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

Below are the 128 decisions for the Fall Family Law Newsletter written by: Ethan Rittershaus (August), Wendy Hickey (September), Elizabeth Silverstri (October), Brian McLaughlin and Emily Nowlin (November).

August 1:28 Decisions

Vassiliou v. Vassiliou

13-P-457

Wife appeals from a judgment of divorce nisi. After a first remand, the probate judge increased the Husband’s child support obligation from $899 to $1313 a week.

Parties were married in 1993 and last lived together in April 2011. They have two children (10,14). Husband was the primary earner for the family. In March 2011, Husband accepted a job as a senior executive receiving a base pay of 200K per year. In addition to his base salary, husband was also given the option to purchase approximately 172K shares of the company’s stock. At the time of trial approximately 43K shares had vested. Husband had approximately $2,100 of expenses per week.

By the judgment NISI. Wife was awarded custody of her two children but was denied removal. In her first appeal, the Appellate Court remanded, noting the gap in wife’s income versus her expenses. In denying the wife alimony, the judge relied on G.L.c. 208, s. 53(c)(2), excluding from the income calculation all income already allocated to child support. The judge also considered Husband’s substantial economic and non-economic contribution to the marital estate and awarded him 60% of the total marital assets. 

Upon remand, the judge found that the difference between wife and husband’s income warranted an upward deviation relying on Rule 4 par. 2(6) of the child support guidelines. The Appellate Court upheld the first remand but ordered a further remand with respect to the division of the stock options.

Bendetson v. Martignetti

13-P-1441

Husband (plaintiff) appeals from the allowance of summary judgment by a superior court judge in favor of his wife (defendant). Bendetson filed a superior court complaint that was notably similar to his previous Rule 60 motion which was denied. Relying on Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 843 (2006), the appeals court held that the superior court complaint was an impermissible collateral attack on the judgment of divorce.

Bendetson never appealed the divorce judgment, or the denial of his rule 60 motion. The appeals court held that he is not permitted to engage in claim-splitting by recasting his rule 60 arguments as a tort action at law. Quoting Charlette v. Charlette Bros. Foundry, 59 Mass. App. Ct. 34, 44, (2003), the court held that Claim preclusion will apply even though a party is prepared in a second action to present different evidence or legal theories to support his claim.” As his superior court complaint arose from the same set of operative facts, the same parties, and the arguments mirror each other, claim preclusion applies (DaLuz v. Dept of Correction, 434 Mass. 40 (2001).)

Plaintiff argued that the case is distinguishable relying on Heacock v. Heacock 402 Mass. 21 (1988). However, in that case, the superior court claim in question was for bodily injury wife sustained at husband’s hands during the marriage. The probate court in question had only ruled on property division. Summary judgment affirmed.

Horan v. DeMedeiros

13-P-1115

Defendant (mother) appeals from a probate court judgment awarding sole legal and physical custody of the parties’ son to father. Parties had an on again off again relationship beginning in 2005 which deteriorated after the birth of their son in 2008.

Mother had a history of bipolar disorder and seizures. However, this evidence was stale and not based on recent medical records. Mother had been off medication for several years and had evidently not had any serious incidents. Mother argues that the probate court judge erred in relying on mother’s possible diagnosis of bipolar disorder without the appropriate medical evidence; and erred in finding that mother had withheld said evidence.

The appeals court held, that while mother’s credibility was undoubtedly an issue, particularly her lack of candor with respect to financial matters, this one factor should not be given disproportionate emphasis. The court quoted Rosenberg v Merida, 428 Mass. 182 (1998). “We will not sustain an award of custody unless all relevant factors in determining the best interest of the child have been weighed.” Accordingly, the appeals court remanded for a new hearing before a different judge.

Caveney v. Caveney

13-P-866

Husband appeals from a further amended judgment which reassessed, after remand, Wife’s portion of the marital estate. Husband argues that the judge abused her discretion in failing to conduct a hearing to reassess the value of Wife’s assets.

In 2006, Wife filed for divorce petitioning for custody, child support, and an equitable division of marital property. Judgment entered in 2009 and a timely notice of appeal was filed by husband. In the first appeal, all aspects of the judgment of divorce where upheld. except for the application of discounts for lack of control and marketability of wife’s 24% interest in a three family business. As the trial judge had already adopted the overall valuation, testified to by wife’s expert, the only matter to dispose of was reassessing the value of her business interest less the application of the two discounts for marketability and control.

As there was no further testimony required, and the reassessment required no further additional evidence, there was no abuse of discretion for the remand judge to reassess these values without conducting a further hearing. Further, as the remand judge did precisely as was ordered on remand, Husband’s appeal is meritless. Quoting from Carilli v. Hersey, 303 Mass. 82 (1939). “If the decree of judgment is in accordance with the rescript or mandate, ordinarily the appeal will be dismissed and the final decree or judgment will stand as in there had been no appeal.”

