Winter 2017: Reported Case Summaries

by Valerie Qian, Ethan Rittershaus, Lauren Bussey

November 2016 Reported Case Summaries

Rosen v. Rosen
November 22, 2016

Mother appeals from Probate and Family Court judgments on complaints for modification and contempt, where the trial judge granted Father an equitable credit against a child support arrearage accrued prior to his complaint for modification. The Appeals Court rules that in very limited situations with “compelling circumstances of an equitable nature,” a court is not prevented by M.G.L. c. 119A §13(a) from granting an equitable credit against an arrearage. T.M. v. L.H., 50 Mass. App. Ct. 856, 861 (2001). Section13(a) establishes a general prohibition on retroactive modification of a child support order except with respect to any period during pendency of a complaint for modification. The Appeals Court lays out a narrow six-part test for determining if “compelling circumstances of an equitable nature” exist. Id.

The parties were divorced in 2003 and signed a Separation Agreement whereby Mother received primary physical custody of the three minor children and Father paid support of $4,500 per month. The Agreement additionally provided the parties would jointly select a college and contribute to college to the best of their respective abilities. Over time all three children moved out of Mother’s residence to reside primarily with Father. Mother and Father appear to have been in agreement regarding the relocations.

Father, without filing any court actions, reduced his support to $3,000 per month after the first child’s relocation. Subsequently, the parties’ executed and filed an Agreement to modify support to $3,400 per month, however the Agreement was not properly filed nor docketed. In August 2011 when the second child had moved into Father’s house, Father filed a complaint for modification to reduce support and order Mother to contribute to college. In October 2012 Mother filed a complaint for contempt seeking $102,701 in child support arrears accrued prior to the temporary order entered on the modification action.

The trial court ultimately reduced Father’s support retroactive to the date of service of his modification summons, and ordered Mother to contribute a percentage towards college. The court further found Father was not in “willful contempt” for the arrears, which existed because no court orders had been entered modifying support until the 2011 litigation. The judge gave Father an “equitable credit” because one of the children was living with him and supported by him during the period in question when he had reduced his support payments without court approval.

On appeal, Mother argues this “equitable credit” was in actuality an impermissible retroactive modification of child support, directly disobeying M.G.L. c. 119A §13(a). The Appeals Court agrees with Father, however, that the instant case is a situation where an equitable credit may be assigned “without contravening G.L. c. 119A, §13(a).” T.M. v. L.H., 50 Mass. App. Ct. 856, 861 (2001). The Court reasons that §13(a)’s intent is ultimately to ensure judicial oversight of child support orders, so that parties cannot agree to support that is insufficient for provision for minor children. But in very limited circumstances, a judge is not foreclosed by §13(a) from granting an equitable credit to a payor where he/she fulfilled the child support obligation in a manner different than the original order, but which still ultimately provides for the child as envisioned by the original order. Id.

The Court’s six-part test for whether T.M.’s “compelling circumstances of an equitable nature” exist and justify an equitable credit against an arrearage:

the support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child’s best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient.

Rosen v. Rosen, 90 Mass. App. Ct. 677, 688-689 (2016).

Judgment modified for mathematical errors, and as so modified, affirmed.

George v. George
November 23, 2016
SJC-12059 03

Husband appeals from a Probate and Family Court judge’s dismissal of his complaint for modification of alimony. The existing order was issued prior to adoption of the 2011 Alimony Reform Act, and provides for a longer duration of alimony than would have been ordered under the current statutory limits pursuant to M.G.L. c. 208 §49(b). The Supreme Judicial Court on its own motion transferred the case from the Appeals Court and affirmed the dismissal. It rules that Husband’s modification was filed prematurely. Uncodified Section 5(3) of the Act provides that based on the length of the marriage, since Husband’s only reason to seek a modification is because the existing order exceeds the §49(b) durational limits, his complaint should be refiled on a date after March 1, 2015. St. 2011, c. 124, § 5 (3). Whether said order, if a modification were filed, should be modified or not depends on whether deviation from the statutory limits is required “in the interests of justice” pursuant to the deviation factors delineated in M.G. L. c. §53(e). Id. at §49(b), §53(e).

