Winter 2015 Newsletter: 1.28 Decisions

Below are the 1.28 decisions for the Winter Family Law Newsletter written by: Ethan Rittershaus (December), Alana B. Holly (January) Elizabeth Silverstri (February), Ethan Rittershaus (March)

December 2015

Hager v. Hager

13-P-1620

 

Husband appealed from an amended judgment of contempt ordering him to pay his former wife twenty percent of his bonus cash payments from 2009-2012. Parties were married in 1985 and had two children during the course of their marriage. They were divorced in 1998 and the judgment incorporated a separation agreement the parties had entered. In relevant part, the separation agreement stated that, “As additional child support, the Husband shall pay direct to the Wife upon his receipt of same twenty percent of the gross amount of any cash bonus monies paid to Husband from his employment from time to time received.”

 

Husband argued to the Appellate Court that the payments he received from his company in 2009 to 2012 were not cash bonus payments as contemplated in the separation agreement. He also argued that the trial judge abused her discretion in finding the 2009-2012 bonus payments were all cash.

 

The Appeals Court first established that in reviewing a determination relative to characterization of bonus payments there is no one size fits all categorization of assets, and the trial judge is given wide latitude in making the determination.  Brower v. Brower, 61 Mass. App. Ct. 216, 221-222 (2004). 

 

In reviewing the trial judge’s decision, the Court found that the print outs from the bonus payments, that had been jointly introduced into evidence and marked, “RESTRICTED STOCK / CASH” and “RETEN.CASH” would permit a proper finding that the payments were cash.

However, given the ambiguity of the record and the opaque intent evinced by the separation agreement the appeals court was unable to conclude that the record supported a finding of contempt.  Contempt requires, “a clear and unequivocal command and an equally clear and undoubted disobedience.” Larson v. Larson, 28 Mass. Appt. Ct. 338, 340 (1990). The Judgment of contempt and order for attorney’s fees was vacated. In all other respects, the lower court judgment was affirmed.  

January 2015

                                                Pabich v. Bachman

                                                            14-P-407

 

Mother appealed, modification judgment that awarded the parties shared physical custody and required the parties minor children to attend Swampscott public school. Mother argued the judge erred in awarding shared physical custody and requiring the children to attend Swampscott public school.  Mother asserts many of the trial judge’s findings were incorrect, or went against the weight of the evidence presented in trial.

 

A couple was married in May 2000 and had two children, now ages 10 and 12. They divorced in January 2007. The judgment of divorce nisi incorporated the parties’ separation agreement, except for certain provisions, including those relating to the children, which merged. The agreement provided that the parties shared legal custody, mother had sole physical custody and father paid mother weekly child support. These provisions merged.

 

In September 2012, mother filed a modification to increase father’s child support payments and father filed a counterclaim requesting sole physical custody of the two children and permission to enroll the children, in Swampscott public school. Following a two-day trial, the judge ruled the parents shall have shared physical custody and the children shall be enrolled in Swampscott public schools.

 

The court found there was enough evidence to support the trial judge’s ruling of shared physical custody and the children’s school and there was nothing to warrant mother’s request for heighten scrutiny. When concluding the children attending Swampscott public school was in the children’s best interest, the trial judge had weighed testimony of both parties regarding the merits of each school system (Salem public school, the Phoenix School and Swampscott public school). The court found the trial judge to be in the best position to weigh this evidence and assess the credibility of witnesses at trial. The court also found, trial judge did not error in awarding shared physical custody. This ruling was in the children’s best interest because it allowed for the children to attend the more “highly ranked and well-regarded” school, for each party to have a role in the children’s everyday life, and for father to have greater input in the children’s education and activities.

 

Judgment Affirmed

 

Ama Asantewa v. Nicolas Quarshie

14-P-616

Father appealed a September 23, 2013 child support modification judgment increasing his child support from $189 a week to $400 a week. Father, argued the evidence presented was insufficient to support the trial judge’s order and the trial judge violated G.L.c. 208 §28 by not making written findings.

 

On October 15 2010, a temporary order required father to pay mother $189 a week in child support. At the time, father was employed as a resident in internal medicine at the Metrowest Hospital in Framingham. On September 23, 2013, following a trial, a judgment was entered that modified and increased father’s weekly child support to $400 a week. The judgment attributes income to the father sufficient to pay the order.