Because Husband’s appeal is frivolous and wholly without merit, the lower court judgment is affirmed and appellate costs and attorney’s fees are assessed against husband.

Thath Sin, Petitioner

12-P-1756

On November 4, 2011 Thath Sin filed a petition for a change of name pursuant to G.L.c. 210 s. 12. He sought to change his name back to Somnaang Kong Meas, which he claimed was his birth name. His current name was a necessity adopted out of fear for his safety in his home country of Cambodia.

Because the petitioner was incarcerated and is required to register as a convicted sex offender, the lower court judge found that allowing the petitioner to change his name will likely create significant confusion in the criminal justice system and the sex offender registry. Thus, this change would be inconsistent with public interests.

Per the statute in question, a probate court judge is required to grant a petition for a change of name unless the judge finds that the name change is inconsistent with public interests. A finding of whether or not a name change is inconsistent with public interest is treated as a finding of fact. Merolevitz, petitioner, 320 Mass. 448 (1946). As a result, the appeals court reviewed the record for clear error.

The petitioner did not carry his burden that the judge’s findings of fact were plainly wrong. The petitioner has not provided any evidence contrary to the probate judge’s findings that the name change would likely create significant confusion, the appeal is denied.

As tertiary issues, the court also discussed the interplay between common law name change, the sex offender registry, and the religious dimension to petitioner’s claims. However, as these issues were not brought forward by petitioner they did not reach them.

Hahn v. Cicoria

13-P-542

Defendant appeals from the extension of a 258E harassment order issued from the district court. Despite the fact that the order had since expired. The court relied on Seney v. Morhy, 467 Mass. 58 (2014), in not dismissing the appeal as moot. (Appeals from expired orders are not moot when the parties have a continuing interest in the case).

While there were no written findings that the defendant’s conduct constituted statutory harassment, the judge  generally found credible evidence to support the issuance of an order on June 6, 2011. Defendant showed a friend of the plaintiff, pictures of the plaintiff’s children and stated that once she left her husband he was going to be their father. Defendant frequently showed up unannounced at the Plaintiff’s house. Finally, there was a consistent pattern of calls, texts, and other unsolicited advances.

Harassment Prevention Order Affirmed.

Range v. Pitts

12-P-1069

Wife appeals from a judgment dismissing her complaint for post-divorce property assignment and assigning Husband attorney’s fees.

A complaint for divorce was filed on Feb, 2010. Parties entered a separation agreement which included in part that both parties had fully described their assets, liabilities, income, and expenses. During the divorce, husband had received approximately 24K in payments for his work for the Commonwealth in three separate checks. Four days after the divorce finalization hearing, husband named his mother the beneficiary on a savings account and deposited the checks. Wife filed a complaint alleging husband was in possession of the check and that he knowingly concealed the funds.

After a trial on Wife’s complaint, the judge, determined in a memorandum that there was no credible evidence that at the time of the divorce hearing, on Feb 18th, the husband possessed two of the three checks. While the judge admitted that is was sneaky not to have deposited the Jan 11th check, overall the check was part of a stream of income that payed child support and thus, was not to be disturbed. The judge also denied wife’s rule 59 motion and allowed husband’s motion for attorney’s fees.

On wife’s first appeal we remanded for further findings as to why the trial judge assigned the checks as a stream of income as opposed to an asset subject to division pursuant to G.L.c. 208 s. 34. As there was no credible evidence in respect to the other 2 checks the only check in contention was the one issued on January 11th.

In her supplemental findings the judge indicated that the check was part of husband’s gross business receipts and was not a martial asset. However, because of the initial lack of clarity in the trial judge’s findings, the appeals court upheld the judgment but reversed the order on attorney’s fees.

Rekowsky v. Rekowsky

Husband appeals from dismissal of a counterclaim for contempt on the amended divorce judgment, asserting that the probate court judge erred in allowing Wife’s motion to dismiss for insufficient service of process.

The appeals court reviewed the allowance of the motion to dismiss de novo, and accepted the factual allegations in the complaint and any favorable inferences. The complaint is then examined to determine if the allegations “plausibly suggest [and are] (not merely consistent with)” an entitlement to relief. Galiastro v. Mortgage Electronic Registration Sys., 467 Mass. 160, 164 (2014).

In Husband’s counterclaim for contempt, he argued that Wife violated the amended divorce judgment by enrolling the children in religious education classes over his objection (the parties had shared legal custody). However, because there was no clear and unequivocal order as to who had the final say in such a matter, the court had properly dismissed the contempt. Birchall, petitioner, 457 Mass. 837, 2009.

Graham v Graham

13-P-1252

Husband appeals from two judgments of the Probate and Family Court that found him in contempt for his willful failure to comply with an alimony order and dismissed his complaint for modification for no substantial change in circumstances.

