Fall 2015: 1.28 Decisions


Below are the 1.28 decisions for the Fall Family Law Newsletter written by: Brian McLaughlin (July/Aug) Ethan Rittershaus (Aug), Meredith DeJesus (Sep), Elizabeth Silvestri (Oct)


Adoption of Kato
87 Mass. 1133 (July 1, 2015)

Mother appealed determination of unfitness. Appeals court affirmed. Mother argued abuse of discretion and the state failed to meet its burden of clear and convincing evidence when proved unfitness. Her arguments were bias around her long periods of incarceration and resuming a relationship with the father, who had since terminated his parental rights. Judge failed to take into account drug rehabilitation efforts and DCF involvement.

The judge did not abuse his discretion even though the finding regarding the mother’s statement in the hallway, that she would return to the father “in a heartbeat”, was deemed to be problematic. Due to extensive criminal background and drug history, which was detailed extensively by the lower court judge, the appeal was denied and the judge did not abuse his discretion.

LaGasse v. Hyde
14-P-942 (August 5th, 2015)

Mother appeals from a modification judgment. Mother argued that certain of the judge's findings and credibility assessments are unsupported and that portions of the judge's ultimate disposition are erroneous.

The Appeals Court first noted that, "It is a bedrock principle of law that it was for the trial judge, not for us, to consider the evidence, assign weight, and determine credibility. Adoption of Daniel, 58 Mass. App. Ct. 195, 200 (2003). After carefully reviewing the record the Appeals Court concluded that there was no clearly erroneous findings and the trial judge's findings were adequately supported by the record.

Mother also argued that the trial judge had abused her discretion by leaving the parties stipulated custody/ parenting time agreement. The Appeals Court disagreed. Della Corte v. Ramirez, 81 Mass. App. Ct. 906, 908 (2012). Given the conflicting evidence presented the judge was no obligated to credit the mother's allegations of domestic violence.

Mother finally argued that the parties' relatively recent unwillingness to agree on such matters as the child's school location and extra-curricular activities constitutes a material change of circumstance of such magnitude that the trial judge was required not only to place both legal and physical custody with the mother but to significantly reduce the father's parenting time. "[t]he best interests of the child is the 'touchstone inquiry' in child custody, visitation, and relocation cases." Smith v. McDonald, 458 Mass. 540, 544, 941 N.E.2d 1 (2010), quoting from Custody of Kali, 439 Mass. 834, 840, 792 N.E.2d 635 (2003). The Appeals Court disagreed stating that “Insofar as it appears to be undisputed that the child is doing well, indeed is flourishing, under the present shared custody arrangement as established by the parties' 2010 stipulation and judgment, we conclude that the judge acted well within her discretion by effectively enforcing that plan.” Lower Court Judgment Affirmed.

Davison v. Goolishian
13-P-1725 (August 5th, 2015)

Mother appealed from a judgment of modification of child support entered by a judge of the Probate and Family Court in June, 2013. Mother had attempted to increase the child support judgment and sought an order compelling father to pay the entire cost of their daughter's college education based on father's significant increase in income. The trial judge declined to order an increase of child support and rather entered an award consistent with an earlier 2008 stipulation that had been merged into a judgement of the court, (ordering a weekly payment of $1,156 dollars for support). The judge additionally entered an order that father, mother, and daughter would be equally responsible for college costs and expenses.

The Appeals Court first noted that a petitioner attempting to modify a child support judgment must establish that a material and substantial change in the circumstances of the parties has occurred and the judgement of modification is necessary in the best interest of the children. Brooks v. Piela, 61 Mass. App. Ct. 731, 734, 814 N.E.2d 365 (2004), quoting from G. L. c. 208, § 28.

Mother argued on appeal that the judge had abused her discretion by not considering the increase to husband's income and also when she considered the mother's current husband's income. The Appeals Court disagreed, first noting that as both parent's annual gross income exceeded $250,000, child support beyond the minimum presumptive order is discretionary. Morales v. Morales, 464 Mass. 507, 510 (2013). The Appeals Court when on to note that the judge had in her comprehensive findings of fact, rationale, and conclusions of law, that the judge had appropriately considered "all relevant circumstances" in determining not to modify the child support order. This included the children's ages and needs, the father's 2012 gross income, the mother's earning capacity, contributions of the mother's husband to their household, the parties' respective standards of living, and the terms of the parties' prior stipulation. Although, the father conceded that his gross income increased substantially since the 2008 modification, the judge found that the children's needs had not significantly increased and there was "no material disparity in the standard of living in the parents' households." These findings were not plainly wrong, and the judge did not abuse her discretion in her weighing of the factors. See Pearson v. Pearson, 52 Mass. App. Ct. 156, 160-161, 751 N.E.2d 921 (2001).

