Fall 2016: 128 Summaries

by Grace C. Roessler, Elizabeth Silvestri and Ethan Rittershaus

Eddy v. Franco
Decided July 8, 2016
15-P-1486

Primary Issue: Stay of Removal Judgment Denied

Thomas Eddy, the Father, appealed from an order of a single justice denying his petition to stay a judgment of the Probate and Family Court pursuant to Mass. R. A P. 6(a). The Probate and Family Court judgment allowed the defendant Mother, Kenia Franco, to remove the parties’ child to Florida, set prospective child support obligations, granted retroactive child support, and apportioned guardian ad litem fees against Mr. Eddy. The Father sought to stay the Judgment.

The Appeals Court noted that a single justice has broad discretion in deciding whether to stay a judgment under Rule 6(a) and set forth the four tests an appellant litigator must ordinarily meet to be successful in staying a judgment (citing C.E. v J.E., 472 Mass 1016, 1017 (2015)):

(1)   The likelihood of appellant’s success on the merits;

(2)   The likelihood of irreparable harm to appellant if the court denies the stay;

(3)   The absence of substantial harm to other parties if the stay issues; and

(4)   The absence of harm to the public interest from granting the stay.


The Appeals Court reviewed the trial judge’s findings of fact to determine whether the single justice appropriately assessed each of the factors when he denied the Father’s petition. The Court noted that of the four factors, the first three are of “primary significance.”

With respect to the first factor, the trial judge found the Mother to be credible, and that the Mother was sincere in her desire to move to Florida for reasons other than disrupting the relationship between the Father and the child. Thus, the single justice may have found that the Father was not likely to prevail on the merits.

With respect to the second factor, the trial judge found that Father lived in New York and visited his daughter in Massachusetts, away from his home state of New York. Thus, the single justice may have found that there was no likely irreparable harm to the Father if the stay was denied considering the Father already traveled out of state to visit his daughter. The Appeals Court acknowledged that the Father would simply travel farther to continue his visits.

With respect to the third factor, the Appeals Court did not cite directly to the trial court’s findings, but noted that the single justice may have found that the Mother or the child would suffer substantial harm where the child had already moved to Florida and the Father had already commenced visitation there.

The Appeals Court concluded that the single justice may have determined “some or all” of the first three factors against granting the Father’s petition, and that balancing of the factors weighed in the Mother’s favor. The Appeals Court affirmed the single justice’s denial of the Father’s motion to stay.

Ely v. Scola
Decided July 26, 2016
15-P-1501

 Primary Issue: Modification of Child Support

 Father appealed from a modification judgment of the Probate and Family Court, alleging that the trial judge failed to credit him with child support payments he made for a different child, and that the case should have been dismissed for inactivity under rule 408(2) of the Supplemental Rules of the Probate and Family Court (2012). Father also appealed the trial judge’s denial of his motion for reconsideration.

The Modification Judgment increased the Father’s weekly child support obligation and ordered him to pay an additional $100.00 per week towards a $16,225 child support arrearage, based on the trial court judge’s findings of fact regarding the incomes of both Mother and Father from 2010 through 2014 and the application of the child support guidelines.

The Appeals Court found no abuse of discretion by the trial court judge where the Father failed to raise his argument as to crediting the Father with child support payments made to a different child until after trial in a post trial memorandum. The Appeals Court noted that the appendix to the appeal did not contain any materials to support Father’s assertion that he raised the issue at trial.

The Appeals Court also ruled that the Father failed to raise the issue of inactivity with the Probate and Family Court. The record does not show inactivity in the case for six months, nor was there evidence that the register of probate mailed a notice of inactivity to the parties to trigger application of Rule 408(2).

The Appeals Court affirmed the Modification Judgment.

DeAngelis v. DeAngelis
Decided July 28, 2016
15-P-1329
 

Primary Issue: Rule 60(b) Uses & Entering Into Voluntary Stipulations After Alimony Reform Act

The Husband appealed the Probate and Family Court judge’s denial for relief from the judgment of contempt.

In September of 2007, the Wife filed a complaint for divorce. In January 2008, the parties entered into a stipulation that obligated the Husband to pay child support for the children of the marriage, unless biological testing revealed that the children were not the Husband’s, in which case the Husband would pay the Wife alimony for six years. Testing revealed the Husband was not the father of the children. In 2009, a judgment of divorce entered obligating the parties to abide by their stipulation. The Husband’s alimony obligation did not terminate upon the death of either party, and it did not end upon remarriage by the Wife. The Husband appealed the judgment of divorce, but it was dismissed for lack of prosecution. He also did not appeal from the denial of his motions for relief from the judgment.

In 2013, the Wife filed a complaint for contempt, and the Husband filed motions for modification, suspension of alimony payments, and for reimbursement for overpayment of alimony. The trial judge denied the motions and dismissed the modification action. The Husband did not appeal. Instead, the Husband moved for relief from the judgment. His motion was denied, and he did not appeal the decision.

On March 8, 2014, the parties entered into a new stipulation whereby the Husband agreed to pay the Wife $275.00 per week for 57 weeks “in satisfaction of all obligations in the matter”, except for attorney’s fees being sought by the Wife in connection with the contempt. On May 15, 2014, after a hearing, judgment entered against the Husband, and he was ordered to pay attorney’s fees.

