Spring/Summer 2016: 1.28 Decisions

By Ethan Rittershaus, Laurel Spallone, and Elizabeth Silvestri

Elsaid v. Elsaid
15-P-1048 (April 1, 2016)

Michael Elsaid appealed from an order of the Probate and Family Court which was remanded in the unpublished 1:28 decision Elsaid v. Elsaid, 86 Mass. App. Ct. 1110 (2014). On remand, Father filed a motion to vacate in front of a different judge in the Probate and Family Court system. An evidentiary hearing was held in which a judge denied the motion to vacate. Father subsequently filed a motion for reconsideration which was denied in a written memorandum of decision. Father appealed the denial of his motion for reconsideration.

The Appeals Court first turned to the relevant standard for reviewing a rule 60(b) motion; which was that the decision would not be reversed on appeal save for an abuse of discretion. Dalessio v Dalessio, 409 Mass. 821 (1991). The judge denied the motion for reconsideration because Father had provided no new circumstances that would allow the Court to reopen the matters that were earlier addressed. Father did not argue that the decision constituted an abuse of discretion on appeal. Because Father did not allege an abuse of discretion combined with the fact that the Appeals Court saw no new evidence of anything having changed since the entry of the underlying judgment, the denial of the rule 60(b) motion was affirmed.

E.C. M. v. T.E.C & another
15-P-1220 (April 1, 2016)

Two pro se defendants appealed from a one-year harassment prevention order entered after an evidentiary hearing pursuant to G.L. c. 258E. The order required that the two defendants (who live together in a condominium on Beacon Hill) stay away, not abuse, and not contact the plaintiff who is their neighbor. In addition to their substantive appeal on the merits of the extension of the order, defendants also appealed from the denial of their motions to vacate the order, for reconsideration, and to stay the order. On appeal, defendants argued that the plaintiff was not entitled to an Harassment Prevention Order because the requirements of 258E were not met, the judge denied them due process by not adequately considering the evidence and applying the law, the rules of civil procedure were not observed, and the orders may have emboldened the plaintiff and endangered the defendants.

First, the Appeals Court noted that even thought they were pro se litigants, the defendants were required to provide the Appeals Court with an appellate record that is sufficient to consider and decide their claims. Davis v. Tabachnick, 425 Mass. 1010 (1997) (pro se appellants who provide the court with an inadequate record appendix are held to the same standards as litigants represented by counsel).

The defendants had not provided any appellate record in derogation of Mass. R.A.P. 8(1)(b). Additionally, there was no record of the defendants ordering an appellate transcript and no transcript entered into the record, in derogation of Mass. R.A.P. 9(a).

The Appeals Court noted that error will not be presumed in the absence of an adequate record. Connolly v. Connolly, 400 Mass. 1002 (1987). As a result, the Appeals Court affirmed the orders entered by the District Court.

Pierre v. Pierre
15-P-681 (April 19, 2016)

Defendant, Stephanie Pierre, appealed from the extension of a 209A order issued from Dorchester Division of Boston Municipal Court. On October 29, 2013, Plaintiff, Abdias Pierre, obtained an ex parte abuse prevention order against his wife after an argument escalated. As alleged in his affidavit, the argument escalated to the point that he was bitten several times. Both parties initially appeared at the ten day hearing and the order was extended for one year. At the one year extension hearing both parties appeared represented by counsel and after the hearing, the trial judge extended the order by an additional six months. Subsequently, defendant filed a timely appeal.

First, the Appeals Court noted that the appeal was not moot because although the order had expired by operation of law on April 30, 2015, the collateral consequences may continue to effect the defendant following its expiration. Frizado v. Frizado, 420 Mass. 592 (1995).

On Appeal, the defendant argued that the judge failed to evaluate whether plaintiff had demonstrated by a preponderance of the evidence that he was in reasonable fear of imminent bodily harm and that he failed to meet his burden of proof on that issue. She contended that the judge erroneously shifted that burden to her.