The parties were married in 1989 and divorced November 2002, with the length of the marriage being approximately twelve years to the date of the service of the divorce summons. The Separation Agreement merged except with regards to property division (which included an agreement that Wife would retain the marital home) and Husband’s provision for Wife’s health insurance. The parties also agreed that Husband would pay alimony to Wife until the parties’ respective deaths, Wife’s remarriage, or approximately 24 years after the divorce. Husband’s alimony payments would have terminated under the currently statutory durational limits on April 23, 2011. Husband filed his complaint for modification on August 26, 2013.

The trial court found that uncodified Section 5 of the Act required that, based on the length of the marriage, Husband should have waited until March 1, 2015 to file his complaint for modification. St. 2011, c. 124, § 5 (3). The SJC affirms the trial judge’s decision on this basis, and indicates that Husband can now re-file his complaint.

The SJC further discusses that, for future analysis of such cases, the trial judge should make written findings whether it is “in the interests of justice” to deviate beyond the statute’s durational limits. Id. The alimony recipient has the burden of proving deviation is “in the interests of justice” by a preponderance of the evidence. The court should consider §53(e) deviation factors in light of the circumstances of the parties at the time the modification is sought, not at the time the initial order was established – though if circumstances existing at the time of the initial order continue to the present, those circumstances will of course continue to be relevant. The SJC rejects the trial court’s analysis that, had Wife known the durational limits would be changed by statute, she would have negotiated a different property division at the time of the divorce. The SJC’s rationale is that this would undo the legislature’s intentions that the 2011 Reform Act apply retroactively. Finally, the SJC emphasizes that while the trial court has “broad discretion when awarding alimony” it is incumbent on the court to consider “all relevant, statutorily specified factors” – specifically, all the factors listed in M.G.L. c. 208 §53(e). Duff-Kareores v. Kareores, 474 Mass. 528, 535 (2016) quoting Zaleski v. Zaleski, 469 Mass. 230, 235, 13 N.E.3d 967 (2014).


December 2016 Reported Case Summaries

Creedon v. Haynes
December 6, 2016
No. 16-P-184 90
Mass. App. Ct. 717 2016


Where a judge of the Probate and Family Court had held a trial on a complaint for contempt, found Defendant in contempt, determined the appropriate relief, and announced those matters on the open record, but failed to record the judgment, a second judge could not, on a motion pursuant to Massachusetts Rule of Domestic Relations Procedure 58 for, “final judgment and order to issue”, substantively reconsider the earlier decision and dismiss the complaint.


The Parties entered into a separation agreement on March 15, 1995. The agreement held, in relevant part, that Father designate his minor children as beneficiaries under his life insurance policy with the Lexington Fire Department, which during negotiations had been represented as having a value of one hundred thousand dollars.

In fact, there was no such policy, and that revelation prompted Wife to file a complaint for contempt on 2011. On the first day of the trial, Mother produced a letter from the town manager certifying that Father did not have life insurance at the time of the separation agreement’s execution. Father did not contest that fact but stated that he did have line of duty death benefits pursuant to M.G.L. c. 32, § 100A and had named the children as beneficiaries.

As a result, Father was adjudged to be in contempt and Mother was awarded a one hundred thousand dollar creditor claim against the estate of Father. While the record indicates that this judgment was read onto the record, no written judgment was ever issued, nor was the judgment entered on the docket.

Concerned about the lack of a written record, Mother filed a post judgment motion, “for final judgment and order to issue on the complaint for contempt.” Father did not oppose this motion. Nevertheless, a second judge (the trial judge had previously retired), vacated the contempt judgment on the grounds that the contempt was moot given that all the children of the marriage, at 29, 33, and 35 years old, were emancipated.

