Spring 2017: Reported Cases

by Lauren Bussey, Elizabeth Silvestri, Jordana Kershner, Valerie Qian

February Reported Cases

Ludwig v. Lamee-Ludwig
No. 15-P-1177
February 7, 2017

West Ludwig (the “Husband”) filed his Complaint for Divorce in late 2012, seeking the dissolution of his marriage to his wife of twenty years, Cheryl Lamee-Ludwig (the “Wife”). The parties entered into a separation agreement on August 19, 2014, which addressed the entirety of the contested issues, except the Husband’s unvested stock options and the date of valuation of said unvested options. The Court entered a Judgment of Divorce Nisi on August 19, 2014 and held a nonevidentiary hearing later that day to address the Husband’s unvested stock options and valuation date thereon. The Court then entered an Amended Judgment of Divorce Nisi on October 1, 2014. The Amended Judgment of Divorce set forth that the Husband’s income from the unvested stock options should be considered alimony in accordance with the terms set forth in the parties’ separation agreement and that the unvested stock options were to be valued as of the date closest to the original judgment of divorce Nisi in August 2014. This appeal followed.

The Husband first contends that the Judge improperly considered the Husband’s unvested stock options as income. The parties’ separation agreement divided a portion of the Husband’s unvested stock options in accordance with the Baccanti v. Morton time rule. The time rule provides a formula under which parties may determine what portion of an employee-spouse’s unvested stock options should be considered a marital asset and thus subject to equitable distribution upon divorce and what portion should remain the sole employee-spouse’s property post divorce in light of the options being awarded for services performed after the dissolution of the marriage. Applying the time rule, the Wife here received a 50% beneficial ownership interest in the shares subject to equitable distribution. As for the shares not subject to equitable distribution (and submitted to the trial court judge for his determination), the Husband claims that the trial court judge’s inclusion of the remaining unvested shares as income constituted a double dip and violated the Alimony Reform Act. With respect to the double dipping claim, the Appeals Court rejected this notion, noting that the unvested shares deemed subject to equitable distribution were separate from the unvested shares used as income and that double dipping is not prohibited by law. As for the Alimony Reform Act, the Husband argued that the Act prohibits the inclusion of capital gains income and dividend and interest income which stem from assets divided via equitable distribution. The Appeals Court reasoned that the Husband’s shares considered for purposes of alimony were not assets subject to equitable division. Additionally, according to testimony provided at the hearing, any income from these stock options would not be considered capital gains income but instead W-2 income.

In determining the appropriate valuation date for the Husband’s unvested stock options, the Husband’s experts used three separate time periods: December 31, 2013; March 31, 2014; and June 30, 2014. The trial court judge ultimately utilized June 30, 2014—which was the date closest to the entry of the original judgment of divorce. The Husband argued that the judge should have used the date of December 31, 2013, which was the date closest to the date of the parties’ physical separation. The Husband argues that because the trial court judge did not make factual findings under G.L.c. 208, §34 as to the Wife’s contribution and maintenance of the unvested shares, the judge’s decision should be overturned. The Appeals court affirmed the trial court judge’s decision, finding that the provisions set forth in §34 are discretionary rather than mandatory findings. Further, the Appeals Court reasoned that as the Wife continued to perform functions throughout the marriage such as maintaining the home and taking care of the parties’ son, and that the Wife’s efforts in this regard contributed to the acquisition of assets.

Snow v. Snow
February 9, 2017
SJC 12102

Jacquelyn Snow (the “Wife”) and Winthrop Snow (the “Husband”) were previously granted a divorce in the State of New York on July 21, 2010. At the time of the divorce proceedings, the Wife had requested alimony (or maintenance, as deemed under New York law) in the amount of $1,000.00 per week from the Husband. Upon the Wife failing to appear for multiple stages of the divorce litigation, the New York Judge determined that the Wife had not pursued her initial claim for support and thus no support order entered at the time of the parties’ divorce.

Subsequently, on August 25, 2014, the Wife filed a complaint for modification of a foreign divorce decree in Massachusetts alleging a change in circumstances due to the Husband ceasing his $1,000 support payment to the Wife as of June 2014. The trial court judge entered an order on January 22, 2015, which awarded the Wife $850.00 per week in temporary alimony. The trial court judge then entered a Modification Judgment on May 5, 2015, which decreased the Wife’s alimony award to $810.00 per week in general term alimony. In awarding the Wife general term alimony, the trial court judge found the length of the parties’ marriage to be 224 months and that the durational limit in accordance with G.L.c. 208, § 49(b)(4) was 179 months. The trial court judge further considered the Husband’s payment of temporary alimony as the start of the durational limit and did not factor in the Husband’s overtime of income purposes, reasoning that the overtime earnings did not impact the parties during the course of the marriage or at the time of the judgment of divorce in New York. The trial court judge additionally required the Husband to obtain a life insurance policy as security for his alimony obligation and declined to address the Wife’s lack of health insurance coverage, finding only that the Wife was not eligible for coverage through the Husband’s then employer. The Judge did not broach the matter of health insurance coverage for the Wife. Both parties appealed.