Mother finally argued that the trial judge relied on the mother's current husband's income in an impermissible manner. Silva v. Silva, 9 Mass. App. Ct. 339, 342 (1980) which held that "the income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children." While, the Appeals Court did have some sympathy for the argument that the judge's consideration of the mother's husband's income impermissibly placed the burden of support the parties children on her new husband. The Appeals Court declined to say that the judge erred in this matter: the judge had relied on the new husband's income only in considering both parties’ high standard of living. It was her new husband's income and position as principal provider for their household that permits the mother to enjoy this lifestyle without pursuing more lucrative employment of her own. Smith v. Edelman, 68 Mass. App. Ct. 549, 555, (2007). Furthermore, the award amount is based on the parties' 2008 stipulation, at which time both parties already enjoyed a high standard of living and the mother's husband had been supporting their household for a number of years, including paying for the parties' daughter's educational expenses (such as private school tuition) and the parties' son's uninsured medical expenses. As the mother had not demonstrated a change in these circumstances, or in the children's needs, the Court found her argument unavailing.

Lower Court judgment affirmed.

Darling v. Darling
14-P-1214 (August 6, 2015)

Husband challenged a portion of the judgment of divorce awarding general term alimony to wife. This was a long-term marriage in which the parties were married for twenty-six years and raised five children together. The judge concluded that the wife was reestablishing herself and "her needs will be established in the future." The judge also concluded, based upon evidence that the husband's income might increase in subsequent years, that in addition to fixed alimony, the husband should pay the wife as additional alimony thirty-three percent of any income earned by him in excess of $225,000 annually.

As this appeal was pending, the Appeals Court decided Hassey v. Hassey, 85 Mass. App. Ct. 518, (2014). In that case, it was held that G. L. c. 208, § 53(b), "requires the judge to determine the parties' respective needs and income at the time the order is issued," id. at 527, noting that a self-modifying order was, ordinarily, impermissible under the Alimony Reform Act of 2011, G. L. c. 208, §§ 34, 48-55, see Hassey, supra at 527-529.

While wife attempted to distinguish her case from Hassey , the Appeals Court found that her argument was apposite only to a second, independent ground on which the self-modifying order in the Hassey case was held impermissible, namely that the order there was "inequitable because it requires only the husband to disclose quarterly income to the wife, but imposes no reciprocal duty on the wife." Id. at 528. The first ground for the holding in Hassey was as we have described: because modification must be made by a court on the basis of changed circumstance, a self-modifying order is generally impermissible. This holding is applicable here.

Wife further argued that Hassey also indicated that the facts of "a special case" might demand an exception to this general rule, id. at 527, citing Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814, 817,. In Stanton-Abbott, id. at 815, after divorce the wife moved to England and was in a car accident, becoming paralyzed from the waist down and unable to work. The Supreme Judicial Court affirmed an award of alimony that arguably self-modified because its amount was keyed to the annual rate of inflation in England. The SJC in Stanton-Abbot, "note[d] that the locations of the parties and of the husband's resources presented a special case that well might have suggested the use of these self-executing formulas. Other considerations might apply to a case with more parochial contacts." The Appeals Court stated that, “here, even assuming Stanton-Abbott's holding applies in our post-Alimony-Reform-Act world, the wife has not shown that the facts of the instant case are anything out of the ordinary.” Therefore, Hassey controlled the outcome of this case.

As a result, the alimony award, which contained a self-modifying provision, was vacated and the case remanded for reconsideration of the alimony award in light of Hassey. The judgment was otherwise affirmed.

Collins v. Collins
14-P-1874 (August 6, 2015)

Former Wife appeals a judgment of civil contempt wherein a Probate and Family Court judge found that she failed to pay William, her former husband, $30,000 pursuant to a divorce decree. In the contempt judgment, the judge ordered Kelley to pay William the $30,000 plus $2,078.74 in interest, and an additional $1,000 in attorney's fees.

Of note was the fact that in the intervening time the former wife had already paid the judgement in full and as a result former wife had purged the contempt. As a result, the Appeals Court found that the issue was moot. Mullen v. Mullen, 7 Mass. App. Ct. 899, 890. The case was remanded to the Probate and Family court with instructions to dismiss the complaint for contempt.