Mother thereafter appeared pro se and filed a motion under Massachusetts Rules of Domestic Relations Procedure 60(a) and 60(b)(1), (4)-(6) seeking relief from the “secondary judgment.” The second judge dismissed the motion on the grounds that the court did not issue a “secondary judgment.”


The Appeals Court first noted that these problems began as a result of noncompliance with Massachusetts Rules of Domestic Relations Procedure 58(a) and 79(a) which state respectively that “upon a decision by the court…, the court shall promptly approve the form of the judgment, ….every judgment shall be set forth on a separate document” and “the clerk shall keep the civil docket and shall enter therein each civil action to which these rules are made applicable.” Thus, while the trial judge had announced his decision into the record, there was no effective judgment.

The Appeals Court held that, in these circumstances, Mother was correct to move, pursuant to Massachusetts Rule of Domestic Relations Procedure 58(a), for entry of final judgment. The Rule 58 motion sought a largely ministerial act that a previously-made decision be recorded in a separate writing and entered on the docket.

The Rule 58(a) motion was not a vehicle for substantive reconsideration of an earlier decision and the judge was not free to treat it as such. This was especially true given the lack of any procedural safeguards i.e., notice and an opportunity to be heard. The second judge’s opinion relied intrinsically on a reading of the separation agreement that had been rejected by the initial trial judge.

For these reasons, the order dismissing the contempt complaint was vacated and the Appeals Court directed that, pursuant to Rule 58(a), judgment enter consistent with the decision of the original trial judge.

P.F. v. Department of Revenue
December 6, 2016
No. 15-P-771
90 Mass. App. Ct. 707, 2016


A Probate Court Judge acted outside his range of discretion in declining to modify Father’s child support payments down as there was no basis to attribute income given his incarceration. Nothing in the child support guidelines suggested that the nature of Father’s crime (Indecent Assault and Battery of a Minor) or other considerations were factors that warranted an upward deviation.


The plaintiff, an incarcerated Father, filed a complaint for a downward modification of child support following his divorce from child’s Mother. A Judge of the Probate and Family Court denied the request, reasoning that Father’s loss of income was a foreseeable consequence of his conviction for indecent assault and battery on the child for whom he owed support.

Father and Mother were married in September of 2000 and had one child together. Father and Mother were subsequently divorced in April 2004. Pursuant to that divorce judgment, Father was obliged to pay weekly child support in the amount of $72.00. In March 2010, Father was convicted of Indecent Assault and Battery on his Minor Child and sentenced to five to seven years in state prison.

In 2012, Father filed a complaint for modification citing his inability to pay child support as a result of his incarceration. A Judge of the Probate and Family Court denied the modification. The, “effect of this denial [was] that [the father] [would] have to someday reimburse the [mother] for the expenses being incurred at this time.” However, the Judge also requested that DOR, “waive the penalties that accrue on the unpaid arrears” during Father's incarceration.


The Appeals Court first noted that they were reviewing for an abuse of discretion. Wasson v. Wasson, 81 Mass. App. Ct 574, 576 (2012). “[A] judge’s discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ 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).

The Appeals Court went on to note that the method of calculating support was established by the child support guidelines. Morales v. Morales, 464 Mass. 507, 509-10 (2013). There is a “rebuttable presumption that the amount of the order which would result from the application of the guidelines is the appropriate amount of child support to be ordered.” M.G.L. c. 208, § 28, See guidelines, preamble. “Except as otherwise stated therein, the guidelines have presumptive application to actions to modify existing orders,” Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 8, (2016), and an existing order, “shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines,” Morales v. Morales. “This presumption may be rebutted, and a judge … may deviate from the amount of support dictated by [the guidelines], provided the judge makes written findings specifying that ‘the guidelines amount’ would be unjust or inappropriate, that departure from the guidelines is justified by the facts of the case, and that departure is consistent with the child’s best interests.”

In the instant case, because Father had no income while incarcerated, the presumptive amount that followed was the minimum order of $80.00 a month. Nevertheless, the Judge while concluding that in most cases this would result in a reduction of Father’s support obligation, decided (1) that a deviation was necessary, imputing income because Father’s loss of employment due to incarceration was a foreseeable consequence of his criminal activity and (2) the circumstances of the case warranted an upward deviation.

