Winter 2016: 1.28 Decisions

By  Laurel Spallone, Ethan Rittershaus, and Emily Nowlin

Adoption of Valerio

15-P-72 (November 3, 2015)

Mother appealed from a Juvenile Court decree adjudicating Valerio in need of care and protection and dispensing with the need for mother’s consent to his adoption.  The judge found that mother was unfit based on numerous factors, including a pattern of unstable housing, pending criminal charges that jeopardized her housing, ongoing issues of domestic violence, failure to engage in recommended domestic violence classes, and untreated mental illness and cognitive impairments that hindered her ability to address the child’s special needs.  The Massachusetts Appeals Court found no error in the judge’s determination of parental unfitness. 

As part of her appeal, mother raised two evidentiary issues: (1) admission of the Department of Children and Family Services (“DCF”) affidavit that accompanied the care and protection petition; and (2) the admission of testimony by a DCF supervisor as to her memory of notes dictated by a social worker under her supervision.  In finding that any error committed in the admission of that evidence was not prejudicial, the Appeals Court noted that the DCF affidavit and testimony from the DCF supervisor were not essential to the judge’s decision and were of little significance.  Stripped of those findings, there was more than enough evidence to support the judge’s decision.  

Decree affirmed. 

Lupoli v. Zografos

14-P-1450 (November 3, 2015)

Father appealed from a Probate and Family Court judgment denying his request to decrease his child support obligation.  In support of his request, father claimed that he had reduced his employment hours (and therefore his income) to spend more time with his children.  Additionally, father argued that his support obligation towards a new child constituted a material and substantial change in circumstances warranting a reduction of child support.  The Massachusetts Appeals Court found no error in the judge’s decision. 

Evidence at trial showed that father had the ability to manipulate his income through employment in his family business and he received in-kind benefits, such as paid medical insurance, a company vehicle and gasoline that substantially increased the value of his employment package.  Moreover, father acknowledged at trial that he failed to report certain significant cash payments on his financial statement, that he held an interest in a family business that he previously testified he held no interest in, that he reported paying property taxes on the home where he resides even though father testified at trial that he rented the property from his mother, but father’s brother reported to the Guardian ad Litem that father owned the home.  Father’s inconsistent testimony at trial, combined with errors in his financial statement, allowed the judge to properly conclude that father misrepresented his financial status.

Father’s argument that his obligation to support his new child did constitute grounds to reduce his current child support was properly rejected.  Finally, father’s argument that the judge’s verbatim adoption of several of mother’s proposed findings of fact, including some proposed findings that were not supported by the record failed.  Although the judge adopted some of mother’s proposed findings of fact verbatim, the judge also reworked some findings, excluded others, and made credibility findings that were fully supported by the record.  

Decree affirmed.

Jankovich v. Jankovich

14-P-1703 (November 5, 2015)

Mother appealed from a Probate and Family Court judgment because it failed to include a provision prohibiting the parties’ children from being in the presence of a former au pair who is involved in a relationship with father.  The Massachusetts Appeals Court found no error in the judge’s decision. 

The parties separated in December, 2012 after father left the marital home while the children were sleeping and did not return.  At trial, father refused to testify about his ongoing relationship with the live-in au pair the parties hired in 2010. The judge properly inferred that father had been involved in a long term relationship with the au pair that began prior to the parties’ separation.  The parties agreed that their children were unaware of father’s relationship with the au pair, and did not know that this relationship was the cause of the parties’ separation.   At trial, mother credibly testified that the parties’ children had adverse reactions to the separation of their parents, including bedwetting, outbursts, and sleeping in mother’s bed.  Mother did not offer any evidence at trial that the au pair had ever done anything improper in interacting with the children, nor did she offer any evidence that the children being in the presence of the au pair would exacerbate their behaviors.  The judge properly declined to conclude that the au pair was responsible for the children’s issues. 

In upholding the judge’s decision, the Appeals Court noted that mother sought moral condemnation of the father’s lifestyle.  The Appeals Court rejected mother’s assertion that the judge’s refusal to forbid contact with the au pair interfered with mother’s right to participate in the children’s education or imparted to them religious and moral values. 

Judgment affirmed. 

Adoption of Wright

(and a companion case, Adoption of Amy)

14-P-1957 (November 5, 2015)

Father appealed from Juvenile Court decrees terminating his parental rights.   Father further appealed from an order of a single justice of the Appeals Court denying his motion to stay the appeal and for leave to return to the trial court to file a motion for new trial on the grounds that he obtained new employment that permitted him to be home more frequently and his new wife had only one bout of complications due to fibromyalgia in the eighteen months following trial.  Father’s children and the Department of Children and Families (Massachusetts DCF) opposed father’s motion.  The Massachusetts Appeals Court affirmed the decrees and affirmed the order of the single justice.

Father’s children were born in 2008 and 2009.  In early childhood, father, mother and the children lived in Connecticut.  Father was employed with the military and, as a result, the children spent long periods of time with their mother, who struggled with mental illness and substance abuse.  In 2009, the Connecticut Department of Children and Families (Connecticut DCF) became involved with the family after an allegation of abuse against father by his stepson was supported.  Father participated in services in Connecticut but problems persisted.  Thereafter, the Connecticut DCF supported another allegation of abuse of the same stepson by father.  After moving to Massachusetts, Massachusetts DCF issued a service plan, without assessing father, that father did not complete.  Father and mother divorced.  Father then moved to Texas where he was residing with his new wife, who suffered from fibromyalgia and home-schooled her children. 

The trial judge properly concluded that the environment in Texas would present a risk to the children.  DCF’s failure to assess father prior to issuing a service plan was properly given little weight by the trial judge in light of father’s history.  Finally, it was not an abuse of discretion for the single justice to deny father’s motion for new trial where the developments raised by him in support of the motion did not constitute extraordinary circumstance that would merit reopening proceedings and delaying permanency for the children.

Decrees affirmed. 

Order of the single justice denying motion to stay appeal and for leave to file motion for new trial affirmed.       

Adoption of Frederica

15-P-465 (November 5, 2015)

Mother appealed from a decree in the Juvenile Court terminating her parental rights to Frederica and committing the child to the permanent custody of the Department of Children and Families (DCF).  On appeal, mother argued that termination of her parental rights were not supported by the evidence, DCF failed to provide mother with housing assistance, and the judge abused his discretion in not awarding mother post-adoption visits. The Massachusetts Appeals Court affirmed the decision. 

In April, 2012, mother hurriedly left Frederica, an infant, in the home of the child’s paternal grandmother without food, clothing or supplies and went to court.  Mother was sentenced to six months in jail at the hearing and Frederica was removed from her grandmother’s home and placed in foster care. 

At the time of trial, mother was homeless and staying with friends.  Her challenge of the trial judge’s findings was based on a selective use of trial evidence and general disagreement with the judge.  Mother maintains that DCF sabotaged her relationship with Frederica by failing to provide her with housing assistance after incarceration and placing Frederica in a distant pre-adoptive home.  There was no merit to this assertion, as mother failed to follow-through with potential sources of help, and mother’s visits with Frederica had a negative effect on the child.  Moreover, mother failed to properly raise the issue of inadequate assistance from DCF in the lower court, so this argument was not considered by the Appeals Court.  Finally, mother failed to present sufficient evidence at trial to support a finding that post-adoption visitation would be in the best interests of Frederica. 

Decree affirmed. 

Brunelle v. Clough

15-P-67 (November 6, 2015) 

Mother appealed modification judgment establishing a child support award of $81,120 for the year 2011 based on the grounds that: (1) the judge erred when she failed to include all of father’s income when calculating his child support obligation; and (2) the judge erred in concluding that the capital gain received by father from the sale of his home was an asset and not income from which to pay child support.  The Massachusetts Appeals Court affirmed the judgment.

The parties entered into a separation agreement in 2009 that stated: “if Father earns greater than $100,000 in any given calendar year, the parties shall recalculate the child support payment in accordance with the child support guidelines, applicable retroactively to January 1 of the subsequent year.”  In 2011, father’s income totaled $568,071, consisting, in part, of $226,181 in capital gain from the sale of a home purchased with his share of the marital assets.  In calculating child support, the trial judge properly excluded father’s capital gain from his income, resulting in a child support award of $81,120 for the year 2011 based on an income of $341,890.  In upholding the trial judge’s decision, the Appeals Court noted that the child support guidelines direct the court to use an income of $250,000 as a minimum threshold, with an upward adjustment based on the court’s discretion.  This award satisfied the minimum presumptive award under the child support guidelines and was adjusted upwards based on the judge’s discretion.

