FALL 2018: 1:28 Decisions

by Ethan Rittershaus, Esq., Laurel Spallone, Esq., Elizabeth Hegner, Esq., Jordana Kershner, Esq., and Lauren Galloway, Esq.

McKnight v. Fischer
16-P-1574
February 6, 2018

Wife appealed from a judgment of divorce nisi, challenging the portions of the judgment relating to legal custody, parenting time, and attorney’s fees.

The parties were married in 2005 and had one child together. In April, 2014, wife filed a complaint for divorce. In August, 2014, a Guardian ad litem (“GAL”) was appointed to investigate, evaluate, and prepare a report related to the best interest of the child vis-a-vis parenting time and custody. On August 5th, 2015, husband did not appear for a pretrial conference and it was ordered to immediate trial. During this trial, the wife testified and the GAL report was entered as an exhibit. Thereafter, wife was instructed to submit a proposed judgment, which she did. Wife’s proposed judgment requested sole legal custody with supervised parenting time for husband, $399 per week in support, along with 20% of husband’s bonus income, and a lump sum of $15,000 for attorney’s fees.

On August 19th, 2015, husband filed a motion to vacate the judgment. On September 18th, 2015, the husband’s request to vacate was denied on the basis that judgment had not yet entered; however, husband was granted his motion for a new trial on the sole contested issue of legal custody. In December, 2015, wife filed a complaint for contempt alleging that husband was in arrears in the amount of $13,172.

After the second trial, which also consolidated wife’s contempt complaint, the judge issued a divorce judgment granting joint legal custody subject to wife’s final decisional authority, sole physical custody to wife, unsupervised parenting time every other weekend and Wednesday nights to father. Wife then filed a motion to alter and amend the divorce judgment pursuant to Massachusetts Rules of Domestic Relations Procedure 59. The motion was denied and this appeal followed.

On Appeal, the wife argued that the judge committed error in ordering a new trial on the issue of legal custody, improperly modified the previously adjudicated issues of parenting time and support, abused his discretion in awarding joint legal custody and unsupervised parenting time to Father, and abused his discretion in denying wife’s motion for attorney’s fees.

Moving first to the issue of the judge’s grant of a new trial, the Appeals Court noted that a judge may grant a new trial, “on all or part of the issues for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the Commonwealth….and may take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions.” Mass.R.Dom.Rel.P. 59 (a). This decision is within the Judge’s discretion. Dominick v. Dominick, 18 Mass. App. Ct. 85, 90 (1984). Because at the first trial the judge only heard evidence which consisted of a GAL report and wife’s testimony that she did not communicate with husband on a consistent basis. Given the limited evidentiary basis upon which the original decision was rendered, it was appropriate and necessary to take new evidence for the purpose of determining the child’s best interest.

The Appeals Court next turned to wife’s contentions about the judge’s, “improper” modification of previously adjudicated issues. The Appeals Court first noted that, there is “a traditional policy against default judgments in domestic relations cases.” Houston v. Houston, 64 Mass. App. Ct. 535 (2005). The husband’s failure to attend the first pretrial conference did not obligate the judge to adopt the wife’s proposed judgment in its entirety and indeed, such practice is discouraged. Finally, as the judgment had not yet entered (see Mass.R.Dom.Rel.P. 58(a)), none of the issues had in fact been adjudicated.

There was also no error in the judge’s consideration of evidence from the second trial when deciding the issues relative to parenting time and support. While, it is true that the judge’s order limited the second trial to the sole issue of legal custody; a judge is permitted to consider and issue that has been tried with the, “implied consent of the parties” Mass.R.Dom.Rel.P 15(b). In considering these issues precedent has been consistently focused on the elements of, “surprise and unfairness.” Slade v. Slade, 43 Mass. App. Ct. 376, 378 (1997). In the instant case, at no point did the wife object to the expanded scope of the trial. As a result, there was no error.

In moving on to wife’s contentions about the grant of shared legal custody. The Appeals Court noted that shared legal custody is, “[the] continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional development.” G.L. c. 208, § 31. In the instant case, the judge credited the GAL’s testimony that parties could not co-parent effectively and that Husband has a significant substance abuse history that interfered with his ability to co-parent. The judge further credited wife’s testimony that husband had been physically and emotionally abusive to her. In light of the judge’s findings, the Appeals Court found that the judge’s decision to award shared legal custody was not adequately supported. Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998).

The Appeals Court continued to register the same concerns with respect to the judge’s subsidiary findings and his decision concerning parenting time: the judge had found that wife was legitimately concerned about the husband’s alcohol and/or drug consumption around the child. The judge credited the wife’s testimony of domestic violence. In short, the judge’s subsidiary findings did not support his determination to grant the parties joint legal custody and father unsupervised parenting time. Additionally, the judge did not appear to consider husband’s ability to appropriately care for the child, nor the past abuse to wife as a factor weighing against best interest. See. G.L. c. 208, § 31A. The matter was remanded for additional findings explaining the judge’s rationale.

Finally, the Appeals Court considered the judge’s denial of wife’s motion for attorney’s fees without providing a basis for that decision. A judge has broad discretion in making determinations regarding attorney’s fees. Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996). Because there was no rationale attached to his decision, the issue had to be remanded.

The portions of the judgment granting joint legal custody, ordering unsupervised parenting time, and denying the wife’s motion for attorney’s fees were vacated and remanded for further proceedings.


S.W v. R.D.
17-P-206
February 14, 2018

Father, appealed from a modification judgment of the Probate and Family Court, which ordered him to pay current child support, make retroactive child support payments to mother, and awarded attorney’s fees and costs to mother. On Appeal, father challenged the sufficiency of the notice of the hearing at which judgment entered and argued that child support and attorney’s fees were not warranted.

The parties were not married and had four children. On May 2, 2005, a judgment entered requiring father to pay support of $235 per week. The parties thereafter reconciled and wife filed a complaint for modification seeking dismissal of the support judgment. The support judgment was dismissed March 5, 2007. The father continued to pay support until September 2014, prior to the parties’ youngest daughters 18th birthday. On January 15th, 2015, mother filed a complaint for modification seeking to reestablish father’s obligation to pay support for their two youngest daughters. Father was served at his last and usual abode on Feb 10th, 2015 and a pretrial conference was scheduled for September 2015. When the father failed to appear, the pretrial conference was rescheduled for January 27, 2016. Father again failed to appear and by an order dated January 28, 2016, the pretrial was again rescheduled, this time to June, 2016. In part the pretrial order stated that if father did not attend his obligation may be determined in his absence based upon his 2015 earned income. Father did not attend the June hearing and the judge thereafter entered a support order for $333 per week and made the order retroactive to February 2015 resulting in an arrears order of approximately $23,310. The judge also ordered attorney’s fees in the amount of $3,500 dollars.

Roughly three weeks later, the father filed a motion to vacate the judgment asserting without a supporting affidavit that he did not receive notice of the hearing that had been scheduled and that the amount of income imputed was incorrect because his payment of health insurance was not considered and that he had other support obligations. A hearing on this motion was held July 13th, 2016. In support of his motion father argued that one letter from the court was returned and several instances of his name being misspelled on court notices. This motion was denied on two grounds, the husband had not properly complied with Standing Order 2-99 and father had failed to provide sufficient evidence of a lack of notice. The letter returned was from 2015. None of the other letters from the court were returned and moreover, the address they were sent to was stated by the recipient as accurate.

Turning first to father’s argument regarding a lack of notice, the Appeals Court agreed with the trial judge: father never provided an affidavit to support his claim. Finally, the record supported a finding that the father received correspondence from the mother’s attorney dated February 2nd, 2016, to which the pretrial conference notices and the January 28th, 2016, order was attached.

Second, the Appeals Court examined father’s contentions relative to the amount of child support. As no evidence of any of father’s contribution, and no signed financial statement was before the trial judge. The judge properly used a statement of his past 2015 earned income to calculate his child support obligations. The Appeals Court would not second guess the judge where father, “failed to provide the judge with evidence from which she might have arrived at a different figure.” M.C v. T.K, 463 Mass. 266, 240 (2016).

Finally the judge’s decision to award attorney’s fees was supported on the record and therefore, there was no abuse of discretion.

Judgment affirmed along with mother’s motion for appellate attorney’s fees.


A.H. v. D.C.
16-p-1551
February 16, 2018

Defendant appealed from an order entered September 2, 2016, denying her third request for a new hearing seeking to vacate an extended abuse prevention order issued after a hearing on July 19th, 2012. On Appeal, defendant argued that the judge committed six errors: (1) service of the order was invalid; (2) she was denied a full hearing on the merits violating her Due Process rights; (3) the judge failed to confirm the nonexistence of a Pennsylvania protective order; (4) the judge misapplied the standard of proof; (5) extending the order without the defendant present was error; and (6) extending the order for five years was improper as it exceeded the one year maximum for the initial order.

