that order was set to expire, a hearing was held in Falmouth District Court.  The husband appeared and filed a motion to dismiss on the grounds of res judicata representing that a request for a restraining order had been denied on May 21st by the Worcester Probate and Family Court and arguing that wife’s actions constituted forum shopping.  Husband’s counsel did not inform the judge of the no contact order or that the application for an abuse prevention order remained pending in Worcester.  The husband’s motion was allowed by the Falmouth District Court judge who also, sua sponte, ordered the wife to return to Worcester to raise her fears there.  That afternoon, the wife sought an abuse prevention order in Worcester Probate and Family Court, which was allowed on an ex parte basis.  That day, wife’s friend received a text message from the husband that the wife interpreted as a threat against wife.  On July 6th, an evidentiary hearing was held on the extension of that ex parte order.  Husband moved to dismiss on the grounds that because the wife was living in Barnstable County, the Worcester Probate and Family Court lacked jurisdiction.  The Worcester Probate and Family Court judge extended the abuse prevention order for one year.  Husband appealed.

The Appeals Court decision contains a lengthy discussion about the choice of venue provided by Massachusetts General Law chapter 209A section 2.  This section provides the following choice of venue to the plaintiff: he/she may bring an application in the court of the county of his/her current residence or, if he/she has left a previous residence or household to avoid abuse, he/she may bring it in the court having venue over the previous residence or household.  The Appeals Court held that this venue provision is intended “to facilitate a plaintiff’s application for an order, and to encourage the prompt and timely resolution of the application.”  The Appeals Court declined to adopt the husband’s argument that the wife needed to establish that she left her residence in Worcester in order to avoid abuse before her application could properly be before the court in Worcester.  This holding had the effect that husband’s argument that the Worcester Probate and Family Court lacked subject matter jurisdiction, an argument that can be raised at any time and cannot be waived, was rejected, leaving only the issue of venue.  The Appeals Court held that the husband had waived the issue of venue by his conduct in two ways.  First, by participating in the May 21st evidentiary hearing in Worcester without raising an objection to venue at that time.  Second, by affirmatively relying on the Worcester proceedings to vacate the Falmouth District Court order, the husband sought to take advantage of the Worcester proceedings in the Falmouth case, which conduct manifested an attempt to submit to the Worcester court’s jurisdiction.  Furthermore, the Appeals Court held that even if the husband had properly raised the venue issue, the evidence was sufficient to allow the Worcester judge to infer that the wife had left her home in Worcester to avoid abuse.

The Appeals Court next examined the wife’s claim of reasonable fear of imminent serious physical harm and found it sufficient.   The Appeals Court held that someone seeking an abuse prevention order “need not wait until an assault occurs to seek protection” and that based on the totality of the circumstances, including a past history of anger and violence, the husband’s conduct during the pendency of the divorce, and the ongoing escalation of contact in violation of the no contact orders, the evidence was “plainly sufficient” to support issuance of the abuse prevention order.

Becker v. Phelps, 13-P-951 (August 22, 2014)

Pursuant to a separation agreement incorporated into but specifically surviving a November 2010 judgment of divorce, former wife was to pay two lump sums of $500,000 each to former husband in lieu of periodic alimony.  The first payment was due on or before December 1, 2013 and the second on or before December 1, 2018.  Unpaid amounts were subject to a four percent annual interest payment, which payments were terminable only upon the earliest to occur of the death of either party or completion of the two lump sum payments.  After the first annual interest payment was made, the former husband remarried.  Shortly thereafter, the former wife filed a complaint for declaratory relief asserting that all alimony obligations “were terminated by operation of law.”  The former wife’s complaint was dismissed and her subsequent motion to alter or amend the judgment was denied.  The Appeals Court affirmed. 