Husband and Wife were divorced after a 30 year marriage on June of 1997. The parties entered a separation agreement which provided that husband pay the wife $881 per week until August of 1999. Subsequently alimony would be reduced to 786 dollars a week and would terminate upon the death or remarriage of both parties and/or husband’s retirement. In 2011, the husband filed a modification. In January of 2012, Wife filed a contempt for alimony arrearages amounting to $38,500. The trial judge dismissed the modification, found husband in contempt, and ordered him to pay the arrearages.

Husband argues that the alimony reform act of 2011 should be applied to the complaint for modification. The alimony act took effect during the pendency of the case. Because the time standards contained in 208 G.L.c. s. 48 disallowed filing under husband’s circumstances until March 1st, 2013, and husband did not refile; the act did not apply to the case.

The husband alleged further error in calculating his income for the modification. However, the plaintiff must demonstrate a material change in circumstances since the entry of the earlier judgment.  As a modification judgment can only be reversed by an abuse of discretion (Pierce v. Pierce, 455 Mass. 286, (2009). In her written findings the judge determined that Husband’s reduced income was merely creative bookkeeping. Because Husband had reduced his income voluntarily (Schuler v. Schuler, 382 Mass. 366, 371 (1981), the court was permitted to attribute his new spouse’s income. The judgment of the lower court was upheld.

 

 

September 1:28 Decisions

Hass v. Hass

13-P-1345

September 8, 2014

The husband appeals from a judgment of divorce awarding Wife alimony of $1,350 per month, dividing non-inherited assets equally and dividing inherited assets 60% Husband, 40% Wife.

This was a 20 + year marriage where both parties worked as lawyers, Husband earning more and Wife bearing more of the homemaking responsibilities. 

The Alimony Reform Act took effect post trial but prior to the issuance of the judgment. 

Husband raises three issues on appeal:

  1. He claims his due process was violated because he did not have the opportunity to analyze or introduce evidence pertaining to the Alimony Reform Act at trial.  By the time of the appeal, Husband was no longer obligated to pay alimony.  So, while the issue is essentially moot, the court rejected Husband’s invitation to retroactively apply the Alimony Reform Act to his non-existent alimony.
  2. Husband represented himself at trial and thus incurred no fees as compared to Wife’s $70,000 fees.  Husband argued he should have received a credit for the fees wife used marital assets to pay.  But, the court found Husband’s positions not consistent with application of the law and thus it was fair for Wife to use marital assets to pay her legal fees.
  3. Husband alleges the judge erred in allocating the high-tax assets to him in the inherited assets.  However, Husband failed to present any evidence on the issue of taxes so he cannot expect the trial judge to have dealt with an issue not raised.
Wife’s request for appellate legal fees is allowed.

Elsaid v. Elsaid

12-P-1902

September 10, 2014

Husband appeals, pro se, from numerous orders and judgments post-divorce.  During the divorce Husband was ordered to pay $428 per week child support based on income attributed to him of $100,000.  Thereafter he sought to modify the support order and a reduction was granted based on a reduced attributed income of $73,996 for support order of $374 per week.

In 2010, Husband sought a further reduction or elimination of support alleging that his medical records indicate a disability.  The complaint was dismissed after trial when the judge found his testimony not credible.  He appealed alleging he had demonstrated a material change and that the judge erred in assessing his credibility because he was a foreigner who spoke broken English.

Later in 2010 Husband sought a modification seeking physical custody of the two children.  Again he lost.  By the time of the appeal, both children were over 18 making the issue moot.

Also in 2010 the DOR on behalf of the wife filed a complaint for contempt alleging non-payment of child support and arrears of some $45,224.  The judge sentenced Husband to 90 days in jail and ordered a purge amount of $25,000. Husband argues he should not have been ordered to pay because he didn’t have the ability to pay and thus he could not be held in contempt.  The court found that Husband lived a lifestyle wherein he could afford a nice home, owned two vehicles (one a jaguar) lived a good lifestyle and traveled extensively all on allegedly zero income.  The judge had the right to find Husband’s lifestyle indicative of an ability to pay.

In November, 2010 a bench warrant was issued for his arrest for failure to appear with respect to a contempt.  He was ultimately incarcerated and paid the purge amount and released.

On November 9, 2012 the trial judge recognizing Husband had filed a number of appeals from various orders and judgments issued a Memorandum of Decision addressing Husband’s honesty.  Husband argues the findings constitute a hate crime against him because he had, in fact, paid child support during that time. 

On August 1, 2012 Husband again sought to modify his support order alleging he has been determined disabled by a Social Security judge as of March 27, 2009.  Husband also sought to have wife pay all of the children’s college tuition.  Wife counterclaimed seeking half of the college expenses from Husband.  When Husband failed to appear at the pre trial conference, the judge dismissed his complaint for modification.  The judge issued a judgment on Wife’s complaint seeking college contributions

Thereafter Husband moved to vacate the judgment but there is no record that the motion was ever acted on.  This issue is remanded for action by the trial judge.

On December 5, 2012 the trial judge issued a sua sponte order which set child support arrears and required Husband to pay certain college expenses outright in order to repay the arrears.  Husband filed a motion to vacate this order as well which was denied.