On June 21, 2012 an ex parte order issued in District Court against the defendant, a Pennsylvania resident, ordering her not to abuse the plaintiff, and to stay 110 yards away. The plaintiff alleged that the defendant, her mother, had been physically and verbally abusive throughout the plaintiff’s years in high school, plaintiff also stated that the defendant had made repeated efforts to contact the plaintiff. A hearing after notice was scheduled for July 5, 2012, and because of uncertainty regarding service of process, the hearing was again continued until July 19th, 2012. At the first hearing after notice, the defendant was not present. The judge thereafter extended the order for five years. On Aug 27, 2012, and October 21, 2013, defendant filed motions for a “new trial,” which were both denied. On August 19, 2016, the motion for a new trial that is the subject of this appeal was filed arguing that service of the order was improper, that the transcript of the July 19, 2012 hearing was unavailable, and that the plaintiff had not established personal jurisdiction. This motion was denied and the defendant appealed.

The Appeals Court first noted that in order to obtain an extension of an abuse prevention order, the plaintiff must prove by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of abuse as denied in G.L. c. 209A. In the instant case, the most relevant question was whether or not the plaintiff had a reasonable fear of imminent serious physical harm. The Appeals Court addressed defendant’s arguments in turn.

Service:

Under G.L. c. 209A, §7 the court is charged with transmitting the order to the appropriate law enforcement agency to serve on the defendant. In the instant case, the Court sent appropriate notice. Personal service is not required provided that the following due process considerations are met: notice of the proceedings was received, has been given the opportunity to be heard at a meaningful time and place, and has received fair notice of what the order prohibits. Commonwealth v. Welch, 58 Mass App. Ct. 408, 409 (2003). Pursuant to the testimony heard, the Pennsylvania sheriff had notified the defendant via telephone of the existence of the order, and the defendant’s former husband had personally provided her with a copy of the order.

Full Hearing:

The defendant had also been provided with a meaningful opportunity to be heard: On August 27, 2012 the defendant had appeared with counsel, the judge heard testimony from each party and denied the motion to vacate. In the instant case after having two other hearings, it was not an abuse of discretion for the judge to deny the motion with no additional evidence to be heard.

Protective Order:

The Defendant did not present evidence establishing as argued in her appeal that the judge declined to conduct, or even should have conducted, a search of the Statewide Domestic Violence record keeping system before he considered the initial order. Defendant contended that plaintiff had argued that there was an extant prior protective order however the record did not contain any indication of that fact. Plaintiff had indicated on the initial application for the restraining order that there was a pending criminal harassment case.

Standard for the Issuance of the Order:

The Appeals Court flatly disagreed with defendant’s assertion that the standard for the issuance of the order was improperly applied. While the plaintiff had testified to past abuse, that was not the sole basis for the issuance of the order. The defendant, one day prior to the hearing, had contacted her previous employer, and had harassed her after her graduation, as well as continuing to attempt to contact her on social media. Moreover, the defendant’s motion to vacate an order is not a motion to reconsider the entry of a final order, nor does it present an opportunity to challenge the underlying basis for the extant order. Rather, the defendant must show that there was a significant change in circumstances since the entry of the order that justifies its termination. Macdonald v. Caruso, 467 Mass. 382, 388 (2014).

Issuance of the Order without the Presence of the Defendant:

Again the Appeals Court flatly disagreed with defendant’s contentions. At the hearing in question, the judge determined, based upon the plaintiff’s testimony, that the defendant had actual knowledge of the existing order. That finding was in and itself sufficient.

The Extension of the Initial order for five years:

Here, the Appeals Court noted that defendant was correct, in extending an initial order at the first hearing after notice, under, G.L. c. 209A, § 3. The maximum period of available relief is one year. However, this objection was not raised by the defendant at the time of any of her three hearings, or at any time during the five year period of the order. The issue was deemed waived and in any event, was now moot.

All District Court orders affirmed.


K.O. v. J.S.
17-P-583
February 20, 2018

Plaintiff appealed from the denial of her application for an abuse prevention order. On Appeal, the plaintiff argued that the judge failed to apply the proper standard of proof as outlined in Callahan v Callahan, 85 Mass. App. Ct. 369 (2014).

On January 27, 2017, plaintiff applied for an ex parte abuse prevention order. The judge did not issue the order but scheduled a hearing after notice. Three days later both parties appeared with counsel before a different judge.

Plaintiff testified that both parties had met while working in the same office in Washington, DC. They began a short relationship. Plaintiff acknowledged that she had had no contact with the defendant since their relationship ended in June, 2016. However, she explained that she believed the defendant would be transferring to the college she was attending. She stated that she was afraid of him due to actions that took place during the relationship. She also believed that the defendant would be living in the same city again.

In plaintiff’s supporting affidavit she identified two incidences of abuse: (1) during intercourse defendant had bit her lip giving her a bruise. (2) three days later, also during intercourse, defendant had choked her.

The defendant also testified that their relationship had lasted little more than a week. He denied that he had cause plaintiff any physical harm. He also offered into evidence text messages from the plaintiff that had been sent three days after the second incident. He had met with the plaintiff and explained that he did not want to enter a relationship with her and wanted to call it off as soon as possible. He had ended the relationship due to ancillary issues and did not intend to transfer to the plaintiff’s school. After hearing the testimony, the judge concluded that the plaintiff’s fear was not reasonable under the circumstances and declined to issue the restraining order. The judge specifically delineated the case from Callahan v. Callahan, because this was an initial application as opposed to an extension.

The Appeals Court first noted that whether in seeking an initial abuse prevention order or a later extension, the burden is on the plaintiff to establish facts justifying the issuance, or continuance by a preponderance of the evidence. Id. at 372. In accomplishing this goal, the plaintiff must prove that the defendant has caused or has attempted to cause physical harm, committed sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm. MacDonald v. Caruso, 467 Mass. 743,736 (2014). In making this determination, a judge has broad discretion and can properly take into account the history of the parties’ relationship. Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009). In the instant case, unlike in Callahan, the judge had found that plaintiff’s allegations of physical abuse were not credible: she had sought the plaintiff out after the abuse occurred and the sexual contact in question was found to be consensual. Thus, Callahan was inapposite.

Because the judge’s findings hinged on credibility assessments they were not to be disturbed on appeal. Commonwealth v. Boucher, 438 Mass. 274, 275-276 (2002). Order affirmed.


Hernandez-Castro v. O’Neil
17-P-624
February 21, 2018

Mother appealed from a judgment of the probate and family court that reduced the father’s weekly child support obligation from $200 to $125 following a pretrial hearing.

The parties were divorced in August of 2013, and pursuant to that judgment, which incorporated the parties’ separation agreement, the father would pay $200 in weekly child support. In November of 2015, the father filed a modification pursuant to Standing Order 3-11, with a motion for temporary orders, requesting a reduction in child support. A hearing was set down for December 22, 2015. Father’s motion for temporary orders was denied without prejudice at this time and the matter was consolidated for a review hearing on June 29th, 2016. Following a pre-trial conference, the judge reduced the child support from $200 to $125.

Mother argued on appeal that the modification judgment was in error because she did not receive adequate notice that the judge intended to treat the pretrial conference as a trial and this deprived mother of her right to Due Process.

The Appeals Court first noted that, “Due Process fundamentally requires notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Spenlinhauer v. Spencer Press, Inc., 81 Mass. App. Ct. 56, 65 (2011). Whether a case should proceed to trial is within the discretion of the judge. However, the parties must receive adequate notice of the trial to satisfy due process requirements. Adoption of Zev, 73 Mass. App. Ct. 905, 906 (2009). In the instant case, the parties were not informed of the potential for the case to go to immediate trial until June 29, 2016. Moreover, on that day, the judge’s conduct at the hearing in question did not indicate that the matter was being treated as an evidentiary hearing. As a result, the Appeals Court could not conclude that mother had a meaningful opportunity to be heard with respect to father’s request for a reduction in support. As a result the judgment was vacated and remanded to the Probate and Family Court.


M.K. v. D.K. 
17-P-788 
February 22, 2018

Defendant appealed from the issuance of an abuse prevention order entered after notice on March 12, 2017 and its one year extension by a different judge. On appeal, defendant argued that plaintiff did not show that she was in a reasonable apprehension of imminent serious harm.

Plaintiff initially had received an ex parte restraining order on or about March 3, 2017. Plaintiff and defendant were married for 11 years. Plaintiff had recently informed defendant that she was unhappy in their marriage and they were attending couples counseling. Plaintiff testified that the defendant was becoming increasing erratic and paranoid. He began searching through her telephone, and personal effects and accused plaintiff of cheating on him.

After a phone conversation, defendant followed plaintiff to her job in Holyoake. Frightened by his behavior, plaintiff attempted to phone security to escort her into the building.

The plaintiff testified that this incident, combined with the defendant’s recent escalating conduct caused her to fear for her safety. The defendant had been verbally abusive calling her names in front of her family. Several years before he had picked up the family dog by the neck and punched it in the head after it scratched the paint on his truck. About a year prior to the application for the restraining order during an argument the plaintiff had punched a hole in the sheetrock. She was also afraid because the defendant owned more than fifty guns. Although, there was no evidence he had ever misused or threatened her with a gun.

The Appeals Court first noted that the issuance of a restraining order is reviewed for an abuse of discretion or other error of law. E.C.O. v. Compton, 464. Mass. 558, 561-562 (2013).

Subsection b of G. L. c. 209A, §1, closely approximates the common-law description of the crime of assault.” Carroll v. Kartell, 56. Mass. App. Ct. 83, 85 (2002). In the instant case, the judge did not abuse his discretion in finding that the defendant’s escalating conduct toward the plaintiff culminating with the incident on March, caused the plaintiff to reasonably fear imminent serious harm.