The Appeals Court first noted that pursuant to Iamele v. Asselin, 444 Mass. 734 (2005), in reviewing an extension order, a judge is to consider the totality of the circumstances that exist at the time the plaintiff seeks the extension viewed in the light of the initial abuse prevention order. Id. at 741. The Appeals Court reviewed for an abuse of discretion. Vittone v. Clairmont, 64 Mass. App. Ct. 479 485 (2005).

At the extension hearing, the judge reviewed the affidavits submitted by both parties, police reports from the underlying incident and a more recent incident involving the custody of their child. He also heard arguments and representations of each attorney neither of whom requested an evidentiary hearing. A review of the transcript of the hearing and the record evidence revealed that the judge was well aware of the appropriate legal standard, and that the evidence was sufficient to allow him to consider both the basis for the initial order and the totality of the circumstances since that time.

In the absence of an evidentiary hearing, the judge did not abuse his discretion in extending the order. Nor did he err in inquiring about the practical effect the extension order would have on the parties’ domestic difficulties. The comments made by the judge did not reflect any burden shifting but rather were fair game among the other factors discussed in Iamele at 740 (one factor to consider was, “ongoing child custody or other litigation that engenders or is likely to engender hostility.”) The order was affirmed.

Kurtin v. Kurtin
14-P-1497 (April 22, 2016)

Wife appealed from an amended modification judgment of the Probate and Family Court challenging the alimony award, the lack of an order regarding payment of the children’s college expenses, and seeking appellate attorney’s fees.

The parties were married in 1994, and for nearly all of the marriage the husband was the sole wage earner. In 1998, husband started a hedge fund which generated a large amount of income for the family. Between 2005 and 2008, husband earned approximately $70 million which enabled the parties to live a lavish upper class lifestyle. The parties divorced per agreement which provided the wife with approximately $4.8 million in net assets and required the husband to pay her a percentage of his earned income as alimony. Following the divorce, the husband ceased earning income through employment and instead generated income by investing his assets. He continued to maintain his lifestyle and avoided paying wife alimony for approximately 5 years. The wife eventually sought a modification of the alimony obligation. However, by the time of the modification trial, wife had already depleted the approximate $5 million she had received pursuant to the original separation agreement.

The modification judge found that the husband had intentionally avoided the alimony obligation by insuring that his post-divorce income fell outside of the definition of income as set forth in the separation agreement. The judge found that it was necessary to eliminate all of the provisions in the separation agreement regarding the payment of alimony and attributed investment income of $396,036.00 per year to husband. In deriving the figure of attributed income, the judge took the husband’s total assets which were valued at $12,720,712.00, deducted the $4.8 million in assets that the wife had “negligently depleted, (as so found by the judge)” and then applied a five percent annual interest rate of return to the difference. The resulting number ($7,920,712.00) was then applied to a weekly alimony order at 33 percent, which resulted (after deduction for child support payments) in an alimony figure of $2,048 dollars weekly.

On Appeal the wife principally challenged the judge’s conclusion that she negligently depleted her $4.8 million . Wife argued that this conclusion resulted in a drastically reduced alimony award and was contradicted by the judge’s own subsidiary findings. Wife also argued that the judge’s findings failed to take into account the wife’s “legitimate” expenses.

The Appeals court first noted that while a Probate and Family Court judge enjoys broad discretion when fashioning a support award, she must, “keep in mind that ‘the statutory authority of a court to award alimony continues to be grounded in the recipient spouse’s need for support and the supporting spouse’s ability to pay.’” Pierce v. Pierce, 455 Mass. 286, 296 (2009), quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). The Appeals Court noted further that, “if a supporting spouse has the ability to pay, the recipient spouse’s need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage.” Pierce.

In the instant case, the judge had found that the husband “can derive sufficient income from his investments in order to meet his expenses and the wife’s reasonable expenses.” However, there were no findings made as to which of the wife’s expenses were “reasonable.” Because of this discrepancy, the Appeals Court could not adequately determine whether the judge had considered the wife’s needs. Adlakha v Adlakha, 65 Mass. App. Ct. 860, 869 (2006) (held that without the benefit of fact finding regarding reasonable needs…we must speculate to discern the basis for the alimony figure.) The Appeals Court noted that this was especially troubling as the wife’s reported expenses were nearly 3 times the weekly alimony payment.