On December 24, 2012 Husband filed a motion to vacate the judgment of “criminal” contempt.  The motion was denied with the judge finding that the contempt was not criminal, but civil. 

In sum, all appeals were denied except the one motion to vacate which was not acted upon and was remanded to the trial court for entry of an order.

Sibert v. Sibert

13-P-411

September 12, 2014

Wife argued that the judge erred by ordering insufficient alimony and directing the parties’ counsel to equalize funds from the marital estate in order to pay counsel fees.  Husband cross appealed alleging error in the division of assets.

The objective of alimony is, subject to the availability of resources, maintenance of the dependent spouse in an economic style close to that which the spouse became accustomed during the marriage.  The judge has considerable discretion in entering an alimony order which must be apparent from the findings of fact.  A mere listing of findings is not enough.  Here, husband was ordered to pay $1,600 per week until wife’s death or remarriage.  Wife says she needs more than $3,000 per week to maintain her lifestyle.  The judge failed to make specific findings about Wife’s needs or Husband’s ability to pay.  While husband argued that the after tax result of this order leaves the parties with approximately equal income, the evidence is not clear.  Further the order is the amount agreed upon by the parties in an earlier temporary order stipulation at which point husband was paying additional monthly expenses for Wife.

The judge did make findings that Wife had no income and has not been employed in 2 decades.  Further Wife has numerous health problems, the out of pocket expenses for which she will no longer receive reimbursement from husband’s health savings account.  In sum, it was not clear that the alimony award was sufficient to meet wife’s needs or maintain the standard of living the parties enjoyed.  The alimony award is remanded for clarification.

On the issue of legal fees, the judge failed to determine the reasonableness of the fees incurred, the source of such payments or how the parties may have otherwise been spending marital assets during the course of the proceedings.  The order is improper and must be reversed.

The husband’s issue is with the allocation of non-inherited assets set forth in an incomplete chart.  Although the judge provides that the parties divide all inherited assets, 64% to the inheriting party and 36% to the non-inheriting party, the judgment also divided some of the same assets 50/50.  This too is remanded for clarification.

Perenick v. Perenick

13-P-1411

September 12, 2014

Wife claims the judge erred in the division of the marital estate, treating the Husband’s pension as a stream of income rather than an asset, including wife’s unvested interest in Tower Square Capital Partners as an asset for division, failing to credit her for temporary alimony paid to the husband during the proceedings and for assets she brought to the marriage, awarding joint legal custody of their son and ordering that she pay husband $25,000 in legal fees after both parties had filed appeals.

Husband claims the judgment provided him with insufficient alimony.

The judge’s decision regarding division of assets flows rationally from the findings.  In this 17 year marriage, both parties acted appropriately with each other, both were involved in the child’s upbringing, wife was the primary wage earner but also has a much greater opportunity for future acquisition of capital assets and income.  There was no abuse of discretion.

Despite Wife’s claims the Casey case does not require husband’s pension to be treated as a marital asset subject to division.  The division in that case was reversed because it was palpably unfair.  Here, there is no inequity from the judge’s classification of the pension as a stream of income.  Wife’s alimony obligation was reduced by the classification.  The trial court’s decision here makes sense.

Further, the judge did not abuse his discretion in awarding husband a portion of wife’s interest in Town Square Capital Partners.  The court has routinely treated financial investments that are subject to variability and contingencies as being subject to division.  Here, wife’s interest appears far less speculative than she acknowledges.

Despite wife’s appeal, the judge did credit her with $100,000 she invested in a Schwab account before the marriage.  There was another $170,000 in retirement assets not credited back to wife, the reason for which is not clear but does not rise to the level of an abuse of discretion. 

As for wife’s claim for a credit on temporary alimony paid, temporary alimony is separate and distinct from general term alimony.  There is nothing in the alimony reform act which suggests or requires that general term alimony be offset by temporary alimony payments. 

The award of joint custody promoted the best interests of the child given that the father had been active in his son’s life coaching.  Other than disagreements over private school the parties were generally able to work together on parenting decisions.

The award of legal fees to the husband while both parties’ appeals were pending was unauthorized and is vacated.

Husband’s contention that the alimony award is insufficient to meet his needs as measured by the standard of living during the marriage ignores the final judgment provided him with $1.2 million in assets in addition to his yearly pension and alimony payments totaling approximately $86,600.  There was no error here.

Downey v. Black

13-P-779

September 16, 2014

Father appeals from a modification judgment ordering him to pay $373 per week child support and one-half of the college expenses for the two daughters. 

At the time of divorce mom had custody of the two children.  Two years later, the parties modified the arrangement and agreed to share custody 50/50 with no child support paid.  Thereafter, when the daughters were 16 and 19, circumstances changed again.  At the time mom filed for modification, the oldest had not spent a night at dad’s house in a year and the younger daughter slept there only once in a year.  The older child was attending community college and living at home with mom dependent on mom for support.  The younger child was about to begin MA Maritime Academy but would be living with mom during breaks.

