Spring 2018: 1:28 Decisions

by Ethan Rittershaus, Esq. and Lauren Bussey, Esq.

Masomi v. Madadi
16-P-1718
October 3, 2017


Husband appealed from an order denying his second motion to file a late notice of appeal from the judgment of divorce and an order denying his motion for relief from judgment under Mass. R. Civ. P. 60(b).

On January 8, 2015, the parties executed a stipulation in which they agreed to a specific division of marital assets and further agreed that each would be responsible for their own debts. The stipulation also contained a specific clause which stated that the agreement would be submitted to court and entered as a judgment unless the parties prepared and executed a more detailed formal agreement.

On February 27, 2015, the parties submitted the agreement to the judge for review. The judge thereafter approved the agreement. Ten months later, a single justice granted the husband an extension of time to file a notice of appeal from the divorce judgment. While husband filed his notice of appeal, he thereafter voluntarily withdrew it, apparently to pursue a rule 60 motion for relief from judgment instead. The judge denied this motion. The judge then denied his second extension motion.

The Appeals Court first noted that the denial of a motion for relief from judgment is reviewed for an abuse of discretion. Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 411 (1999). In Husband’s motion for relief from judgment he asserted that the agreement was a draft that left the issue of the parties’ marital debt unresolved. Given the circumstances of the parties’ conciliation agreement, namely, the fact that unless a more specific agreement was prepared the agreement would enter as a judgment, the Appeals Court did not discern an abuse of discretion in the judge’s denial of his motion for relief from judgment.

Turning toward husband’s second contention, the Appeals Court noted that denial of the motion to extend the appeal deadline was also reviewed for an abuse of discretion. Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 161 (2000). In his motion, husband cited as grounds that he did not know his appeal could proceed while the motion for relief from judgment was under consideration. While Husband was self-represented, his misunderstanding of procedural rules still did not constitute “good cause” for extending the time of appeal. Kellerman v. Kellerman, 390 Mass. 1007, 1008 (1984).

Judgment and Orders Affirmed.

P.M v. J.M.
16-P-1510
October 4, 2017 

Defendant appealed the denial of a motion to vacate an order pursuant to G. L. c. 209A, §3.

On July 23, 2007, the plaintiff was granted a one-year abuse prevention order against defendant. The order was extended at a hearing held one year later and then made permanent at a second extension hearing one year after that. In December of 2015, defendant moved to vacate the abuse prevention order. At a hearing on January 14, 2016, counsel for defendant argued that the order should be vacated because (1) of a lack of risk of future abuse absent the order; (2) defendant’s compliance with the order since 2007; (3) plaintiff’s failure to cooperate in a related criminal prosecution; (4) the geographic distance between the parties; and (5) that defendant had married. At this hearing, plaintiff testified that she remained, “terrified” of defendant, particularly after she was advised by the Police that defendant had attempted to purchase a firearm. She testified that the abuse that had led to the initial order was the, “most horrific thing that I have ever gone through in my entire life” and even eight years later remembered the details vividly. The judge thereafter denied the motion to vacate.

The Appeals Court noted that a defendant moving to vacate a permanent abuse prevention order must show by clear and convincing evidence that, “as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm.” MacDonald v. Caruso, 467 Mass. 382, 382-383 (2014). On motion, the plaintiff bears no burden of proof and is entitled to rest on the finality of the order.

Turning to the instant case, the Appeals Court found defendant’s central Argument, “that the plaintiff failed to show a continued need for the order” to be erroneous. Plaintiff under these circumstances had no burden to present any evidence at the hearing. The Appeals Court reviewed the judge’s order for an abuse of discretion only in respect to the judge’s findings relevant to G.L. c 209A § 3. While, the defendant’s move across the country and his marriage may have qualified as a significant change of circumstances. The defendant did not present any affidavits, criminal or civil records, or any other evidence to prove the absence of further domestic abuse, arrests, or convictions (to show that he had truly moved on with his life as required by MacDonald).

Thus, the Appeals Court only reviewed for an abuse of discretion in finding that defendant failed to prove the proper standard. As they discerned no abuse of discretion, the underlying order which made the order permanent was affirmed.

Santella v. Driscoll
16-P-793
October 6, 2017 

Defendant appealed a judgment of the Probate and Family Court which concluded, with respect to a deed purportedly signed in 1996 by the parties but only recorded in 2010, either that the plaintiffs did not sign the deed or that if they did, their execution was not knowing, willing, and voluntary because it was procured either through a misrepresentation by the defendant or the deed was fraudulently altered. On Appeal, defendant argued that several of the judge’s findings were clearly erroneous.

Turning to defendant’s first contention that the judge’s findings were clearly erroneous, the Appeals Court disagreed. The judge’s findings of fact were supported by the evidence and the reasonable inference that might be drawn therefrom. The judge was entitled to credit the testimony of a notary that she would not have notarized the signature page of the deed with the crossed out section and alteration present on it. The judge was further entitled to draw the conclusion that Joseph Driscoll listing the property on his bankruptcy petition after the alleged date of the deed by which he purportedly divested himself of any interest in the property supported the inference that the Deed had been altered. Further, defendant never put forward a theory which would explain why the transfer of the property would have been undertaken in two steps though two different deeds executed at the same time.

Defendant next argued that fraud and misrepresentation were inadequately plead in derogation of the heightened standards for pleading fraud under Mass. R. Civ. P. 9(b). The Appeals Court disagreed, noting that the amended complaint alleged fraud in the forging of Deed 2, and identified the deed that was allegedly forged, as well as the date upon which the forgery occurred. The Appeals Court also noted that the questions regarding fraud were thoroughly litigated, they were the central question presented in the case. Thus, there was no lack of notice or unfair surprise. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings” Mass. R. Civ. P 15(b).

Judgement affirmed.

M.N. v. W.M.
17-P-114
October 12, 2017 

Plaintiff appealed from an order of a District Court judge denying her request to extend an ex parte harassment prevention order. The parties were neighbors and according to the complaint their dispute began after plaintiff telephoned the police to report that the defendant’s vehicle was parked on her street in the wrong direction. Defendant then allegedly committed retaliatory acts.

After a hearing, but without written findings, the judge determined that the plaintiff failed to prove that defendant engaged in harassment as iterated under the statute. The plaintiff argued that there were six incidences of harassment. (1) Defendant threatened plaintiff after receiving the parking ticket, stating that he would get even and that his bipolar grandson would be triggered; (2) defendant placed spotlights on his property facing plaintiff’s home (3) defendant threw trash on her property; (4) defendant stored junk along the fence line, breaking plaintiff’s fence; (5) defendant applied to the city traffic commission for a handicapped parking space, specifically asking that it be located outside plaintiff’s home and (6) defendant telephoned the police immediately after the handicapped parking sign was installed causing the plaintiff’s vehicle to be ticketed and towed.

The Appeals Court noted that the judge did not err in finding that plaintiff failed to prove by a preponderance of evidence that these alleged acts constituted harassment under G. L. c. 258E. The plaintiff had presented no evidence of three of the alleged incidents (2, 3, and 4) but for her initial affidavit which the judge was not required to credit; even if the judge had credited those allegations, they would not have necessarily proven that the defendant acted willfully and maliciously with the intent to case fear.

In respect to allegation 5, plaintiff suggested that the requisite malicious intent could be inferred by the fact that defendant lied on his application for a parking spot. However, plaintiff never specified how defendant lied. Because this application for a parking spot was never presented, the judge again was entitled to take the view that plaintiff failed to prove her claim.

Thus, even giving plaintiff every benefit of the doubt in respect to her remaining two claims, plaintiff could not meet her burden in proving three acts of harassment under the statute. The judge did not err in declining to extend the 258E order

Order affirmed.