The Appeals Court went on to note that the alimony award was not consistent with the judge’s findings relative to their previous life-style. Goldman v Goldman, 28 Mass. App. Ct. 603, 608 (1990). The judge had criticized wife’s post-divorce spending finding that she made little effort to reduce her own expenses. The Appeals Court commented that the judge’s approval or lack thereof of wife’s lifestyle was irrelevant; especially in light of the subsidiary finding that the husband had made little effort to curb his spending and had taken no steps to diminish his lifestyle. “Absent good reason, in a long term marriage, there is no justification for the life-style of one spouse to go down while the other remains high.” Ibid.

The Appeals Court found that the award of alimony did not reflect adequate consideration of the wife’s needs and it was inconsistent with the judge’s subsidiary findings. In sum, quoting Baccanti v. Morton, 434 Mass. 787 (2001), the Appeals Court found that the judge’s findings were not apparent and did not flow rationally from her findings and rulings. The alimony award was vacated and remanded for further fact finding, including but not limited to which of wife’s expenses were reasonable expenses and the parties station in life during the course of the marriage.

Turning to wife’s second contention relative to the judge declining to include a provision in the amended judgment regarding payment of college expenses for the parties’ children, the Appeals Court noted that child support orders are reviewed for an abuse of discretion. J.S v. C.C, 454 Mass. 652, 660 (2009). The Appeals Court further noted that, “support orders regarding the future payment of post-high school educational costs are premature and should not be made…” until the child is attending or is about to attend college. Passemato v Passemato, 427 Mass. 52, 54 (1998). The child in question was a senior in high school and while it was arguably within the judge’s discretion to make an order relative to college expenses, it was not an abuse of discretion for her to decline to do so.

Finally, wife sought an award of appellate attorney’s fees and costs. This request was allowed for reasonable attorney’s fees regarding her appeal of the alimony obligation. However, the request was denied in regard to her argument regarding child college education costs.

Carbajal v. Zavala
16-P-79 (April 26, 2016)

Petitioner, a juvenile citizen of Honduras residing in Revere, filed by her mother and next friend, a complaint on June 11, 2015 in the Suffolk Division of the Probate and Family Court seeking to invoke the department’s equity jurisdiction under G.L. c. 215 sec. 6.

Petitioner sought an order requesting that certain special findings enter as they are necessary to establish her eligibility to apply to the United States Citizenship and Immigration Services (USCIS) for special immigrant juvenile status under 8 U.S.C. sec. 1101(a)(27)(J)(2012).

The juvenile submitted records both from her mother and herself about the abuse that they suffered at the hands of petitioner’s biological father. Judgment entered dismissing the complaint, finding that the juvenile’s circumstances did not establish that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis in United States law.

The petitioner then filed a notice of appeal dated October 16, 2015 in the Probate and Family Court and a petition to a single justice of this court. On April 12, 2016, USCIS issued a bulletin advising that visa limits had been reached for the countries of El Salvador, Guatemala, and Honduras, and that applications from citizens of those countries to obtain visas or adjust immigration status will not be processed after April 30, 2016, unless a prior form was submitted prior to January 1, 2010.

In effect, the juvenile’s ability to seek SIJ status will be substantially impeded if she does not file for such status by April 30, 2016. The juvenile is unable to do so without entry of the predicate special findings by a judge of the Juvenile Court as required by § 1101(a)(27)(J)(2012). (For purposes of the Federal Definition the Probate and Family Court is considered a juvenile court).

The petitioner sought and obtained relief from a single justice of this court to expedite the appeal. The single justice ordered the record be assembled on an expedited basis, and that the appeal be heard on an expedited basis.

