Fall 2017: 1:28 Decisions

by Grace Roessler, Lauren Galloway, Elizabeth Silvestri, and Ethan Rittershaus

Gradeless-Blasko v. Blasko 
15-P-382

The husband appeals the divorce judgment, contempt judgment and motion denying relief. The husband rested his case without calling the wife as a witness. The wife rested without calling any witnesses.

1. Divorce judgment

While the Appeals Court does not condone the practice of a near verbatim adoption of one party’s findings, in this case where the record supports the findings there was not error by the judge in such adoption. The husband alleges that the court abused discretion in not making express findings for the MGL c. 208 § 34 factors. However, the Appeals Court held that where there is an even distribution of the estate, express findings are not necessary.

The husband argues the judge failed to include a loan against his 401(k) in the division of assets. Husband alleges that he used this loan to make the down payment on the home. The judge found this contribution was part of the implied marital partnership. Further, the home had no equity for which to divide. The judge ordered the 401(k) be divided and husband’s past due child support and obligations be subtracted from husband’s share and paid to the wife. This was found to be proper as a QDRO can be used to establish wife's rights to the support funds. Silverman v Spiro, 438 Mass 725, 732-736 (2003).

2. Contempt judgment

The husband argues he should not be found in contempt because he did not willfully fail to comply with the court, but rather he lacked an inability to pay. A contempt finding must be supported by clear and convincing evidence of a clear and unequivocal demand, for which the defendant had the ability to pay. The judge found husband disobeyed the order, he had an ability to pay, and therefore the judge's threat of incarceration was appropriate.

3. Motion denying relief

The appeal of an order denying motion for relief does not open the door to assess the validity of the judgment to appellate review. The husband first raised this issue in appeal and the court declined to address it.

Estacio v. Estacio 
16-P-264

The husband appeals from a judgment of divorce which divided the marital asset 60% to wife and 40% to the husband. The parties were married for 26 years. After three years of marriage the wife walked into the home to find her husband being arrested for cocaine trafficking. She previously thought he was employed as a landscaper. The wife was employed at a bank, but following the news of the arrest, her job duties changes and she began to experience panic attacks. She was eventually placed on leave, then unable to return to employment and received Social Security Disability Insurance (SSDI).

Throughout the marriage, husband engaged in extramarital affairs and threatening behavior toward the wife. At trial, wife lived in a property owned by the parties with her mother. The husband lived in another residence with various women.

In making the property division and alimony award, a judge has broad discretion in assigning property. The judge must consider all the mandatory statutory factors and show reasons in her finding. Included in this decision are the parties’ health, income, enjoyment and employability. The judgment will it be disturbed unless plainly wrong and excessive.

The judge found among other factors, the wife’s disability was a result of her anxiety disorder brought on by the husband’s arrest, the husband used marital funds to pay for his education and criminal cases, the husband earns substantially more income and has retirement assets, and the husband dissipated over $100,000 of the estate in the post separation period.

The appeals court affirmed the decision. Where the judge’s findings were reasonable, the statutory factors were properly considered, and the conclusions were clearly articulated in the findings.

Scopa v. Braunstein 
16-P-327

The husband appeals from a declaratory judgment on wife’s complaint for contempt on grounds that judge erred in interpretation of the parties’ separation agreement, judge abused discretion in awarding attorney’s fees where husband is not in contempt, and the judge denied husband’s due process by not holding a hearing.

The parties were divorced by agreement. The wife brought a complaint for contempt alleging husband failed to pay 35% alimony, payment was not made by direct deposit, husband had failed to transfer retirement assets via QDRO, and wife requested attorney’s fees for bringing contempt.

1. Interpretation of the Separation Agreement

When the parties appeared for the contempt hearing, they disagreed on the interpretation of the language relating to the division of husband retirement account. Husband took the position that the asset was to be divided 50/50. Wife took the position that she should receive 50% and be designated as the beneficiary of the remaining funds should she outlive the husband. The language in the separation agreement states, “[The husband] shall elect a fifty percent (50%) joint and survivor benefit for [the wife.]” If the words of a contract are plain and free from ambiguity, then they must be construed in accordance with their ordinary and usual sense. Fried v Fried, 5 Mass App Ct 660, 663 (1977). The judge agreed with the wife’s interpretation stating the language was unambiguous, but nevertheless the judge detailed his findings with extrinsic evidence. This was error – to rule unambiguous and then resort to extrinsic evidence.

a. Existence of ambiguity – An ambiguity arises with language is susceptible to different meanings by reasonably intelligent persons, not just a disagreement over the meaning. Husband provided other sections of the agreement that expressly state the parties’ desire was to divide the estate 50/50. Wife provided several sections of the agreement outlining her separate interest or as a shared payment. The appeals court held the disputed language of the agreement is ambiguous and therefore the judge erred in ruling it was not ambiguous.

b. Extrinsic evidence – When an ambiguity is created, the fact finder is to look to circumstances of formation, intentions, and objectives of the party to determine the meanings. The judge wrongly stated in his findings that the QDRO preparer obtained the parties’ intent in the drafting, the husband’s financial statement elaborated on the ambiguity, and the judge accepted an affidavit as facts when it was really opinion regarding an option available to the parties. These foregoing findings unsupported by the evidence and other findings contradictory to them, require this judgment be vacated and remanded for an evidentiary hearing.

