Spring 2017: 128s

By Lauren Bussey, Elizabeth Silvestri, Lauren Standiford, Ethan Rittershaus

February Rule 1:28 Decisions

McWilliams v. Fitch
February 9, 2017

The Husband herein files this appeal due to a judge of the Probate and Family Court ordering the Husband to assume one-half of the expense associated with the college education for one of the parties’ four children. Pursuant to the parties’ separation agreement, the parties were to contribute to the children’s college education expenses in proportion to his or her respective gross taxable incomes computed for Federal Income Tax Purposes based on the calendar year immediately prior to the commencement of the school year in question. Upon the Husband’s failure to pay tuition for two of the parties’ children, the Wife filed a complaint for contempt alleging noncompliance by the Husband with the aforementioned provision of the separation agreement.

The trial court judge ultimately did not find the Husband in contempt of the separation agreement and actually reduced the Husband’s child support payments. The Husband was, however, ordered to pay for one-half of one of the children’s college education less aid and loans available to that child.

As the Husband did not provide a factual record or legal argument to support his assertions pursuant to Mass.R.A.P. 16(a)(4), the Appeals Court affirmed the trial court’s decision. In filing his appeal, the Appeals Court noted that the Husband failed to submit a record appendix. Although the Wife sought permission to file a supplemental appendix due to the Husband’s failure to do so, the Wife has yet to submit an appendix to the Appeals Court. Although acknowledging that the parties appeared pro se, the Appeals Court stated that pro se litigants must nonetheless comply with the rules of appellate procedure.

S.P. v. B.D.
February 22, 2017

The Probate and Family Court granted the extension of an abuse prevention order pursuant to G.L.c. 209A, § 3. In extending an abuse prevention order, the party seeking the extension must establish, by a preponderance of the evidence, that an abuse prevention order is necessary to protect said party from abuse pursuant to G.L.c. 209A, §1. The proper inquiry is whether the party seeking the abuse prevention order is in fear of imminent serious physical harm. The fact that actual abuse has not occurred during the time between an order being issued and the request for an extension of the order is not sufficient grounds, on its own, for denying the request for an extension. Rather, to determine the necessity of extending an abuse prevention order, the court looks to the entirety of the circumstances at the time the party seeks the extension, coupled with the initial abuse prevention order.

Here, the trial court judge properly examined not only the Defendant’s conduct leading up to the issuance of the restraining order, but also the Defendant’s conduct upon release from incarceration. The trial court judge noted the Defendant’s propensity to file frivolous motions against the Plaintiff and Plaintiff’s attorney, the Defendant’s posts on social media regarding the Plaintiff and the Defendant’s attempt to obtain the Plaintiff’s impounded address.

Worthen v. Worthen
February 15, 2017

The parties were divorced in 2006 and entered into a separation agreement that provided, among other things, the Husband pay the Wife alimony of $3,000.00 per month in addition to 15% of any and all bonuses received by the Husband through his employment. The Husband was also to pay the Wife child support in a similar fashion (15% of any and all bonuses) until the last child’s emancipation. In the Agreement, the term “bonus” was defined as any and all gross compensation received by the Husband in excess of his base salary. At the time of the divorce, the parties’ two children were fifteen and twelve years old. The Agreement further stated that the Wife waived any interest she then had or later may acquire in the Husband’s stock or investment accounts and any equity the Husband may have or later acquire in Medical Specialties Distributers of Stoughton, MA (“MSD”), the company that the Husband had worked for since 2000.

Although the Husband had received stock in MSD in 2005, the stock was not disclosed on the Husband’s financial statements for years 2006 and 2008-2010. In 2013, the Husband received over $1 million for his sale of MSD. The sale of the stock, however, was designated as equity distributions by MSD and not as income or a bonus. Upon reinvesting $500,000.00 back into the company, the Husband received $224,011.98 from the sale of MSD stock in the year 2014. The Husband did not pay any additional alimony or child support to the Wife based on his sale of MSD stock.

The Wife filed a complaint for contempt against the Husband based on the Husband’s failure to disclose the sale of said stocks, as well as the Husband’s failure to pay 15% of the income received from the sale of the stocks as additional alimony and child support from the income generated by the sale of the stocks. In response to the Wife’s complaint for contempt, the Husband filed a motion for summary judgment or, alternatively, a motion to dismiss. The Wife then filed a motion for relief pursuant to Rule 60(b)(2), (3), and (6) with respect to the stock-waiver provision set forth in the separation agreement. The trial court judge dismissed the Wife’s complaints for contempt, but allowed the Husband’s motion for summary judgment. The Wife then filed the instant appeal.

Wife’s Complaints for Contempt: The Appeals Court remanded with respect to the trial court’s dismissal of the Wife’s complaints for contempt. The Appeals Court reviewed the record to determine whether, in viewing the evidence in the light most favorable to the nonmoving party (the Wife), all material facts have been established and the moving party (the Husband) would be entitled to judgment as a matter of law. In reviewing the Judgment of Divorce (incorporating the separation agreement), the judgment clearly set forth the Husband’s obligation to contribute additional support of 30% due to any bonuses received—15% of which is child support and 15% of which is alimony.

Husband’s Alimony Obligation: The Appeals Court rejected the Wife’s interpretation of the parties’ separation agreement, whereby the Wife claimed she agreed not to take any interest in the Husband’s stock as an asset division but instead was entitled to 15% of the income that stemmed from these stocks. In reviewing an agreement, the Court will not expand the scope of an agreement beyond its plain meaning to hold a party in contempt. Merely because the Wife disagrees as to the language of the separation agreement does not make the agreement ambiguous. Further, upon hearing testimony from MSD human resources and payroll, it was clear that MSD did not treat the stock distributions as bonuses.

Husband’s Child Support Obligation: The trial court judge failed to address the Wife’s contempt action as relates to the Husband’s child support obligation. Specifically, there was no finding made regarding whether the children were emancipated at the time of the Husband receiving income from the sale of stock and what amounts were paid by the Husband as additional support, if any, from said proceeds. As set forth in Wooters v. Wooters, income derived from stock options is considered gross employment income for purposes of child support.

Wife’s Motion for Relief: In her motion for relief, the Wife claimed that the Husband’s stock was newly discovered evidence and that the Husband failed to disclose said stocks. The Wife also claimed that allowing the Husband to retain said stocks would be unconscionable. The Appeals Court affirmed the trial judge’s findings that the Wife must have been reasonably aware of the existence of the Husband’s stock based on the provision in the parties’ Separation Agreement. Further, the information was available to the Wife for introduction into evidence at the time of trial, which the Wife failed to do. In examining the Wife’s claim under Rule 60(b)(3), the Appeals Court affirmed the trial court judge’s determination that a party’s failure to disclose facts relevant to the matter before the court in and of itself does not constitute fraud on the court sufficient to vacate a judgment. Further, the Wife’s arguments did not merit relief pursuant to Rule 60(b)(6), the “catch all” provision, where the Wife’s arguments were not requests for relief independent of subsections (2) and (3). The Appeals Court further found that the motion for relief was not timely brought before the Court and affirmed the trial court judge’s determination on this matter, as the Wife filed the motion for relief nearly nine years after the entry of the judgment of divorce nisi.

White v. Harmon
February 6, 2017

Upon a judgment of divorce, the Wife contests the trial court’s award of alimony. Specifically, the Wife claims that the trial court erred in its calculation of the Husband’s income as well as the length of the parties’ marriage.

