Winter 2015 Newsletter: Reported Case Summaries

Reported Case Summaries for the Winter Family Law Newsletter written by: Meredith Dejesus (December), Alana Holly/Brian McLaughlin (January) Jordana Kershner (February), Wendy Hickey (March) 

December 2014

Dmitry Vedensky v. Veronica Vedensky,

86 Mass.App. Ct. 768 (December 30, 2014) 

Wife appealed from an amended judgment of modification, which among other things, ordered her to pay to former Husband rehabilitative alimony.  Wife contended that the complaint for modification of alimony was barred by a prior complaint for modification of child support and that the award for rehabilitative alimony was improper.  

On the issue of whether the complaint for modification on alimony was barred, the Court found that Husband’s prior complaint for modification seeking to eliminate his child support obligation due to his job loss did not preclude him from seeking alimony from Wife in a second modification.  The Court held that the trial court properly looked to the judgment of divorce nisi in addressing whether there had been a material change of circumstance in support of Husband’s claim for alimony.

With respect to the issue of rehabilitative alimony, the Court referred to the specific facts of the case in finding that the judge did not err, nor abuse his abuse of discretion in awarding Husband rehabilitative alimony for a period of 104 weeks.  At the time of divorce, Husband, a highly educated man was earning a six-figure salary.  Wife was also employed at the time of divorce.  In the years following, Husband took disability leave, returning to work at a lower rate of pay and then taking disability again sometime later.  At the time of his filing and litigation the alimony modification, he was unemployed and receiving Social Security disability.  At the time of the alimony modification, Wife, a physician was employed full-time and was also doing per diem work on weekends to supplement her income. 

The trial court ordered Wife to pay rehabilitative alimony to Husband in the amount of $635 per week for a period of 104 weeks on the basis that Husband had a future earning capacity of $95,000 per year, but that he was “presently unable to work at his former level due to mental illness.”  The trial court found that Husband needed intensive therapy and support in order to return to work, and needed financial assistance in that process.  The trial court ordered the amount based on Wife’s ability to pay as based on bother her income from her full-time and her income from her second job, which she took on following the divorce to meet regular and ongoing expenses.

In reviewing the amount of alimony awarded to Husband, the Court held that the trial court judge erred in including Wife’s income from her second job, and further, in attributing income to her based on her ability to work additional days at her second job.  The Court held that according to the Alimony Reform Act, “income from a second job or overtime work shall be presumed immaterial to alimony modification if: (1) a party works more than a single full-time equivalent position; and (2) the second job or overtime began after entry of the initial order.” G.L. c. 208, §54(b).   The Court held that the trial court erred in effectively concluding that Wife was underemployed because she was capable of working more hours at her second job. The Court held that a party who works at a full-time or full-time equivalent job may not be found to be “unemployed” or “underemployed” based on the level of compensation received from a second job obtained “after entry of the initial order,” unless the judge concludes based on findings supported by the evidence, that a basis exists for rebutting the presumption of immateriality applicable to the income earned from the second job.  The Court set aside the alimony award and remanded the case back to the trial court on the issue of the amount of alimony to be paid by Wife to Husband. 

 January 2015

Manohar A. Lalchandi v. Ruth H Roddy

No. 13-P-1988 January 4, 2015

The husband appealed the dismissal of his complaint of modification on his 1992 judgment of divorce, in which, he sought to decrease or terminate his alimony obligation. In this modification, husband alleged he had reached full retirement age and this constituted a material change in circumstances.

The parties were divorced in September of 1992 after nearly twenty-one years of marriage. The judgment of divorce incorporated the terms of the parties’ separation agreement, which required husband to pay wife $4333.33 per month as alimony until either parties’ death or remarriage. This agreement was to be incorporated, but not merged, into the divorce judgment. The agreement did allow the parties to modify terms by mutual agreement if the agreement was in writing, signed and acknowledged by husband and wife.

Since divorcing in 1992, the parties had returned to court a few times and dealt with the issue of alimony. Each stipulation agreed to by the parties was incorporated into the divorce judgment and were to survive as binding contract. 

On March 1, 2013 Husband filed a modification to decrease or terminate his alimony payment, alleging he had reached the full age of retirement and this constituted a material change in circumstances under the 2011 Alimony Act. Wife made motion to dismiss the claim, arguing the 1992 agreement and subsequent stipulations were surviving agreements and not subject to modification. The judge dismissed the modification action.