2. Order awarding attorney’s fees – The order must be vacated in part, for the questions to be answered on remand.

The appeals court affirmed the decisions limited to stock option rights and husband’s failure to pay through automatic deposit. The other issues as listed above are remanded for evidentiary hearing.

Y.L.R. v. M.K. 
16-P-800

Y filed a verified complaint in equity to be declared the de facto parent of his former partner's children. Y and M lived together for 11 years, during which time M had two children using sperm donors and Y was not legally able to be listed on the birth certificates. Y mowed the lawn, prepare meals, and help the children with homework. Y never engaged in meaningful employment during the relationship. Y knowingly fabricated stomach cancer to explain his lack of employment, alcohol abuse and frequent absences from the home. Y was also abusive toward M which led to serving 10 months in jail and a permanent restraining order.

When the judge examines whether to name an individual as a de facto parent the judge must find a substantial parental relationship and evidence that a measurable harm will befall the child if the relationship is terminated. Due to the fabricated stomach cancer, alcoholism, and history of abuse the trial judge found a continued relationship would not be in the children's best interest, Y was not determined to be a de facto parent.

As this case centered on the children’s best interest, the judge’s decision will stand absent clear error, with deference to the judge who has broad discretion in considering factors. Y bore the burden of proof in showing the relationship and the benefit to the child, the judge’s findings do not support either. The judge found the evidence that Y did not adopt the children as evidence, but not dispositive of the decision. The court found no evidence for harm that would befall the child if the relationship did not continue. The appeals court affirmed.

Ortmeyer v. Billings 
16-P-822

The husband appeals from an amended judgment of divorce and a judgment on the wife’s complaint for civil contempt challenging the division of property. The parties were married for 23 years. Husband challenges the allocation of 2014 tax liability and failing to consider the 2015 tax liability.

1. 2014 tax liability

When reviewing the judge’s division of marital assets, first - did the judge consider all MGL c. 208 § 34 factors, and second - are the reasons apparent and flow rationally. The decision will be reversed only if plainly wrong and excessive. Husband challenges that judge had no clear rationale, however, judge states the husband failed to pay, he diverted funds, and finally but for husband’s diversion of funds there would be no tax liability. Findings were intact, the rationale was clear, and there was no plain error.

2. 2015 tax liability

The husband argues the tax consequences were not considered; however, the judge only needs to consider the tax impacts of divorce if the issue is raised during trial. This is the first time the husband has raised the issue, no evidence was given at trial, and therefore no abuse of discretion in the judge declining to consider the issue.

The judgments were affirmed.

Condon v. Condon 
16-P-885

Husband appeals a guilty judgment of contempt for violating a temporary restraining order by sending a disparaging text message to his ex-wife. The standard of review in a contempt proceeding is “a clear and unequivocal command and undoubted disobedience.” Nickerson v. Dowd, 342 Mass. 462, 464 (1961). The party must have notice of the prohibited activity. The judge’s finding of contempt is then reviewed for an abuse of discretion.

The husband acknowledged the prohibition in the temporary order, “shall not interfered with the personal liberty of [the w]ife.” Husband holds the definition of the judge was too broad. The text message stated, “You have no moral authority to claim the children’s best interest anymore. You [smashed] yourself in the face over and over…You ruined their family and their financial future so you could starve and puke in the shower with no husband around to tell you you’re a [deranged] freak…” The appeals court held whether the order to prohibit statements husband acknowledges as abusive went beyond the scope of the language in the order is a close question; however, ultimately the judge did not abuse discretion. The Appeals court elaborates, while better practice would be an express statement by the judge, this contempt order did not fall outside of the reasonable alternatives.

Reis v. Reis 
16-P-1001

Husband appeals from a judgment of divorce nisi and denial of motion to amend the judgment. Husband alleges the judge (1) failed to consider or make relevant findings pursuant MGL c. 208 § 34 factors, (2) valued the marital estate at the wrong date, and (3) directed the husband to pay for all the youngest child’s college.

The division of assets will not be disturbed unless plainly wrong and excessive. The judge found the marriage was a partnership and therefore should receive relatively equal division of assets. The decision flowed logically from the judge’s rationale. Judgment affirmed.

The date of the valuation of a division of assets is when the marriage “for all intents and purposes ends.” Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996).  While this is typically the divorce trial date, the judge has the ability to assign another date when warranted by the circumstances.  Caffyn v. Caffyn, 70 Mass. App. Ct. 37, 43 (2007).  In this case, the judge determined that after the parties separated in 2008, the partnership continued with wife being the primary homemaker and caretaker for the four children, the parties filed joint tax returns, and the husband continued to come and go from the home as he pleased.  The judge did not err in finding a continuation of the marital partnership. Judgment affirmed.