The plaintiff testified credibly to the violent episodes leading up to her decision to file for divorce. The defendant’s behavior had become increasingly erratic in the time leading up to the filing of the initial application for the 209A order. Taken as a whole, “The Defendant’s behavior combined to create a picture of a volatile situation in which, the possibility of physical abuse was present.” Commonwealth v. Gordon, 407 Mass. 340, 350 (1990).

The plaintiff did not describe mere “[g]eneralized apprehension, nervousness, feeling aggravated or hassled,” Woolridge v. Hickey, 45 Mass. App. Ct. 637, 639, (1998), but rather pointed to a pattern of escalating conduct and a specific instance that now placed her in imminent fear of serious physical harm. Her fear, when viewed in light of the "totality of the circumstances of the parties’ relationship,” Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005), was objectively reasonable.

Issuance of abuse prevention order was affirmed.


Fabrizi v. Fabrizi
16-P-1629
February 23, 2018

Defendant husband appealed from a Probate and Family Court amended judgment of divorce nisi. On Appeal, husband argued that the judge abused his discretion by proceeding to trial on the date when the case was scheduled for a pretrial conference, in denying his motion requesting that his former wife pay his attorney’s fees, and the division of assets.

On January 7, 2016 a Notice and Order was sent out scheduling the pretrial conference on July 20, 2016. A settlement meeting was ordered. The order also stated that the court may order the case to immediate trial on the date of the pretrial if the court determines during the conference that one party will not present a case.

A settlement meeting was not held, nor did husband file the required pretrial memorandum. The parties met with a conciliator at the courthouse. The meeting became fraught and husband walked out of the mediation room and toward the elevators. At the elevators the clerk reminded husband that he needed to appear. Husband said that was fine and left the courthouse. The judge was informed of the circumstances and held a brief trial.

The Appeals Court found that the trial judge did not abuse his discretion by ordering the case to an immediate trial. Husband was aware that the case would proceed in his absence and left knowing full well of the consequences of that decision. The Appeals Court found no abuse of discretion.

Turning to husband’s contention regarding the denial of his motion for attorney’s fees, the Appeals Court found the argument meritless. There were no facts or circumstances eluded by husband that would permit the Appeals Court to conclude the judge abused his discretion by denying the request. Rather, the husband argued that Supplemental Rule of the Probate and Family Court 406 should be revised or repealed. There was no basis for the Appeals Court to do either of these things.

Finally, the Appeals Court turned to husband’s argument regarding his objection to the division of assets. Husband argued that the judge erred by awarding wife certain retirement funds earned by wife over the course of the marriage; and second, he argued that the judge had erred in disposing of the marital home in taking into account his withdrawal of $150,000 in funds from the equity in that house.

The Appeals Court first noted that, “In a divorce action, a judge must consider the relevant factors outlined in G. L. c. 208, §34, when dividing marital property. The division must be an honest exercise of judicial discretion.” Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33, 36 (2015). In the instant case, the Appeals Court did not find any error: the wife was entitled to retain the modest retirement funds she had earned. She was the sole contributor to the funds in question and they were held in her name only. The Appeals Court went on to note that the judge’s division of the marital home was fair and reasonable. Husband’s contentions notwithstanding, the judge was not provided with any evidence regarding the nature and use of the funds in question.

The amended judgment was affirmed.


Qin v. Liu
17-P-302
March 1, 2018

Wife appealed from a judgment of the Probate and Family Court dismissing her complaint for contempt for non-payment of child support against defendant Husband. The complaint was dismissed sua sponte on the grounds that the Massachusetts Probate and Family Court did not have personal jurisdiction over the defendant.

The parties were divorced in New Hampshire in 2012. Pursuant to that judgment, wife was awarded physical custody of the parties’ two children and the husband was ordered to pay $800.00 per month in child support. Thereafter, husband stopped paying support and vanished; wife moved to Massachusetts with the children.

After finding husband, who was located in South Carolina, wife commenced an action in the Probate and Family Court to enforce the New Hampshire judgment in Massachusetts. The husband was thereafter served in South Carolina.

Husband did not appear in Massachusetts, but he did negotiate with counsel for the wife for approximately eighteen months in an effort to resolve the case. During that time he assented to the wife’s motions to continue the case. When the negotiations failed, a hearing was scheduled. Via a letter to the judge, the husband acknowledged his support obligation but explained that he was in arrears due to unanticipated financial difficulties.

On April 8, 2016, the judge dismissed the complaint sua sponte for lack of personal jurisdiction. Wife filed a motion for relief from judgment on May 5, 2016. The judge denied this motion, reasoning that the court does not find that the husband voluntarily submitted himself to Massachusetts for personal jurisdiction.

The Appeals Court reviewed the question of personal jurisdiction de novo, noting that, “In order for a court to exercise personal jurisdiction over a defendant, the assertion of jurisdiction must be both authorized by statute and consisted with due process.” I.S.H. v. M.D.B., 83 Mass. App. Ct., 553, 561 (2013). At the time Husband was served with the complaint in South Carolina, the Uniform Interstate Family Support Act provided that:

“In a proceeding to…enforce…a support order…a tribunal of the Commonwealth may exercise personal jurisdiction over a nonresident individual…if…the individual submits to the jurisdiction of the commonwealth by consent, by entering a general appearance, or by filing a responsive document heaving the effect of waving any contested personal jurisdiction.” G.L. c. 209D, §2-201(2).

In the instant case, husband did not submit to the jurisdiction of the Massachusetts Probate and Family Court by explicit consent, nor did he enter a general appearance. However, the Appeals Court found that the letter sent to the judge was a responsive document in which he effectively waived any jurisdictional argument by failing to raise it.

The husband’s letter referenced the docket number of the contempt action and was addressed to the judge. In that letter he also raised substantive defenses in the form of his inability to pay the current obligation due to unseen financial difficulty. It was clear from the content of the letter that the husband wanted the judge to consider it in response to the wife’s complaint for contempt. The letter was therefore a responsive document within the meaning of G.L. c. 209D, §2-201(2).

As a result, the final question before the Appeals Court was whether Husband had waived his defense of personal jurisdiction. A defense based upon personal jurisdiction, “may be waived by conduct, express submission, or extended inaction.” Lamarche v. Lamarche, 65 Mass. App. Ct. 887, 889 (2006). In the instant case, there was no reference to a jurisdictional defense, even liberally construing husband’s letter due to the fact that husband was pro se. Husband had communicated directly with the judge in advance of the hearing, he asserted equitable defenses, and had made no jurisdictional challenge. The defense of personal jurisdiction was therefore waived.

Judgment Reversed.


Young v. St. Hilaire
16-P-1465
March 2, 2018

Defendant, appealed from a modification judgment of the Probate and Family Court granting the plaintiff, Dana Young, sole physical and legal custody of the parties’ minor child. On appeal, defendant argued that the judge abused her discretion by relying on the reports of the Guardians ad litem (“GAL”) introduced into evidence, that the judge erred in concluding that there was a change in circumstances sufficient to support the decision to grant the plaintiff sole custody, the judge’s subsidiary factual findings were unsupported by the evidence offered at trial, defendant was prejudiced by the trial judge’s questioning of a witness at trial, and that the judge’s conclusions of law were unsatisfactory.

Defendant gave birth to the minor child in October, 2005. The plaintiff is the minor child’s father. In March 2009, the plaintiff and defendant entered into an agreement granting sole legal and physical custody of David to the defendant. On Aug 20, 2010 the plaintiff filed a complaint for modification seeking sole legal and physical custody. In July, 2014, the parties stipulated that the plaintiff would have sole legal and physical custody of the child, and further stipulated that the GALs would continue in their role and establish a treatment team to deal with allegations that the defendant suffered from a condition known as, “Munchausen by Proxy.” Since that stipulation, the minor child has resided with father. After a trial on the merits, a modification judgment entered granted father sole legal and physical custody.

The Appeals Court first turned to the argument raised by mother that the GALs created a treatment plan in derogation of the professional standards set forth in §1.4 of the Probate and Family Court standards for category E guardians ad litem/evaluators. These standards state that the GAL shall not provide professional services to any party or child during the evaluation. Of note, shortly after their appointment, the GALs began to develop visitation agreements between the plaintiff and the defendant.

The defendant argued that the trial judge abused her discretion by crediting the testimony and reports of GALs on the basis that the trial judge also found that the GALs exceeded the scope of their appointment. However, the trial judge’s findings made clear that she considered the fact that the GALs, “veered off course” by attempting to coordinate visitation arrangements between the plaintiff and the defendant. The trial judge was in the best position to determine what effect, if any, this had on the credibility of the GALs or the validity of their reports. Custody of Eleanor, 414 Mass. 495, 499 (1993). The judge did not abuse her discretion by determining the ultimate conclusions relating to child custody and visitation made by the GALs were sound. See L.L. v. Commonwealth, 470 Mass. 169, 185 (2014).

