Winter 2017: 128s

Prepared by: Ethan D. Rittershaus and Laurel Spallone

Awbrey v. Awbrey
November 7, 2016
15-P-1150
90 Mass. App. Ct. 1114; 63 N.E.3d 64

Father appealed from a modification judgment issued by the Probate and Family Court which awarded Mother sole legal custody of their minor child and increased Father’s child support obligation. Father also appealed from multiple findings of contempt.

The parties were initially married on June 7, 1997. They have one child born December 1998 that had multiple learning and physical disabilities. In June 2005, the parties subsequently divorced. On January 20th, 2012, Mother filed a complaint for modification seeking sole legal custody of the parties’ daughter. On February 28th, 2012, Father filed a complaint for modification seeking to reduce his child support obligation and eliminate the requirement that he maintain life insurance.

After a two-day trial, a judgment issued awarding Mother sole physical custody and increasing Father’s child support obligation to $4,750 per month. Mother thereafter filed on December 2, 2013 a contempt regarding Father’s non-payment of child support. Father was found guilty of contempt by orders dated January 15, 2014 and January 23, 2014. A judgment was dated February 18, 2014. Mother filed another complaint for contempt on June 4, 2014 for failure to pay child support and attorney’s fees. Father was found guilty of contempt in an order dated June 13, 2014.

Father first argued that the Judge had misconstrued the recommendations of the Guardian Ad Litem (“GAL”) stating that the GAL had only recommended sole physical custody not sole legal custody. The Appeals Court disagreed stating that while the GAL had not explicitly stated legal custody, it was readily apparent in her recommendations that she had contemplated sole legal custody. Specifically, the GAL in her report had contemplated Mother, “having sole decision making authority.”

The Appeals Court next turned to Father’s contention that the Judge’s calculation of child support was an abuse of discretion as the order departed from the Child Support Guidelines. The Judge had concluded that such deviation was warranted due to the high level of care required by the daughter and Mother’s inability to earn any meaningful income. These findings were supported by the record and the Appeals Court discerned no abuse of discretion. Richards v. Mason, 54 Mass. App. Ct. 568, 572 (2002).

Father next appealed the findings of contempt. The Appeals Court first noted that Father’s appeal from the contempt orders dated January 15, 2014, January 23, 2014, and February 18, 2014 were not properly before the Court as Father did not file a timely notice of appeal.

The Appeals Court did address the finding of contempt from the complaint dated June 4, 2014. During that contempt, Mother had alleged that Father owed her $3,882 and Father answered that he owed $3,722. The Judge found Father in contempt and ordered him to pay $3,772 and attorney’s fees in the amount of $4,500. The Appeals Court found no abuse of discretion given that he was in arrears. The Lower Court judgment was affirmed and Mother’s application for appellate attorney’s fees and costs was granted.

Falcone v. Falcone
November 18, 2016
15-P-1346
90 Mass. App. Ct. 1116; 65 N.E.3d 30

Defendant Husband appealed from an amended Judgment of Divorce Nisi that ordered him to pay $285 dollars a week in child support and to pay additional child support in the form of 15% of his gross annual bonuses.

On appeal, Husband argued that the trial Judge abused his discretion by ordering the award in the absence of specific findings for deviation and failing to account for the parties’ equal responsibility in childcare.

Before trial, the parties had agreed on many issues including an equal split of the marital estate and a parenting agreement, which allocated Husband 45% of time with the children and Wife 55% of time. The trial was limited to the issue of the Husband’s child support obligation.

The Judge initially adopted the parties’ stipulation on child support. The Judge ordered Husband to pay $285 per week in child support. The Judge then added the requirement that Husband share equally in the reasonable costs of childcare, observing that the allocation of parenting time was very close to a “shared custodial plan.” Finally, the Judge ordered that Husband pay, as additional child support, an amount equal to 15% of his gross annual bonuses. The bonuses had not been included in calculating Husband’s income.

Husband argued that the Judge’s order of $285 per week as child support does not reflect the Judge’s order that the Husband and Wife will share equally all reasonable childcare expenses. Husband further argued that the order requiring Husband to pay 15% of his gross annual bonuses, without findings or explanation, is an unjustified upward departure from the guidelines and possibly an indirect means of ordering Husband to contribute additional money for college savings. The Appeals Court noted that they had rejected the idea of income equalization where combined incomes (as they did here) exceeded the guideline’s ceiling and the parent’s enjoyed a similar standard of living. See M.C. v. T.K., 463 Mass., 226, 234-36 (2012). Here, where the Judge made no findings or rationale for the additional award the Appeals Court could not conclude that the Judge appropriately exercised his discretion. As a result, the judgment was vacated and remanded for additional findings and rationale consistent with their decision.