 

At trial it was not disputed that father was now employed as a physician and a fifty percent owner of a subchapter S corporation, New England Prime Associates (Prime Associates). What was disputed was father’s annual income. Father stated his annual salary from Prime Associates is $41,000, while his total income for 2012 was only $55,000. From 2012 to 2013, father worked at three different hospitals and testified he worked sixty to eighty hours per week. Father’s salary at the hospitals ranged from $155- $262.50 depending on the hospital and if he worked on the weekend. There also was evidence presented that Prime Associates grossed $181,879 and expensed $100,000.

 

At the close of evidence, father’s counsel acknowledged that based on father’s increasing income and the likelihood of another distribution from Prime Associates in 2013, his child support should be increased to $275 per week, which she stated, would be appropriate under the Child Support Guidelines for a person earning $80,000 a year. Mother’s attorney contended that there was evidence supporting a finding that the father's income was in excess of $200,000 per year and that his weekly support obligation should be $535.

 

The judge's assessment at the conclusion of the trial was that father was engaged in "some kind of scheme to shelter some income," and earned more income than he reported, but not as much as what the mother claimed, and that the correct order for weekly child support should be somewhere between $275 and $565.

The court found the trial judge made no err of law nor abused his discretion. A modification of child support order is within the discretion of the judge, who is required to make findings of fact only when the order represents a deviation from the child support guidelines. In this case, the judge has made findings of fact, which attributed income to the father based on his testimony regarding his salary and the judge’s credibility determination of father’s testimony. The judge's order was within the guideline range and thus there was no requirement under G. L. c. 208, § 28, that the judge make findings of fact. The father also failed to file the proper motion requesting findings in advance of the final argument at trial, as required by Mass.R.Dom.Rel.P. 52(a).

 

Judgment Affirmed

 

Rebecca L. English v. Richard B. English

 

14-P-619

 

Mother and father were once married and had a minor child. The judgment of divorce nisi incorporates the parties’ separation agreement and provides the parties have shared legal and physical custody and the child. Regarding parenting time, the agreement states, each party shall work together to ensure they each have time equivalent to three and one half days per week with the child, so that each has equal time. This agreement also provides both parties will use best efforts not to relocate outside of Massachusetts.

 Mother appealed a judgment, which among other things, dismissed her complaint for modification in which she sought permission to remove the minor child, who was 8 years old at time of judgment, from Massachusetts to Utah. Mother asserted the judge used the incorrect standard for removal and that a number of the judge’s findings are erroneous.

 The court found the judge used the correct standard when determining removal. Mother argues the “real advantage” standard in Yannas should apply instead of the Mason standard, which was applied by the judge. The court found the judge did not err by not applying the “real advantage” test since the parties’ had agreed to shared physical custody, and the judge had found and supported in her findings the child lives with the father between fifty and sixty percent of the time.

The court also found the judge did not make erroneous findings of fact that would require a reversal of the judgment. The court found the judge adequately considered and analyzed each of mother’s challenged findings. These challenged findings related to father’s financial position and employment situation, mother’s level of effort to find a new job in Massachusetts, mother’s “community” or family in Utah, and the child’s schooling and education.

Judgment affirmed.

Nancy Jane Soares v. Ben Soares

 

14-P-315

 

The defendant appealed a harassment prevention extension order issued in August 15, 2015. The defendant claimed (1) the judge erred as matter of law in extending the order where an order to vacate is not a permissible remedy under G. L. c. 258E and where the plaintiff failed to satisfy the statutory elements required for a harassment prevention order; (2) the judge violated the defendant's right to due process under G. L. c. 258E and art. 12 of the Massachusetts Declaration of Rights by denying him the right to cross-examine the plaintiff and her witness and by denying him access to his home; and (3) the judge violated the defendant's due process rights by admitting inadmissible hearsay at the extension hearing.

 

In 2011, the defendant Ben Soares, had been living at his mother’s home located at 135 Ledge Street in Seekok. The home is a single family raised ranch with an in-law apartment which has been managed by the mother’s guardian since 2007. In the summer of 2011, it decided by the guardian the defendant would move out and the plaintiff, Nancy, and her family would move in. The defendant refused to vacate the home and relocated to a different area of the home. The guardian never attempted to force the defendant out. The plaintiff moved in and changed the locks in her area of the home and created barriers so the defendant could not enter her area of the home.

