Spring/Summer 2016: Reported Cases Summaries

by Laurel Spallone and Elizabeth Silvestri

L.B. v. Chief Justice of the Probate and Family Court Department
SJC-11892 (May 4, 2016)

The Supreme Judicial Court (“SJC”) held that indigent parents have a due process right to counsel to prosecute a meritorious petition to remove a guardian for a minor child. Similarly, indigent parents have a due process right to counsel when seeking to modify the terms of a guardianship by substantially changing the terms of visitation, provided the parent presents a meritorious claim for modification.

Plaintiffs in this action are mothers of minor children for whom guardians were appointed. One mother sought removal of the guardianship pursuant to G. L. c. 190B, § 5-212 and the other mother sought to modify and expand visitation with her child who was under guardianship. Both plaintiffs sought the appointment of counsel in their respective cases. Both requests were denied based upon the language in a memorandum issued by the Chief Justice of the Probate & Family Court on February 20, 2015 in response to the holding in Guardianship of V.V., that indigent parents are entitled to counsel in proceedings to appoint a guardian only. A Single Justice of the SJC reserved and reported the issues of whether indigent parents seeking counsel to terminate or modify the provisions of a guardianship are entitled to appointment of counsel to the full bench.

In addressing the plaintiffs’ arguments that due process requires appointment of counsel to parents in removal of guardian and modification of guardianship proceedings, the SJC balanced the fundamental rights and interests of parents in their relationship with their children and the risk of erroneous deprivation of those rights against the government’s interest in efficient and economic administration of affairs. In balancing those interests, the SJC held that a parent seeking appointed counsel must make a preliminary showing that he or she has a meritorious claim that is worthy of being presented to and considered by the court prior to appointment of counsel.

The SJC also provided guidance for the Probate and Family Court when implementing these rights, including revised forms, consideration of whether a request for counsel should be made prior to filing a petition to remove a guardian or modify the terms of visitation, and the creation of guidelines to discourage the filing of unnecessarily frequent petitions by identifying different classes of petitions according to what relief is being sought.


Lora Ann Gravlin v. David E. Gravlin, Jr.
15-P-448 (May 5, 2016)

Father appeals from four Probate and Family Court judgments that issued following confirmation of an arbitration award in favor of his former wife. As grounds for his appeal, father argues that the Probate and Family Court judge improperly delegated her authority by allowing the parties’ joint motion to submit their claims to binding arbitration and abused her discretion in entering judgments based upon the award of the arbitrator. The Appeals Court affirmed the judgments of the Probate and Family Court.

Father filed a complaint for modification seeking to reduce his child support obligation. Mother then filed a counterclaim for modification and multiple complaints for contempt against father. With the assistance of counsel, the parties filed a joint motion to submit all pending complaints to binding arbitration and that the decision of the arbitrator would be binding and not subject to appeal. The judge allowed the motion and removed the case from her trial list. After hearing, the arbitrator issued a decision and award wherein he denied father’s complaint for modification, dismissed mother’s counterclaim for modification and one complaint for contempt, and found father in contempt on three complaints for contempt filed by mother. The arbitrator denied father’s motion to reconsider, but issued an amended award. The judge then issued judgments consistent with the decision of the arbitrator.

Father appeals the judgments and argues that the arbitrator failed to make appropriate findings to justify his refusal to modify child support and used faulty reasoning in reaching his decision. In upholding the judgments, the Appeals Court rejected father’s claim that the Probate and Family Court judge improperly delegated her authority because the appointment of the arbitrator was by agreement of the parties as opposed to an order that compelled the parties submit to binding arbitration. Father waived his claim that the judge abused her discretion in confirming the award of the arbitrator because he did not include a transcript of the proceedings wherein the judge confirmed the award.

The Appeals Court commented that although no statute explicitly governs arbitration within the Probate and Family Court, the principles governing the review of arbitration awards apply equally. Judicial review of an arbitrator's award is generally narrowed to the scope of determining whether the arbitrator exceeded his authority by granting relief beyond the scope of arbitration, what the parties bound themselves to in entering into the arbitration agreement, whether the relief awarded is prohibited by law, or the arbitrator’s decision was based on fraud, arbitrary conduct or procedural irregularities in the hearing.

Judgments affirmed.


Julia Allen v. Barbara Allen
15-P-643, May 19, 2016

Defendant appeals from an ex parte abuse prevention order that terminated following a hearing with notice where both parties appeared. The Appeals Court held that an ex parte abuse prevention order that terminates after a hearing with notice is not subject to appellate review.