On February 26, 2015, the Husband appealed from the contempt judgment, and moved for relief from the alimony provisions of the divorce judgment under Rule 60(b).  The trial court denied his motion for relief on the basis that the Husband agreed to a schedule of payments after alimony reform became law, and there were no terminating factors such as cohabitation or remarriage of the recipient included in the agreement which became a judgment of the Court on May 8, 2014.

The Appeals Court found that the Husband made a “free, calculated and deliberate choice to submit to an agreed upon decree rather than see a more favorable litigated judgment”, and therefore affirmed the trial court’s decision. The Court noted that Rule 60(b) does not “provide an avenue for challenging legal errors, nor for obtaining relief from errors which are readily collectible on appeal” (citing Pentucket Manor Chronic Hosp.,In. v. Rate Setting Commn., 394 Mass. 233, 236 (1985).

 

Bertolini v. Bertolini
Decided July 28, 2016
15-P-1305

Primary Issue: Judge’s Issuance of Temporary Order Regarding Restraining Order on Property Permissible

The Husband appealed from an order of a single justice denying his relief from a temporary order issued by a judge of the Probate and Family Court during a pending divorce action.

During the divorce proceedings, the Husband and Wife entered into a stipulation, incorporated as a temporary order, to provide that the Husband would not amend, modify, or in any other way change his will or any other estate planning document without written agreement of the Wife or court order. At the time of entering into the stipulation, the Husband had no will or estate plan. Notwithstanding the stipulation, the Husband executed a last will and testament and a revocable trust. The Court ordered the Husband to revoke the will and the estate planning document, but allowed him to “prepare an estate plan for his business and tax purposes so long as the plan provide[d] for” the Wife’s statutory intestate share of his estate or was otherwise acceptable to Wife. The Husband sought relief from the order, arguing that his business, F.B. Packing Company and Frank Bertolino Beef Co., should not be included in the marital estate, and should not be subject to the Temporary Order.

The Appeals Court firmly rejected the Husband’s argument, and noted that “the May 29, 2015 order embodies the purpose of rule 411 and further clarifies the parties’ stipulation.” The Court specifically rejected the Husband’s argument that, because he had no will or estate plan prior to the Temporary Order being issued, his execution of a will and estate plan subsequent to the Order amended, modified, revoked or changed anything or was a violation of the order. The Court ruled that the Husband’s actions “in substance” changed the estate plan. The Court went on to note that “The very nature of this dispute demonstrates why the temporary order maintaining the status quo was appropriate: these arguments can only be resolved upon a fully developed factual record. Upon entry of a judgment of divorce, either party may appeal from, among other things, any perceived errors in the asset division.” The Court did not find error when the trial judge issued the temporary order and denied the Husband’s motion for relief.

 

Schwartz v. Schwartz
Decided July 29, 2016
15-P-789
 

Primary Issue: Amended Judgment of Divorce Vacated and Remanded for Ambiguity and Abuse of Discretion

The Mother appealed from the Amended Judgment of Divorce of the Probate and Family Court on the grounds of ambiguity and abuse of discretion.

On appeal, the Mother challenged first the judge’s order for Father to have parenting time with the parties’ minor children “on all Jewish holidays” when the holidays were not specifically identified in the Amended Judgment. She also contends that the judge erred in finding on the record that the child should spend all Jewish holidays with the Father where the Judge’s finding of facts state that both parents participated in the child’s religious upbringing and the child would benefit from exposure to both parents’ attendance at their respective temples.

Upon reviewing the terms of the Amended Judgment, the Appeals Court agreed with the Mother that the judge’s order did “not enumerate” any Jewish holidays with specificity and left room for differing interpretation of which holidays were included in the Amended Judgment, which requires remand.

The Appeals Court next reviewed the Mother’s claim regarding an abuse of discretion, beginning its analysis by setting forth that the best interests of the child is the “touchstone inquiry” in child custody matters under Custody of Kali, 429 Mass. 834, 840 (2003). Absent clear error, the Appeals Court reviewed the determination of the child’s best interest only for abuse of discretion.

The trial judge made extensive findings detailing how the family celebrated Jewish holidays together. The trial judge noted in the findings that “each party has demonstrated an active interest and involvement in the major…religious… decisions of [the child’s] life”. The Judge also found that the child had been raised Jewish; that the Mother had supported the child’s involvement in Judaism; and that it was “in his best interests for both parties to continue his faith”. The Judge acknowledged that the Mother had converted to Judaism, and that it was in the child’s best interest to be “exposed to and attend services of the particular worship of each parent at his/her respective temple.”

Taking the trial judge’s findings into consideration, the Appeals Court ruled that “the judge’s findings here do not support the ultimate conclusion that the child’s best interests favors granting the father parenting time with the child ‘on all Jewish holidays.’”

The Appeals Court vacated the portion of the Amended Judgment that awarded Father parenting time “on all Jewish holidays” and remanded to a different judge the issue of which parent will have parenting time with the child during each specified Jewish holiday, and determine which event or holiday will control in the event of a conflict of dates.

 

Sadoski v. Blickman
Decided August 1, 2016
15-P-1447

Father appealed from a judgment of contempt entered against him. Previously, mother filed a contempt complaint alleging that father failed to pay for certain of the children’s expenses pursuant to the parties’ divorce judgment. Specifically, she alleged that father failed to pay seventy-five percent of the children’s schooling as well as his portion of the children’s reasonable uninsured medicals and extracurricular activities. A hearing was held that father did not attend. Consequently, a judgment of contempt entered against him. He filed a motion for relief claiming he had made the payments and mother’s representations were fraudulent. His motion was denied and he appealed.