 Between July 2 and August 7, the plaintiff alleges four specific instances occurred involving the defendant, which caused her to seek a harassment prevention order on August 8, 2013. These events included the defendant breaking into the plaintiff’s area in the home in the middle of the night, and three separate instances where the defendant threatened to enter the plaintiff’s home forcibly.

 On August 8, 2013, the plaintiff, appearing pro se, obtained an ex parte harassment prevention order pursuant to G.L.c. 258E against the defendant, also appearing pro se, that he claims evicted him from his residence. The order was extended after a hearing held on August 15, 2013, at which the parties and a witness for the plaintiff testified.

 The court found there was no merit to the defendant’s arguments and found the plaintiff did satisfy the statutory requirements by showing the defendant, motivated by cruelty, hostility or revenge, intended to cause the plaintiff fear or intimidation and that she, in fact, felt fear or intimidation due to his actions. " O'Brien v. Borowski, 461 Mass. 415, 426, 961 N.E.2d 547 (2012).

 The court also rejected the defendant’s argument that the judge committed evidentiary and other procedural errors. The defendant made no evidentiary objections and although the judge did not inform the defendant he could cross-examine the witness the judge did not prohibit him from doing so. 

Finally, the court concluded there was no merit to the defendant’s claim the judge improperly ordered him to vacate the premise. The judge’s order that the defendant vacate the premises did not improperly exceed his authority under G. L. c. 258E.

 Judgment Affirmed

 

February 2015 1:28 Decisions

D.E. v. F.G.

 

13-P-1566

 

F.G. and D.E. never married or lived together but have a son. The father, D.E., paid child support upon the determination of paternity. When it was time for the son to go to college, D.E. was not included in any college decisions. The son went to McGill University for two years but then moved to South Carolina to live with his girlfriend in March 2010. After this time, the son only occasionally visited his mother, F.G., at her home in Beverly, Massachusetts. In June 2010, the son turned twenty-one and in August he enrolled in Broward College in Florida. He moved to Florida and worked, receiving an associate’s degree in May 2012. F.G. paid the son’s tuition and board while he was at McGill and his college and housing expenses while he was at Broward. D.E. paid F.G. child support of about $12,000 per year, continuously, until the son was over twenty-three years old., the age at which the parties agreed the son was emancipated.

In his February 16, 2010, complaint, D.E. wanted to terminate his child support obligation, at which time the son was twenty years old. F.G. filed a counterclaim in December 2010 seeking an increase in child support pursuant to the Massachusetts Child Support Guidelines (2009) as well as contribution toward college costs. At the hearings held on January 14, 2013, the judge denied D.E.’s request for retroactive reduction of child support but allowed the request to terminate child support at the son’s twenty-third birthday. The judge dismissed F.G.’s counterclaim stating the father’s continued child support payments were fair and reasonable. F.G. appeals, arguing that the judge erred in not increasing D.E.’s child support payments from the time that her counterclaim was filed.

F.G. incorrectly relied on G. L. c. 209C, ß 9, which allows for the continued child support for a child until the age of twenty-three if the child is domiciled at the home of a parent while relying on that parent for maintenance because the child is enrolled in an educational program. Since the son did not live at home while in school, this statute is inapplicable. Furthermore, the Massachusetts Child Support Guidelines state that the judge has discretion over establishing support orders for children over the age of eighteen. There was no evidence that the judge abused her discretion in deciding there was no material or substantial change in circumstances or that the continued payment of child support by D.E. until the son was twenty-three was fair and reasonable.

Judgment affirmed.

 

Mark Scanlon v. Deborah Scanlon

 

14-P-68


The couple had a child on March 19, 2002. They married in December 2005, separated in January 2006, and divorced in July 2007. The mother was awarded sole legal and physical custody of the child; the father had visitation. The mother and the child’s school developed an individualized education program to accommodate the child’s emotional and cognitive delays. The child repeated kindergarten and first grade. While in preschool, it was recommended that the child receive counseling, but the mother never took him. The mother filed a complaint for modification of the existing custody arrangement in November 2011 to terminate the father’s visitation because the father had others living with him (his wife, his step daughter, and the father’s child from another woman) and she felt the environment was not suitable for their son.