The Wife graduated from Oklahoma State University with a degree in finance. Upon graduating from Oklahoma State, the Wife started the company Tulsa Computer Group. The Wife ceased working full-time in 2007 to care for the parties’ daughter and the Wife’s two sons from a prior relationship, but remained with Tulsa Computer Group part-time through November 2012. The Wife’s part-time salary during this time approximated $24,000.00. Between the parties’ separation in 2012 and May 2014, the trial court found that the Wife did not make any “real efforts” towards finding employment. In May 2014, the Wife earned a salary of $12,000 for work performed over the course of eight months.

By comparison, the Husband (also a college graduate) began working for the Wife’s company in 2003/2004 and predominately focused on the sales aspect of the business. Between the years of 2010 and 2013, the Husband’s salary changed from $103,189 to $72,001, respectively. At the time of the parties’ divorce trial, the Husband’s salary was only $48,371.96.

The trial court judge examined both parties’ incomes. The trial court judge determined that the Wife was grossly underemployed and found the Wife’s true earning potential to be $25,000.00. Further, the trial court judge attributed income to the Husband, finding him capable of earning $92,000 per year.

The Appeals Court affirmed the trial court’s determination to attribute income to the Husband. The trial court judge noted that despite the Husband earning substantially less as of the time of trial, the Husband had not reduced his staff or modified his lifestyle, as the Husband continued to enjoy luxuries such as cruises and vacations. In attributing income to the Husband of $92,000.00, the trial court relied on the salary of the Husband’s senior sales employee. Although the Wife maintains on appeal that as the owner of the company, the Husband had much more income available to him than $92,000 per year, the Appeals Court agreed with the trial court judge, finding that the Wife provided no basis as to her calculation for the Husband’s “true” income in excess of $92,000.00.

The Wife additionally argues that the trial court should have included the Husband’s rental income for purposes of the Husband’s total gross income in determining the alimony award. The Appeals Court found that the trial court judge, after considering the rental income received by both the Husband and the Wife from their respective properties, properly decided that the nearly identical rental incomes would not factor in the alimony determination for either party but instead considered the payments for purposes of reducing each party’s reported expenses.

Lastly, with respect to the length of the parties’ marriage, the Wife claims the trial court judge should have factored in the nineteen months the parties’ lived together prior to marriage. The trial court judge found that the parties were married on March 18, 2001 and the Wife served the complaint for divorce on the Husband on August 3, 2012—making this a marriage of 137 months. The trial court judge ordered the Husband to pay alimony for 95 months or 70% of the number of months of the marriage. The Appeals Court found that while a judge may decide to extend the length of the marriage upon consideration of the factors set forth in G.L.c. 208, §49(d)(1), a judge has no obligation to provide written findings supporting a decision not to do so.

March Rule 1:28 Decisions

Pickering v. Mendes
March 1, 2017

The parties divorced in October 2010. Pursuant to their separation agreement, Husband paid Wife child support and alimony and both issues merged with the divorce judgment. In 2011, Wife filed a Complaint for Modification seeking an increase in alimony. After a trial was held in the matter, a modification judgment entered increasing Husband’s alimony obligation. The Lower Court Judge found that since the time of the divorce, Wife’s health had deteriorated. She suffered from numerous disorders and had experienced a stroke and several mini-strokes. Her food expenses had increased due to her health needs and her living situation was unstable. The judge found that Husband’s income had increased since the date of the divorce while his expenses had decreased. Ultimately, the judge found that Wife had met her burden of demonstrating a material change in circumstance since the entry of the divorce and increased Husband’s alimony obligation. Husband appealed.

The Appeals Court affirmed the judgment finding no abuse in discretion by the Lower Court Judge. Husband argued on appeal that Wife was improperly permitted to proffer medical testimony regarding her health without providing corroborating documentation or expert testimony. The Appeals Court stated that since Wife’s health had worsened since the divorce, she could testify regarding same and it was up to the judge to determine her credibility and the weight to give her testimony. Husband then argued that Wife did not demonstrate a material change in circumstance. The Appeals Court stated the Wife’s failing health, her increased expenses, and her housing instability in addition to Husband’s increased income and decreased expenses were all considered by the Lower Court Judge and were enough to meet the standard. Further, the Appeals Court disagreed with Husband’s argument that the judge erred in failing to consider occasional gifts and loans as other sources of income. In disagreeing with same, the Appeals Court emphasized that alimony awards are grounded in one spouse’s need and the other spouse’s ability to pay.

Modification judgment affirmed.

Marshall v. Marshall
March 6, 2017

After a four day trial, the parties were divorced. Upon entry of the judgment of divorce nisi, Wife filed a motion to amend the judgment. Said Motion was allowed before Husband had the opportunity to respond. Consequently, Husband filed a motion to vacate the amended judgment. A hearing was held on same and Husband’s motion was denied. Husband then filed a notice of appeal from the amended judgment of divorce. Husband requested a copy of the recording of the hearing on his motion to vacate. The Court later informed him that there was no recording available from the hearing date due to an equipment malfunction.

Subsequently, Wife filed a motion to dismiss and motion to strike the notice of appeal arguing that Husband’s failure to file the transcripts and failure to file a statement of the proceedings from the motion hearing indicated that he abandoned his appeal, requiring dismissal under the Massachusetts Rules of Appellate Procedure (“Mass.R.A.P.”) 10(c). Said motion was marked for a hearing; however, three days before the hearing, Husband filed a statement of issues and designation of transcript stating that he was not refiling transcripts because they were previously filed with his post-trial pleadings. Additionally, he refiled the previously submitted transcripts. Further, he stated that he did not intend to submit a transcript from the motion hearing. Despite same, Wife’s motion to dismiss was allowed and Husband filed a notice of appeal.

The Appeals Court stated that pursuant to the plain language of Mass.R.A.P 10(c), if, at any time prior to the hearing on a motion for noncompliance with the rules regarding the assembly of the record on appeal, the appellant cured the noncompliance, such compliance shall be deemed timely. In this case, since Husband filed the necessary transcripts prior to the hearing on Wife’s motion to dismiss, he had cured the alleged noncompliance. Consequently, the dismissal of Husband’s was an abuse of discretion.

Order reversed and notice of appeal reinstated.

McClelland v. McClelland
March 10, 2017

The parties separated after thirteen years of marriage. Pursuant to their separation agreement, Mother had primary custody of the parties’ three children and Father paid child support and alimony equivalent to thirty-eight percent of his gross weekly income. Additionally, Father was responsible for seventy-five percent of secondary school expenses for the children with Mother responsible for twenty-five percent. At the time of the divorce, Father was a successful chef; however, beginning in 2008, Father experienced reductions in his income. Father sought and obtained two modifications decreasing his support obligations. Although decreased, Father’s support obligations still represented thirty-eight percent of his gross weekly income. Additionally, the parties agreed in a subsequent modification that each would pay one-third of the children’s college expenses. In 2013, the parties filed cross complaints for modification. Father requested a termination of alimony and a decrease in child support. The issue of payment of educational expenses was not raised by either party. After trial, the judge entered a modification judgment that increased Father’s child support obligation, terminated alimony and ordered Father to pay all of the children’s education expenses. The parties cross-appealed from the judgment.

