Summer 2015: 1.28 Decisions

Below are the 1.28 decisions for the Summer Family Law Newsletter written by: Ethan Rittershaus (May), Wendy Hickey (June). There were no relevant reported cases for April.

May 2015

Department of Revenue vs. John Robert Moriconi
14-P-856
Issued May 1, 2015

Father appealed from a judgment in a Paternity action under G.L c. 209C. More particularly, Father argued that the judge erred in awarding retroactive extracurricular, educational, and uninsured medical expenses. In addition, Father also alleged judicial error in ordering the father to pay a share of future educational expenses.

The child in question was born in 1993 and the parents cohabited until 2006. DOR filed a paternity action in 2010 and father acknowledged paternity in 2012. After a trial, a judgment entered in which retroactive and prospective child support orders were issued. Additionally, the judgment issued a retroactive award of medical, educational, and extracurricular expenses, including future college expenses.

Father contended that the plain language 209C sec. 9(a) did not permit the retroactive order for payment of extracurricular and educational expenses; nor would it permit a retroactive reimbursement of medical expenses moving back behind the date of the complaint. Finally, Father argued that the judge abused her discretion in ordering him to pay college expenses in excess of his ability to pay.

The Appeals Court first noted that the father had not provided trial memoranda, proposed findings and rulings, briefs, or a transcript; nor had the issues been raised at trial. On this basis alone they could have disposed of the case. Shawmut Community Bank, N.A v, Zagami 411 Mass. 807, 811 (1992).

However, the Appeals Court elected to address Father’s arguments, first turning to the language of sec. 9(a).  While the first sentence of section 9(a) refers to the “support, education, and education,” the fourth sentence (which governs retroactive orders) only refers to “support.” Thus, father contended that the trial judge did not have the statutory authority to enter retroactive orders regarding maintenance and education.

The Appeals Court disagreed, "each clause or phrase is to be construed with reference to every other clause or phrase . . . so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose." Worcester v. College Hill Properties, LLC., 465 Mass. 134, 139, 987 N.E.2d 1236 (2013), quoting from Topsfield v. State Racing Commn., 324 Mass. 309, 312-313, 86 N.E.2d 65 (1949). As the stated purpose of G.L c. 209C is to make each parent responsible for support of a non-marital child the appeals court concluded that it would be, “unlikely that the Legislature intended to parse the retroactive award of maintenance or education expenses in the meager fashion the father suggests.”

The court disposed of father’s arguments as to retroactive medical expenses in a similar fashion, “This argument is simply a variation of the father's previously made retroactivity argument,…[and it] is unpersuasive for the same reasons.”

Finally the Appeals Court turned to the award of future educational expenses. They concluded that the order was consistent with the child support guidelines and there was no clear error in weighing the factors relevant to the decision. All judgments were affirmed.

Kimberk v. Wysocka

14-P-635

Husband appeals from the denial of a partial stay of execution of a judgement NISI pending an Appeal.

After a trial of several days parties reached an agreement for settlement which was reduced to a memorandum of understanding signed by the parties and read into the record. Both parties were sworn and indicated that they accepted and understood the agreement and wished to incorporate those terms into their settlement. The parties were then given the opportunity to execute a more formalized agreement. If the parties did not present a formalized agreement, judgment would enter incorporating the terms of the memorandum.  The parties did not present such an agreement within the appropriate timeframe and judgment entered.

Husband thereafter filed motions to stay certain portions of the judgment relating to property division in both the probate and appellate courts. The motion was denied, and the issue of whether the judge abused her discretion in denying the stay went up to the Appeals Court.

The Appeals Court first turned to L.L v. Commonwealth, 470 Mass.  169, 185 (2014). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives."

Father argued that the denial of the stay would cause him irreparable harm. The appeals court disagreed: Based on the parties' colloquy with the judge, his conclusion that the settlement was reasonable, and binding on the parties was warranted. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 88-89, 463 N.E.2d 564 (1984). Given his rental incomes, husband’s argument that he is "cash poor" and will be irreparably harmed was unpersuasive.

Finally, Kimberk took issue with the valuation methodology set forth in the judgment. He did so with "bald assertions of error, lacking legal argument and authority, and thus not advanced in a manner which rises to the level of appellate argument." Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3, 615 N.E.2d 180 (1993). See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

Order affirmed.

Ratta v. Denham
14-P-1212


Defendant appealed from a judgment of contempt entered Dec 13, 2013. Defendant argued that a judgment entered on September 18, 2013 was not a final judgment on all issues an all claims, and accordingly did not supersede the temporary order dated August 27, 2012.