Upon review, the appeals court found the provision, which allows general alimony to terminate upon payor reaching full retirement age under the act, does not apply to an alimony obligation that survives as an independent contract and does not merge with the judgment. The court cited section 4(c) of the act, which precludes modification of a surviving alimony obligation.

The appeals court further found there was no ambiguity made when the parties stipulated and modified the agreement, despite husband’s argument that this modification waives the survival language of the 1992 agreement.  The appeals court agreed with the judge who said, the “agreement to modify one term or provision of an otherwise surviving agreement does not open the door to further modifications.”

 Motion to Dismiss Affirmed

 

                                    Rebecca Kelcourse v. Lawrence Kelcourse

                                                No. 13-P-1741 January 21, 2015

Husband appealed an amended judgment of divorce nisis, where the judge found antenuptial agreement unenforceable and divided the marital property under G.L.c. 208 34. Husband contended the prenuptial agreement entered into by the parties when they were married was conscionable at the time of the divorce. Further, the husband argues the judge abused her discretion when dividing the martial property.

Husband and wife were married in June of 1991. The parties had lived together for 5 years prior, and at the time of the marriage wife was in her 20’s, a homemaker and pregnant with their second child. Husband was in his 40’s and owned and operated his own business. Husband owned the home on the marina and at the time of the marriage, the parties were “temporarily” living in a home they rented in Amesbury.

Four days before they were married, husband and wife had executed and antenuptial agreement, which husband had requested having a few months prior, to protect his existing assets. Independent counsel represented both parties when this agreement was negotiated. The agreement waived both parties’ interest in all premarital property separately owned by the other spouse. It also stated if a principal residence was purchased during the marriage, it would be considered the wife’s property regardless of how title was held. The issue of spousal support was left open.

In 2005, after living in the Amesbury home for about 15 years, the parties purchased the home. The house was purchased at a discounted price of $320,000, since the home was estimated to need approximately $100,000 of repairs. Husband promised wife the repairs would be done, but they were never made. In 2010, the parties separated and the husband moved out of the home. Husband moved to the marina residence, which was unencumbered by a mortgage and worth $1.7 million. The Amesbury home had a $260,000 mortgage and at the time of divorce needed approximately $300,000 to repair.

At the divorce trial, the judge found the prenuptial agreement was valid went it was entered into by the parties, but upon taking a second look, found that it could not be enforced. The judge found the subsequent neglect of the principal property constituted a change in circumstances beyond what the parties had contemplated when they entered into the original agreement, and was therefore unconscionable.

In review, the appeals court found the record contained sufficient evidence to support the judge’s decision. The principal residence had negative equity due to necessary repairs and renovations and if the agreement was enforced, wife would be left without sufficient property or employment to support herself. Wife was only making $300 a week.

The appeals court also found, the judge did not abuse her discretion when dividing the martial property. Upon finding the prenuptial agreement invalid, the judge properly applied factors outlined in G.L. c. 208 34.

Amended Judgment Affirmed. 

 

Chin v. Merriot

Facts: Husband and wife were married for 12 years, husband 67, and wife 69. Chin and Merriot were married in Massachusetts on November 28, 1998. Both had been married previously; Chin has two children from his prior marriage, and Merriot has four children from hers. The parties' marriage produced no children. During their marriage, Chin had been a teacher and Merriot a paraprofessional and substitute teacher. By the time of the divorce, each had retired. Pursuant to a merged provision of the parties' separation agreement, Chin was obligated to pay alimony to Merriot in the amount of $650 per month until "the death of either party or the wife's remarriage." Chin filed a complaint for modification asserting that he had reached the full retirement age under the Massachusetts alimony reform act. Husband further argued that the wife was cohabitating. The act was made effective as of March 1, 2012, more than seven months after entry of the parties' judgment of divorce nisi. The lower court judge ruled at trial that neither the cohabitation nor retirement provision applied to retroactive alimony orders. The lower court judge ruled applying the change of circumstances standard in effect before March 1, 2012, the judge determined that Chin had not shown a material change of circumstances warranting modification of the alimony order, and dismissed the complaint.

Issue: The question confronted in this case is whether modification of an obligation to pay periodic or general term alimony that is contained in a merged provision of a divorce judgment is governed by the alimony reform act, where the act became effective after the date of entry of the judgment.