With regard to the educational expenses, Father argued the judge abused her discretion in raising the issue sua sponte. The Appeals Court agreed stating that where the parties had previously agreed on the payment of college expenses, the judge improperly created a dispute where one did not exist. While the Lower Court Judge found that Father intentionally concealed his mother’s payment of his education expense obligation thus warranting the change, the Appeals Court pointed out that a previous modification indicated that both the judge and mother were aware of Father’s receipt of financial assistance. Further, the Appeals Court found no merit in Mother’s argument that by seeking a reduction in child support, Father opened the door for the judge to consider the education expenses. Consequently, the Appeals Court reserved the judgment with respect to education costs and reinstated the parties’ previous agreement with respect to secondary school costs while assigning Mother responsibility for one-third of college expenses.

With regard to the child support, the Appeals Court stated that the Lower Court Judge did not adequately explain the material and substantial change in circumstances warranting a modification as required since the case fell outside of the child support guidelines. In fact, the judge found that a reduction in support was warranted because the eldest child was emancipated and the younger children no longer resided with Mother. Additionally, she found that Father’s income had decreased and Mother was receiving income from a part-time job. Despite same, the judge ordered an increase in child support without further justification. Rather, the judge appeared to view Father’s reduction in income as temporary and found that Father had received a decreased child support obligation by previously claiming the payment of education costs as an expense when it was his mother who actually paid same. The Appeals Court vacated and remanded this issue for further findings. Lastly, in regards to attorney’s fees, the Lower Court Judge denied Mother’s request for same stating that neither party was blameless in this action. The Appeals Court agreed and affirmed the relevant portion of the judgment.

Judgment reverse in part, affirmed in part and remanded for additional proceedings.

Rediger v. White
March 13, 2017

Both parties had appealed from a judgment of divorce nisi. Wife timely filed a notice of appeal. Husband then filed two motions to alter or amend the judgment pursuant to Mass. R. Dom. Rel. P. 59(e). While said motions were pending, Husband filed his notice of appeal. After the judge denied Husband’s motions, Husband filed a new notice of appeal. Wife did not. Over two months later, Wife filed a motion for clarification, or in the alternative a motion to file late appeal. The Lower Court Judge found Wife’s notice of appeal timely. Husband argued that Wife’s notice of appeal was not proper. The Appeals Court agreed stating that Husband’s Rule 59(e) motions served to toll the appeal period. Despite same, the Appeals Court stated that it would address Wife’s issues on appeal. Wife alleged that the Lower Court Judge made numerous errors; however, many of her claims were not raised at trial and were not addressed by the Appeals Court.

One claim raised at trial and therefore addressed by the Appeals Court was whether the judge erred in calculating Husband’s income. Specifically, Wife argued that Husband’s reduction in income at the time of trial was suspicious since he had earned substantially more during the marriage. The Appeals Court noted that the judge had addressed such claims by Wife, finding that according to Husband’s testimony, his reduction in income was part voluntary and part involuntary. The judge found such testimony credible and Wife failed to show that said determination was clearly erroneous. Next, Wife argued that the judge failed to take into account her need in determining alimony. The Appeals Court disagreed stating that the judge specifically addressed this and fashioned an award equal to thirty percent of the difference of the parties’ gross incomes. Lastly, Wife argued that the judge erred in ordering an inequitable division of assets. While the judge awarded the former marital home to Husband, the rest of the estate was divided evenly. In awarding Husband the former marital home, the judge found he had brought the property into the marriage and paid off prior mortgages with his income during the marriage as well as spending over $500,000.00 in renovations. The Appeals Court stated these findings were not clearly erroneous.

The Appeals Court then addressed Husband’s arguments. Husband claimed that the judge erred in his alimony calculation by including income used to calculate his child support obligation owed to his first wife. The Appeals Court stated that nothing in the relevant statute required the judge to exclude gross income used by another judge in making a child support order in a previous case. Further, the judge did deduct Husband’s child support obligation from his weekly gross income prior to determining the alimony award. Therefore, the judge properly accounted for Husband’s child support obligation.

Judgment affirmed. Order denying motions to alter or amend judgment affirmed.

Browning v. Fearing
March 13, 2017

Defendant appealed from a supplemental amended judgment granting, in relevant part, that the Plaintiff could remove the parties’ two children from Massachusetts. Defendant also asserted that the Court erred in failing to retroactively modify the support order. The parties were married for five years when the Plaintiff filed for divorce. The parties entered into a separation agreement, incorporated into the divorce judgment, in which the parties shared legal custody but the primary residence of the children would be with Plaintiff. Subsequently, Plaintiff filed a complaint for modification seeking sole legal custody. Defendant filed a counterclaim for modification. Plaintiff then amended her complaint to request to remove the children. After trial, a judgment entered allowing Plaintiff to remove the children finding that she was the primary caretaker of the children and it was in the best interests of the children to grant the removal.

Defendant’s first argument on appeal was that the judge used the wrong standard in deciding the removal issue. The Appeals Court stated that the analysis applied by the judge depends on whether the parent requesting removal has sole physical custody. In this case, the judge’s findings supported the determination that the Plaintiff had primary physical custody. In light of same, the Yannas standard must be applied. Specifically, the judge must first determine that the removal presents a “real advantage” for the requesting parent. If the answer is in the affirmative, the judge must then find that the removal is in the best interests of the children. The Appeals Court noted that in this case, the judge found that the move presented a real advantage to Plaintiff because it would relieve her from the financial stress she was experiencing. The judge then found that the move would be in the best interests of the children because it would improve their quality of life since the custodial parent’s financial stress would be lessened.

Defendant’s second argument on appeal was that the modification of her child support obligation should be retroactive to modification date. In this case, the judge had entered a temporary order during the pendency of the matter modifying the support obligation but reserving the issue of retroactivity; however, the judge never ruled on it. The Appeals Court stated that absent a specific finding that retroactivity would be contrary to the child’s best interests, unjust or inappropriate, retroactivity should be applied. Since the Lower Court Judge made no such findings, the Appeals Court stated that the child support modification order was to be retroactive to the date the motion to establish the revised order was filed.

Supplemental amended judgment modified and affirmed.

Cappello v. Hamerski
March 13, 2017

Mother appealed from a judgment denying retroactive application of child support order to the date of service of the complaint for modification summons. Mother had filed a complaint for modification alleging that Father’s income substantially increased since the entry of the divorce judgment. Over the next two years, both parties filed subsequent modifications and motions for attorney’s fees. All issues were consolidated for trial. After trial, a judgment entered increasing Father’s child support obligation retroactive to the date that the proposed findings of fact were due.

The Appeals Court stated that the decision to give retroactive effect to modified support orders is in the discretion of the judge. Absent a specific finding that retroactive effect would be contrary to the child’s best interests, unjust or inappropriate, the judge should take these factors into consideration. In this case, the Lower Court Judge only ordered increased support retroactive to the date the proposed findings of fact were due because both parties were responsible for the extended litigation. The judge found that Father’s complicated financials required extensive discovery while Mother took unreasonable positions related to Father’s income. The Appeals Court stated that implicit in these findings was the conclusion that it would be unjust or inappropriate to retroactively modify the support order prior to the date of trial.

Additionally, Mother argued that the judge should have been awarded attorney’s fees. The Appeals Court disagreed stating that the award of attorney’s fees is in the discretion of the judge. Given the judge’s findings regarding the protracted litigation due to the actions of both parties, the judge’s decision to deny attorney’s fees was within his discretion.

Judgment affirmed.