The Appeals Court noted that mother’s complaint alleged four specific times when father refused to pay his share of the child related expenses. There was nothing ambiguous in the detailed divorce judgment that specified the parties’ obligations in regards to the children. Further, the judge acted within his discretion when finding that the facts in mother’s nine page affidavit demonstrated father’s intentional disregarded the judge’s previous order.

Judgment affirmed.

 

Viens v. Viens
Decided August 8, 2016
15-P-478

Husband appealed from an abuse prevention order entered against him. After an altercation between husband and wife, wife successfully obtained an emergency ex-parte abuse prevention order. Subsequently, said order was extended for thirty days and then one year. Husband appealed alleging that there was insufficient evidence.

The Appeals Court agreed stating that as a matter of law, the evidence did not demonstrate a reasonable fear of imminent harm as required. The altercation giving rise to the order consisted of a verbal exchange only. While husband did spit at wife, it did not touch her. Further, the Appeals Court noted that husband had said that wife and her family should be shot but there was no evidence that husband threatened wife with physical harm.

Orders vacated.

 

 

Allen v. Allen
Decided August 11, 2016

15-P-722

Husband appealed from a judgment of divorce arguing that the lower court judge erred in finding the parties’ premarital agreement invalid. Further, he argued that alimony award violated the Alimony Reform Act.

The Appeals Court agreed that the premarital agreement was invalid. At trial, the judge found that wife’s primary language was Portuguese and husband’s was English. While the parties were dating, they often interacted through a third party due to their language barrier. The parties’ testimony at trial surrounding the events leading up to the signing of the premarital agreement and was incongruent. The judge found that at some point, husband brought up the premarital agreement to wife and brought her to his attorney’s office. His attorney did not speak directly to wife because of the language barrier. The attorney advised that husband take wife to an attorney fluent in Portuguese.

Wife found a Portuguese speaking attorney; however, he did not practice family law. He simply translated the agreement to wife and notarized same. Consequently, the judge found that wife was unrepresented in signing the agreement. Further, the judge noted that the agreement contained a significant term of waiver that essentially striped wife of any right to maintenance or support and thereby not meaningful.

Addressing husband’s second argument, the Appeals Court noted that husband did not raise his retirement as a defense to alimony at the trial. Consequently, the Appeals Court declined to address same. Further, the Appeals Court stated that the judge improperly calculated the length of the marriage for alimony purposes. The judge used the date of the divorce judgment as the end of the marriage; however, for alimony purposes, the date of the service of the complaint or petition for divorce constitutes the end of the marriage.

Judgment of divorce awarding alimony reversed and remanded. Judgment otherwise affirmed.


Duchini v. Duchini
Decided August 12, 2016
15-P-695

Wife appealed a judgment on a complaint for modification regarding where the children could attend school. The Appeals Court dismissed the appeal as moot because her son had since graduated from high school and wife was previously awarded primary custody of the daughter.

Additionally, wife appealed an August 2014 judgment on a complaint for contempt regarding husband’s alimony arrearage. The parties stipulated that husband was in arrears of $11,200.00. The judge then ordered husband to reimburse wife at a rate of $400.00 per month. Wife challenged said rate. The Appeals Court stated that in determining a payment plan for arrears, the rate should be set at the maximum amount of the payor’s reasonable capacity to pay in light of the total situation. Since the judge found that husband’s income had not significantly decreased, alimony had positive tax consequences for him and wife timely made child support payments, the Appeals Court stated that the payment plan was too slow. Consequently, the Appeals Court vacated the judgment and remanded the matter.

Further, wife appealed a July 2014 judgment on a second complaint for contempt regarding two incidents of parental interference. The Appeals Court stated that wife was unable to point to a specific action by the husband demonstrating interference with her visitation with their son. In regards to visitation with the daughter, there was evidence that husband was uncooperative in facilitating wife’s pick up of the daughter; however, the Appeals Court stated that there was no abuse of discretion by the lower court judge in finding husband not in contempt.

August 2014 judgment vacated and remanded. July 2014 judgment affirmed. Appeal on judgment on complaint for modification dismissed.

Vaidya v. Shaikh
Decided August 15, 2016
15-P-281

 Wife appealed from an order of a single justice denying her motion to file a late notice of appeal from a judgment of divorce nisi. Wife alleged that said judgment was interlocutory; therefore, she did not have to file a notice of appeal until the nisi period concluded. Instead, wife filed a motion to stay a few days prior to the divorce judgment becoming absolute. After a hearing, the judge denied wife’s motion to stay. Subsequently, she filed a notice of appeal from both the divorce judgment and denial of her motion to stay. The lower court informed wife that her notice of appeal was untimely. Consequently, she filed a motion with a single justice for leave to file a late notice of appeal. The single justice denied said motion noting that wife stated that she waited to file a notice of appeal as part of her litigation strategy.

The Appeals Court stated that pursuant to Massachusetts Rules of Appellate Procedure 14(b), a single justice can enlarge the time for filing a notice of appeal upon a showing of good cause. Wife’s argument that the divorce judgment was interlocutory did not constitute good cause. Therefore, the single justice did not abuse his discretion in denying wife’s motion to file a late notice of appeal.

Order affirmed.

 

Sullivan v. DiNatale
Decided August 24, 2016
15-P-1222

Wife appealed from a judgment entered against her former husband pursuant to her complaint for contempt. Said complaint dealt mainly with husband’s failure to pay their daughter’s college expenses. Due to wife’s failure to provide on appeal the transcripts from the lower court hearings, the Appeals Court only addressed the substance of two of her claims.

