Fall 2015: Reported Cases Summaries

Below are the reported cases for July-October. Jordana Kershner (July, Aug, Oct), Elizabeth Silvestri (Sep).  

Neuwirth v. Neuwirth
The defendant, the husband in a divorce action, appealed from an order incorporated into a supplemental judgment of divorce nisi enforcing an attorney’s lien against real property he received in the divorce. The Court of Appeals agreed with the husband and vacated the supplemental divorce judgment so far as it enforced the attorney’s lien. The plaintiff law firm filed motions to enable collection of attorney’s fees, however, the judgment of divorce nisi was entered approximately six weeks later, without the court having granted the motions for an attorney’s lien. Several months after the entry of the judgment of divorce, the plaintiff law firm sought enforcement of an attorney’s lien in the Probate and Family Court, rather than in the Superior Court. M.G.L. c. 221 § 50 states, in relevant part: “From the authorized commencement of an action, counterclaim, or other proceeding in any court . . . the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment, decree or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived there from. Upon the request of the client or of the attorney, the court in which the proceeding is pending, or, if the proceeding is not pending in a court, the superior court may determine and enforce the lien” (emphasis added.) Because the divorce action was no longer pending, the plaintiff law firm should have applied to the Superior Court, and not the Probate and Family Court. The Court of Appeals reasoned that to revive the pendency of the proceedings nun pro tunc for the sole purpose of determining or enforcing an attorney’s lien is an attempt to avoid application of the statute.

Pfannenstiehl v. Pfannenstiehl (and two consolidated cases)
13-P-906, 13-P-686, and 13-P-1385

The main issue in this case concerns the decision of a Probate and Family Court judge to include in the marital estate, and therefore subject to division pursuant to M.G.L. c. 208 § 34, the husband’s interest in a multi-million dollar trust established by his father. The husband appealed from the assignment of $1,333,047 of the trust’s value to the wife.

The relevant facts are as follows. The parties were married in February of 2000 and last lived together in August 2010. They had two minor children, both of whom had special needs. The son, who was eleven at the time of trial, had been diagnosed with dyslexia and ADD and attends a private school that specializes in teaching children with dyslexia. The daughter, who was eight at the time of trial, had been diagnosed with Down syndrome and had significant medical and developmental issues and required “around the clock supervision.” The wife worked one day a week as an ultrasound technician earning approximately $46 per hour. The trial court found that her opportunities were limited considerably by her care of the parties’ daughter.

The husband’s family had substantial means, principally deriving from their operation of for-profit colleges. The husband worked as an assistant bookstore manager for one of those schools, and earned an annual salary of $170,000, which was found at trial to be $110,000 - $120,000 more than what an assistant bookstore manager should expect to earn.

In 2004, the husband’s father established an irrevocable trust. Although the trust had a spendthrift provision, it had made substantial monthly payments to the husband and his two siblings, however, the monthly payments to the husband, and only the husband, ceased the month before he filed for divorce. Between 2008 and 2010, the husband received distributions from the trust totaling $800,000. The trial court found that the family could not have lived their upper middle class lifestyle without the trust income stream, despite the husband’s inflated income, and the trust income was woven into the fabric of the marriage.

The primary asset of the trust are shares of stock in the husband’s family-controlled closely held corporations, which corporations own and operate the for-profit colleges. In their corporate roles, the husband’s brother and father are able to control what dividends are paid to the trust, impacting not only the funding of the trust, but also the trust principal and income available for distributions. The husband’s brother was also one of the two trustees of the trust, the other was ostensibly an outside trustee, but the trial court found that he was “inextricably interconnected with, and aligned with, the husband’s family.” This “outside” trustee exercised little, if any, scrutiny of the trust distributions and even appeared unaware of the level of or timing of the distributions. The trial court found that “as the divorce began, ‘the proverbial family wagons circled the family money.’” The trial court referenced the cessation of the distributions to the husband before the divorce even while the pattern of monthly distributions to his brother and sister continued as well as unusual testimony of the supposedly independent co-trustee.