Judgment affirmed. 

Nicoletti v. Bolduc

14-P-1125 (November 6, 2015) 

Mother appealed a Probate and Family Court judgment of modification where the judge awarded sole legal and physical custody of the parties’ daughter to father.  Mother appealed on the grounds that: (1) the judge ordered entry of the modification judgment 459 days after the last day of trial, and issued her findings 331 days thereafter, in violation of Standing Order 1-06; (2) the delay violated her due process rights; and (3) the custody determination was not supported by the evidence.  The Massachusetts Appeals Court affirmed the judgment.

Although Standing Order 1-06 provides that any judgment “shall be issued” within ninety days of the conclusion of trial, it is an aspirational goal and not a source of vested rights.  Fatal to mother’s claim of due process violation, she failed to show evidence at trial that she was in fact injured by this delay and did not take any steps, such as an informal inquiry or action for mandamus, to arrest delay.  Finally, the judge’s findings concerning mother’s unbridled animus towards father, the impact of this attitude on the child and the need to remove the child from this conflict supported the custody modification. 

Judgment affirmed. 

Fiore v. DeRuosi

14-P-1736 (November 6, 2015)

Mother (“Fiore”) appealed Probate and Family Court modification judgment and two contempt judgments against her.  The basis of Fiore’s appeal regarding the modification judgment was that there was not a substantial change in circumstances to warrant modification and the Probate and Family Court judge failed to consider the child’s best interests.  With respect to the contempt judgments, Fiore argued that because she did not physically prevent the parties’ child from visiting or speaking with DeRousi, she could not be found in contempt.  The Massachusetts Appeals Court affirmed all three judgments.  

In 2013, allegations against DeRousi for emotional maltreatment of the child were supported by the Department of Children and Family Services.  Thereafter, between the period of July, 2013 and February, 2014, aside from a few reunification therapy sessions, DeRousi was deprived of parenting time with the parties’ child.  The trial judge concluded that this estrangement occurred as a result of Fiore engaging in a pattern of alienation, repeatedly and consistently failing to co-parent with DeRousi, marginalizing DeRousi’s role as a parent and exposing the child to negative communications regarding DeRousi.  This conduct led the trial court to properly conclude that Fiore’s conduct, and not the incident of 2013, was the primary cause of the strain in the relationship between DeRuosi and the parties’ child.  This determination was based on ample factual support.  The judge’s reliance on the report of the Guardian ad Litem (GAL) was not an error, as the report was admissible pursuant to G. L. c. 215, §56A, Fiore had the opportunity to cross examine the GAL and rebut any negative evidence and the judge independently considered the facts of the case and reached her own conclusions. 

The judge properly found Fiore in contempt for failing to ensure that the child answered his phone to speak with DeRousi on numerous occasions and for refusing to allow DeRuosi to exercise parenting time on three dates.  Fiore’s argument that she did not physically prevent the phone communications or visitation failed because the underlying order imposed an affirmative obligation on her to ensure the child answered his phone and an affirmative obligation to facilitate parenting time. 

Judgments affirmed. 

Rivera Recinos v. Recinos Escobar

SJC-11986 (November 9, 2015)

Probate and Family Court judgment dismissing plaintiff’s complaint on grounds of lack of jurisdiction is reversed.  Probate and Family Court shall conduct proceedings forthwith on plaintiff’s complaint expeditiously so that if the requested findings are made, plaintiff will have an opportunity to apply to the Federal authorities for special immigrant juvenile status before her 21st birthday on December 5, 2015. 

Order served as rescript opinion for the purposes of Mass. R.A.P. 1 (c) and issued to lower court. 

Adoption of Esmeralda

(and a companion case, Adoption of Fiona)

14-P-1887 (November 10, 2015) 

Mother and children appealed decrees terminating mother’s parental rights of children, Esmeralda and Fiona on the grounds that termination was unnecessary where the children’s approved plan from the Department of Children and Family Services (DCF) provided the children’s paternal grandmother with guardianship and that there was no evidence presented at trial that mother would engage in litigation or interfere with the future of her children.  Massachusetts Appeals Court upheld the decrees.

The trial judge made the following findings of fact:  Mother has a history of mental illness, failing to take her medications, and exposed Fiona to domestic violence on numerous occasions.  Mother failed to comply with her DCF service plan and engage in services with the family intervention team.  Mother was not consistent with visiting the children, had not seen the children for a two month period of time prior to trial and did not appear at trial to testify on her own behalf.  Fiona was significantly underweight while in mother’s custody and mother failed to follow through with her medical needs and appointments with nutritionists.  The children have developed a strong relationship with their paternal grandmother, who has ensured that their medical care is up-to-date, that they attend daycare and visit with their maternal grandmother and brother regularly. 

Mother’s argument that the termination of her parental rights was not necessary for the guardianship was properly rejected by the judge, who found that termination of mother’s rights would provide the children with permanency and stability in a home where they are thriving.  The judge further found that if a guardianship entered instead of termination of mother’s parental rights, mother could still disrupt the stability of the children and that she could interfere with the stable placement by forcing DCF to review termination proceedings in the future, and by seeking review and redetermination at a later date. 

Decrees affirmed. 

Rajguru v. Rajguru

14-P-1553 (November 16, 2015)

Defendant appealed issuance of a one-year extension of a temporary abuse prevention order based on the grounds that the order was extended based upon evidence that supported issuance of an earlier abuse prevention order and plaintiff failed to provide sufficient evidence to support a new finding of abuse.  The Massachusetts Appeals Court concluded that the extension was not an abuse of discretion and affirmed the decision.

Plaintiff was granted abuse prevention order against defendant based upon two assaults.  Defendant subsequently violated the abuse prevention order.  He tendered a plea on two counts of assault and one count of violating a restraining order.  As a condition of defendant’s probation, he was required to stay away from plaintiff and the parties agreed to vacate the abuse prevention order.  One day before the conditions of defendant’s probation expired, plaintiff obtained a new abuse prevention order based upon the previous assaults.  Due to the history of domestic violence, the trial judge reasonably concluded that there was a continued need for the order to protect plaintiff from the violence already inflicted upon her. 

Order affirmed.

Goodwin v. Goodwin

14-P-1568 (November 17, 2015)

Father appealed from a Probate and Family Court judgment dismissing his complaint for modification to increase child support with prejudice.  As grounds for his appeal, father argued that the trial judge incorrectly applied the “material change in circumstance standard” when dismissing his complaint for modification, when the judge should have applied the standard set forth in G. L. c. 208, § 28 and Morales v. Morales, 464 Mass. 507 (2013).  Namely, that modification is presumptively required when there is an inconsistency between the existing child support order and the Massachusetts Child Support Guidelines (Guidelines).  The Massachusetts Appeals Court ordered that the judgment of dismissal be vacated and remanded the matter to the Probate and Family Court for further proceedings.

In 2013, the parties entered into an agreement for judgment on father’s complaint for modification whereby father was to have primary physical custody of the parties’ minor children and mother was to pay $100.00 per month as child support, without any additional financial contributions for the children.  The child support award deviated from an award of child support that would have been calculated pursuant to the Guidelines.  In approving the agreement, the trial judge did not make any specific written findings of fact to support the deviation nor did the parties request that the court do so. 

Seven months later, father filed a second complaint for modification, seeking an increase in child support.  As grounds for his request, father alleged that he could not afford the cost of the children’s extracurricular activities without contribution from mother, and that the existing child support order was inconsistent with an award that would result after application of the Guidelines.  Mother filed an answer asserting the affirmative defense that father failed to state a claim upon which relief may be granted.  Mother moved to dismiss father’s complaint for modification, arguing that at the time of the 2013 agreement, application of the Guidelines would result in an award of $175.00 per week, but the parties negotiated that award downward, and further argued no material change of circumstance had occurred since entry of judgment.  The trial court dismissed father’s complaint with prejudice and did not enter any findings.

On Appeal, father’s position remained unchanged, that he was presumptively entitled to modification because there was an inconsistency between the existing $100.00 per week order and the Guidelines.  Mother argued that, in addition to the inconsistency, father was required to show a material change of circumstance, otherwise father would be allowed to renege on his agreement.  The Appeals Court concluded that the trial judge erred in dismissing father’s complaint for modification at this stage of the proceedings.  As grounds, the Appeals Court noted the lack of judicial determination that the deviation from the presumptive Guidelines award in 2013 was in the children’s best interests and there is nothing in the language of G. L. c. 208, § 28 that would preclude the trial judge from considering father’s complaint even absent a change of circumstance.  Even if there was a formal rebuttal of the Guidelines in 2013, citing G. L. c. 208, § 28 and the Guidelines, the Appeals Court noted that upon a request for modification of a deviated award, that award should be modified consistent with the Guidelines unless the court finds that application of the Guidelines would be unjust or inappropriate under the circumstances and that the existing order is consistent with the best interests of the children. 