In reaching its decision, the Appeals Court distinguished between cases where an abuse prevention order is terminated and law enforcement is directed to destroy its records of the order versus cases where an abuse prevention order expires, subjecting the defendant to collateral consequences as a result of the existence of the order. Here, defendant’s appeal was effectively moot because she could not obtain any additional relief even if she were successful on appeal. Concurrent with termination, law enforcement was ordered to destroy all records of the ex parte order. Although a record of the order will remain on the Statewide domestic violence record-keeping system (DVRS), that record is available to only law enforcement and judges. Records may be expunged from the DVRS only upon a showing by clear and convincing evidence that the order was obtained through fraud upon the court; a successful appeal is not grounds to expunge a record in the DVRS.

Appeal dismissed as moot.


Zoë Tiberius Quinn v. Eron Gjoni
15-P-540 (May 19, 2016)

Defendant appeals the terms of an abuse prevention order that restrict him from posting information about plaintiff online on the grounds that it interferes with his First Amendment rights pursuant to the United States Constitution. During the pendency of defendant’s appeal, the underlying abuse prevention order was terminated. The defendant requests that the Appeals Court still consider his argument for three reasons: (i) defendant is susceptible to criminal prosecution for allegedly having violated the order while it was still in effect; (ii) it is a matter of public importance, capable of repetition, yet evading review; and (iii) the judge extended the order without adequate process because he was denied an opportunity to cross examine plaintiff.

Plaintiff is a video game designer who has become a controversial figure in gaming circles. She dated defendant for a several months. Plaintiff obtained an ex parte abuse prevention order against defendant that was later extended for one year after hearing. In support of her request, plaintiff alleged that defendant was violent towards her on one occasion, and after the parties’ relationship ended, defendant published a lengthy message online about plaintiff containing personal information that incited many third parties to harass plaintiff and make numerous death and rape threats against her. At the hearing where both parties appeared, the trial judge denied defendant’s request to cross-examine plaintiff. The trial judge issued an abuse prevention order prohibiting defendant from abusing plaintiff, contacting her, and ordered defendant “not to post any further information about [plaintiff] or her personal life online or to encourage ‘hate mobs.’” Defendant filed a timely appeal. Four months later, and while defendant’s appeal was pending, plaintiff filed a motion to have the order vacated because it exacerbated the situation. Plaintiff’s motion was allowed after hearing and law enforcement agencies were directed to destroy all records of the order.

As a threshold matter, the Appeals Court agreed with plaintiff that the trial judge did not exceed his authority by terminating the abuse prevention order while an appeal is pending. As a result of the termination of the underlying order, plaintiff argued that defendant’s appeal was moot and should be dismissed. The Appeals Court agreed. Defendant’s argument that he was still susceptible to prosecution for violating the order has no bearing on his First Amendment challenge to the order because he could still be prosecuted for violation of the order regardless of its validity. (Subsequent to the filing of defendant’s reply brief, the District Attorney’s office issued a nolle prosequi of his case). The Appeals Court declined to address defendant’s appeal on the First Amendment grounds because both parties did not fully brief the issue. Finally, defendant’s argument that the order was extended without providing him with adequate process, even if successful, will not provide him with any additional relief as the order was terminated so he longer has a cognizable interest in whether the order was lawfully issued.

Appeal dismissed as moot.


Guardianship of B.V.G.
SJC-11925 (May 23, 2016)

Maternal grandfather (grandfather) appeals from a Probate and Family Court judge’s denial of his motion to intervene in guardianship proceedings involving his granddaughter, B.V.G. on the grounds that he lacks standing to intervene because he is not an “interested person” as defined by G. L. c. 190B, §5-306. The Appeals Court affirmed the denial of grandfather’s motion on the grounds that although grandfather was an interested person, B.V.G.’s interests were adequately represented by her counsel and a Guardian ad Litem (GAL). The Supreme Judicial Court (SJC) allowed grandfather’s petition for further appellate review. After further appellate review, the order denying grandfather’s motion to intervene was reversed and case remanded to the Probate and Family Court so that grandfather may intervene to pursue his claim that the guardianship should be limited because it is in B.V.G.’s best interests that she be permitted to communicate with grandfather if she continues to express a desire to do so.