The father counterclaimed for sole legal and physical custody and requested the appointment of a GAL. The mother did not cooperate with the GAL’s investigation and requested a new GAL be appointed, but her request was denied.

A trial proceeded based solely on the father’s counterclaim, because the mother dismissed her complaint for modification beforehand. The judge awarded physical and legal custody to the father, because the mother was unable to separate her own needs from the child’s needs. She also concluded that the mother would continue to prevent a relationship between the child and his half-sibling and father. The mother appealed the judgment and tried to stay the judgment pending appeal alleging that the judge relied on the report of a biased GAL. Her motion was denied.

The judge’s decision to award custody to the father was valid. The record supported the judge’s finding that sole custody to the father was in the best interest of the child without reference to the GAL’s report. The evidence showed that the child had delays when he started school; he had not been to the dentist nor had he received a physical exam in more than a year; he lied to the father at the discretion of his mother; and, he sustained serious injuries while in the mother’s care. While this was contrary to the mother’s testimony, the judge does not have to believe the mother’s testimony.

Judgment affirmed.

 

Adoption of Ilene

 

14-P-1134

 

            In an early decree issued on January 15, 2014, the trial judge’s “Findings of Fact, Conclusions of Law, and Order” contained findings of fact that were based upon portions of the record that the judge had previously stricken from the record. The judge issued a new order on December 23, 2015, declaring that the evidence that was stricken at trial would be removed from the Court’s Findings of Facts and Conclusions of Law and Order. All parties, which include counsel for the child, mother, father, and the Department of Children and Families, now agree that the order striking the findings of fact from earlier findings did not cure the relevant errors and that portions of the amended findings rely upon evidence stricken from the record. Consequently, the judge’s finding of unfitness is not supported by clear and convincing evidence.

 

            Decree vacated and matter remanded to Juvenile Court for new trial.

 

 

Adoption of Raphael

 

14-P-918

 

            The father appeals from a decree that terminated his parental rights. Both the father and mother appeal from the rejection of their proposed plan to have the maternal grandmother take guardianship over the child. The father specifically challenges the judge’s conclusion that he has not received anger management treatment because the father did participate in an anger management program while in jail. Regardless of this conclusion, the judge correctly found the father unfit to parent the child. The judge concluded that the father’s criminal activity and subsequent incarcerations made him unavailable to care for the child. The judge also found that the father’s unresolved issues with impulsive behavior along with his history of drug abuse posed a risk to the child. Furthermore, the father had a history of domestic violence. Since the judge is allowed to rely on the father’s past conduct in determining fitness, the judge did not err in finding the father unfit. In regard to placement of the child, the judge considered the parent’s desire to place the child with the maternal grandmother, the grandmother’s unwillingness to adopt the child or visit him, the maternal grandparent’s history of domestic violence, and the maternal grandfather’s history of alcohol abuse. The judge did not err in concluding that it was in the best interest of the child to be adopted by his foster family rather than his maternal grandmother.

 

            Decrees affirmed.

 

Care and Protection of Sam

 

14-P-992

 

            The mother appeals from a decision in Juvenile Court that found her unfit to take care of her son, Sam, stating that the judge’s decision was not supported by clear and convincing evidence and that she received ineffective counsel. The Department of Children and Families (DCF) had filed a care and protection petition requesting temporary custody of Sam and his brother on November 21, 2012. The mother and her deceased husband had adopted both boys and at the time the petition was filed, both children were subjects of a child in need of services proceeding and had been removed from the home. Following a trial, the judge found the mother unfit to care for Sam, while his brother was later reunited with the mother and the petition as to him was dismissed. The judge based his decision on findings that under the mother’s care, Sam was physically aggressive, exhibited assaultive behavior, and displayed a defiant demeanor. Sam’s school said he displayed major behavioral problems and he was charged with assault and battery at age eleven. Additionally, once Sam was removed from the home, the mother resisted DCF’s service recommendations and did little to improve her parenting skills. Furthermore, Sam thrived when living with his foster mother and expressed a clear desire to remain with his foster mother rather than his biological mother. Although Sam’s mother was reunited with Sam’s brother, this did not automatically render her fit to parent Sam. In regard to the mother’s counsel, she did not show that counsel’s conduct likely deprived her of an otherwise available, substantial ground of defense and even independent of the mother’s counsel, there was ample support for a finding of unfitness.