Complaint for Alimony:

In first determining whether the Wife’s Complaint as filed in Massachusetts constitutes a Complaint for Alimony or a Complaint for Modification, the Appeals Court ruled that the Wife’s Complaint was in fact an initial Complaint for Alimony. The Appeals Court noted that the New York judge did not address any statutory factors pertaining to the Wife’s request for support and, at the time of the actual divorce in New York, the Wife had not pursued her claim for support.

Durational Limits:

The Husband claimed that in determining the length of the alimony award, the trial court judge should have considered the durational limit as commencing on the date of the New York Judgment of Divorce rather than on the date of the first temporary alimony payment. The Appeals Court found that in examining the plain language of G.L. c. 208, §49(b), durational limits for purposes of general term alimony do not begin to run until the judge has entered an order awarding general term alimony. Thus, temporary alimony payments do not start the clock on the durational limits as set forth in G.L. c. 208, §49(b). The Appeals Court found that the trial court judge determined the durational limit based on the temporary alimony award under the mistaken assumption that the complaint filed by the Wife was a complaint for modification and not an initial complaint for support; however, nothing would preclude the trial court judge from determining the Husband should be credited for his payment of the temporary alimony and end the alimony award to the Wife on the same date as set forth in the original Modification Judgment, as a judge has discretion to award alimony for less than the presumptive maximum.

Overtime Compensation:

As the trial court judge incorrectly found the Wife’s initial complaint for support to be a complaint for modification, the judge did not consider the Husband’s overtime compensation post the parties’ divorce in New York. The Appeals Court remanded for the trial court judge to consider the Husband’s overtime income for purposes of alimony.

Health Insurance:

The Appeals Court determined that in cases in which a judge awards alimony pursuant to G.L. c. 208, §34, the trial court judge must address the matter of health insurance coverage.

Adoption of Yadira
February 14, 2017

In 2010, the four minor siblings at issue in the instant case arrived in the United States from their native Nepal via the Federal Unaccompanied Refugee Minors Program. The siblings were split up into two separate foster homes, with two siblings residing in a home in Asbhy and the remaining two siblings residing in a home in Fitchburg. In 2013, the children’s parents arrived in the United States and settled separately in North Dakota and Ohio. Since their arrival, the parents have had limited contact with the children.

In order to make the children eligible for adoption, in March 2014 the Department of Children and Families (“DCF”) filed a petition on behalf of the children, seeking the termination of parental rights. In response, the Mother of the children then filed a motion which sought to deny said petition. The trial court judge denied the Mother’s motion, but further sought to determine whether DCF could legally seek the termination of parental rights where the minors were in the United States under the Federal Unaccompanied Refugee Minors Program and both parents were alive and living in the United States.

The SJC rejected the Mother and the Father’s claim that the passive voice in 45 C.F. R. §400.115(c) “there is termination of parental rights…as determined by the appropriate State court” signaled that the termination of parental rights could only occur through nonjudicial process, and that the courts were only to determine whether the actual termination of said rights should occur, not actively seek to terminate parental rights. The SJC reasoned that under the above interpretation, the Court would have no recourse in determining parental unfitness for unaccompanied refugee minors, thus leaving refugee minors entirely unprotected. Moreover, in examining the Massachusetts regulation 110 Code Mass. Regs.§1.12(3) as compared to the Federal 45 C.F.R. §400.115(c), the SJC found that the Massachusetts regulation was still consistent with the Federal regulation despite the Massachusetts regulation stating that refugee minors should not be freed for adoption in the states. The SJC reasoned that in certain instances the department does have authority to seek the termination of parental rights for refugee minors notwithstanding the stated text of the Massachusetts regulation.