The defendant argued further that it was error to deny her motion to strike the GAL reports and their concomitant testimony. Her motion to strike was based on the fact that the reports contained information that predated the custody judgment and that no advance notice was given that the plaintiff wished to include the reports in the exhibit books submitted at trial. This was reviewed for an abuse of discretion as the alleged error was preserved on the record. The Appeals Court first noted that the judge has the discretion to consider, “the widest range of permissible evidence, including the reports and testimony of a court-appointed investigator or G. A. L.,” Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010). There was no abuse of discretion. Even if excluded from the exhibit books, the reports inclusion should have been anticipated.

The defendant went on to argue that the trial judge erred in concluding that there was a material and substantial change in circumstances. The trial judge’s findings of fact, supported her determination: since the entry of the initial judgment, the defendant alienated members of her family, moved to New Hampshire without a court order, frequently moved her residence, transferred the child out of his school midway through the year, exhibited behavior indicating that the allegations of Munchausen by Proxy were true, and opted to not participate in treatment related to Munchausen by Proxy syndrome.

Finally, defendant argued that she had been prejudiced by the trial judge’s questioning of a witness about the possibility that she suffered from Munchausen by proxy. The Appeals Court noted that, “a judge has the right and, in some circumstances, the duty to participate in the examination of a witness.” Adoption of Seth, 29 Mass. App. Ct. 343, 351. The questioning was for purposes of clarifying earlier testimony; and was neither excessive, nor did it reflect bias or impartiality. As a result there was no error.

Judgment affirmed.


Bielkus v. Strydom 
17-P-336 
March 6, 2018

Wife appealed from a corrected consolidated judgment on the complaint of husband to modify his alimony obligation and on her complaint for contempt.

On July 31, 2009, a judge of the Probate and Family Court issued a judgment of divorce nisi incorporating the parties’ separation agreement. On October 26, 2009, the judge issued a supplemental judgment that decided the remaining contested issues, including the husband’s child support and alimony obligations. The judge used husband’s base salary of $184,000 and attributed no income to wife, the judge ordered the husband to pay the wife $865 per week for the support of the couple’s two children. The judge additionally ordered the husband to pay alimony in the amount of $200 per week, plus thirty percent of any additional compensation above his base salary.

On March 23, 2010, husband filed a complaint for modification on the grounds that the wife was employed and making substantial income. Wife had become a partner and an instructor at her family’s yoga business. On Nov 2, 2012, the judge issued a temporary order reducing the husband’s weekly alimony obligation to $150 and suspending husband’s obligation to pay a percentage of his additional compensation.

On October 30, 2013, the husband amended his complaint for modification to include a request to terminate alimony payments based on the durational limits set forth in the Alimony Reform Act. See G.L. c. 208, § 49(b)(2). By stipulation, the parties agreed to suspend the husband’s alimony obligation as of February 28, 2015. On April 8, 2015, wife filed a complaint for contempt based on the husband’s failure to pay his portion of the children’s extracurricular and orthodontia expenses.

On June 27, 2016, after a trial on the husband’s amended complaint for modification and the wife’s complaint for contempt, a third judge issued the corrected consolidated judgment that was the subject of this appeal. The judge terminated the husband’s obligation to pay thirty percent of additional compensation as of November 2, 2012, and terminated the weekly alimony of $150 as of February 28, 2015, based on the Alimony Reform Act’s durational limits — effectively affirming the second judge’s temporary order and the parties’ stipulation concerning the durational limit.

The trial judge also recalculated the husband’s child support obligation. Taking into account the increased expenses for the children the judge deviated upwards, changing the child support order to $925 per week. In addition, the judge ordered a one-time lump sum payment of $1,260 to make up the difference between the original support order and the new order. The judge then eliminated the provision requiring husband to contribute to 50% of the children’s extracurricular expenses and dismissed wife’s complaint for contempt.

On Appeal, wife first argued that there was no substantial material change of circumstances to warrant the modification. The Appeals Court flatly disagreed; when the initial judgment had entered, wife had no income. By late 2012, she was involved in her family’s business and was receiving income therefrom. The parties stipulated that she was making approximately $20,000 per year. While the trial judge found that this was insignificant to warrant modification of the child support, the change was sufficient to modify the alimony order.

Wife next argued that the trial judge erred in recalculating the child support because he did not incorporate the first provision that if husband was no longer required to pay alimony the thirty percent of his bonus income would accrue as child support. The judge correctly considered the husband’s entire income. The parties total income making a favorable assumption toward wife, lead to a combined available amount of $263,158. As the judge had actually increased the total child support order the Appeals Court discerned no error.

Finally, the wife argued that the husband should have been held in contempt for failing to pay his share of the children’s orthodontia expenses and the gymnastic classes as required by their separation agreement. The Appeals Court first noted that in order for a party to be held in contempt there must be clear and undoubted disobedience of a clear and unequivocal command. Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540 (2006). In the instant case, the judge did not abuse his discretion in dismissing the complaint and fashioning a new remedy for the parties which increased the husband’s child support obligation.


C.E.M. v. J.A.L. 
17-P-797 
March 6, 2018

The defendant appealed from a District Court order which extended for one year an initial ex parte abuse prevention order. The defendant, on appeal, argued that at the evidentiary hearing at which both parties testified, the wife failed to introduce sufficient evidence to support the extension of the order.

Because the judge made no findings, the Appeals Court considered, “whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed abuse” within the meaning of 209A. Gasman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

In the instant case, the parties had been married for three and a half years and the plaintiff had filed for divorce in August, 2016. The plaintiff sought the 209A order in early February, 2017. Plaintiff’s affidavit recited that the defendant had been physically abusive to her while intoxicated and that he had been sending threatening electronic mail messages and texts for months in addition to threatening her safety. During the hearing, plaintiff testified that defendant had been emotionally and physically abusive during their marriage. After she filed for divorce, he sent her, “thousands” of text messages, emails, and phone calls. The plaintiff thereafter read some of the text messages into the record including but not limited to: “You better tell your buddies I want my punching bag back or they will be my punching bag. That was mine;” and, “Rage. I’m so fucking mad anyone in my way will feel the devil. Rage. Rage. I know I will spend the rest of my life in jail. Rage. I’m so mad. Hate is a strong word. You and your cross-fit boyfriend better stay away from me, please. I will end up in jail. You guys stay away. I’m very mad. Leave me alone.”

After the plaintiff had informed him that she was sending their wedding photographs back to him he sent her a video of him dousing the photographs with gasoline and burning them.

While defense counsel was able to elicit contradictory testimony provided by plaintiff, it was for the judge to evaluate the demeanor and credibility of the witnesses. A judge is not required to wait for an actual incident of serious physical harm to occur before concluding that plaintiff reasonably feared that such harm was imminent.

Order affirmed.


Frasca v. Frasca
17-P-650
March 8, 2018

Husband appealed from a second corrected judgment of divorce nisi. On Appeal, husband argued that the judge erred in assigning the wife thirty-five percent of any future inheritances he may receive; failing to consider wife’s interest in a property located in India; and in awarding his personal property to wife.

The parties were married for approximately thirty-four years. The parties lived an upper-middle class life-style, funded primarily by the husband’s mother. Of note, the husband’s mother had provided them with a house in Boston for them to live in, bought an investment property in California, and paid for the children’s private education through college. The judge found that the wife was living in the marital home rent free and that the wife was completely financially dependent on the husband.

On Appeal, husband argued that because he had no vested interest in an inheritance at the time of the divorce, the assignment of any future inheritance was an abuse of discretion. The Appeals Court first noted that, when reviewing a divorce judgment, they would examine whether the judge considered the G.L. c. 208, §34 factors, and whether the judge’s reasoning was apparent from the findings and rulings. Adams v. Adams, 459 Mass. 361, 371 (2011). An expectancy to an inheritance is not considered part of the marital estate, however, a judge is permitted to take the expectancy into consideration when determining how to equitably divide the marital assets. Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 111 (2016). Here, it was well within the judge’s discretion to consider the high probability that husband would inherit from his still-living mother. However, it was error for the judge to assign the wife thirty-five percent of any inheritance husband was to receive.

Husband went on to argue that the trial judge erred in failing to find that the wife owned property in India or, in the alternative, that the judge should have considered the wife’s ability to generate rental income from this property. At trial, the husband claimed that the wife owned and rented out a property in India, while the wife maintained that a Hindu temple owned the land, but that she paid taxes and had the right to live on the property. The resolution of conflicting testimony was for the judge, who explicitly credited the wife’s testimony that she did not own the land. See Baccanti v. Morton, 434 Mass. 787, 790-791, (2001). The judge’s factual findings were not clearly erroneous.

Finally, husband argued against the portion of the judgment which stated that each party was to, “retain all personal property presently in their possession.” That it was error for the judge to grant the wife his academic work papers because she had no interest. At the time of the divorce these papers where located in the marital home with the wife. While the husband testified as to these personal possessions, the judge made no explicit findings, or provided a rationale for her decision.

The second corrected judgment, that divided the marital assets and personal property were vacated and the matter was remanded.


Bencosme v. Dominguez
17-P-553
March 9, 2018

Mother appealed from a judgment entered after trial that gave the parties shared legal custody of the child, denied the mother’s request to remove the child to Pennsylvania, ordered the child’s return to Massachusetts after the 2016-2017 school year, and set alternative parenting schedules depending on whether the mother returned to Massachusetts. Mother argued that the judge did not consider all the factors identified in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), and the judge abused her discretion when she concluded that it was in the child’s best interest to return to Massachusetts.