Regarding the husband’s contribution to college expenses, husband argues this issue was not plead and therefore not before the court. The Appeals court agrees where the husband was not on notice of the educational expenses and therefore was unfairly prejudiced by the order to make payments. The section of the judgment applying to college expenses is therefore vacated.

M.L.-S.F. v. J.S.F. 
16-P-1108

The wife appeals the division of asset and no alimony portions of the judgment. The husband was a bus driver and the wife graduated from law school later in life and opened her own law practice. The parties were divorced by judgment, the marital home was to be sold and divided 50/50 and wife could retain her law practice.

1. Division of Assets

The judge’s findings are to stand unless clearly erroneous. Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014). The judge has broad discretion to award alimony and determine property division. The judge found the wife’s financial matters to not be credible, including her income and a non-existent mortgage listed on her financial statement. The judge found loans to wife’s sister and son were personal, not marital. The wife also liquidated her pension account just before the separation. The judge’s division of assets fell within the bounds of his discretion.

2. Alimony

The wife argues the judge should have awarded her alimony. Alimony is governed by need and ability to pay. The judge found the parties had roughly equal incomes and expenses. Where the parties were on equal footing, the judge did not abuse his discretion in making no award of alimony.

3. Discovery practices

The wife attempted to bring forth a claim regarding discovery practices, but she failed to identify the specific orders for her appeal. Therefore, this issue cannot be determined by the court.

4. Attorney’s fees

The wife argues the judge abused his discretion in ordering her to pay attorney’s fees. However, given the wife’s conduct during the pendency of the case and husband’s counsel’s submissions for attorney’s fees – the judge did not abuse his discretion in making this order.

The judgment is affirmed.

Seim v. Estes 
16-P-1195

The father appeals from two judgments of contempt. The parties never married, but lived together until their son was 6 years old. The parties entered into an agreement for judgment. The parties at first shared legal custody, with physical custody to mother. The son eventually went to live with father and physical custody was modified to reflect father as the physical custodian.

On April 2, 2015, Mother filed a complaint for contempt for father’s failure to pay college-related expenses and seeking child support. The son was attending Bryant University with a tuition cost of $35,614. The father counterclaimed to have the son deemed emancipated. At trial (July 2015), the judge ordered father to pay 80% and mother to pay 20% of freshmen year college expenses. Father appealed. On September 14, 2015, Mother filed a complaint for contempt asserting that father violated the July 2015 order to pay 80% of son’s college costs.

The father does not appeal the 80% order, but rather the total amount ($35,614) of college expenses. The father for the first time on appeal raises the issue of the 2012 separation agreement stating, “the parties agree that their financial obligation for college education expenses set forth herein shall not exceed an amount corresponding to a four-year college education at the University of Massachusetts at Amherst in each year of attendance.” However, Father did not raise this issue at the trial – he only first raised it on appeal. Additionally, the Appeals court noted that the literal language of the agreement limits father’s contributions in any one year to an amount equal to four years at UMass Amherst. However, even if father’s interpretation were correct and it should be a year to year comparison and 80% contribution to UMass – UMass Amherst was more expensive in that year than Bryant.

UMass – UMass Amherst was more expensive in that year than Bryant. Father further argues the separation agreement obligated the son to apply for loans. Judge did not find the words “cooperate” and “encourage” required the son to apply for loans.

The mother was awarded her request for appellate attorney’s fees.

Judgment affirmed.

Mueller v. Mueller 
16-P-1211

Husband appeals a contempt judgment and award of attorney’s fees. Wife filed a complaint for contempt alleging that husband violated a stipulation by removing money from a joint account without permission. The trial judge appointed a master to make findings on how the marital estate should be divided and whether the husband was in contempt. The master reported husband should be in contempt, wife should be paid $25,000 in attorney’s fees, but the master made no specific finding about the money from the joint account. In finding one in contempt, “[n]ot only must the charges per se be set forth with adequate specificity, but there must be a description of the specific acts [that] underlies the charges.” Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 87-88 (1977). In this case, the specific acts have not been stated and the husband has not had an opportunity to defend against them. The judge did abuse his discretion in finding the husband in contempt where no evidence exists to support the contempt allegation.

The judgment of contempt is reversed.

Mueller v. Mueller 
16-P-1212

The husband appeals from an amended judgment of divorce nisi challenging the property division. The parties stipulated to submit the question of property division for determination by a master. The judge incorporated the findings into a judgment. The order provided the facts of the master would be accepted unless clearly erroneous. The husband objected to the report. The wife moved for approval and to strike husband’s objection, citing he failed to clearly state grounds for each objection. The judge approved and incorporated the master’s report in its entirety.

The husband argues the master erred by not valuing the assets as of the date of the marital partnership termination, by including premarital assets, awarding a savings account to the wife, and finding husband dissipated assets. However, the husband waived these arguments because he failed to raise or adequately present them earlier. Without citations to the evidentiary record, the husband failed to identify any clear error.