Jansen v. Alemu
March 20, 2017

Mother appealed from a Lower Court Judgment awarding the parties joint physical and legal custody of their child. The parties had one child born out of wedlock. Father told Mother that he did not want to have a second child. Despite same, Mother brought the issue up a second time. Father again stated that he did not to have another child at which time Mother physically assaulted him. After the incident, the parties continued to live together. Mother later obtained a temporary restraining order against Father and he then moved out. Upon the expiration of Mother’s restraining order, she obtained a second restraining order that was later vacated. Subsequently, Father filed a complaint for custody, support and visitation and Mother filed counterclaims for same. Throughout the proceedings, both parties actively took care of the child and the judge found that the child was happy and healthy. Given the parties’ ability to work together, the judge found that they could exercise joint responsibility in caring for the child and that shared legal custody was in the child’s best interests.

On appeal, Mother argued that the judge’s findings regarding the parties’ ability to communicate were erroneous. The Appeals Court disagreed stating that there were numerous examples of the parties jointly communicating and their willingness to cooperate with one another for the benefit of the child. Additionally, Mother argued that joint physical custody was not proper due to the domestic violence that had occurred. The Appeals Court disagreed noting that the Lower Court Judge did not find a pattern of abuse between the parties creating a presumption in favor of sole legal custody.

Judgment affirmed.

Roof v. Abelowitz
March 20, 2017

Wife appealed from a judgment holding the parties’ prenuptial agreement valid and enforceable. Prior to the parties’ marriage, they discussed drafting a prenuptial agreement. They each exchanged financial statements and the previous year’s tax returns. Husband’s prior divorce attorney drafted the agreement. Wife had the advice of counsel as well. One day before their wedding, both parties executed the agreement. Approximately eight years later, Wife filed a complaint for divorce. The matter was bifurcated. After a trial regarding the prenuptial agreement, the judge found the agreement valid and enforceable.

Wife’s first argument on appeal was that she did not understand the effects of her waiver under the agreement. The Appeals Court stated that in determining whether there was a valid waiver, a judge can consider a number of factors including whether the parties were represented by counsel, adequacy of time to review the agreement, their understanding of the terms of the agreement and their effect as well as their rights absent the agreement. In this case, the agreement contained an explicit waiver stating each party entered into the agreement with the advice of counsel. Additionally, the Lower Court Judge found that the parties had been married and divorced before so they knew their rights under the law. Further, Wife’s understanding was memorialized in an email she wrote to a friend about the agreement. Consequently, the Appeals Court stated the judge’s finding that the agreement was valid and enforceable was supported.

Wife’s second argument on appeal was that the plain language of the agreement required the equal division of investments made in Husband’s retirement accounts with money he had earned during the marriage. In arguing same, Wife relied on a provision of the agreement stating that any property acquired by the parties with income earned during the marriage would be divided equally. The Appeals Court disagreed noting that in the beginning of the agreement, a distinction was made between using the terms Husband and Wife and using the term parties. The plain and usual meaning of the term parties meant both of them. Additionally, when read as a whole, the clause clearly indicated that only property acquired by both parties would be divided equally.

Judgment affirmed.

London v. London
March 29, 2017

Husband and Wife filed a joint petition for divorce. Said petition asked the judge to approve the parties’ separation agreement, incorporate and merge provisions related to the children and incorporate but not merge provisions related to the parties’ obligations to each other. The agreement stated that each party read the agreement and believed it to be fair and reasonable. Additionally, Husband’s alimony obligation detailed therein contained a waiver by both parties of the right to seek a modification.

Subsequently, the parties appeared before the Court for a hearing on their petition. During the hearing, the judge reviewed the agreement with the parties. Specifically, the judge confirmed with Husband that he understood that the alimony provision was to survive and that his obligation was to continue even if Wife remarried or if he lost his job. Further, the judge confirmed with Husband that he understood that Wife had no obligation in the agreement to refinance the former marital home. The judge then asked both parties whether they read and understood the agreement, signed it freely and willingly and they were satisfied with advice received from counsel. Both parties answered all questions in the affirmative. The judge allowed the petition and entered a judgment of divorce nisi. Husband later filed a statement of objections along with an affidavit stating that he did not understand that he would not be able to modify his support obligation or that Wife would not have to refinance the home and that he was not given proper advice by his counsel, who no longer practiced law. After a hearing on same, the judge struck Husband’s objections and Husband appealed.

The Appeals Court affirmed the judge’s order to strike Husband’s objections stating that Husband’s objections were frivolous. Specifically, there was no allegation that Husband’s counsel’s resignation negatively affected his representation. Further, Husband confirmed his reading and understanding of the agreement during the Court hearing on the divorce petition. It was clear from the record that Husband knew and understood the issues raised in his objections at the time of the hearing but later regretted his decision to agree to same.

Order affirmed.

April Rule 1:28 Decisions

Grenier v. Bastarache
April 5, 2017

Mother appealed from the denial of her motion for relief from judgment ordering her to pay $25,000 in attorney’s fees. As grounds for her appeal, mother argued that it was an abuse of the trial judge’s discretion to award father attorney’s fees where father was not the prevailing party in a modification action and the trial judge dismissed father’s counterclaim for modification.

The Appeals Court held that it was not an abuse of discretion for the trial judge to award fees to a party defending a complaint for modification under G. L. c. 208, § 38. When the trial judge entered the award for fees, she properly considered factors previously set forth in precedent, such as: ability of father’s counsel, work performed, results secured, time spent, rates, existence of contemporaneous time records, financial positions of the parties and any obstructionist conduct which may have prolonged the litigation. The Appeals Court also noted that although father’s counterclaim for modification was dismissed, the underlying judgment was in favor of father and that the trial judge found that mother’s litigation tactics were aggressive and that mother was less credible than father.

Order denying motion for relief from judgment affirmed.

Paré v. Paré
April 18, 2017

Husband appealed from a judgment of divorce nisi entered by a Probate & Family Court judge as well as the denial of his motion for new trial.

The parties were divorced after 33 years of marriage. After trial, husband filed a motion for new trial and motion for relief of judgment (“motions”). Thereafter, husband filed a notice of appeal from the underlying divorce judgment while his two motions were pending. Once husband’s motions were denied, he filed a notice of appeal on the denial of his motion for new trial. Thereafter, husband filed an untimely notice of appeal on the underlying divorce judgment.

The Appeals Court declined to consider husband’s appeal from the judgment of the divorce due to the untimeliness of husband’s filing. However, the Appeals Court did note that even if it had considered husband’s appeal, findings challenged by husband were not clearly erroneous and the trial judge properly considered the G. L. c. 208, § 34 factors in ordering property to be sold and net proceeds divided equally.

Order denying husband’s motion for new trial affirmed; appeal of judgment of divorce nisi dismissed.

H.S. v. D.M.
April 20, 2017

Plaintiff sought an abuse prevention order against defendant pursuant to G. L. c. 209A. After an evidentiary hearing to extend the temporary ex party order, the trial judge denied plaintiff’s request for an abuse prevention order, but sua sponte issued a one year harassment prevention order pursuant to G. L. c. 258E. Plaintiff did not request a harassment prevention order at the hearing. Defendant appealed.

At the evidentiary hearing, plaintiff testified that defendant was the father of her child. After many years of estrangement, defendant began appearing at plaintiff’s residence on multiple occasions asking her to release him from his child support obligation. Thereafter, plaintiff moved to a different address and defendant appeared at that address also. In one incident, defendant put his foot in plaintiff’s door and plaintiff told defendant “that he was scaring” her. Thereafter, defendant delivered five letters to plaintiff: one letter was left at her family’s home, three letters were mailed to her new residence, and one letter was left on the windshield of her vehicle. The trial judge found that the letters contained offensive language, but were not an overt threat. After hearing, the trial judge denied plaintiff’s request, but instead sua sponte issued a harassment prevention order pursuant to G. L. c. 258E.