Although the Mother and the Father additionally argued that the Adoption and Safe Families Act and the unaccompanied refugee minors act conflicted, the SJC noted that such an interpretation was incorrect. The purpose of the Adoption and Safe Families Act is to provide safety and well-being for children under State guardianship and tells the State to file a petition for the termination of parental rights when a child has been in foster care for 15 of the prior 22 months; however, the SJC noted that three exceptions to this rule exist. The exception most applicable to the current situation being that a State refrain from filing a petition for termination of parental rights due to “compelling reasons”. In construing the Adoption and Safe Families Act with the Federal Unaccompanied Refugee Minors Act, such a compelling reason could apply to an instance where the child is an unaccompanied refugee minor.

Fazio v. Fazio
February 24, 2017

The parties were married in 1992 but ultimately separated and filed for divorce in 2006. Throughout the course of the marriage, the Husband was engaged in service with the Army National Guard. Three children were born of the marriage, of which the Wife acted as sole caregiver during the Husband’s deployments. In the Amended Judgment of Divorce, the trial court judge awarded the Wife sole physical and legal custody of the children and ordered the Husband to pay $397.00/week in child support. The Wife was additionally awarded the parties’ marital home and the Husband was awarded his townhome. The parties retained their respective financial accounts, except for the Wife conveying 30% of her largest retirement account to the Husband and the Husband distributing 50% of his military pension to the Wife. The aforementioned division of the marital estate resulted in a 2/3 distribution to the Wife and 1/3 distribution to the Husband.

The Husband challenges the trial court’s alleged failure to stay proceedings pursuant to the Federal Servicemembers Civil Relief Act, the entry of temporary orders for child support above the Massachusetts Child Support Guidelines, the date of valuation of the Wife’s retirement account and the overall division of the marital estate.

Denial of Request to Stay Proceedings:

During the pendency of the divorce action, the Husband sought to stay a hearing scheduled for October 7, 2010. On the day before the October 7th hearing, the Husband’s commanding officer faxed a letter to the Probate and Family Court stating that the Husband’s unit would be undergoing pre-deployment training from October 1-November 28, 2010 in preparation for mobilization on November 29, 2010. As the deployment was to last one year, the Husband’s commanding officer requested the court proceedings be stayed until the Husband’s return in accordance with the Federal Servicemembers Civil Relief Act (“SCRA”). In light of the fact that the judge had already previously granted the Husband’s request for a stay of the proceedings, the trial court judge denied this request and issued an order that the Husband’s housing allowance be direct deposited into the Wife’s account for child support purposes. The Husband challenged the deny of his request for stay pursuant to the SCRA.

The Appeals Court affirmed the trial court judge’s denial of the request for stay under the SCRA, as the Husband’s commanding officer failed to comply with the requirements of the Act. Specifically, the commanding officer failed to provide any information on how the Husband’s deployment training prevented him from attending the court hearing, or detail why the Husband could not take leave in the two months prior to the scheduled mobilization to attend the hearing. As the request was facially devoid of the required information under the SCRA, the trial judge properly denied the Husband’s request to stay the proceedings.

Child Support:

At a prior hearing on March 21, 2007, the trial court judge modified the Husband’s child support obligation due to the Husband’s active duty decreasing his living expenses but increasing his compensation. The judge ordered the Husband to pay the Wife $1,000.00 per week. In entering the increased child support award, the trial court judge failed to make written findings pertaining to the deviation of the support award from the child support guidelines. Further, as alluded to above, at the October 7, 2010 hearing, the trial court judge also ordered the Husband’s housing allowance be direct deposited into the wife’s account. The Appeals Court found that such an order was an abuse of discretion. Although the trial court judge could have increased the husband’s income to account for his housing allowance and thereafter entered a new child support amount in accordance with the guidelines, the judge’s actions ordering the housing allowance be paid directly to the Wife was improper.

Date of Valuation of Retirement Account:

Due to the trial court judge failing to specify the date of valuation pertaining to the Wife’s retirement account of which 30% was to be conveyed to the Husband, the Wife filed a motion for relief from judgment, seeking that the account be valued as of the date of separation. In support of this request, the Wife pointed to her sole contribution to financial growth of the account, her maintenance of the household and the delay in the divorce due to the Husband. A subsequent Amended Judgment of Divorce entered shortly thereafter, naming that the Wife’s retirement account was to be divided as of the date of filing the complaint for divorce. The Appeals Court upheld the trial court’s decision with respect to the date of valuation, finding that a trial judge has discretion to choose another date other than the time of actual trial for valuing assets when circumstances warrant under G.L.c. 208, §34. Although the trial court judge did not provide any additional rationale in the Amended Judgment of Divorce, the Appeals Court found that the judge obviously agreed with the Wife’s reasoning in entering the valuation date.