The Appeals court further reviewed the judgment and found no reversible error. The division of assets is not plainly wrong or excessive and therefore is affirmed. The premarital assets were included because they were contributed to during the parties’ cohabitation. The master determined the division should be relatively equally and therefore awarding the wife the savings account to equalize the assets was not plainly wrong or excessive. Finally, the master’s findings that the husband dissipated the assets are supported by the evidence – the husband could not account for $33,000 he removed from a joint account and therefore the master charged that amount against his share of the assets.

The amended judgment of divorce nisi affirmed.

M.H. v. J.H. 
16-P-1230

Husband appeals from an order extending, for a third year, an abuse prevention order. The Appeals court reviews the extension for abuse of discretion. The Appeals court will find the judge abused discretion when “the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside of the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant/husband claims the plaintiff/wife’s conduct since the issuance of the order shows she has no actual fear of him. The plaintiff must establish by a preponderance of the evidence the order is necessary to protect that party from abuse. The fact that no abuse has occurred with the order in place shall not constitute denial of the extension. M.G.L. c. 209A § 3. It is the totality of the circumstances that exist at the time of the initial abuse prevention order that govern. Iamele v. Asselin, 444 Mass. 734, 741 (2005).

The standard for a person seeking an abuse prevention order (and extension) based on fear of imminent serious harm is a current fear of imminent serious physical harm. The standard is different for someone who has suffered physical harm. In the case where the victim has suffered physical harm, a judge may reasonably conclude that there is a continued need for the order because the damage resulting from the physical harm affects the victim even when further physical attack is not reasonably imminent. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005) (“some wounds so traumatic that passage of time alone does not mitigate victim's fear of perpetrator.”)

In the instant case, the judge found the parties live one mile from each other, the defendant has previously violated the restraining order, there is an ongoing divorce engendering conflict, and the plaintiff testified that she is afraid. The defendant claims the judge erred in finding the plaintiff’s fear credible, however, credibility determinations are given the utmost deference. Where the judge considered the totality of the circumstances, the decision will not be overturned.

The defendant father further appeals the application of the restraining order to the parties’ children. Where there is abuse by a family member a judge is “not also required to find that the defendant has committed a separate act or acts of abuse against the parties’ children to order that the defendant have no contact with those children.” Schechter v. Schechter, 88 Mass. App. Ct. 239, 251-252 (2015). Given the totality of the circumstances, the judge did not abuse her discretion in extending and modifying the order as it pertains to the minor children.

Thornton v. Thornton 
16-P-1735

Father filed a complaint for modification to terminate alimony and reduce child support. Father alleged his income had drastically reduced since the judgment of divorce. Father unilaterally reduced his child support payment. Mother filed a contempt. The modification and contempt were consolidated.

At trial, the judge reduced child support but did not alter alimony. The judge’s decision was explained in a memorandum of decision. The judge found father’s income had increased significantly since the divorce, but mother’s income had also increased and thus the child support was reduced. The judgment will not be reversed unless clearly erroneous. Where the judge’s decision was clearly support by the record, the decision stands.

The father additionally argued that a reduction in child support is necessary to bring the support amount in accord with the child support guidelines. However, the parties previously agreed to an upward deviation and that deviation will continue to apply so long as “the factors that gave rise to the deviation still exits, deviation continues to be in the child’s best interest, and the guidelines amount would be unjust or inappropriate under the circumstances.” Guidelines § III-C. In this case, the father received a significantly larger portion of the marital assets and the mother received a large portion of the debt. Although the separation agreement does not specifically state why the deviation existed, there is no clear error in the judge inferring the intent for the agreement. Judgment affirmed.

Belanger v. Bettano 
July 27, 2017 
16-P-1456

This case showcases the necessity of clear, concise findings to support a custody determination. The Father appeals from a judgment of divorce that provides Mother with sole custody of the parties’ minor children. The parties were married for approximately four years. During the marriage, the Mother was the sole caretaker of the parties’ minor children, and the Father was the primary wage earner. The family suffered financial hardship and was evicted on several occurrences – due primarily to the Father. The Father also went to prison for ninety days for crimes related to drug distribution, during which time the Mother cared for the children. When the Father returned from prison, the Mother filed for divorce, and requested sole custody of the children.

At a hearing for Temporary Orders, the Court granted the Father temporary sole physical custody of the children, and required the Mother to have supervised visits with the children three times per week, to disclose her medical diagnosis, and provide evidence that she was taking her medications properly. The Temporary Order requiring supervised visits with the Mother remained in place for two years pending trial on the divorce. At trial on the complaint for divorce, the Court reversed its Temporary Order, and ordered sole physical custody of the minor children to the Mother. The Father appealed the decision.

