Spring 2018: Reported Decisions

by Elizabeth Silvestri, Esq. and Lauren Galloway, Esq

Flor v. Flor, 
92 Mass App. Ct. 360
Oct. 4, 2017

Former wife filed complaint for modification of divorce, seeking an alimony award.  General term alimony was awarded and Husband appealed.  The judgment of alimony was affirmed.  Parties were divorced in 2008, agreeing to child support and Wife expressly reserved her right to seek alimony in the future.  Wife filed a modification seeking alimony based on the change in circumstances – the child’s emancipation and termination of child support.  Wife was not employed, but she was attributed a full time minimum wage salary, for which she still could not meet her expenses.  The judge ordered weekly alimony to pay her need.  Husband appealed stating the complaint should be treated as an initial complaint for alimony, not a modification.  However, the judge cited to Buckley finding where the parties initially contemplated alimony and expressly reserved her right, the complaint should be treated as a modification of that initial judgment.  The judge also cited to Chin, holding the standards for modification are those at the time the judgment entered.  Taken together, the Wife expressly reserved the right to seek alimony and the parties’ agreement entered before the alimony reform act, the judgment of indefinite alimony was affirmed.

C.R.S. v. J.M.S.
No. 16-P-1234 
December 20, 2017

On May 29, 2016, the plaintiff sought and obtained an ex-parte abuse prevention order (“ex-parte order”) against the defendant.  On May 31, 2016, a hearing after notice was held at which the defendant appeared, represented by counsel, and opposed the extension of the ex-parte order.  Both the plaintiff and the defendant testified at the hearing.  The plaintiff testified to two separate incidents of physical abuse by the defendant.  The first incident was from the previous summer when the defendant allegedly pushed the plaintiff down and pushed her against a wall.  The second incident occurred on the day that the plaintiff obtained the ex-parte order.  The plaintiff had told the defendant that she was going to leave him and take their daughter with her.  The defendant grabbed and pushed the plaintiff against a wall.  The defendant testified, denying any physical abuse but acknowledging that his relationship with the plaintiff had been stressful.  After hearing, the Lower Court Judge extended the abuse prevention order for one year (“extended order.”)  The defendant appealed from the extended order, arguing that both the issuance of the ex-parte order and the extension of same were in error.  

With regard to the extended order, the defendant argued that his actions as described by the plaintiff did not meet the level of abuse as defined by statute.  The Appeals Court disagreed, stating that the judge had properly found that the plaintiff met her burden by a preponderance of the evidence.  Specifically, the plaintiff testified to two incidents of physical assault that had occurred during the course of a stressful relationship, which was plagued with the defendant’s verbal and emotional abuse.  Consequently, the judge was entitled to draw reasonable inferences from such circumstantial evidence and could not be said to have erred in issuing the extended order.

With regard to the ex-parte order, the defendant argued that it should not have been issued.  The Appeals Court noted that the issuance of the ex-parte order was not entitled to appellate review because the defendant had the opportunity to be heard at a hearing after notice and then had the opportunity to appeal from the extension order.  The defendant did not have the right to re-litigate the issuance of the ex-parte order because that matter had become moot.  

Order affirmed.

Miller v. Miller
SJC-12298 
January 12, 2018

The parties were married in Tanzania in 2007.  In 2008, the parties had a child, who was born in Uganda.  In 2011, the parties moved to the United States.  Husband filed a Complaint for Divorce in May 2013.  Wife counterclaimed seeking sole physical custody of the child and permission to remove the child to Germany.  During the course of the divorce proceeding, the parties entered into a stipulation stating, in relevant part, that they would share custody of the child; however, the terms of the parenting schedule awarded wife with 60% of the parenting time.  Additionally, the stipulation was never incorporated into a Court Order.  After trial, the Lower Court Judge entered a judgment of divorce nisi permitting, in relevant part, wife’s removal of the child to Germany.  Husband appealed.  The Massachusetts Supreme Judicial Court (the “SJC”) transferred the case on its own motion.

The SJC affirmed the lower court’s decision stating that when a judge is determining which removal standard is applicable, the judge must first analyze the parties’ custodial arrangement and decide whether it is more akin to a shared or sole custody arrangement.  Even in situations where there is a prior custody order, the judge must look beyond the characterization of custody and evaluate the “functional responsibilities and involvement” of the parties.  If the parties have a shared custody arrangement, the judge must apply the standard established in Mason.  If the parties have a sole custody arrangement, the judge must apply the standard established in Yannas.  The SJC agreed with the Lower Court Judge’s determination that wife had sole custody of the child, and therefore the Yannas standard applied, despite the characterization in the parties’ stipulation that they shared custody.  The SJC also stated that the Lower Court Judge did not abuse her discretion in determining that removal was in the child’s best interests. 