The Appeals Court was not persuaded as the judgment entered in September incorporated a stipulation of the parties that expressly reserved the question of retroactive child support for determination in a supplemental proceeding and left the temporary order intact pending that determination.  The judgment of the lower court was affirmed.

Additionally, Plaintiff requested an award of fees and costs incurred on appeal. The Appeals Court found such an order appropriate and approved the motion.

Colleen Leone v. James Mulcahy
14-P-1145

Defendant appeals from the entry of a permanent 209A order. The APO in question was first obtained Feb 23, 2012, was extended for one year after a hearing on March 9, 2012, and was finally made permanent on April 18, 2014. On Appeal, the defendant argued that the evidence presented at the final hearing was insufficient to support the issuance of a permanent order.

The Appeals Court reviewed the order for an abuse of discretion, Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487, 834 N.E.2d 258 (2005). In order to obtain a permanent APO, a plaintiff must demonstrate that they “continue to require protection from ‘abuse’ as explicitly defined in sec 1. Iamele v. Asselin, 444 Mass. 734, 739, 831 N.E.2d 324 (2005). When such alleged abuse consists of “placing another in fear of imminent physical harm,” the judge must ascertain whether such a fear is reasonable based on the totality of the circumstances.

First, the judge considered past physical, verbal, and sexual abuse of the plaintiff. Vittone v. Clairmont, 64 Mass. App. Ct. at 489 ("The infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator").

The Appeals Court also noted that, “We accord the credibility determinations of the judge who 'heard the testimony of the parties . . . [and] observed their demeanor' . . . the utmost deference"); Johnston v. Johnston, 38 Mass. App. Ct. 531, 536, 649 N.E.2d 799 (1995).” Thus, the Appeals Court would not disturb the trial judge’s conclusion that the plaintiff’s demeanor reflected her clear and palpable fear of the defendant.  The order permanently extending the APO was affirmed.

David Stowe v. Jessica Stowe
14-P-1454


Defendant, David Stowe appealed from the extension of a 209A APO. Specifically, he argued that the judge did not have the authority to extend an APO when Plaintiff had requested a civil harassment order under G. L. c. 258E. Additionally, father challenged the facts presented in Plaintiff’s affidavit, as the affidavit was unsigned, and argued that the evidence was insufficient to support a finding of imminent serious harm.

Turning to Defendant’s first argument, the Appeals Court noted that he had not raised this objection in the lower court preceding and thus, had forfeited his right to raise it on appeal. “a [pro se 209A litigant] is not excused from the requirement of raising and preserving his claims in the trial court and presenting an adequate record on appeal." E.H.S. v. K.E.S., 424 Mass. 1011, 1012, (1997). However, the Appeals Court did note that even if this objection had been preserved they discerned no error because Harassment orders under G. L. c. 258E were "intended to protect victims who could not legally seek protection under G. L. c. 209A." Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014) and the procedures for seeking either species of order were basically the same.

Addressing Defendant’s second argument, the court once again noted that this objection had not been raised in the lower court proceeding. Nevertheless, the Court held that the testimony contained in the affidavit was cumulatively presented by Plaintiff during the hearing and thus, any error was non-prejudicial. Adoption of Cecily, 83 Mass. App. Ct. 719, 724 (2013). Finally, the court found that there was no abuse of discretion in finding that Plaintiff was in a reasonable fear of imminent serious harm: defendant made threatening phone calls and text messages, threatened to run her over, and arrived and entered plaintiff’s home without her permission.

Lower Court order affirmed.

Martin v. Martin
14-P-536

Defendant appealed from a modification judgment entered in the Probate and Family Court ordering him to pay additional child support on joint income earned in excess of $250,000. He argued that the judgment was unsupported by findings that the children are in need of additional support.

In February, 2009, a judgment of divorce nisi entered incorporating a separation agreement. The agreement held that mother was granted primary custody of the two minor children and father was ordered to pay child support pursuant to a self-executing formula. On a complaint for modification filed in 2012, the only issue not disposed of by stipulation was the amount of child support.

The Appeals Court first turned to Katzman v. Healey, 77 Mass. App. Ct. 589, 599 (2009). This held in relevant part, that the trial judge has discretion to award additional support on a combined gross income in excess of 250 thousand dollars. Father did not challenge the trial judge’s discretion but argued that the record did not contain findings that the children were in need of additional support.

