Fall 2017: Reported Decisions

By: Lauren Bussey and Jordana Kershner

Guardianship of Penate 
June 9, 2017

In a consolidated appeal, the Supreme Judicial Court examined the role of the Probate and Family Court in a minor child’s application for special immigrant juvenile status (“SIJ”). SIJ provisions pursuant to the Immigration and Nationality Act were created to enable immigrant children subject to abuse, neglect, or abandonment by one or both parents to remain in the United States and seek lawful permanent residence. Pursuant to 8 U.S.C. §1101 (a)(27)(J) SIJ status entails the analysis under a three prong test: (1) the child is dependent on a juvenile court, or under the custody of an agency of the department of a State, or an individual or entity appointed by the court or State; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; (3) returning the child to his or her country of origin would not be in the child's best interest.

1. Yosselin Penate: Yosselin was born in El Salvador in the year 1997. Since birth, Yosselin did not have any contact with her father. Throughout her life in El Salvador, Yosselin failed to receive sufficient basic necessities such as food and clothing. In an effort to contribute to household expense, Yosselin obtained employment at the age of 14; however, her employment still failed to provide sufficient financial means for Yosselin and her family’s daily needs. Upon Yosselin receiving threats from an El Salvador gang, Yosselin’s mother sent Yosselin to live with her uncle, Marvin Penate, in the Commonwealth of Massachusetts.

In September 2015, Yosselin’s uncle, Marvin Penate, filed a petition in the Probate and Family Court seeking guardianship of Yosselin. Yosselin (then 17 years old) also moved for the Probate and Family Court to establish the requisite findings for SIJ status. In her motion, Yosselin stated that she was dependent on the Probate and Family Court, reunification with her mother in El Salvador was not possible due to neglect, and returning to El Salvador would not be in her best interests. The Probate and Family Court Judge refused to enter findings on the first and third prong under SIJ status. The Judge further determined that per the second prong under SIJ status, she was unable to find that reunification with one or both parents was not viable due to neglect, abandonment, or abuse. The Probate and Family Court Judge also dismissed the guardianship petition filed by Yosselin's uncle.

SIJ status involves both Federal agencies and State Courts. With respect to the Probate and Family Court’s role, the Supreme Judicial Court found that the Probate and Family Court does not possess the requisite authority to determine whether a child qualifies for SIJ status. Rather, the Probate and Family Court (or a State Court generally) is only to make the requisite findings to assist the United States Citizenship and Immigration Service with SIJ status. The Probate and Family Court Judge may not decline to make such special findings for SIJ status if so requested by an immigrant child. This obligation applies notwithstanding an immigrant child’s failure to provide sufficient evidence to support a favorable finding under each prong. These findings are also limited to the parent whom the child claims reunification is not possible due to neglect, abandonment, or abuse. If only one parent is identified, then findings are only made toward that specific parent. If both parents are identified, then the Judge must make findings regarding both parents.

With regard to Yosselin, the SJC noted that the Probate and Family Court Judge’s findings looked to the motive behind Yosselin’s SIJ status rather than making a determination under Massachusetts law as to whether Yosselin’s mother abandoned or neglected her. Additionally, the Probate and Family Court Judge failed to enter findings under all three prongs for SIJ status, focusing only on one of the three prongs in its analysis. Further, because Yosselin asserted reunification was not viable with her mother or father, the Probate and Family Court Judge was required to enter findings for Yosselin’s father as well as Yosselin’s mother.

2. E.G.: E.G. was born in Guatemala in 2008. E.G.’s father, Manual Lopez, moved to the United States prior to E.G.’s birth and provided little to no financial support to E.G.’s mother for E.G.’s care. When E.G. was only three years old, E.G.’s mother moved to the United States, leaving E.G. and her half-brother (then ten years old) in the care of various extended family members. E.G.’s mother remained in contact with the children while in the United States, but was unable to secure reliable care for the children in Guatemala. Ultimately, E.G. was cared for by her older half-brother or, when he was in school, left alone without proper care or supervision.