Turner v. Turner
16-P-825
October 13, 2017 

Former husband appealed a modification judgment on his complaint to terminate alimony. On Appeal, former husband, relying on George v. George, 476 Mass. 65 (2016), claimed that the judge abused her discretion in issuing an alimony order deviating from the statutory durational limits without expressing a reason for doing so. He also argued that the judge erred in attributing income to him in considering his present wife’s income in creating the alimony order and in failing to list his former wife’s cohabitation as a basis for a future termination of alimony.

Former husband and former wife were married for approximately eighteen years. Former wife had stopped work upon the birth of the parties’ first two children. Former husband was previously a vice president of several companies. The most recent of which was a startup which failed. At the time of the modification he was unemployed. The parties’ original separation agreement had obligated former husband to pay $500.00 per week in child support and $450.00 per week in alimony until former husband reached the age of sixty five. On April 7, 2014, former husband filed the present modification complaint which asserted a change of circumstances and sought a termination of his alimony obligations under the reform act. After the trial, the judge found that former wife was not self-supporting and that former husband had failed to pursue work at a lower level; as a result, the judge imputed $66,500.00 dollars of annual income to him. The judge thereafter reduced his alimony obligation to $224.00 dollars per week. The judge also considered present wife’s contributions to his living expenses in determining his ability to pay.

The Appeals court first turned to the standard for a modification of the alimony award. “The recipient spouse bears the burden of proving by a preponderance of the evidence that deviation beyond the presumptive termination date is 'required in the interests of justice.’ G. L. c. 208, § 49(b).” George v. George, 476 Mass. at 70. "Further, a judge should evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought.” Ibid. In the instant case, the Appeals Court noted that the trial judge did not have the benefit of the George case; as in George, the judge here concluded that had the wife known at the time of the divorce that the alimony obligation would terminate she would have sought a different bargain. As in George, this analysis was found to be fundamentally flawed.

Next, the Appeals Court addressed former husband’s arguments in regard to the imputation of income. The Appeals Court noted that in imputing income to a party, “a judge is not limited to a parties actual earnings but may….consider potential earning capacity.” Heins v. Ledis, 422 Mass. App. Ct. 485 (1996). In the instant case, the judge made detailed findings as to Husband’s history of work and income, his retention of significant assets, the fact that he had no debt, and the fact that his present wife had supported him during the duration of his unemployment. The judge did not, as Husband argued, directly consider wife’s present income in fashioning the alimony award. The court discerned no abuse of discretion.

The modification judgment was remanded to the Probate and Family Court to determine if, in light of George, whether a modification of the order was appropriate.

Gexler v. Roberts
16-P-1284
October 16, 2017 

Husband appealed a judgment of the Probate and Family Court which ordered him to transfer fifty percent of his pension to his former wife. On Appeal, husband argued that the post-divorce property division complaint was barred by laches, res judicata, and collateral estoppel.

In 2001, the parties executed a separation agreement dividing the marital home, automobiles, personal property, and an escrow account. The agreement was silent as to retirement assets of either party. In 2014, former wife filed a complaint for property assignment of a marital asset pursuant to G. L. c208 §34. In response to this complaint, the Husband raised the above affirmative defenses. After a trial, the judge ruled that the defense of laches was unavailable in a post-divorce division of assets and that husband had not met his burden of proof on the remaining affirmative defenses raised.

The Appeals Court first turned to Husband’s claim regarding laches. This was quickly disposed of as the Appeals Court noted that an action for division of property may be brought at any time after divorce; thus, there was no defense of laches. Brash v. Brash,

 407 Mass. 101, 104-105 (1990). The Appeals Court next turned to Husband’s arguments regarding res judicata and collateral estoppel. At issue was whether or not the parties’ contemplated and actually litigated the division of Husband’s pension. If this issue had been litigated, then Husband may have met his burden and availed himself of the defense of res judicata. (A judgment of divorce is res judicata as to those issues that have been actually litigated and determined) Hay v. Cloutier, 389 Mass. 248, 252 (1983). However, in the instant case, the agreement was silent as to any pension, and no record existed of such a pension in the parties’ financial statements. Husband contended that the parties agreed that husband would retain his pension in exchange for wife receiving a portion of his worker’s compensation, and that his attorney could verify his claim. However, the attorney had died two years prior to the filing of the matter.

The judge credited wife’s testimony (that she believed no pension remained and she learned of the pension years later) and did not credit husband’s testimony. Thus, she found the issue of the pension had not been litigated and that the doctrines of res judicata and collateral estoppel did not apply. As issues of credibility are within the purview of the trial court judge, they should not be disturbed on appeal. Pierce v. Pierce, 455 Mass. 286, 293 (2009). The judge’s findings were supported by the record and the Appeals Court discerned no abuse of discretion.

Judgment Affirmed.

Wilson v. Wilson
16-P-1577
October 18, 2017 

Husband appealed from a judgment of divorce nisi entered by the Probate and Family Court, which awarded his former wife sole legal and physical custody of the parties’ minor child, along with twenty percent of the retirement account.

On June 23, 2015, husband initiated custody proceedings in the Probate and Family Court and moved for emergency custody of the parties’ minor child. In his motion, husband alleged that he was very concerned for the child’s well-being because his wife was acting unstable. Following an ex parte hearing, a judge allowed his motion, granted him temporary legal and physical custody of the minor child.

After several further motion hearings, the existing parenting arrangement under the temporary order was for wife to see the child every other weekend. After a trial in which both parties testified, the trial judge granted wife full physical and legal custody of the child, ordered husband to pay child support, and required husband to transfer to the wife twenty percent of the balance of his IRA.

After the trial, Husband submitted a five page motion for a new trial pursuant to Mass. R Dom. Rel. P. 59. After that motion was denied, he thereafter submitted a motion for reconsideration which was also denied.

The Appeals Court first turned to husband’s contention that the Court abused its discretion regarding the custody determination: that the evidence adduced at trial did not provide an adequate basis to alter the custody arrangement after it had been in place since the beginning of the case. The Appeals Court disagreed, noting that in a custody determination the touchstone inquiry is what is best for the child. Hunter v. Rose, 463 Mass. 488, 494 (2003). In the instant case, the judge had properly considered certain factors: the judge had found that husband’s emergency motion for custody was advanced in bad faith, the wife had left the marital home because of an emotionally and physically abusive relationship, husband had demonstrated that he does not have the present ability or willingness to co-parent, and that wife was a more capable parent than the husband. Many of the judge’s findings hinged on credibility determinations and nothing in the record convinced the Appellate Court that the determinations were plainly wrong.

Judgment Affirmed.

R.S. v. W.S.
16-P-571
October 20, 2017 

Defendant appealed from an order of the District Court extending a harassment prevention order pursuant to G. L. c. 258E.

Plaintiff appeared in District Court seeking an ex parte HPO against his son in February of 2015. The first judge issued the order and scheduled a later hearing after notice. At the next hearing, both parties testified and the judge extended the order for a year. On March 17, 2016, the HPO was extended permanently. Of note, the one year order had already been vacated by the Court of Appeals. At the hearing when the order was made permanent, plaintiff credibly testified that in 2009, when his adult son became ill, plaintiff and his wife offered to let the adult son live with them. They paid for the son’s prescription medication, nutritional supplements, and other costs.