In regards to wife’s claim that the judge erred by failing to default husband for not filing an answer and failing to appear at a hearing, the Appeals Court stated that the entry of default is an available option but not required. In regards to wife’s claim that husband should have been held to a higher standard because he may at one time have been an attorney, the Appeals Court noted that wife’s submissions concerning same were inconsistent. Further, she failed to put forth any authority suggesting that said status was relevant to the issues.

Judgment affirmed.

 

Clark v. Clark
90 Mass. App. Ct. 1104

Entered September 8, 2016

15-P-480

Plaintiff, former husband, appealed from a modification judgment of the Probate and Family Court that reduced his child support order prospectively, but maintained his alimony obligation.  He also appealed the denial of his Mass. R. Dom. Rel. P. 52 motion requesting findings of fact.

The parties divorce judgment NISI initially entered on January 9th, 2013 incorporating the parties’ separation agreement, which survived, except for those provisions which related to the four children of the marriage and medical insurance.  Husband was to pay $200.00 per week in alimony, and $800.00 per week as child support.  At the time that the divorce judgment entered, Husband was making approximately $140,000.00 dollars yearly. However, he had suspicions that he was going to be terminated and voluntarily took a new job that had a base yearly salary of $100,000.00 with potential bonuses and commissions.  In March of 2014, he filed a modification; requesting that alimony be terminated and the child support order be adjusted in accordance with the child support guidelines.

After a trial on the modification, the judge found that former Husband’s change in employment was justified and appropriate and reduced the child support obligation to $550.00 per week. The judge declined to modify the alimony award; finding that Husband had not sustained his burden with regard to the issue of alimony. Of note, in February of 2015, former husband also filed a pro se motion for findings of fact pursuant to rule 52(a). The judgment contained a rationale for the decision (albeit, not specifically noted as such). As a result, the judgment served in the Court's view as the findings of fact.

The Appeals Court first turned to the denial of Former Husband’s rule 52(a) motion.  Husband argued that because the judgment had been entered pursuant to G.L. c. 208, §  34, the trial judge was required to enter written findings of fact and conclusions of law within sixty days of the entry of final judgment.  The Appeals Court disagreed, noting that the judgment had not been entered under § 34 but rather under § 28 (Child Support) and § 37 (Modification of an existing Alimony Order). Under those facts, a judge is only required to issue written findings if a written request was received before final argument. As such, former Husband’s request was not timely and there was no error in the trial judge’s decision to deny the motion.

The Appeals Court then examined Husband’s contentions regarding the child support order. Husband argued that the modified child support order should be vacated because the judge failed to make specific findings under G.L. c. 208, § s. 28. Husband argued that because income had not been attributed to him, his child support guidelines were correct, the judge’s deviation from the calculation was arbitrary and capricious, and there was error due to the trial judge making the modification order prospective only.

The Appeals Court first noted that the guidelines, “have a presumptive application to actions to modify existing orders.” Wasson v. Wasson, Mass. App. Ct. 750, 754 (2006). If, after taking into consideration the best interests of the children, the judge deems it appropriate to depart from the guidelines, the resulting order shall be made on findings based on specific facts justifying the deviation as well as the specific facts which make the deviation appropriate. Ibid. The Appeals Court also noted that judges, “have considerable discretion under the guidelines, and the exercise of this discretion may result in a range of proposed support orders.” Richards v. Mason, 54 Mass. App. Ct. 568, 572 (2002).  As result, the Appeals Court reviewed the orders under an abuse of discretion standard.

In the instant case, the judge determined that a modification was appropriate due to a change in former Husband’s employment and declined the request of former wife to attribute income to him. Although, the basis of this decision was not clear from the record, there was a large disparity between former Husband’s guidelines calculation of $530 and the current order of $800. This inconsistency alone was sufficient to permit the judge to modify the order. Morales v Morales, 464 Mass. 507, 511 (2013). While, the Appeals Court noted that specific findings would have been preferable, the facts in the record were sufficient to support the de minimus deviation from former Husband’s proposed guidelines.  There was also evidence in the record that Husband’s new job required travel which would result in less parenting time and former wife paid most to all of the children’s extra-curricular activities. The Court concluded, that while the findings did not specifically state that the guidelines would not yield an appropriate support payment, that conclusion may be implied from the entirety of the judge’s findings. Buckley v. Buckley, 42 Mass. App. Ct. 718, 728 (1997).

Finally, the Appeals Court turned the Husband’s contention that the judge erred in failing to modify or terminate his alimony obligation because the judge utilized all of former husband’s income and thus, engaged in impermissible double dipping under G.L. c. 208 § 53(c)(2). Because there was a paucity of information in the record regarding alimony, former husband asserted that there was no basis for the judge’s decision to decline to modify the alimony award. The Appeals Court disagreed, stating that the judge found that, “there was virtually no probative evidence presented [at trial] regarding the alimony issue by either party.” As a result, the Appeals Court found that former Husband had not sustained his burden. All lower court orders were affirmed.