As the Probate and Family Court judge based her findings entirely on documentary evidence and without testimony from the juvenile or her mother the only record before the Appeals Court was the same one examined by the Probate and Family Court judge. Due to this fact, the Appeals Court noted that, “we are in as good a position as the probate judge was to decide questions of fact.” Bluhm v. Peresada, 5 Mass. App. Ct. 766 (1977).

The Appeals Court found that the affidavits of the juvenile and her mother are consistent with each other, and the facts contained in those affidavits are otherwise undisputed. As the evidence is uncontested, and the relief requested by the petitioner is time-sensitive, the Appeals Court chose to address the merits and in doing so, made the following special findings and rulings based on the record before them:

  1. Wendy Dominguez Carbajal (Wendy) was born on October 12, 1998, in San Pedro Sula, Honduras. Wendy resides at 9 Tf Carroll Way in Revere, Suffolk County, Massachusetts, with two younger brothers who are United States citizens, and their mother. Wendy is not married.
  2. The Suffolk Division of the Massachusetts Probate and Family Court has jurisdiction pursuant to G.L. c. 215, § 6, to make equity determinations within the meaning of § 1101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J)(i)(2012), and 8 C.F.R. § 204.11(a) & (c)(2015). Wendy is dependent upon the Probate and Family Court’s jurisdiction.
  3. Wendy’s father, the respondent, abandoned and neglected her. He never maintained any relationship with Wendy, and he refused to provide care or support for her, even when her safety was at risk.
  4. Wendy’s reunification with one or both of her parents is not viable due to abuse, abandonment, neglect, or similar grounds under State law.
  5. It is not in the best interests of Wendy to return to Honduras, her country of nationality, and it is in her best interests to remain in the United States.

The judgment of the Suffolk court was vacated and the matter was remanded to that court where a decree is to enter forthwith incorporating the numbered findings with a rescript to follow.

J.N.S. v. J.M.S.
15-P-218 (May 5, 2016)

Wife appeals a judgment of divorce awarding her unallocated alimony and child support for herself and the parties’ four teenage children that was equivalent to approximately 10% of her former husband’s gross income. In support of her argument, wife claims that under the Alimony Reform Act the judge could have awarded support equivalent to 30% - 35% of the difference between the parties’ gross incomes as opposed to being limited to a traditional need/ability to pay analysis. The case was remanded to the Probate and Family Court for reconsideration, by a different judge, of an appropriate award of unallocated alimony and child support.

The Appeals Court was unable to address wife’s issue in a meaningful and equitable way due to the extraordinary and concerning nature of the judge’s findings and rationale. The findings and rationale appeared to be so one-sided and unsupported by evidence that they created an undeniable appearance of bias and partiality against wife so therefore could not stand. The issue of bias in this case was particularly concerning given that most issues, including custody and parenting time, were resolved prior to trial, though the judge placed an inordinate focus on the conduct of the parties and their relationship with the children even though that issue was not before him. The judge also frequently adopted husband’s findings nearly verbatim, which were overly critical of wife’s character and conduct. The judge’s findings were inconsistent with the report of the Guardian ad Litem and the testimony of wife and suggestive of a lack of balanced consideration of the conduct of both parties. Some of the judge’s findings, such as attributing the children’s failure to attend therapy to wife, were clearly contradicted by the evidence at trial. After judgment, the judge sua sponte ordered the parties’ children into his lobby where he lectured the children about their responsibilities to their father.

Case remanded to the Probate and Family Court, to a different judge, for the purpose of reconsideration of an appropriate order relating to unallocated child support and alimony under the Alimony Reform Act

Tina Marie Carnevale v. Antonio Carnevale
15-P-25 (May 6, 2016)

Wife appeals a judgment of divorce on numerous grounds related to custody, division of the marital estate and the judge’s denial of her request for attorney’s fees. The Appeals Court affirmed the judgment with the exception of the valuation of a line of credit. The case was remanded so the trial judge’s error in overvaluing the amount of the line of credit can be addressed.