Attribution of Income:

The Appeals Court noted that for purposes of child support, the most salient number is the payor’s gross income. Department of Rev. v. Foss, 45 Mass. App. Ct. 452, 459 (1998). However, in certain circumstances, the earning capacity rather than actual income may be considered. Flaherty v Flaherty, 40 Mass. App. Ct. 289, 291 (1996). Income attribution is appropriate upon a finding by the court that the individual is capable of working and is unemployed or underemployed, or when the payor owns substantial assets.

The Appeals Court concluded that the criteria for attributing income was not met. It was undisputed that father had no assets or income. The Trial Court’s basis for its decision was incorrect due to the fact that it is not the foreseeability of unemployment that is dispositive. Rather, it is whether the payor is presently able to obtain employment though, “reasonable efforts.” Because no exercise of reasonable efforts would yield employment when incarcerated, the Trial Judge improperly exercised his discretion in attributing income.

Deviation from the Guidelines:

A judge may deviate from the child support guidelines upon entering specific written findings stating (1) the amount of the order that would result from the application of the guidelines (2) that the guidelines amount would be unjust or inappropriate under the circumstances (3) the specific facts of the case which justify the departure (4) that such departure is in the best interest of the child.

The Appeals Court concluded that there was nothing in either the guidelines thirteen enumerated criteria nor its catch all provision to suggest that the judge may consider the nature of a payor’s crime as a factor warranting an upward deviation. In fact, the guidelines specifically contemplate the opposite: a downward deviation from the presumptive amount when the payor is incarcerated and is likely to remain so for an additional 3 years and has insufficient resources to pay support. Thus, the Appeals Court concluded that the Judge had at least in part based his decision upon an impermissible factor.

The Appeals Court next turned to DOR’s contention that the Judge was vested with equity jurisdiction and was permitted to consider Father’s crime as an equitable factor. To editorialize the Appeals Court, the argument did not hold water: the relief father sought was statutory not equitable. Department of Revenue v. Mason M., 439 Mass. 665, 674 (2003) (“holding that a judge’s authority to modify a support order is statutory”). Further, while a judge may in certain circumstances award a support order under the court’s broad equity powers, in the instant case, the Judge appeared to be using the support order as a means to provide compensation for injuries caused by father’s abuse. As the parties had an adequate extant remedy at law (tort), equity was an inappropriate avenue for redress. Santagate v. Tower, 64 Mass. App. Ct. 324, 328, 329 (2005) (where mother was entitled to equitable relief on a theory of unjust enrichment / restitution against a spouse whom abandoned her).

Judgment remanded for further proceedings consistent with the Appellate decision.

McIsaac v. Porter
December 9, 2016
90 Mass. App. Ct. 730 (2016)


A Judge of the Probate and Family Court did not err or commit an abuse of discretion in making permanent an abuse prevention order based on the finding that the victim was still reasonably suffering from fear due to a past incident of serious physical abuse regardless of whether the victim also reasonably feared imminent serious physical harm. Further, there was no abuse of discretion when the Judge limited defense counsel’s ability to cross examine Plaintiff where counsel sought to question the evidence underlying the initial order.


Defendant appealed from an order of the Probate and Family Court which made permanent an abuse prevention order issued pursuant to M.G.L. c. 209A. On appeal, Defendant argued that the Judge erred by (1) making the order permanent based solely upon Plaintiff’s fear arising out of a past incident of serious physical abuse, without any finding that Plaintiff reasonably feared imminent serious physical harm and (2) limiting defense counsel’s ability to cross-examine Plaintiff at the renewal hearing.