In the trial judge’s memorandum of decision, no mention was made of why the formula adopted was used.  The Appeals court noted that in making findings, the judge needed to take into consideration the reasonable needs of the children, the standard of living of the parties, and the father’s increased parenting time. M.C v. T.K., 463 Mass. 226, 237-237 (2012).

The case was remanded for additional findings consistent with the opinion.

Blalock v. Clews
14-P-71


Mother appeals from a 209C judgment which granted her sole physical custody of her two children, established a visitation and parenting plan, ordered father to pay child support, and did not award attorney’s fees. Mother claims error with respect to the child support order and the decision not to award fees and costs.

The Appellate Court first noted that Child Support orders are reviewed for an abuse of discretion. Whelan v Whelan, 74 Mass. App. Ct. 616. (2009). The Primary issue was the judge not attributing gifts from father’s mother such as luxury cars and boats. The judge concluded that because these were not presented as gross cash value they were not available income.

Turning to mother’s second contention, the Appeals Court held that there was no error in denying retroactive child support. The judge had declined to make the award because mother and children remained in a house purchased for their use until February of 2008, and mother had withdrawn $60,000 from a business account which exceeded what father would have had to pay during that time. Thus, there was no abuse of discretion.

Turning to the award of attorney’s fees, the Appellate Court refused to find an abuse of discretion: father could not pay that amount and mother had engaged in overly litigious conduct that unnecessarily complicated the case.

Hue v. Soderstrom
13-P-1683


On an Appeal brought by mother are a series of orders that issued denying removal of the child from the Commonwealth.

Parties had a troubled relationship dating back for a long period of time which is more particularly described in a 99 page GAL report. In summary, the Parties moved to Massachusetts from Oregon, their relationship became troubled. Father’s increasingly erratic behavior culminated in his donning a clown nose and approaching his wife with a 12 inch butcher knife after being told that she needed a break from their relationship. A 209A order subsequently issued.

The parties were then divorced and entered into a separation agreement. This agreement held in relevant part that mother would have sole custody of the child. Mother also agreed not to relocate from the Commonwealth, unless provision was made for longer visitation during summer months.

At issue in the appeal were: (1) Father's complaint for modification, requesting joint legal custody and an expansion of his parenting time, filed on August 6, 2010. (2) Mother’s complaint for modification requesting that she be allowed to remove the minor child to another jurisdiction so that she could find suitable employment in her career field and better the lives of the child and herself. (3), the father’s counterclaim seeking shared legal custody, sole physical custody, and child support. (There was also a contempt judgment at issue, but its resolution effectively merged with the rest of the Appellate decision).

The Appeals Court first turned to Mother’s request for removal (filed as a modification). At trial, he judge found both that the mother's move would not be a "real advantage," and that it would not be in the child's best interests.. The judge also found that if the mother were permitted to take the child to Colorado, the father would permanently have much less of a role in the child's life. The Appeals Court held that “these determinations are based … on the judge's assessments of credibility… Consequently, we cannot say any of them is clearly erroneous. We think that these facts are adequate to support the determination that there was no "real advantage" to the mother in the move. "[A] supportable finding that there is no 'real advantage' to the custodial parent from the contemplated move ends the [removal] analysis." Altomare v. Altomare, 77 Mass. App. Ct. 601, 604, 933 N.E.2d 170 (2010) (citation omitted).

The Appeals Court then turned to father’s request for a change of custody. The Appeals Court first noted that, “a court can enter a judgment modifying an earlier one, it must find "a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the child[." Katzman v. Healy, 77 Mass. App. Ct. 589, 593, 933 N.E.2d 156 (2010). The Court in its analysis stated that the request to move in and of itself was, as a matter of law, was squarely not a change of circumstances contemplated in G.L c. 208. See Rosenthal v. Maney, 51 Mass. App. Ct. at 261 ("[A] request for modification of custody is distinct from a request to relocate and must be based on a material and substantial change in circumstances other than the move"). As mother had not moved, nor had she stated on the record that she would move regardless of the decision, there was nothing in the record to support the trial judge’s implicit conclusion that a change of circumstances had occurred.

The Appeals Court vacated the judgments that adjudicated the father's claims for modification of custody, visitation, and child support. The judgments and supplemental judgments were otherwise affirmed, including their denial of the mother's request for removal of the child.

Burke v. Errichetto
14-P-1183


Plaintiff appealed from a decree of the Probate and Family Court dismissing her petition for grandparent visitation of a minor child. The grandmother argued that the judge erred in concluding that a grant of visitation rights would not be in the child’s best interest.