Wife appeals the portion of the judgment awarding the parties joint legal custody of their children on the grounds that: (1) the level of acrimony between the parties is inconsistent with an ability to co-parent and (2) that the judge failed to make specific findings related to the history of physical abuse against wife by husband and its potential effect on the children. According to wife, if the judge had done so, it would have precluded a determination that joint custody was in the best interests of the parties’ children. The judge’s findings, supported by the evidence at trial, demonstrated that although the parties’ relationship was acrimonious, they were able to communicate with one another to raise the children. Similarly, the instances of domestic violence were personal to the parties and did not extend to the children. The Appeals Court did note, however, that it would have been preferable for the now retired judge to have addressed wife’s abuse allegations with further specificity.

With respect to the property division, the trial judge erroneously found that the amount of a line of credit was $465,000 even though the evidence at trial established it to be only $334,000, resulting in $65,000 less going to wife than the judge intended. Although wife challenges this debt as a “contingent debt” only, the trial judge properly found that the nature of husband’s business required him to make such an expenditure. As a result, there was no error. Wife also challenges valuation of two properties where after trial both sold for more than the judge’s valuation of the properties. In one instance, property sold for $7,500 more than the value at trial; in another instance, the property sold for $207,000 more than the property was valued. The judge did not commit error in valuing the properties based on the evidence presented at trial and he did not commit an abuse of discretion in denying wife’s motion to amend judgment to reflect these values. Wife also challenges the judge’s characterization of a bank account held by husband with his mother as a non-marital asset. The judge properly found that checks written from that account to husband, even if written by husband, were reimbursements to husband from his mother. Finally, wife challenges the judge’s treatment of the family boat as a marital asset awarded to her where wife claims the boat belongs to her father. Wife failed to show how treatment of the boat as such counted against her, and failed to press any claim at trial that the boat belonged to her father.

The judge did not commit error where he set husband’s income at $200,000 annually based upon a five year average, while adding back in depreciation claimed by husband. The judge found wife’s expert to be unpersuasive and his findings with respect to husband’s income were substantiated by the evidence presented at trial.

Finally, wife challenges the judge’s decision not to award her counsel fees. After trial, the judge found that the attorneys’ fees accrued in the case were disproportionate to the complexity of issues and assigned wife the majority of fault due to her excessive and wasteful discovery requests.

Portion of judgment relating to valuation of line of credit is vacated and remanded, all other portions of judgment affirmed.

Eileen Elizabeth May Goodell v. Todd David Goodell
15-P-746 (May 9, 2016)

Husband appeals a judgment of divorce on the grounds that the Probate and Family Court judge abused his discretion in awarding wife 63% of the marital estate and failing to characterize certain financial withdrawals made by wife as dissipation. The Appeals Court affirmed the judgment of the Probate and Family Court.

In 1999, wife inherited real property from the estate of her mother; this asset did not become liquid until 2008. The trial judge properly found that wife inherited this asset in 2008, not 1999. Wife used her inheritance to pay off marital debts, including mortgages on the parties’ properties. As a result, the trial judge attributed the resulting increase in value to the parties’ properties solely to wife, and effectively awarded her 100% of her inheritance. In addition, the judge properly concluded that wife’s homemaking and financial contributions to the marital estate through her employment significantly exceeded those of husband. Under these circumstances, the trial judge could have properly awarded wife a larger share of the marital estate.

The judge did not commit an abuse of discretion when he declined to find wife dissipated marital assets. Wife made significant withdrawals from financial accounts shortly before and after filing her complaint for divorce. Wife testified at trial that these withdrawals were used to pay family expenses and supplement her income – at a time when husband was not contributing financially. Although the withdrawals exceeded the family’s needs at the time, there was no evidence presented at trial that wife used the money for personal indulgences and the judge found that both parties lacked credibility with respect to their financial disclosures. Even if the judge did find that wife dissipated marital assets, that finding alone does not entitle husband to a dollar-for-dollar credit of his share of dissipated funds. The judge’s findings demonstrated that he considered the alleged dissipation, but concluded the withdrawals did not diminish the overwhelmingly greater contributions of wife.