The former wife’s argument, relying on the Alimony Reform Act, was as follows: existing alimony awards would be deemed general term alimony and general term alimony shall terminate upon the remarriage of the recipient.  The former husband’s argument, with which the Appeals Court agreed, relied on language in the Alimony Reform Act that provides that the section on which the former wife relied would not provide a right to seek modification of an existing alimony judgment where the parties had expressed their intention that their agreement regarding alimony would survive the judgment and not be modifiable.  The Appeals Court did not credit former wife’s argument that she was trying to eliminate rather than modify their agreement regarding alimony and so the provisions relied upon the former husband were inapplicable.

September Reported Decisions:

Bower v. Bournay-Bower


September 15, 2014

The parties are divorced parents of 4 children.  The 2011 divorce judgment provided for shared legal custody and a detailed parenting plan agreed upon by the parties in their separation agreement.  The judgment further addressed holiday and summer vacation time as the parties did not reach agreement on those issues. 

By the end of the 2011 the parties had both filed contempt complaints against the other alleging violations of the parenting plan.  In Father’s contempt complaint, he sought the appointment of a Parent Coordinator (PC).  Instead of hearing argument on the contempt issues at the hearing, the judge focused on Father’s request to appoint a PC.  Mother objected to such an appointment and stated her preference for the judge, who was familiar with the case and the parties, to continue to resolve disputes arising from the implementation of the parenting plan.

Over Mother’s objection, the judge entered an order requiring the parties to utilize the services of the PC identified in the court order.  The PC was ordered to hear all current and future disputes regarding custody and visitation in the first instance before either party could seek relief in court.  The order granted the PC the authority to make binding decisions on matters of custody and visitation and provided that the PC’s orders must be complied with by the parties unless a party went to court before the effective date of the PC’s decision to get a contrary order. 

The original judge retired and a successor judge entered an order on the outstanding contempt complaints ordering the parties to abide by the order of the retired judge.  Mother appealed arguing that the judge lacked both express and inherent authority to appoint a PC, that the order constituted unlawful delegation of judicial authority, and that where the mother did not consent to the use of a PC, the order infringed on her due process right of access to the courts.

Generally, PC’s are understood to be neutral third parties who assist divorced parents in resolving custody and visitation conflicts in a mediation like setting in an effort to reduce conflict.  They have backgrounds from mental health to family law or other relevant fields.  The specific role of the PC varies state to state as defined by the laws of each such jurisdiction.  Notably, Massachusetts does not have a statute permitting the appointment of PC’s.  However, over the last several years in Massachusetts, such appointments have become increasingly common.  Most such appointments are made with the agreement of both parties.

Because there is no statute regarding PC’s in Massachusetts, there are no standards defining PC’s duties, educational and background requirements, scope of authority, etc. 

Mother argues that without express authorization by statute or court rule, and without agreement of the parties, the judge was without authority to appoint a PC in this case.  Father argues it was within the judge’s discretion to make the appointment because PC’s have become common place in Massachusetts.  The SJC agreed with Father’s argument that the case law supports the court’s ability to appoint a PC in certain circumstances to assist with alternate dispute resolution on day to day issues as they arise for the parties. 

However, the inherent judicial powers should not be exercised in a manner that undermines the constitutional rights from which those powers arise.  Here, because of the nature of the authority granted to the PC combined with the procedural requirements in the order including the limits on the parents’ rights to file an action in court and the limits on judicial review of the PC’s decisions, the SJC has significant due process concerns.  It is with those concerns that the SJC identified the outer limits of the judge’s inherent authority to refer parties to a PC.

A judge’s inherent authority does not extend to compelling a party to submit to binding decision making authority of a PC without that party’s consent.

The judge’s order further placed a prior restraint on the parents’ ability to file any future claim related to custody or visitation in court.  This order is quite different from a traditional referral to an ADR provider once a case is filed and reviewed by a judge.

Additionally, the judge’s order in this case placed unreasonable impediments to judicial review requiring that the review take place prior to the effective date of the PC’s order.  One can easily imagine circumstances where it would be impossible to get to court for  a review of the PC’s order before the effective date thus judicial review of some if not many of the PC’s decisions could be completely unavailable.