Division of Marital Estate:

In reviewing the trial court judge’s 2/3 and 1/3 distribution of the marital estate, the Appeals Court noted that the trial court judge made mention that the parties equally contributed to the creation of the marital estate but the Wife’s role in preserving the estate post separation was far more substantial than the Husband’s. The judgment here regarding property division considered the relevant factors under §34 and the reasons for the property division logically stemmed from the judge’s findings.

March Reported Cases

Leon v. Cormier
March 24, 2017

Mother appealed from a judgment of civil contempt. Pursuant to the parties’ separation agreement, which was incorporated into the judgment of divorce, the parties agreed to use the services of a mutually selected parenting coordinator if they were unable to agree on matters related to the parenting plan. Additionally, they agreed that the parenting coordinator’s decisions would be binding, absent further court order. Subsequently, the parties agreed to use the services of the mutually selected coordinator. Shortly thereafter, the coordinator emailed the parties clarifying a previous decision regarding the visitation exchanges and reminding the parties that they are only to communicate via emails during a specified time on Tuesdays, absent an emergency. Despite same, Mother failed to follow the exchange procedure and sent numerous emails to Father outside of the designated email time. Consequently, Father filed three complaints for contempt pertaining to these issues. After a hearing, the judge found Mother in contempt for violating the orders of the parent coordinator. Mother appealed arguing that the parenting coordinator’s decision was improperly treated as a court order.

The Appeals Court disagreed noting that the separation agreement clearly stated that the parties agreed to be bound by decisions of a mutually selected parenting coordinator and provided both parties with the option of bringing the matter before the court prior to such a decision taking effect. Since the agreement was then incorporated into the divorce judgment, it had the full force and effect of a court order. Additionally, in this case, the judge played no role in appointing a parenting coordinator. Rather, it was the choice of the parties and the right to judicial review included therein ensured an adequate safeguard of the parties’ constitutional rights to access to the court. Further, the order of the parenting coordinator did not affect the material terms of the judgment as to the children’s custody or Father’s visitation so as to encroach on the judge’s inherent authority. Consequently, the Appeals Court agreed with the Lower Court Judge’s finding of contempt.

Judgment affirmed.

April Reported Cases

Guardianship of K.N.
April 13, 2017

K.N. was born in 2005 to a mother, fifteen years old, and shortly thereafter the mother’s mother became permanent guardian of K.N. The mother brought numerous unsuccessful actions for removal of the guardianship. This action arose out of the mother’s most recent such attempt. During that action, the mother and guardian were each appointed counsel, but the guardian’s counsel subsequently withdrew and her motion for appointment of counsel was denied. Thereafter, the child, through counsel, filed a motion in the Probate and Family Court to appoint counsel for her guardian. That motion was denied. A single justice allowed the appeal that followed, reported the issue, and stayed the proceedings below. The Supreme Judicial Court granted the child’s application for direct appellate review.

The Supreme Judicial Court did not agree with the child’s argument that guardians who are de facto parents have a procedural due process right to appointed counsel in contested guardian removal proceedings but nevertheless held that pursuant to its equitable powers, the Probate and Family Court may grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child. The Supreme Judicial Court reasoned that the presence of counsel for the guardian may help the judge reach the best possible result for the child in light of the complex nature of the legal and factual questions before the judge in guardianship removal matters, particularly where the child or legal parent is unable or unwilling to present a full picture of the case to the judge.

The matter was remanded for further proceedings consistent with the opinion.

May Reported Cases

Emery v. Sturtevant
May 12, 2017

Husband and Wife both appeal from Probate and Family Court judgments on complaints for modification and contempt heard by two separate trial judges. The Appeals Court rules the modification judge erred in attributing income to Husband without specific findings that he failed to make “reasonable efforts” to find a higher-earning position. The Court further finds that such a finding would not be possible from the trial record. The Court declines to address whether there was an abuse of discretion in the contempt judge’s calculation of child support and alimony arrearages, given its decision in the modification action.

The parties were divorced in 2012. During the marriage Wife was primarily a homemaker and cared for the parties’ three children. Husband worked in private schools, and was a successful head of school at a private school in Gill, Massachusetts at the time of the divorce, earning a base salary of $350,000 per year and a total benefits package worth approximately $450,000 per year. Husband’s employment was by three-year contracts and subject to extension by the school’s board of trustees. Prior to the divorce, Husband was involved in an extramarital affair with a subordinate at his school. He informed the chairman of the board of trustees of the affair several months after the affair ended. Subsequently, he submitted a resignation letter which the chairman accepted, “with deep sadness,” in a written letter sent to Husband on the same day as Husband’s resignation letter.