Plaintiff also summarized the incidents of harassment: He had found defendant lying upstairs in a room, concerned, plaintiff called for EMTs. Defendant refused to go and accused him of attempted murder. Later that night at approximately 4 A.M., plaintiff was awoken by police officers whom defendant had called with the report that plaintiff was attempting to kill him. This pattern repeated itself in numerous ways, including reports to DCF as a danger to the grandchildren, Facebook posts filled with accusations, and multiple police home visits due to calls from defendant. One of the most troubling allegations was defendant whom had informed plaintiff that he was stockpiling weapons to defend himself from plaintiff’s attempts to murder him. Most recently, plaintiff was served with a lawsuit by defendant alleging 1.3 million dollars’ worth of damages.

On Appeal, defendant argued that the permanent order should be vacated because the original one-year HPO was vacated. The Appeals Court disagreed, the issue before the court was whether, “the judge could find, by a preponderance of the evidence…that the defendant committed acts that constituted one of the enumerated forms of harassment.” O’Brien v. Borowski, 461 Mass, 415 (2012). Under the statue, harassment is delineated in several ways: (1) three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does cause fear, intimidation, abuse or damage to property; (2) criminal harassment shown by proving one of 12 iterated crimes. In the instant, case the violation in this case was G. L. c 265 §43A. “The criminal harassment statute punishes ‘whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.’” Commonwealth v. Bigelow, 475 Mass. 554, 558-559 (2016).

Turning to the first definition of harassment, the Appeals Court concluded that it was clear that judge could find by a preponderance of the evidence that defendant committed three or more acts of malicious conduct. In the instant case, it was clear that each of the three qualifying acts was characterized by cruelty, hostility, or revenge and each act was intended to place plaintiff in fear.

The Appeals Court also found that the evidence was sufficient to yield a finding that defendant’s behavior constituted a true threat: that the repeated false accusations of attempted murder, combined with the admonition that defendant possessed lethal weapons that he was prepared to use in self-defense satisfied that definition.

Affirmed.

Blevins v. Celester
16-P-1567
October 24, 2017 

Mother appealed from the judgment on her amended paternity complaint and on the complaint for contempt against father for missing a discovery deadline and her complaint for contempt of father’s wife who did not bring several requested documents to trial.

The paternity action was filed on April of 2014. On July 29, 2015, after a pretrial hearing where both parties appeared with counsel, the judge issued an order that incorporated the parties' stipulation of the same day, setting forth their agreement that father would provide certain discovery materials to mother by October 1, 2015. Father provided some but not all of the requested documents; and mother thereafter filed a complaint for contempt. On a further status conference in November, the judge issued an order providing, in part, that father would have until noon on December 11, 2015, to produce the remaining materials and that if the father complied, the complaint for contempt would “go off the [hearing] list.” Again, mother’s counsel did not object, and father timely complied with the order. On January 28, 2016 a trial was held in which mother subpoenaed the father’s wife to testify and produce bank records. While, father’s wife appeared she did not have time to obtain the documents requested because the subpoena had been received three business days before the trial.

The Appeals Court first turned to mother’s contention that the trial court judge had erred in not holding father’s wife in contempt. However, as mother did not move to hold the wife in contempt in the lower court the issue was waived. Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

Turning toward mother’s argument that Father should be held in contempt, the Appeals Court discerned no abuse of discretion: The judge had ordered compliance by a new deadline, and mother had raised no objection. Father then thereafter complied.

Judgment Affirmed.

Mann v. Mann
16-P-1451
October 25, 2017 

Mother appealed from a judgment that awarded sole legal and physical custody of the minor child to father and made certain support orders.

The Appeals Court first noted that mother had failed to provide an adequate record appendix in derogation of Mass. R. A. P. 18(a). She did not order a transcript of the trial, and her appendix lacked many record materials that were essential to her claims. While, she was informed of these procedural defects, she declined to remedy them. As a result, the Appeals Court declined to review the merits of mother’s arguments regarding the judge’s various rulings.

Notwithstanding these procedural defects, the Appeals Court did review the record materials and considered mother’s remaining arguments. The judge’s conclusion awarding both legal and physical custody of the minor child to father was fully supported by the judge’s findings. Further, such an award would be well within a judge’s discretion.

Judgment affirmed.

R.G. v. C.F. –M
17-P-437
October 27, 2017 

Defendant appealed from the issuance of a harassment prevention order. On appeal, defendant argued that the plaintiff did not prove three or more acts of harassment and that she was denied procedural due process in connection with the issuance of the order.

The plaintiff and defendant were neighbors. After several interactions, plaintiff told defendant to stay away from her children. On June 18th of 2016, defendant asked plaintiff’s four year old son to come to her house to play with colored markers. Plaintiff, after she realized that her child was missing, became distraught and began yelling for her son. During this time, defendant and the son were hiding behind a bush on defendant’s property. Approximately a month later, defendant went over to plaintiff’s house and told her that if she did not make peace with her she would take measures. Finally, an unspecified period of time later, defendant approached plaintiff’s house and pounded on the door screaming for her to come outside.

The Appeals Court first noted the relevant standard for issuing a 258E order: whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that they did in fact cause fear, intimidation, abuse, or damage to property. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).The fear in question does not have to be objectively reasonable Id. at 8.

In the instant case, the act of hiding plaintiff’s child could clearly be found to have been malicious. Given the totality of the remaining circumstances the appeals court would not gainsay the trial judge’s credibility determinations as to defendant’s intention or as to plaintiff’s fear.

Moving on to defendant’s second contention regarding procedural due process. Defendant argued that she was denied procedural due process because she was denied the opportunity to appear with counsel and present evidence. The Appeals Court noted that in contested proceedings, each party must be given a meaningful opportunity to challenge the other party's evidence. F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 (2015). However, in the instant case, defendant was given the uninterrupted opportunity to testify and to cross examine the plaintiff. Thus, the Appeals Court discerned no violation of defendant’s right to due process.

Order Affirmed.

Tejada v. Lemus
17-P-1076
October 27, 2017 

Orlando Tejeda, appealed from the dismissal of his equity complaint which requested declaratory and equitable relief in the form of a Decree of Special Findings. Orlando had submitted an affidavit detailing the neglect and abandonment he suffered from his mother in El Salvador, including failing to protect him from gang threats, refusing to relocate to a less dangerous neighborhood, and in providing him with no support.

A Probate and Family Court judge, after a non-evidentiary hearing, dismissed the complaint reasoning that Mother’s limited resources were the cause of her failure to remedy the situation. The judge went on to note concerns about Orlando’s willingness to abandon his mother and his younger siblings in the face of such dire circumstances.

The Appeals Court first noted that, “[a]cting within the limits of this fact-finding role, the judge must make the special findings even if he or she suspects that the immigrant child seeks SIJ status for a reason other than relief from neglect, abuse, or abandonment.” Guardianship of Penate, 477 Mass. 268, 275 (2017). “The immigrant child's motivation is irrelevant to the judge’s special findings. The judge’s obligation to make the special findings also applies regardless of whether the child presents sufficient evidence to support a favorable finding under each of the criteria set forth in § 1101(a)(27)(J).” Ibid.

The Appeals court then entered special findings and rulings based on the record before them consistent with what was required of the Probate and Family Court in making a determination for SIJ. The judgment dismissing the complaint was reversed and the matter was remanded to the Probate and Family Court where a decree was to enter incorporating the Appeals Court’s numbered findings.

Denesha v. Denesha
16-P-1381
November 6, 2017 

Husband appealed a judgment of the Probate and Family Court in which the judge awarded wife nearly one hundred percent of the marital estate and ordered husband to repay wife $250,000.00 over a seven year period. Husband claimed that it was error to order repayment and that the court could not divide future acquired assets.

On September 30, 2005, husband, wife, and their two children were involved in a car accident and received a settlement in the aggregate amount of $570,000. After payment of attorney’s fees and medical liens the settlement proceeds were $400,000. Thereafter, husband deposited the entirety of the settlement proceeds into a money market account designated to him alone.