Judgment of dismissal vacated and matter remanded to Probate and Family Court for further proceedings. 

Adoption of Hedda

(and a companion case, Adoption of Ruth)

15-P-5 (November 18, 2015)

Mother appealed decrees entered by Juvenile Court adjudicating her an unfit parent of Hedda and Ruth, terminating her parental rights and approving the Department of Children and Families (DCF) plan for adoption of both children by their maternal aunt.  Mother appeals the decrees arguing that: (1) she was prejudiced by a seventeen-month delay from conclusion of trial to issuance of written findings; (2) the trial judge failed to address favorable evidence regarding her parenting; (3) the judge’s finding that mother has mental health issues was unsupported by the evidence; (4) the judge improperly found a correlation between a perceived mental health issue and mother’s inability to parent her children; (5) the children’s best interests are served by a guardianship rather than termination of parental rights; and (6) the judge’s failure to order postadoption visits between mother and children.  The Massachusetts Appeals Court affirmed the decrees.

Mother’s claim of prejudice from the delay of the issuance of the findings was not prejudicial because the judge ruled on mother’s unfitness from the bench at the conclusion of trial and ordered mother, DCF and maternal aunt to mediate whether guardianship rather than an adoption was in the best interests of the children.  After mediation was unsuccessful, the judge issued his findings of fact and conclusions of law a year later, then reissued replicated findings after a disposition hearing.  Mother’s argument that the trial judge did not consider favorable evidence regarding her parenting was not supported by the record.  The record supported the judge’s findings related to mother’s mental health issues even though the judge’s findings were based on statements made by medical professionals that were repeated in DCF’s investigatory report because mother had an opportunity to rebut the report and cross examine the investigator.  Evidence at trial related to episodes concerning mother’s mental health, combined with mother’s failure to recognize and treat her mental health issues supported the judge’s finding of a correlation between mother’s mental health issues and parental unfitness.  In the absence of an agreement for guardianship, there was no error in terminating mother’s parental rights.  Finally, although the judge did not order postadoption visits, he left visitation to the discretion of the adoptive parent, who expressed a willingness to allow supervised visitation between the children and mother. 

Decrees affirmed. 

Norris v. Norris

15-P-146 (November 25, 2015)

Wife appealed modification judgment of Probate and Family Court terminating husband’s obligation to pay alimony.  As grounds for her appeal, Wife argued that: (1) the trial judge erred when he retroactively applied the retirement provisions of the Alimony Reform Act to husband’s complaint for modification; and (2) the judge erroneously placed the burden upon her at trial to prove by clear and convincing evidence good cause to grant an extension of husband’s alimony rather than requiring husband to prove a material change in circumstance before terminating his alimony obligation.  The Massachusetts Appeals Court affirmed the judgment. 

The parties were married in 1965 and divorced in 1987.  Pursuant to the terms of the divorce judgment, husband was required to pay wife $486.00 per week as alimony until the death of either party or wife’s remarriage, and to maintain his current medical and life insurance for wife’s benefit.  In 2008, Husband’s alimony obligation was reduced to $200.00 per week and he was required to contribute $60.50 per week for the cost of wife’s medical insurance. 

In May, 2013, Husband filed a complaint for modification seeking to terminate his alimony obligation pursuant to G. L. c. 208, § 49(f) on the grounds that he had reached full retirement age as of 2008.  Wife filed an answer and counterclaim arguing that section 49(f) did not apply retroactively and requested that the court “make a traditional weighing” of husband’s ability to pay alimony in comparison to wife’s need.  Wife’s counterclaim requested an amount of alimony commensurate with her needs and husband’s ability to pay.  After trial, the judge concluded that husband’s alimony obligation should terminate pursuant to G. L. c. 208, §49(f) and that wife failed to show good cause to extend the award.  Pursuant to wife’s request, the judge also determined that husband had presented sufficient evidence to warrant modification of his alimony obligation.

On Appeal, the parties conceded that G. L. c. 208, § 49(f) does not apply retroactively.  Wife’s argument that the trial judge erroneously placed the burden on her to prove that the alimony award should be extended was correct.  However, this standard did not impact the judge’s alternative analysis terminating alimony on the grounds that husband’s income had decreased, he owned minimal assets, his liabilities had increased and he suffered medical problems.  The judge also found that wife suffered medical problems, but, contrast to husband, wife held substantial assets, had zero liabilities and could cover most of her expenses.

Judgment affirmed.   

Adoption of Gilda

(and a companion case, Adoption of Charlotte)

15-P-35 (November 20, 2015)

Mother appealed decrees of the Juvenile Court finding her unfit to parent Gilda and Charlotte, and terminating her parental rights.  As grounds for her appeal, mother argued that the trial judge improperly shifted the burden of proof to her.  Mother also challenged the judge’s decision declining to award post-adoption visitation.  The Massachusetts Appeals Court affirmed the decrees of the Juvenile Court. 

Mother did not dispute the evidentiary basis for the trial judge’s detailed findings of fact.  Namely, that Gilda was sexually and physically abused by Charlotte’s father, that Charlotte was physically abused by her father, that mother told Gilda to lie about the abuse, that mother repeatedly denied the abuse perpetrated by Charlotte’s father and repeatedly invited Charlotte’s father back into her home while lying to social workers about the same.  Charlotte has no bond with her mother and Gilda continues to receive treatment to ready her for adoption. 

On appeal, mother argued that since the children’s most recent removal from her home, she had not permitted Charlotte’s father to return to her home and the judge improperly shifted the burden to her to prove that Charlotte’s father was out of her home and her life.  The judge properly found mother was not credible on the subject of her relationship with Charlotte’s father and continues to maintain contact with him.  As a result of the overwhelming evidence of the damage to Gilda as a result of mother’s inability to separate herself from Charlotte’s father and Charlotte’s lack of any bond with mother, the trial judge properly found that the Department of Children and Families satisfied its burden at trial.  The judge’s decision to leave the question of postadoption contact with the judgment of any adoptive parents was not an abuse of discretion.

Decrees affirmed. 

Adoption of Xeno

14-P-1901 (November 23, 2015)

Father appealed Juvenile Court decree terminating his parental rights with respect to Xeno and limiting his post-termination contact with Xeno to one supervised visit per year.  Xeno was born in 2007 and has been diagnosed with Lowes Syndrome, causing the child to be severely disabled and requiring constant care, including but not limited to a feeding tube, seven medications on a daily basis and treatment from twelve physicians on a regular basis.  As a result, Xeno requires a caregiver who has a high level of skill, education and information regarding Xeno’s complex care, and also a caregiver who will cooperate with medical professionals and coordinate with them for all of Xeno’s medical needs.  Father is a veteran of the United States Navy and has been diagnosed with a mild case of affective disorder that has caused multiple psychiatric hospitalizations. 

The Department of Children and Families (“DCF”) first became involved with Xeno in 2009 after receiving several reports of neglect of the child by his parents.  DCF assumed custody of the child and he was placed in a preadoptive foster home where he has resided for the past 5 years.  After removal, father consistently visited with the child and received training with the child’s care.  Notwithstanding that training, father demonstrated a complete inability to feed, medicate and care for Xeno.  Father repeatedly demonstrated an inability to comprehend Xenos’s many medical, physical and social limitations. father’s demeanor and temperament with DCF employees, care providers and school personnel was found to be deplorable.  As a result, the trial judge’s conclusion that father was unfit to care for Xeno was not erroneous.  The judge’s order allowing for one supervised visit per year was not an abuse of discretion where Xeno had formed a strong bond with his preadoptive family, there was no evidence of a bond with father, though father genuinely loves Xeno and Xeno’s foster mother supports continued communication with father.

Decree affirmed. 

Adoption of Yousef

15-P-178

Decision Entered Dec 1, 2015

 

Father appealed from decrees entered by a Juvenile Court judge terminating his parental rights. Father further argued on appeal that the Department of Children and Families did not make reasonable efforts at reunification by failing to develop an adequate service plan. Additionally, father argued that the termination of his parental rights was not in the child’s best interest and the judge had erred in declining to order post-adoption visitation.