Judgment affirmed.

Noemi Padilla v. Edwin Ishoo
15-P-1080 (May 19, 2016)

Defendant appeals an order extending an abuse prevention order that expired during the pendency of the appeal. Notwithstanding the expiration of the order, the Appeals Court vacated it.

The parties previously had a romantic relationship and defendant was plaintiff’s former employer. On August 26, 2013, plaintiff obtained an ex parte abuse prevention order against defendant based on her allegations that he was harassing her professionally and stalking her. After a hearing on September 11, 2013 where both parties appeared, the order was continued for one year until September 10, 2014. The order was subsequently renewed for an additional 6 months until March 31, 2015 for a hearing to determine whether the order should become permanent. At the hearing on March 31, 2015, the judge did not credit the plaintiff’s testimony that she was in imminent fear of physical harm from defendant. Over defendant’s objection the order was extended for 6 months. Defendant timely appealed. During the pendency of the appeal, the order expired.

As an initial matter, the Appeals Court determined that expiration of the order did not render defendant’s appeal moot where the expired order could still adversely affect defendant and he had a surviving interest in removing the stigma of the order from his name and record. Based upon the record, the Appeals Court concluded that extending the order for an additional six months was an abuse of discretion.

Order vacated.

Monique Normandin v. Christopher Normandin
15-P-804 (May 25, 2016)

Father appeals from a modification judgment of the Probate and Family Court increasing his child support obligation and reducing his parenting time. As grounds for his appeal, father argues that the judgment related to parenting time was an abuse of discretion and that the trial judge failed to consider his financial support of the parties’ emancipated daughter when calculating child support. The Appeals Court affirmed the judgment related to child support, but reversed the judgment related to parenting time and remanded for further proceedings consistent with its opinion.

The parties divorced in 2008 after approximately 9 years of marriage. They have two children, a daughter who was emancipated at the time of the modification proceedings and a son who resides with mother. The parties’ Separation Agreement provided that the parties would share legal and physical custody of the children, who would reside primarily with mother, and that father would pay $200.00 per week as child support until he obtained employment. The parties agreed to an equal parenting plan, taking into account husband’s employment schedule.

Both parties filed complaints for modification in 2013. Mother sought an increased amount of child support based on father’s current income as well as a more specific parenting schedule; father sought sole physical and legal custody of the parties’ daughter and a shared parenting schedule for the parties’ son. By that time, father had obtained employment and was earning $1,615 per week, the parties’ daughter was attending trade school part-time and resided primarily with father and the parties’ son was involved in numerous extracurricular activities. The parenting schedule had evolved allowing father to have the son every other weekend and every Tuesday and Thursday overnight.

At trial, father conceded that he would not take the parties’ son to extracurricular activities that conflicted with church services at 7:00 p.m. on Tuesday evenings and Sundays, but that he would take his son to extracurricular activities even if they conflicted with other family plans. As part of father’s religion, he does not participate in holidays. The parties’ son participated in Tae Kwon Do classes from 4:00 p.m. until 5:00 p.m. on Tuesday evenings. In addition, their son participated in Boy Scouts from 7:00 p.m. until 8:00 p.m. on Wednesday evenings. After trial, father’s child support obligation was increased to $276.00 per week and his parenting plan was decreased to parenting time on Wednesday evenings from 3:00 p.m. until 8:00 p.m. and every other weekend. In addition, the judge provided the parties with a vacation schedule that provided father with parenting time on Father’s Day, Christmas, alternating school vacations and extended vacations for summer.

The Appeals Court did not consider the judge’s implicit findings that a material change in circumstance had occurred with respect to parenting and child support. However, the Appeals Court did hold that the parenting plan entered by the trial judge was an abuse of discretion where the existing schedule did not pose any conflicts on the son’s extracurricular activities. With respect to child support, the Appeals Court found no error in the judge’s decision. The trial judge properly concluded that pursuant to the terms of the parties’ Separation Agreement, their daughter was emancipated and, in addition, father failed to seek child support in his complaint for modification. Accordingly, the trial judge did not commit an abuse of discretion when she awarded child support based on the parties’ financial statements and the Child Support Guidelines.