The trial court found that the value of the marital estate, including the husband’s one-eleventh interest in the trust, was $4,305,380. It awarded the wife 60% of the estate, and the husband 40% of the estate. The trial court found it likely that the husband would receive significant distributions from the trust after the divorce was over. To carry out the division of the estate, the court ordered the husband to make twenty-four monthly payments to the wife in the amount of $48,699.77 each. The husband was also ordered to pay child support of $1,100 per week, an amount to which the parties had stipulated, but he was not ordered to pay any alimony to the wife. The trial court further ordered the husband to contribute $175,000 towards the wife’s attorney’s fees. This award was upheld by the Supreme Judicial Court because it was largely incurred due to husband’s failure to obtain information regarding his interest in the trust, committed discovery violations, and took a scorched earth approach to litigation.

The Supreme Judicial Court concluded that the spendthrift provision in the trust was being invoked by the husband as a subterfuge to mask his stream of income and thwart the division of the marital estate: the “spendthrift scheme [] is virtually empty of purpose except as a form of insulation to inclusion and valuation in the divorce process.” The Supreme Judicial Court held that, under relevant case law, the husband’s income stream from the trust was not too remote nor purely speculative and he had a present enforceable right to distributions from the trust. There was an ascertainable standard pursuant to which the trustees were obligated to (and did) distribute trust assets to the beneficiaries, including the husband, for comfortable support, health, maintenance, welfare, and education. The Supreme Judicial Court compared those aspects of the trust in this case to a wholly discretionary trust, with no distribution standards regarding support, health, maintenance, welfare, or education. The Supreme Judicial Court rejected the husband’s argument that simply because the pool of beneficiaries was technically not closed, and could expand in the future, that that rendered the trust not subject to valuation and division.

Another component of this case on appeal to the Supreme Judicial Court was wife’s complaint for contempt alleging that the husband had failed to comply with the judgment of divorce because he had stopped making the monthly payments of $48,699.77. The husband made five such payments, but claimed he was only able to do so due to loans he had been receiving from his father, and stopped making payments when his father stopped lending him money. After the husband’s father indicated he would no longer be making loan payments to him, the husband made a written request to the two trustees to make distributions to him so that he could comply with the judgment. The trustees declined. The trial court found the husband guilty of contempt for failing to pay the wife the monthly sums required by the judgment. Although it acknowledged that “one might be disposed to question the genuineness of all these machinations given the bias of the two trustees and the husband's father,” the Supreme Judicial Court still held that it was not proved by clear and convincing evidence that the husband had willfully and intentionally violated a clear and unequivocal order, which the standard for a finding of contempt and therefore vacated the contempt judgment.

C.E. v. J.E.

Wife appealed from a judgment that denied her petition for relief in the form of a stay pending her appeal from a judgment of divorce nisi. At trial, wife alleged that husband sexually abused one of their two minor children. The judge found that the alleged abuse had not been proven by a preponderance of the evidence and issued a judgment of divorce nisi, granting husband unsupervised parenting time with the children. Wife moved for a stay pending appeal, which was unsuccessful. Wife appealed.

The Massachusetts Supreme Judicial Court found that wife did not exercise all available remedies in the ordinary review process, such as seeking an expedited appeal before the Appeals Court. The Court also found that a stay was not warranted because wife did not demonstrate a likelihood of success on the merits of her appeal from the underlying divorce judgment. Additionally, wife did not show that the judge erred or abused her discretion in ruling certain statements were inadmissible hearsay. Furthermore, the Court stated that there was an ample amount of other evidence to support the judge’s determination on the abuse allegations.

Judgment affirmed.

Uzoma v. Okereke

Wife filed a complaint for annulment and a motion for service of the complaint by publication. A judge allowed the motion, endorsing it by noting that service was waived, and entered a judgment of annulment. The record did not reflect the basis upon which the judge waived the service requirement. Husband learned of annulment two years later and filed a motion to vacate the judgment the following year. A judge denied the motion.

The Massachusetts Appeals Court found that the judgment was void because service was inadequate to provide notice as required by due process. Wife argued that because of the delay between when husband received actual notice and sought to vacate the judgment, he waived his entitlement to vacate under Rule 60(b)(4). The Court disagreed, stating the time limits did not apply to void judgments.