After trial, the judge ordered child support and alimony based on Husband’s then-reported income, consisting of a severance package of $350,000 per year from his school and additional consulting income, a total of approximately $543,000 per year.

Subsequent to the divorce, after an eleven-month job search, Husband obtained a full-time position as head of school at a private school in Cincinnati, Ohio with a starting salary of $135,000. Husband filed a complaint for modification to reduce child support and alimony. At trial the judge credited Husband’s testimony that he had applied for dozens of private-school positions, mostly for head-of-school posts; had traveled frequently across the country and even abroad for interviews and job fairs; had hired several recruiters; had frequently reached out to the academic community regarding potential openings, and had developed his educational technology skills to improve his chances at finding a position. The trial judge further found Husband had received only one job offer at the Ohio school subsequent to this extensive job search. Nevertheless, the modification judge found it appropriate to attribute income to Husband based on a judgment that he had voluntarily terminated his employment at the school in Gill, and that his conduct during the marriage (specifically, his affair with a subordinate at the school) justified the continuance of alimony. The modification judge indicated that Husband should have continued his job-search efforts subsequent to obtaining the position in Ohio, and failure to do so supported attribution of income at his previous salary.

On appeal, the Court distinguishes Husband’s case from a string of “voluntary career change” cases in which the Appeals Court has previously stated that attribution may be appropriate. Husband’s resignation was not because of an early retirement; nor was it in order to transition to a new and less lucrative field of employment; nor did the record establish that he was guaranteed continued employment at the Gill school.

Further, the Court indicates that, regardless of the voluntariness of Husband’s change of employment, the trial judge should have addressed whether Husband had made “reasonable efforts” to obtain employment at his previous earning capacity. In attribution of income situations, “[t]he reasonable efforts inquiry is critical, and is generally the determining factor in whether to affirm the attribution of income to a party based on his prior earning capacity.” In determining whether “reasonable efforts” have been made, the court should “consider all relevant factors including without limitation the education, training … past employment history of the party, and the availability of employment at the attributed income level.” Guidelines § I-E.

“Reasonable efforts” appears not to require continuation of job-search efforts after one has already located a job after making “reasonable efforts” – the Court finds the trial judge erred in examining whether Husband had continued his job search after he began employment as head of school at the Cincinnati school. For these reasons, the trial judge was not permitted to attribute income to the Husband, and should instead have considered Husband’s actual income at the time of the Modification.

Vacated and remanded for recalculation of alimony and child support, and arrearages since the original modification judgment, based on Husband’s current income.

Arsdale v. Arsdale
May 31, 2017

Wife appeals from a Complaint for Modification from the Probate and Family Court, and the Supreme Judicial Court grants Wife’s request for direct appellate review. The Supreme Judicial Court upholds the constitutionality of the Alimony Reform Act, St. 2011, c. 124 (“Act”)’s retroactive application of durational limits of alimony to Separation Agreements predating the Act. It further finds the trial judge did not abuse her discretion in deciding not to deviate from the Act’s durational limits in this particular case.

The parties were married for 18 years and had two minor children at the time of their divorce in 1997. Their merged Separation Agreement provided that Husband would pay alimony and child support to the Wife totaling approximately $6,700 per month, and that alimony would be reviewed upon the youngest child’s emancipation and upon Husband’s retirement. In a 2015 Judgment for Modification, the trial judge terminated Husband’s alimony, on the basis that the Act’s presumptive durational limits had been exceeded, and Wife had failed to show it was “in the interests of justice” to extend alimony beyond the presumptive termination date. The trial judge declined to address the constitutionality of the Act, however she reasoned that Wife’s agreement to review alimony upon Husband’s retirement was an acknowledgment that Wife may not have expected to receive alimony for an indefinite period of time.

On appeal, the Supreme Judicial Court judges the constitutionality of the Act’s retroactive application of durational limits by considering whether it imposes “new legal consequences” on circumstances that came to an end prior to the Act’s enactment. It distinguishes its judgment in George v. George, 476 Mass. 65, 68 (2016) that the Act’s durational limits were retroactive, from what it states is the current issue before the court: whether the Act’s durational limits are retroactive in a constitutional sense, and thereby impermissible. The Court concludes that the Act’s durational limits are not retroactive in the constitutional sense. A party opposing application of the presumptive durational limits is able to rebut the presumption, and show that the limits should not apply “in the interests of justice” (one of the deviation factors delineated in M.G.L. c. 208 §53(e)), so that the focus is on the “here and now” and not circumstances completed before the Act was enacted.