Judgment affirmed.

 

Sofia Zanzarella v. Stephen Burrell

 

13-P-920

The father appeals from a judgment on a complaint for custody, support, and visitation, which awarded sole legal and physical custody of the child to the mother; allowed the father one hour supervised visitation a week; possible future increase in visitation if it was recommended by the child’s therapist; ordered weekly telephone contact by the father to the child; and, ordered the father to pay $108 weekly in child support. The father first contends on appeal that the denial of his motion to receive a copy of the guardian ad litem (GAL) report is limiting his ability to prosecute his appeal. Although this order is not properly in front of the court, even still, the father fails to show how the judge abused his discretion. The judge based his order on the sensitive nature of the report’s contents as well as the disappearance of the original document from the file. The father also fails to show how his appellate rights are impeded since he can still go to the register’s office and view the report.

 Next, the father argues that the judge erred in allowing the clerk to participate in the proceedings because of their negative relationship. There is nothing in the record, however, to support this argument. The father also argues that the judge should not have allowed the GAL to offer an opinion as a category F GAL, but the record shows the GAL never offered an opinion as a category F GAL. Lastly, the father argues that the GAL should not have been permitted to testify to hearsay in the report. Since GAL reports can contain hearsay when the GAL is available to testify at trial and the source of the material is sufficiently identifiable such that the affected party can rebut it, it was within the judge’s discretion to determine what weight to give the hearsay evidence.

Judgment affirmed.

 

Denise Michelle Boutin v. Jarrod Lee Boutin

 

13-P-1633

 

The husband appeals from an amended judgment of divorce nisi that awarded sole legal and physical custody of the parties’ child to the wife; allowed her to remove the child to Connecticut; provided parenting time for the husband; and awarded the wife attorney’s fees in the amount of $45,000. The parties married on June 21, 2008, and had a child on December 28, 2009. They separated in 2012 due to violent and deceptive acts that included the husband hitting the wife and installing surveillance in their house without her knowledge. At trial, the husband admitted to lying under oath and purposefully destroying and concealing evidence; these actions factored into the judge’s findings. Specifically in regard to the custody determination, the wife had been the child’s primary caretaker and the parties conflicted over routine child rearing issues such as the child’s daily care and hygiene. The record supports the judge’s findings that it is in the child’s best interest to be in the sole legal and physical custody of the wife and that joint legal custody would not be feasible.

In regard to the removal of the child, the judge correctly evaluated the request according to the two-pronged test in Yannas v. Frondistou-Yanna, 396 Mass. 704, 711-712 (1985). The wife originally lived in Connecticut and has family and a large network of friends there who could help her with the child and would make her feel safe. It would also allow her to shorten her commute, thereby spend more time with the child. Since the requested move presented a real advantage to the wife and would be in the best interest of the child, the judge’s findings were correct. Furthermore, the husband’s claim that the judge abused her discretion in requiring him to go to Connecticut to visit the child is invalid, because the overall reduction in parenting time is de minimus. Lastly, the judge’s awarding of attorney’s fees to the wife was not unreasonable due to the husband’s lack of candor at trial and during discovery as well as the costs the wife incurred in hiring an investigator and forensic expert in regard to the surveillance system.

 Amended judgment affirmed.

 

Jonathan Alden Bedard v. Jacqueline Rae Callahan

 

14-P-572

 

This is an appeal from an amended judgment of contempt. The parties entered into a stipulation on August 6 2012 stating that all disputes related to their child were to be referred to the Parental Coordinator before being presented to the Court. This stipulation was incorporated into the August 6 2012 judgment. The mother filed a complaint for modification in November 2012, alleging that the father had raised issues with the parenting coordinator that were beyond the scope of his appointment. The mother also stated she could not afford the services of the parenting coordinator. The father filed a complain in December 2012 seeking to hold the mother in contempt, along with an additional emergency motion for sole legal custody, without consulting the parental coordinator first. The complaint was off-listed by another judge until the mother could present her issues to the parental coordinator. The father then filed a second complaint for contempt in February 2013, alleging the mother had not cooperated with the parental coordinator. The judge found that the mother had violated the provisions of the August 2012 stipulation by filing the complaint without consulting the parental coordinator first and by not paying the coordinator. The judge found the mother in contempt because the mother did not address issues with the coordinator or follow the coordinator’s advice. The stipulation, however, did not say the mother had to follow the coordinator’s advice nor did it set forth a procedure of schedule for referring disputes to the coordinator. Therefore, the language of the stipulation was ambiguous, and cannot be enforced.