On appeal, the husband argued that the repayment provision must be vacated as the judge did not have the authority to order a division of property acquired after the dissolution of the marriage. The wife argued that the husband had waived any objection to that repayment provision as it was not raised in his M.R.D.R.P 59 motion. The Appeals Court disagreed with both parties: wife’s bare assertion that he had waived this claim had no support or citation. Also, cited authority indicated that wife’s position was contrary to established law. Liberty Square Dev. Trust v. Worcester, 441 Mass. 605, 610 (2004).

The Appeals Court also disagreed with husband’s contention that the lower Court divided a future asset: the Appeals Court found consistent with the judge’s rationale that it was not a future asset being assigned and divided but rather a debt. This was well within the trial court judge’s purview. Harris v. Harris, 26 Mass. App. Ct. 1004, 1004 (1988).

The Appeals Court went on to note that in order to evaluate whether the division of the marital estate is “plainly wrong and excessive,” a reviewing court must look to the trial judge’s findings of fact. Kittredge v. Kittredge, 441 Mass. 28, 44 (2004). However, because the trial judge did not make findings to support the order the Appeals Court found itself in no position to evaluate the trial judge’s order.

The case was thereafter remanded to the Probate and Family Court for additional findings.

McCarthy v. McCarthy
16-P-1207
November 6, 2017 

Husband appealed from a judgment of the Probate and Family Court dismissing his amended complaint to reduce or terminate his alimony obligation to his wife.

The parties initial separation agreement entered in May of 2005 had obligated the husband to pay $700.00 per week in alimony subject to review upon a material change of circumstances. Approximately six years later, the husband entered a modification wherein his alimony obligation was reduced by fifty percent.

On June 25, 2014, husband filed a second complaint for modification. On March 6, 2015, the husband filed the present amended complaint, asserting that his alimony obligation should be reduced because the wife was eligible for spousal Social Security benefits, and that she was eligible for a pension from her former employer. After a trial, the judge concluded that husband did not meet his burden of showing a material change of circumstances and dismissed the amended complaint.

The Appeals Court first noted that because the judgment establishing the alimony obligation had issued prior to the effective date of the Alimony Reform Act of 2011 the standard for whether a modification was appropriate was that which existed at the time the judgment entered. Chin v. Merriot, 470 Mass, 527, 535 (2015). As the agreement was merged the modification standard was a material change in circumstances.

In the instant case, the judge had considered all the relevant circumstances. Husband’s income had increased since the last judgment, he was eligible for Social Security benefits, and his expenses had decreased. Wife, meanwhile, had slightly increased her income, and assets but not to the same extent as husband. The judge further considered wife’s increased income from the social security benefit but also her increased expenses and need.

As the trial judge had carefully weighed all the relevant factors the Appeals Court discerned no error.

Affirmed.

Ross v. Ross
16-P-1179
November 9, 2017 

Husband appealed from the division of marital assets awarded to his former wife pursuant to a judgment of divorce nisi.

The parties were married on August 23, 1980. Wife thereafter filed a complaint for divorce in 2002, the parties then reconciled and no further action was taken until September, 2011. On October 1, 2012, a master was appointed to make findings concerning the property division. In the master’s report, it was recommended that husband receive the marital home, the husband’s pension be divided equally between the parties, wife retain her Fidelity IRA, and husband convey 53% of the value of his 401(k) account to the wife. On September of 2014, a judge thereafter issued an order incorporating the master’s findings but for an adjustment from 53% to 55%.

The Appeals Court first noted that under G.L. c. 208 s. 34 a judge has broad discretion to assign assets. Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993). The Appeals Court then reviewed the judge’s findings to determine whether she considered all relevant factors and whether she relied upon irrelevant factors. Zaleski v. Zaleski, 469 Mass. 230, 245 (2014). Such a judgment regarding property division would not be reversed unless it was plainly wrong or excessive.

In the instant case, the judge, in addition to adopting the special master’s findings, had also made numerous findings addressing the G. L. c. 208 s. 34 factors. The judge had provided for a relatively equal division with a slight adjustment in favor of wife in light of the husband’s use and depletion of marital assets during the pendency of the case.

Affirmed.

A.C. v. J.C.
16-P-1362
November 10, 2017 

Father appealed from a judgment of divorce nisi which awarded mother sole legal custody of the party’s two minor children.

In November of 2013, the parties separated and mother obtained an abuse prevention order against the father pursuant to G. L. c. 209A, which was extended for a year. On May 6, 2014, the judge granted mother’s request for temporary sole legal and physical custody. A two day trial was held in October. After trial, a judgment entered in which mother was granted sole legal custody of the two children with an attendant obligation to keep father informed as to the children’s health, education, and welfare.

The Appeals Court first noted that custody determinations are reviewed for an abuse of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). The determination of which parent will promote the children’s best interest is within the trial judge’s discretion whose findings must stand unless they are plainly wrong or excessive. Custody of Kali, 439 Mass. 834, 840, 845 (2003). On Appeal, father argued that neither the judge’s subsidiary findings, nor any evidence presented supported the decision to grant sole legal custody to the mother.

The Appeals Court disagreed. “Shared legal custody” is defined as “continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.” G. L. c. 208, § 31. Shared custody is generally not appropriate where the judge’s findings demonstrate “that the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict.” Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). In the instant case, the judge’s findings amply demonstrated that the relationship had been dysfunctional. Father had routinely denigrated mother, taken naked pictures of her and disseminated them, and physical grabbed the mother on numerous occasions. The judge also considered evidence of past or present abuse as a factor contrary to the best interest of the child.

Affirmed.

S.P. v. B.D.
16-P-1578
November 16, 2017 

Father challenged a custody judgment of the Probate and Family Court that granted mother sole legal and physical custody, and provided father with six hours of supervised visitation a week.

The Appeals Court first noted that G. L. c. 209C, §10(e) required the judge to consider evidence of past and present abuse as a factor contrary to the best interest of the child. If a judge finds that by a preponderance of the evidence that a “pattern or serious incident of abuse has occurred”, there is a rebuttable presumption that it is not in the child’s best interest to be placed in a shared or sole physical custody arrangement with the abusive parent. Further, upon such a finding, a judge is required, within 90 days, to make findings of fact as to the effects of the abuse on the child. This requirement exists even when the judge did not award custody to the abusive partner. Maalouf v. Saliba, 54 Mass. App. Ct. 547, 550 (2002).

In the instant case, the judge credited mother’s testimony regarding an incident where father pinned one of the children on the floor, struck the child, and threw the child on a bed. The judge also noted that father, despite pleading guilty to assault and battery did not believe his behavior was abuse and has not acknowledged the effect of domestic violence on the children. While the record was clear that the judge considered evidence of past abuse it was unclear whether the judge found that father’s conduct constituted a, “serious incident of abuse.” While in other cases it may have been appropriate for the Appeals Court to conclude that the judge made implicit findings, domestic violence was too fundamental to be dealt with only be implication. Id. at 550. Because the Appeals Court was unable to review whether the record reflected all relevant factors, the judgment was vacated and the case was remanded for entry of findings and a new judgment consistent with the decision.

K.D. v. J.D.
16-P-1426
November 22, 2017 

Defendant appealed from an order denying his motion to expunge an abuse prevention order (“APO”).

On October 8, 2015, plaintiff obtained an ex parte APO which required defendant to refrain from abusing plaintiff, who is his daughter. After an extension hearing was held and both parties were heard, the judge found that there was insufficient evidence to support the extension. Approximately a year later, defendant moved to have the 209A order expunged on the basis that his daughter had proffered false testimony to the Court. Defendant further argued that the CORI information had prevented him from obtaining custody of his grandson from DCF. The judge denied this motion.