The Appeals Court first turned to the termination of Father’s parental rights. Relying on Adoption of Nancy, 443 Mass. 512, 515 ( 2005), the Court noted that termination is a two-step analysis: (1) the Judge must find that the parent is currently unfit; (2) the judge must find that it would be in the child’s best interest to end all legal relations between the parent and the child. In making these findings, the trial judge must make specific findings demonstrating that close attention has been given to the proffered evidence. Adoption of Gregory, 434 Mass, 117 (2001). If these findings are supported by a preponderance of the evidence, they will only be disturbed on Appeal for clear error.

Father’s argued that the trial court judge improperly relied on facts from 2008 to demonstrate his current unfitness and that the judge must focus on the present rather than past circumstances. Adoption of Paula, 420 Mass. 716, 731 (1995).While father had correctly cited precedent, he had also stipulated to his unfitness in 2011. The judge’s findings of fact clearly and convincingly established that minimal progress had been made in overcoming his admitted unfitness. Among his subsidiary findings, the judge found that father was volatile and unable to control his temper, father may have undiagnosed mental health needs, father was unable to maintain a stable household, and the father did not engage productively with the children during visits.

After examining the first subsidiary element of a determination of unfitness, the Appeals Court examined whether it would be in the children’s best interest to continue to have a relationship with father. The children have not resided with the father since 2008, and the father has seen the children only four times since May 2012. The judge found that the children are flourishing with their preadoptive grandparents and that both children had stated that they do not want to live with or visit their father.

The Appeals Court next turned to Father’s second argument: that DCF had failed to establish a service plan that would allow him to reestablish a relationship with the children. However, the Court disagreed with father’s assertion: DCF had prepared and amended several service plans, referring father to batters intervention programs, and counseling. The Judge found that absence, instability, and repeated failure to complete the tasks of his service plan compromised DCF’s reasonable efforts to aid him. 

Finally, the Appeals Court turned to father contention that the judge had erred in declining to order post adoption visitation. However, the judge had found that the children did not want to visit with father and that recent visits had had negative outcomes. The lower court decrees were affirmed.

Adoption of Ina

15-P-270

Entered Dec 2, 2015

Father appealed from the judgement of a Juvenile Court judge who found the father unfit, terminated his parental rights, and approved the adoption plan of the Department of Children and Families. Father argued on appeal that DCF failed to prove his present unfitness by clear and convincing evidence, trial counsel provided ineffective assistance, and the single justice abused her discretion in denying a motion for a stay and permission to file a motion for a new trial.

Father had two children who were the subject of the termination proceeding: Ina, born in 2005, and Michael, born in 2010. The parents separated in September of 2012 and mother moved to Massachusetts with the two children. DCF was then contacted by a relative who was concerned about mother’s plans to return to Florida to reunite with Father. Upon a SAIN investigation, Ina disclosed that both parents were perpetrators of domestic violence, the father abused alcohol, the mother abused drugs and alcohol, and father had sexually assaulted her on numerous occasions.

The Appeals Court first analyzed the termination of Father’s parental rights: “To terminate parent rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child’s best interest.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). In the instant case, the judge issued comprehensive findings of fact including father’s length history of domestic violence, his abuse and neglect of both children. This finding was supported by the unchallenged evidence of sexual abuse and neglect and a household fraught with violence. 

The Appeals Court next turned to father’s ineffective assistance of counsel claim. Prior to the trial, a hearing was conducted under G. L. c. 233 sec. 82 concerning the admissibility of Ina’s statements concerning her sexual abuse. The Appeals Court applied the standard contained in Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974): whether there has been serious incompetency, inefficiency, or inattention of counsel; and if so, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense. In the instant case, Father did not show that trial counsel’s performance was deficient: counsel registered numerous objections, filed motions, hired and presented an expert witness, and vigorously cross examined DCFs witnesses. Finally, the Appeals Court found that in light of the overwhelming evidence of abuse and neglect it was implausible that Father would have otherwise prevailed.

Finally, father challenged the single justice’s denial of his motion for stay and request for permission to file a motion for a new trial pursuant to rule 60(b)(6). The Appeals Court noted that relief under the “catchall provision [60(b)(6)]” is only to be awarded in extraordinary situations. Sahin v. Sahin, 435 Mass. 396, 406 (2001). Given the facts of the case, the single justice did not abuse her discretion in denying the motion. All Decrees were affirmed, as was the order denying the motion for new trial.

John Pimentel v. Katherine A. Soal

14-P-1069

Plaintiff father appealed from a judgement of dismissal by a judge of the Probate and Family Court on his third complaint for modification of child support.  Father argued that the judgement of divorce must be reversed because he is not the father of the children. However, at the initial divorce trial, the plaintiff admitted to paternity, and had since conceded that he was aware during the marriage that the children were the result of an artificial pregnancy by an unknown donor.     

The Appeals Court first turned to G.L c. 208, s. 28, which requires a showing of a material and substantial change in circumstances to permit modification. Schuler v Schuler, 382 Mass. 366 (1981). Because there was no change in circumstances the judgement for dismissal on the modification was affirmed.

Frederick S. Kimberk vs. Dorata J. Wysocka

14-P-1569

December 8, 2015

Husband appealed from the denial of his motion for a new trial and an order that the trial judge issued to clarify the judgment. The case had originally come forward after husband had unsuccessfully sought to repudiate a divorce agreement. The Husband had filed for divorce after a 13 year marriage. The principal dispute was over the division of assets which included real estate. During the course of a 5 day trial, the parties reached a settlement. This settlement was set forth in a “Memorandum of Understanding. (“MOU”).” While the MOU was principally drafted by wife’s counsel, both parties signed the memorandum and reported their settlement to the judge. Wife’s counsel also explained the contents of the MOU to the judge without contradiction.

In principal, the MOU set forth the essential terms for how the properties were to be divided, and what remained was the supplementation of certain ministerial details (for example, the mortgage values of the properties). While the MOU contemplated that the parties would execute a final more formal agreement, it also expressly stated that if the parties were unable to execute such an agreement within 14 days, the MOU would become an order of the court. The judge conducted a colloquy of the reported settlement and both parties agreed on record. The judge then entered a finding that the agreement was fair and reasonable and free from fraud or duress.

Two weeks later the wife requested a hearing at which she reported that the husband was not cooperating. Wife then supplied a proposed judgement on the memorandum of understanding. Based on Husband’s refusal to cooperate, the judge accepted the wife’s proposed judgment.

The Appeals court first concluded that they saw no abuse of discretion or other error by the judge in holding the husband to his agreement. [the parties are bound to an agreement if] a judge] “determines that the agreement was free of fraud and coercion and fair and reasonable and that the parties agreed on the finality of the agreement.” Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984).

Moving to the Husband’s second contention, the Appeals Court overturned the trial judge: at the time the judge had issued the clarifying order, the current appeal had been docketed. As the appeal was docketed, the lower court was divested of its jurisdiction. Because the lower court did not have jurisdiction at the time the order was entered, the Appeals Court was constrained to vacate the order.  Commonwealth v Cronk, 396 Mass. 194, (1985).

The Judgment was affirmed. The order entered clarifying the judgment was vacated.

Iryna Lipovetsky v. Leon Spivak

15-P-51

Dec 16, 2015

Defendant challenged the extension of an abuse prevention order obtained by the plaintiff, ex wife, from Newton District Court. Defendant challenged an order entered on April 4, 2014. This order modified a previous order issued by a different judge on Feb 7, 2014, which in turn extended an initial ex parte 10 day order issued by a third judge on January 27, 2014. In relevant part, the order was extended for a year and in addition to no contact, no abuse, and stay away provisions, a provision was added that the defendant give the plaintiff email notice 24 hours in advance of a permitted visitation with their child. The order further required that the pick-ups and drop offs for visitation would occur at the Newton Police Station.

When the order was extended for one year on April 4th, 2014 the judge declined to give the defendant a continuance due to his attorney not yet being in court. The defendant had asked for the continuance and pointed out that the hearing was scheduled for 10AM (it was 9:55AM at the time). Upon learning that the mother had to pick up her child at 10:30AM, the judge proceeded with the hearing and no witnesses were sworn. The plaintiff stated that she wished for the order to be extended for a year and the judge, without offering the defendant an opportunity to be heard, indicated that she would extend the prior abuse prevention order for one year.

The Appeals Court first considered the due process elements necessary in a 209A hearing. The Court noted that a 209A hearing is an adversarial proceeding in which the parties have constitutional due process rights that include the right to testify and present evidence, and examine adverse witnesses. C.O. v. M.M., 442 Mass. 648, 656, 815 N.E.2d 582 (2004). The plaintiff has the burden of proving that it was more like than not that she is suffering from abuse as defined in section three of G. L. c 209A. ." Iamele v. Asselin, 444 Mass. 734, 736, 831 N.E.2d 324 (2005).