Justice Gants wrote the concurring opinion stating that he agreed with the Lower Court Judge’s conclusion; however, he disagreed with the framework that had emerged from Yannas and Mason and the SJC’s application of same.  In his opinion, the framework should be thrown out and instead all cases shall be evaluated according to the best interests of the child. 

Sbrogna v. Sbrogna
17-P-194 
January 16, 2018

The parties were married in 1973.  On November 6, 1990, husband filed a complaint for divorce; however, there was no documentary evidence that the complaint was served on wife.  On June 27, 1994, the parties filed a joint motion to amend the complaint for divorce, a joint petition for divorce, and a separation agreement.  The motion to amend was allowed and a judgment of divorce nisi entered on the parties' joint petition.  The parties' separation agreement merged into the judgment of divorce nisi.  On October 28, 1994, the judgment of divorce absolute entered.

On September 15, 2016, husband filed a complaint for modification seeking to modify his alimony obligation.  Specifically, he alleged that for alimony purposes, the marriage ended as of the filing date of his complaint for divorce; therefore, husband’s alimony obligation was subject to modification because the parties were married for a period of more than fifteen years but less than twenty years.  Wife filed a motion to dismiss, which was allowed.  Husband appealed.

The Appeals Court affirmed the lower court's dismissal of husband's complaint for modification.  The Appeals Court stated that under the alimony reform act, the length of the marriage for alimony purposes is defined as the number of months between the date of the marriage and the date of service of a complaint or petition for divorce.  The Appeals Court concluded that it is the complaint or petition upon which the judgment of divorce absolute enters that ends the marriage for alimony purposes.  Consequently, husband was not entitled to the durational limits provided for in the alimony reform act and his complaint for modification was properly denied.

Judgment affirmed.

Adoption of Garret
17-P-79 
January 22, 2018

The parties were married in 2011.  At the time of their marriage, father had custody of two children from a prior relationship and mother had custody of two children from a prior relationship.  The parties also had one child together.  Shortly after their marriage, one of father's children from his prior relationship was sent to live with the paternal grandmother for a period of ten months.  The remaining children lived with father and mother in Massachusetts up and until August 2012.

In August 2012, one of father's children from his previous relationship ran away (the "Child.")  She was later found and brought to the hospital where it was determined that she had numerous injuries.  The Child stated that father caused her injuries.  Subsequently, the five children, all of whom were now in the parties' care, were removed from the home.  The Department of Children and Families ("DCF") filed care and protection petitions.  A termination trial was held and the judge found that parties were unfit to parent the children.  Additionally, the judge entered a judgment that: a) terminated mother's parental rights to one of her children from a prior relationship as well as the child she shared with father; b) terminated father's parental rights to his two children from a prior relationship, one of whom was placed in the custody of the maternal grandmother; c) terminated father’s parental rights to the child he shared with mother; d) left visitation between mother and father's child in the custody of the maternal grandmother to the discretion of DCF; e) declined to order visitation between said child and father; and f) declined to order post-termination sibling visitation.  Father, mother, and three of the children appealed.

The Appeals Court affirmed the decrees.  In regard to the Lower Court Judge's finding that mother unfit, the Appeals Court noted that there was an abundance of evidence that the other children knew of and were affected by the abuse of the Child, thereby suffering a “grievous kind of harm.”  Additionally, it was demonstrated at trial that mother conspired with father to intentionally deny the Child medical treatment for the injuries sustained from father’s abuse, failed to benefit from the services set forth in DCF’s service plan, and had not resolved her parenting deficiencies since she refused to recognize her role in the Child's abuse, aligned herself with the Child's abuser, and hid the abuse.  In regard to the Lower Court Judge's finding that the termination of the mother's parental rights were in the best interests of the children, the Appeals Court stated that it was clear from the record that the Lower Court Judge did not abuse her discretion.

On appeal, mother and father raised issues related to the child that was placed in the custody of the maternal grandmother.  Mother argued that she should have received custody of said child.  The Appeals Court disagreed stating it was in the best interests of said child to be placed in the custody of the maternal grandmother with whom he had previously lived for an extended period of time.  Further, mother argued that she should have been deemed said child's de facto parent and been awarded visitation.  The Appeals Court disagreed stating that mother did not provide said child with the nurturing bond necessary to establish herself as his de facto parent.  Father argued that the Lower Court Judge should have entered ordered post-termination visitation.  The Appeals Court disagreed noting that father and said child did not have a significant relationship.

Lastly, in regard to post-termination sibling visitation, the Appeals Court stated that pursuant to statute, either the judge or DCF may manage sibling visitation.  In the lower court case, evidence was presented that DCF was managing sibling visitation.  Consequently, the Lower Court Judge did not err in failing to order sibling visitation.

Decrees affirmed.