On Appeal, defendant argued that the order should be expunged since his daughter committed a fraud on the court. However, the Appeals Court disagreed, fraud on the court is not simply the presentation of false testimony; rather, it involves a larger pattern of harassment calculated to interfere with the judicial system’s ability to impartially adjudicate a matter. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 729,730 (2006). A false allegation alone without more is insufficient to warrant expungement.

In the instant case, no finding was made that plaintiff’s testimony was false, and the fact that the order was not extended did not support the inference that her testimony was in any way dishonest. The Appeals Court was cognizant of the inconsistencies in plaintiff’s testimony and went on to note that it was understanding of both defendant’s frustration and appreciative of defendant’s cogent oral argument. However, the remedy sought was simply not permitted under the current state of the law with the facts presented.

Order denying expungement affirmed.

Hayes v. Hayes
17-P-453
November 28, 2017 

Husband appealed from an amended judgment of divorce nisi regarding child custody, the parenting plan, and the division of marital assets.

The Appeals Court first noted that, “in making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.” G. L. c. 208, § 31. The best interest of the child is the overriding concern. And such decisions are within the discretion of the judge. Bak v. Bak, 24 Mass. App. Ct. 608 (1987). In reviewing a custody order, the Appeals Court would uphold the findings of fact unless clearly erroneous and consider whether all relevant factors were weighted.

In the instant case, the judge found that the parties demonstrated difficulties in communication, no cooperation, and husband’s behavior was harassing, intimidating, and belligerent. Additionally, the judge found that the children had missed a significant amount of school while in father’s care; and that father’s parenting style was dictatorial and authoritative (i.e., threatening to break the child’s fingers if she disobeyed and calling the child a “retard”).

Husband also argued that the judge made erroneous findings vis a vis a home equity line of credit which lead to the assignment of the entirety of that debt to husband. The Appeals Court discerned no error in the judge’s finding that the home equity line of credit was used to establish husband’s business and thus did not reach the question of the debt assignment.

Additionally, husband argued that the judge made erroneous findings regarding the value of the marital home and assignment of the debt without making a concomitant adjustment to the home’s net equity. Husband argued that the judge had calculated the net home equity value by using a $400,000 municipal assessment that was out of date. Both parties had failed to procure an expert to opine on value, the judge was not required to use any one source in setting the fair market value so long as the statutory factors were considered and the judge made, “an honest exercise of judicial discretion.” Downing v. Downing, 12 Mass. App. Ct. 968, 969 (1981). Because evidence in both parties’ financial statements ($430,000 for husband and $399,000 for wife) supported the finding, there was no error.

Finally, husband argued that the judge should have adjusted the net equity of the home in light of assigning the home equity debt to husband and that the judge erred in valuing the purchase money of the mortgage according to the original balance. The Appeals Court disagreed: the judge could have correctly reasoned that even if the home was sold the day after the judgment the purchase money would first have been applied to satisfy the home equity loans. While this division would result in an imbalance, the judge was required to equitably divide the property, not equally divide the property. The resulting imbalance in the property assignment was not so extraordinary as to constitute an abuse of discretion. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989). In addition, it was within the judge’s discretion to set the valuation of the mortgage purchase money to the date of the temporary order as it was within the judge’s discretion to determine that husband should not receive the benefit of an increase in equity to which he did not contribute. Savides v. Savides, 400 Mass. 250, 252-253 (1987).

Judgment affirmed.

Jones v. Jones
16-P-1511
November 28, 2017 

Husband appealed from the dismissal of the parties’ divorce complaint and counterclaim for the same.

On September 14, 2010, husband filed for a contested divorce based upon irretrievable breakdown. Wife answered and counterclaimed on February 18, 2011. The case then proceeded with multiple continuances being granted on their pretrial date. On August 7, 2013, a judge of the Probate and Family Court ordered that if the parties were not ready for a meaningful pretrial conference on January 29, 2014, the case would be dismissed. Thereafter, a stipulation of dismissal was filed. The Court thereafter failed to properly effectuate the dismissal of their claims. In 2016, wife moved for entry of judgment nunc pro tunc to January 16, 2014 (when the stipulation of dismissal was filed). This motion was allowed. Husband’s appeal of the judgment of dismissal followed.

The Appeals Court noted that contrary to husband’s assertion, the judge did not involuntarily dismiss the case. Instead the judge’s order corrected an earlier mistake. Under rule 58, entry of the judgment was mandatory and should have taken place after the stipulation of dismissal. Since the Court’s obligation to enter the judgment was mandatory there was no error in allowing wife’s motion seeking entry of the judgment. Husband further argued that it was an abuse of discretion to allow the judgment nunc pro tunc. While the first stipulation filed did not have Husband’s counsel’s signature, shortly thereafter, a final stipulation with all the signatures was filed.

Judgments affirmed.

Singh v. Singh
16-P-951
December 1, 2017 

The Wife appeals from the judgment of divorce with respect to the (1) property division and (2) alimony award of $100 per week. The Husband, citing the Wife’s appeal as frivolous, requested attorney’s fees incurred to defend the appellate action.

The Appeals Court found that in ordering an equitable distribution of the marital estate, the Probate and Family Court Judge previously required the Husband to pay the Wife $65,387 for his share of the advance from the marital account. Although the Husband claimed he placed a check for this amount in the Wife’s mailbox, the Wife testified she never received the funds and the check was never deposited. The judge then offset the Husband’s distribution of assets by $65,387, and ordered the Husband to provide the Wife with a second check in this same amount. Even though the Wife argued that this offset was inequitable, she did not point to anything in the record to demonstrate that such offset was not factored in by the judge in the overall division of the parties’ estate.

The Appeals Court additionally noted that given the size of the parties’ estate, such an amount would not result in a windfall to the Husband rendering the division inequitable. As an additional property division issue, the Wife also claims she should not have been order to contribute ½ of the $10,947 in penalty fees the Husband incurred for the withdrawal and redeposit of funds to the marital bank account. As the Husband’s withdrawal and redeposit all occurred during the course of the marriage, the Appeals Court did not find the Wife’s argument persuasive.

The Wife further argues that the award of $100 per week in alimony was insufficient given the long term nature of the parties’ marriage. The Appeals Court found that the Probate and Family Court Judge appropriately considered the statutory factors and despite the parties accumulating substantial assets, found that the parties lived a modest lifestyle during the marriage. The Wife’s and the children’s collective weekly expenses only totaled $1,035 per week. The de minimis expenses, together with the $475 per week the Wife was to receive in child support, rental properties awarded to the Wife in the divorce, and the Wife’s potential employment outside the home was deemed sufficient to allow the Wife to meet her needs and maintain the marital lifestyle. As a catchall, the judge additionally found that the support award would be reviewable in the future were the Wife’s circumstances to change.

As for attorney’s fees, the Appeals Court noted that it has discretion to determine when an appeal is deemed frivolous. Although the judgment was affirmed in the Husband’s favor, the Appeals Court did not find the Wife’s appeal to be frivolous, as the issues raised by the Wife, being the award of alimony and property division, merited a closer look by the Appeals court.