The Appeals Court first noted that the judge’s decision regarding the removal would be reviewed for an abuse of discretion or an error of law and that the judge’s findings are clearly erroneous only when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). An abuse of discretion is where there was a clear error of judgment in weighing the factors relevant to the decision and that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169 (2014).

In the instant case, the judge had correctly identified the legal principles and standards in her detailed decision; nothing indicated that she was unaware of the proper legal framework. The judge properly investigated the following factors: (1) whether the quality of the child’s life will be improved; (2) any possible adverse effect of the elimination or curtailment of the child’s association with the noncustodial parent; (3) the extent to which moving or not moving will affect the child’s emotion, physical, or developmental needs; (4) the interests of both parents; (5) the possibility of an alternative visitation schedule for the noncustodial parent. Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015). In short, the judge’s decision reflected her understanding of the correct legal principals and her reasoning as to each of the Yannas factors.

Order denying removal affirmed.


L.D. v. C.H.
17-P-626
March 16, 2018

Defendant appealed from the order denying his renewed motion for reconsideration, or termination of a permanent G.L. c. 209A order issued against him. On Appeal, defendant argued that he did not have adequate notice of the extension hearing, the evidence was insufficient to support the issuance of a permanent order, he was denied an evidentiary hearing, and the absence of the plaintiff’s current address violated his due process rights.

Plaintiff was the former girlfriend of the defendant. On March 1, 2013 she filed a complaint for protection from abuse pursuant to G L. c. 209A. An abuse prevention order issued with the defendant present, as he was being arraigned at the same time on another charge. The 209A order handed to the defendant included a next hearing date of March 3, 2014. On that date, the defendant failed to appear and after plaintiff’s testimony, the 209A order was extended permanently. In April, 2014, the defendant filed a motion to vacate this order. After a hearing on June 10, 2014, the motion was denied. At this hearing, the judge stated to defendant’s counsel that he would entertain a motion to modify from permanent to a one year order. In May, 2015, the defendant was acquitted on the charges that gave rise to the permanent 209A order. On August 24, 2016, a hearing was held on the motion which was the subject of this appeal. At that hearing, a second judge modified the 209A order by impounding the plaintiff’s addresses.

The Appeals Court first turned to defendant’s contentions regarding notice. The defendant argued that notice was inadequate because the placement of the hearing date on the second page of the 209A order violated the statutory requirements set forth in G.L. c. 209A, § 3(i) which states that, “every order on its face…shall include the date and time that the matter will again be heard.” The Appeals Court noted that a 209A order “must provide the defendant with reasonable notice and an opportunity to be heard.” Caplan v. Donovan, 450 Mass. 463, 470 (2008). Here the 209A order was issued in open court with the defendant present. He was served in hand. The defendant was therefore put on notice.

Moving to defendant’s next argument regarding the sufficiency of the evidence presented, the Appeals Court declined to take up the substance of defendant’s argument as he had failed to file a timely notice of appeal from the underlying permanent order. Wotan v. Kegan, 428 Mass. 1003, 1003 (1998). The motion to terminate did not provide the defendant with a basis to challenge the evidence underlying the initial order. MacDonald v. Caruso, 467 Mass. 382, 388 (2014). The Appeals Court went on to note that the plaintiff’s testimony at the hearing was sufficient to justify the issuance of the order.

Defendant’s arguments regarding the denial of an evidentiary hearing were similarly disposed: the judge had defendant’s memorandum in support of his motion, which included his acquittal in the companion criminal case, as well as supporting affidavits. Because the burden of proof is more stringent in a criminal case, the Appeals Court was unmoved by defendant’s argument.

Finally, the Appeals Court turned to defendant’s argument related to due process. Defendant argued that the lack of the address violated his right to notice of proscribed conduct. The argument deemed meritless by the Appeals Court because there is a, “longstanding common-law principle…that the Legislature did not intend to make accidents and mistakes crimes.” Commonwealth v. Finase, 435 Mass. 310, 315 (2001). Inadvertent contact does not amount to a violation of the order. As such, it was not a violation of his due process rights.

All orders affirmed.


K.E.H. v. B.M.G.
17-P-496
March 19, 2018

The plaintiff appealed from an order denying her motion to reconsider her motion to vacate an amended judgment entered in December, 2005, on a complaint for modification. On appeal, the plaintiff argued that the amended judgment was void because it entered without notice to her in violation of her Due Process rights, and the judge erred in finding that there was no evidence supporting the plaintiff’s claim that the docket sheet had been tampered with.

The plaintiff and defendant were never married but had two children together. On December 24, 1999, a judgment entered ordering the defendant to pay the plaintiff $258 per week in child support, with the $130 per week balance to accrue. The modified judgment also set forth a compliance date on September 29, 2005. The docketed copy of the judgment reflected that the clerk’s office sent the plaintiff a copy.

After the modified judgment issued but before the review hearing, the defendant filed a motion for reconsideration of the modified judgment in which he sought clarification of the arrearages attributable to him. The certificate of service on this motion indicated that the defendant served the plaintiff by delivery to her Florida address via the postal service.

At the September compliance hearing, the judge dismissed the defendant’s motion for reconsideration without prejudice setting it down for reconsideration on December 28, 2005. The docket reflected that the clerk’s office sent a copy of this order to the plaintiff’s address. At that hearing the judge reduced the plaintiff’s child support obligation to $128 per week and created a payment plan to address the past-due arrears.

Eight years later on September 3, 2013, the plaintiff filed a motion to vacate the amended judgment on the grounds that she had not received notice. The judge denied the plaintiff’s motion finding that she had notice of the hearing dates.

On appeal, plaintiff argued that the judge committed clear error in finding that she received notice of the modified judgment and the subsequent hearing dates. She claimed to have not received them in the mail and that the docket sheets that stood for the contrary proposition were tampered with. The Appeals Court disagreed. Aside from the plaintiff’s own statements, which the judge could disregard, there was no evidence in the record which would rebut the docket sheet’s presumption of regularity. Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929 (1999). As a result, the judge’s finding was not clearly erroneous.

Order affirmed.


Nishiyama v. Dhillon
17-P-1041
March 19, 2018

Wife appealed from a judgment of divorce nisi and a judgment which found husband not in contempt of court.

In November, 2013, the wife filed for divorce. The husband filed a counterclaim in January, 2014. Before either party had filed, the husband had filed a complaint for custody and an order to prohibit wife from taking the children to Japan. In April, 2014, a judge issued temporary orders providing that the husband pay for the cost of school and daycare, insurance, registration for wife’s car, and $750 per week to the wife for child support. Between September, 2014, and July, 2015, the wife filed four complaints for contempt alleging that the husband had failed to make various payments. These complaints were consolidated with the pending divorce with trial being held on days in October, 2015, and January 2016. At the trial, a Guardian ad litem (“GAL”) testified and was cross-examined by wife. After trial, a judgment of divorce nisi entered on March 23, 2016. That same day the judge determined that the husband did not willfully fail to make payments to the wife and thus he was found not in contempt.

On Appeal, the wife contested a number of the judge’s findings. The Appeals Court noted that that a judge’s findings will not be set aside unless clearly erroneous. A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Barboza v. McLeod, 447 Mass. 468, 469 (2006).

Wife failed to provide the panel with the trial transcripts and all but a few of the trial exhibits. This left the Appeals Court with an inadequate record on which to review her claim. While the Appeals Court was aware of wife proceeding pro se she was still required to comply with the rules of appellate procedure. Even on the scant record presented, there was nothing to indicate that the judge’s findings were clearly erroneous, even assuming arguendo that wife had identified minor inaccuracies she had not shown that they were material or prejudicial.

Judgment Affirmed.


P.B. v. A.B.
17-P-1168
March 26, 2018

Defendant appealed from the issuance of a permanent G.L. c. 209A order against him. On Appeal, defendant argued that the evidence was insufficient to support the issuance of the ex parte 209A order, the one-year extension, or the permanent order, he was unconstitutionally deprived of a hearing, and that the judge’s denial of his motion for relief from judgment was error.

Plaintiff was the former wife of defendant. On December 21, 2015, after learning that defendant was scheduled to be released from a correctional facility where he had served a 23-year sentence the plaintiff filed a complaint seeking an abuse prevention order. The plaintiff’s affidavit described the emotional and physical abuse she had experienced at the defendant’s hands throughout the course of their marriage. In the year prior to her complaint, the plaintiff began receiving the defendant’s mail at her home even though he had not lived there for 18 years. In addition, the plaintiff received a sympathy card from the defendant after her then husband died. The card stated: “I’m thinking of you today and every day, today and always.” The plaintiff interpreted this to mean that he was still thinking about her and, “not in a good way.” Defendant, via letter, received prior to the hearing after notice, stated to the judge that he was aware of the ex parte order. The order was thereafter granted

Moving on to the defendant’s first argument, the Appeals Court noted that defendant had not filed a timely notice of appeal on the ex parte order. As a result his challenges vis-à-vis the sufficiency of the evidence were waived. Wotan v. Kegan, 428 Mass. 1003 (1998).

The Appeals Court was equally unmoved regarding defendant’s arguments that he was deprived of an opportunity to be heard. He had sent in a letter to the initial judge who granted the order. He had subsequently appeared personally at the motion to terminate the restraining order and declined to cross examine his ex-wife. There was, in short, no deprivation of his rights.