Henao v. Abernathy
90 Mass. App. Ct. 1107
Entered September 27, 2016

14-P-845
 

The Defendant, Barbra Abernathy, appealed from the extension of a G.L. c. 258E harassment prevention order. The 258E order was first issued on April 12, 2013. The parties lived in the same condominium complex, with the Plaintiff living directly below the Defendant.  Shortly after the defendant moved in, she began making, “disturbing loud and frightening noises on a daily basis.” The noises in question included “repeated banging, door slamming, stomping, slamming kitchen cabinets, and throwing objects at the floor.” These disturbances typically occurred between 10PM and 8AM. Prior to the issuance of the order, the police had been called for the noise disturbances on 45 separate occasions. When police officers were present at one such event, the banging was so intense that plaster was falling off the ceiling.

On Appeal, the defendant challenged the order saying that there was insufficient evidence to justify the issuance of the original ex parte order and its attendant extensions. While the defendant agreed that the behavior was bothersome and obnoxious, it did not rise to the level of malicious intent required by the statute.

Because the Defendant had not raised this defense against the initial order or at the extension hearing, the Appeals Court did not address it. Iamele v Asselin, 444 Mass. 734, 742 (2005) (no appeal was taken from the original order and, thus, "[i]ts underlying basis was not to be reviewed, nor its validity second guessed at the extension hearing"). The Appeals Court instead turned to the only remaining question: whether or not the order should have been extended.  To support the issuance of a 258E order, a plaintiff must demonstrate ‘harassment’ G.L. c. 258E, § 3 which is defined as: “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse, or damage to property, that does in fact cause fear, intimidation, abuse or damage to property.” G.L. c. 258E, § 1. Further, the fear as described is defined as, “fear of physical harm or fear of physical damage to property.” Id.

At hearing, the plaintiff bears the burden of proving that each of these three qualifying acts was maliciously intended, which is defined as being characterized by cruelty, hostility, or revenge. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015).

In the instant case, the judge was to consider all the evidence, this included: multiple violations of the existing order, pending criminal charges stemming from the violations of the order, and the likelihood of future encounters between the parties in the course of their daily activities. Iamele v Asselin, 444 Mass. 734, 740 (2005).

The Appeals court noted that no one factor is likely to be determinative and each case presents to the finder of fact a different constellation of facts, the evaluation of which will draw heavily on credibility determinations. While there certainly are cases where excessive noise would not justify the issuance of the order, considering all facts of this case, the Appeals Court would not second guess the trial judge. Lower Court orders affirmed.

Portanova v. Orme
90 Mass. App. Ct. 1107

Entered September 27, 2016

15-p-1283
 

Defendant Orme, appealed a District Court judge’s decision to issue an abuse prevention order under G.L. c. 209A. The Defendant claimed that the plaintiff failed to prove by a preponderance of the evidence that she feared imminent serious physical harm from the defendant on her own behalf and her dog. Orme argued further that the trial judge improperly applied the statute.

The Appeals Court first turned to the definition of abuse under G. L c. 209A, § (1) (b). Abuse is defined occurs between household members when one, “places another in fear of imminent serious physical harm.” In seeking an initial order for relief, the plaintiff must show, by a preponderance of the evidence, “that he or she is currently in fear of imminent serious physical harm, as well as that the fear is reasonable.” Iamele v. Asselin, 444 Mass. 734, 737 (2005).

In the instant case, the Appeals Court noted that there was ample evidence to support the issuance of the initial order.  While the defendant was correct in his statement that the plaintiff never stated that she feared imminent physical harm and had never been physically abused by the defendant; the circumstances (Orme vandalizing her house after their breakup) and testimony supported the judge’s decision to issue the order: The plaintiff on the application for a restraining order had checked off the box that defendant had placed her in fear of imminent serious physical harm and wrote that she was fearful of the defendants actions as demonstrated on June 23. Upon seeing the defendant on June 23, she asked a neighbor for help rather than approach him herself. Further, defendant had said things during their argument that were intimidating and it seemed to plaintiff that his mental and emotional state was compromised. The Appeals Court also noted that, “erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that force might be used.” Parrerira v. Commonwealth, 462 Mass. 667, 673 (1995). In light of the evidence the judge had made the proper determination. 

Defendant also contended that the no-contact order for plaintiff’s dog was improperly granted due to the District Court judge’s order not mentioning one of the activities mentioned in the statute. The Appeals Court disagreed stating that while the judge had not specifically cited one of the statutory examples, it is apparent from the record that the plaintiff’s request was to prevent the defendant from interfering with her dog. As a result, there was no error.

All orders affirmed.

Hardiman v. Hardiman
90 Mass. App. Ct. 1108
Entered October 4, 2016

15-P-879
 

Katheryn M. Hardiman appealed from a contempt judgment. On appeal, she argued that there was no proof in the record demonstrating that she violated a clear and unequivocal order.

After 18 years of marriage, the parties divorced in March, 2013. They share legal custody of their three children. Their separation agreement in relevant part required that the parties consult with each other regarding the education of their children. The agreement stated that all decisions regarding selection of educational institutions shall be made by the parties in light of the circumstances, needs and desires of the children. It also stated that the parties have agreed their children shall attend private school.

At some point during 2014, an issue arose as to whether the daughters would continue to attend St. Patrick’s [a private elementary school]. The Mother wanted the girls to attend public school, while father wanted the girls to remain at St. Patrick’s. On June 6th, a parenting coordinator engaged by the parties reported that the parties had failed to reach an agreement between the choices of public or catholic school. Father filed a complaint for contempt on July 1st, arguing that mother had violated the agreement by unilaterally enrolling the daughters in Stoneham Public Schools. 

After a hearing, a Probate and Family Court judge found mother in contempt of court. In his findings, the judge stated that he considered email evidence from the mother in which he concluded that mother had taken steps to place the children in public school and to discontinue their current Catholic School.