Morse v. Morse
16-P-1620
December 13, 2017 

The Husband challenges several areas of a Probate and Family Court Judge’s determination in a judgment of divorce. First, the Husband contends the judge erred in considering the expenses of the Wife’s children from a prior marriage when determining the Wife’s need for support purposes. In setting the support award, the Appeals Court found that the Probate and Family Court Judge considered the length of the parties’ marriage, the lifestyle enjoyed by the parties during the marriage and that the Husband possessed the ability to pay support. The judge additionally determined that the Wife’s financial statement correctly set forth the expenses necessary to provide for the Wife under a reasonable living standard and that the Wife’s sole source of income through Social Security Disability Benefits was not sufficient to support the Wife’s needs nor to permit her to enjoy a lifestyle like the one maintained during the marriage. The Probate and Family Court Judge noted that absent this additional support, the Wife would be a public charge.

The Husband argues that the judge considered irrelevant factors in setting the alimony award, such as the Wife’s children from a prior marriage and amounts for the Wife’s uninsured medical expenses. The Appeals Court found that the judge only awarded the Wife the amount of alimony sufficient to allow the Wife to enjoy a similar lifestyle as the one during the marriage. Had the judge awarded the Wife the permissible 30 to 35% of the differences in the parties’ gross incomes, the Husband’s alimony obligation would have been double the current support award. As for the inclusion of the children’s expenses in the Wife’s “need” determination, the Husband did not raise the issue at the time of trial, and such issue is waived on appeal.

The Husband also contests the judge’s order that the Husband provide health insurance coverage for the Wife despite the Wife’s current coverage through Medicare. In an award of alimony, a judge is required to address health insurance coverage for the recipient spouse. The Probate and Family Court Judge, however, determined that the Husband’s health care coverage was provided to him as a cost benefit through his employer. The judge also properly ruled that the Husband’s health insurance coverage for the benefit of the Wife did not merit a reduction in the Husband’s alimony payment.

The Husband argues the Probate and Family Court Judge erred by encouraging the Wife to file a complaint for modification for the continuation of alimony after the durational limits expired. The Wife, although presently suffering from several disabling conditions, was not certain whether such conditions would persist into the future. Given this, the judge determined there were not current circumstances to warrant deviation from the durational support limits. Although the judge stated he would view any such complaint for modification “favorably,” the Appeals Court determined that the judge did not relieve the Wife of her burden to establish a change in circumstances that her disabilities were permanent and persisting into the future upon the expiration of the durational limits.

The Husband’s contention that the Probate and Family Court Judge improperly valued and divided his interest in his family’s business also fails. The Husband and his two siblings purchased the family business from his father on a fifteen year promissory note. The Husband’s 24.5% interest was determined to have a value of $902,580. The Husband made payments on the note in monthly installments of $2,722.22, but was ultimately able to accelerate his payments until he fully paid off his obligation in January 2015. The total payments made, $405,611, represented 83% of the Husband’s purchase obligation. As the Wife was entitled to one-half of the value of the Husband’s interest acquired during the marriage, the Appeals Court held that the judge did not err in awarding the Wife $373,532.73 as her share of the Husband’s interest.

Eynon v. Gillis
16-P-1502
December 21, 2017 

The Husband herein appeals the Probate and Family Court Judge’s award of primary physical custody to the Wife, the child support order of $339 per week and the judge’s division of the parties’ marital assets. The Appeals Court first reviewed the Probate and Family Court Judge’s award of primary physical custody to the Wife. The Probate and Family Court Judge found that the Wife had predominately served as the child’s primary caregiver and that it was in the child’s best interest to continue the existing parenting schedule. Notably, the judge found that the Husband had traditionally exhibited poor judgment while parenting the children. The judge further determined that the Husband’s desire for shared physical custody was in fact motivated by his desire to avoid paying child support rather than equal time with the children. Although the Husband contends that the Probate and Family Court Judge’s findings were based on the Wife’s dishonest statements, the Appeals Court found that any credibility determinations are initially vested the lower court judge and not to be disturbed absent such determinations being plainly wrong.

The Husband further argues that Probate and Family Court Judge erred in ordering child support, as he claims the Wife conceded that child support from the Husband was not necessary. Such a concession, however, will not stand, as a party being willing to forgo child support cannot waive a child’s right to appropriate support from the other parent.

Lastly, the Husband claims that the division of the marital estate was improper. Such claim by the Husband, however, was not supported, as the Husband failed to show that such division was plainly wrong and excessive.

Urrea v. Sanchez
16-P-1716
December 22, 2017 

The parties were originally married in Colombia on April 12, 1996 and subsequently married again in Boston on April 12, 1998. During the marriage, the parties acquired and held three income producing properties. The Wife, together with at least one of the two children, resided in a unit in one such income producing property. The Husband and his girlfriend were believed to reside in another unit of a separate income producing property. Upon the Husband filing for divorce in April 2013, the parties appeared for a trial on the matter. The Probate and Family Court Judge ordered, in relevant part, the parties to market for sale the three income producing properties and equally divide the proceeds from said sales and that the Husband pay child support to the Wife for one of the parties’ two children. The judge declined to issue an award of alimony for the Wife. This appeal by the Wife followed.

The Wife’s first two assertions, that the Husband committed fraud on the Court through the failure to provide accurate financial statements and adequate discovery, were dismissed by the Appeals Court. The Wife failed to raise these objections below, and thus waived raising the issues on appeal. The Wife further alleged that the Probate and Family Court Judge abused her discretion in failing to award her alimony. Because the Wife failed to raise the issue of alimony below, the Appeals Court found that the Wife cannot now seek alimony for the first time on appeal.

With respect to the Probate and Family Court Judge’s determination that the parties market for sale the three income producing properties, the judge made no findings to support this decision. The income producing properties constituted the entirety of the marital estate, not to mention that the Wife and minor child primarily resided in one of the units in such properties. The Probate and Family Court Judge’s determination of child support was equally as troubling, as the judge entered no findings to support the arbitrary award. It is also unclear whether both children or only one child resided primarily with the Wife, which would potentially merit an adjustment to the support order.

Due to the lack of findings for the property division and child support award, the Appeals Court vacated the applicable portions of the divorce judgment and remanded for further determination.

Letteri v. Letteri
17-P-153
December 28, 2017 

The Husband and the Wife were married in August 1987. In January 2012, upon the Husband’s retirement from the Tampa Bay Police Department, the parties relocated from Florida to Massachusetts. Although three children were born of the marriage, only the parties’ son remained unemancipated at the time of the move to Massachusetts. When the parties physically separated in October 2014, the son continued to reside with the Husband.

The Husband filed a Complaint for Divorce and, after a two day trial, the Probate and Family Court Judge ordered as follows: the Wife pay child support to the Husband in the amount of $185.00 per week, equal division of the Wife’s two 403(b) accounts between the parties, and exclusion of the Husband’s pension from equitable distribution, instead treating the pension as a stream of income. The Wife filed the present appeal, specifically claiming that the judge improperly considered the Husband’s pension as a stream of income rather than dividing the pension as part of the marital estate.

The Appeals Court found that in treating the Husband’s pension as a stream of income, the Husband was left in a far superior financial position compared to that of the Wife. Specifically, after accounting for their respective expenses, the Husband possessed a weekly surplus of $741.00 while the Wife faced a $320.00 weekly deficit. Although the Probate and Family Court Judge attempted to achieve an equal division of the assets, the Appeals Court noted that the Wife would be unable to maintain a similar standard of living as that enjoyed during the marriage through this treatment of the Husband’s pension. Although an unequal distribution of marital assets is permitted, the judge in this instance made no findings meriting such a distribution.

The Probate and Family Court Judge additionally failed to find a material disparity in the parties’ respective opportunities for future acquisition of capital assets and income. The only reason articulated by the judge for treating the Husband’s pension as a stream of income--to relieve the Wife of an alimony obligation--was not supported by any findings, especially with regard to the Husband’s need for any alimony.

Vacated and remanded.

Warren v. Barnes
17-P-692
January 2, 2018 

Plaintiff appealed the dismissal of her modification of a 2005 Virginia decree addressing custody of her son.