Order Affirmed.


Roberts v. Roberts 
17-P-1086 
March 29, 2018

Wife appealed from the dismissal of her complaint for modification.

Wife and husband entered into a separation agreement on January 17, 2013. The agreement provided that it would be incorporated but not merged into the divorce judgment and shall survive except as to the provisions dealing with alimony, child support, custody, and visitation. Among the surviving provisions incorporated in to the judgment was section two, “life insurance,” which required husband to maintain a life insurance policy worth $500,000 until the children were emancipated.

On October 7, 2016, the wife filed a complaint for modification requesting that the life insurance provision of the agreement be modified requiring him to maintain his policy for as long as alimony was required. As grounds, the wife stated that the parties’ youngest child was about to be emancipated which would end the husband’s obligation. The wife wished to maintain the life insurance to secure her future alimony payments. On November 3, 2016, husband filed an answer raising three affirmative defenses, and on December 15, 2016, he filed a motion to dismiss. A probate judge held a hearing on the motion on December 21, 2016. At that hearing, the judge dismissed the complaint and denied wife’s motion for relief from judgment on January 31, 2017.

The Appeals Court first noted that, “a separation agreement, fair and reasonable at the time of a judgment nisi, and constituting a final resolution of spousal support obligations, should be specifically enforced, absent countervailing equities.” O’Brien v. O’Brien, 416 Mass. 477, 479 (1993). Countervailing equities includes situations where one spouse is or will become a public charge, or where there has been a failure to comply with the agreement. Broome v. Broome, 43 Mass. App. Ct. 539, 544 (1997). In the instant case, the wife did not allege any such countervailing equities. Only that the parties’ youngest child would soon be emancipated, a condition which had been explicitly anticipated in the separation agreement. As the plain language of the agreement did not support wife’s interpretation, namely, that the intention of the parties was to secure both the husband’s alimony obligation and child support via life insurance.

For the sake of argument, the Appeals Court assumed that the judge properly could have modified the divorce judgment to compel the husband to carry a life insurance policy to secure his alimony obligation, as the alimony obligation was merged into the judgment. However, wife failed to allege even a change of material circumstances. As a result there was no abuse of discretion in the judge’s denial

Finally, there was no error or abuse of discretion in the judge’s consideration of Husband’s motion to dismiss, which did not strictly adhere to Massachusetts Rule of Domestic Relations Procedure 12, which was in effect a motion for judgment on the pleadings. Wife had filed a written opposition and received an opportunity to be heard. There was no unfair surprise. As a result, the procedural irregularities were not prejudicial and the judgment was affirmed. USTrust Co. v. Kennedy, 17 Mass. App. Ct. 131, 135 (1983).

Judgment affirmed.


Saint-Surin v. Kempel
17-P-454 
April 3, 2018

Both parties appealed various provisions of a child support judgment requiring father to pay mother $609 per week as child support, plus ten percent of any bonuses, commissions or distributions over $20,000 per year.

The parties are parents of a nonmarital child. At the time of trial, mother was in college. Father was employed at the time of trial. The judge found that father’s weekly income totaled $3,466, including $384 per week based upon an annual bonus of $20,000. The judge further found that father’s annual earnings fluctuated and father did not credibly report his income. Child support calculated pursuant to the Guidelines resulted in a weekly support award of $554. The trial judge ordered father to pay $609 per week as child support, representing a 10% increase in a Guidelines award to account for father’s lack of parenting time. In addition, father was ordered to pay mother ten percent of any bonuses, commissions or distributions over $20,000 per year. In addition, father was ordered to pay retroactive child support; the timeframe of this award was reduced after father’s motion requesting the same was unopposed.

Mother unsuccessfully appealed the judgment on several grounds. Mother’s argument that the trial judge erred in not imputing additional income to father was not supported by the record, and at oral argument mother conceded that the requirement that father pay her 10% of any bonus monies over $20,000 resolved the issue of providing mother additional support when father’s income may be higher. Mother’s failure to oppose father’s motion to reduce the period of retroactive child support resulted in a waiver of that issue on appeal. Finally, the judge’s allowance of father’s motion to quash mother’s subpoena was proper where the subpoena was served two months after the conclusion of discovery and was considered an improper attempt to obtain discovery on the eve of trial.

Father appealed on the grounds that the judge’s award of ten percent of his bonus, commissions and distributions over $20,000 was improper because it was arbitrary and unlinked to the child’s needs. The Appeals Court held that the award was proper where the bonus portion of father’s income fluctuated and he lacked credibility related to his earnings. In so holding, the Appeals Court noted that the trial judge did not abuse her discretion by considering father’s likely future income in excess of his current income and requiring him to pay ten percent of that excess amount as child support.

Judgment affirmed.


Mathieu v. Shread
17-P111 
April 9, 2018

Both parties appealed portions of a Probate and Family Court amended judgment. The Appeals Court dismissed mother’s appeal because it was not filed timely, noting that the trial judge lacked authority to permit mother to file her notice of appeal late more than thirty days late. See Mass. R.A.P. 4 (c). Father appealed on the grounds that the judgment improperly increased his child support obligation to $713 per week, plus 20% of any income over $226,564. According to father, the trial judge should have ordered that the twenty percent figure apply to only income above $250,000. The Appeals Court held that the child support order was not an abuse of discretion and affirmed the judgment.

During modification proceedings, father reported his base annual income as $226,564. An award of child support calculated based upon father’s base annual income resulted in a child support award of $713 per week. The trial judge’s decision to order father to pay 20% of any additional income over $226,564 as child support was not an abuse of discretion where the parties’ combined incomes exceeded $250,000. Had the trial judge ordered father to pay 20% of income above $250,000 as father argued, father would not have paid any child support for earnings between $226,564 and $250,000. This result was not intended by the trial court. Father’s arguments related to the payment of other expenses on behalf of the child were conclusory and not considered by the Appeals Court.

Judgment affirmed.


Hue v. Soderstrom
17-P-615

Father appealed a modification judgment wherein the Probate and Family Court Judge ordered, inter alia, that the parties have joint legal custody of their child and that the child transfer to the Sharon Public School System unless otherwise agreed. The Appeals Court affirmed the judgment.

Under the parties’ original custody arrangement, father had sole physical custody of the child subject to mother’s parenting time and the child attended the Mendon Public School System. The parties could not agree whether the child should attend the Mendon or Sharon Public Schools. Upon modification, the judge ordered shared physical custody and that the child transfer to the Sharon Public School System, where mother resided. As grounds for the transfer, the trial judge noted that it would not be feasible for mother to transport the child to school in the morning due to her morning commute to Brockton. The trial judge found that the public school in Sharon was a more centralized location for the parties. Father appealed on the grounds that the trial judge did not expressly find that such a transfer was in the best interests of the child.

The Appeals Court disagreed with father’s argument. Although the trial judge did not specifically reference the “best interests of the child” standard in his school transfer order, the trial judge did enter thoughtful findings of fact and conclusions of law that demonstrated his consideration of the child’s best interests. Among those findings was that once mother commenced employment in Brockton, she and the parties’ child would have to leave home prior to 6:00 a.m. to transport the child to Mendon for school, that such an arrangement was not feasible and the child would likely be transported to school by a third party. The trial judge properly ordered the parties to share legal custody of the child after he resolved the issue of where the child should attend school.

Judgment affirmed.


Bortolotti v. Bortolotti
16-P-1742 
April 13, 2018

The parties filed cross-appeals from a judgment of divorce nisi for various grounds related to the property division and alimony award. The Appeals Court vacated the judgment in respect to the alimony award as well as the determination of value of husband’s premarital estate.

The parties were married in 2004 after cohabiting from 1998 forward. During this period of cohabitation, wife did not contribute financially to the parties’ relationship but may have been economically dependent upon husband. Husband owned his own business known as Coastal Equipment Rentals, Inc. Wife was unemployed at the time of trial after her position as a trust advisor with TD Bank was terminated. Wife was offered a new position, but she rejected it and remained unemployed from 2015 to the time of trial. The trial judge awarded husband 65% of the marital estate and declined to award wife attorney’s fees after trial.

After trial, the judge calculated the duration of wife’s alimony award based upon the length of the parties’ actual marriage and excluded the six-year period of the parties’ premarital cohabitation. When declining to include that period of time, the judge focused on the fact that wife was not a financial contributor during that period of time. The Appeals Court held this was an error where the Supreme Judicial Court has recently held that the legislature intended to use the terms “cohabitation,” “economic marital partnership,” and “common household” synonymously. In addition, G. L. c. 208, § 49 (d)(1)(ii) permits a judge to consider economic dependence of one person on another when considering post-divorce cohabitation; the same principle applies to premarital cohabitation. As a result, an economic partnership may still be found where one party is economically dependent upon another. The alimony award was remanded for the trial judge to reconsider the period of the parties’ cohabitation in determining the length of marriage.

When determining husband’s premarital assets, the judge calculated husband’s net worth five years prior the parties’ marriage. Such an analysis was faulty where premarital assets are to be valued at the time of the marriage, not five years prior. Property division vacated and remanded for judge to consider valuation of husband’s premarital assets at the time of the parties’ marriage in 2004.