Heystek v. Duncan
November 21, 2016
15-P-1201
90 Mass. App. Ct. 1116; 65 N.E.3d 30

Wife appealed from a Judgment of Divorce Nisi challenging both the property division and a judgment of civil contempt for violation of the automatic financial restraining order pursuant to Supplemental Probate and Family Court Rule 411.

Wife appealed the property division on three separate grounds: (1) the Judge’s failure to consider likely future opportunity for capital acquisition based on Husband’s inheritance; (2) the unequal division of a distribution of Husband’s trust in 2012; and (3) the illiquidity of the property received by Wife compared to Husband.

The Appeals Court first noted that the trial Judge has broad authority to equitably assign assets during a divorce per M.G.L. c. 208 § 34. Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 110, (2016). However, the Appeals Court also noted that the overall goal of M.G. L. c. 208, § 34 is to ensure an equitable division of the marital estate. Williams v. Massa, 431 Mass. 619, 626, (2000).

Addressing first the unequal distribution of the trust proceeds, the Appeals Court found no abuse of discretion. While the distributions were similar in kind to other gifts received by the parties during the course of the marriage, as the judge observed, the trust was created before the parties’ marriage and the parties did not rely on income or capital from the trust until the final year of their marriage. However, the Appeals Court went on to note that they were very concerned by the trial judge’s failure to put any identifiable weight on Husband’s likely acquisition of future income and property.

While Husband’s trust did not allocate him any authority to receive funds of his own volition, this was undercut by the history of the parties’ marriage: the reality of the parties’' financial circumstances throughout their marriage was that their life-style relied on a fairly steady stream of income from the trust. Similarly, while the speculative character of a future inheritance from a still-living person may preclude inclusion of such interest as marital property, it does not preclude consideration of such a prospect under the category of opportunities for future acquisition. Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 112, (2016).

The Appeals Court went on to note that they were concerned about the illiquidity of the assets that Wife had received. Pursuant to the Judgment, Wife had received $1,071,497 in assets of which only $399,048 was liquid. Husband had received, $1,639,388 of which $1,502,468 was liquid. The Appeals Court concluded that the divorce judgment left one party in a distinctly worse position while the other substantially enjoyed the same standard of living as he had during the marriage. Sampson v. Sampson, 62 Mass. App. Ct. 366, 370, (2004). Because the trial Judge had not properly considered Husband’s future acquisition of assets and the allocation of illiquid property to Wife, the Appeals Court vacated the property division.

Moving on to Wife’s argument relative to the judgment of civil contempt, the Appeals Court first noted that Wife had stipulated that she was subject to a clear and unequivocal command (Rule 411 Automatic Financial Restraining Order). She had removed $40,000 from the marital estate and she did not utilize the funds for any expenses that fell within the exceptions of Rule 411. Wife argued that at the time she withdrew the funds, she did not intend to violate the order and thus was not in contempt of Court. The Appeals Court disagreed:

“Since the purpose of civil, as distinguished from criminal, contempt is primarily remedial and not punitive, there is no requirement that the complainant show an intention on the part of the defendant . . . It is enough if [the complainant] shows that the defendant violated the terms of an unambiguous decree.” United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 45 (1972).

The Court also found that Wife’s argument that the Judge was in error due to his lack of inquiry about her ability to pay was unavailing: the contempt judgment was paid out of the marital estate and the marital estate vastly exceeded the amount of the judgment.

Property division of the marital estate vacated and remanded. Contempt judgment upheld.

Burke v. Burke
November 21, 2016
16-P-179 90
Mass. App. Ct. 1116; 65 N.E.3d 30

Defendant appealed from an Abuse Prevention Order issued pursuant to M.G.L. c. 209A which extended a previous order for 90 days. On Appeal, Defendant argued that the order was improperly extended because Plaintiff’s generalized apprehension standing alone was insufficient to justify the extension of the order.

The Parties had been married for approximately 15 years. Sometime ago, Defendant had informed Plaintiff that if they ever split up he, “had a bullet with our names on it.” Plaintiff testified credibly that Defendant was a very angry person and was emotionally and physically abusive during their relationship. On the day of the separation, the first items Defendant removed from the marital home were his many guns and the knife Plaintiff kept in her bedside table to protect herself. He did not turn all those guns in to the police department, despite the provisions of the initial restraining order requiring him to do so. Defendant did not testify credibly at the hearing, arguing at one point that it was going to be hunting season soon (some of the guns taken were pistols), and earlier, that he, “did not want to do the whole back and forth thing with the police.”