While the judicial practice guidelines encourage the judge to conduct 209A hearings informally, nothing in the guidelines suggests that the judge is permitted to dispense with the administration of the oath to witnesses and the judge must additionally give the parties an opportunity to cross-examine the adverse witnesses. In a footnote the Appeals Court also noted that it was troubled that the judge had denied the request for the continuance.

The Appeals Court vacated the underlying order because the evidentiary basis for extension of the order was lacking and the manner in which the hearing was conducted was outside the bounds of sound judicial discretion.

In re Carlson

15-P-121

Entered Dec 16, 2015

Victoria Nadel appealed from a grant of a license to sell a property located in Roxbury from the Probate and Family Court to the conservator of the developmentally disabled owner. Nadel argued that in 2011 she discovered the abandoned property and conducted a title search finding that the owner was a developmentally disabled ward.

It was indicated on the record that Nadel was not related to the ward and did not otherwise hold a cognizable interest in the property.  After a conservator was appointed, Nadel offered to buy the property for $110,000.00; at the same time, First Suffolk LLC made a cash offer to purchase the property for $130,000.00. The conservator did not accept, reject, or counter Nadel’s offer. Due to the lack of response Nadel filed a rule 24 motion to intervene in the sale which was allowed by the Probate Court. The conservator then responded by filing a motion for instructions and a petition to sell the real estate seeking to sell to First Suffolk LLC. At the end of the hearing the probate court granted a license to sell the property for no less than $140,000. The judge also determined at that time that though Nadel had been allowed to intervene she still did not have standing to object to the sale.

Nadel on appeal contended that the Probate Court judge committed an abuse of discretion in granting the conservator a license to sell to First Suffolk LLC. The Appeals Court noted that it was skeptical that she should ever have been granted the right to intervene in the first place. Notwithstanding that fact, Nadel failed to cite any authority empowering her to object to the sale of the property to which she had no legally cognizable relation. The Appeals court also found her equitable argument unpersuasive: the fact that she had found the property and been an impetus for the appointment of the conservator simply had nothing to do with whether or not she had a legally cognizable interest in the property. She had offered $30,000.00 less than First Suffolk LLC to purchase the property and the conservator was in no way bound to accept a lower offer. The Appeals Court affirmed the grant of the license to sell.

Additionally, the Appeals Court addressed the conservator’s argument to impose sanctions against Nadel in the form of the conservator’s legal fees and costs incurred in defending the appeal. The Appeals court agreed noting Nadel’s persistent efforts to manipulate the legal process to force a sale of the property to her for less than an existing offer. As a result, the Appeals Court determined that her claims had no legal foundation and were frivolous. The Court according approved the conservator’s requested for attorney’s fees pursuant to Mass. R. A. P. 25 and allowed the conservator to file a verified and itemized application for fees and costs.

Elizabeth Emery v. Thomas K Sturtevant

14-P-637

Entered Dec 18, 2015

Husband appealed from several judgments arising out of divorce proceedings asserting that the judge erred in attributing income to him, failing to reduce his child support obligation, failing to eliminate his alimony obligation, and calculating alimony arrears. On a cross appeal, wife maintains that the judge erred in permitting the husband to amend his first notice of appeal to include judgments of dismissal.

 The central factual dispute at trial and in the subsequent proceedings in this case were whether the husband voluntarily resigned his position as Head of School at a private high school or whether he left that position involuntarily and was therefore compelled to take a position out of State at a considerable salary reduction.

Parties were married on March 21, 1992 and have three children. In April of 2003 Husband had accepted a position of associate head of school at Northfield Mount Hermon (“NMH”). By 2010, the Husband was earning approximately $350,000.00 per year with the job title “Head of School” and “Chief Executive Officer.” During conversations with the School’s Board of Trustees (relative to an extension of his contract) in April of 2011 father admitted that he had engaged in an extra marital affair with a subordinate that had resulted in the birth of a child.

In May of 2011, father resigned from his position, and began supplementing his income with consulting work. In 2012, a divorce trial was held in which the husband represented himself. The amended judgement of divorce held that father should pay weekly child support in the amount of $780.00 and alimony in the amount of $2,481.00 per week.

In July of 2012, the husband filed a complaint for modification of child support and alimony citing a change in his income as a material change of circumstances. Wife filed a complaint for contempt in September of the same year. The judge entered a judgement finding husband in contempt and setting the total arrearages at $10,248.00. At a modification hearing held in October of 2012, the judge found that the Plaintiffs current actual earnings are less than his potential earnings and that the reduction in income was voluntary.

The Appeals Court first turned to husband’s argument regarding the judge’s attribution of income and the judge’s refusal to reduce child support.

To determine the circumstance under which the Husband left NMH the judge was required to determine the credibility of the witnesses and to weigh the evidence. In particular (1) the husband’s letter of resignation to NMH (2) the husband’s trial testimony that this letter was intended to “smooth the waters” with the NMH community (3) the fact that the resignation was preceded by the husband’s extra marital affair. In the judge’s memorandum dismissing the complaint, the judge only made the conclusory statement that, “Plaintiff's reduced income is based solely on his voluntary decision to resign from NMH." Because there were no further specific subsidiary findings, the Appeals Court found that they could not assess whether his conclusion as to voluntariness was adequately supported. Ulin v. Polansky, 83 Mass. App. Ct. 303, 306-307, (2013) ("The judge did not specify that he rejected the testimony, nor do we believe such a rejection is necessarily implied in the judge's findings or analysis.")

The Appeals Court next turned to the Trial Court’s imputation of income. Attribution of income may be appropriate when a judge determines a career change is voluntary. Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291, 663 N.E.2d 280 (1996). Such attribution should be accompanied by a specific finding as to whether the party has exercised reasonable efforts in his or her employment search. See Ulin v. Polansky, supra at 306-307. However, due to the dearth of subsidiary findings, the Appeals Court held that it could not affirm the judgement.

"It is by far better practice for a judge, in attributing income to a party for purposes of alimony (or child support), to specify the amount, or define a reasonably finite range, of the income to be so attributed. Such specification sets defined economic points for the parties, serves as a marker should a party later seek to modify the alimony award, and provides a benchmark memorialized within the trial judge's rationale and findings which will facilitate appellate review." C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 155 (2008).

In sum, the Appeals Court concluded that the record did not contain adequate findings of fact to support the judge's conclusion that the husband's reduction in salary was voluntary. The judgments were vacated and the matter remanded to the Probate and Family Court for further proceedings.

Harwood v. Lee

14-P-1730 (January 13, 2016)

Father appealed from the Probate and Family Court judgment dismissing his complaint for modification and permitting Mother to move to Iowa with the parties’ minor child.  Father argued that the lower court applied the wrong standard in allowing Mother’s removal and erred in failing to consider paramount the child’s best interests.  Father also argued that the judge erroneously denied his complaint for modification, which sought shared physical custody.

Father and Mother were never married.  Mother’s family lives primarily in Iowa, Father’s family lives primarily in Massachusetts, and the child was born in Massachusetts.  After the parties’ relationship deteriorated, Mother filed a complaint for support, custody, and visitation.  Following the first trial, the judge awarded the parties shared legal custody and Mother primary physical custody.  In 2013, Father cited the child’s autism as a material change in circumstances and sought shared physical custody.  The lower court found that Mother should remain the primary physical caretaker, allowed her request to remove the child to Iowa and dismissed Father’s complaint for modification.

On appeal, Father first argued that this was a shared custody case, and therefore, the court should have applied Mason v. Coleman, 447 Mass. 177 (2006), rather than Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985).  The Appeals Court held that that the lower court did not abuse its discretion in deciding that Mother should continue as primary caretaker because the parties had a contentious relationship and experienced difficulty communicating.  Therefore, because Mother was the primary caretaker, the Yannas standard should apply.

In applying the Yannas standard, the Appeals Court held that the lower court did not err in finding a real advantage to the Mother’s relocation to Iowa, and in determining that the best interests of the child favored removal.  The lower court found that Mother demonstrated a real advantage to the relocation, and that her motivation for moving was not to deprive Father of time with the child.  Specifically, the court found that the move would be to Mother’s advantage financially, emotionally, and socially given that her family lives in Iowa.  The judge also found that Mother is committed to fostering a relationship between Father and child.

In evaluating the best interests of the child, the lower court made detailed findings about the child’s school in Iowa and found that the child attending school in Iowa would not have a detrimental effect on the child’s developmental progress. The judge also recognized the child’s strong bond with Father but noted that “[t]he fact that visitation by the noncustodial parent will be changed to his or her disadvantage cannot be controlling.”  Yannas, 395 Mass. at 711.