Samra v. Esper
14-P-1016 (August 17, 2015)

The parties' were divorced in September, 1999, and their separation agreement was incorporated into the divorce judgment. Under the separation agreement, the parties were granted joint physical and legal custody of the two children and the father was ordered to pay child support of $165 per week. As to college expenses, the 1999 agreement provided, in part, that the after each child's contribution, if any, from scholarships, loans, work study plans, savings, and gifts, the parties "will contribute towards the cost of education as their respective means allow."

Multiple cross complaints for modification for each party were filed. The lower court judge ultimately made a decision at the pretrial based upon the pleadings that were filed by both parties. The father then appealed the decision of the lower court judge, arguing that the judge could not make a decision at the pretrial, and he was denied his right to a trial. The appeals court said that the judge did not erre in making a decision at the pretrial stage.

Spilhaus v. Spilhaus
14-P-647 (August 24, 2015)

Parties were married in 1982. They were separated after husband had accumulated a pension as a fire fighter and working in the military. The parties went to a mediator in 1999. The separation agreement drafted by the mediator was fully executed and the parties were divorced.

The wife discovered a new pension which was never brought up during the mediation. The mediator testified that he had no recollection of a conversation regarding this pension, despite the husband’s assertion that it had been discussed and the parties agreed to not to divide this asset.

Under the doctrine of mutual mistake, the wife was not aware of the second military pension; therefore, should have been entitled to the thrift savings plan plus this second military pension.

The husband appealed this decision. The appeals court said that the judge did not abuse his discretion by applying the doctrine of mutual mistake and the separation agreement could be validly reopened.

Murphy v. Smith
14-P-1301 (August 28, 2015)

The lower court granted a contempt and attorney’s fees. In this case, father was found in contempt regarding expenses.  The lower court judge also order the father to pay the mother’s attorney fees.  Father appealed that there should have been a contested hearing. Had there been one, he asserts that he would not have been found in contempt and; therefore, should not have been order to pay the other party’s attorney’s fees. The appeals court decided that a judge in Family and Probate Court has the authority to award attorney fees, including but not limited to, situations when one party is found in contempt.

Physic v. Physic
14-P-620 (August 28, 2015)

The parties were divorced by means of a court-adopted separation agreement. The judge at the time found it fair and reasonable, as did the parties.

A month after the divorce became absolute, the husband sought to amend the separation agreement, due to being “blindsided” during the process. The same judge approved modifying the agreement and it was merged into the judgement. Shortly thereafter, the parties sought entry of a qualified domestic relations order (QDRO) to divide the husband's pension consistent with the provisions of the judgment incorporating the now-modified separation agreement. That motion was allowed and the QDRO executed.

 The father then filed a motion for relief, arguing that the judgement is still unfair to him. This motion was denied and the husband now appeals. Since appealing, the parties filed an assented-to motion. The only issue that was left for the appeals court was the issue regarding the father’s pension. The judge was not found to have abused his discretion in the refusal to grant the requested relief. The agreement in whole was found to be fair and reasonable, which includes the pension as executed by the QDRO.

Adoption of Penrod
14-P-1939 (September 30, 2015)

Mother moved to withdraw previously signed stipulation, which terminated her parental rights, and moved to vacate the decrees of termination.  Her motion was denied and she then appealed.  The Massachusetts Appeals Court affirmed, finding no abuse of discretion by the motion judge in refusing to allow the mother’s motion.  Mother’s stipulation was knowing and voluntary.  She executed an affidavit acknowledging that the stipulation would terminate her rights.  Also, prior to signing, mother’s trial counsel reviewed the stipulation with her line by line.

Furthermore, mother’s contention that her trial counsel was not authorized to file the stipulation and affidavit in court after her departure from the courthouse was not properly before the Court because she did not raise it in her motion. 

Order affirmed.

Carrie A. Wansiewicz v. Gary J. Wansiewicz.

14-P-1434 (September 3, 2015)

Husband appealed from a judgment of the Probate and Family Court ordering him to pay $307 in child support to wife each week as well as one half of the equity of the marital home within forty-five days of his mother’s death.  The Massachusetts Appeals Court affirmed the judgment.