The Appeals Court first examined the standard necessary to prove civil contempt. A contempt finding requires a clear and undoubted disobedience of a clear and unequivocal command. Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699, 700 (1995). The burden of proof is on the complainant, by clear and convincing evidence. Birchall, petitioner, 454 Mass. 837, 852-853, (2009). In this context, the judge’s findings were reviewed under an abuse of discretion standard. K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014).

After examining the record, the Appeals Court found that the judge’s findings did not support a judgment of contempt. The Appeals Court declined to answer the contention that the separation agreement constituted a clear and unequivocal command, but assumed the matter arguendo. Rather, the Appeals Court found that the judge’s findings did not specify which steps mother took in undoubted disobedience of the order. Because such findings were not present in the record, the judgment of contempt was precluded and the order awarding attorney’s fees was vacated, with the matter being remanded for the judge to make further findings on the contempt. Contempt judgment and all attendant orders vacated. 

 

Fernandes-Huff v. Huff
90 Mass. App. Ct. 1110
Entered October 17, 2016

15-P-1459
 

Husband appealed from a judgment of divorce nisi regarding the division of the marital estate. He argued on appeal that the probate judge erred in valuing his former wife’s business, in failing to include the wife’s beneficial interest in a family trust, in declining to credit the husband’s contribution to the down payment of the marital home, and in dividing the martial estate.

Wife was self-employed and owned and operated a kayak retail shop since 1994. At trial, the husband’s expert, Donald May, a CPA, using the capitalization of earnings method, opined that the wife’s business had a value of approximately $236,000. According to the wife’s financial statement, the reported 2014 gross revenues of the business amounted to $251,688 with expenses of $223,433. The judge found that the wife had under-reported her income over the last several years as the deposits into her business checking account showed additional funds above and beyond what she reported for income tax purposes. The judge also found that considerable cash deposits were made by the wife to joint and individual personal checking accounts with no corresponding checks of withdrawals from the business account. This trial judge found that these deposits were indicative of additional cash income. After reviewing the financial records and hearing testimony the judge settled on a valuation of $200,000.00 for the kayak business.

On Appeal, Husband argued that since his expert provided a definitive valuation of the business and wife failed to produce any expert testimony the judge’s ultimate valuation of $200,000 was arbitrary and capricious. The Appeals Court noted that, “valuation of a business is a question of fact.” Bernier v Bernier, 449 Mass. 774, 785 (2007). As a result, the Appeals Court reviewed the findings for clear error.  When the opinion of an expert is offered regarding a business valuation, the judge may, "reject expert opinion altogether and arrive at a valuation on other evidence," Adams v. Adams, 459 Mass. 361, 381, (2011), quoting from Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863, (1989), so long as that determination is not, "'materially at odds with the totality of the circumstances or, in the case of divorcing spouses, at variance with the requirements of the equitable distribution statute.'”

The Appeals Court concluded that it was clear the judge considered all of the factors under G. L. c. 208 §34. Aside from the testimony of the CPA, the judge had other information pertaining to the wife’s finances: personal and business bank statements, tax returns. For those reasons, there was no error in the judge’s determination of the value of the business.

The Appeals Court next turned to Husband’s contentions regarding wife’s trust. The husband argued this exclusion was plainly wrong because all property in which a party holds an interest, whenever acquired, by law becomes part of the marital estate. He further contended that the uncertainty of the value of the wife's interest does not justify its exclusion from the marital estate.

Prior to the parties' marriage in 2004, the wife's mother died; at that time, the wife became entitled to an interest in the KMK Realty Trust. Because of alleged irregularities in the handling of this trust, the wife did not receive any part of that interest during the marriage. She filed a lawsuit against the estate to secure her share; however, as of the date of the divorce trial, she had not yet received any benefit from the trust.

The judge concluded that, "this trust was never part of the marital fabric in any way," and declined to include in the marital estate any value of the wife's interest.  The Appeals Court agreed stating that the wife's interest in the KMK Realty Trust is no more than an expected asset whose value was speculative at best. "When the future acquisition of assets is fairly certain, and current valuation possible, the assets may be considered for assignment under § 34" Williams v. Massa, 431 Mass. 619, 628 (2000). However, when the value of an asset is not clearly fixed, as with an inheritance, an interest in that asset may be considered a mere expectancy, and as such, is not a sufficient property interest to be considered as part of the marital estate. The judge has complete discretion to determine the inclusion, or exclusion, of an asset.

While, the judge did not include the wife's trust interest as a divisible asset, he did consider the future benefit the wife may receive. That benefit was offset by the husband's military pension and other benefits, the parties' respective incomes, and the absence of an order of alimony against the husband. Because the judge weighed all of the relevant factors in considering the exclusion of the wife's trust interest, there was no error.

Finally, the husband contended that the judge erred splitting the marital estate in near equal portions. The Appeals Court noted that review of the equitable division of the marital estate is a two-step analysis: (1) whether all the section 34 factors were considered by the judge, and (2) whether the reasons for the judge’s conclusions were apparent in his findings. Adams v. Adams, 459 Mass. 361, 371 (2011), The Appeals Court concluded that there the judge had properly considered all the section 34 factors and included in his rationale was a detailed explanation of why he had divided the estate as he had. He had declined to order alimony which would have been assessed at approximately 215 a week due to his exclusion of wife’s trust expectancy from the estate. The Appeals Court concluded that the distribution of the  marital estate was neither wrong, nor excessive.