The Appeals Court further held that the lower court properly denied Father’s complaint for modification because of the judge’s allowance of Mother’s request for removal and the Appeals Court’s affirmance of that decision.

Adoption of Maura

15-P-356 (January 14, 2016) 

The Mother appealed from a juvenile court’s judgment, which found her unfit to parent her daughter, Maura, and terminated Mother’s parental rights.  In ruling that Mother was unfit to parent Maura, the trial court made several detailed findings that indicated Mother failed to concern herself with Maura’s well-being or otherwise failed to act in her best interests.

Mother’s failure to act in Maura’s best interests, included receiving very little prenatal care while pregnant, making numerous trips to the hospital during her pregnancy to obtain opiate medications, and kidnapping Maura for approximately nine months after the Department of Children and Families (“DCF”) obtained temporary custody.  The judge also considered Mother’s history of mental health issues, substance abuse, and criminal history.

Mother claimed that the judge made unreasonable inferences regarding her fitness and relied upon “stale evidence” from two years prior to the trial.  Specifically, Mother argued that the events that occurred prior to trial did not demonstrate a present or future danger to her daughter. 

The Appeals Court affirmed the trial court’s ruling that Mother was unfit.  In affirming the lower court, the Appeals Court relied upon the Adoption of Diane and held that “in determining current parental fitness and the likelihood of harm to the child, a judge may rely on past patterns of neglect and misconduct,” 400 Mass. 196, 204 (1987).  Furthermore, the Court reasoned that the lower court did not ignore Mother’s noncriminal history, but instead considered it and appropriately weighed the positive facts against the other relevant facts.

Maeda v. Garrison

15-P-210 (January 28, 2016)

Father appealed from the Modification Judgment and argued that no material change of circumstances took place warranting the change in custody.

Pursuant to the parties’ Separation Agreement, the parties had shared legal custody and their son would principally reside with Father in Worcester. At the time of divorce, Father was working in Boston and was considering moving closer to Boston. The judge was aware of this and urged him to relocate to somewhere between Mother’s home in Shrewsbury and Boston to minimize the travel time for the child. However, Father took a job in Easton and relocated to Foxborough.

After the modification trial, the judge ruled that the son would principally reside with Mother instead of Father. The judge’s rationale was based on Father’s “uncertain” employment prospects, Mother’s “steady employment,” and the son’s attachment to the Worcester community.

The Appeals Court vacated the modification judgment and remanded the case for further proceedings. The Court held that assuming that the judge determined that the move constituted a material change of circumstance, the judge should have applied the “real advantage” standard as detailed in Yannas v. Frondistou-Yannas. Specifically, the Court held that the judge should consider whether the relocation to Foxborough was a “real advantage” to the son, and if so, whether the move is in the son’s best interests. The Court further held that the judge should consider the son’s attachment to Worcester and the effect of the move on his relationship with his Mother.

Krock v. Krock

14-P-1633 (January 25, 2016)

Wife appealed from the Probate and Family Court judgments that terminated Husband’s alimony obligation, ordered Wife to repay alimony to Husband, reduced the amount of life insurance Husband is required to maintain, dismissed her counterclaim for modification and her complaint for contempt.

The parties were married for approximately thirty years and divorced in 1990. At the time of divorce, Husband was required to pay Wife alimony in the amount of $75,000/year, maintain health insurance for Wife, and maintain a life insurance policy of $1,000,000. In March of 2013, Husband filed a complaint for modification seeking to terminate alimony under § 49(f) because he had reached retirement age.

In reviewing the lower court’s judgment, the Appeals Court held that Husband reaching retirement age has no effect on his alimony obligation because that provision of the Alimony Reform Act does not apply retroactively. The Appeals Court further held that the lower court judge abused his discretion when he denied Wife discovery on her counterclaim for an upward modification. The Appeals Court vacated the judgment dismissing Wife’s complaint for contempt because the judge erred in dismissing Wife’s complaint without allowing her discovery and remanded for further proceedings.

Adoption of Abraham

15-P-611 (January 15, 2016)

Father appealed from the decision of a Juvenile Court judge who found Father to be unfit and terminated his rights. On appeal, Father argued that the lower court erred in deciding to reopen evidence and in admitting evidence of Father’s relapse. Father further argued that the evidence was insufficient to terminate his parental rights.

Following the first trial, the Department of Children and Families (“DCF”) moved to admit new evidence that Mother and Father had lied throughout the trial. The lower court judge then reopened the evidence and found that Father and Mother gave false testimony throughout the first trial. The Appeals Court found that the judge’s decision to reopen evidence was not an abuse of discretion under either Rule 60(b)(3) or Rule 59.

Next, Father argued that the judge erred in admitting evidence of his relapse. During the second trial, DCF admitted five exhibits containing evidence of Mother’s perjury during the first trial and Mother’s and Father’s continued domestic violence and substance abuse. The Appeals Court found that admitting these reports was not an error because Father explicitly declined to object to the exhibit's admission during trial. The Court reasoned that DCF reports, which contain third party statements, may be admitted into evidence, and may be challenged through cross examination. Custody of Michael, 28 Mass. App. Ct. 20, 266 (1990). Therefore, admitting the reports was not an error because the third party witnesses were available for cross examination if Father had chosen to challenge the statements.

Lastly, the Court found that there was sufficient evidence to support the judge’s decision to terminate his parental rights because the judge made extensive findings of fact regarding Father’s substance abuse and domestic violence.

Denise M. DiNucci vs. Daniel J. DiNucci

15-P-0134 Feb 12, 2016

Husband appealed the denial of a motion to stay execution of a Probate and Family Court judgment of divorce NISI by a single justice of the Appeals Court. On Appeal, husband argued that the denial of the stay was an abuse of discretion. Husband sought to enjoin aspects of the equitable distribution of marital assets from taking effect.

The Parties were married for approximately 10 years and had two children. The wife had abandoned her career as a hairdresser to care for the children of the marriage; one of whom has significant disabilities. Husband was the primary bread winner for the family; and during the divorce, had a current salary of $117,500.00. According to their divorce judgment, wife was awarded 1/3 of the inheritance from the estate of husband’s mother and ordered to grant to wife $9,449.00 via QDRO.

In its analysis of whether or not the denial of husband’s motion to stay was an abuse of discretion, the Appeals Court first turned to Doe. V. Superintendent of Schs. Of Weston, 461 Mass. 159, 164 (2011). The relevant standard contained in Doe held that In evaluating a motion for stay, a single justice must determine (1) whether the moving party is likely to be successful on the merits, (2) whether irreparable harm will result from the denial of the motion, and (3) whether the risk of irreparable harm to the moving party outweighs similar risks of harm to the opposing party. 

In evaluating the claim the Appeals Court first noted that: “The abuse of discretion standard requires the party seeking relief to demonstrate more than simply that the single justice could permissibly have allowed the motion. See In the Matter of the Enforcement of a Subpoena, 436 Mass. 784, 795, (2002). If there is a supportable basis for the single justice's order, it will be upheld. See Petricca Constr. Co., v. Commonwealth, 37 Mass. App. Ct. 392, 394-395, (1994).

The Appeals Court then noted that the husband faced a very high burden due to the requirement that he would have to demonstrate a likelihood of success on the merits. Because "judges possess broad discretion to divide marital property equitably." Dalessio v. Dalessio, 409 Mass. 821, 830, 570 N.E.2d 139 (1991). Furthermore, a judgment of property division will not be reversed unless it is "plainly wrong and excessive." Redding v. Redding, 398 Mass. 102, 107, (1986), quoting from Rice v. Rice, 372 Mass. 398, 402, (1977).

As the trial judge made detailed findings of fact and gave reasons for the orders related to property division, the Appeals Court ultimately concluded that Husband was unable to carry the admittedly high burden of proving a likelihood of success on the merits. The single justice’s denial of his motion for a stay was upheld.

L.H vs. Department of Children and Families

15-P-489

Feb 16, 2016

Father appealed from a judgement of the Superior Court denying his motion for judgment on the pleadings and affirming the department’s final decision. Father had initially requested a fair hearing from DCF and the hearing officer had concluded that the department had reasonable cause to believe that the children were neglected. The father thereafter sought a judicial review in Superior Court under G. L. c. 30A, section 14.

On Appeal, the father argued that the judge erred in affirming the decision of the hearing officer because there was an insufficient basis for the determination, the department’s failure to refer the matter to the district attorney should be dispositive, and delays in the conduct of the fair hearing and in issuance of the decision were unconscionable and violated the father’s right to due process.