By the time the Father appealed, the trial court Judge had retired. The Appeals Court could not remand the decision. Consequently, the Court vacated the Judgment when it was unable to conclude from the findings whether the trial court judge had considered the relevant factors when awarding physical custody to the Mother, including “consideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child’s life, the decision-making capabilities of each parent to address the child’s needs, and the living arrangements and lifestyle of each parent and how such circumstances may affect the child” (citing El Chaar v. Chehab, 76 Mass. App. Ct. 501, 508 (2010). Specifically, the trial court failed to address the recommendation from the court psychologist that the Mother should continue to have supervised visits with the children. The Appeals Court noted “Troublesome facts, pointing to a conclusion contrary to that reached by the department or the judge, are to be faced rather than ignored” (citing Adoption of a Minor (No. 2), 367 Mass. 684, 688-689 (1975). The trial court also failed to make findings regarding (1) the children’s bonds with each parent, (2) each parent’s decision making skills, and (3) the parents’ living arrangements. There was scant information in evidence about the children, and there was no finding to address the impact of changing custody would have on the minor children. The Appeals Court noted the importance of clear findings in custody determinations: (1) They insure the quality of a judge’s decision making process by requiring simultaneous articulation of the judge’s underlying reason; (2) they assure the parties that their claims have been fully and fairly considered; (3) and they inform an appellate court of the basis on which a decision has been reached (citing Cormier v. Carty, 381 Mass. 234, 236 (1980)).

Grein v. Grein 
July 27, 2017 
16-P-458

The Husband appealed from a Modification Judgment after the trial court failed to attribute a certain amount of income to the Wife to reduce the Husband’s child support obligation. The parties’ divorce judgment incorporated the parties’ separation agreement and attributed income to the Wife of $360 per week on that basis that the Wife was capable of working forty hours per week earning minimum wage. At the time, she was working part time for her mother’s company earning $200 per week. Soon after the divorce the Husband filed a Complaint for Modification, seeking the Court to attribute more income to the Wife, specifically income of a full time social worker – to further reduce the Husband’s child support obligation. The Modification Judge declined to attribute income of a full time social worker to the Wife, but instead attributed income to the Wife as a full time worker at her mother’s company. The Husband appealed.

The Appeals Court affirmed the Modification Judgment and cited to Casey v Casey, which requires showing of (1) the availability of employment as a position in the person’s geographic area or (2) the typical salary for a position with a background (including education and work experience) comparable to that of the person. 79 Mass. App. Ct. 631 (2011). In upholding the trial court’s decision, the Appeals Court considered, among other factors, that (1) the Mother has never worked full time as a social worker, (2) she has not worked as a social worker for at least ten years; (3) the last time she held a full time job was in 2011 as a job placement specialist, for which she earned $22,000 per year; (4) there is no indication that the Wife maintained her training or licenses to work as a social worker; and (5) the Husband failed to provide any evidence regarding the availability of social work positions in the Mother’s geographic location and the subsequent salary for said positions. Instead, the Appeals Court noted the Wife continued to be employed by her mother’s company (and worked only three days per week), traveled, is certified to assist, does billing for the company, and knows HIPPA law.

Eddy v. Franco
July 13, 2017 
16-P-1000

Father in a paternity action appeals the trial court’s decision to award Mother sole legal and physical custody of the minor child, allow the Mother’s relocation and removal with the child to Florida, order past due child support from the birth of the child to the date of initial temporary order, order the Father to pay $289 per week in child support, and fail to set a holiday parenting plan. The Appeals Court confirmed.

The trial court’s attribution of income of $122,000 per year to the Father, a self employed paralegal, was not an abuse of discretion. Under the Child Support Guidelines, income from self employment is defined as gross receipts minus ordinary and necessary expenses. However, the trial court made significant findings to conclude that the Father’s financial statements and testimony regarding his income were not credible. Where there was a lack of financial credibility and lack of transparency regarding his business expenses and record keeping, it was appropriate to attribute income to the Father and use a three year average of his gross deposits to determine his income.

The Appeals court also upheld the trial court’s decision to not further reduce the Father’s child support obligation for his future travel costs to visit the child in Florida. Though the Child Support Guidelines allow for a reduction for travel costs, it is discretionary. In this case, though the trial court had reduced its orders by $100 per week for Father’s travel costs already incurred while the child resided in Massachusetts, it was not mandatory that the Court further reduce the support for the Father’s future travel to Florida.

The Appeals court upheld the trial court’s decision to order retroactive child support from the date of birth of the child to the temporary order. The trial judge properly rejected the Father’s request to credit him with the cost of items the Father purchased for the child, such as an ipad, toys, zoo memberships, aquarium memberships etc, and money he put aside for the child’s college. The Appeals Court upheld the trial court’s decision and found that gifts to the child did not offset or diminish the necessary expenses such as housing, food, clothing, and medical care required and for which child support is directed.

The Father alleged that the trial court failed to provide for a holiday and vacation schedule in its Judgment. The Judgment, which includes in the findings the ability of the parties to work together and communicate well, orders the parties to accommodate their work schedules and make their own holiday schedule. Thus, the court did in fact include a holiday and vacation schedule in its Judgment.

Cooper v. Cooper 
15-P-1479, 16-P-713 
 August 3, 2017

Husband and Wife were married for twenty-one (21) years. In 2007, the parties were divorced. At the time of their divorce, the parties had six (6) unemancipated children as well as one (1) emancipated child. Pursuant to the parties’ separation agreement, which was incorporated in the amended judgment of divorce nisi, Wife had physical custody of three (3) of the parties’ unemancipated children and Husband had physical custody of the remaining three (3) unemancipated children. Additionally, Husband was to pay Wife $1,200.00 per week in support, consisting of $900.00 per week in alimony and $300.00 per week in child support. The support provisions of the parties’ separation agreement merged with the amended judgment of divorce nisi.