The Judgment was affirmed.

Clawson v. Clawson
90 Mass. App. Ct. 1111
Entered October 19, 2016

15-P-58

 Former husband appealed from a corrected judgment on a complaint for civil contempt dated March 4, 2014.

 The parties were divorced on March 17th, 2008, pursuant to a judgment of divorce that incorporated their separation agreement. The separation agreement provided in relevant part that the husband shall be obligated to pay child support to the wife for Shawn (19) and Rebecca (13); on or before August 1, 2008, the husband will pay a lump sum amount of $80,000 to wife which shall satisfy the husband’s child support obligation for 208 weeks. The agreement held additionally that after the expiration of the 208 week period, child support would be reviewed by the parties. In addition to child support, the husband agreed to pay $25,000 per year toward Shawn’s college expenses and $30,000 per year to Rebecca’s college expenses.

On July 11th, 2013 the wife filed a complaint for contempt alleging that the husband was in arrears of his child support payments. On March 4, 2014, nunc pro tunc to Dec 11th, 2013 a judge of the Probate and Family Court issued the corrected judgment ordering husband to pay $19,748.02 in past due support that had accrued since the expiration of the 208 week period and ongoing child support payments of $384.62 per week (this figure was the result of the judge dividing the $80,000 dollar lump sum payment by 208 weeks).

On Appeal, the Husband argued that the judge abused his discretion by finding the husband in contempt and by ordering the husband to pay ongoing child support in the amount of $384.62 per week.

The Appeals Court first noted that, the judge did no expressly find the husband in contempt of his child support obligation. Poras v. Pauling, 70 Mass. App. Ct. 535, 540-541, (2007) ("This express finding should be present if the [husband] were held in contempt").  Notwithstanding the lack of contempt finding, the judge found that Husband was required to pay the “last agreed upon amount of $384.62 per week” following the expiration of the 208 week period. The Husband argued that this interpretation was error due to the silence of the agreement regarding future payments.

The Appeals Court then turned to the separation agreement itself. As the interpretation of a separation agreement is a question of law, it was afforded plenary review. Colorio v. Marx, 72 Mass. App. Ct. 382, 386, (2008). The Appeals Court concluded that there was no indication that the husband’s child support payments would terminate upon Rebecca’s entry into college. In point of fact, the separation agreement defined Rebecca’s emancipation as occurring when she graduated from college or attained the age of 23. Because the separation agreement simply called for a “Review” of child support following the 208 week period a fair reading of the agreement did not support husband’s interpretation nor does it raise a question as to the agreements meaning such that reasonable minds might differ. Id. at 388-389. Because the, “the words of an integrated agreement remain the most important evidence of intention," Restatement (Second) of Contracts § 212 (1) comment b; because the child support order had not been modified under G.L. c. 119A § 13(a), and Rebecca was not yet emancipated as defined in the agreement  it was appropriate for the probate judge to conclude that the child support obligation continued. Tatar v. Schuker, 70 Mass. App. Ct. 436, 447 (2007). As such, the Appeals Court discerned neither error nor an abuse of discretion on the part of the trial judge. 

Father also contended that the judge committed error regarding certain credits he wished assigned against the property division. The separation agreement also contemplated a division of marital assets which were effectuated by a $250,000 dollar promissory note. In the contempt action, wife argued that husband had failed to pay off principal and interest. At trial, the parties stipulated that husband should be granted a $93,651.83 credit for his payment of certain expenses on the wife’s behalf. However, husband sought further credits, submitting two documents at trial: a list of expenses totaling $48,993.70 that he paid in connection to his wife’s horse and a payment breakdown setting forth the terms of an alleged oral lease allowing husband to offset his promissory note payments by $5,600 a month in exchange for leasing 14 horse stalls to his former wife. Husband further argued that the lease should be enforced under a theory of detrimental reliance as he had to evict paying tenants to accommodate his former wife. At trial, the judge found that the husband had failed to provide credible documentation for the above mentioned allegations. The Judge also found that these arrangements did not comply with the modification requirements as set forth in the separation agreement.  The judge accepted the stipulated amount and failed to include any of husbands other payments ordering husband to pay the additional $189,165.57 owed under the promissory note.

Husband argued that the judge erred by failing to treat the alleged lease agreement as a permissible oral modification of the mode of performance under the separation agreement. The Appeals Court noted that, "'The mode of performance required by a written contract may be varied by a subsequent oral agreement based upon a valid consideration. . . The evidence of a subsequent oral modification must be of sufficient force to overcome the presumption that the integrated and complete agreement, which requires written consent to modification, expresses the intent of the parties." Cambridgeport Savs. Bank v. Boersner, 413 Mass. 432, 439 (1992). However, it was apparent from the judge’s written findings that the judge concluded that there was no credible evidence and thus husband did not meet his burden regarding a subsequent oral modification. The judge also credited wife’s testimony that while the parties had discussed such an arrangement they had never agreed to the offsetting. The judge’s assessment was largely based on credibility determinations which are, “quintessentially the domain of the trial judge" and "close to immune from reversal on appeal except on the most compelling of showings."Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). The Appeals Court concluded there was nothing on the record to warrant disturbing the judge’s findings and thus they discerned no error.

Husband further argued that the judge abused his discretion by declining to exercise his equitable powers and adjudicate husband’s claim for detrimental reliance. However, because the trial judge found that husband had an adequate remedy at law for the sums he was claiming were owed. See Knowlton v. Swampscott, 280 Mass. 69, 72, (1932) ("A party cannot come into equity to secure relief open to him at law").As such, the Appeals Court affirmed all judgment of contempt.