Defendant appealed on the grounds that sua sponte entry of the harassment prevention order after the close of evidence violated his due process rights. The Appeals Court agreed with defendant, noting that the standard to obtain an abuse prevention order is different than the standard to obtain a harassment prevention order. Issuance of a protective order pursuant to G. L. c. 209A requires a finding of abuse, whereas issuance of a protective order pursuant to G. L. c. 258E requires a finding of harassment. In this case, entry of the harassment order after the close of evidence improperly precluded the defendant from introducing additional evidence or making legal arguments testing whether the facts presented satisfied the relevant standard. As a result, the order must be vacated.

Harassment prevention order vacated.

May Rule 1:28 Decisions

A.M.D v. V.C.D
May 4, 2017

Wife, appealed from a judgment nisi which granted sole legal and physical custody of the child to the husband. She contended that the judge’s findings were unsupported by the record and that the judge relied on irrelevant considerations.

The parties met in October 2008, when the wife was 16 and the husband 21. Both parties lived in Alexandria Virginia. Wife’s mother and stepfather disapproved of the relationship and after an argument they kicked the wife out of their home. She requested to live with the husband and his parents; but, the husband’s parents declined.

On March, 2009, the wife moved from Virginia to Massachusetts, where the parties had agreed they would raise their son. Husband thereafter joined wife in Massachusetts, but, after ten days, the husband left his wife and child and returned to Virginia. Wife thereafter returned to Virginia in April, 2009. Husband refused to ask his parents if wife could live there and told her to sleep in the park or under the stairs.

In May 2009, the husband’s father discovered the wife sleeping in the trunk of the husband’s car. Wife there after became the subject of a care and protection petition, as she was pregnant, and had no place to live, her petition for emancipation was denied

Wife thereafter remained in foster care in Virginia when the parties’ was born September 2009. During this time, the Husband visited the wife in foster care regularly and helped care for the child. The wife stayed in foster care until April, 2010, when she went into a group home. A neglect petition was filed regarding the child, the wife agreed to place the child in foster care and resided with the child’s foster mother. During this time, wife began working at an accessories store and both wife and husband cared for the child.

On August 2013, Wife filed a complaint for divorce citing irretrievable breakdown of marriage. On October 22, 2013, a judge of the Probate and Family Court granted wife sole legal and physical custody of the minor based upon the parties’ stipulation which also held that father would have parenting time two hours per week on Sundays.

After trial in February and March of 2015, the judge found that the husband was the child’s primary caregiver prior to separation and the husband was, “completely dedicated to the child.” On this basis, the judge granted Husband sole legal and physical custody of the minor child.

The Appeals Court first noted that the relevant standard: “In custody matters the touchstone standard is what is best for the child.” Hunter v. Rose, 463 Mass. 488,494 (2012). The inquiry into which parents is the primary caregiver focuses on the division of caretaking responsibilities during marriage and the strength of each parent’s bond with the child. Murphy v. Murphy, 82 Mass. App. Ct. 186, 193-194 (2012). “The determination of which parent will promote a child’s best interests rests within the discretion of the judge…[whose] findings must stand unless plainly wrong. However, an ultimate conclusion needs a foundation in the record supported by ground level facts. Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010).

The Appeals Court turned to the instant case, noting that the judge’s findings that husband was the primary caregiver were partially supported by the record. Husband did provide some child care. However, given the surrounding facts, the Appeals Court disagreed that the husband was wholly devoted to the child’s welfare: The husband left pregnant wife and moved into his parent’s home because he was not ready to be a father, when his wife followed him, he left her to sleep in a trunk of a car. The husband had also stipulated to a temporary custody order granting the wife full legal and physical custody for a year. In addition, the trial judge made no findings that the care provided by the wife was in any way inadequate during this time. In conclusion, the Appeals Court found that the finding that husband was completely dedicated to the child was clearly erroneous.

The trial judge also made several findings in relation to the wife’s religion and sexual history. None of these factual findings was deemed relevant to the impact of her behavior on the child or the best interest of the child by the Appeals Court. The judge’s focus on these matters suggested a clear error of judgment in weighting the factors relevant to the custody determination. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). The trial judge had also made no findings regarding whether or not the child’s then living situation adversely affected the child’s physical, mental, or moral health. What the judge had found was that the physical amenities and education offered by husband’s more well-heeled parents was superior. While, the judge was permitted to consider living arrangements and lifestyles and how they might affect the child, El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010), the judge’s preoccupation with the child’s catholic upbringing and the grandparents indicate that the judgments expressed in other portions of her findings may have infected the decision making process.

While the Appeals Court expressed no opinion as to the merits of the case, they could not determine whether the factors the judge considered were permissible. The lower court judgment was vacated and remanded for further proceedings.

Guan v. Zhang
May 8, 2017

Former wife appealed from the denial of her motion for relief from a divorce judgment pursuant to rule 60(b) (2) and (3).

On November 8, 2012, the wife filed a complaint for divorce. On March 20, 2013, the parties filed a joint petition for divorce. On Sept 3, 2013, the parties filed a separation agreement with the court; the agreement provided that the marital home would be sold with net proceeds divided equally and that liquid assets would be divided sixty-forty in favor of husband.

A judge, considering the agreement, found it unacceptable in light on the unequal division of assets which was unsupported by any rationale. The judge advised the parties to seek legal counsel. The parties thereafter appeared on Oct 8, 2013 without having obtained counsel and presented the same agreement. Wife indicated that she would be satisfied with an additional fifty thousand dollars, husband disagreed, and the Judge again refused to accept the proposed agreement.

On November 4, 2013, the parties entered into a separation agreement which provided that the wife would buy the husband’s interest in the marital home and that the purchase price represented an eighty-five thousand dollar equity credit to the wife to compensate her for the difference in the division of marital assets. The agreement held further that each party would retain all rights in the non-retirement and retirement accounts currently in his or her name. The agreement was to survive in all aspects not related to the children. On December 4, 2013, a judge found the agreement to be voluntary, fair, and reasonable. The judgment of divorce became absolute on March 5, 2014.

The divorce was followed by several contempt actions. Wife’s counsel thereafter filed a notice of appearance and a complaint for modification. A pretrial conference was held on September 16, 2014. On that date, the wife filed a motion for relief from judgment pursuant to b(2)(3) alleging that the husband had concealed over one hundred thousand dollars in marital assets. This motion was denied.

Wife first argued on appeal that the judge abused his discretion by ruling on the rule 60 motion without an evidentiary hearing. The Appeals Court noted that there is no requirement that a judge hold an evidentiary hearing on a rule 60(b) motion. Knott v. Racicot, 442 Mass. 314, 326 (2004). Secondly, the wife did not request an evidentiary hearing as required under Standing Order 2-99.

Wife argued secondly that the judge erred in denying the 60(b) motion for relief from judgment. The Appeals Court reviewed for an abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 (2014). As to the wife’s claim of newly discovered evidence, the wife had already had an opportunity to conduct timely discovery with respect to husband’s finances. There was no indication that she did so at any time between the filing of the divorce complaint and the issuance of the judgment. The Appeals Court concluded that a rule 60(b)(2)(3) motion was not the proper vehicle for bringing forward information that was no timely sought during discovery absent extraordinary circumstances.

Finally, the wife argued that the husband had constituted a fraud by not disclosing certain assets. However, the Appeals Court again found her arguments to be unavailing. The materials that accompanied her motion where unsupported by affidavits and the contention that the husband had disclosed assets to a lender that were not contained on his financial statement where unsupported by documentation. The judge was not required to credit the speculative allegations in wife’s motion.