Plaintiff is the grandmother of a child born in April, 2008, defendant and mother never married and lived separately. Mother died suddenly on November of 2013. The Probate and family Court judge found that grandmother and child enjoyed a close relationship. They had lived together Thursday through Sunday of each week. However, even where there is a significant preexisting relationship, to obtain an order of visitation the grandparent must prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. Blixt v. Blixt, 437 Mass. 649, (2002).

Here the judge concluded that visitation with the plaintiff is not required to protect the child from significant harm. The child had received favorable reports from teachers and pediatricians regarding her mental health and behavior, and she had no existing emotional, physical, or developmental needs. She had not needed a therapist while in the care and custody of the defendant. In addition, the defendant was willing to supervise visits between the plaintiff and the child in his home, ameliorating the plaintiff's concerns about the child's inability to cope with the loss of her mother. The judge also noted that the defendant is willing to supervise visits between the plaintiff and the minor child.

The Appeals Court found no abuse of discretion in denying the petition.

Kristin L Quinlan vs. Thomas F Quinlan
14-P-146


Defendant appeals from an amended judgment of divorce. He argued that the judgment improperly granted his former wife sole custody of their minor son and erroneously attributed $1500 of weekly income to him. Finally, he claims that the marital estate was unfairly divided in Wife’s favor and asserts the award of $40,000 in attorney’s fees was error.

The Appeals Court first turned to Husband’s contention that it was error to award sole custody. The Appeals court disagreed with husband’s contention saying that it was no abuse of discretion for the trial judge to decline to grant joint custody. The record supported the finding that the parents had no ability to communicate and thus, shared custody was not in the child’s best interest.

The Appeals Court also found nothing objectionable in the trial judge’s attribution of income. The judge fully considered all the applicable factors including past employment history, which indicated a strong earning potential as a builder. Husband also had attempted to conceal significant assets from the Court, failing to disclose at least three bank accounts. He also claimed that he was unemployed even though evidence existed that he had continued his construction business. See Canning v. Juskalian, 33 Mass. App. Ct. 202, 211, 597 N.E.2d 1074 (1992).

As to the division of marital assets, the Appeals Court again found that the trial judge had carefully considered all of the relevant factors.

Finally, the Appeals Court upheld the award of $40,000 in Attorney’s fees. The Appeals Court concluded that the cost was attributable to Husband’s own obstinacy. As such, the judge properly awarded Kristin such portion of her attorney's fees that flowed from Thomas's obstructionist conduct. See Downey v. Downey, 55 Mass. App. Ct. 812, 819-820, 774 N.E.2d 1149 (2002).

P.S. v. M.S.
14-P-238

At issue in this appeal is whether a judge of the Probate and Family Court abused his discretion in modifying an existing custody order such that the defendant's former wife (shall not permit the parties' minor child to be in the presence of the mother's current boyfriend, who is a level three sex offender.

Mother first argued that her new relationship did not constitute a material and substantial change of circumstances per G.L. c. 208. The Appeals Court disagreed, noting that In view of the fact that a level three classification indicates a high risk of reoffending; the new relationship did constitute such a changed circumstance.

Mother also argued that the trial judge also abused their discretion by discounting evidence she presented that the minor was at no risk of harm, the child’s preferences, and that it was in the best interest of the child financially to dismiss the modification.  The Appeals Court disagreed, stating that “even if there were other evidence that the daughter wanted to see the boyfriend, we disagree with the weight the mother places on such evidence. While judges of the Probate and Family Court are entitled to consider a child's own preferences when making custody determinations, such preferences are not dispositive. Rosenthal v. Maney, 51 Mass. App. Ct. 257, 265 n.9, 745 N.E.2d 350 (2001)."

Finally, the Appeals Court noted that the issue is not whether a less restrictive order could have been imposed, but whether the judge abused his discretion in modifying the order as he did. A.H. v. M.P., 447 Mass. 828, 838, 857 N.E.2d 1061 (2006). (even where State action and parental constitutional rights are concerned there is no absolute mandate that custody orders be fashioned in least restrictive manner).

Lower Court modification Affirmed.

Aisha Fahad Al- Ajmi v Ali Abulaziz al Turki
14-P-279

The case was brought before the Appeals Court after the trial judge dismissed the case after declining to assert jurisdiction. The case involved a custody dispute between Husband and Wife. The judge resolved the motion to dismiss based on affidavits submitted and arguments made during a non evidentiary hearing which neither party requested.