Wife unsuccessfully argued that the trial judge erroneously calculated both parties’ incomes for the purposes of her alimony award. Wife asserted that the trial judge erred when he declined to adopt the full amount of a business valuation expert’s normalized salary for husband when calculating alimony, but used the full normalized amount to value husband’s business. When conducting his analysis related to husband’s income available to pay alimony, the trial judge properly considered that husband did not receive any actual income from his business except in the months of August and September, 2015. With respect to wife’s income, she argued that the trial judge improperly attributed income to her. The Appeals Court held that the trial judge’s imputation of income to wife was proper where wife gained considerable experience at her former position and rejected a new position at the bank.

Wife also unsuccessfully challenged the property division. Wife claimed the trial judge erroneously awarded husband 65% of the marital estate. The Appeals Court rejected this argument where the trial judge considered the G.L. c. 208, § 34 factors, did not consider irrelevant factors and the ultimate division of the marital estate flowed rationally from his findings and was neither plainly wrong nor excessive. Wife also asserted that the judge erroneously valued three parcels of real estate as of 2014. This decision was not an abuse of discretion where 2014 was halfway between the parties’ separation and trial. The judge’s failure to specify checking accounts held by various trusts was not an error where husband retained his interests in two of the trusts and the third account held only a negligible amount of money.

Finally, wife’s argument that the trial judge erred in declining to award her attorney’s fees and costs was not successful. In this case, there was no evidence to suggest that husband engaged in obstreperous conduct or prolonged the litigation. As such, the judge acted within his discretion in declining to award costs and fees to either party.

Portions of judgment related to alimony and property division vacated and remanded for further proceedings consistent with opinion.


C.R.P. v. D.F.
17-P-939 
April 6, 2018

Defendant appealed from an abuse prevention order entered against him in favor of plaintiff and her son pursuant to G.L. c. 209A. As grounds for his appeal, defendant alleged that the evidence failed to show that plaintiff was reasonably in fear of imminent physical harm. Orders affirmed.

Plaintiff, defendant, plaintiff’s children and her dog resided with defendant for a period of approximately three years since 2014. During the parties’ relationship, defendant became increasingly verbally abusive, and had threatened plaintiff that her dog would be “gone” when she returned home from work. When plaintiff told defendant she was looking for alternate housing, he told her to “keep an eye over [her] shoulder . . .” A few months prior to entry of the abuse prevention order, plaintiff’s son was treated for suicidal ideation. Days prior to the application for the abuse prevention order, her son was again having suicidal thoughts; defendant told plaintiff’s son to kill himself and taunted him when he did not. Upon application, plaintiff received two one-year abuse prevention orders for herself and her son. The trial judge suggested that plaintiff find alternate housing within 30 days and told defendant that once plaintiff vacated the residence, the order could be modified so he could return home. The order was subsequently modified.

Defendant appealed the order on the grounds that plaintiff was not reasonably in imminent fear of physical harm. The Appeals Court held that, looking at the totality of the circumstances, plaintiff’s fear was reasonable. The fact that defendant made the “look over your shoulder” comments months earlier was not material because plaintiff was presently attempting to accomplish the condition upon which the threat was made.

Order affirmed.


Gagnon v. Haddad-Saba
17-P-718 
April 20, 2018

Husband appealed from a 2016 Probate and Family Court order denying his motion for relief from three judgments: a 2013 judgment of divorce and two judgments entered on the parties’ complaints for contempt and modification. Orders affirmed.

The parties divorced in 2013. Pursuant to the terms of their separation agreement, the parties agreed that each would be responsible for the student loan debt listed on his/her financial statements, husband would pay alimony to wife and wife would receive the marital home. In 2014, husband filed a complaint for modification seeking to terminate his alimony obligation for a number of reasons. In 2015, wife filed a complaint for contempt alleging husband blocked the sale of the marital home, failed to make mortgage payments and failed to make payments on a student loan. Husband alleged that the student loan may be illegitimate and wife may have forged his signature on student loan documents. Weeks after wife filed her complaint for contempt, husband unsuccessfully sought an application for a criminal complaint related to those forged signatures. On October 15, 2015, the parties entered into an agreement for judgment that resolved all outstanding issues. Each party agreed to pay the student loans assigned to him and her in their separation agreement. Husband would convey the marital home to wife and contribute to the cost of her medical insurance. In exchange, wife waived arrearages related to the mortgage, and wife waived any further claim to alimony.

Husband then sought relief from the judgments dated October 15, 2015 as well as the 2013 judgment of divorce. On June 8, 2016, husband filed a motion for relief from judgment alleging fraud and fraud upon the court pursuant to Massachusetts Rules of Domestic Relations Procedure 60(b)(3) and (6). In support of his motion, husband alleged that between 2005 and 2008, wife forged his name as borrower or co-signer for student loan documents for her son, resulting in over $100,000 worth of student loans. Husband argued that he was unaware of these loans when he entered into the separation agreement and 2015 agreements for judgment. The trial judge properly denied husband’s request.

In affirming the decision of the trial judge, the Appeals Court noted that husband’s request for relief from the 2013 judgment based upon fraud was untimely. With regard to the 2015 judgments, at the time husband entered into the stipulations he was aware of the possibility that wife fraudulently caused his name to appear on student loan documents. In addition, husband reaffirmed his obligation related to those loans and husband’s financial obligation to contribute towards the cost of wife’s medical insurance was substantially less than wife’s concessions related to alimony and marital home. As a result, the 2015 judgments were not unfair to husband. As it related to husband’s claims of fraud upon the court, the Appeals Court noted that nondisclosure of facts to an adverse party, without more, did not rise to the level of fraud upon the court.

Order affirmed.


Hilliard-Sawyer v. Kelly
16-P-859 
May 4, 2018

The parties were divorced in 2008. Pursuant to their divorce judgment, the parties shared legal custody of their four children with the mother having primary physical custody subject to the father’s parenting time. After a trial on cross-complaints for contempt, the lower court judge entered a judgment prohibiting the father’s fiancée from having contact with the children. The father appealed.

The Appeals Court stated that based on the lower court judge’s findings, he acted well within his discretion in prohibiting the fiancée’s contact with the children. Specifically, the judge found that an incident occurred between the fiancée and the oldest child in which the police were called to the home. While the police concluded that no crime had been committed, one of the other children later reported to her therapist that she saw the fiancée kick the oldest daughter multiple times during the altercation. The therapist repeated this information to DCF, which opened an investigation and later found the allegation supported. A Guardian ad litem also testified at trial that the children raised concerns about the fiancée’s drug abuse.

Further, the lower court judge was informed during the pendency of the matter that the fiancée had been arrested for possession of narcotics. Upon learning same, the judge had issued a temporary order prohibiting the fiancée from having contact with the children. After the trial, based on his findings, the judge incorporated his temporary order into the judgment but provided detailed instructions for steps the fiancée could take in order to be permitted contact with the children. The Appeals Court stated that the trial evidence substantiated the concerns of the lower court judge with regard to the fiancée’s volatility and potential drug abuse and therefore the judgment should stand.

Judgment affirmed.


D.A.C. v. L.M.C.
17-P-38
May 8, 2018

The parties were divorced after a trial. Subsequently, both parties filed complaints for contempt, on which a trial was held resulting in a judgment of contempt against the husband but no judgment of contempt against the wife. The husband appealed alleging that the trial was unfair due to the judge’s bias against him and that he was improperly found in contempt.

The husband’s first argument on appeal was that the lower court judge erred in refusing to continue the trial to allow the husband’s expert to testify, who was unavailable the morning of the trial. The Appeals Court disagreed noting that in was within the lower court judge’s discretion to refuse to admit the testimony of the expert, especially where the husband’s expert never appeared on a witness list. Next, the husband alleged that the judge misinterpreted the provision in the parties’ divorce judgment regarding the wife’s obligation to pay half of the joint tax liability. It was the husband’s position that the amount owed by the wife should have included other joint obligations; however, these additional obligations were not brought to the attention of the judge presiding over the divorce trial. In light of same, the Appeals Court agreed with the lower court judge that the wife could not be found in contempt of the divorce judgment.

The husband also alleged that the lower court judge erred in finding him in contempt for failure to pay to the wife retirement funds pursuant to the divorce judgment. The husband stated that since the wife, in his opinion, owed him more funds than that which he was ordered to pay her, he did not need to abide by the judgment. The Appeals Court disagreed stating that the husband’s reasoning did not excuse his failure to abide by the divorce judgment and therefore he was properly found in contempt by the lower court judge. As for the husband’s allegations that he was not given a fair and unbiased trial, the Appeals Court stated that upon review of the record, it was clear that such allegations were unfounded.

Judgment affirmed.


D.R. v. D.A.
17-P-338 
May 8, 2018

The husband appealed from a judgment of divorce nisi that awarded the wife approximately ninety percent of the marital assets. The lower court judge had entered detailed findings with regard to the husband’s “bad” behavior. Specifically, the lower court judge found that during the marriage, the husband was voluntarily underemployed. He was controlling and emotionally abusive to the wife. He also failed to contribute to the tasks of the household and while he initially contributed to the purchase of the parties’ condominium, his subsequent actions served to diminish its utilities and increase the costs to the wife. In light of such findings, the lower court judge entered a judgment of divorce nisi containing a disproportionate division of the marital estate.