The Appeals Court found that the Judge could properly infer from these facts and the general volatility of the situation that Defendant posed a risk of imminent harm. The Appeals Court noted that it would not substitute its judgment for the trier of fact. Iamele v. Asselin, 444 Mass. 734, 739, (2005). The Judge had properly applied the correct legal principals. She properly considered the totality of the circumstances, past violations of the order, on-going litigation, the likelihood the parties would encounter each other in the usual course of their activities, and the parties’ demeanor in court. The Appeals Court would not find an abuse of discretion on those facts. The Lower Court order extending the restraining order was affirmed.

Capalucci v. Phillipo
November 25, 2016
16-P-442
90 Mass. App. Ct. 1117

The Commissioner of Probation appealed, challenging the order of a Judge in the District Court which “sealed” a 209A case. The Commissioner argued on appeal that while there were several statutes that allowed the sealing of a case, one did not exist in the context of an Abuse Prevention Order. The Commissioner of Probation further argued that in the 209A context, the only appropriate remedy for a wrongfully obtained order absent an appeal was an order of expungement. An order of expungement can only be procured under a narrow set of circumstances when a plaintiff has obtained an order by committing a fraud on the court. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737, 2006.

The Appeals Court agreed with the Commissioner of Probation and held that the District Court was without authority to issue an order sealing the record. The order sealing the case was vacated.

Doe v. Dep’t of Children & Families
November 29, 2016
15-P-1740
90 Mass. App. Ct. 1117

Plaintiffs appealed from a summary judgment order of the Superior Court which dismissed their complaint on the grounds of sovereign immunity.

Plaintiffs acknowledged that under M.G.L. c. 258 § 10(j), the Commonwealth and its attendant administrative agencies and departments has sovereign immunity for “all harmful consequences arising from its failure to act to prevent the violent or tortious conduct of a third person, unless it ‘originally caused’ the ‘condition or situation’ that resulted in the harmful consequence.” Kent v. Commonwealth, 437 Mass. 312, 317 (2002).

Plaintiffs also acknowledged that in order for the Commonwealth to be liable, its causal contribution to the harmful consequences must result from an affirmative act as opposed to an omission. In the instant case, the harmful consequence at the center of Plaintiffs’ complaint was the violent and tortious conduct of a third person (another of the minor children).

Even construed in a light most favorable to the Plaintiffs, the sole causal contribution was the failure of DCF to disclose to the Juvenile Court certain information concerning the minor child’s propensity for the tortious conduct. The Appeals Court found that such failure to disclose does not constitute liability under § 10(j). The Appeals Court distinguished this from Bonnie W. v. Commonwealth, 419 Mass. 112, 125 (1994) in which a parole officer made several affirmative misrepresentations about his parolee, including an opinion that he had been rehabilitated and posed no danger and recommended that he be allowed to continue working in the trailer park wherein he subsequently committed sexual assault.

Here, Defendant had at most failed to disclose facts material to an assessment of the minor child’s potential dangerousness. This was simply not an affirmative misrepresentation. The Appeals Court also noted that it was the Juvenile Court not DCF who placed the minor child in the home. Order dismissing complaint upheld.

DECEMBER 128s

H.T. v. J.M.
December 5, 2016
15-P-1042
90 Mass. App. Ct. 1118

H.T., Mother, appealed from a final judgment of paternity adjudicating J.M. to be the Father of the minor child, denying him visitation, and ordering him to pay child support. Mother argued that the paternity judgment must be vacated because the Probate and Family Court lacked jurisdiction to adjudicate the paternity complaint.

When Mother was 14 years old she entered into a consensual relationship with J.M. who was 19. As a result of their relationship Mother had a child. Father was charged in superior court with 4 counts of statutory rape. He was sentenced to probation and as a condition thereof had to acknowledge paternity of the minor child and abide by support orders.

In March 2012, Mother, who was representing herself at the time, filed a complaint in the Probate and Family Court, seeking to establish Father’s paternity. In July 2012, Father, who also was representing himself, acknowledged paternity of the child and was ordered to pay child support pursuant to a temporary order. Father subsequently took action seeking visitation. Mother then moved in the Superior Court to revise the father’s conditions of probation, claiming that they unlawfully bound her to an ongoing, unwanted relationship with Father.

The Superior Court Judge denied Mother’s motion on the grounds that she lacked standing to challenge Father’s sentence. Mother then filed a subsequent petition to a single justice which was denied.

Mother than filed a motion seeking to vacate jurisdiction and terminate Father’s parental rights in the Probate and Family Court. Following an evidentiary hearing, a Judge of the Probate and Family Court denied Mother’s motion to terminate parental rights but also denied Father visitation or parenting time finding that his stated desire for visitation was being used as a bargaining chip in order to reduce or eliminate his child support obligation.