In January of 2014, Plaintiff successfully applied for an abuse prevention order. She and Defendant had dated for approximately six years and had cohabitated for approximately six months. Defendant was significantly larger than Plaintiff. When Defendant drank, he became aggressive and violent. The situation escalated from that point. In 2013, there were instances where Defendant had dragged Plaintiff across the room, choked her, grabbed her arm, and broken her glasses. In December 2013, Defendant assaulted Plaintiff. Defendant hit Plaintiff fifteen times and subsequently broke down a door to the bathroom in their residence.

The 209A restraining order was subsequently obtained and extended twice.

The record of the January 2015 renewal hearing disclosed that as a result of the December 2013 incident, Defendant had been charged with assault and battery and received a continuance without a finding with a five-year probationary period. The Judge characterized this disposition as, “something that [she did not] see very often.” Defendant had thus far complied with the terms of his probation, which included a requirement that he not contact Plaintiff. The matter of restitution to Plaintiff for her medical expenses had not yet been resolved, with at least one additional court hearing expected.

During this renewal hearing, Defendant testified that while Defendant had not violated the order, she remained scared and in fear of Defendant. They had attended the same out-of-state college, were in the same alumni network, had mutual ties and friends, and “r[a]n in some of the same circles.” Plaintiff testified that she was, “scared to be in the city … if [she] did happen to bump into him.” Plaintiff was on her alma mater’s Boston alumni board and Defendant’s father was on the college’s board of trustees. Although Defendant himself had not come to any alumni events that Plaintiff had attended, his name was on the list for one such event and she testified that as a “precaution, [she] had [her] parents be around the corner [at] every event.” Asked by the Judge what she thought would happen if she were to encounter Defendant in the future, Plaintiff stated, “well, last time he almost killed me, so…” She said, “[a]nd at the end of the day, it’s a small city. And I think I do have [reason] to be scared of him, because of what he did.” Plaintiff added that “just a year ago, something horrendous happened in [her] life.”

On cross-examination, Plaintiff acknowledged that the evening after the December 2013 assault, she had returned with her parents to the residence where she lived with the Defendant and the four spent time together. She also had gone with Defendant to his family’s house for some part of the following week. Defense counsel suggested to the Judge that before the 209A order issued in January 2014, Defendant had moved out of the residence at Plaintiff’s request, yet she had continued to send him numerous text messages, one of which she acknowledged at the hearing.

At the close of the hearing, the Judge ruled that, “based on the affidavit, the photographs, the criminal record, and the testimony today, I find that there was a very serious incident, and that it was part of the history. And I will issue a permanent order.” Defendant appealed.


Basis for the extension order:

On Appeal, Defendant argued that the order was improperly based only on past abuse without any finding that Plaintiff currently had a reasonable fear of imminent serious physical harm. In making this argument, Defendant relied on Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002) (held that the issuance of a 209A order on allegations of past abuse alone without fear of imminent physical harm was in consist with 209A.) However, the Appeals Court distinguished the instant case from Dolan noting that Dolan relied on 209A §1(b) (preventing imminent serious harm). This was but one of the three ways by which a 209A order can be granted. In contrast, Plaintiff sought the extension of this order because Defendant has already caused actual physical harm as elaborated in 209A § 1(a). See Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-74 (2014) (held that where the defendant had already caused past physical harm a judge may reasonably conclude that there is continued need for an order because damage from past physical harm affects the victim even when further physical attack is not reasonably imminent).

In the instant case, the Judge considered Plaintiffs’ affidavit, the photographs of her injuries, her testimony about her continuing fear, Defendant’s criminal record, and his five year probationary term via CWOF. The Judge found that the assault was a very serious incident and confirmed that Plaintiff sought the extension because what happened was so profound that Plaintiff needed to have the order made permanent.