The Appeals Court stated that while the lower court judge’s findings supported an unequal division of the marital estate, the Judge’s allocation of assets was too extreme. The Appeals Court noted that a party’s conduct is one factor that may diminish his or her share of the marital estate; however, such conduct must be more than just “bad.” Rather, the party’s conduct must have an adverse impact on the marriage and/or the marital estate. The lower court judge failed to find that the husband’s behavior affected the wife’s earning capacity, her retention of earnings during the marriage, or her future earnings ability. In fact, the judge had found that the wife’s earnings dramatically increased during the marriage. Consequently, the lower court judge’s findings as is did not support the division.

Judgment vacated and remanded in part.


P.M. v. J.M.
17-P-1026 
May 23, 2018

The defendant appealed from numerous judgments and orders that were entered after a judgment of divorce nisi. With regard to one of the judgments from which the defendant appealed, she failed to address it in her argument section. Consequently, the Appeals Court did not address it. With regard to the remaining judgment and orders from which the defendant appealed, she failed to provide the Appeals Court with an adequate record. Specifically, she failed to provide transcripts of either the trial or the hearing or statements of evidence. In light of same, the Appeals Court conducted an independent review as permitted by the record and discerned no errors.

Judgments and orders affirmed.


Miles v. Miles
17-P-556 
June 18, 2018

Husband appealed from a contempt judgment regarding his failure to “comply with numerous financial aspects of the divorce judgment.” The trial judge concluded that the husband had “clearly disobeyed clear and unequivocal orders and found him in contempt.” The judge “specifically rejected the husband's contention that the separation agreement had been altered to include provisions to which he had not agreed.” The husband failed to produce an entire contempt hearing transcript for the Appeals Court to review and thus the review was somewhat limited. The husband did not file any motions for relief.

The judgment of Contempt was affirmed.


Brown v. Christie
17-P-149
June 19, 2018

Wife challenged husband’s reduction of child support on a third complaint for modification. The appeals court held the judge properly “considered the evidence of the father’s income, issued sufficient written findings detailing his analysis, and explained how he calculated the amount in the judgment.” Where there is no abuse of discretion, the decision is affirmed.


Muellner v. Muellner
17-P-306
June 21, 2018

The Wife appealed two modification judgment which reduced the amount of alimony paid by her former husband. The judgments were vacated and remanded.

The parties were married for 42 years and divorced in 2004. The husband’s alimony obligation amounted to approximately forty-eight percent of his gross income at the time of the divorce. In the first modification “the judge reduced the wife’s alimony by almost twice the amount that the husband's income had decreased.” The second modification, filed one month after the first modification judgment, further reduced the already reduced amount.

When an alimony judgment is reviewed, the Appeals Court examines whether or not the trial judge “weigh[ed] all the statutory factors [under G. L. c. 208, § 34] in light of the facts of the particular case,” while “keep[ing] in mind that ‘the statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.’ The Appeals Court concluded, the “judge's findings fail to demonstrate ‘appropriate consideration’ of the husband's ability to pay, the wife’s need for alimony, and the parties’ intentions regarding alimony as expressed in their separation agreement.” “The standard of need is measured by the ‘station’ of the parties—by what is required to maintain a standard of living comparable to the one enjoyed during the marriage.” Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985). Where the judge reduced the wife’s alimony by nearly 80%, the judge did not properly meet the standard. The Appeals Court concluded the “judge abused his discretion by failing to (1) appropriately scrutinize the husband’s business expenses, (2) consider the wife’s need for alimony, and (3) consider the parties’ intentions with regard to alimony, as expressed in their separation agreement.”


C.C. v. C.C.
17-P-1068
June 22, 2018

Mother obtained a 209A restraining order following her testimony that “four days before applying for the 209A order, she had a conversation with the father’s sister-in-law in which the sister-in-law told her that, several months prior, the father, a licensed gun owner, had learned about an intimate videotape of the mother with another man…” and “the father told his family members to ‘come get his guns because he was going to use them.’”

At the extension hearing, the father attempted to introduce an affidavit from the sister-in-law denying that the conversation with the mother took place. The judge excluded the affidavit over the father’s objection because “it would have been impossible for the mother to cross-examine the affiant, who was not present in court.” The father could have cross examined the mother about the conversation instead. In father’s appeal, he must show the judge’s decision was “fundamentally unfair,” a standard he did not meet. The “abuse prevention orders may issue to protect a plaintiff from “the continuing impact of past violence,” including where a plaintiff “reasonably remains in fear of the abuser.” McIsaac v. Porter, 90 Mass. App. Ct. 730, 734 (2016).

The Judgment of the 209A issuance and one year extension was affirmed.


Jordan v. Mulvey
17-P-1259
June 26, 2018

Mother appeals from a judgment that denied her removal with the parties’ child to Minnesota. Mother alleged “the judge did not properly weigh all the factors identified in Yannas v. Frondistou–Yannas, 395 Mass. 704, 711 (1985), and abused her discretion when she found that it was not in the child’s best interests to be removed to Minnesota.” The Appeals Court affirmed the decision. Under the real advantage test, the court concluded mother had a “sincere reason to remove the child to Minnesota, and that the request was not made to deprive the father of access to the child.”

Once the sincerity has been determined, factors must be taken collectively to determine the best interests of the children, including; “1) whether the quality of the [child's life] will be improved, including any improvement that ‘may flow from an improvement in the quality of the custodial parent’s life’; (2) any possible ‘adverse effect of the elimination or curtailment of the child's association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [child's] emotional, physical, or developmental needs’; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.”

The judge concluded that mother had a sincere reason to move, but “a move back to Minnesota [would not] result in the happiness which [the mother sought].” Mother had moved from Minnesota twice before, had a difficult relationship with her mother, and though had attained 3 years of sobriety but triggers still existed in Minnesota. Additionally, mother did not propose a schedule that would properly provide for a child-father relationship. Where the mother’s argument was essentially a desire that the judge had weighed the factors differently, but the judge did in fact weigh all of the factors, the judgment is affirmed.


Lanzillotti v. Peterson
17-P-1063
June 28, 2018

Father and mother cross appealed the decision. Father alleges where the judge’s decision lacked “any badge of personal analysis” or “other reflection of independent work on the part of the [j]udge,” and instead accepted mother’s proposed judgment – said judgments should be overturned. The Appeals Court held the trial judge “rejected the mother’s request for sole legal custody, indicating that she did not accept the mother’s proposed judgments wholesale.”

The mother alleges the judge did not take into account the child’s best interest, however, the Appeals Court found the “parenting schedule also contemplated the close bond the mother and child share, while ensuring that the father is able to maintain and foster his relationship with the child…” and was therefore in the child’s best interest.

The judgment was affirmed.


Balistreri v. Balistreri
17-P-1107
June 29, 2018

The issue is how to determine the “length of the marriage” as the “number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support.” G.L. c. 208, § 48, when there are multiple support complaints. The Appeals Court concluded the judge has the discretion and must consider the totality of the circumstances to determine which pleading is used. The complaint must qualify, meaning that a divorce judgment (including an alimony award) entered and the judge may determine the appropriate date from the qualifying judgments.

The decision was remanded to conform with the opinion.


K.B. v. J.B.
17-P-349
July 6, 2018

Following trial, the father appealed from the judgment awarding the parties joint legal custody, but awarding sole physical custody to the mother, with a generous visitation schedule for the father. The father contended on appeal that the trial judge had abused his discretion by: (1) accepting the report of a guardian ad litem (“GAL”) who did not comply with the standards for Category F GAL investigators; and (2) awarding the mother sole physical custody where she allows to her father (grandfather) access to the parties’ children despite the grandfather having sexually abused the mother when she was a child.p>

The Appeals Court found that the trial judge had not abused his discretion and affirmed. The GAL had been specifically requested by the parties, had almost forty years of experience in family law matters, and M.G.L. c. 215, §56A gives judges wide latitude in appointing GALs; courts are not bound by Standing Order 1-05 (2005). The Appeals Court also failed to credit the father’s argument that the report of the GAL was in any way deficient for failing to investigate, explore, and address the grandfather’s sexual abuse of the mother and its impact on the children because the father had the ability to raise these concerns with the GAL and failed to do so and the GAL should therefore not be faulted for failing to investigate those matters.

With regard to the father’s argument regarding the award to the mother of sole physical custody, the judge did not abuse his discretion in the award of sole physical custody to the mother after considering the testimony given, which included testimony: from the mother that she has reconciled with her father after extensive father, that she has not and stated that she would not leave the children alone with him; and from the grandmother that she will always be present when the children visited with them and that she does not have concerns about the grandfather abusing the children.


Ricard v. Dutton
17-P-969
July 11, 2018

The trial court dismissed the former husband’s complaint for modification seeking to terminate his alimony obligation to the former wife, which complaint was based upon the durational limits set out in the Alimony Reform Act of 2011, M.G.L. c. 208, §§ 48-55. The Appeals Court found that the former wife met her burden of demonstrating by a preponderance of the evidence an ongoing need for alimony, and that the interests of justice warranted a deviation from the presumptive statutory durational limits. The former wife suffers from a congenital spinal defect that renders her disabled and the trial court found that she lives on a meager income and was unable to provide sufficiently for her own support. The former husband, on the other hand, failed to meet his burden of establishing that he is unable to pay alimony.