On Appeal, Mother argued that the judge erred in denying her motion to vacate/ terminate because the Court had, “no authority” to adjudicate parental rights of a Father whose child was conceived via statutory rape.

The Appeals Court first noted that paternity is governed by M.G.L. c. 209C, § 1 et seq. Paternity can be established by two mechanisms: (1) a voluntary acknowledgement and (2) a judicial determination of paternity pursuant to § 2 of the statute. While an action to establish paternity can be brought in one of three trial court departments, the Probate and Family Court has exclusive jurisdiction relative to visitation.

Mother had invoked the Probate and Family Court’s jurisdiction by filing a complaint for paternity there. The Appeals Court concluded that nothing in the statute limited its applicability solely to children born as a result of lawful intercourse. In point of fact, the Appeals Court stated that the proper inference from the statutory language was that minors were included within the statute because of language contained in § 5(a) which stated in relevant part that mothers, “whether minor or not,” can commence a paternity action.

Mother argued that the Appeals Court should nevertheless vacate the Probate and Family Court’s jurisdiction for public policy but the Appeals Court was unmoved. As the purpose of the 209C was to secure financial support for children born of unwed parents, permitting father to avoid his support obligation would contravene the statute’s purpose. L.W.K v. E. R. C, 432 Mass. 438 (2000).

Lower Court denial of motion affirmed.

St. Jean v. Barcelo
December 5, 2016
16-P-220
90 Mass. App. Ct. 1119

Amanda St. Jean (“Mother”) appealed from a modification judgment of the Probate and Family Court which reduced child support and obligated her, not Gregory Paul Barcelo (“Father”), to pay health insurance. Mother alleged that error occurred when the Judge ordered health insurance to be paid by Mother and then declined to upwardly deviate the child support order. Both parties were represented pro se and Father did not file a brief for the appeal.

In 2014, Mother filed a complaint for paternity and child support. The first trial judge ordered Father to pay $245 per week in child support and to provide health insurance for the child “if and when it becomes available at a reasonable cost.” The child support amount deviated from the guidelines, but the judge did not provide findings to support this deviation.

In 2015, Father filed a complaint for modification to reduce child support citing a change in employment status. Mother counterclaimed for modification of child support and health insurance. A second trial judge entered a modification judgment reducing child support to $185 per week. The judge made findings to support this upward deviation given that Father spent less than 30% of the time with the child. The judge also ordered Mother, not Father, to pay health insurance for the child.

The court found the second trial judge abused his discretion by ordering Mother to provide health insurance to the child. Pursuant to M.G.L. c. 119A § 12(b)(5) each order for child support shall also include an order for “obligor to obtain health care coverage for the child… unless the obligor and obligee agree in writing that the obligee shall obtain health care coverage.” Where there is no evidence that the obligor and obligee had such agreement, and the facts are likely that Mother did not agree as she filed a counterclaim, the Appeals Court remanded the matter for consideration of these issues.

The Appeals Court further found no abuse of discretion in the second trial judge’s upward deviation. The Appeals Court ordered the modification provision obligating Mother to pay for health insurance to be vacated, but all other provisions to remain in full force and effect.

Gale v. Feinberg
December 6, 2016
15-P-1166
90 Mass. App. Ct. 1119

Neil Feinberg appealed from a harassment prevention order issued against him pursuant to M.G.L. c. 258E. The order was obtained on August 3, 2015 after several verbal altercations between Feinberg and Greg Gale’s family, mostly Gale’s son, Jordan. A harassment prevention order must be aimed at a specific person and consist of three or more acts. In this case where only one instance was aimed at Gale and the other incidents did not involve him, there was not standing to pursue a harassment prevention order. The Appeals Court therefore vacated the harassment prevention order of August 3, 2015.

Sullivan v. Sullivan
December 9, 2016
15-P-1210
90 Mass. App. Ct. 1120

Husband appealed two portions of the second amended judgment of divorce. Husband argued that it was error to require him to pay $150 per week in alimony because (1) the amount resulted from clearly erroneous findings of fact and (2) the amount exceeded what is allowed under the 2011 Alimony Reform Act. Husband also argued that the judge failed to take into account Wife’s inheritance from her mother.

The parties were married for twenty-six years and had two sons whom were both adults at the time of the filing of the divorce complaint. Husband suffered from hypertension, migraine headaches, and elevated cholesterol controlled by prescription medication. Husband was a civil engineer working for the Commonwealth and earned $85,000 annually.