Limitations on cross-examination:

On Appeal, Defendant argued that the Judge abused her discretion in limiting counsel’s ability to cross-examine Plaintiff at the renewal hearing. Counsel sought to show that Plaintiff was not currently in fear because she continued to contact Defendant between the time of the violent incident in 2013 and the issuance of the restraining order in January of 2014. In response, the Judge stated that she was not going to relitigate the underlying complaint. The Appeals Court noted no abuse of discretion. Although the Judge was to consider the basis of the initial order in evaluating the risk of future abuse, this does not mean that the restrained party may challenge the evidence underlying the initial order. Iamele v. Asselin, 444 Mass. 734 (2005). Secondly, the Judge properly could determine that Plaintiff’s ambivalent feelings before she decided to seek the 209A order had little or no relevance to whether Plaintiff reasonably remained in fear of the Defendant at the time of the renewal hearing. A judge in a 209A proceeding if warranted by the circumstances may place limits on cross-examination. Quinn v. Gjoni, 89 Mass. App. Ct. 408, 413 (2016).

The Order making the restraining order permanent was affirmed.

Sullivan v. Smith
December 16, 2016
90 Mass. App. Ct. 743 (2016)


Under the circumstances of a complaint in equity brought in the Probate and Family Court seeking payment by Defendant of post-minority child support to the former guardian, the long arm provision of the Uniform Interstate Family Support Act provided personal jurisdiction over the Defendant. Held further that the Judge of the Probate and Family Court did not abuse his discretion in denying Defendant’s motion for relief from judgment on the basis of insufficient service.


Defendant appealed from a judgment and orders of the Probate and Family Court ordering him to pay post-minority child support, to Earline Sullivan, the former guardian of the unemancipated 18 year old son. Defendant argued that the Probate and Family Court lacked personal jurisdiction over him, and as a result, the judgment was void. He also challenged the sufficiency of service of process of the complaint and subsequent notice of the hearing.

Defendant is the father of a son born on July 13, 1996. Defendant had previously acknowledged paternity and been ordered to pay child support in Massachusetts. Plaintiff, Earline Sullivan, child’s maternal grandmother, was appointed guardian on February 11, 2004. Defendant was ordered to pay $118 a week via wage assignment. This support payment terminated upon the child reaching the age of majority. See M.G. L. c. 190B § 5-210. Both Plaintiff and the child were residents of Massachusetts while Defendant was a resident of Georgia.

One month before the guardianship was set to terminate, Plaintiff filed petitions under both the paternity action and the guardianship action. The Judge dismissed both petitions without prejudice for refiling as a complaint in equity. In this situation equity was necessary because the guardianship statute terminates at the age of majority while the paternity statute countenances support based on primary domicile with a parent (M.G.L. c. 209C § 9(a)). Neither condition existed in the instant case.

Plaintiff thereafter filed a complaint in equity for child support of unemancipated child previously under guardianship on November 12, 2014. After several attempts to make service at Defendant’s home, the Georgia sheriff executed a return of service stating that service was not made. Plaintiff thereafter properly made service by publication, which was granted by motion.

No answer was filed within the sixty day period specified in the order by publication. Thereafter the Probate and Family Court scheduled a case management conference for August 7, 2015. Defendant admitted that he had received notice of this case management conference. As the sixty day time frame to answer had passed the Judge entered judgment against Defendant ordering him to pay $250.00 per week in child support.

Upon receiving the judgment, Defendant filed a motion pursuant to Massachusetts Rule of Domestic Relations Procedure 60(b) on the grounds that Plaintiff had failed to perfect service and that he did not receive notice of the hearing. The Judge denied this motion but in the “interest of justice” scheduled a hearing for September 22, 2015 to determine if the amount of child support ordered in the judgment should be modified.

Three weeks prior to the scheduled hearing, Defendant filed a motion to dismiss pursuant to Massachusetts Rule of Domestic Relations Procedure 12(b)(2) for lack of personal jurisdiction. The Judge denied the motion but suspended any obligation to pay child support and set a new date of October 27, 2015 to determine the appropriate amount of child support. Defendant did not file a financial statement or guidelines and the Judge entered a corrected order dated October 27, 2015 that lifted the stay on child support payments and allowed the judgment to stand absent any modification. Father appealed.