The Appeals Court first noted that they give, “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Additionally, in evaluating the agencies decision the Court would examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence’s weight.” Cobble v. Commisinoer of the Dept. of Social Servbs., 430 Mass. 385 (1999).

The Court turned first to father’s contention that there was an insufficient basis to reach the determination that there was substantial evidence of neglect. The Appeals court noted that a review of the record establishes that substantial evidence supported the hearing officer’s conclusion and lead to reasonable cause to believe that father had neglected his children. Father also challenged the standard set forth for parenting in 110 CMR section 2, arguing that it was too nebulous and provided individual DCF employees too much individual latitude. However, the Appeals Court found this argument unavailing noting that, “a challenge to the validity of a general regulation cannot be resolved by requesting declaratory relief in an appeal from an administrative agency decision because judicial review is confined to the administrative record.” Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 114 (2014).            
The Appeals Court the addressed father’s next argument: that the failure of DCF to refer the matter to the DA’s office was dispositive. The Court found that he had not raised the issue during the hearing and therefore waived his opportunity to raise it on appeal. However, as both sides had briefed the issue, the Appeals Court decided to briefly address it: in short, because none of the triggering events had occurred under G. L. c. 151(b)(k) which would have forced the DCF to give a referral to the District attorney’s office, the lack of a referral was within DCF’s discretion and the argument was irrelevant to the question that DCF had substantial evidence to support its conclusion.

In addressing Father’s argument about the delays in the process affecting his due process rights. The Superior Court judge agreed that the delay was egregious but found that father had not demonstrated prejudice. To set aside the department’s decision the father must show not only that the department violated its own regulations, but also that his substantial rights were prejudiced by its action. G. L. c. 30A s. 14(7). As he had not demonstrated prejudice the court was not in a position to reverse the agencies decision. Amherst—Pelham Regional Sch. Comm. V. Department of Educ., 376 Mass. 480, 497. The remainder of Father’s due process argument had not been raised in the administrative hearing and was determined waived by the Appellate Court. The Lower Court Judgment was affirmed.

Deanne C. Shine vs. Paul J. Shine

15-P-288

Feb 16th, 2016

Wife appealed from an order on a contempt issued by the Probate and Family Court. Parties were initially divorced on May 19, 2009. In relevant part, the divorce judgment required husband to continue to provide health insurance that covered the wife subject to the restriction that if at any time the wife’s future or current employer permits the wife the opportunity to obtain comparable health insurance she shall do so.

Wife subsequently obtained employment at the Massachusetts Department of Corrections, however, she declined the option of obtaining health insurance through that employer. The husband thereafter filed a contempt action seeking to compel the wife to maintain her own health insurance. After hearing, the judge concluded that because husband had not proved a willful violation of the separation agreement, the wife was not guilty of contempt. However, accompanying this finding was an order that compelled wife to obtain her own insurance by a certain date.

On Appeal, wife argued that, as the judge did not actually find that the health insurance coverage available through the wife’s employment provided “comparable” coverage and as a result, the order was improper. The Appeals Court agreed stating that there was no evidence before the judge on which she could have made such a finding. As a result, the Appeals Court vacated the order and remanded the matter for further proceedings.

Balisterri v. Balisterri

15-P-55

Feb 18, 2016

Wife appealed from certain aspects of divorce judgement including the duration of alimony and the valuation of particular marital assets. Parties were married on March 26, 1995, wife filed a complaint for separate support on January 11, 2005, and the husband thereafter filed his complaint for divorce on April 14, 2011.

Given the formula provided in G. L. c. 208, s. 49(b), the length of the marriage is defined as the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support. The Appeals Court concluded that the length of the marriage would be approximately 117 months if measured from the date of the filing the complaint for separate support, or 192 months if measured to the date of the filing of the complaint for divorce.  Adding to the confusion was a footnote in the judge’s rationale and findings of fact which stated:

"The Court took into consideration the length of the marriage i.e., the date of marriage to the date the complaint for divorce was filed and the remaining factors as outlined in Chapter 208 Section 53a. The fact that the parties were legally separated does not rise to a different end date as the alimony statute specially states 'the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce OR separate support.'

The Appeals Court concluded that they could not tell from the judge’s explanation why he chose 70 months as the length of alimony. As a result, further explanation of the decision was required. Zaleski v Zaleski, 469 Mass. 230, 244 (2014).

Wife also appealed the judge’s refusal to grant wife a portion of husband’s business interest. Husband worked as a self-employed fish wholesaler who purchased fish from boats and sold them to restaurants and retailers. Husband was the only employee and the only hard asset owned by the company was a truck that had no equity value. The only other potential asset was a customer list. However, neither party put in any evidence of the value of such an intangible asset during the trial. Under those circumstances, the judge did not err in assigning husband’s company negligible value and letting husband retain it. Yannis v. Frondistou-Yannas, 395 Mass. 704, 714 (1985) (no error in failing to place a value on husband’s royalties because their value was uncertain). The Appeals Court also noted that the judge had assigned the wife 60% of the value of the marital home. Johnston v Johnston, 38 Mass. App. Ct. 531, 537 (1995) (reasonableness of the division of assets must be viewed in their entirety).

Wife also argued that the judge erred in not compelling a particular expert witness to testify as to the company’s value. The wife had retained the expert in question for a period that concluded before the expert had formed an opinion of the company’s worth. As the circumstances of the case did not present an instance in which the expert could be compelled to testify as to an opinion she had already formed. Ramacorti v. Boston Redev. Authy., 341 Mass. 377, 279-380 (1960) (Compelling an expert witness to testify should be used sparingly, as necessary for the purposes of justice). Therefore, the Appeals Court concluded that the judge denial of wife’s motion to compel was not an abuse of discretion.

Finally, the wife argued that the judge erred by not having the court retain its own expert to value the company. The Appeals Court was clearly skeptical that the court even had the authority to do so. However, assuming arguendo that it did, it was not an abuse of discretion in not exercising the authority. It also seemed apparent on the record that wife had never requested the judge do so during the initial proceedings. Thus, the issue was waived on appeal for not being brought to the trial judge’s attention. Tsomides v. Tsomides, 3 Mass. App. Ct. 750 750-751 (1975).

The judgment that sets forth the alimony duration was vacated and remanded for reconsidering. The judgment was affirmed in all other respects.      

Carbone v Carbone

14-P-646

Feb 18, 2016

Husband appealed from judgments entered in the Probate and Family Court. Specifically, husband challenged aspects of the property division, the award of legal fees to wife, and the contempt finding against him.

Husband first argued that the divorce judge had erred by counting as an asset a $551,000 dollar loan that Carbone Sheet Metal Corp owed to Marginal Street LLC (while unclear in the appellate opinion, it seems that both companies were at least partially owned by Husband). Because of the precarious financial situation that had embroiled the corporation, husband argued that the loan was of no value. The Appeals Court first turned to the relevant standard: “Valuation is a question of fact, and we will not disturb a judge’s determination unless it is clearly erroneous.” Sarrouf v New England Patriots Football Club, Inc., 397 Mass. 542 (1986). As reflected in the trial judge’s findings the loan was reported as an asset on the LLC’s annual balance sheets and as a liability on the corporation’s annual balance sheets. Additionally, the judge found that the husband failed to offer any competent or credible evidence as to why the Court should not include this balance due from the corporation in the LLC’s value.

The Appeals Court first outright dismissed husband’s contention that the corporation’s stipulated zero dollar value was, “sufficient evidence that the corporation would never be able to repay the loan.” The argument completely failed to recognize that the loan reduced the corporation’s book value and thus, may have been a factor in the stipulated 0 dollar value. Further, the record indicated that the corporation’s earnings were, at minimum, holding steady during the divorce proceedings and the record was completely devoid of any testimony or other evidence suggesting that generally accepted accounting principles would require that the loan be carried at less than full value. As the judge’s finding was supported by evidence, it was not clearly erroneous.

The Appeals Court next turned to husband’s contention that the trial judge had erred in declining to include a shareholder loan (approximately $263,000) in the marital estate that husband sought contribution for from wife. The judge had found that because Husband is the sole shareholder, “he controls the payment of the loan, and the means by which the corporation would then apply the monies received.” Husband argued that this finding was inconsistent with the judge’s treatment of the LLC loan. However, the Appeals Court disagreed: “the judge’s conclusions were, in effect, based on an assessment of the husband’s credibility, an assessment which is “close to immune from reversal on appeal except on the most compelling of showings.” Johnston V. Johnston, 38 Mass. App. Ct. 531 (1995). In the trial judge’s findings it was apparent that he was highly skeptical of husband’s intention to repay the shareholder loan. As husband would basically be paying himself back, the judge did not err in finding that the husband’s argument was artifice.