Judgment related to parenting time vacated and remanded for further proceedings; judgment related to child support affirmed.

Monica Erin Busch v. Aaron J. Busch
15-P-1243 (May 27, 2016)

Defendant appeals the one year extension of an abuse prevention order entered against him on behalf of his daughter. The Appeals Court affirmed the order.

Plaintiff is the daughter of defendant. In 2012, defendant was convicted of sexually abusing the plaintiff and was incarcerated for a period of time. After his release, defendant moved to South Carolina. Defendant began sending plaintiff text messages seeking to reestablish contact with her. These messages were characterized as manic, unrelenting, and potentially menacing. Plaintiff repeatedly requested that defendant cease contacting her. Plaintiff obtained an ex parte temporary abuse prevention order against defendant. At the subsequent hearing, plaintiff testified that she remained in fear of imminent serious bodily harm from defendant. A list of the text messages by both parties was submitted to the judge during the hearing. After hearing, the judge extended the order for a period of one year.

Defendant appeals the order, arguing that there was no basis to establish the continuing need for the one-year order. The Appeals Court noted that although the text messages themselves did not contain any direct threats of physical harm to plaintiff, when considered in the context of the history of the parties, they were sufficient to support a finding that plaintiff was in reasonable fear of imminent physical harm from defendant. The fact that defendant now resides in South Carolina did not undermine this decision.

Order affirmed.

Orlando Rodrigues v. Christin M. Felix
15-P-939 (May 31, 2016)

Mother appeals a modification judgment of the Probate and Family Court increasing father’s parenting time with the parties’ child. As grounds for her appeal, mother argues that: (i) father did not prove a sufficient material change of circumstance at trial to modify parenting time; (ii) the judge failed to make findings of fact concerning allegations of past and present physical abuse against mother and child; and (iii) the judge denied mother’s motion to amend her counterclaim to terminate all of father’s parenting time. The Appeals Court vacated the judgment as it relates to father’s visitation schedule.

Following father’s complaint for modification and mother’s counterclaim for modification, the judge issued a judgment expanding father’s parenting time with the parties’ son. The judge did not issue any findings in support of his judgment. The judge also failed to issue any specific findings addressing mother’s claim that father has physically abused mother and the minor child. As a result, the Appeals Court was unable to determine whether the judge did not credit mother’s testimony, or inadvertently disregarded this testimony.

Judgment vacated as it relates to parenting time and case remanded to Probate and Family Court for explicit findings of fact and a statement of rationale.

Brumleve v. Ouellette
15-P-294 (June 28, 2016)

Parties were married for twenty-one years. The parties entered into a separation agreement in 2007, which merged with the judgment of divorce. Within said agreement, husband was to pay $500.00 per week in child support and $1,000.00 per week in alimony. In 2011, husband filed a complaint for modification seeking to terminate child support and reduce alimony. A modification judgment entered eliminating his child support obligation. The judge did not reduce the alimony payments because he found that there was no material change in circumstances. In 2013, wife filed a complaint for modification seeking to increase her alimony. Husband counterclaimed requesting a reduction or termination of his alimony payments due to wife’s cohabitation for more than three months. A modification judgment entered reducing husband’s alimony. Wife appealed.

Under the Alimony Reform Act of 2011, general term alimony will be terminated, reduced or suspended upon cohabitation of the recipient spouse; however, said provision applies prospectively. Consequently, cohabitation of the recipient spouse will only warrant a modification of alimony if as a result of said cohabitation, the recipient spouse’s economic circumstances materially change. In this case, the Appeals Court stated that there was no indication that wife’s earning capacity or expenses had materially changed. Additionally, her cohabitation began prior to 2012, thereby precluding it as a material change. Further, husband’s income had not materially changed. Therefore, the reduction in alimony was in error.

Judgment vacated and remanded.