In September 2011, Wife filed a Complaint for Modification requesting an increase in alimony and child support because only one (1) unemancipated child still lived with Husband. In August 2013, Husband filed a Complaint for Modification requesting that his alimony obligation be terminated and his child support obligation be recalculated due to an alleged decrease in income. Subsequently, Wife filed a second Complaint for Modification requesting an increase in Husband’s support obligations because the children in Husband’s custody were all emancipated.

A trial was held on the financial issues raised in the parties’ consolidated complaints. After trial, the Lower Court Judge entered a bifurcated modification judgment denying Husband’s request to terminate alimony and increasing his child support obligation to $600 per week. Additionally, the Lower Court Judge entered a modification judgment denying Wife’s request to increase alimony. Husband then filed a motion to amend and alter the bifurcated judgment, which was denied. Husband appealed from the denial of said motion as well as the bifurcated modification judgment. Wife later filed a motion for relief from judgments, which was denied. Wife appealed the denial of said motion.

On appeal, Husband argued that the modification in his child support obligation was inappropriate because his financial status was largely the same. The Appeals Court disagreed stating that the Lower Court Judge viewed the emancipation of the children in Husband’s custody as a custody change such that Wife was now the sole custodian of the children. Since the amount of child support pursuant to the relevant Child Support Guidelines depended on the custody arrangement, a new increased child support amount was warranted. Next, Husband argued that the Lower Court Judge erred in determining the parties’ financial circumstances. Specifically, he argued that the judge erred in failing to account for gifts Wife received from her father; however, the Appeals Court disagreed noting that the record did not reflect that such gifts should have been treated as a stream of income. Further, Husband argued that the judge erred in finding that a stock award was part of his gross income that made it seem like his financial status had changed. The Appeals Court clarified that since the judge had not modified the child support due a change in his financial status, his argument was without merit. Lastly, Husband argued that the Lower Court Judge was required to terminate alimony pursuant to statute because she had already used all of his income for the child support calculation. Although such an argument was not properly raised by Husband, the Appeals Court did note that the modification judgment predated the relevant change to the statute thereby preventing a modification on such grounds.

In regards to Wife’s appeal, the Appeals Court stated that the issues raised in her motion for relief could have been brought through appeals from the underlying judgments. Consequently, the Lower Court Judge did not abuse her discretion in denying the motion.

Bifurcated modification judgment affirmed. Order denying motion to alter and amend bifurcated modification judgment affirmed. Order denying motion for relief affirmed.

Larkin-Thomson v. Thomson 
16-P-126 
 August 17, 2017

Husband appealed from a judgment of divorce nisi. The parties were married for over twenty-one (21) years. There was one (1) child born of the marriage, who was nineteen (19) years old at the time of trial. During the marriage, Husband was the primary wage earner. For the first half of the marriage, Wife worked as well; however, in approximately 1998, she left her job and began receiving disability payments. Additionally, Wife was the primary caretaker of the parties’ child throughout the entirety of the marriage. The parties enjoyed an upper middle class lifestyle and accumulated a substantial marital estate. Unbeknownst to Wife, Husband had a girl friend and another child whom he supported during their marriage as well. Wife first learned of the affair in approximately 1998 at which time she applied for and received long-term disability payments and was determined by the Social Security Administration to be totally disabled. Husband told Wife that he had terminated the affair. Consequently, Wife stayed with Husband up and until 2011 when she discovered the affair was still ongoing. Subsequently, Wife filed for divorce.

After a trial was held in the matter, the Lower Court Judge entered findings that Husband had deliberately misled Wife on numerous occasions in order to conceal his affair. Additionally, the Lower Court Judge found that Husband’s double life caused him to dissipate assets. Further, she found that Husband had stopped meeting the financial needs of both Wife and their child upon Wife’s filing of divorce, including a failure to keep up with the mortgage payments of the home he had purchased for his girlfriend, causing an even greater dissipation. Moreover, the Lower Court Judge found Husband was not credible during trial, while Wife was credible. A Judgment was entered that awarded fifty-five (55) percent of the marital estate to Wife; however, it was made clear that Husband would end up with only twenty-five (25) percent of the equity of the estate. Husband was also ordered to sell the home his girlfriend lived in as well as pay Wife alimony and pay two-thirds of the cost of the child’s future college expenses. Husband appealed.

