FALL 2018: Reported Decisions

By Alissa Brill, Esq., Laurel Spallone, Esq., Elizabeth Hegner, Esq., Jordana Kershner, Esq., and Brian McLaughlin, Esq.

Shea v. Cameron
No. 16-P-1479
February 9, 2018

The parties were married on September 22, 2007. Wife voluntarily withdrew her complaint for divorce and, on June 7, 2013, the parties instead entered into a joint stipulation of annulment based on husband’s fraud that he was unable to love wife and that he did not ever believe wife was his one true love. Immediately following entry of the judgment of annulment, wife served husband with a complaint related to husband’s fraud; the Probate and Family Court dismissed wife’s complaint for lack of subject matter jurisdiction and, thereafter, wife re-filed in Superior Court.

Wife’s theory of recovery for claims of fraud, misrepresentation, battery, negligent and intentional infliction of emotional distress, exertion of undue influence, money had and received and unjust enrichment was tied to husband’s false claims of love, conduct during their relationship and improper use of shared finances. Husband counterclaimed fraud for wife entering into the stipulation for annulment while concealing these claims and husband then moved for summary judgment. The Superior Court judge granted husband’s motion for summary judgment and reported his order to the Appeals Court under Massachusetts Rule of Civil Procedure 64(a) as an interlocutory finding, staying husband’s counterclaims.

Despite the Appeals Court’s concern whether it was appropriate to order the case to their court under Massachusetts Rule of Civil Procedure 64(a), the Appeals Court still expressed its view on the matter. The Appeals Court initially found that husband’s stipulation of fraud in the annulment case was not binding as a legal conclusion in the Superior Court fraud action and, therefore, had no impact upon the Appeals Court’s de novo review of the Superior Court judge’s grant of summary judgment.

The Appeals Court found that the Heart Balm Act (G. L. c. 207, §47A) precluded any of wife’s claims of pure breach of a marriage contract, wife failed to prove an essential element of claims of both negligent and intentional infliction of emotional distress and wife failed to prove a sufficient basis for her theory that she would not have relinquished ownership of her real or personal property if not for husband’s coercive or fraudulent conduct. Ultimately, the Appeals Court concluded there was no avenue of legal recourse for wife and she chose to forgo that process when she voluntarily withdrew her complaint for divorce and instead entered into the stipulation for annulment.

Judgment affirmed.


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

Mother appealed the judgment that gave parents shared custody of the minor child, denied her request to remove the child to Pennsylvania, ordered their return to Massachusetts following the 2016-2017 school year, and set alternative parenting schedules dependent upon whether she and the child returned to Massachusetts. Mother stated that the judge failed to consider all the factors identified in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), and that the judge abused her discretion when she concluded that it was in the child’s best interest to return to Massachusetts.

The Appeals Court reviewed the judge’s decision to determine whether the judge’s ruling was “clearly erroneous.” “A finding is ‘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 made.’” Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008). The court determined that the mother’s challenge that the judge’s findings were “inadequate” as opposed to “clearly erroneous.” She made this challenge based on the belief that the judge failed to consider all of the factors laid out in the Yannas decision. The court was not persuaded as it found that the judge was unable to consider evidence that the mother did not introduce. The court also determined that the judge considered the evidence that the mother did introduce appropriately.

The court affirmed the decision.


Care and Protection of M.C.
SJC-12339 
April 9, 2018

Subsequent to care and protection proceedings involving their minor child, mother and father were subject to criminal proceedings surrounding their treatment of the minor child. Records related to these proceedings are impounded pursuant to G.L. c. 119, § 38 and Juvenile Standing Court Order 1-84. Father subsequently requested that the impounded trial transcript, exhibits, and Guardian ad litem report used in care and protection proceedings be disclosed in the criminal proceedings because these records contained exculpatory material to be used in the criminal proceedings. The Commonwealth moved to intervene in the care and protection proceedings to obtain access to the impounded trial records and other documents in the court file. The minor child opposed the requests on the grounds of privacy interests, but subsequently changed position and argued that the Juvenile Court Judge’s order stating that the records could be released for a limited confidential review was not an abuse of discretion. The Juvenile Court judge allowed the motion of father and the Commonwealth, finding that father and the Commonwealth had met their burden of showing “good cause” to release the court records pursuant to Rules 7 and 11 of the Uniform Rules On Impoundment Procedure. The judge permitted disclosure of the docket sheets, transcript, evidence from trial and his decision in the matter and stayed the order for ten days permitting any party to appeal.