The decree was entered in 2005 by consent and placed custody of the minor child with his maternal grandmother. Mother, grandmother, and son all moved to Massachusetts in 2008 and have lived here ever since. In 2014, mother filed a petition to modify the Virginia decree. Virginia declined jurisdiction. Mother filed a modification complaint in Massachusetts thereafter. The judge did not find a substantial change of material circumstances.

On review, the Appeals Court noted that the changes discussed may have constituted a material change of circumstances. However, there was no error in the judge’s decision that a change was not appropriate in this context. The judge weighed both maternal grandmother’s testimony and a letter from the son’s doctor, which stated that the child’s existing emotional problems were caused by mother’s own actions.

The judge also concluded that a custody change would not be in the son’s best interest and this was amply supported in the record. This was based on mother’s limited contact with the son over most of his life, the son’s well-being after being placed with grandmother, the son’s adverse reaction to mother’s intent to change custody, and mother’s unsettled living circumstances.

As the judge was in the best position to weight and credibility of the evidence, his findings would not be overturned absent a clear error of law or the findings having no support in the evidence. The Appeals Court discerned neither of these things.

Judgment Affirmed.

Polewarczyk v. Herbert
17-P-344
January 4, 2018 

Father appealed from the judgment of the Probate and Family Court in favor of mother on her complaint for removal.

The parties were married in 2006 in Arizona. In 2013, the parties divorced in Massachusetts. Pursuant to their separation agreement, the parties agreed that mother would have sole legal and physical custody, father would not contact or interact with the child, and that father would stay away from the child. In 2015, mother filed a complaint for removal seeking to move to New York.

On Appeal, father argued that the trial court judge erred in finding that mother had a good and sincere reason for seeking removal. The trial judge had credited the testimony of mother and of her friend that the move to New York would provide a real advantage due to the physical and emotional support of her friends and her friend’s family. Because findings of fact will not be set aside unless clearly erroneous, the Appeals Court discerned no error.

Affirmed.

Cain-Clancy v. Clancy
17-P-216
January 9, 2018 

Father appealed from a temporary order awarding child support payments in the amount of $180 per week to mother, an order that denied his motion to dismiss mother’s complaint for contempt, and a judgment that found father guilty of civil contempt and awarded attorney’s fees to mother.

In their 2003 separation agreement, the parties agreed that father would pay $360 per week to mother in child support. In September of 2015, father was awarded temporary physical custody of the minor child. In November of 2015, a judge issued temporary orders which reduced father’s child support obligations to mother to $180 per week and denied father’s request for child support. Father filed a motion for reconsideration, which was denied on May 9, 2016. In support of his ruling, the judge stated that it was the court’s belief that the dispute between the mother and father was temporary and that mother would shortly resume primary physical custody. On May 9 2016, the judge vacated the support award but declined to enter the order retroactively. The parties thereafter on May 10, 2016, entered a stipulation on their cross complaints for modification that physical custody would remain with father and mother would pay father $258 per week in child support.

On review, the Appeals Court found no abuse of discretion in the issuance of the temporary order. Given the uncertainty of the situation; and given that mother would have parenting time with the minor child, the modification did not fall outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 (2014).

In his next argument, father contended that the denial of his motion to dismiss mother’s complaint for contempt on the grounds that it lacked specificity was error. The Appeals Court disagreed. The complaint listed the orders allegedly violated and at the hearing mother testified that there was an unpaid amount of approximately $20,000. Further, mother argued that this figure included forty-nine missed payments. This was sufficiently specific to raise a question of contempt and thus the denial of father’s motion to dismiss was not erroneous.

Father argued further that his being found in civil contempt was erroneous. While the father had initiated modification proceedings, he nevertheless, unilaterally stopped making payments to the mother. The judge properly found that the fact father put the support checks into an escrow account to be immaterial. He had still flouted the November order which compelled him to provide mother with child support.
In considering the award of attorney’s fees. The court found that the fees ordered were reasonable in light of the length of the trial.

All orders and judgments affirmed.

E.S. v. C.S.
17-P-571
January 10, 2018 

Mother appealed from the issuance of a restraining order under G. L. c. 209A. On Appeal, mother argued that evidence was insufficient to meet the standard. After an incident at a basketball game, mother filed for an abuse prevention order against father, one day later, father filed for an abuse prevention order against mother. After a hearing, the judge allowed both restraining orders.

The Appeals Court noted that under G. L. c. 209A § 3, a mutual no contact order can only be entered if the court has made specific written findings of fact. The orders in question plainly qualified as mutual. The judge was therefore required to issue specific written findings, which he did not do. Thus, the order was vacated and remanded for additional findings.

Ceurvels v. Murphy
17-P-404
January 11, 2018 

Mother appealed from a judgment of the Probate and Family Court which found father not in contempt for his failure to pay child support. On appeal, mother argued that because their out-of-court agreement to reduce child support was not enforceable and father admitted to paying less than the court ordered child support payment, the judge erred by holding father not in contempt of court.

The Appeals Court agreed with mother’s initial contention that per Rosen v. Rosen, 90 Mass. App. Ct. 677, 692 (2016), a non-court approved agreement cannot constitute a defense to a contempt. However, they disagreed that father not meeting all his child support obligations compelled a finding of contempt.

While mother had established that father was in disobedience of a clear and unequivocal command, mother also bore the burden of proving a present ability to pay. Father had testified that he was unemployed and was unable to meet the financial obligations considered in his divorce agreement. Additionally, on the record before the Appeals Court, mother did not establish the extent of father’s unpaid child support, nor when support payments had not been remitted to mother. On the record before the Court of Appeals, they could not say that the trial judge abused his discretion.

Mother also argued on appeal that the judge failed to order an evidentiary hearing and this was error. However, at the time of the hearing mother did not raise any objection to the procedures employed by the judge. Thus, the issue was waived. No evidentiary hearing is required on a contempt complaint when there is no objection to the use of a more informal procedure. Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540-541 (2006).

Judgment Affirmed.

Creedon v. Comeau
17-P-841
January 11, 2018 

Mother appealed from an amended contempt judgment that found father not guilty of civil contempt for his failure to maintain a life insurance policy with the child named as a 1/3 beneficiary and ordered a replacement policy having a reduced benefit.

While mother argued that the 2006 contempt judgment (from which the life insurance policy obligation sprung) was a clear and unequivocal order, the judge could have found otherwise: the death benefit provided by the original policy varied based upon father’s pay and nothing in the original judgment specified a specific death benefit level. In addition, the 2006 contempt judgment was at least apparently superseded by a 2008 modification judgment. This increased the child support obligation but omitted any mention of father’s obligation to maintain the employer-provided life insurance policy. Notably, the stipulation also contemplated father’s imminent retirement.

On this evidence, the judge properly could have inferred that the parties in their 2008 stipulation that the parties intended to relieve father of his obligation to maintain the employer provided life insurance. Judgment affirmed.

Schoenig v. Schoenig
17-P-517
January 22, 2018 

Husband appealed from an amended judgment of modification that awarded alimony to wife. On Appeal, husband argued that (1) the judge erred in finding that the parties’ separation agreement was ambiguous; (2) the judge’s finding that the parties intended the separation agreement to merge is clearly erroneous; and (3) the judge abused her discretion in setting the amount of alimony.

Moving to husband’s first contention, the Appeals Court quickly disposed of it: “[husband’s argument] is contrary to the position that he took below. It was thus foreclosed. Fortin v. Ox-Bow Marina, Inc., 408 Mass. 310, 323 (1990).