The lower court order denying wife’s rule 60 motion was affirmed.

Lockwood v. Johnson
May 9, 2017

Husband appealed from a judgment of divorce nisi. On appeal, the husband challenged the judge’s orders regarding the division of marital assets, child support, and custody of the minor children.

The judgment of divorce ordered an equal division of marital motion of the party’s retirement assets, the wife also received one half the value of the marital home prior to its foreclosure sale. The husband received a lesser share of the value of the home which reflected the costs associated with the foreclosure. Sole legal and physical custody was awarded to wife. Parenting time was ordered for the husband from Wednesday afternoons through Friday mornings in accord with his work schedule. Finally, the judge ordered husband to pay seven hundred dollars per week in child support.

The Appeals Court first turned to the relevant standard for reviewing the divorce judgment. First, the court would examine the judge’s findings to determine whether all relevant factors in G. L. c. 208, s. 34 were considered.” Adams v. Adams, 459 Mass. 361, 371 (2011). Second, the court would examine whether the reasons for the judge’s conclusions are apparent in their findings and rulings. These determinations as to what constituted an equitable division are not to be overturned unless plainly wrong and excessive. Ibid. Furthermore, an abuse of discretion exists where the judge made a clear error judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. Hoegen v. Hoegen, 89 Mass. App. Ct. 6, 9 (2016).

Division of Assets

Husband argued that the decision to divide the retirement assets as of the date of the divorce, rather than the close of evidence at trial, was an abuse of discretion. The Appeals Court disagreed stating that although, some States have established that marital property is to be valued as of a particular date (e.g., the date of separation, the date of filing of the divorce complaint, or the date of trial), Massachusetts has adopted a more flexible approach. Caffyn v. Caffyn, 70 Mass. App. Ct. 37, 43 (2007). While, “the marital estate is typically determined as of the date of the divorce trial, the judge has the discretion to make that determination at another date when warranted by the circumstances of a particular case.” Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996). Because at least some of the delay for the trial was attributable to husband’s failure to disclose marital assets, there was no abuse of discretion.

Wife’s inheritance

Husband also argued on appeal that the judge abused her discretion in failing to consider the wife’s potential inheritance from her mother and grandmother. The Appeals Court agreed that such an expectancy might be considered under G. L. c. 208 s. 34. While the trial judge had not made explicit findings regarding the inheritance, the judge had considered the parties’ opportunity for future acquisition; and had explicitly rejected including the wife’s potential inheritance in Husband’s motion to amend and alter the judgment. The judge had concluded that such an inheritance was too speculative to include in the divorce judgment. There was no abuse of discretion.

Husbands other claims were dismissed as having no merit that warranted discussion.

Child Support

The judge ordered husband to pay seven hundred per week in child support. While the judge expressed her intention to calculate the amount of child support pursuant to the Guidelines, and specifically declined to depart from the guidelines; both parties agreed that the seven hundred weekly amount ordered was greater than the amount yielded by an application of the guidelines. The Appeals Court vacated and remanded for recalculation in an amount consistent with the Child Support Guidelines.

Custody parenting time

Husband argued that the judge’s findings did not support the award of sole legal custody to the mother or the parenting plan. The Appeals Court disagreed finding that the award of sole legal custody was supported by the judge’s findings. The trial judge had found that husband and wife were unable to communicated and disagreed regarding their care, such that co-parenting was not in the child’s best interest.

The portion of the judgment pertaining to child support was vacated; in all other respects the judgment was affirmed.

N.J. v. B.J.
May 10, 2017

Defendant appealed from the issuance of a restraining order issued under G. L. c. 209A. On Appeal, Defendant argued that the evidence presented was insufficient to justify the issuance of the order.

Defendant and Plaintiff’s mother were married, and the marriage was difficult. The plaintiff and defendant had virtually no contact after the plaintiff was approximately eight years old while defendant was incarcerated.

Several months later, the plaintiff’s mother obtained an abuse prevention order against the defendant prohibiting him from having any contact with her and her two minor children for five years. In November, 2015, after the plaintiff had reached the age of majority, the defendant moved to modify the existing order to remove the plaintiff from its coverage. In an affidavit submitted in support of the motion, he alleged that the plaintiff wished to establish communication with him. At the hearing on the motion, the plaintiff, when asked, whether he wanted any contact with the defendant, responded, “none whatsoever.”

To address procedural issues, the trial judge directed plaintiff to file his own 209A order which was heard later that day. After an evidentiary hearing, the judge issued the requested order for a term of five years.

In his affidavit in support of his application for an abuse prevention order, plaintiff stated that “the last time that I had contact with defendant was ten years ago when I received a phone call where he told me to evacuate my home seeing as he threatened to 'blow it up' with my mother and new born sister. My family has lived under constant fear for a decade and I am no exception. [The defendant] has relentlessly threatened my family and I do not wish for it to continue.”

The Plaintiff affirmed these statements as true at the hearing and when pressed for examples informed the judge that he had been hit as a child.

The Appeals Court first addressed the procedural aspects of the case. As of December 29, 2015 (when the motion was heard), the plaintiff was a beneficiary of the five year abuse prevention order his mother had obtained on his behalf. The defendant had not appealed that underlying order; however, it was within the defendant’s rights to seek to have the plaintiff removed. In such a situation the defendant bore the burden of proving that the plaintiff no longer had a fear of imminent serious physical harm and that significant changed circumstances made enforcement of the order no longer equitable. MacDonald v. Caruso, 467 Mass. 382, 387, 390-391 (2014).

The Appeals Court went on to note that if the judge had decided defendant had no met his burden, she could have left the plaintiff on the existing order. As noted, the judge decided sua sponte that it would be proper to have the plaintiff initiate his own request for an APO on a new docket. The Appeals Court concluded that this did not transform the proceeding into a burden of production similar to the initial applicant of a 209A order, rather, the judge's decision regarding whether to issue a “new” abuse prevention order with regard to the plaintiff, was the functional equivalent of deciding whether to accept the defendant's request to have the plaintiff removed from the scope of the existing order.

Moving to the instant case, the rationale proposed by the defendant was that the plaintiff was seeking contact with him. This rationale was unequivocally rebutted by plaintiff’s own testimony. On appeal, the defendant’s argument has shifted stating that there was no evidence that he had ever harmed or threatened the plaintiff. The Judge found plaintiff’s testimony credible and the judge implicitly discredited the defendant’s claims to the contrary. While, defendant was incarcerated at the time of the hearing and that provided some measure of protection to the plaintiff, it did not, on its own, mean that the order was unwarranted. As the initial abuse prevention order was based on actual violence, the whether or not plaintiff had a reasonable fear of imminent harm was irrelevant. Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-376 (2014).

The issuance of the restraining order was affirmed.

J.E. vs. A.R.
May 12, 2017

Defendant appealed from the extension of a harassment prevention order issued pursuant to G. L. c. 258E, arguing that the evidence of three acts of harassment required to justify the issuance of the order was insufficient. The original ex parte order was issued from the Lawrence division of the District Court on May 24, 2016 and was subsequently extended for one year following an evidentiary hearing attended by both parties.

The Appeals Court affirmed stating that the defendant’s challenge to the sufficiency of the evidence could not be reviewed because defendant had not provided the Court with the harassment prevention order, the affidavit in support of the order, or the exhibits that were introduced into evidence. This was in derogation of Mass. R. A. P. 8(b)(1) and 18(a). Without the ability to review the record, Appeals Court could not conclude that the District Court judge erred. Camillo v. Camillo, 31 Mass. App. Ct. 286, 288 (1991).