As grounds for her opposition, mother argued that father failed to show good cause and was circumventing criminal discovery rules to obtain impounded material. Mother further argued that she had a privacy interest in the testimony and records of her psychologist and that this material was not relevant to the criminal trial. As it related to the Commonwealth’s request, mother argued that its request was not specific, and that it was attempted to use the Juvenile Court to circumvent the ordinary procedure for obtaining third-party discovery in criminal cases. Mother sought relief from the single justice of the Appeals Court which was denied. Mother then filed an emergency petition for relief in the county court, and single justice of the Supreme Judicial Court (“SJC”) reserved and reported the following issues to the full court:

  • What standard should be used when evaluating a request from a defendant or the Commonwealth to release Juvenile Court case records related to a care and protection proceedings in related criminal proceedings, and which party (the party opposing the request or the party seeking the records) has the burden of proof?
  • Where a party to care and protection proceedings has voluntarily disclosed therapeutic communications in connection with that proceeding, whether the waiver of the patient-psychotherapist privilege and the privilege against self-incrimination is limited to the scope of the care and protection proceedings?
  • Whether the standards and protocols similar to the discovery of third party documents in criminal proceedings should apply where the requestor is the Commonwealth or a defendant and consist of Juvenile Court records of care and protection proceedings?

In response to these questions, the SJC concluded:

  • Where a party to the care and protection proceeding or the Commonwealth requests impounded care and protection records, the requestor bears the burden of demonstrating that the records should be released under the good cause standard set forth in Rule 7 (a) of the Uniform Rules on Impoundment Procedure. If that standard is met, the records may be released for a limited, confidential review. Admissibility of those records in the criminal proceeding is a separate inquiry left to the trial judge to consider competing privacy interests and constitutional rights.
  • A parent’s prior testimony at a care and protection trial is not admissible in subsequent criminal proceedings. A parent’s decision to present evidence at a care and protection proceeding will not result in a waiver of his or her constitutional privilege against self-incrimination at other proceedings. A waiver of the patient-psychotherapist privilege is case-specific so that the waiver of the privilege in care and protection proceedings will not serve as a waiver of that privilege at a criminal trial.
  • The procedure set forth in Commonwealth v. Dwyer, 448 Mass. 122 (2006) related to obtaining discovery from third parties is not applicable to a request for records related to care and protection proceedings because this test applies to records held by third parties and mother’s interests are adequately protected by the good cause standard adopted by the SJC. Records related to care & protection proceedings, on the other hand, are the property of the Juvenile Court.

Matter remanded for an order setting aside the decision of the Juvenile Court judge and remanding the matter to the Juvenile Court for further proceedings consistent with the opinion.


Adoption of Lisette
No. 17-P-644 
May 30, 2018

The mother had two children, Lisette and Adam, from two different fathers. The mother had a long history with the Department of Children and Families (“DCF”) and a history of substance abuse and domestic violence. DCF filed a care and protection petition on behalf Lisette after a report that the child found Adam’s father, against whom the mother had an active restraining order, in the mother’s bed. DCF also filed a care and protection petition on behalf of Adam after the mother failed to attend training sessions at the hospital regarding how to care for Adam in light of his diagnosis of Klinefelter syndrome. During a trial on both petitions, DCF learned that the mother was discharged from an inpatient treatment program. DCF subpoenaed the program for the mother’s records. The program objected to the subpoena citing 42 U.S.C. § 290dd-2. At a hearing on same, the judge suggested that the program manager submit an affidavit regarding the mother’s discharge in lieu of releasing the mother’s records. The parties agreed with the judge’s suggestion and the program manager submitted an affidavit that was entered into evidence over the mother’s objection. After the trial, the judge entered a decree terminating the mother’s parental rights. The mother appealed.

On appeal, the mother first argued that the lower court judge’s admittance of the affidavit violated her rights under 42 U.S.C. § 290dd-2. The Appeals Court disagreed. The Appeals Court noted that the statute existed to protect the confidentiality of a patient’s substance abuse treatment records; however, the protection was not absolute. A court could order the disclosure of such records based on a showing of good cause. A showing of good cause must be based on findings that other ways of obtaining the information were not available or not effective and the need for the disclosure outweighs potential injury to the patient, the physician-patient privilege, and the treatment services. The Appeals Court agreed with the judge’s finding that there was no other means of obtaining information regarding the mother’s discharge. The DCF worker could not testify about what she was told by the program manager and the mother herself was not a reliable source. The Appeals Court also agreed with the judge’s findings that the need for disclosure outweighed the potential injury to the patient, the physician-patient privilege, and the treatment services in light of the mother’s history of substance abuse and her failure to engage in services to address the issue.