In addressing husband’s second argument, the judge found after a trial that the language of the agreement as a whole, coupled with the language in the divorce judgment, evinced an intent for the separation agreement to merge. This finding was reviewed for clear error. The agreement itself provided that, “it was the intent of the parties that all other provisions of the agreement also merge.” The finding of the judge that the separation agreement merged into the divorce judgment was supported by the repeated mention of merger. There was no error.

Finally, husband argued that the alimony award was excessive when the judge awarded thirty percent of the gross difference of the parties’ incomes. Because the judge’s alimony award fell within the limitations of the statute it could not be said that it was plainly wrong or excessive.

Judgment Affirmed.

Weller v. Malo
17-P-360
January 26, 2018 

Father appealed from a judgment ordering child support in the amount of $2,320 per week. The judgment was reached after a trial by representation in which the parties submitted written stipulations of fact and also stipulated that the trial judge could take judicial notice of their financial statements. The two contested issues at trial were the amount of the child support and the extent that father would cover mother’s legal fees. On Appeal, father did not challenge any of the judge’s subsidiary findings as clearly erroneous. Rather, he contended that the child support award was excessive in that it was not limited to the child’s needs; in effect, father contended that the child support was so high as to be a disguised property division / alimony award.

Parties were unmarried parents who agreed to primary physical custody with mother. Mother had imputed income of approximately $118,000 per annum; with weekly needs as stated in her financial statement of approximately $1,900 per week. She additionally, had gross assets valued at approximately $182,000. Father by contrast, had gross asset valued at approximately $10.5 million, and had a gross weekly income of approximately $22,237. At the time of trial, the child was three years old and attended a private preschool that cost $7,200 per year. The judge in applying the 2013 child support guidelines found, based on the first $250,000, that the child support would be $703 dollars per week.

The decision was reviewed for an abuse of discretion regarding the child support number. Further, “where, the parties’ gross income exceeds the maximum level at which the guidelines are strictly applicable, a judge has the discretion to adjust upward from the minimum presumptive level of support” M.C. v. T.K., 463 Mass, 226, 233 (2012). On appeal, the father argued that the award was excessive because it exceeded the child’s need, apparently defined by father as the positive difference between mother’s income and expenses. The judge was not bound to consider only this “surplus.” Rather, the judge was to consider and evaluate the totality of the circumstances in determining the support obligation. Croak v. Bergeron, 67 Mass. App. Ct 750, 755 (2006). A deviation was explicitly contemplated under the guidelines when their application would, “result in a gross disparity in the standard of living between the two households, such that one household is left with an unreasonably low percentage of the combined available income.” 2013 Child Support Guidelines Section IV. Further, the trial judge properly considered that the parties’ agreement disproportionately allocated the child’s expenses to the mother, and made any contribution of father voluntary (since his agreement was required).

Judgment affirmed.

Nystrom v. Nystrom
16-P-1756
January 26, 2018 

In the first appeal on this matter, Nystrom v. Nystrom, 85 Mass. App. Ct. 1121 (2014), the Appeals Court vacated a portion of a judgment of divorce nisi which awarded rehabilitative alimony and required wife to reimburse husband for the monthly cost of her health insurance. The Appeals Court further remanded the case for findings on wife’s finance’s to determine how appropriate the order was regarding wife’s obligation regarding health insurance and alimony. On that remand, the judge entered additional findings of fact and a second amended judgment of divorce, which was again appealed by wife who argued (1) that the judge abused her discretion in awarding the alimony; (2) that the probate judge incorrectly ordered husband to obtain and maintain a separate life insurance policy naming the wife as a beneficiary for the duration of the alimony award; (3) that the judge erred in not conducting an evidentiary hearing; (4) that wife’s temporary alimony award was error; (5) the health insurance obligation was error; (6) the dismissal of wife’s complaint for modification was erroneous; and (7) that the denial of wife’s motion for the trial judge to recuse herself was an abuse of discretion.

On Appeal, wife argued that the judge abused her discretion in awarding general term / retroactive alimony below the guidelines set forth in the Alimony Reform Act. Under G. L. c. 208 § 53(a), the judge must consider several factors when setting the alimony award including but not limited to the income and employability of both parties as well as their ability to maintain the marital lifestyle. The Appeals Court again agreed with wife that the amended findings on the case did not sufficiently address the financial status and need of the parties. In her amended findings in reference to imputation of income to the wife, the judge found that wife has not used her best efforts in being unemployed. The Appeals Court disagreed with the trial judge, stating that the touchstone inquiry in attribution of income is whether a party is presently capable of earning more with reasonable effort. Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 (2017). Further, the judge’s findings did not address the factors identified in the first appeal: wife’s increased age and the amount of time she has been absent her field.

Moving on to wife’s second contention regarding life insurance, the Appeals Court found that to the extent the updated findings impacted the amount of the alimony award, the judge should consider the appropriates of the amount of life insurance ordered.

Addressing wife’s third argument, the Appeals Court did not find any error with the trial judge’s decision to not conduct an evidentiary hearing on remand. Nothing in the prior order from the Court of Appeals required it. In addition, wife failed to identify any additional evidence she would have produced if such a hearing had been permitted.

In addressing wife’s fourth argument, the Appeals Court was unpersuaded. The Alimony Reform Act has never applied to temporary alimony orders which are statutorily enabled by G. L. c208, §17. The temporary alimony statute is distinct from that created by the Reform Act and under that statute it sits within the judge’s broad discretion to make an order considering the immediate need of the applicant spouse. There was no abuse of discretion in the instant case.

Wife’s fifth argument was that the order regarding husband’s obligation to maintain life insurance did not sufficiently protect her in the event she remarried. This was speculative and not considered by the Appeals Court.

Wife’s sixth argument was that the complaint for modification in question was concerned with an extension of the original alimony award. The judge had several discussions with wife and her counsel about whether the dismissal was warranted since the judge was issuing amended findings of fact and a new judgment specifically addressing the issue of alimony. The judge had initially refused to dismiss the complaint sua sponte and the judge was explicit that the decision to dismiss the complaint was at wife’s initiative.

The Appeals Court concluded that there was no merit to wife’s seventh argument. As the determination of the judge’s recusal was within the judge’s own discretion, the Appeals Court found nothing on the record that would indicate the judge’s discretion was abused in the instant case.

While the Appeals Court noted that the amount of alimony ordered may have been appropriate, without findings that determination was impossible for the Court of Appeals to make. The general term and retroactive alimony judgment was vacated and the case was remanded to the Probate Court for findings consistent with the Appeals Court memorandum. It was in all other respects affirmed.

Intonti v. Intonti
17-P-777
January 29, 2018 

Father appealed the finding of a Probate and Family Court judge that mother was not in contempt and a judgment that awarded her attorney’s fees in the amount of $500.00.

In his complaint for contempt, father alleged that mother should be held in contempt because she failed to send him copies of their children’s college bills as required by the separation agreement. While this was contained in the agreement, the agreement went on to state that the parties had money set aside and that neither party would be obligated to pay for college until those available funds were exhausted. As those funds were yet to be exhausted, the judge found the agreement was reasonably susceptible to mother’s interpretation: that she needed not send copies of the college bills until father had been called upon to contribute to the education of the minor children.

The Appeals Court noted that, “A civil contempt finding must be supported by clear and convincing evidence of disobedience of a clear and unequivocal command. Birchall, petitioner, 454 Mass. 837, 853 (2009). The Appeals Court then reviewed for an abuse of discretion. In the instant case, given the ambiguity in the agreement, mother did not disobey a clear and unequivocal command. Thus, mother was not in contempt of court. The Appeals Court also discerned no abuse of discretion in awarding mother attorney’s fees. Judgment Affirmed.