The judge made ample findings to support the conclusion that there was a material change in circumstances.  The children were no longer coming and going between households and mom’s expenses had significantly increased on account of providing a home for both children and paying their college expenses.  Father was not contributing to college at all. 

Despite Father’s argument that he could not be ordered to both pay child support and contribute to college, the statute and the child support guidelines permit such an order.

Mother’s request for appellate counsel fees is allowed.

October, 2014 1:28 Decisions

Adoption of Yasha

 

14-P-213

 

Mother and father appeal from final decrees of the Juvenile Court entered on June 13, 2013, claiming that the judge’s findings of unfitness were not proven by clear and convincing evidence and were based on stale evidence. The mother also contests the judge’s denial of her motion for a continuance and the father contests the judge’s denial of posttermination and postadoption contact.

The mother claimed the judge’s determination of unfitness was not based on adequate evidence. The judge made fifty-two detailed findings during the trial. These findings demonstrated the mother’s history of relationships where domestic violence occurred, substance abuse, a criminal record, and mental illness. Based on these findings, the judge concluded the mother was unfit and it was in the child’s best interest to terminate the legal relationship with the mother. Specifically, the judge found the mother was unwilling to confront the reoccurring issue of her presence in relationships filled with domestic violence, some of which were witnessed by the children. The mother also had a long-standing pattern of substance abuse and suffered from multiple mental disorders including anxiety, posttraumatic stress disorder, and a panic disorder. Furthermore, the judge found the mother’s criminal record and her inability to provide a stable home environment for the children as indications of her unfitness. Since the mother did not deal with her parenting deficiencies and there was no indication her problems would improve in a certain amount of time, the judge denied her request for a continuance.

The father argued the judge relied on stale and insufficient evidence in determining his unfitness. The judge found the continuing and serial nature of the father’s acts of domestic violence, his extensive criminal history including convictions for assault and battery and illegal possessions of firearms, his current incarceration, and his inability to provide financial support as evidence of his unfitness. Based on this evidence, the judge also decided to deny postadoption and posttermination visitation.

There was no abuse of discretion. Decrees affirmed.

Stephanie Beukema v. John Dewdney

 

13-P-1930

The defendant appeals from two judgments of contempt entered against him a year after he and the plaintiff received a judgment of divorce. The defendant asserts that the plaintiff did not produce sufficient evidence for the judge to find him in contempt. Legal argument and authority do not support the defendant’s arguments. Consequently, the judge did not abuse her discretion in entering the judgments of contempt and the order directing the defendant to pay the outstanding balance due to the plaintiff was clear and unequivocal yet disobeyed by the defendant. His attempt to use his appeal to relitigate the modification of the separation agreement and challenge the factual basis of the contempt orders is not permitted.

Judgments of contempt affirmed.

Adoption of Zara

 

14-P-377

 

The Department of Children and Families petitioned a Juvenile Court judge in September 2012 claiming a child was in need of care and protection. The department was awarded emergency custody and a subsequent temporary custody hearing was held at which the mother and father waived their right to a hearing and temporary custody remained with the department. At the termination of parental rights trial, the mother did not appear and her counsel stated she had lost touch with her. After assessing the oral testimony and documentary exhibits admitted, the trial judge found both parents unfit, terminating their parental rights and approving the department’s adoption plan. The mother appeals alleging that the judge did not act in the child’s best interest and that she had demonstrated an ability to engage in services, thereby making the termination of her right premature.

The judge ascertained the mother was unfit after evaluating evidence that supported eight out of the fourteen factors used to demonstrate parental unfitness. The mother has a long history of drug use and abuse, including the use of heroine, oxycontin, and crack cocaine. She has entered rehabilitation programs previously but none have been successful. She had an extensive adult criminal history and a history of mental illness with a diagnosis of bipolar disorder. During the trial, she was unemployed and homeless. The mother used drugs while pregnant with the child and for the majority of time prior to trial she could not be located. She also failed to consistently visit the child and during the entire pendency of the trial the mother only participated in services with the department for one month. These findings demonstrate the unfitness of the mother such that it would be in the best interest of the child to terminate the mother’s parental right.

Decree affirmed.

Amee Desjourdy v. Bruce Tassone

 

13-P-1478

 

The father appeals a modification judgment that granted full legal custody to the child’s mother. The modification judgment modified only the legal custody of the child. The rest of the original judgment remains in effect. The father’s appeal pertains only to the portion of the modification judgment changing legal custody. The original judgment granted both parents joint legal custody but stipulated that if the father went over a month without visiting the child, he would waive his right to joint legal custody. In her complaint, the mother stated that the father had not visited the child in over a month and had moved out of the state. The mother requested sole legal custody and a restructuring of the father’s visitation schedule. The father responded stating he had not missed a scheduled visit and that the mother intentionally kept him out of the child’s life. The father requested that he retain joint legal custody. The mother then filed a motion for partial summary judgment in regard to the issue of sole legal custody and the judge, after a hearing, issued an order for partial summary judgment. The judge cited the father’s failure to visit the child every thirty days as grounds for a waiver of his right to joint legal custody. A modification judgment was entered granting the mother sole legal custody of the child. The judge erred in granting partial summary judgment in this case because summary judgment is no longer available in actions for custody or visitation.