Husband was a Saudi Arabian citizen and Wife was a US citizen. They were married in February of 2004. The wedding taking place in Kuwait where the Wife’s father lives and wife continues to have extensive ties. Until 2007 the family lived in Saudi Arabia after which they moved to Bahrain where they began to build a house.

The parties also made a series of medical trips related to their daughter who suffers from cerebral palsy. For this reason the first lived in Paris and later London.  In 2010 the family traveled to Boston so that their daughter could seek treatment at Children’s Hospital.  The treatment ended up being lengthy, and the family stayed in Boston until May of 2011.

The marriage began to unravel by the end of 2010 and by February of 2011 things had come to a head. Husband wished to return to the Middle East. Wife wished to take the children to Indiana to stay with her mother.

On Feb 25, 2011 wife traveled to Kuwait and at the same time filed a divorce complaint in the Massachusetts Probate and Family Court. March 20, 2011, the wife took the children back to Boston without the husband's knowledge or consent.3The husband filed his own divorce complaint in Saudi Arabia on May 22, 2011, and a divorce judgment entered approximately two weeks later. The husband also filed a child custody action in Saudi Arabia on or about May 31, 2011 (something that he kept from the wife).

In reviewing the trial judge’s decision, the Appeals Court first noted that the decision was grounded in G.L c 209B. First , the court noted that this was not a case of the court declining jurisdiction due to deference to an existing foreign judgment per section 2(d) and 2(e). Rather, it is plain the judge declined to exercise discretion after examining the family's ties to Massachusetts .Whether to exercise such jurisdiction is "committed to the judge's sound discretion." Bak v. Bak, 24 Mass. App. Ct. 608, 615, 511 N.E.2d 625 (1987). There was no error as the parties’ international life style sufficiently attenuated state ties.

Kemp v Robbins
14-P-623

Father appealed from an amended judgment of the Probate and Family court that dismissed his complaint for modification and increased his child support payments.  Father and mother shared legal custody with physical custody to mother with liberal visitation to father.  Father alleged an abuse of discretion when a judge determined that father’s purchase of a large house with a private bed and bath for daughter did not constituted a substantial and material change of circumstances.

The Appeals court first turned to G.L.c 209C sec 20 which sets forth the standard for modification. The judge specifically found that the purchase of a house, even a fine and expensive one, was not a significant change of circumstances on which to base a change of physical custody. The Appeals Court declined to find an abuse of discretion noting: “It is highly unlikely that the Legislature had ocean views and affluent accommodations in mind when it enacted sec. 20.”

Husband also took exception to many of the judge’s findings. A fact characterized by the Appeals Court as “hair splitting.”

The determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings in a custody case 'must stand unless they are plainly wrong.'" J.S. v. C.C., 454 Mass. 652, 656, 912 N.E.2d 933 (2009). "In most cases, . . . if the child has been living with one parent for some time, the child's needs are being adequately met under that parent's care, and that parent is capable of continuing to care for the child, it is not in the child's best interests to disrupt that successful arrangement. Rather, it is in the child's best interests to preserve it. Belief that the other parent might be a little better in some areas ought not suffice to disrupt a child's satisfactory home life with the caretaker parent." Id at 844.

Finally, the Appeals Court found no abuse of discretion when the judge ordered a payment of $625 a week in child support. Under the guidelines he was presumptively required to pay $525. Because the parties combined income exceeded 250K the judge was entitled to make an upward adjustment of 100 dollars to cover extracurricular activities.

Lower court judgment affirmed.

Lithotomos v Bratsis
14-P-339

Wife appeals from a judgment of divorce terminating her marriage on the grounds of an irretrievable breakdown. Specifically, wife challenged the division of marital assets as well as the grant of unsupervised visitation with the parties’ child.

Parties were married in 2005. They had one child born in 1998 and one born in 2005. In late November the wife called the police to report an assault and battery against both her and her eldest son.  Both subsequently obtained 209A orders, wife filed for divorce, and DCF concluded that both the claims of physical abuse and neglect were supported.  During temporary orders in the pending divorce case husband also admitted to several acts of abuse.

In her Appeal, the wife argued that there was clear error in the asset division where the trial judge failed to consider the aforementioned abuse, monetary, and nonmonetary contribution of the household. However, judge made multiple credibility determinations regarding wife: (1) The failure to document the $20,000 that she brought into the marriage, (2) the wife’s failure to provide an appraisal or outstanding property tax account for foreign real estate (also omitted from her inventory), (3)wife admitted that husband made mortgage and tuition payments in contradiction to her claim that she had to borrow to cover those expenses, (4) the withdrawal of approximately $48,000 over a two month period beginning four days before the complaint for divorce was filed.