Holding: The higher court held that with respect to the alimony obligation at issue here, both the retirement provision and the cohabitation provision apply prospectively, and therefore afford no basis upon which to terminate the alimony order. That the Legislature intended these provisions to apply prospectively is reflected in the language of section 4(b) of the uncodified provisions, which were considered together with the codified provisions at issue here. Therefore, the judgment was affirmed. The court went on to look at the Intent of the when doing a textual analysis of the statute. The SJC held that the provisions reflect the Legislature's intent that the act apply prospectively except as to "durational limits," which are based on the length of the parties' marriage, and the clear indication that neither retirement nor cohabitation constitute durational limits.

Ruling: Alimony judgments entered prior to the alimony reform act may be modified only under the existing material change of circumstances standard, with the single exception that the new durational limits of the act will be considered a material change of circumstances for purposes of this standard.

 

DOKTOR VS. DOKTOR

Facts: DUFFLY, J. Joseph W. Doktor and Dorothy A. Doktor were divorced by a judgment nisi that entered in January, 1992, after a marriage of over twenty years. The judgment incorporated a separation agreement that, among other things, obligated Joseph to pay alimony to Dorothy in the weekly amount of $200 until "the death or remarriage of the Wife." That provision merged with the judgment. In June, 2013, Joseph filed a complaint for modification in the Probate and Family Court, seeking termination of the alimony obligation under G. L. c. 208, § 49 (f), inserted by St. 2011, c. 124 (alimony reform act), which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age." He asserted that he had retired, and was past the normal age of full retirement as defined by the alimony reform act. See G. L. c. 208, § 48. Thereafter, he filed an amended complaint for modification, asserting as a further change in circumstances that his former wife was no longer in need of alimony. Following a trial, a Probate and Family Court judge dismissed the complaint for modification, concluding that G. L. c. 208, § 49 (f) (retirement provision), applies prospectively, and therefore that Joseph was required to, but had not, established that there had been a material change in circumstances warranting modification. Joseph appealed, and we granted his petition for direct appellate review.

Issue: This case raises a question relative to retroactive application of the retirement provision of the alimony reform act to alimony agreements that merged with judgments of divorce entered prior to March 1, 2012, the effective date of the act.

Holding: The court concluded that the Legislature intended the retirement provision to have prospective application; consequently, it is not applicable to modification of the alimony judgment in this case. Chin v. Merriot, supra. As to Joseph's claim that the evidence he presented supports modification of his obligation to pay alimony based on a material change in circumstances, we conclude that the judge did not abuse her discretion in finding that the evidence failed to establish a change in the parties' circumstances warranting termination of the alimony obligation. The alimony reform act provides that "existing alimony judgments that exceed the durational limits under [G. L. c. 208, § 49,] shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted."

Ruling: Under the alimony reform act, the term "durational limits" does not include an event, such as death, remarriage, cohabitation, or reaching the age of retirement, which might trigger termination or reduction of alimony. The language of uncodified § 4 (b) is consistent with the language of uncodified § 4 (a), which provides that G. L. c. 208, § 49, "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act." Even in light of the apparent exemption enshrined in uncodified section 6 which holds section 5 (duration limits) to be inapplicable in determining whether a modification can be based upon reaching full retirement age. Nevertheless, the SJC concluded that it was the legislature’s intent that  uncodified sections 4,5, and 6 will need to be read together.   Based on the foregoing, the judge did not err in dismissing the complaint for modification on the ground that G. L. c. 208, § 49 (f), is prospective, and therefore provides no basis for modifying the alimony judgment that entered more than twenty years prior to March 1, 2012. The judge ruled that the wife does not have to deplete her assets to maintain her lifestyle.

Rodman v. Rodman

Facts: George Rodman filed a complaint for divorce filed at Norfolk Division of the Probate and Family Court Department on March 12, 2008. The couple had been together for 39 years. The former husband, George J. Rodman, brought a complaint for modification in the Probate and Family Court, seeking to terminate certain obligations to his former wife, Roberta Rodman, arising under a separation agreement the parties had entered into in connection with their divorce. This obligated George to pay $1,538 per a week to Roberta in alimony. During the pendency of the modification proceeding, George filed a motion seeking immediate termination of the alimony payments on the ground that he had reached "full retirement age" as defined by G. L. c. 208, § 48. George filed a complaint for modification in November, 2013, seeking to terminate his obligations to (I) pay alimony to Roberta, (2) reimburse her for the costs of health insurance payments, and (3) maintain life insurance for her benefit. The basis for the modification was George's claim that, because he had reached full retirement age, the retirement provision required termination of his obligation to pay alimony. A probate and family court judge denied the request and reported the issue to the Court of Appeals.