Husband first argued on appeal that the ordered sale of the home his girlfriend lived in improperly adjudicated the rights of his girlfriend, who was not a party to the divorce action. The Appeals Court disagreed identifying that the home was ultimately foreclosed on due to Husband’s failure to make the mortgage payments. Consequently, if Husband had continued to make the payments as ordered, the home would have been sold and pursuant to the divorce judgment, his girlfriend would have been paid back for her contributions to said property. Husband’s next argument on appeal was that the Lower Court Judge erred in awarding the majority of the marital estate to Wife. The Appeals Court disagreed stating that the Lower Court Judge had entered findings that demonstrated Husband’s dissipation of assets without Wife’s knowledge thereby preventing her and their son from having the same standard of living enjoyed during the marriage. Additionally, her findings demonstrated Wife’s opportunity to acquire future assets was small as was her income while Husband would continue to enjoy substantial earnings. Lastly, Husband argued that the Lower Court Judge improperly failed to deduct the college expenses he will pay from his gross annual income prior to calculating alimony. The Appeals Court disagreed noting that neither the Child Support Guidelines nor statute required such same.

Judgment of Divorce Nisi Affirmed.

Binder v. Maury 
16-P-138 
 August 24, 2017

Wife appealed from a judgment of divorce nisi. The parties married on December 23, 1993. There were three (3) children born of the marriage. During the marriage, Husband was the primary wage earner and Wife was a homemaker; however, Husband was very involved in the children’s care, school and activities. On or about May 2004, the parties separated. For the next eleven (11) years, the parties remained separated. Notwithstanding same, Husband continued to provide financial support for Wife and the children. On September 5, 2012, Husband filed a Complaint for Divorce. A trial was held in the matter. Wife did not appear at the trial nor did her counsel. A judgment of divorce nisi entered awarding Husband sole physical and legal custody of the children, ordering Wife to pay child support in the amount of $80.00 per week, and Husband to pay alimony in the amount of $2,055.00 per week. Additionally, said judgment in relevant part allowed Husband to retain the former marital home and gave Husband sixty percent of the equity in same. Wife appealed.

On appeal, Wife argued in regards to alimony that the Lower Court Judge erred in using Husband’s income as of 2004, the date of the parties’ separation, to calculate alimony and failed to include their period of separation in determining the duration of same. Additionally, Wife argued that the Lower Court Judge failed to fully consider her contributions during the marriage in dividing the marital estate. Further, Wife argued the judge erred in awarding Husband a larger portion of the marital estate. The Appeals Court noted that Wife did not raise any of the issues at trial nor had she raised them in a posttrial motion. Consequently, the issues raised by Wife were waived on appeal.

Judgment of divorce nisi affirmed.

C.R.S. v. J.M.S. 
16-P-1234 
September 7, 2017

Defendant appealed from the issuance of a restraining order from the District Court. On appeal, Defendant argued that the ex parte order should not have issued and that Plaintiff failed to meet her burden on the extension order.

Plaintiff had applied for an abuse prevention order pursuant to G. L. c. 209A on May 29, 2016. At the ex parte hearing, Plaintiff was granted an order which held in relevant part that Defendant should not abuse Plaintiff, placed custody of the minor child with Plaintiff, and allowed Plaintiff the use of the residence both parties had inhabited with a 50 yard stay away order. Two days later, after notice both parties attended an extension hearing. During that hearing, Plaintiff testified that Defendant had been emotionally abusive for eleven years, Defendant had a drinking problem, and that she was in fear for both herself and her daughter. Plaintiff also testified to two separate incidences of physical abuse. Defendant denied that there had been any abuse although he acknowledged that the relationship was stressful.

Moving to Defendant’s first contention, the Appeals Court held that an ex parte order is not entitled to appellate review assuming that Defendant had an opportunity to be heard in a subsequent hearing. Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016). As Defendant had received a further hearing, he was not entitled to appellate review on the issuance of the ex parte order.

Moving on to Defendant’s second argument. The Appeals Court first noted that the burden was on Plaintiff to establish facts justifying the issuance of a restraining order by a preponderance of the evidence. It was proper to extend a restraining order based upon a continued need without a showing of new abuse. Mitchell v. Mitchell, 62 Mass. App. Ct 769, 782, (2005). In acting on an extension or issuance of a 209A order the trial judge has broad discretion and it is appropriate to take into account the entire history of the parties’ relationship and any trauma or threat of harm to the applicant’s minor children. Iamele v. Asselin, 444 Mass. 734, 736 (2005). Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999). Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005).

The Appeals Court decided that the Trial Judge properly concluded that Plaintiff had met her burden. Plaintiff credibly testified to at least two separate incidences of physical abuse in a deteriorating relationship that was fraught with controlling behavior as well as verbal and emotional abuse. On those facts the trial judge did not err in extending the order for one year or in concluding that Plaintiff had met her burden by a preponderance of the evidence as the judge was entitled to draw reasonable inferences from the circumstantial evidence as described. Commonwealth v. Gordon, 407 Mass. 340, 350 (1990). Order extending the 209A order by one year affirmed.

Murad v. Quinones 
16-P-1588 
September 26, 2017

Mother appealed from an order dismissing her appeal from a judgment of modification which awarded Father custody of the parties’ minor child. The appeal had been dismissed for procedural defects. On appeal from the order, Mother argued that the Judge abused her discretion in dismissing the appeal based on inexcusable neglect for not precisely titling the judgment from which the mother sought to appeal where there was sufficient additional information to properly identify the judgment at issue and in dismissing the appeal due to Mother’s failure to obtain Father’s agreement before retaining a court-approved transcriber.