Personal Jurisdiction:

The Appeals Court first examined Defendant’s claims regarding personal jurisdiction. They first noted that Defendant had not raised the issue of personal jurisdiction until after the entry of judgement. As a result, the lower court Judge properly treated his motion as one for relief from judgment under Massachusetts Rule of Domestic Relations Procedure 60(b)(4). I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 557 (2013). The Appeals Court reviewed the question of personal jurisdiction de novo. Colley v. Benson, Young & Downs Ins. Agency Inc., 42 Mass. App. Ct. 527, 533 (1997).

The Court noted that, “in order for a court to exercise personal jurisdiction over a defendant, the assertion of jurisdiction must be both authorized by statute and consistent with due process.” I.S.H. at 561. The lower court Judge had predicated his ruling on the long-arm statute, M.G.L. c. 223A, § 3(h) which provides “a court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the persons…(h) having been subjected to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support…notwithstanding the subsequent departure of one of the original parties from the commonwealth.”

In the instant case, Defendant had entered a general appearance in both the paternity and guardianship actions, resulting in an order of child support. Defendant contended that this was error because the complaint in equity was an independent action, which did not involve either modification or enforcement of a prior order.

The lower court Judge construed the term modification broadly to reach the separate action, ruling that the narrow construction of the term would deprive unemancipated children who have reached the age of majority of equal protection of the law. The Appeals Court agreed but on different grounds, finding that M.G.L. c. 223A did not provide personal jurisdiction. However, the Appeals Court went on to note that UIFSA (Uniform Interstate Family Support Act) did in fact confer personal jurisdiction over Defendant.

UIFSA was enacted in 1995 and extended personal jurisdiction in interstate support proceedings to the full limit of the Federal and State constitutions. M.G. L. c. 209D, § 2-201. UIFSA also applies to unemancipated post-majority children. M.G. L. c. 209D, § 1-101 (1). Under UIFSA, the Probate and Family Court of Massachusetts had continuing exclusive jurisdiction over the equity complaint seeking support, as it had issued the order of support and was the State of residence of the child and the former guardian. M.G.L. c. 209D, § 2-205(a)(1). Finally, the Probate and Family Court had personal jurisdiction over Defendant under M.G.L. c. 209D, § 2-201(7), because he had asserted parentage in a paternity proceeding brought under M.G.L. c. 209C. This contained the requisite statutory authorization by which personal jurisdiction could be exercised. I.S.H v. M.D.B., 83 Mass. App. Ct. 553, 557 (2013). Additionally, this exercise of personal jurisdiction comported with notions of due process because father had purposefully availed himself of the benefits and protections of Massachusetts law.

The Appeals Court noted that the crux of the question before it was after having obtained personal jurisdiction over Defendant and having issued a valid support order, did the Probate and Family Court retain personal jurisdiction over the father once the child reached the age of majority. The Appeals Court decided that it did: “[o]nce a forum State acquires personal jurisdiction over a party, it retains continuing jurisdiction ‘throughout all subsequent proceedings which arise out of the original claim’” Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 454-55 (1932).

Due Process:

The Court first noted that the key requirement under a due process analysis was fairness to the defendant. Kulko v. Superior Ct., 436 U.S. 84, 91 (1978) (holding that due process required sufficient connection between the defendant and the forum State to make it fair to require defense of the action). In evaluating the fairness to Defendant, the Appeals Court examined the nature of the relationship between the original claim and the newly asserted claim. As the only reason for the separate action (equity) was a gap in the statutory scheme, the action arose directly out of two previous cases (the guardianship and paternity complaint), the Appeals Court concluded that it comported with due process.

Service and Notice:

On Appeal, Defendant argued that it was an abuse of discretion to deny his motion for relief from judgment because service was insufficient. Defendant argued that Plaintiff failed to perfect service within ninety days of filing of the complaint because she did not file her motion for service by publication until February 12, 2015, ninety-two days after the complaint was filed. Defendant argued that this should have resulted in an automatic dismissal pursuant to Massachusetts Rule of Domestic Relations Procedure 4(j). The Appeals Court noted that 4(j) was not a rule of mandatory dismissal. Schuman v. Stanley Works, 30 Mass. App. Ct. 951, 953 (1991). As the record demonstrated a diligent effort to serve notice on Defendant. The judge’s order denying Defendant’s motion to dismiss which constituted an implicit finding of good cause.