Issue: Whether or not G. L. c. 208, § 49 (f), is to be applied retroactively to judgments entered before March 1, 2012. Does § 4 (C) limit George from seeking modification of his prior agreements, due to durational limits of an existing alimony judgement?

Holding: The higher court does not accept George's that retirement terminates alimony. The SJC looked at the entirety of the statute and found that the retirement provision did not apply retrospectively to existing alimony orders.

Ruling: The SJC held that the Legislature intended that only a claim for modification based on durational limits may apply retroactively to existing alimony judgments. General Laws c. 208, sec. 49(f) does not apply retroactively to alimony orders in divorce judgments or separation agreements that entered before March 1, 2012.

February, 2015

In re Guardianship of V.V., SJC-11739 (February 10, 2015)

Mother was not represented by counsel during guardianship proceeding that resulted in appointment of mother’s grandmother as permanent guardian of V.V.  Mother filed a motion pursuant to Massachusetts Rule of Domestic Relations Procedure 60(b)(4), the denial of which resulted in this appeal, but also filed a petition to remove the appointment of V.V.’s great-grandmother pursuant to G.L. c. 190B, § 5-212(a).  While the appeal was pending, mother’s petition for removal was granted after a trial.  The Supreme Judicial Court found that because the guardianship had been vacated, the mother’s appeal was moot, yet exercised its discretion to address the issue of whether mother had a right to be represented by counsel.  The Supreme Judicial Court held that a parent of a minor child has a right to counsel where someone other than the parent seeks to have himself or herself appointed as the child’s guardian pursuant to G.L. c. 190B, § 5-206.  The Supreme Judicial Court reasoned that it is already established law that an indigent parent has a right to counsel where his or her parental rights may be terminated and that the interests of an indigent parent whose child is the subject of a guardianship proceeding are no less compelling because the guardian assumes significant rights and responsibilities that otherwise would remain with the parent, even if the guardianship lasts for only a brief period.  The Supreme Judicial Court also reasoned that the same interests that warrant appointment of counsel for indigent parents when the State is involved in a guardianship proceeding, also warrant appointment of counsel for indigent parents when someone other than the State is seeking guardianship in place of the parent.

 

Cohen v. Cohen, SJC-11594 (February 23, 2015)

The Supreme Judicial Court held that the Massachusetts Probate and Family Court only had subject matter jurisdiction to enforce, but not to modify, a California support order. A California Court entered an order for child and spousal support after the separation of the parties in California in 1999.  In 2002, the father moved to Massachusetts. In 2003, in conjunction with the dissolution of the marriage in California, the California court entered an order increasing the father’s child and spousal support obligations. In 2004, the Los Angeles County Department of Child Services transmitted to the child support enforcement division of the Massachusetts Department of Revenue a request for registration of the California support order only for the purposes of enforcement and collection of arrears.  Contempt actions in Massachusetts in 2004 and 2006 against the father resulted in stipulations by the parties modifying the father’s support obligations, which stipulations were entered as Massachusetts court orders. The stipulations included obligations for the father relating to payment of college education costs and the child’s uninsured medical expenses, neither of which were part of the original California order. In 2009, the mother filed another complaint for contempt in Massachusetts. In 2010, the Probate and Family Court found the father in contempt on multiple counts, some of which related to the original California order, as enforced by the subsequent Probate and Family Court orders, and some of which related to those portions of the Probate and Family Court orders that modified the original California order. The Probate and Family Court also ordered the father to pay the mother’s attorney’s fees and costs, including her costs to come to Massachusetts for court proceedings.

Father appealed and for the first time questioned Massachusetts subject matter jurisdiction. The issue was considered on appeal because subject matter jurisdiction can be raised at any time and cannot be waived. Citing the Uniform Interstate Family Support Act (UIFSA), the Supreme Judicial Court held that the Probate and Family Court did not have authority to modify the California order, only to enforce it. As such, the judgment of contempt was vacated and remanded for entry of a judgment holding the father in contempt only for his failure to comply with those portions of the Probate and Family Court Orders that enforced the California order. Because the UIFSA includes authority to award attorney’s fees and costs, and the father did not show extraordinary circumstances to justify relief from the portion of the Probate and Family Court judgment ordering him to pay the mother’s attorney’s fees and costs, that portion of the judgment could also stand on remand.

March, 2015 Reported Cases

Murray v. Super

14P-518 March 16, 2015

Murray sought removal of the parties’ three children ages 17 and twins age 12 from Bolton, MA to California.  Murray and Super were divorced in 2011 and while Murray had primary physical custody, the children spent significant time with Super including every other weekend from Friday evening to Monday morning and every Wednesday overnight.

