Summer 2015: Reported Case Summaries

Below are the Reported Case Summaries for the Summer Family Law Newsletter written by: Elizabeth S. (April) Jordana Kershner (May), Wendy Hickey (June).

April Reported Decisions

Guardianship of B.V.G. (April 6, 2015)
Questions Presented:
Whether a grandfather, who was plainly interested in the welfare of his granddaughter, had standing to intervene as an interested party under M.G.L. c. 190B § 5-306(c) in a guardianship proceeding.

Summary of Facts:
B.V.G. was born in 1993 and suffers from numerous disabilities, both intellectual and emotional, including Tourette syndrome. Her parents separated when she was a child and in 2005, her father was awarded sole legal custody until 2011 when she would reach the age of majority. During this period, B.V.G had no contact with her mother or any of her maternal relatives. In 2011, the father petitioned and was awarded temporary guardianship of B.V.G. The order allowed for supervised visitation between B.V.G. and her mother and if B.V.G desired to contact her mother, her father could not interfere. The temporary guardianship was later extended until April 2013 by a stipulation signed by the mother, father, and attorney appointed to represent B.V.G. The stipulation provided for some contact between B.V.G. and her maternal grandfather. In April 2013, B.V.G.’s maternal grandfather filed a motion to intervene in the pending guardianship proceeding, seeking limitations on the father’s ability to deny B.V.G. contact with him. B.V.G’s attorney declined to state a definitive position on whether the grandfather should be allowed to intervene. The judge denied the motion to intervene on the basis that the grandfather’s interest in B.V.G’s welfare was not enough to grant him standing to intervene.

The Appeals Court of Massachusetts held that the term “interested person” under M.G.L. c. 190B § 5-306(c) includes people who do not have a financial stake in the outcome of the proceeding and therefore could include a maternal grandfather. Even though the definition of the term lists categories of people, this list is not exhaustive. Also, the meaning of the term, when considered in conjunction with the other sections of the statute, indicates that it includes a person interested in the welfare of the [incapacitated] person. The overall purpose of the guardianship statute supports this meaning as well. The statute prefers limited guardianships in seeking to maximize the autonomy of the subjected persons. Additionally, it requires the imposition of limitations only to the extent that the person’s needs cannot be met by a less restrictive manner. Broadening the class of individuals who can constitute an interested person helps facilitate these goals. Furthermore, this expanded interpretation is in accord with the interpretation of parallel statutes in other jurisdictions.

Although the grandfather did not lack standing, the judge’s decision to deny the grandfather’s motion was affirmed. The judge had determined that B.V.G’s interests were adequately represented without the grandfather’s participation as a party and nothing in the record indicated a need to disturb the judge’s as

May Reported Decisions
Pisano v. Pisano
May 29, 2015

The Court of Appeals addressed several issues relating to a divorce involving a prenuptial agreement following appeals by both parties of the lower court decision.  After more than twenty years of marriage, the wife filed for divorce and sought to have the parties’ prenuptial agreement enforced.  The husband challenged both the scope and validity of the prenuptial agreement and the wife successfully moved to have those issues bifurcated and addressed.  Following the bifurcated trial, the trial court held that the agreement was valid and binding and that it limited the husband’s claim for alimony.

With the assent of the parties, the trial court then referred additional issues to a master, including whether the wife was entitled to repayment of temporary alimony and whether a $100,000 loan she took from her late husband’s brother without the assent of the husband should be treated as solely the wife’s liability or shared by the parties.  The master’s recommendations, adopted by the trial court, were that the wife was entitled to recover the temporary alimony she paid and that the loan was her sole liability.

There were primarily three issues on appeal; two of them asserted by the husband, and one of them asserted by the wife. (1) The husband’s appeal challenged the decision that he reimburse the wife for the temporary alimony she had paid him; and (2) challenged other portions of the judgment as they relate to alimony. (3) The wife’s appeal challenged the assignment to her of the $100,000 loan.  Only the husband’s first issue was successful on appeal, resulting in vacature of that portion of the judgment; the other portions of the judgment were affirmed.  The husband’s request for sanctions for frivolous arguments was denied.