B.V.G. is a young woman with intellectual disabilities. B.V.G.’s parents are divorced and B.V.G.’s father (father) was awarded sole legal and physical custody of B.V.G. during her parents’ divorce. When B.V.G. reached the age of 18 in 2011, father was appointed to act as her temporary guardian. The terms of the temporary guardianship authorized the guardian to determine with whom B.V.G. socialized, with the exception of her mother. Father did not permit B.V.G. to maintain contact with grandfather, although in the past she had a relationship with him and presently expressed a desire to maintain contact with grandfather. In 2013, father sought to be named B.V.G.’s permanent guardian. By stipulation, grandfather and B.V.G. were permitted to exchange one email per day, though B.V.G.’s residential treatment program did not provide her with access to email and father did not permit B.V.G. to exchange emails with grandfather when she was at home on weekends.

Grandfather filed a motion to intervene in the permanent guardianship proceedings, seeking to limit father’s ability to restrict B.V.G.’s access to him. In support of his request, grandfather argued that he was an “interested person” within the meaning of G. L. c. 190B, §5-306 (c). The Probate and Family Judge denied grandfather’s motions finding that he was not an “interested person.” Father ultimately conceded that grandfather has an interest in B.V.G.’s welfare, but maintains that as guardian he may limit B.V.G.’s contact with grandfather absent an order that he not do so.

After careful analysis, the SJC concluded that an “interested person” as defined by G. L. c. 190B, § 1-201 and within the meaning of G. L. c. 190B, §5-306 (c) includes a person “interest in the welfare of the incapacitated person.” Once a proposed intervener is determined to be an interested person, nothing more is required to establish that person’s entitlement to intervene as a matter of right. Based on the undisputed facts in the record, the SJC determined that grandfather is an interested person within the meaning of the statute. In so holding, the SJC rejected the argument of father that grandfather has no right to intervene under Mass. R. Civ. P. 24 (a) because this argument does not take into consideration the plan language of G. L. c. 190B, §5-306 (c). At oral argument, father conceded that B.V.G. expressed an interest in maintaining a relationship with grandfather, and nothing on the record suggested such a relationship would be harmful to B.V.G. Father has, however, maintained that as B.V.G.’s guardian, he may restrict B.V.G.’s relationship with her grandfather absent an express limitation that he should not do so.

In addressing the holding of the Appeals Court, that B.V.G.’s interests were adequately represented by her counsel and a GAL, the SJC noted that nothing in the statutory language or legislative history suggests that an interested person is not adequately represented before being permitted to intervene to limit a guardianship. Moreover, there is a stated legislative preference encouraging an incapacitated person’s protected interest in a limited guardianship.

Order denying grandfather’s motion to intervene reversed; case remanded to Probate and Family Court for further proceedings consistent with opinion.


DeMarco v. DeMarco
16-P-109 (June 24, 2016)

The parties divorced in 2010. Their separation agreement, which merged with the judgment of divorce, included an alimony provision stating, in relevant part, that Husband would pay alimony to Wife until the death of either party, Wife’s remarriage, or when Husband no longer earned income after the age of 68. In 2011, the Alimony Reform Act was enacted, providing that general term alimony obligations terminate upon the obligor reaching full retirement age. Consequently, upon reaching retirement age, Husband stopped paying alimony. Wife filed a complaint for contempt and Husband filed a complaint for modification. A trial on both contempts was held during which the parties reached a surviving settlement agreement largely because of the judge’s and the attorneys’ representations that the Act applied retroactively.

On January 30, 2015, the SJC issued a series of decisions holding that the retirement provision under the Act applied prospectively. Consequently, Wife filed a motion for relief from the judgments pursuant to Mass. R. Dom. Rel. P. 60(b)(5) and (6) and a complaint in equity, seeking reinstatement of the former alimony provision. The judge granted said motion finding that the reliance on the Court’s misinterpretation constituted an extraordinary circumstance warranting relief. Husband filed a petition pursuant to M.G.L. c. 231, Section 118. A single justice stayed the order and granted Husband leave. The Appeals Court stated that the subsequent clarification of the Act did not constitute an extraordinary circumstance for purposes of Rule 60(b)(6). Further, the Appeals Court acknowledged that said agreement survived, thereby foreclosing on the ability to alter same.

Motion for relief reversed and judgments entered February 20, 2014 reinstated.


Duff-Kareores v. Kareores
SJC-11975 (June 15, 2016)

Husband appealed a judgment from the Probate and Family Court after the judge concluded that the length of the parties’ marriage for determining the durational limits of general term alimony was from the date of the parties’ first marriage through the date Husband was served with the second Complaint for Divorce. The SJC took up the appeal on its own initiative.