E.G. and her brother left for the United States in 2014. When the children were intercepted in Texas, the Office of Refugee Resettlement contacted E.G.’s mother in Massachusetts and sent the children to reside with their mother. E.G.’s father also resides in Massachusetts, but still made no effort to establish a relationship with E.G. upon her arrival in the United States.

Like Yosselin, E.G. subsequently filed a motion for special findings, seeking to apply for SIJ status. E.G.'s motion stated that she was dependent on the Probate and Family Court, reunification with her father was not possible based on neglect and abandonment, and that it would not be in her best interests to return to Guatemala. The Probate and Family Court Judge issued a blanket denial regarding making any findings pursuant to SIJ status.

The SJC reversed, finding that the Probate and Family Court Judge’s role did not consistent of refusing to make SIJ findings but rather was required to enter findings under the three prong requirement. The SJC further discussed that E.G.’s father has at the very least neglected, if not also abandoned the child under Massachusetts law. Due to E.G.'s motion for special findings claiming neglect and abandonment only by her father, the SJC stated that the Probate and Family Court's findings should be limited to E.G.'s father under the second prong. The SJC further noted that it would not be in E.G.’s best interests to return to Guatemala.

Lizardo v. Ortega 
June 12, 2017

The Mother filed a Complaint for Modification on June 24, 2013, seeking additional child support from the Father due to the parties’ daughter graduating high school and attending college. Ultimately, the parties entered into a stipulation which set forth the Father’s new child support obligation at $150.00 per week, plus an additional $50.00 per week toward the father’s child support arrears. Upon the Father being hospitalized due to posttraumatic stress disorder and depression, the Father filed a Complaint for Modification on July 29, 2014, claiming his income had decreased due to his stay in the hospital and inability to work. Around this time, the Father, a veteran, began to receive benefits from the Department of Veteran Affairs in the amount of $1,041.39 per month. The Father was also able to secure employment through a compensated work therapy program, earning $400.00 per week. The Probate and Family Court Judge then reduced Father’s child support obligation to $70.00 per week and preserved the issue of arrears.

In June 2015, the Father lost his driver’s license and, as further consequence, lost his job in the compensated work therapy program. Father filed another Complaint for Modification, seeking the termination of his child support obligation based on his belief that the parties’ daughter was in fact emancipated or, alternatively, a reduction in his child support payments based on his decrease in income. Shortly thereafter, the Social Security Administration informed the Father he was eligible to receive monthly SSDI compensation, totaling $1,196.40 per month. Upon receiving the SSDI compensation, $519.60 was automatically withheld for Father’s then current child support obligation. The Social Security Administration further informed the Father that he would be entitled to an additional lump sum payment of SSDI benefits for past benefits owed.

The Probate and Family Court held a hearing on the Father’s Complaint for Modification on November 10, 2015. The Judge ordered, among other things, that the Father's child support obligation be reduced to $97.00 per week and that the matter would be heard at the next DOR session. On December 17, 2015, at the following DOR session, the Father expressed his understanding that the parties' daughter was in fact still enrolled in college and not emancipated. However, upon the Father moving to withdraw his Complaint for Modification (the Mother had not filed a responsive pleading at this time), the DOR threatened the Father with contempt proceedings. The Father ultimately agreed to pay $123.00 per week in child support in accordance with the Massachusetts Child Support Guidelines. As for the Father’s child support arrears, the DOR currently held $10,296.00 of the lump sum payment distributed by the Social Security Administration for past owed benefits. The Father’s counsel held the remaining $6,864.00 in past owed benefits in escrow. The Father requested the Court order DOR to apply the $10,296.00 toward his child support arrears but allow the Father to keep the remaining $6,864.00 held by Father’s attorney in escrow. The Probate and Family Court Judge declined, instead ordering the $10,296.00 plus $3,000.00 in escrow be distributed to the Mother. The Father appealed, arguing the total $13,296.00 distribution exceeded the 65% cap imposed by the CCPA.