Green v. Ferenchick
90 Mass. App. Ct. 1113

Entered Oct 27, 2016

15-P-1404

Defendant mother appealed from a judgment of the Probate and Family Court that found her in civil contempt, and made orders relative to parenting time and transportation.

The Probate and Family Court approved the parties’ agreement for judgment on a 209C complaint relating to their three year old daughter. The agreement provided that the parties have joint legal custody, mother has primary physical custody, and father had parenting time with the child on Monday and Friday mornings and every other weekend. Parties were to share transportation responsibilities equally; and neither party could schedule an activity during the other’s parenting time.

Father filed a complaint for contempt alleging that the mother had violated the agreement by: arriving between fifteen and seventy-five minutes late, thirty five times between Sept 2015 and March 2015, scheduling activities for the child during his parenting time without his consent, and refusing to allow the child to attend soccer practice that extended into the mother’s parenting time. The Trial judge rejected the first two of father’s complaints but did find mother in contempt for unreasonably withholding content to an activity during the 30 minutes of her parenting time.” The judge further ordered that if mother is more than 15 minutes late dropping off the child, the Father’s parenting time shall be extended by an equal amount of time.

The Appeals Court first turned to the relevant standard: “A civil contempt finding must be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 853 (2009). A finding of contempt is reviewed for an abuse of discretion, which is defined as when, “the judge made a clear error judgment in weighting the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 (2014).

On Appeal, mother argued that the judgment of contempt was legal error because the order that consent shall not be unreasonably withheld is not a clear and unequivocal command. However, this argument was not raised in the trial court and was deemed waived. DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 623, (2016).

Mother next claimed that the judge abused his discretion when he concluded that she unreasonably withheld her consent to the father’s request to take the child to soccer practice on Fridays. Here, there was evidence that the soccer practice extended into the mother's parenting time by only thirty minutes, and the father returned the child immediately after soccer to day care or the child's maternal grandmother. The mother challenged these assertions at the hearing, but the Appeals Court was unmoved stating, "Our task is not to substitute our judgment for that of the fact finder." Goodman v. Atwood, 78 Mass. App. Ct. 655, 658 (2011). In these circumstances, the court did not find an abuse of discretion in the judge's conclusion that the mother's consent was unreasonably withheld.

Mother further argued that the judge exceeded his authority by entering an order clarifying the parties’ responsibilities for transporting the child to and from parental visits. Because mother and counsel and agreed to the order at the contempt hearing, she was foreclosed from objecting to it on appeal. Commonwealth v. Myers, 82 Mass. App. Ct. 172, 185, (2012) (knowing and intelligent waiver of confrontation right).

Finally, the mother claimed that the order extending the father's parenting time, should the mother deliver the child late, exceeded the judge's authority. The Appeals Court disagreed: even though there was no finding of contempt related to the father's claim that the mother repeatedly delivered the child late, the mother admitted that she did not always deliver the child on time. After considering this evidence, the judge ordered that if the mother is more than fifteen minutes late dropping off the child, the father's parenting time shall be extended an equal amount of time. This was viewed as a reasonable exercise of the judge's authority to ensure that the parenting plan agreed to by the parties was equitably executed. Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233, 234-235, (court's power to modify can be exercised in contempt proceeding).

The Judgment of Contempt was affirmed.

   

Davidson v. Davidson
90 Mass. App. Ct. 1113
Entered October 31, 2016

16-P-224

Husband appealed a judgment of the Probate and Family Court arguing that the judge failed to property apply the calculation method set forth in the Child Support Guidelines.

Parties were initially divorced by judgment entered May 7th, 2015. The judgment held in relevant part that husband was required to pay $304 per week in child support for the period between April 24 2015 and January 21, 2016 (the date that a modification judgment reduced child support prospectively).

On appeal, husband argued that under the child support guidelines, the amount of support is determined in part by how much parenting time each parent has been allocated. The base amounts are determined with the presumption that the children have primary residence with one parent and spend approximately one third of their time with the other parent.

In the instant case, Husband asserted that the parenting time he was granted significantly exceeded the one-third duration contemplated in the guidelines. Husband argued that factoring in overnights, he was allocated 159 days per year (roughly 43%). Because the parenting time was nearly equal, husband argued that the methodology for joint, or in the alternative, the middle road calculation when parenting time exceeds thirty three percent but is less than fifty percent (as opposed to primary custody) should have been adopted.

Editorial Note: the Appeals Court took specific pains to note that the question of how judges should calculate the respective shares of parenting time re overnights under the guidelines has not been addressed by MA case law. Husband relied exclusively on out of state citations to buttress the argument that overnights should be counted. See Rubin v. Della Salla, 107 A.D. 3d. 60, 70, 964 N.Y.S.2d 41 (N. Y. App. Div. 2012).

The Appeals Court examined the record and concluded that there was merit to the husband’s argument: while the specific basis of the $304 dollar figure adopted by the judge was not clear, it appeared that the judge must have rejected the husband’s argument. If the judge did reject husband’s argument, but decided to deviate from the child support guidelines, he did not explain his reasons for doing so or support them with findings. Murphy v. Murphy, 82 Mass. App. Ct. 186, 194 (2012). As a result, the relevant paragraph of the judgment was vacated and the matter was remanded for further proceedings.