The portion of the modification judgment granting sole legal custody to the mother is vacated and the matter is remanded for further proceedings. The remainder of the modification judgment is affirmed.

 

Gary Hammond v. Kathleen Hammond

 

13-P-1503

 

A Probate and Family Court judge issued a judgment of divorce nisi after a trial. The judgment stipulated that there was no order of alimony. The wife represented herself during trial but did not participate in the trial because she had left the courthouse. After the divorce judgment was entered, the wife retained new counsel who separately moved to stay the judgment and vacate it. Both motions were later abandoned. Two years after the divorce judgment was entered, the wife filed a complaint for modification alleging alimony should be revisited due to an increase in the husband’s income. Following trial on the complaint for modification, the judge found the husband’s income had decreased while the wife’s had increased. Additionally, the husband, who had sole legal and physical custody of their two children, had assumed all costs of their college educations. The judge subsequently denied the wife’s request for alimony.

The wife appeals the judgment claiming the original trial judge never ruled on alimony. The language of the divorce judgment, however, refutes this. The wife’s second argument is that she showed a material change in the parties’ respective economic circumstances. This amounts to an attack on the economic provisions of the original judgment rather than an argument that there has not been a material change of circumstances since the original judgment. The wife waived these arguments when she abandoned her postjudgment motions.

Modification judgment affirmed.

           

Kenneth Ferguson v. Ragna Ferguson

 

13-P-1901

 

Two years after a divorce judgment was entered, both parties brought a complaint for modification. After trial, the judge modified the judgment, substantially granting the mother’s request to decrease the father’s weekday parenting time while extending his weekend time. The father appeals arguing the judge applied the wrong legal standard in failing to review the mother’s decision to relocate from Natick to Lowell. The father’s failure to raise this argument at trial constituted a waiver. The father argues he did not waive the argument because the mother’s relocation was at the heart of the trial court proceedings. While the relative geography of the parents’ residences was intimately connected to the question of custody and co-parenting arrangements before the court, the father at trial argued given the mother’s move, he should have been awarded sole legal and physical custody. His argument on appeal is that the judge applied the wrong standard as to whether or not the mother should have been allowed to relocate. Since the father could have but did not raise this particular legal argument during trial, it is considered waived. Even if the father had not waived this argument, it is unavailing. Since the parties share joint custody, the advantage to the moving parent is only one relevant factor in the over-all evaluation of what is in the best interest of the children. The standard for relocation under a joint custody arrangement is the same standard as the modification of the care and custody arrangement itself. The trial judge determined the modification was in the children’s best interest, considering the benefit to the mother in moving as only one relevant factor in the over-all evaluation of what was in the best interest of the children. 

The father also contends that the judge’s determination was not supported by evidence, arguing his adoption of thirty-nine of the forty-findings the mother proposed does not demonstrate that he conducted his own personal analysis as required. The judge’s final finding discussing his attempts to be sensitive to the legitimate concerns of both the mother and father demonstrated that he did exercise his independent judgment. The record supports the findings as well as the determination that the modification was in the best interests of the children.

Judgment on complaints for modification affirmed.

           

           

Frank S. Howard v. Barbara Howard

 

13-P-1724

 

The defendant received a durable power of attorney from her mother. Her mother is now mentally incompetent and resides in a continuing care facility. The plaintiff, the defendant’s brother, alleges that the defendant has financially exploited their mother. In 2007, the plaintiff filed a financial exploitation claim with a private agency but no evidence of financial abuse was discovered. MassHealth also conducted an investigation and found nothing. In 2009, a guardian ad litem was appointed and found nothing. In March 2010, the plaintiff filed a petition to remove the defendant as an agent of their mother as well as an accounting and recovery of funds from the defendant. The judge ultimately granted the defendant’s motion for summary judgment and the plaintiff appeals.

The plaintiff’s appeal fails because the plaintiff failed to respond to the defendant’s statement of facts in her motion for summary judgment. These undisputed facts established that the parties’ mother lived independently from 2001 to 2004. They also established that Frank sent their mother a letter comparing the cost of college options for his daughter, accepted a car from her, and accepted a paid vacation from her. Furthermore, the facts established that their mother wished to spend down her assets, which she did while competent. Lastly, the plaintiff improperly withheld their mother’s brokerage funds, which a court later ordered be returned with interest. Aside from the procedural obstacle, the judge reasonably could have concluded there were no genuine issues of material fact because this evidence shows that the parties’ mother was competent during the time in question.

Judgment affirmed.

Michelle Dawn Plessner v. Stanley Michael Cijka.