The judge had also found the mother in contempt by bringing a motion to eliminate the coordinator. Since the amendment judgment of contempt was filed, Bower v. Bournay-Bower, 469 Mass. 690 (2014) was decided, and states that an order requiring the use of a coordinator before the court, if imposed over the objection of one of the parties, presents due process concerns. The case also states that the appointment of a paid coordinator may generate expenses that violate the State Constitutional guarantee of the right to access the courts. For these reasons, the amended order of contempt is vacated and the matter remanded.

So ordered.

 

 

Mary-Beth Lambrou v. Steven Lambrou

 

13-P-364

 

Husband and wife married in March 2000. They later separated in December 2008 without having any children. In November 2010, the wife brought a complaint for divorce and an equity petition alleging the husband was the owner of properties that were held in the name of various entities. Both appeal from the judgments entered.

At the trial, the wife was thirty-nine years old and had bulimia. She had a high school education and held various odd jobs. The judge found her average annual earnings to be $12,000. The husband was fifty years old and had attended college for two years. He was in the used car business and had purchased two properties on behalf of the business he operated with his brother (HMC). These properties were deeded to other family members and held in resulting trusts for the husband. The judge found the husband to utilize numerous bank accounts including two HMC accounts, an individual checking account, and a joint certificate of deposit account. The judge found that the husband used one of the primary business accounts for his sole personal use. After the couple’s split, the husband purchased additional properties that were transferred to other and held in resulting trusts and loaned $600,000 to his cousin, which is now being paid back to the husband at $12,500 a month. In determining what assets were to be included in the marital estate, the judge determined the husband owned four properties held in trust. She also included the loan balance and at least three of the bank accounts the husband used. Although the husband claimed he made $33,800 a year, the judge found this was inconsistent with his lifestyle, which included living in a large home, driving high-end cars, and hiring domestic help. The judge found his income to be $300,000 a year for purposes of calculating alimony. Since the wife worked minimal hours and was underemployed, the judge ordered rehabilitative alimony for five years so that the wife could seek further education and retraining necessary to be self-supporting. The judge also ordered constructive trusts to be set up in the husband’s four properties and ordered the husband to pay $500,000 as part of the division of assets. Furthermore, the judge ordered the husband to pay fees and expenses associated with the litigation in the amount of $128,337.50 due to the husband’s lack of forthrightness and transparency.

The judge did not err in including three of the trust properties into the marital estate. Although the husband deeded the properties to other family members, he exercised ownership over them even after they were transferred, indicating the existence of a resulting trust in which the husband did not transfer his beneficial interest. The judge also did not err in including the loan balance in the marital estate, because the husband is a payee on most of the checks and is the sole payee on recent checks. The judge’s reasons for not including two of the husband’s bank accounts and four other properties in the marital estate, however, were unclear and the matter must be remanded for a new trial on the issues. The judge’s award for rehabilitative alimony was based in part on the division of assets; therefore, it must be set aside. The evidence supports the judge’s award for attorney’s fees based on the husband’s lack of transparency and forthrightness.

So ordered.

 

 

March 2015

Cole v. Cole

14-P-466

March 9th, 2015

Wife appealed from a modification judgment of the Family and Probate Court reducing the amount of alimony received and terminating alimony upon the former husband’s 65th birthday.

Parties were married in 1969 and divorced in 2003. The divorce judgment ordered husband to pay $450 weekly. The alimony order was subject to review upon the occurrence of several triggering events: pay off of the first mortgage (other than a refinancing), remarriage of the wife, and the wife’s receipt of SSDI. These provisions merged into the divorce judgment. In December 2010, husband filed a modification to terminate alimony and the obligation to maintain life insurance. Following a trial on the modification, alimony was reduced to $220 weekly. The judge found that the alimony should be reduced due to a variety of the section 34 factors: the fact that wife was cohabitating, receiving SSDI, and had refinanced the marital home.