1. Background relating to prenuptial agreement.
Both parties had been involved in the entertainment industry and wanted to protect their existing assets, including their intellectual property rights, by entering into a prenuptial agreement.  The prenuptial agreement provided that “the agreement will be enforced, unless, with respect to alimony, enforcement would cause one of us to become eligible for support under a program of public assistance at the time of the separation or dissolution.”  At the time of divorce, neither party was eligible for public assistance and the trial judge specifically noted that the husband was entitled to substantial assets (approximately $600,000) that should prevent him from becoming a public charge.  Rather, the dispute in this case focused on whether there was an alimony waiver at all, and if so, whether it had been intended to be limited to income from separate property (as defined therein) so that alimony could still be payable from other income, i.e., income not deriving from separate property.

For a period during the pendency of the action, the wife was required to pay the husband $2,000/month in temporary alimony.

2. Husband’s first issue on appeal: alimony.
The Court of Appeals disagreed with the husband’s argument that the prenuptial agreement did not contain a waiver of alimony, but instead only a waiver of a claim to separate property.  The Court of Appeals observed that each party sought to protect from the other his/her separate property, including the income streams derived thereform, and held that the trial judge reasonably and properly construed the agreement to limit the husband’s claim for alimony.

3. Husband’s second issue on appeal: reimbursement of temporary alimony he received.
The Court of Appeals agreed with the trial court in declining to invoke the doctrine of unjust enrichment, as the wife argued on appeal should be done, in connection with her having paid $32,000 in temporary alimony to the husband during the pendency of the action.  The Court of Appeals did so on the basis that the wife’s opposition to temporary alimony in the trial court had not been based on an argument that temporary alimony was proscribed by the prenuptial agreement.  Her opposition to husband’s request for $12,000 per month had been based on her argument that she could not afford that amount and that the court should instead award him $1,500 per month.  

4. Wife’s issue on appeal: assignment to her of debt.
The wife testified that due to financial strain on her between 2008 and 2010, she obtained a loan from her late (first) husband’s brother in the amount of $100,000.  The loan was, in part, related to expenses in connection with her defense of an unrelated civil lawsuit, her payment of college expenses for the parties’ son, and her payment of numerous voluntary expenses for the husband’s three adult children from his first marriage.  The Court of Appeals agreed with the trial court (which was adopting the master’s findings), that wife’s voluntary willingness to provide financial help to the husband’s children, does not provide a compelling reason to force the husband to repay a loan he had not agreed to seek.  The trial court had ordered the husband to contribute to the past support of the son, and so there was some concern by the trial court that ordering the husband to share the $100,000 loan would constitute double dipping.

June Reported Decisions
Petriello v. Indresano
June 3, 2015

Plaintiff, Rose Petriello, is the 88 year old decades-long domestic partner of the deceased father of the two defendants, Joseph and Albert Indresano (their appeals were combined).  On the death of Albert Sr, Petriello moved to a property in Wellesley owned by a trust that Albert Sr. had established for her benefit.  Thereafter Petriello executed a health care proxy naming Albert Jr as her agent with Joseph as alternate.

In April, 2013 Petriello had knee surgery and was discharged to a rehab facility.  In May, 2013 she executed a new health care proxy naming Veronica Higgins-Sullivan, Albert Sr’s niece, as agent.  From the rehab facility, Petriello moved to an assisted living facility because the trust with Indresano was broken.  Her bills and expenses were not being paid and Albert and Joseph prevented her from accessing her own checkbook.

Higgins-Sullivan agreed to act as health care agent after receiving a phone call from Petriello in April 2013.  She was very upset because the Indresano’s claimed that had an abortion in 1956.  Petriello, a practicing catholic, denied the accusation and was very upset.  During the call one of the Indresanos took the phone from Petriello.  Higgins-Sullivan stayed on the line out of concern.  She could hear yelling, screaming, and carrying on in the background.  After they hung up, Higgins-Sullivan called the local police.  