The Appeals Court agreed that there were problematic aspects of the findings that warranted reconsideration of the visitation issue.  However, they found that the financial component of the judgment to be within the area of judicial discretion. While conduct of the parties was one factor in considering the division of assets per G.L c. 208 sec. 34, it was only one factor. Given the judge’s review and findings of the financial record the Appeals Court discerned no error.

Turning to the visitation issue, the judge awarded sole legal and physical custody of both children to the wife and ordered liberal and reasonable parenting time with both children to the degree that they desire. The judge’s findings were reviewed for clear error.

While the judge’s findings generally support a determination for unsupervised time they are problematic for several reasons:  (1) the judge found that the husband had threatened to kill the wife when he was sentenced for assault and battery.  This utterance was in and of itself a violation of G.L. c. 275 sec 2, (2) The judge found that DCF did not substantiate the report of neglect and physical abuse. However, this was factually incorrect. Finally, the award of parenting time appeared to delegate control to the minor children, the younger of whom was seven years old.

While it is appropriate to take into consideration the visitation preference of a minor child found to be of "sufficient maturity" for that purpose, Custody of a Minor, 389 Mass. 755, 769, 452 N.E.2d 483 (1983), that preference is inappropriate as the sole basis to determine visitation. Bak v. Bak, 24 Mass App Ct 608, 617, 511 N.E.2d 625 (1987).

Order with respect to visitation remanded to the lower court.

June, 2015
1:28 Decisions

Healey v. Healey
14-P-6006

June 1, 2015

At the time of trial the parties agreed to have court decide case on submissions and oral argument with no trial testimony.  The contested issues were child support, alimony, division of assets and attorney’s fees.

The court ordered wife to submit affidavits from all three attorneys who represented her during the divorce proceedings and thereafter ordered Husband to pay $100,000 in Wife’s legal fees.

On appeal, Husband seeks a de novo review because the trial evidence was submitted on the papers.  Because the parties agreed to paper submissions, does not change the standard of review.  The fact that there was no testimonial evidence does not relieve the trial judge from the obligation to find facts which the judge did do.  The appeals court would not, therefore, perform a de novo review of the facts.

Husband claimed the judge erred in attributing income to him of $251,000 at trial because he was unemployed at the time of trial.  He further claims that the attribution of income is inconsistent with the court’s finding of husband’s alcohol abuse impacting his parenting.  However the trial judge made detailed findings with regard to both including that Husband’s ability to work was not impaired by his alcoholism but his care for the parties’ special needs child was.

As to legal fees, the court found husband stonewalled discovery throughout the entire process and threatened to make the wife “pay in court.”  The fee award was justified because Husband unnecessarily complicated and prolonged the divorce process.

Doonan v. Doonan
14-P-841

June 3, 2015

Husband appeals from divorce judgment and denial of his motion to amend judgment.  He claims the court did not attribute sufficient income when it attributed income to Wife.  There was no evidence that Wife, who works as a part time bank teller, could get sufficient hours to earn full time wages.  And, there was also no evidence that Wife wanted to or had immediate employment available if she were to seek employment as a phlebotomist.  Judges have discretion to consider availability of employment in making an attribution of income ruling.

Husband also complains that the court should have made two separate child support and alimony calculations rather than first calculating child support then alimony and reducing the alimony by the child support figure.

However, the child support guidelines explicitly give the court discretion to deviate.  The court provided rationale that if the support calculation were done differently, Wife would not have been able to meet her living expenses.

Erickson v. Drake
14-P-392

June 4, 2015

Father was ordered to pay child support of $330 per week to Mother.  Father appeals arguing while daughter remains domiciled with mother, she is not principally dependent on mother for support.

The child is 21 years old and a college student living off campus.  By agreement, the parties equally share college tuition and uninsured medical and dental expenses.  They each provide the child a room in their respective residences.  Father also maintains a close relationship with the child and takes her on vacation.

Nevertheless there is a discrepancy between the parties’ incomes such that father is able to pay his contributions for the child out of pocket while mother is paying her half of the child’s tuition through loans. In such circumstances the child support guidelines has a presumptive application in all cases including this one.  Father did not present sufficient evidence to rebut the presumption that the guidelines apply.

Child support judgment affirmed.

DaSilva v. DaSilva
14-P-429

June 8, 2015
 
Mother appeals from denial of her request to relocate with the child to North Carolina.