Wife had been diagnosed in 2012 with ischemic optic neuropathy, which caused vision loss in her right eye. Wife also suffered from hypertension, depression, asthma, and elevated cholesterol controlled by prescription medication. These conditions did not interfere with Wife’s ability to perform her work as an administrative assistant for the Department of Industrial Accidents, where she had been employed for over twenty-five years. But the trial Judge credited Wife’s testimony that her vision loss negatively affected her ability to work effectively in her part-time job as a bartender and waitress. Wife earns $71,000 annually, of which $9,360 ($180 per week), came from her work as a part-time waitress and bartender and the remainder from her work as an administrative assistant.

Husband first argued that the findings as to Wife’s weekly wage as a bartender were clearly erroneous because her employment records showed that her earnings were higher. The Appeals Court concluded that while it was true that the records showed that her earnings were higher in the past, this was not necessarily clear error. Because of Wife’s medical condition, her earnings had decreased. This was buttressed by Wife’s most recent paystub which showed that her earnings had indeed decreased. Taken together the Appeals Court did not find that the findings were not supported by evidence and the Appeals Court, upon reviewing the totality of the evidence was not left with the firm conviction that a mistake had been committed. See Feathler v. Feathler, 33 Mass. App. Ct. 924, 925-26 (1992).

Incorporating the income taken from Wife’s part time work the trial judge found that Husband’s annual gross income was $14,000.00 higher than Wife’s and awarded $150.00 per week in general term alimony. This amount exceeded the limitation on general term alimony orders set at thirty five percent of the difference of gross earnings in M.G.L. c. 208 § 53(b). Such a deviation must be supported by written findings relative to one of the eight factors in § 53(e) or by invoking another relevant factor contained in the catchall provision, § 53(e)(9). As the Judge had not made any written findings, the alimony judgement was vacated and remanded.

Moving to Husband’s other contention, the Court found that the Husband had not shown that the division of property was plainly wrong, excessive, or an abuse of discretion. Kittredge v Kittredge, 441 Mass. 28, 43-44 (2004). The trial Judge had divided the marital estate in half, and had declined to increase husband’s share of the estate despite Wife’s receipt of a 1/3 interest in property owned by her mother on the second day of trial. The Judge had found that Wife’s mother’s property had never been financially supported maintained or used by the parties during the course of their marriage. Williams v. Massa, 431 Mass. 619, 626-27 (2000).

The Judge considered the M.G.L. c. 208 § 34 factors properly and her division of the marital assets flowed logically and equitably from her findings.

Alimony judgment remanded for further findings, marital estate division affirmed.

Stacy v. Stacy
December 9, 2016
16-P-0095
90 Mass. App. Ct. 1120

Deborah A. Stacy, the Personal Representative of the estate of David E. Stacy, appealed from a judgment of dismissal of her amended equity complaint in its entirety by a judge of the Probate and Family Court. In her complaint, she claimed that Iana A. Stacy, the Decedent’s wife, improperly took possession of assets of the decedent’s estate and the decedent’s parents. The judge had determined that the wife’s actions were not prohibited by the decedent and the wife’s prenuptial agreement.

The Appeals Court reviewed the allowance of the motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in Plaintiff’s favor. Glovesky v. Roche Bros Supermarkets, Inc., 469 Mass. 752, 754 (2014) quoting Harrington v. Costello, 467 Mass. 720, 724 (2014).

Prior to their marriage, the decedent and wife had signed a prenuptial agreement providing that, “[i]n the event of divorce, the wife’s property shall remain the wife’s and the husband’s shall remain the husband’s.” After her Husband’s death, the wife moved out of the marital home and removed several furnishings and personal belongings. The marital home was sold, and the decedent’s sister was appointed as the Personal Representative of the estate. The Personal Representative thereafter sent a written demand to the wife seeking to recover the estate’s assets. After the wife failed to comply, the Personal Representative commenced this action to recover assets of the estate and of the decedent’s parents alleging (1) constructive trust, (2) conversion, (3) unjust enrichment, (4) violation of M.G.L. c. 190B, § 3-709, and (5) declaratory judgment.

The wife filed a motion to dismiss the complaint pursuant to Massachusetts Rule of Domestic Relations Procedure 12(b)(6) stating that the prenuptial agreement, “made no provision of ownership or disposition of marital assets in the event of the death of either party.” The Judge granted the wife’s motion after concluding that the prenuptial agreement was not intended to apply to the death of a spouse based on the agreement’s caption referring to M.G.L. c. 208 § 34 and language in the agreement that referred to, “in the event of divorce.”

The Appeals Court reviewed the contractual provisions and concluded that the contract suggests that the reference to divorce did not exclude the applicability of the agreement to other events such as death. The Appeals Court based this interpretation on a clause in the agreement which stated that the agreement was “a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G.L. c. 208, § 34, as amended, in the event of a divorce.”