The Appeals Court held that the trial judge had specifically cited the retirement and cohabitation provisions of the 2011 Alimony Reform Act. Relying on Chin v. Merriot, 470 Mass. 527, 23 N.E.3d 929 (2015) and its two companion cases (decisions not issued until after the initial judgment had been rendered), the Appeals Court held that the Alimony Reform act had not been intended to apply retroactively to modifications filed before March 1, 2012. The sole exception to the Reform Act’s prospective application concerning the durational limits set forth in G.L c. 208 s. 49. Rodman v. Rodman, 470 Mass. 539, 545-546, 23 N.E.3d 922 (2015).

As the findings related to the Reform Act were so ingrained in the lower Court’s judgment, the Appeals Court vacated the judgment and remanded for further fact finding as to whether a material and substantial change in circumstances occurred irrespective of the Alimony Reform Act. Additionally, the Appeals Court did not grant the appellant’s request for fees and costs.

Bethany Boys vs. John Gainer

14-P-839

March 13th, 2015

Defendant appealed from a one year 258E harassment prevention order following an evidentiary hearing. The Defendant argued on appeal that there was insufficient evidence that he committed three or more acts that were malicious or intended to cause fear as contemplated in section 1 of G.L. c. 258E.

 

As a threshold issue, the Appeals Court noted that even though the 258E order had since expired, the appeal of its issuance was not moot. Seney v. Morhy, 467 Mass. 58, 62, 3 N.E.3d 577 (2014).

 

As the hearing judge did not make any findings of fact, the Appeals Court reviewed the record independently. In brief, the two parties were coworkers. The defendant developed feelings for the plaintiff that were not reciprocated.  He began to call her and email her; he also apparently reacted in an extreme manner when he found out that the plaintiff was married. The plaintiff subsequently filed an application for a harassment prevention order pursuant to 258E.

 

The Appeals Court first noted that, In order to obtain a 258E order, a plaintiff must demonstrate that they are suffering from harassment. DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116 (2015). "Harassment" is defined by the statute as "3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, "Conduct may constitute civil harassment where an individual willfully and maliciously uses 'fighting words' that are 'so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace,' or uses 'true threats,' such as 'words or actions that — taking into account the context in which they arise — cause the victim to fear such harm now or in the future.'” Seney v. Morhy, 467 Mass. 58, 63, 3 N.E.3d 577 (2014).

 

The Appeals Court concluded that the evidence clearly did not show three instances of the defendant using "fighting words." It also did not show three or more instances of willful and malicious use of true threats. The evidence sufficed to show that the plaintiff was alarmed and fearful because the defendant was pursuing an unwelcome personal relationship. However, this was not sufficient to satisfy the statutory standard. Order vacated.

Redlefsen v. Norton

13-P-1958

March 16th, 2015

Mother appealed from a modification judgment and a judgment of contempt, dated January 29, 2013. The modification granted custody to Father of the parties 11 year old daughter. The Mother was adjudged in contempt because she failed to notify the father that she was unable to care for the child for more than eight hours as required by the divorce decree.

 

The mother argued that the judge's failure to consider her proposed findings of fact and recommendations even though untimely filed was erroneous. She also contended that the father failed to notify the judge of material changes of circumstances before the modification judgment entered. Finally, she asserts that the judge failed to consider all the relevant facts.

 

However, mother had not provided the Appeals Court with a factual record. The Court noted that it is the appellant’s responsibility to ensure that the record is properly constructed and [in civil cases] order transcripts. Mass.R.A.P. 18, Mass.R.A.P. 8(b)(1) respectively. As a result, the challenged judgments were affirmed.

Daniel v. Daniel

14-P-586

March 17th, 2015

Husband appealed from a judgment of divorce nisi which ordered that he provide alimony and health insurance to Wife. He argued that the judge abused her discretion in proceeding with the trial in his absence on a date when the case was scheduled for a pretrial conference. He also objected to using his “stale” financial statement to calculate the alimony award (approximately 3 months old).

 

The proceeding was scheduled for a pretrial conference March 6, 2013; husband was not present but an attorney appeared on his behalf along with the wife. Husband’s counsel agreed with wife that a trial be held that day. After considering the parties’ financial statements and wife’s testimony the judge entered a judgment and awarded wife alimony.