The parties married in 1995. In 2003, Wife filed for divorce. The parties entered into a separation agreement, which was incorporated into the judgment of divorce nisi. Said agreement stated that Husband would pay Wife alimony. Subsequently, the parties reconciled and in 2007, Husband moved back into the marital home. They remarried in 2012; however, Wife filed for divorce in 2013. At trial, the judge found that the length of the second marriage was only six months but concluded that the parties’ economic marital partnership began during their cohabitation in 2007. Further, the parties were married for almost eight years prior to the first divorce. Consequently, the judge stated that the duration of parties’ marriage for alimony purposes began on the date of the parties’ first marriage through the service of the complaint for divorce of the second marriage, totaling approximately eighteen years.

The SJC stated that this calculation was in error. Pursuant to the definitions under M.G.L. c. 208, Section 48 and Section 49 as well as legislative intent, a judge can adjust the duration or amount of an alimony award if the parties share a common household and are engaged in an economic marital partnership. The SJC concluded that there was sufficient evidence at trial that the parties maintained a common household during their cohabitation, such as their presentation to the community that they were married. Further, Husband functioned as the primary financial provider while Wife was the primary caretaker of the children, essentially equivalent to their roles in the first marriage, thereby constituting their engagement in an economic marital partnership. Consequently, the judge was correct to include the parties’ period of cohabitation in determining the length of the second marriage. Further, the judge correctly determined the length of the first marriage; however, the judge erred in his determination by including the period of time during which the parties ended their first marriage and had not begun cohabitating with one another. There is no support in the relevant statute for including this period in the length of the marriage.

Judgment establishing amount and duration of alimony vacated and remanded to the Probate and Family Court for further proceedings.


Rosenwasser v. Rosenwasser
14-P-1601 (June 17, 2016)

Father appealed from a modification judgment denying his request to remove the parties’ minor child to Florida. Mother cross-appealed portion of said judgment that reduced Father’s alimony obligations. The parties married in 1990 and lived in Florida for seven years before moving to Massachusetts. Father was a partner in a law firm that had offices in Florida and Massachusetts. He primarily worked in the Massachusetts office but visited the Florida office approximately once a month. The parties separated in 2010 while Mother was pregnant with the parties’ only child. In 2011, the parties were divorced pursuant to a separation agreement incorporated and merged in the judgment of divorce. Within said agreement, Mother was awarded primary physical custody and Father parenting time. Further, Father was to pay Mother unallocated support of $42,000.00 per year and additional support equivalent to a percentage of his income between $120,000.00 and $350,000.00. Shortly thereafter, Mother became unable to care for the child due to mental health issues. Consequently, Father assumed the role as primary caretaker. Father filed a complaint for modification seeking primary physical custody and a reduction in his support obligation. He later amended said complaint to include a request to remove the child to Florida where he had a support system. The parties entered into a partial agreement to transfer custody; however, the issues of support reduction and removal went to trial. Prior to trial, Mother had missed nearly all of her parenting time but did exercise said time during the trial.

The judge denied Father’s removal request stating that while the move would provide Father a real advantage, it was not in the best interests of the child as articulated under the Yannas two pronged test. In deciding same, the judge found that the move would provide Father a real advantage because his income would increase or stay the same, his business overhead would decrease, and he would have the emotional support system of his family, the majority of whom lived in Florida and would help with the care of the child. In evaluating the best interests of the child, the judge found that the child’s extended family primarily lived in Florida, presenting an advantage of the move; however, the judge found greater disadvantages to the removal. Specifically, the judge found that the child had a close bond with Mother and that if the child was removed, her relationship with Mother would greatly suffer. Further, the judge found that the move would disadvantage the child because Massachusetts has better schools. The judge found that the alternative parenting plans offered did not reasonably accommodate Mother’s mental health issues, thereby foreclosing same. Consequently, the judge found that the move was not in the child’s best interests. The Appeals Court disagreed stating that the judge failed to address how the move would increase Father’s happiness and improve his financial situation and in turn benefit the child. Additionally, the judge improperly emphasized Mother’s recent efforts to develop a relationship with the child and minimized her previous lack of effort. The Appeals Court vacated the portion of the judgment denying the removal request and remanded it to the trial judge for further findings. In regards to alimony, the Appeals Court stated that the judge failed to account for the difference between Father’s income, which had decreased, and the threshold of the additional support started. Therefore, the portion of the modification judgment pertaining to alimony was vacated and remanded as well.

Removal and alimony portions of July 22, 2014 modification judgment vacated and remanded for further proceedings.