Finally, Mother argues that the scope of this order is so broad that it constitutes an unlawful delegation of judicial authority because nothing in the order prevents the PC from making structural changes to the custody arrangement without regard to the statutory standards which govern modification of final divorce judgments and because the judge abdicated her statutory authority to decide whether modifications to the custody arrangement are warranted.  The SJC agreed.

In sum, the SJC held the trial judge exceeded the bounds of inherent judicial authority in appointing, without all parties’ approval, a parent coordinator with binding decision making authority.  Further the breadth of authority vested in the PC constituted an unlawful delegation of judicial authority.  The order appointing the PC is vacated.  But the case was referred to the Probate and Family Court to review and consider the promulgation of a rule governing the appointment of PC’s in the future.  The SJC went on to suggest ways in which a rule can be helpful and avoid problems such as this appointment in the future including selection of the PC, qualifications of the PC, and scope of authority.

October Case Summary

K.A. v. T.R.


The parties married in May 1997 and lived with one another until April 2010 during which time they bore two children. During the marriage, the father was a police officer and the primary financial provider, while the mother was the primary homemaker and caretaker of the children. The parties owned a home during the marriage, but experienced financial difficulties that caused marital problems and arguments. The father physically abused the mother on multiple occasions during their arguments. Typically, after these arguments, the father would leave their home to go to his parents’ home for days or weeks at a time and have no contact with the children. The children sometimes witnessed these arguments. Beginning in winter of 2009, the mother’s relationship with the children changed and she and the father disagreed on her parenting of the children. By 2010, the children were defiant and disrespectful towards their mother. The mother at times became physical with the children during arguments and on one occasion, a child physically attacked the mother. The parties separated in April 2010. The father filed a complaint for divorce and in an ex parte motion supported by an affidavit requested the mother to be required to vacate the marital home and that he be given temporary physical and legal custody of their children, alleging they were at risk. The motion was granted and the parties subsequently entered into a stipulation, incorporated in a court order, agreeing to joint legal and physical custody of the children and the mother was to have sole and exclusive use of the marital home. By judgment of divorce in 2012, the father was designated the primary care parent of the children and the mother was given substantial parenting time. Both parties share legal custody of the children. The father was required to pay alimony to the mother and she was required to pay child support to the father. The mother appealed from the custody orders.


Did the father rebut the statutory presumption, arising from his pattern of abuse against the mother, that it was not in the children’s best interest to be in his primary physical custody?


Yes. In awarding the father custody, the judge considered many factors to determine what was in the best interest of the children beyond solely the children’s preference to live with the father. The judge considered numerous factors including the effects of the father’s abuse of the mother on the children; the lack of credible evidence that the father coached the children to state they wished to live with him; there was no subsequent physical violation between the parties after their separation; the potential for violence between the mother and the children; the mother’s compromised parenting abilities; and the father’s efforts to support the mother’s relationship with the children. The judge had properly recognized that the case was not about punishing a party for bad behavior but determining what was in the best interest of the children.

November Case Summary

Vaida v. Vaida


The plaintiff, Nancy C. Vaida (mother), appeals from an order for summary judgment on her complaint seeking that the defendant, George A. Vaida (father), pay postminority support for his twenty-three year old physically disabled son.

The parties had three minor children. While the parties were separated and divorce proceedings were pending, two of the minor children were injured in a terrible car accident. As a result of the accident, Evan became a partial quadriplegic. The father was wholly responsible for the injuries that the children sustained. The mother subsequently filed a civil suit against the father.  While the suit was pending, the divorce was finalized.

The question before the court on appeal was whether a person of full mental faculties could receive postminority child support. The court held that postminority support is not available to adult children who are not incapacitated persons placed under guardianship. The court went onto say that a guardianship would not be appropriate as Evan had full mental faculties. The court also found that equity jurisdiction was not appropriate as the court’s role is to “enforce existing obligations . . . and not create new obligations.”