The trial judge concluded while Murray had a real advantage to the move, the proposed move was, nevertheless, not in the children’s best interest even after considering the potential benefits which would trickle down to them as a result of Murray’s advantage.

Murray appealed challenging the judge’s decision because she did have a real advantage.  This case makes clear that real advantage is just one part of the analysis and the children’s best interest is truly the bottom line deciding factor in removal cases.

Murray wanted to move to California where her new husband resides.  The new husband is wealthy and Mother’s financial situation would improve.  Mother’s only sibling and his family live in the same town in California where Mother’s new husband resides.  Mother’s parents also live in California some two hours from the proposed relocation town.  Mother was not seeking to move to distance the children from Super, rather the court found she put herself first and was truly unable to see that such a move might be detrimental to the children.

The court reiterated the relevant factors to consider in removal including:  (1) whether the quality of the children’s lives will be improved, including improvement flowing down from the improvement in the custodial parent’s life; (2) any possible adverse effect of the elimination or curtailment of the children’s association with the noncustodial parent; (3) the extent to which moving or not moving will affect the children’s emotional, physical or developmental needs; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.

The trial judge found the children’s currently stable lives would suffer.  “They would lose the structure and support of regular weekly contact with Father, the peer groups that they have developed at school, church and through their other activities.”

The GAL investigation revealed that Mother did not communicate well with Father regarding the children’s activities while father on the other hand communicated concerns over certain things to Mother about the children’s schedules.  Also the children did not want to live 3,000 miles away from the other parent.

Finally, Mother failed to provide “a reasonable alternative visitation arrangement which might achieve ongoing and meaningful contact appropriate to the circumstances.”

Another issue in the case was child support.  Father filed a counterclaim seeking a reduction in child support because his income had only modestly increased since the divorce and Mother is now married to a wealthy individual who contributes $1,000 per week to Mother’s household.  The court reduced Father’s weekly support from $830 to $808.  And, Father’s obligation to pay 25% of any net bonus as further child support was eliminated.  Mother appealed the reduction.

While it is not specifically clear in the child support guidelines as to whether contributions by a new spouse could be considered for a reduction, the court failed to make sufficient findings about the contributions to warrant a modification.  For example, there were no findings about what the contribution was for, whether it was to enable Mother to travel to CA to spend time with her new husband, whether the husband has an obligation to make these payments, how these payments alter mother and children’s lifestyles, etc.  Further the elimination of the bonus was a sua sponte order by the court not requested by either party.  It was not clear if Mother depended on that extra support for the children.  The bonus provision was reinstated.

 

Ventrice v. Ventrice

13-P-1992 March 19, 2015 

The parties’ had 4 children ranging in age from 12-5 at the time of the divorce.  While the case was pending, Wife began a relationship with a convicted sex offender.  Wife was ordered to keep the children away from her boyfriend, an order she repeatedly violated. 

The GAL recommended custody to dad of all children as he presented as the “stable parent” and was “more easily accessible and more cooperative”  The GAL found the children to be calmer at dad’s home which was “clean and orderly” while mom’s house was “unorganized and chaotic.”

Three of the four children have ADHD. 

Because the court found the parties unable to co-parent, the judge ultimately gave sole legal and physical custody of the oldest to dad and the younger 3 to mom.  The court also ordered the parties to go to mediation if unable to reach an agreement before either party could file an action in court. 

Dad appeals the mediation provision arguing it violates his right of free access to the courts under art. 11 of the Declaration of Rights.  The appeals court agreed.  This provision of the judgment also conflicts with Rule 2 of the Uniform Rules on Dispute Resolution, S.J.C. Rule 1:18 which defines “mediation” as a voluntary process. 

The court held the mediation clause was an “unconstitutional burden on the parties because it delays an objecting party’s right to file a complaint and it forces the parties to bear a likely costly expenses for court ordered mediation services.” 

The judgment was vacated as to mediation.

Father also challenged the custody provision on appeal.  While the trial judge made findings about his short comings, the short comings of Mother were far greater in comparison including such things as serious health and safety concerns in Mother’s home regarding prescription medication for the children, removing them from needed therapy, failing to safeguard the children from an 80 foot cliff near her home, and removing the children from schedule during the MCAS test and taking them on vacation to FL where she left them alone and engaged in conduct which resulted in police involvement.

On remand it was suggested the trial judge made more detailed findings to support why she goes against the recommendations of the GAL in light of mom’s conduct.