The mother also argued that the judge erred in his determination that she was unfit. The Appeals Court disagreed stating that there were ample findings in the record regarding the mother’s failure to address the domestic violence issues in the home, her substance abuse issues and inability to complete a substance abuse treatment program, and the harmful effects both would continue to have on the children.

Decree affirmed.


Adoption of Virgil
No. 17-P-776 
May 30, 2018

Virgil was born in February 2010. The Department of Children and Families (“DCF”) became involved in 2014 after two 51A Reports were filed alleging the mother’s neglect of Virgil. Both reports were later found supported. During DCF’s investigation, Virgil’s pediatrician reported that the mother was inconsistent with Virgil’s care. Additionally, during an announced visit to the mother’s apartment, the DCF worker noted that the living conditions were deplorable and that the worker had heard the mother screaming obscenities at Virgil. Subsequently, DCF removed Virgil from the mother’s care and initiated a petition for care and protection. After the mother failed to abide by the service plan and failed to attend scheduled visits with Virgil, DCF filed a notice of intent to seek termination of the mother’s parental rights.

During the course of the care and protection proceedings, the mother was in and out of various rehabilitation centers. DCF filed motions for the disclosure of the mother’s substance abuse treatment records, which were allowed. After trial, a decree was entered terminating the mother’s parental rights to Virgil and declining to order post-termination and post-adoption visitation. The mother appealed. On appeal, the mother first argued that the Lower Court Judge erroneously based his determination of unfitness on her housing instability and failure to gain employment. The Appeals Court stated these were proper considerations for determining her fitness and that the judge properly evaluated other factors, such as her ongoing substance abuse and mental and emotional instability, among others, in issuing his findings.

The mother also argued that the judge improperly admitted her substance abuse treatment records at trial. The Appeals Court disagreed stating that while 42 U.S.C. § 290dd-2 served to protect the confidentiality of substance abuse treatment records, it did allow for the disclosure of same when necessary. Specifically, the statute permitted disclosure upon the order of a court after good cause was shown. Given that care and protection proceedings center around the child’s interests, good cause existed for the disclosure of a parent’s substance abuse records.

Lastly, the mother argued that the judge erred in declining to award post-termination and post-adoption visitation. The Appeals Court disagreed stating that the judge found that visits were not in Virgil’s best interest in light of the mother’s failure to maintain consistent visits, her inability to address her mental instability and substance abuse issues, her inability to maintain housing, and the negative effect these issues had on Virgil’s overall well-being.

Decree affirmed.


Martinez v. Martinez-Cintron
No. 17-P-1056 
May 3, 2018

The mother and father divorced in December 2016. Pursuant to a judgment of divorce nisi, the mother was awarded sole legal and physical custody of the parties’ child with the father having supervised parenting time. Subsequently, the paternal grandmother filed a petition for grandparent visitation accompanied by an affidavit. In the petition, the grandmother indicated that she was not alleging that there was a significant relationship between herself and the child but that nonetheless it was in the best interests of the child that she be granted visitation. Her affidavit, however, did not provide support for the allegation that grandparent visitation would be in the child’s best interests.

Initially, the mother did not oppose the grandmother’s petition; however, after obtaining counsel, the mother moved to dismiss the petition. The lower court judge denied the mother’s motion stating that under Blixt v. Blixt, 437 Mass. 649 (2002), the grandmother’s inadequate petition could be dismissed but that a dismissal was not required. The mother filed a petition for interlocutory relief. A single justice of the Appeals Court then granted the mother leave to file an interlocutory appeal.

The Appeals Court reversed the order denying the mother’s motion to dismiss. In support thereof, the Appeals Court stated that under Blixt, the petitioner must make adequate factual allegations to plausibly suggest beyond speculation that the requested visitation is necessary to protect the child from significant harm. Given that the grandmother’s petition and affidavit did not meet this standard, the mother’s motion to dismiss should have been allowed.

Order reversed and petition dismissed.


Smith v. Smith
17-P-765 
June 7, 2018

The Wife appeals from a trial judgment in a complaint for contempt that found the husband not guilty of contempt, and in which the trial judge retroactively (but not prospectively) modified the husband’s alimony obligations. The Appeals Court found that the trial court did not abuse its discretion in ruling that the husband was not in contempt, though he failed to pay alimony in accordance with the divorce judgment. However, the court remands as to the issue of retroactive modification of husband’s alimony obligations, because the lower court should have applied an G.L. c. 208, §34 analysis of the circumstances, and then determined if such an analysis justified a retroactive modification of alimony.