The Appeals Court also concluded that the Personal Representative had authority separate from the prenuptial agreement to seek property improperly removed pursuant to M.G.L. c. 190B, § 3-709. Further, the facts alleged in the Personal Representative’s complaint were sufficient to uphold a claim of unjust enrichment, conversion, and constructive trust.

The Appeals Court noted that because the Personal Representative does not represent the parent’s rights, claims brought on their behalf were properly dismissed. As a result, the dismissal of the declaratory judgment was error and the case was remanded to the lower Court.

Jane Doe v. John Doe & another
December 13, 2016
16-P-171
90 Mass. App. Ct. 1120

Intervenor, Bloomberg L.P., appealed from an order entered by a Judge in the District Court denying its motion to modify an impoundment order that was issued during a restraining order hearing conducted under M.G.L. c. 209A. Appellant argued that the Judge abused her discretion or committed an error of law.

In 2002, Plaintiff, Jane Doe, filed an application for an Abuse Prevention Order pursuant to M.G.L. c. 209A. The Judge granted a temporary ex parte order and scheduled a 10 day hearing. At the 10 day extension hearing, the Judge concluded that the standard for the issuance of an abuse prevention order had not been met. On May 30th, 2003, the Judge granted an order issuing an impoundment of the file on a joint motion filed by the parties.

On July 15th, 2015, Bloomberg L.P. filed a motion to intervene and a motion to terminate the impoundment order. Bloomberg had been conducting an investigation into the manner by which colleges handle sexual assault allegations on campus. The Judge granted Bloomberg’s motion to intervene but denied their motion to modify the impoundment order. The Judge found that Defendant, Jon Doe, had established good cause for impoundment over the presumption of public access.

On November 13th, 2015, Bloomberg filed a petition for interlocutory review of the denial of the motion to modify the impoundment order to a single justice pursuant to M.G.L. c. 231, § 118. Defendant filed a motion to dismiss the petition. A single justice allowed Defendant’s motion to dismiss without prejudice and authorized the appeal to a full panel of the Appeals Court.

The Appeals Court first noted that due to recent changes to Rule 12 of the Uniform Rules of Impoundment procedure it would be useful to review the process. Prior to the change, an appeal under Rule 12 was properly brought to a single justice and if denied could then be appealed by a petition to the Supreme Judicial Court.

Rule 12 of the Uniform Impoundment Procedure as amended now reads, under subsection (b) that, “upon entry of judgment,… or other final disposition, any appeal of an impoundment order proceeds according to the Massachusetts Rules of Appellate Procedure.”

The Appeals Court noted that the standard of review was most recently restated in Boston Herald, Inc. v. Sharpe, 432 Mass. 593 (2000), which held in relevant part that the standard of review was an abuse of discretion or an error of law.

The Appeals Court stated that “Massachusetts has long recognized a common-law right of access to judicial records.” Republican Co. v. Appeals Ct., 442 Mass. 218, 222, (2004). However, the Appeals Court went on to note that the presumption of access may be rebutted for good cause under Rule 7 of the Uniform Rules of Impoundment. In determining good cause, the Court should consider, “all relevant factors, including but not limited to (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request.”

Bloomberg first argued that the Judge erred in her analysis of the relevant factors of good cause for impoundment and applied a presumption of secrecy rather than openness. However, the Appeals Court disagreed with Bloomberg’s interpretation; the District Court Judge properly began her inquiry by applying the presumption of public access to 209A records. Thereafter, the District Court Judge, properly applied the enumerated factors. The Judge noted that the case received no public interest at the time of its filing or when Bloomberg LLP filed its motion to intervene, there was no press coverage in the five months that the case was available to the public, the parties were young college-aged students and non-public figures.

Because decisions relative to impoundment orders are to be reviewed on a case by case basis and in light of the District Court Judge’s reasonable findings, the Appeals Court found no abuse of discretion or error of law.

Because decisions relative to impoundment orders are to be reviewed on a case by case basis and in light of the District Court Judge’s reasonable findings, the Appeals Court found no abuse of discretion or error of law.

The Appeals Court affirmed the lower court order dismissing Bloomberg’s motion to modify.

Guinevere Arthur Vanhorne v. Dominic Cerone
December 19, 2016
15-P-1630
90 Mass. App. Ct. 1121

Dominic Cerone (“Father”) appeals a decision of the trial court which allowed the removal of Guinevere Arthur Vanhorne ( “Mother”) from Rowe, MA to Northampton, MA and amended custody to allow Mother to have the final determination on educational decisions of the children. The Appeals Court affirmed this ruling.