In her bid to relocate to North Carolina with the minor child, Mother failed to establish the move would result in a real advantage.  Accordingly, while unusual, after Mother’s testimony the judge allowed Father’s motion for a directed verdict.  In allowing such a motion, the trial judge is free to weight the evidence and resolve all questions of credibility, ambiguity and contradiction in reaching a decision.   Here the judge found Mother had not engaged in a meaningful job search in NC and had no specific job prospects.  The court did not credit mother’s claim that the move would reduce her stress with the exception of a small financial benefit where the overall cost of living is lower.

Mother’s family reside in Massachusetts.  Mother argued she has a better support network in NC but consisting of some college friends.  Mother failed to compare her network here to what it would be in NC or to detail the type of support she is seeking.  Mother’s boyfriend lives in NC but mother failed to raise the desire to be near him as a reason for removal.

The judge did not abuse her discretion in allowing Father’s motion for directed verdict or, under the domestic relations procedure rules, called a motion for involuntary dismissal.

King v. Berger
14-P-252

June 10, 2015
 
Mother appeals from judgment where Father was found not guilty of contempt.

Father was previously ordered to pay $270 per week child support.  When the child entered college both parties sought a modification.  The judge issues a modification judgment reducing child support and addressing college payments.  The judgment was a bit unclear but neither party sought clarification.

Father then complied with his child support obligation and paid what he believed was due on account of college.  When the child graduated college with a $27,000 student loan, Mother filed a complaint for contempt alleging Father failed to pay the amount ordered per semester.

Where the order was unclear whether the financial aid Mother and child were to seek included student loans or not, it was proper to infer it did given the judgment clearly contemplated that Mother, Father and child would all be contributing to the child’s college expenses.

The lack of a clear, unambiguous order made it impossible to sustain a finding of contempt against the Father especially in light of the heightened clear and convincing evidence standard.

Azia v. Linet
14-P01475

June 12, 2015

Parties were divorced on January 3, 1991.  Husband sought modification of alimony when he reached full retirement age in March, 2012.  The trial judge ordered a reduced amount for one year then termination of alimony.

The modification occurred prior to the court deciding Chin v. Merriot which made clear the Alimony Reform Act is not retroactive except as to durational limits of alimony orders.

The modification is vacated and remanded for further consideration.

North v. Stephens-North
14-P-678

June 18, 2015

Husband appeals from a modification judgment where the trial judge entered judgment providing for a percentage of Husband’s bonus and incentive stock payouts as additional alimony to Wife.  Husband claims such an award is an improper self-modifying award which unfairly allows Wife to realize increase alimony without tying it to her needs or having to prove a material change in circumstances.

While there are cases where a self-modifying percentage based award of alimony is appropriate, such an award should not be imposed without specific findings.  Here, the judge not find that the wife’s needs or husband’s ability to pay justified a self-modifying award of alimony.

Husband also appeals college expense calculation for the parties’ twins.  Husband was originally ordered to contribute $16,000 per year per child for up to 4 years of college.  The judge reduced this formula to a single net obligation of $128,000.  However, the calculation erroneously assumed each daughter would incur the maximum expenses for four years.  In fact the expenses actually incurred were only $111,000.  And, that included one child’s 5th year of college to obtain a second bachelor’s degree.

The modification judgment was vacated and remanded for further proceedings.
 
C.F. v. R.M.
13-P-1502

June 19, 2015

C.F., a minor child, is R.M.’s former stepdaughter.  C.F. got a 209A order against R.M. after reporting that she had been sexually abused by R.M. when she was 9 or 10.  The order issued on May 6, 2011 and was to expire May 3, 2012.  R.M. did not appeal.

Thereafter R.M. sought to vacate and expunge the 209A order because the police and DCF had not found sufficient evidence to substantiate C.F.’s report of abuse.

On May 3, 2012, C.F. did not appear.  The sitting judge extended the order to May 24, 2012 at which time R.M. and C.F.’s mother appeared before the original issuing judge.  On May 24th C.F.’s mother (and next friend) submitted evidence that the C.F. suffered from PTSD including a letter from C.F.’s clinical social worker who reported C.F. was managing her anxiety related to past trauma but still quite anxious and it would be anxiety provoking to have to appear and testify again.  C.F.’s mother testified C.F. had a panic attack the night before the hearing at the mere thought of having to go to court.

On the evidence presented on May 24th and the “egregious set of facts that triggered the original order” and the likelihood of R.M. encountering C.F. given their respective relationships to C.F.’s half-sister, the judge continued the 209A until C.F.’s 18th birthday.  R.M . appeals.