 

13-P-1263

 

During the parties divorce proceeding, both sought custody of their children. Following a trial, the father was granted legal and physical custody. The mother now appeals. The parties were married in 1998 and had two children during their marriage. The mother claimed that the father was abusive towards the children and the Department of Children and Families (DCF) was involved on numerous occasions. There was also a report that the children were abusive towards one another as well as supported allegations of the mother’s neglect of the children and the father’s neglect and abuse of the children. The DCF social worker assigned to the case stated that the father complied with DCF’s efforts to help, while the mother resisted. In 2010, the mother filed a complaint for divorce and the father counterclaimed. A judgment of divorce nisi was entered in 2011 that granted the mother primary physical custody of the children and the father visitation rights. Both parents retained joint legal custody.

In 2011, the mother moved from West Springfield to Boston, removing the children from their school. She never sought permission from the father or the court to do so nor did she inform the father prior to moving. The father successfully moved to vacate the judgment and after trial was granted legal and physical custody of the children. The mother now appeals on numerous grounds. First, the mother alleges the trial judge did not consider the best interests of the children in issuing the custody decision. The judge, however, made detailed and specific findings supporting her decision, including the father’s ability to provide a stable, nurturing environment for the children. The judge contrasted this with the mother’s decision to withdraw the children from school, separating them from friends and teachers, even though one of the children was on an individualized education program. The judge could have reasonably concluded from these findings that giving custody to the father was in the best interest of the children. Second, the mother alleges that she was not required to notify the court or the father about her move. Since the mother’s move constituted a significant disruption of the noncustodial parent’s visitation rights, the judge was justified in finding this action disregarded the best interest of the children. Furthermore, the mother argues the judge erred in not granting her custody of the children as their primary caretaker. The statute dealing with custody of children of divorced parents, however, does not favor the primary caretaker. Additionally, the mother argues the judge erred in awarding custody to the father due to his abuse of the children. Since the judge never found that the father engaged in abusive behavior but found that the father acted in the best interest of the children, the judge did not err.

Judgment of divorce nisi entered on December 21, 2012, affirmed.

Adoption of Xaviera (and three companion cases)

 

13-P-1644

 

The mother of four children appeals from decrees entered that found her unfit to exercise parental responsibility for her children and terminated her parental rights. The case started when the Department of Children and Families (DCF) filed an affidavit in court alleging the children were in need of care and protection. DCF was granted temporary custody. Following trial, the judge found the mother and the three fathers of the children unfit and the children in need of care and protection. While he did not terminate parental rights at that time, the judge ordered the mother to undergo psychological and parenting evaluation. One year alter, a review and redetermination hearing was held, after which the judge ordered the termination of the mother’s parental rights. The mother appeals, first contesting the judge’s authority to order her to participate in psychological evaluation. The mother was asked and instructed to confer with counsel regarding the evaluation and was informed at the evaluation that it was voluntary and could be terminated at any time. The judge also noted the importance of this evaluation in determining a judgment due to the mother’s denial of any mental health issues. Therefore, the mother’s assertions are without merit

Aside from the evaluation, the judge had ample other evidence to support his termination of the mother’s parental rights. The judge’s findings supporting his decision of the mother’s unfitness include instances of her failure to follow DCF service plans, failure to cooperate with DCF personnel, instances of domestic violence which impacted the children, neglect of medical needs of the children, lack of anger control, denial of mental health issues, frequently missed visits with the children, and inappropriate behavior with them. Based on these findings, the judge had clear and convincing evidence upon which to determine that the mother’s unfitness was such that it was in the children’s best interest to end all legal relations. The mother also asserts that since most of the children will be living with a biological parent, the judge should not have terminated her right. The absence of imminent adoption is not, however, does not automatically invalidate the termination of parental rights. The judge appropriately found the termination would promote stability in the children’s lives.

Decrees affirmed.

           

Adoption of Walt

 

13-P-1957

 

The mother appeals from decrees issued terminating her parental rights and dispensing of her right to consent to the adoption of her three children. The mother alleges that the judge erred in his determination of her unfitness and that the judge should not have terminated her rights because she obtained and benefited from services to remedy her parenting deficiencies. Review of the judge’s findings demonstrates the judge did not err in his determinations.

The judge made specific and detailed findings supporting his determination that the mother was unfit. The mother suffered a traumatic brain injury at the age of eight, which caused migraines and seizures. The mother also has short-term memory loss, cognitive impairments, posttraumatic stress disorder, and depression. She and her husband both have criminal records. Their relationship was plagued with domestic violence. The mother has a history of unstable housing and is currently unemployed. The two older children have numerous physical and cognitive disabilities. While the mother was in labor with her youngest child, she had a seizure and fell into a coma-like state. The Department of Children and Families (DCF) filed care and protection petitions and took temporary custody of the children. The mother, when she awoke, complied with the service plan. When new tasks were added, however, she only complied with the old tasks. The judge’s findings included the mother’s limited progress through these services and her inconsistent compliance with them; her limited cognitive ability and short-term memory loss; the children’s special needs; the children’s exposure to domestic violence; and the unstable and unsafe home environment. These findings showed the judge used the utmost care in determining her unfitness and adequately assessed the undisputed evidence that was favorable to the mother in his decision. They also supported the judge’s determination that the mother lacks the ability to protect the children from their father. The mother’s other allegations that the judge improperly considered evidence are without merit.