The order extending the 258E order was affirmed.

P.R v. A.I.
May 16, 2017

Defendant appealed from the extension of an abuse prevention order issued by a District Court judge pursuant to G. L. c. 209A.

Plaintiff was initially granted an abuse prevention order on September 16, 2013. The order was then extended two times until September 30, 2015. Defendant failed to appear at the extension hearings. The Order finally expired on September 30, 2015. On June 8, 2016 Plaintiff again filed for an abuse prevention order, after former defendant contacted her. This order was extended for a year after June 22, 2016, where a two party hearing was held.

The Original APO was issued after a brief dating relationship. It was based upon plaintiff’s affidavit which stated that the defendant had harassed her since the end of their relationship: he had threatened, “the wrath of god” on her if she would not continue to date him, attempted to extort her, and threatened that he would spread personal information about her to her children’s school, her therapist, and her ex-husband. The defendant subsequently violated the order two times in November 2013; after sitting next to her in a bar and thereafter calling her to request that she not report the contact to the police.

In June, within a year of allowing the order to expire, plaintiff received an email from the defendant. After receiving this email plaintiff sought a new APO. In her affidavit, she stated that she feared for her life since the defendant has in the past told her that he was going to kill her and feed her to the pigs.

A two-party hearing was held, during which the plaintiff detailed the reasons for her fear of the defendant including, but not limited to, the fact that he violated her previous abuse prevention order four times in five days. Further, she testified that the defendant had been convicted of violating her previous order and as a result was required to attend the, "Emerge" program designed for batterers, and has violated another restraining order that was issued on behalf of a different victim in New York after the defendant's conviction in Massachusetts. At the hearing, the defendant denied sending the e-mail, spoke five times out of turn (four after the judge advised him that he was to speak only through his counsel), and claimed to be living in Maine despite maintaining his residence in Medford. The order was extended for one year until June 22, 2017.

In support of his decision to extend the abuse prevention order, the judge noted that he found “the plaintiff has made her burden, finds her testimony to be credible, that she is presently in fear of the individual, that she was a victim of a violation of a restraining order out of the Woburn District Court, and she's still in fear of this gentleman.”

He further found “the plaintiff's testimony in court . . . to be credible” and found the defendant’s “testimony to be not credible.” When pressed by the defendant’s attorney as to whether his “basis for finding that [the plaintiff is] in imminent danger” was “based on that email,” the judge stated that it was not.

The Appeals Court first noted that, on review of an extension of an abuse prevention order, “we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.” C.O. v. M.M., 442 Mass. 648, 655, (2004).

A judge must consider the totality of the circumstances when evaluating the relationship between the parties and whether the plaintiff has met her burden. At an extension hearing, the inquiry is whether the plaintiff has shown by a preponderance of the evidence that it is necessary for the extension to be issued in order to protect her from a likelihood of abuse.” Iamele v. Asselin, 444 Mass. 734, 736 (2005). The judge must consider the totality of the circumstances. Other factors to be considered include but are not limited to: the defendant’s violation of past orders, ongoing child custody or other litigation, the parties’ demeanor in court, the likelihood that the parties would encounter one another during their usual activities, and significant changes in circumstances.

Having taken into account Iamele, the Appeals Court saw no error in the judge’s decision to extend the order. The judge had the opportunity to observe the parties and was entitled to credit plaintiff’s testimony that she was in fear. The defendant had in the past threatened to dismember her, which the Appeals Court found was suitably extreme to engender long lasting fear. The defendant’s lack of clarity regarding his living arrangements and his uncooperative nature during the hearing provided ample support for the judge’s decision.

Order Affirmed.

Rekowsky v. Rekowsky
May 17, 2017

Father appealed from a modification judgment entered by the Probate and Family Court which increased his child support payments.

The parties were married in August, 2002. During their marriage father was the primary wage earner while mother cared for their two children. Mother filed for divorce in May of 2009, and after a trial, an amended divorce judgment nisi entered June 29, 2011. In relevant part, the divorce judgment gave physical custody to mother; father was ordered to pay child support in the amount of two thousand dollars per week along with alimony in the amount of fifteen hundred per week.

In September 2012, father’s position changed which resulted in a reduction of his annual base salary. Father thereafter filed an amended complaint for modification seeking a reduction in child support and an elimination in alimony based on the Alimony reform acts durational limits. In April 2015, a modification judgment issued which terminated husband’s fifteen hundred dollar alimony obligation and added fifteen hundred dollars to his child support obligation.

On Appeal, Father argued that the upward modification of his child support payments was an abuse of discretion because there was no evidence that the children’s needs had changed. The Appeals Court reviewed for an abuse of discretion. Wasson v. Wasson, 81 Mass. App. Ct. 574, 576 (2012). The Appeals Court noted further that in order to prevail in a modification action for child support the petitioner must demonstrate a material change of circumstances. Pierce v. Pierce, 455 Mass. 286, 293 (2009). Here, the trial judge had found the increase in child support to be warranted because the father’s lifestyle had improved thereby entitling the children to enjoy a higher standard of living and that the children’s expenses would increase as they grew older.

In the instant case, the trial judge had found that father’s lifestyle had improved and that he had purchased an expensive home in Cambridge. However, the Appeals Court did not find these reasons availing: father’s discretionary income had decreased. In addition, the judge had relied heavily on her erroneous finding that the father had doubled or tripled his weekly expenses. The Appeals Court found that father’s living expenses had only increased by approximately sixteen percent, not two to three hundred percent. In Contrast to her finds regarding father, the judge found that mother had only had a “slight” increase in expenses. This overlooked the fact that the mother’s discretionary spending had increased considerably since the time of the divorce because her single largest expense (the mortgage payment) had been eliminated.

The Appeals Court also noted minimal support in the record for the judge’s conclusion that the father’s lifestyle had improved post-divorce. There was no evidence of any material disparity and both parties had substantial net worth (father at approximately 10 million and mother at approximately 8.8 million).

Regarding the children’s expenses, the Appeals Court noted that to the extent the judge predicated her decision to modify on her finding that the children will continue to have increased expenses as they age this was erroneous. Brooks v. Piela, 61 Mass. App. Ct. 732-733 (2004). If the children’s expenses were to increase in the future, father was already obligated under the divorce judgment to cover one hundred percent of uninsured medical expenses and extracurricular expenses. The father had also funded 529 accounts in the amount of nearly a million dollars to cover future educational expenses.

Given all of the above, the Appeals Court found that the child support award did not have a factual basis. The portion of the modification judgment increasing the father’s weekly child support obligation was reversed. In all other respects the modification judgment was affirmed.

Lander v. Lander
May 23, 2017

Husband appealed from a judgment of the Probate and Family Court on a complaint for equitable relief that ordered him to pay his wife an amount equal to 41.89 percent of his gross pension benefit and change the beneficiaries on his life insurance policy to provide his wife a 33 percent interest in the policy’s death benefit.

In April, 2007, the parties executed a separation agreement which survived as an independent contract. The agreement provided that wife would receive a portion of husband’s pension by means of a QDRO. The judge approved the QDRO and the parties acknowledged that if husband were to remarry, the survivorship benefit could be superseded by the rights of the husband’s new spouse. The husband was 64 when the parties divorced. He subsequently did not retire at 65 and had still not retired as of the filing of this appeal. Neither the separation agreement, nor the QDRO required that the husband retire.