First, there is no merit to R.M.’s argument the court could not extend the order from May 3rd – 24th.  As for the 24th extension, R.M.’s argument lies on the premise that C.F. had to appear to have it extended.  At all relevant times, C.F. was a minor and her mother, who filed the papers as next friend of the minor child, was present in the courtroom on the 24th and did testify.  It is far from clear that the minor also had to be present and subject to cross examination.  There are circumstances in which a judge can properly deny a 209A defendant the right to cross examine.  Further it is not clear what R.M. would have gained from once again cross-examining C.F.

R.M. made clear that C.F.’s fear was unreasonable in light of the fact that the police and DCF had not substantiated the reports of abuse.

R.M.’s claim that there has been no contact between the parties in the past few years suggesting there is no need for the order completely overlooks the fact that there has been no contact because of the existence of the order.

209A order extension affirmed.

Poirier v. Woodward
13-P-1603

June 23, 2015

The parties were married in 1988 and divorced by agreement on March 9, 2007.  The agreement called for alimony of $945 per week and no child support at that time.  The agreement was clear child support was part of the alimony calculation.  The numbers were based on Husbands income between $140,000 and $145,000.

Husband filed for modification in September, 2007 which was dismissed.  The judge established Husband’s arrears at that time of $16,415 and ordered him to pay Wife’s attorney’s fees of $7,500.  On July 12, 2011 the court found Husband in contempt for failing to pay his support obligation and failing to pay the 2010 legal fee award.

Upon further modification, Husband was ordered to pay child support of $424 per week until emancipation of the younger child at which point the weekly amount would convert to alimony.  The only material change the court found at that time was the emancipation of the order child.  The judge declined to consider Wife’s co-habitation because the alimony reform act is not retroactive and also because Wife testified that her co-habitor only contributed to certain household things such as maintaining the pool and the outside of the home.

A further contempt judgment ordered the Husband to pay $98,061 which was due and owing as of December 19, 2012 based on unpaid support and prior arrearages.

Husband appeals the child support order and conversion to alimony.  The trial judge used the entirety of the parties’ incomes to calculate child support leaving nothing left out of which to pay alimony until the youngest child is emancipated.  The order was proper and within the trial judge’s discretion.

As to the appeal of the contempt, Husband argues an inability to pay the judgment.  The court did not abuse its discretion in finding the Husband had the ability to pay.  The trial court had Husband’s financial statement, bank statements, pay stubs and prior years W-2 forms.  Husband’s income continued to average between $140,000 - $145,000 with even higher years of earning into the $180,000’s.

Finally, Husband alleges he was unable to properly present his evidence because the trial judge imposed a time limit on his direct of 40 minutes.  Case law permits a trial judge to impose reasonable limits on direct and cross examination of witnesses.  In this case 40 minutes was ample time for the husband to present evidence of his financial circumstances.  And, at the end of the allotted time, the judge attempted to move on to cross examination but Husband’s counsel was so disruptive to the progression he was held in contempt for failing to follow court orders.

Judgments affirmed.

Stone v. Stone

14-P-814
June 26, 2015

Mother appeals from modification judgment awarding sole physical custody to Father.  Mother alleges there was no material change in circumstances warranting the change.

At the time of divorce, mother had physical custody and the parties shared legal custody.  That was modified in November 2012 at which point the parties shared legal and physical custody.  Three weeks later Mother filed a complaint for contempt.  At that hearing the judge instructed mother not to call the police on the father again in similar circumstances.  (Mother had a 209A order against father and made several complaints for violations when father communicated with mother by email regarding the wellbeing of the child.)

In February, 2013 there was a further dismissal of a modification complaint and the judgment stated “If there is a finding by this Court in the future that mother cannot act in the child’s best interest by lying under oath to the Court and harassing the father, sole physical custody shall revert to the father.”

In March, 2013 Father filed a complaint for modification of the judgment alleging Mother had again lied under oath and used the court system to harass and harm him and not acted in the child’s best interest.  Trial was held in January 2014 and the judge found father’s testimony credible and Mother’s testimony not credible.

The judge found mother is unwilling to work with father to further the child’s well-being and is therefore unwilling or unable to work with the father to promote the child’s best interests.  The court found, based on the alleged 209A violations, that Mother has used the restraining order process to make any co-parenting between she and the Father impossible.

The court transferred custody to father which it found to be in the best interest of the child.  The court did not abuse its discretion.

Judgment affirmed.