Gallagher v. Gallagher
15-P-119 (June 24, 2016)

The parties were married for over twenty years and divorced in 2006. The judgment of divorce nisi awarded wife weekly alimony in the amount of $800.00, terminating upon wife’s remarriage or death of either party. Husband filed a complaint for modification in 2010 seeking a reduction or termination of his alimony obligation. As grounds therefore, husband stated that his business had closed; consequently, he could no longer meet his alimony obligation. After trial, the judge found that husband’s income had decreased approximately $50,000.00 constituting a material change in circumstances. The judge reduced husband’s alimony obligation to $750.00 per week. Husband appealed arguing the judge failed to attribute income to wife and did not properly account for husband’s yearly fluctuation in income.

The Appeals Court affirmed stating that the judge found wife to be trained as a teacher but unemployed at the time of trial, thereby making husband’s alimony payments her sole source of income. Said findings were fully supported by wife’s testimony at trial that she suffered from numerous medical conditions and considered herself disabled and unable to work. The Lower Court Judge had properly limited her analysis to the current financial situation of the parties. Further, with regard to the husband’s income, the judge utilized his financial statement to calculate his annual income and to ultimately reduce his obligation. The Appeals Court stated this did not constitute an abuse of discretion.

Judgment affirmed.

Gordon v. Goodman
15-P-1310 (June 7, 2016)

After a trial in 2007, the parties were divorced by judgment nisi. In said judgment, the judge gave the parties joint physical custody but gave father sole legal custody after finding that mother inhibited the ability of the parties to communicate and demonstrated a lack of appreciation for father’s role and desire to bond with the child. Although she granted father sole legal custody, the judge included two qualifications: 1. both parties had to communicate with each other in good faith when attempting to make major decisions affecting the well-being of the child; and 2. Mother had the sole authority to make decisions regarding the child’s medical needs. The judge acknowledged that if mother made efforts to deal with her issues, she would most likely be able to regain joint legal custody.

In 2011, mother filed a complaint for modification to regain joint legal custody. In 2015, a trial was held on said modification and mother was granted joint legal custody. The judge found that mother had participated in counseling and had evolved in her thinking towards father and his respective role with the child. Further, both parties had effectively communicated to make decisions regarding the best interests of the child. Father appealed arguing that this decision was not in the best interests of the child.

The Appeals Court stated that the efforts mother made to regain joint legal custody constituted a material change in circumstances. Additionally, the Appeals Court stated that mother’s failure to present evidence of how the prior custody arrangement negatively impacted the child did not preclude the judge’s finding that restoring joint legal custody would be in the child’s best interests.

Judgment affirmed.

Schulman v. Schulman
15-P-418 (June 3, 2016)

In a further judgment of divorce, husband was ordered to pay wife alimony in the amount of $1,313.00 per week as well as a percentage of additional gross income from other forms of compensation if and when received. Husband appealed arguing, in relevant part, that said obligation exceeded wife’s need and his ability to pay. The judge found that the parties had enjoyed an upper class lifestyle during their marriage. Husband was the primary wage earner, receiving $195,000.00 annually as a base salary with the opportunity for bonuses. The judge assessed that wife needed $1,313.00 to meet her living expenses and maintain a lifestyle similar to that enjoyed during the marriage. Consequently, husband states the additional alimony he was ordered to pay was excessive. The Appeals Court agreed with the lower court Judge stating that the $1,313.00 alimony award was not enough to cover all of wife’s weekly expenses and that wife’s expenses were less than one half of husband’s expenses, thereby making the award not excessive.

With regard to husband’s ability to pay, the judge excluded husband’s income from capital gains, dividend and interest income from the alimony calculation. Further, the judge properly considered all of husband’s current income in determining alimony. Additionally, the parties agreed to share the costs of the child’s college expenses at trial. The judge ordered husband to pay two-thirds of said expenses. Husband argued that this was an abuse of discretion but failed to cite legal authority in support of same. Therefore, the Appeals Court declined to consider it.

Further judgment of divorce affirmed.