The husband remarried in 2013. In the event that the husband died prior to retiring, the husband’s new spouse has the right to elect to receive the pension benefits upon the husband’s death. See G. L. c. 32, § 12(2)(d). The wife filed a complaint for modification and for declaratory judgment seeking an order that the husband pay a portion of his gross income as alimony to account for the wife’s coverture share of his Pension. A judge denied wife’s complaint for modification without addressing the equitable arguments raised because she had failed to demonstrate a substantial change of material circumstances.

Wife thereafter filed a complaint seeking equitable relief alleging (1) constructive trust, (2) unjust enrichment, and (3) breach of contract. Wife alleged that, “[b]y remarrying, without retiring, [the husband], has breached his fiduciary duty to [Wife], and impermissibly altered the Parties' Separation Agreement.” After a nonevidentiary hearing, the same judge whom had denied wife’s modification complaint issued a judgment where she concluded that the wife had a reasonable expectation that the husband would retire. The judge concluded that while, the court was unable to force the husband to retire, it could attempt to place the wife in the position that she would be in if husband performed as he was contractually obligated. After a nonevidentiary hearing, the judge entered a declaratory judgment that the husband has no obligation to retire under the terms of the separation agreement, and that “the separation agreement's explicit language provides that [the wife] only had a right to collect 41.89% of his pension if and when [the husband] retired or died without remarrying.” The judge concluded that the wife had “not demonstrated a material change in circumstances that meets the ‘something more’ standard” that would allow the court to modify the agreement. The judge did not address “equitable arguments regarding the construction of the parties’ agreement.” The wife did not appeal from this judgment.

Husband thereafter appealed arguing that the judge exceeding her equitable authority, altered the effect of a statute, erred in finding that the wife had a reasonable expectation that he would retire, unconstitutionally restrained the husband’s right to remarry, and erred in failing to consider the relative financial situations of the parties.

Turning first to the breach of contract claim, the Appeals Court held that the husbands continued employment and subsequent remarriage could not be construed as breach of separation agreement and the QDRO: neither agreement prohibited Husband’s ability to remarry or continue working. While, the judge found that the wife had a reasonable expectation in husband’s retirement, that assertion was unsupported by the record. The judge’s desire to put the wife in a position she would have been had husband performed his contractual obligation was legally untenable and could not serve as a basis upon which relief could be granted.

Moving to the second count of wife’s equity complaint, the Appeals Court stated that constructive trusts generally function to prevent unjust enrichment as a result of wrongful conduct or breach of duty. A person has been unjustly enriched if he has retained money or property of another against the fundamental principles of justice or equity and good conscience.” Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005). Moreover, the person unjustly enriched has to have retained said property unjustly. This quality turns upon the reasonable expectations of the parties. Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 826 (2010). In the instant case, wife generally alleged a breach of fiduciary duty; however, the record never identified what duty was breached. The lower court’s reliance on Krapf v. Krapf, 439 Mass. 97, 103, 786 (2003) and the unpublished Monahan v. Monahan, 85 Mass. App. Ct. 1101, (2014) was unsupported by the record since both cases were not analogous to the instant case.

Because the Appeals Court could not identify what duty of good faith and fair dealing had been breached; the judgment insofar as it applied to the pension / alimony in lieu of pension was remanded for further findings. The judgment regarding naming the wife as a beneficiary on Husband’s life insurance was affirmed.

Cournoyer v. Cournoyer
May 30, 2017

Husband appealed from a modification judgment dated Jan 15, 2016 entered after a trial in the Probate and Family Court.

Paul and Christine Cournoyer were divorced by judgment NISI on April 13, 2001, following more than eighteen years of marriage. The divorce judgment directed Christine to pay alimony to Paul in the amount of eighty five thousand dollars a year. The judgment also provided that Wife was to pay additional alimony in the event her base salary, bonuses, and incentive compensation exceeded two hundred and fifty five thousand dollars per year. These provisions merged into the divorce judgment.

The Parties had filed a series of complaints for modification in the ensuing years. In 2005, Christine’s alimony obligation was reduced to forty four thousand two hundred dollars per year as a result of her involuntary termination. Paul’s child support was suspended at the same time, these obligations to be reviewed at either parties’ reemployment.

In 2006, the obligations of their agreement were further modified: Christine was to pay Paul alimony of one hundred thousand per year. If her income exceeded three hundred thousand, she was to pay additional alimony of thirty three point three percent up to six hundred thousand.

The instant complaint for modification was filed May, 2013, by Christine seeking to terminate her alimony obligation on the basis of loss of employment and decline in income. Paul filed an answer and counterclaim for modification opposing termination and asserting affirmative defenses including that he needed alimony to continue due to chronic illness and unusual health circumstances. Paul also cited Christine’s remarriage, earning capacity, unearned income, and ability to pay alimony and maintain the marital lifestyle as reasons for alimony to continue. In 2015, Christine amended her complaint citing the durational limits of the alimony reform act as a basis for termination.

After trial, a modification judgment entered which terminated Christine’s alimony obligation, effective December 31, 2016 until that date, Christine was ordered to pay monthly alimony of five thousand five hundred and sixty four per month. Paul was ordered to grant Christine a blanket mortgage on property he owned in Falmouth in the amount of $88,592 to secure the repayment alimony to Christine as a result of the retroactive order.

On Appeal, Husband argued that it was an abuse of discretion to arbitrarily terminate Christine’s alimony obligation fourteen months after the durational limit (in the absence of deviation the alimony obligation to Paul should have terminated no later than October 1, 2015). He argued that this was inconsistent with the judicial finding that he has a continuing need for alimony beyond that limit.

The Appeals court first noted that the purpose of alimony has remained constant despite the provisions of the reform act. Alimony is the payment of support from one spouse, who has the ability to pay, to the other spouse in need of support. Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986). However, this was somewhat circumscribed by the reform act setting durational limits based in part on the length of the marriage. Notwithstanding, a judge may entered written findings for deviation if so required in the interest of justice. That is precisely what the judge relied upon in extending the durational limit beyond the presumptive termination date. Notably, neither party contests the fact that deviation was appropriate. Rather, Paul contends that the date selected by the judge for termination was arbitrary and not supported by any clear rationale.

In fashioning the remedy for termination, the judge found that Husband could liquidate his assets before alimony ended, thereby reducing his expenses. This reasoning was not supported by the record and it was contrary to the holding of Doktor v. Doktor, 55 Mass. App. Ct. 812, 818 (2015) (“a recipient spouse should not be required to deplete her assets in order to maintain herself.”).

The judge also reasoned that the termination date was derived from Christine attaining full retirement age. As the judgment was entered before the act, full retirement age could not serve as a basis for modifying the alimony obligation. Rodman v. Rodman, 470 Mass. 539, 545-546 (2015). In addition, this judgment issued before George v. George, 476 Mass. 65 (2016). In applying the interests of justice standard in determining whether to deviate the court must, “evaluate the circumstances of the parties in the here and now.” Id. at 70.

Retroactive award:

When the judge determined that the retroactive reduction in alimony was appropriate, the judge required Paul to mortgage his assets in order to secure the repayment of those funds. The Appeals Court found that it was an abuse of discretion to enter a retroactive award and require security for the repayment given the vast disparity of their respective resources. In conclusion, paragraph one and three of the judgment of modification were vacated. Pending a further hearing the amount of alimony set forth shall only be paid as temporary alimony. Paragraphs 2 and 4 of the modification judgment were affirmed and the matter was remanded.