The husband also disputed the finding that the vacation home had zero value. Husband contended that the valuation was an error because the property had negative value. The Appeals Court refused to even answer the contention noting that if the judge had overvalued the property such error was de minimus because the amount in question represented less than two percent of the overall marital estate. Ross v. Ross, 50 Mass. App. Ct. 77, 81-82(2000). As a result, judicial error, if any, did not furnish grounds for reversal.

Husband next argued that the judge erroneously disregarded a loan allegedly owed by the husband to his mother. The judge declined to credit the husband’s testimony as it was unsupported by any independent evidence. There was no requirement that the judge credit husband’s testimony, so there was no clear error or abuse of discretion. Baccanti v Morton, 434 Mass. 787 (2001).

Husband also argued that the judge erred by treating a refundable $25,000 country club deposit as a personal asset. Husband argued that the deposit was a corporate asset that was already subsumed within the corporations stipulated 0 dollar value. The Appeals Court was unpersuaded, while the deposit was paid by the corporation, it was not listed as an asset on the annual balance sheets. The parties were also found to be the members of the country club, not the corporation. Again, the Appeals Court concluded that any error was deminimums relative to the value of the marital estate.

Husband also challenged the award of Attorney’s fees to the wife. The judge had awarded the wife $50,000 in attorney’s fees. The Appeals Court noted that the trial judge has broad discretion to award attorney’s fees where appropriate and such an award will not ordinarily be disturbed. Dematteo v. DeMatteo, 436 Mass. 18 (2002). When considering whether to award attorney’s fees, the judge’s findings are examined to see if it reflected his consideration of the time spent, results secured, hourly rates, and counsel’s ability. In the present case, the judge had awarded approximately 25% of her overall attorney’s fees. The judge had examined both an affidavit, found that husband’s primary contention was without merit, and credit the billing statements submitted on the matter. The Appeals Court discerned no abuse of discretion on these facts.

Finally, Husband challenged the contempt judgement issued against him. The contempt was issued after the violation of an order which held that the husband had to cause the discharge of the mortgage on the marital home or pay the wife $35,000 to cover her fees and costs. Husband does not dispute that he failed to meet either of those requirements. Rather, husband argued that there was no clear and convincing evidence of disobedience, as he made a good faith effort to discharge the mortgage but was thwarted by his wife’s refusal to sign a subordination agreement. As the order could be met by either causing the mortgages to be discharged or by paying the specified sum to wife, the Appeals Court discerned no abuse of discretion in the lower court judge finding husband in contempt.

All lower court rulings upheld.

Zahouruiko v. Regal

15-P-516

Father appealed from a judgment of the Probate and Family Court which modified the parties’ custodial arrangement and parenting plan. Parties were divorced in February 2010, in a judgment which incorporated a survived separation agreement which merged with respect to the children. The agreement provided that parties would have joint legal custody and shared physical custody of the two minor children born of the marriage. The parties agreed upon parenting schedule which alternated primary responsibility for the children on weekdays and weekends. Additionally, the agreement held that the parties were to reside within thirty miles of each other, with parties agreeing to renegotiate the parenting arrange if either of them moved outside of central Massachusetts.

Father filed a complaint for modification in 2014 seeking a reduction in his child support obligation. Mother filed a counterclaim requesting that the father’s parenting time be modified to reflect his change in residence, alleging that the father had purchased a home in an adjacent State and planned on moving to that home in the near future. After trial in August of 2014 the judge found that from February 2010 until June 2015 the parties lived in Grafton Massachusetts, in June 2014, father moved to Tolland CT with his fiancée, which was approximately 45 miles from Grafton. The judge also found that father had refused to discuss a revised parenting plan in contemplation on the move. The judge found further that father’s refusal to negotiate was a material and substantial change in circumstances that justified modification of the custody arrangement. The children resided in Grafton, their school enrollment was in Grafton, their friends were in Grafton, and their extracurricular activities were in Grafton. The judge also concluded that it was not in the children’s best interest to make the commute under the prior shared parenting schedule, because it would require too much driving on school nights.

Pursuant to a judgment of modification the mother was given physical custody of the children and the parties continued to share legal custody. Father was awarded parenting time on alternating weekends from Friday after school to Monday morning at school, and on Thursday before and the Tuesday after mother’s weekend from 4pm-7pm. In addition, father was granted four nonconsecutive weeks of summer vacation with the children and parenting time.

On Appeal, Father argued that the judge had committed error by failing to make adequate findings of fact. He also contended that the judge had erred in finding that the move was a sufficient change in circumstances to warrant a change in physical custody. While the findings were not extremely extensive, the Appeals Court found that they adequately set forth the basis for the trial judge’s decision. The judge found initially that the parties negotiated a shared parenting plan with the view that they would reside within thirty miles of each other within central Massachusetts, and that they contemplated a scenario that would be followed if one of them moved outside the close vicinity of the other (i.e., they would discuss/renegotiate the parenting plan). See Bercume v. Bercume, 428 Mass. 635, 644, 704 N.E.2d 177 (1999) (even when an agreement does not survive with independent significance, "it is nevertheless appropriate for a judge to take heed of the parties' own attempts to negotiate terms mutually acceptable to them"). While the judge found that the father refused to discuss a revised parenting plan, a proper consideration, there wass nothing in the judge's rationale to indicate that the judge modified custody and the parties' parenting plan simply to discipline the father for his shortcomings. See Charara, 78 Mass. App. Ct. at 335, citing Hersey v. Hersey, 271 Mass. 545, 555, (1930) ("parental fault does not override child's best interest");

Rather, it was apparent that the judge based her decision in the present case on the best interests of the parties' children. The judge found that the children's lives centered around the town of Grafton, and that it was not in the best interests of the children to commute from Connecticut to Massachusetts under the prior shared parenting schedule. See Custody of Zia, 50 Mass. App. Ct. 237, 243, (duty of judge to consider welfare of children "in reference not merely to the present, but also to the probable future"). The judge stated that the road miles require too much unnecessary time in an automobile on a school night. In the circumstances presented, and giving due deference to the judge's custody determination, see L.L., 470 Mass. at 185 n.27; Prenaveau, 81 Mass. App. Ct. at 486, the Appeals Court did not discern either legal error or an abuse of discretion in the judge's decision to modify the parenting plan and the physical custody of the children. Lower Court judgement affirmed.

Dehner v Dehner

15-P-487

Feb 23, 2016

Husband appealed from a judgment dismissing his complaint for modification and his complaint in equity seeking to terminate his alimony obligation on the grounds of countervailing equities. Parties were married for 20 years and subsequently were divorced on September 12, 1990. Their separation agreement survived as an independent contract with independent legal significance. On colloquy, the judge found that the agreement was voluntary and not the product of fraud or coercion, that is was fair and reasonable, and that the parties agreed to the finality of the agreement.

The Appeals Court first turned to the relevant standard, countervailing equities. Countervailing equities include situations where one spouse is or will become a public charge or where there has been a failure to comply with the agreement. Knox v. Remick, 371 Mass. 433, 437 (1976). Countervailing equities can also can found on other grounds at least as compelling as those discussed in Knox. Stansel v Stansel, 385 Mass. 510 (1982).

The husband’s complaint for modification sought to terminate his alimony obligation stating that wife had amassed substantial assets and interest in different corporations as a result of inheritance and trust beneficial interest which she misrepresented and fraudulently failed to fully and completely disclose at the time of the divorce.” The Appeals Court first turned to the boilerplate of the separation agreement, stating that husband’s complaint could well be foreclosed merely by the agreement’s terms: 

"Each Party has carefully considered the future projected income, financial resources, liabilities and expenses of the other and of themselves, and the within Agreement is executed based upon the said knowledge of each. Thus, the Husband and the Wife acknowledge, represent and declare that any non-willful omission or error or failure of either party to disclose any asset, liability, expense or income shall not be deemed to have been a fraudulent representation sufficient to justify voiding of the obligations of the Parties under the provisions of the within Agreement. It is agreed and understood by the Parties that they have been afforded the opportunity for full discovery of any and all pertinent data with regard to the income, assets, liabilities and expenses of the other, and that each executes this Agreement based upon the discovery conducted, and his or her personal knowledge."

However, the Appeals Court also addressed the case on its merits and concluded that the facts taken in the light most favorable to the husband as a matter of law did not amount of countervailing equities or to fraud on the court. The Appeals Court affirmed the lower court ruling and also awarded wife appellate attorney’s fees and double costs.