In April, 2013 someone filed a complaint with Springwell for elder abuse of Petriello by the Indresanos.  After investigating, Springwell “screened in” the report because the allegations fit Springwell’s definition of abuse.  During the investigation Petriello told Springwell that she did not want to see or talk with the Indresanos.  Springwell substantiated the allegations of elder abuse.

Before Petriello moved to assisted living, Albert and Joseph went to the facility and instructed the staff not to have contact with her because they did not want her to move.  On the day of the move the assisted living staff arranged for a car service to pick Petriello up from rehab but the Indresanos cancelled the car.  And, Joseph’s wife cancelled Petriello’s moving van which had been scheduled to move her belongings to the assisted living facility.  And, someone changed the locks so Petriello could not retrieve her belongings.

On moving to assisted living, Petriello enjoyed herself.  She was very social and interacted with other residents.  On June 17, 2013 she executed a Power of Attorney naming Higgins-Sullivan as her attorney in fact.  Thereafter the Indresanos began visiting Petriello.  She became upset and told Higgins-Sullivan she had moved to get away from them and now they were camping out.  Higging-Sullivan became very depressed, wouldn’t eat, get dressed or bathe.  She was evaluated by a psych nurse and sent to the ER at Newton Wellesley while awaiting a bed in a locked ward at Mt. Auburn.

On July 24, 2013, Petriello’s treating psychiatrist determined Petriello was no longer capable of making her own decisions and invoked the health care proxy.  Dr. Evans suggested that Higgins-Sullivan obtain a harassment order against the Indresanos on Petriello’s behalf which Higgins-Sullivan did.  The order was issued by a judge in the Dedham Division of the District Court.  This appeal followed on the basis that (1) Higgins-Sullivan did not have standing to apply for the order and, (2) there was insufficient evidence to support the order.

Standing:  There is no allegation that the POA was not valid.  The terms of the POA are considered a contract and must be strictly interpreted in the plain language of the document.  Here, the POA specifically granted Higgins-Sullivan the authority to “exercise or perform any act, power, duty, right or obligation whatsoever that [Petriello then had], or may hereafter acquire, relating to any person, matter, transaction, personal or real property, now owned or hereafter acquired, to the same extent that [Petriello herself] might do if personally present.  It is reasonable to conclude Petriello intended for Higgins-Sullivan to act on her behalf.  Therefore, when Higgins-Sullivan sought and was granted the harassment orders, she did so with proper authority.

Sufficiency of the evidence:  In reviewing a civil harassment prevention order, the court considers whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed “[three] or more acts of willful and malicious conduct aimed at a specific person with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.”  The test is subjective.  If all of the elements are present, it is sufficient to show that the harassment actually caused fear, intimidation, or abuse to the plaintiff even if a reasonable person in the plaintiff’s situation would not have been so affected.  

The record in this case was thin and full of generalities and conclusions.  There is evidence Petriello was physically harmed by the defendants conduct.  There was evidence of at least one act that could have been deemed abusive – when someone took the phone away from Petriello and there was yelling and screaming in the background.  However, it is unclear exactly who was present and who participated.  One act does not suffice – there needs to be three specific acts of harassment.  

“In O’Brien, the court gave examples of unprotected speech which would qualify as harassment including “fighting words” (words that are likely to provoke a fight…) and “true threats” (those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group…)”.

In this case there is only one clear act of harassment conceded by the defendants.  The other allegations while upsetting could not be fairly said to constitute harassment as the statute has been interpreted.  The words themselves were neither “fighting words” nor “true threats.”

The record is unclear exactly what happened when the defendants were asked to leave the assisted living facility or who cancelled the car service, or what lead to the doctor suggesting a harassment order.  It was also unclear exactly what the allegation was to Springwell.