The parties were divorced in 2012 and Father brought a complaint for modification in December 2014. In response to the modification, Mother requested she be permitted to relocate to Northampton with the children. Father opposed the request and asked the Judge to view the move as an out of state removal.

Removal

The Court looked to the Altomare decision which held, “while the statute does not address relocation with the Commonwealth judges may apply our-of-State removal principles to in-State moves… in cases where the relocation would evidently involve significant disruption of the noncustodial parent’s visitation.” Altomare v. Altomare, 77 Mass. App. Ct. 601 (2010).

The Judge found that the children’s in-state relocation would not cause a “significant disruption” of the Father’s parenting time, however, the Judge proceeded to apply out of state principles. The Appeals Court simply says about this heightened scrutiny, “while we question whether it was necessary for the judge to apply out-of-state removal principles… we conclude there is ample support in the record for the judge’s decision.”

The Judge applied the Yannas real advantage test first, the first prong being a real advantage to Mother and the second being a real advantage to the children. Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-12 (1985). Following the application of that test, the judge must then determine if the move was in the child’s best interests. Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 580 (2016).

The Judge held the move to Northampton would be a real advantage to the Mother who received “a full scholarship to attend Smith College…, which covered the Mother’s tuition, housing costs, and a $9,000 scholarship for each child to attend the Smith College Campus School.” If Mother moved, it would eliminate the necessity to commute over two and a half hours and she would be able to “better her life,” both reasons which the Judge found to be reasonable. The Judge cited to the Rosenwasser and Murray decisions which state, “to satisfy the real advantage test, the custodial parent must demonstrate 'the soundness of the reason for moving, and the . . . absence of a motive to deprive the noncustodial parent of reasonable visitation.” Rosenwasser at 581-82; citing to Murray v. Super, 87 Mass. App. Ct. 146, 149 (2015).

Further, the Trial Judge found the decision to move was in the child’s best interests, again looking to the standard in Rosenwasser. The Judge held the best interests of the children were met as they would have more time with the custodial parent, attend a more racially diverse school (they were of African descent), no negative impact on the children’s emotional, physical or developmental needs, and no negative affect on the relationship with their Father. For all of the foregoing reasons, the Judge allowed the relocation and the Appeals Court affirmed the decision.

Legal Custody

Mother sought sole legal custody of the children, but the Judge declined this request and instead granted Mother the authority to make “final decisions” regarding the children’s education.

Shared legal custody is the continued mutual responsibility and involvement of both parents in major decisions of the children’s welfare, including education, medical, and religious development. Shared legal custody is not appropriate when there exists a relationship that has been “dysfunctional, virtually non-existent, and one of continuous conflict.” Smith v. McDonald, 458 Mass. 540, 553 (2010). The Trial Judge found the parents had the most difficulty in communication around the children’s education and therefore granted Mother final decision making authority for educational decisions.

The Appeals Court affirmed the decisions of the trial court in regard to removal and legal custody. In a footnote, the Court commented Father’s plea to share payment of the $198 per year subscription for Our Family Wizard was not persuasive.

Bastible v. Gorenc
December 22, 2016
15-P-1496
90 Mass. App. Ct. 1121

Father, Martin Gorenc, moved for relief from judgment pursuant to Massachusetts Rule of Domestic Relations Procedure 60(b)(1) and (6), after a judgment of modification entered in favor of mother. A Judge of the Probate and Family Court denied the motion. Father appealed.

In 2003, Mother and Father entered into an agreement for judgment on a complaint to establish paternity as to their son, the agreement provided that Father was obligated to pay child support and that the parties were to share equally the child’s uninsured, dental, hospital, and prescription expenses.

On October 22, 2014 Mother filed a complaint for modification seeking an extension of child support. On October 30, 2014, a deputy sheriff served the complaint for modification by leaving it at the last and usual place of abode of Father and by mailing the same first class postage prepaid.

On January 6, 2015 a pretrial notice and order was sent to each party informing them that pretrial had been scheduled for May 5, 2015. The day the pretrial conference was scheduled, Father called the Court and stated, “[c]an’t make hearing. Out of state. Was only notified a few days ago.” The Judge conducted a modification trial and decided in favor of Mother. On May 21, 2015, an attorney filed an appearance on behalf of Father and on July 29, 2015, the attorney filed a 60(B) motion for relief from judgment. The Rule 60 motion was subsequently summarily denied by the Judge.

On Appeal, father argued that pursuant to Rule 60(b)(1) the judgment was the result of, “mistake, inadvertence, surprise or excusable neglect” because he did not receive the summons and only received notice a few days prior to the hearing. The Appeals Court noted that in order to reverse the denial of a motion for relief from judgment, there must be an abuse of discretion. Bushnell v Bushnell, 393 Mass. 462 (1984).