Moving on to Defendant’s contentions regarding notice, the Appeals Court was unmoved. Even if the Court assumed arguendo that he did not receive a copy of the motion to continue, Defendant gambled when having been served with notice by publication and having received notice of the case management conference he did nothing. He had received information which was sufficient to put him on notice of the facts which would incite a person of reasonable prudence to an inquiry under similar circumstances. Commonwealth v. Delaney, 425 Mass. 587, 592 (1997). In the instant case, Defendant failed to answer or file a responsive pleading and failed to apprise himself of the docket and applicable probate court orders. The Judge did not abuse his discretion by entering judgment when Defendant had failed to answer of appear.

The Judgment was affirmed.

January 2017 Reported Case Summaries

Adoption of Zak
January 9, 2017

The mother and the father herein challenged their right to participate in a hearing regarding post termination visitation. By means of a prior proceeding in Adoption of Zak, 87 Mass. App. Ct. 540 (2015), the Appeals Court upheld the determination of a Juvenile Court judge’s decision terminating parental rights, as well as terminating consent to adoption for the three minor children. The Appeals Court, however, remanded with respect to the mother and the father’s right to post termination visitation, which is the subject of the instant action.

In remanding the post termination visitation issue for further findings, although the Department of Children and Families (“DCF”), as well as the children involved were provided notice of the remand hearing, the mother and the father were not. At the remand hearing, after considering the impact that prior incidents of domestic violence had had on the children, as well as the children’s significant improvement since their placement in a preadoptive home, the judge ruled that post termination visitation was not in the youngest child’s best interest. With respect to the two older children, the judge determined that one visit per year with their biological mother would be in the children’s best interests, but provided no post termination visitation for the father. The mother and the father appealed, arguing that their right to notice of the remand hearing had not yet been extinguished, as the post termination visitation stemmed from the same initial termination proceeding.

Relying on Adoption of Rico, 453 Mass. 749 (2009), and Adoption of Douglas, 473 Mass. 1024 (2016), the Appeals Court determined that merely because the termination of parental rights was final, the mother and the father did not lack standing to participate in the remand hearing concerning post termination visitation—a hearing that served as a continuation of the prior proceeding that the mother and the father had participated in. The Appeals Court further noted that in the remand proceedings, the judge properly considered evidence of events that occurred after the first appeal, as well as evidence of events introduced at trial, which could only point to a continuation of the prior proceeding in which the mother and the father had been parties.

Vacated and remanded.

V.J. v. N.J.
January 30, 2017

The Appeals Court affirmed the extension of a civil harassment prevention order entered against the Defendant, N.J., despite the Defendant’s claim that the lower court judge failed to set forth findings of three separate incidents whereby the Defendant placed the Plaintiff, V.J., in (1) fear, (2) intimidation, or (3) otherwise abused her.

In examining a civil harassment order, the Appeals Court looked at whether a judge could find, by a preponderance of the evidence, that the defendant committed three or more acts of willful or malicious conduct targeted at a specific person with the intent to intimidate, cause fear, abuse or damage to property and that the defendant did in fact cause said fear, intimidation, abuse or damage to property. The test applied is a subjective one—and in evaluating whether the three or more acts caused intimidation, fear or abuse, the Court looks to the entirety of the harassment rather than each specific act individually. Although the lower court judge did not find that the Plaintiff had suffered harassment at the crux of each specific act, it was sufficient that the judge found that the Plaintiff had suffered harassment from the Defendant over the course of the last several years. The Appeals Court noted that when examining the three acts at issue, which occurred on June 10, 2012, July 1, 2012, and September 9, 2015, respectively, the Defendant’s entire course of conduct must be viewed to determine whether the evidence supports the extension of the civil harassment order.