Because the record does not permit a finding of three specific acts of harassment by the Indresanos, the orders are vacated.

F.A.P. v. J.E.S.
June 30, 2015

This is an appeal of a temporary harassment order obtained by a 7 year old girl against an 11 year old boy.  The children are family friends.  The girl’s mother sought the order on her daughter’s behalf and testified at the hearing about statements her daughter made.  Defendant appeals claiming that the evidence of harassment was legally insufficient, that the judge erred in multiple additional respects:  by applying an erroneous interpretation of the statute, by improperly admitting hearsay testimony, and by unduly constraining his ability to cross examine the plaintiff’s witnesses.  

On the afternoon of July 25, 2013, the boy and his mom went to the girl’s home.  The children were unsupervised upstairs for a period of time.  The girl’s mom called the children down because the children had on one prior occasion engaged in some inappropriate touching of bums.  Shortly after coming downstairs the girl reported she was bleeding from her vaginal area.  Both mothers examined her in the bathroom and confirmed she was bleeding.  The girl’s mother called the doctor and took her in for an exam the following day.  The doctor found a small tear on her labia.  

Mom asked the girl what happened and the child said she must have been injured on the playground at recess.  However the school said there had been no recess that day due to weather.  Mom began asking the child more intensively what happened and threatened to punisher the child if she did not tell the truth.  Finally the child told her mom that the boy had shoved his fingers up there just before the bleeding and told her not to tell anyone or they would both get in trouble.  The mother called the police and a delinquency complaint was ultimately filed against the boy.  The mother then sought the harassment order at issue.

The child did not testify at the hearing but the mother did.  The defendant moved in limine to prevent the mother from relaying hearsay testimony.  The court held that the testimony would not be taken for the truth so it was not hearsay.  However, the judge was incorrect.  By definition, a child’s out of court statements describing sexual contact in a child abuse case cannot be admitted unless the dictates of G.L. c. 233 § 82 have been satisfied (including the requirement that the child be shown to be “unavailable.”).  However, by the statute’s explicit terms, an out of court statement admissible by common law or by other statute shall remain admissible notwithstanding the provisions of this statute.  Thus if a child’s out of court statements are otherwise admissible the preconditions to admissibility set forth in §82 do not apply.

“[T]his does not mean that out of court statements by alleged child victims automatically qualify for admission in abuse prevention or harassment prevention proceedings.  Rather, due process requires that such statements be considered for their truth only if the judge determines that they carry sufficient indicia of reliability.”  In this case the appeals court concluded that the judge erred in concluding the plaintiff’s out of court statements categorically could not be considered for their truth unless the conditions in § 82 had been met.  On remand the judge could consider the statements for their truth if she were to determine that they carried sufficient indicia of reliability.

In issuing the harassment order, the judge concluded that plaintiff needed to show fear of the defendant based on her allegation that he had committed an act fitting the statutory definition of harassment.  The statute defines harassment in two ways (1) “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”; and (2) in situations where there is an allegation of one or more acts of sexual misconduct.  “In the sexual misconduct definition, plaintiff can establish the need for an order in two ways.  First, a plaintiff can show that a defendant “by force, threat or duress caused the plaintiff to involuntarily engage in sexual relations.”  Second, a plaintiff can prove that a defendant committed any of twelve specifically enumerates sex crimes including rape of a child.”

If the defendant digitally raped the girl, that would fit the definition of harassment.  In focusing on the element of fear, the judge added unnecessary elements to the burden of proof.  The judge indicated she did not have to address whether the crime occurred but that is not correct.  Based on the record there appeared to be sufficiency of facts to meet the burden of proof.  The evidence was that a 7 year old girl suffered a labial tear directly after having been alone with a defendant who had previously engaged in an indecent touching of her.  That evidence was sufficient to support a finding that the defendant raped the plaintiff.  

Because the appeals court concluded there was sufficient evidence of harassment to support the judge’s order, but that the judge applied an incorrect view of the law, the case is remanded for further proceedings.