The initial dismissal was based upon two separate grounds: that Mother inaccurately identified the judgment or order at issue in her notice of appeal in derogation of Mass.R.A.P. 3(c) and Mother’s failure to follow the requirements set forth in Mass.R.A.P. (8)(3)(ii).

At the outset the Appeals Court noted that Mass.R.A.P 3(c) had never been construed to be strictly rigorous. Rather, notice will be sufficient if it fairly informs the court and appellees of the judgments or orders to be considered on appeal. Carter v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 117 (1978). While Mother’s notice inaccurately titled the judgment, it did specify that it was for a single judgment dated Aug 27, 2015. Only one such judgment appeared on the trial court’s docket. Additionally, from a review of the Judge’s decisional memorandum and the hearing, it was clear that the Judge and Father knew that the judgment designated in Mother’s notice was that judgment. On these facts, the Appeals Court declined to say that the notice was so insufficient it failed.

Moving to the Judge’s second grounds for dismissal, the Appeals Court reviewed the order for dismissal for violation of Mass.R.A.P. (8)(3)(ii), Mother’s failure to obtain Father’s agreement before retaining a court-approved transcriber and her failure to cure these defects before the hearing on father’s motion to dismiss the appeal. The Appeals Court first noted the relevant standard for reviewing an order of dismissal under Mass.R.A.P. (10)(c) and Mass.R.A.P (9)(c)(1) was for abuse of discretion while remaining mindful that the burden was on Mother as the appellant to pursue her appeal and to provide an adequate record for her appeal. Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011).

However, the instant case was distinguished by Scheuer, in that it could not fairly be said that Mother did nothing to fulfill the requirement that an appellant move the appeal along as it is reasonable to do so. Mother substantially complied with the rule’s requirements insofar as she timely requested and obtained a copy of the trial’s electronic recording, submitted the recording, and moved that the court approve the transcriber. Without minimizing the seriousness of the Mother’s procedural missteps, the Appeals Court concluded that mother’s problem was no neglect of the appeal but rather that she made procedural errors pursuing it. Father claimed no prejudice to himself or the parties’ minor child. Once it had become clear that Father objected to the transcriber it would have been a simple matter for the clerk or judge to designate a neutral transcriber as contemplated in Mass.R.A.P. 8(b). The Appeals Court concluded that they had the definite and firm conviction that Mother made diligent efforts and that the loss of her appellate rights was disproportionate to the harm occasioned. As such, the Judge made a clear error of judgment in weighting the factors relevant to the decision such that it fell outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 (2014). Order dismissing appeal vacated and remanded.

Trodden v. Trodden 
17-P-32 
 September 28, 2017

Wife appealed from a modification judgment alleging that the Trial Judge abused her discretion in finding countervailing equities which warranted a modification as to alimony.

After the filing of Wife’s claim for divorce on August 25, 2006; the parties entered into a separation agreement on November 6, 2007. This agreement provided in relevant part that Husband was to pay $575.00 a week in unallocated support and $1200.00 per month in capped alimony. Both of these provisions were survived in the separation agreement. On February 1, 2015, Husband qualified for disability retirement from his job at National Grid. He then moved for a modification of his alimony obligation which the Judge granted on August 18, 2015.

The Appeals Court first noted the relevant standard of review of a survived provision in a separation agreement. To modify the terms of a survived provision, a Judge must find something greater than a material change of circumstances, commonly known as countervailing equities. Knox v. Remick, 371 Mass. 433, 436 (1976). The Judge implicitly found that the agreement had survived based upon the application of the countervailing equities standard. Husband had contended that Wife waived the survival defense by failing to raise it prior to trial. The Appeals Court disagreed due to the fact that survival is matter of construction of an agreement and a judge’s interpretation of the agreement’s contract terms, not a defense which can be waived. Parrish v. Parrish, 30 Mass. App. Ct. 78, 86-88 (1991).

The Appeals Court next turned to whether the countervailing equities standard had been properly applied. The most common example of countervailing equities is where one spouse may become a public charge or when the party seeking enforcement has not complied with other provision in the separation agreement. Nevertheless, other circumstances of equal import may also suffice. Stansel v Stansel, 385 Mass. 510, 515-516 (1982). Additionally, such a change must give rise to, “special equitable considerations which make relief appropriate.” Ames v. Perry, 406 Mass, 236, 241 (1989).

The Appeals Court did not find that the Trial Judge abused her discretion in finding the existence of countervailing equities despite the fact that Husband would not be a public charge. Husband suffered from an unanticipated and now permanent disability which decreased his income by over fifty percent since the time of the divorce. Since going on disability, the unmodified alimony obligation constituted thirty percent of Husband’s income. In reducing the alimony obligation by roughly twenty eight percent, the Judge balanced the equities by affording Wife the assistance she needed as well as granted some relief to Husband based upon the involuntary and permanent change to his earning capacity. Cournoyer v. Cournoyer, 40 Mass. App. Ct. 302, 306-307. Judgment affirmed.