Order Reversed.

Adoption of Eden
Father appealed from a decree terminating his parental rights. The judge documented specific instances of father’s behavior indicating the need to terminate his parental rights. These instances included leaving the oldest child alone, who was five years old, to babysit her one year old sister, who had sickle cell anemia. After the Department of Children and Families (“DCF”) obtained custody of the children, visits with father were often cut short by argument. Father and mother also hit each other in front of a department caseworker. Furthermore, the judge found that father and mother did not pay attention to the medical needs of their children.

The judge’s initial decision was ambiguous regarding the extent to which the judge relied on allegations of sexual abuse by father. In 2011, the oldest daughter was taken to the hospital after she complained of pain, at which time the daughter told the emergency medical services worker that her home was not safe because her father had knives and harmed people. She later said that her father sexually assaulted her and that her parents told her to lie about the abuse because mother could not afford to have father sent to jail. The daughter eventually recanted her statements. The judge did not make a finding with respect to the allegations.

Because parental rights cannot be terminated based on an unproven allegation, the Massachusetts Appeals Court had remanded the case to the trial judge for clarification of the basis of his determination to terminate father’s parental rights. The judge then stated in his supplemental findings of fact and conclusions of law that he placed substantial weight on the inappropriate way father handled the allegations against him, rather than the merits of the allegations themselves. In addition, he highlighted father’s overall lack of cooperation and care for his children. Based on the judge’s clarification, the Appeals Court affirmed the judge’s decision to terminate father’s parental rights.

Decrees affirmed.

Schechter v. Schechter

Father appealed a judgment of divorce nisi and an abuse prevention order. The judgment awarded sole legal and physical custody of the child to mother. Father appealed contesting the custody determination and the validity of the judgment provision suspending his visitation rights for a year along with a c. 209A order precluding contact between him and the child as well as the judgment’s removal provision allowing mother to remove the child from Massachusetts. Father also contested the judge’s determination that the prenuptial agreement was not valid and the judge’s award of attorney’s fees to mother.

Father and mother’s relationship was plagued with emotional and physical abuse as well as economic abuse by father against mother. Father’s family never approved of mother and requested that the couple execute a prenuptial agreement prior to marriage, which they did. Father worked in real estate and mother became a dentist. They eventually separated and mother sought a divorce in 2009. She also sought and was granted a c. 209A order, citing multiple instances of threats by father including one where he threatened to chop her up with an axe. A guardian ad litem was assigned and stated in his report that father was dominating of both mother and child, while it was mother who acted in the best interests of the child. Therefore, the judge awarded custody of the child to mother.
Father alleged that the judge misapplied the best interest of the child standard but the Massachusetts Appeals Court disagreed, citing judge’s reliance on father’s abusive behavior and the GAL’s report. The Court also affirmed the judge’s decision to preclude communication between father and child based on father’s domineering conduct towards child and mother and his abuse of mother in front of the child. In regard to the removal provision, the Appeals Court vacated the provision because it was not shown that the removal would be a real advantage and ultimately in the best interests of the child.
The Appeals Court affirmed the judge’s determination that the prenuptial agreement was not valid because mother was pressured to sign it days before the wedding while seven months pregnant thereby making it unfair and unreasonable. Additionally, there was a lack of disclosure on the part of father. As for the award of attorney’s fees, the Appeals Court affirmed the award because the judge made specific findings that father intentionally complicated mother’s efforts to discover facts and increased amount of work of her attorney.
Divorce Judgment Affirmed except for Removal Provision, which is vacated.

Custody of Victoria
Decided Oct. 21, 2015
The Court of Appeals concluded, on a question reported to the Court of Appeals by a Probate and Family Court Judge, that a Massachusetts Probate and Family Court may have child custody jurisdiction under G. L. c. 209B of a minor child who has been granted refugee status by a Federal agency, has resided in another state for more than six months, but has been placed with a Massachusetts agency, in Massachusetts, for less than six months. The Court found, under the facts of this case, that Massachusetts did have authority over the child.