The Appeals court concluded that Father had notice and an opportunity to be heard. In his affidavit Father admitted that he received a telephone call from Mother’s counsel no later than April 29, 2015. Other than affirm that he was out of state, Father did not explain why he could not return to Massachusetts. Additionally, Father did not request a continuance. Mother had constructive notice that Father’s address had not changed and no correspondence to his Southwick home had been returned as undeliverable.

The Appeals Court concluded that the Lower Court Judge had not abused his discretion in denying Father’s motion stating that he had both notice and the opportunity to be heard.

Lower Court denial of motion affirmed.

JANUARY 2017 128s

Aina Pfeifer Cullem v. James Gregory Cullem
January 6, 2017
15-P-141

Defendant appeals order dismissing his appeal from an abuse prevention order entered against him on the grounds that such dismissal was an abuse of discretion. The Appeals Court vacated the dismissal of defendant’s appeal and remanded the case to the trial court. Here, the trial judge extended an abuse prevention order against defendant for a period of three years. Defendant filed a timely notice of appeal of the extension order and simultaneously requested a copy of the audio recording of the hearing. Three months later, the clerk’s office notified the parties that the recording was missing. Four months later, defendant filed a recreated record, and a month later filed a motion to recreate the record. In response, plaintiff filed a motion to dismiss, arguing that defendant failed to comply with Massachusetts Rule of Appellate Procedure 8(c). After hearing, the motion to dismiss was allowed.

The Appeals Court found this dismissal of defendant’s appeal to be an abuse of the trial judge’s discretion where, at the time of the hearing, defendant had already cured his noncompliance. Pursuant to Massachusetts Rule of Appellate Procedure 10(c), defendant’s submission of the recreated record prior to the hearing should have resulted in a finding that defendant had complied timely. See Mass. R. A. P. 10 (c) (“‘If, prior to the lower court’s hearing [a] motion for noncompliance with [the rules governing assembly and transmission of the record], the appellant should have cured the noncompliance, the appellant’s compliance shall be deemed timely.’”).

Order vacated and remanded to lower court for reconstruction of record.

Reynolds v. Reynolds
January 18, 2017
16-P-485

Plaintiff appeals from allowance of defendant’s motion to dismiss his complaint for contempt on the grounds that defendant failed to comply with certain provisions of the parties’ separation agreement. The Appeals Court disagreed and affirmed the judgment dismissing the complaint for contempt. The Appeals Court held that the boilerplate language contained in the parties’ separation agreement did not contain a “clear and unequivocal command” that could be the basis for contempt. The Appeals Court further noted that plaintiff failed to comply with Massachusetts Rule of Appellate Procedure 18(a) when he failed to include essential pleadings in his record appendix. As a result, it was unable to fully address the issues raised on appeal.

Judgment affirmed.

Carrier v. Carrier
January 20, 2017
16-P-144

Plaintiff appeals from judgment of divorce on the grounds that: (1) the trial judge improperly included a home held jointly with her father in the marital estate; (2) the trial judge abused her discretion when awarding plaintiff child support based upon a downward deviation of the child support guidelines; and (3) the trial judge abused her discretion when declining to award plaintiff alimony. The Massachusetts Appeals Court affirmed the judgment.

At the time of the divorce, the parties and their six children were residing with plaintiff’s parents in a home owned jointly by plaintiff and her father. Plaintiff’s father was financially responsible for the home and her family was provided with free child care. The parties also owned a rental property. After trial, the marital estate was divided 57%/43% in favor of the plaintiff. Defendant was awarded the parties’ rental property, plaintiff retained her interest in the home owned with her father, defendant was required to pay plaintiff $460.00 per week as child support and pay up to $10,000 per year for the children’s sports fees. Neither party was awarded alimony.

Plaintiff argues that her interest in the property held jointly with her father should not have been considered part of the marital estate because her interest is equivalent to a future interest subject to a life estate held by her father and, as a result, her interest has no present monetary value. The Appeals Court rejected this argument where plaintiff has a fully vested, fixed and enforceable right to that property. Additionally, post-divorce plaintiff continues to reside at the property and contributes only minimally for maintenance and utilities.

With respect to the child support award, although $460.00 weekly plus $10,000 per year was below what would otherwise be calculated pursuant to the child support guidelines, such an award was not an error of law. Here, the trial judge properly considered that the parties were jointly committed to sending their children to private schools, defendant actively participated in the children’s sports and that the parties had six children as grounds for the downward deviation.

Finally, the trial judge’s declination to award plaintiff alimony was not an abuse of discretion where plaintiff received a greater portion of the marital estate.

Judgment affirmed.