Furthermore, the mother claims that DCF failed to provide her adequate services and therefore the judge should not have terminated her parental rights. The record, however, shows that DCF provided services to the mother that included a psychological assessment, individual therapy, domestic violence counseling, and parenting support. DCF also sought to implement services specific to her head injury. Regardless, the determining factor in dispensing parental rights is not DCF’s efforts, but the actual fitness of the parent and the best interests of the children. Participation in DCF services does not support findings of fitness. Additionally, the record shows that despite her participation in the services, the mother lacked the ability to adequately care for and supervise the children. Therefore, the judge did not err in determining that the mother’s unfitness was not temporary. The judge was also correct in determining that the mother required twenty-four hour assistance.

Decrees affirmed.

 November 1:28 Decisions

Callahan v. Callahan

13-P-1742

The pro se defendant, Richard Callahan, appeals from an order of the Probate and Family Court extending an abuse prevention order under G. L. c. 209A for a period of one year.

The court chose to extend the restraining order citing that there was a history of violence between the parties and agreed with the prior decision in Callahan v. Callahan, 85 Mass. App. Ct. 369 (2014). The court went onto say that the fact that Mr. Callahan is out of prison is further evidence that the child and the mother may be in fear.

The three judge panel found that the lower court judge did not abuse his discretion in extending the order for a period of one year. 

Care and Protection of Bancroft

13-P-1963

The mother and the younger child, Bancroft, appeal from a Juvenile Court judge's adjudication finding the mother unfit to parent her two children, Bancroft and Paul. The mother and Bancroft argued the judge improperly focused on the mother's past rather than her recent progress and, further, that the judge erroneously shifted the burden of proof onto the mother to demonstrate her fitness.

The court held that the judge appropriately weighed the evidence of the mother’s past discretions against her rehabilitative efforts. The court further determined that the burden of proof should not be shifted and that the judge did not abuse the discretion. 

Stritof v. Barry

13-P-1997

Kevin Barry appealed from an order denying his motion to expunge a G. L. c. 209A restraining order and an order denying his motion to expunge his criminal record. Barry claimed that the restraining was the result of fraud and the challenged the order on these grounds. Previously, a c. 209A abuse prevention order was entered ex parte against Barry by a District Court judge in 1997. After a hearing the order was extended, and then extended again for one year. The order expired by its own terms on March 6, 1998. There is no indication that Barry ever appealed.

The court held that Barry was time barred from making his fraud claim about the restraining order as you only have one year from when the order is entered to make such a claim. As for the CORI argument, the court rejected this argument citing that a CORI record may be sealed in Massachusetts but not expunged. Only in the case of a juvenile may it be expunged.

Dunne v. Dunne

13-P-826

Thomas Dunne, the former husband of Joan Dunne, the former wife, appealed from a judgment of divorce entered in the Probate and Family Court, which among other things, (1) awarded legal and physical custody of the couple's two minor children to the wife; (2) allowed the wife to remain in the marital home until the youngest child graduates from high school, at which time the home would be sold and the net proceeds divided equally; (3) awarded the husband his tools and trade implements; (4) awarded child support of $194 per week to be paid to the wife; (5) allowed the parties to retain the bank accounts standing in their names, while the retirement accounts were to be equalized between them; and (6) permitted the husband to claim one of the children as a tax exemption as long as he was current on his child support payments. The judge did not provide for an alimony award.

On appeal, the husband argued that the judge did not adequately consider the best interests of the children and made findings with respect to custody and certain property matters, which the court found were erroneous. The trial judge did not find the husband credible, and it is within the trial judge’s discretion to make such findings. On these grounds, the appeals court affirmed the lower court’s decision.

The appeals court also found that the wife should continue to have primary physical and legal custody because the wife was the primary care-taker, the husband rejected his sons’ disabilities, and the couple was unable to communicate.

Roccaforte v. Hussey

14-P-284

The defendant appealed the denial of his motion to vacate a permanent abuse prevention order. He argued that he demonstrated "two significant changes in circumstance [that were] not present at the time [of] the last order." The two changes in circumstances were that he lost his job because of the order and is unable secure another job, and that he is no longer able to participate in recreational activities involving firearms.

The court found that the judge did not abuse his discretion in denying the appeal because the defendant did not present clear and convincing evidence of a significant change in circumstances. The court held that where a defendant has failed to meet his burden to terminate an abuse prevention order, the order shall not be terminated, regardless of how onerous the collateral consequences, because the only relevant issue is the safety of the plaintiff.

Vaida v. Vaida

13-P-I827

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 reasoned 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.”