 

The Appeals Court held that husband had not raised either argument below and thus it was not properly preserved. Bergendahl v. Massachusetts Elec. Co., 45 Mass. App. Ct. 715, 723, 701 N.E.2d 656 (1998). In addition, it was husband’s counsel who had first suggest a trial be held that day. Further, the judge did not err to rely on the most recent financial statement filed with the court when it was husband’s duty to file an accurate statement with the court if the “stale” statement was incorrect. Lower court judgment affirmed.

Jones v. Jones

13-P-1122

March 17th, 2015

The issue before the Appeals Court was, whether as a matter of summary judgment, certain stock options were a bonus within the context of the parties’ separation agreement.

The plaintiff, Lisa Jones, and the defendant, Andrew Jones, were married on July 15, 1995. On April 11, 2006, they executed a separation agreement. Under the terms of the agreement, there was an additional payment as child support and alimony which totaled 31 percent of the gross amount of any manner of bonus paid by his employer, to him, within 10 days of his receipt of said payment.  At the time the parties executed the agreement, Andrew was employed by TrueAdvantage; as part of the marital property division, he retained all of his stock options from TrueAdvantage.

 

Subsequently Andrew became employed at a different establishment and it subsequently sold. Andrew was offered a one million dollar severance payment. Lisa subsequently filed a complaint in equity seeking the triggering of the separation agreement’s bonus provisions relative to alimony and child support. Both parties then filed cross motions for summary judgment.

 

The Appeals Court first noted that the review of the summary judgment motions was de novo per Chi-Sang Poon v. Massachusetts Inst. of Technology, 74 Mass. App. Ct. 185, 194, 905 N.E.2d 137 (2009). The Appeals Court began by concluding that the word bonus as contained in the agreement was ambiguous; and it is “susceptible of more than one meaning and reasonably intelligent persons . . . differ as to which meaning is the proper one" Bercume v. Bercume, 428 Mass. 635, 641, 704 N.E.2d 177 (1999). The Appeals Court concluded that the issue was not an appropriate one for summary judgment. “To determine the "objective sought to be accomplished by the parties," the parties may submit extrinsic evidence and the court also may consider their post-divorce behavior.  Parrish v. Parrish, 30 Mass. App. Ct. 78, 86, 566 N.E.2d 103 (1991)”

Summary judgment for both Lisa and Andrew denied and the case remanded for further fact finding consistent with the opinion.

Palumbo v. Palumbo

14-P-508

March 19th, 2015

Plaintiff appealed post remand for a judge’s refusal to extend a domestic abuse prevention order. In an unpublished 1:28 decision, the case had been remanded for written findings of fact and conclusions of law. Palumbo v. Palumbo, 84 Mass. App. Ct. 1122, 997 N.E.2d 1222 (2013).

The question before the court was whether the plaintiff had met her burden of proving by a preponderance of the evidence that extending the order was “necessary to protect her from the likelihood of abuse as defined in G.L c. 209A sec. 1.”  Iamele v. Asselin, 444 Mass. 734, 739, 831 N.E.2d 324 (2005).

 

The standard of review was an abuse of discretion or other error. E.C.O. v. Compton, 464 Mass. 558, 561-562, 984 N.E.2d 787 (2013). The Appeals Court also noted that because the trial judge’s findings were based primarily on his observations of the plaintiff’s demeanor, "We accord the credibility determinations of the judge who heard the testimony of the parties . . . [and] observed their demeanor . . . the utmost deference." Id. at 562.

 

During the two-day trial, the plaintiff did not demonstrate that the defendant had acted in an abusive way towards her or that she had a reasonable fear of imminent harm. The judge did not credit the plaintiff's claims that she had been beaten and abused by the defendant on more than one occasion, in the absence of any credible evidence of threatening or violent behavior, the judge's conclusion that there was no basis for extending the abuse prevention order was not clearly erroneous.

 

The judge's finding that the plaintiff's allegations against the defendant were fabricated to support parallel litigation was also supported. The parties' ongoing business dispute provided the judge with "the necessary backdrop" for evaluating the reasonableness of the plaintiff's fear of imminent serious physical harm. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486, 834 N.E.2d 258 (2005).

 

"Considering the 'totality of the circumstances of the parties' relationship,' Id. at 489, the Appeals Court held that the judge reasonably concluded that the plaintiff presented insufficient evidence that she was the subject of abuse within the meaning of the statute.

 

Judgment for defendant was affirmed.