The Appeals Court determined that the Father’s retroactive lump sum SSDI payment constituted earnings in accordance with the CCPA. As the Father’s reimbursement was one lump sum payment, the Court treated the Father’s lump sum payment as a single aggregate distribution for one work week. As the Father’s income was subject to garnishment only up to 65%, the Judge could only order an additional $858—rather than $3,000—from the escrow account distributed to the mother.

The Father additionally claimed that the Court abused its discretion ordering post-minority support. The Appeals Court affirmed, finding that the Father informed the Court he was satisfied with the daughter’s enrollment in college, agreed to the $123.00 per week in support, and withdrew his motion to dismiss his Complaint for Modification. Although the Father claims he was intimidated by the DOR threatening contempt proceedings, the Appeals Court found the DOR would have been acting within its authority to institute such contempt actions. The Father could have defended the contempt proceedings had they been initiated by DOR, claiming an inability to pay the child support; however, Father voluntarily accepted the $123.00 support obligation and waived his right on appeal to argue the Judge abused his discretion ordering the post-minority support.

The Father also argued the Probate and Family Court infringed on his right to equal protection in mandating he pay post-minority support despite no such statutory obligation. The Appeals Court, however, found the Father waived his right to this argument as it was not raised in the Probate and Family Court at the time of the proceedings.

Calabria v. Calabria 
September 25, 2017

Father appealed from the portion of the judgment made by a judge of the Probate and Family Court that increased his child support payments retroactive to the date his income increased, which date was before the date of filing of the mother's complaint for modification. The Appeals Court affirmed because the language of the parties' separation agreement expressly provided for retroactive adjustment of child support.

Young v. Young 
September 25, 2017

In a nearly twenty-four year marriage in which the husband was a high level executive with a financial institution and the wife had not been employed outside of the home, the trial court (1) found that where the husband’s income was on an upward trajectory the general term alimony award would increase commensurate with the increase in the husband's income because that is consistent with the marital lifestyle that had increased as the husband's income increased and (2) ordered the husband to pay alimony in the amount of thirty-three percent of his gross income, rather than a fixed amount, because the nature of the husband’s compensation structure was both complex and constantly shifting.

The Supreme Judicial Court (“SJC”) transferred the case from the Appeals Court on its own initiative and reversed and remanded holding that where the supporting spouse has the ability to pay, the need for support of the recipient spouse under general term alimony is limited to the amount required to enable her to maintain the standard of living at the time of the separation leading to the divorce, not the amount required to provide her with the standard of living she would have enjoyed in the future if the couple had not divorced. The SJC further held that although there might be circumstances where it is reasonable and fair to award a percentage of the supporting spouse's income as general term alimony, it was an abuse of discretion to have done so here because the trial court's intent in doing so was to award the wife an amount of alimony that exceeds what she needs in order to maintain the lifestyle she enjoyed during the marriage, which the SJC held to be impermissible.

With regard to the issue of the husband's argument against so-called “self-modifying” orders, the SJC rejected the argument that a judge lacks authority to make an alimony order that may vary according to variables or contingencies set forth in the order and provided the examples of rate of inflation or changes in a currency exchange rate that may be permissible. The SJC did go on to caution, however, that cases in which a variable or contingent award is warranted is the exception rather than the rule and must be justified by special circumstances. The SJC reasoned that awarding alimony as a percentage of income may encourage income manipulation and also make proving contempt more difficult. An example of special circumstances given by the SJC is where the supporting spouse’s income is highly variable from year to year, sometimes severely limiting ability to pay but where a percentage formula, averaged over time is not likely to exceed the needs of the recipient spouse. The SJC concluded that in this matter, the fluctuations in the husband’s income did not rise to the level of such a “special circumstance” because the husband had such substantial assets available to him from which to pay alimony, fluctuations in his income would not materially affect his ability to pay and, again, because the percentage based formula here was intended to allow the wife’s lifestyle to exceed the marital lifestyle.