In contesting the award of child support, husband alleged that the judge improperly applied the 2009 Child Support Guidelines instead of the 2013 Guidelines.  The Court found that the judge did not apply the 2009 Guidelines.  The judge had concluded that the $307 per week that husband was already paying wife during the litigation was appropriate and should remain in effect.  The judge acknowledged that the 2013 Guidelines provided for a lower amount but stated that there were multiple factors supporting a higher amount.  The judge carefully explained the reasons for deviation and noted the parties’ weekly expenses and husband’s ability to pay.  Although the judge should have made specific findings indicating the amount of the order that would result from the application of the guidelines, the Court in viewing the judge’s findings in their entirety stated there was no reason to remand the matter.

In contesting the division of the marital home, husband alleged that the judge improperly classified the home as a marital asset.  The home was originally owned by husband’s mother.  The family moved into the home in 2001.  In June, 2006, husband’s mother transferred the deed to the home in her name and husband’s name as joint tenants with a right of survivorship.  In 2009, husband filed a declaration of homestead on the home and claimed the home on his individual Federal tax return in Residential Energy Credits.  While living in the home, husband and wife contributed to the expenses of the home through their joint bank account and wife’s credit card.  They paid for utilities and household expenses while husband’s mother paid the mortgage.  In 2009, husband and mother took out a mortgage of $160,000 on the home to pay for mother’s previous mortgage as well as husband and wife’s credit card debts.

Wife left the home in 2010, at which time husband’s mother created a revocable trust, naming herself as donor and original/current trustee and husband’s brother as sole trustee if she ceased to serve.  Husband and mother then transferred the deed to the home to mother for consideration of one dollar.  Husband and brother were beneficiaries of the trust; therefore, upon mother’s death, they will inherit the home. 

Husband argued he has no vested interest in the home and therefore the judge erred in considering it a marital asset subject to division.  The Court, however, agreed with the judge’s finding that the home was a marital asset.  Husband lived in the home, contributed to the expenses, and was previously a joint owner of the home.  Also, husband had control over the creation of the trust and it was clear that his actions were done to prevent wife from claiming an interest in the home.  Furthermore, after the couple’s separation, husband continued to live in the home and claim Residential Energy Credits on his tax return.

Judgment affirmed.

Adoption of Otis
15-P-274 (September 23, 2015)

Father appealed from a Juvenile Court decree, terminating the father’s parenting rights and approving Department of Children and Families’ (“DCF”) adoption plan.  The judge found that father was unfit based on numerous factors, such as father’s extensive criminal record, which displayed his propensity for violence and required significant periods of incarceration, as well as his general refusal to cooperate with DCF and his assigned social worker.  Additionally, the child had significant emotional and psychological issues that father could not properly manage and father had minimal contact with the child.  The child had developed a bond with his preadoptive family, which the judge also considered in his fitness determination.  The Massachusetts Appeals Court found no error in the judge’s determination of parental unfitness. 

Furthermore, father argued that DCF failed to present a case adverse to him.  The Court found that the four testimonial responses of father, the seven exhibits, and the judge’s findings that father is unfit and it is in the best interest of the child to terminate father’s parental rights constituted sufficient evidence.  Therefore, there was no error.

Decree affirmed.

Jeannine Privitera v. Michael F. Kennelly
14-P-1058 (September 4, 2015)

Mother appealed from a Probate and Family Court judgment modifying her parenting schedule with father.  Mother and father married in 2002 and had a daughter in 2005.  They divorced in 2008.  The divorce judgment incorporated their agreement to share legal custody of their daughter, with mother having primary physical custody.  Father had parenting time with the daughter one weekday and every other weekend.  In October 2010, a probate judge approved an agreement between the parties that increased father’s parenting time.  In May 2012, mother filed a complaint for modification seeking to end overnight visitations with father and father counterclaimed for primary physical custody, modification of the parenting plan, and modification of his child support obligation.  After a trial, the judge increased father’s parenting time to alternating weekends commencing on Wednesdays and every Wednesday until Thursday, finding that there had been a material change in circumstances.

The Massachusetts Appeals Court found no error in the judge’s decision.  The guardian ad litem’s (“GAL”) report as well as the other evidence presented at trial showed that mother’s was incapable of separating her needs and interests from those of the child.  Mother refused to communicate with father and made concerted efforts to alienate the child from father.  Mother also had trouble getting the child to school on time and had serious boundary issues.  The GAL reported that mother’s conduct made the child fearful of talking about what went on at home.  These represented material changes in circumstances and the judge’s finding that more time with father would promote the child’s best interests was proper.

Judgment affirmed.