The trial court’s finding of “not guilty of contempt” was based on findings that the husband and wife had mutually agreed (though without formalizing their agreements in the court) to lower support, and husband detrimentally relied on these agreements by making payments he would not otherwise have made towards the parties’ emancipated children’s expenses (including expenses for graduate school, a wedding, and down payments on purchases of residences). The Appeals Court rules that these out-of-court agreements to reduce alimony mean that the requirement of “clear disobedience” (of a clear and unequivocal command) – one of the two prongs necessary for a finding of contempt – was not met.

The Appeals Court bases its standard for when retroactive modification of alimony should be allowed on Pierce v. Pierece, 455 Mass. 286 (2009), which it states allowed for reduction or even elimination of an alimony obligation and alimony arrears, but only after a judge first made findings addressing all of the §34 factors. The Appeals Court reiterates that prior to Pierce a “material change of circumstances” was required for modification of an alimony obligation, and that the “circumstances” considered should be determined with reference to §34.

As for husband’s argument that the defenses of estoppel and laches should be available to him, the court rules that under case law laches is not an available defense for actions regarding division of property under §34, and that even where all the elements of estoppel exist, the underlying circumstances should still be analyzed under the §34 factors for whether a retroactive modification is justified.

Affirmed as to the finding that husband is not guilty of civil contempt. Remanded for analysis of the retroactive modification of alimony issue.


Calhoun v. Rawlins
17-P-40 
June 22, 2018

Hernandez-Lemus v. Arias-Diaz
SJC-12527 
June 29, 2018

Balistreri v. Balistreri
17-9-1107 
June 29, 2018

The Appeals Court rules that where there is more than one pre-divorce complaint (i.e., a complaint filed prior to entry of a Judgment of Divorce) resulting in a judgment for spousal support, the court has discretion, considering the totality of circumstances, to choose which complaint should determine the end of the marriage and thus the length of the marriage for purposes of G.L. c. 208, §48 and alimony duration. Complaints for divorce as well as other complaints resulting in a judgment of spousal support are all complaints that qualify for determining the duration of alimony under the statute. Complaints not resulting in any judgments, or resulting in judgments for other kinds of support such as child support or health insurance, and not alimony, do not qualify.

The parties had a child together in 1994, and were married in March 1995. Wife filed several complaints for separate support and divorce that did not go to judgment. In 2005 wife filed a complaint for separate support that resulted in a judgment for child support. This complaint was modified in a 2008 complaint for modification that resulted in a judgment requiring husband to pay wife spousal support in addition to child support. Finally, in 2011, the husband filed for divorce and a Judgment was issued which included an award of alimony to the wife.

The Appeals Court points out that §48’s definition of length of marriage sets the end-date for a marriage as service of the summons in a complaint for divorce or a complaint for separate support, and that complaints of either nature are acceptable pleadings to trigger the end-date of a marriage for alimony purposes. Other pre-divorce complaints that result in a judgment of support also qualify for determining the end-date of a marriage – for example a complaint for modification of a judgment of separate support that results in a judgment for alimony. However, the court indicates that it does not believe the §48’s definition of qualifying pleadings was intended to encompass complaints that did not result in any judgments for alimony. Citing its decision in Sbrogna v. Sbrogna, 92 Mass. App. Ct. 639 (2018), the court notes the “nonsensical” result this would lead to if, for example, one party filed a complaint for divorce, and the parties reconciled and lived together for many more years, and then filed for divorce again at a subsequent, much later date. Under such circumstances, it would not make sense for the length of the marriage to be determined by an obsolete complaint for divorce.

The court further bases its decision to give trial courts discretion in choosing among qualifying pleadings on the discretion given a court in §48 to increase the length of the marriage based on periods of cohabitation, and the discretion given courts under §53(a) to consider “such other factors as the court considers relevant and material.”

In the instant case, the court indicates that either the wife’s 2008 complaint for modification of the earlier judgment of support, or the husband’s 2011 complaint for divorce, were qualifying pleadings for determining the end-date of the marriage. Given the trial judge’s detailed findings regarding the various complaints and the testimony, the Appeals Court indicates that the service date of the wife’s complaint for modification should determine the end-date of the marriage for alimony purposes.

Remanded for recalculation of duration of alimony based on the service date of wife’s 2008 complaint for modification, and otherwise affirmed.


Bonaparte v. Devoti
17-P-194 
July 20, 2018

The parties, who married in Italy in 2005, had one child. The wife, an Italian citizen, and the child did not move in with the husband in the United States until 2010, but returned to Italy full-time in 2011. In 2015, the husband filed a complaint for divorce. Nine days prior to the trial the wife, through counsel, filed a motion seeking permission to testify by telephone or video because of an issue with her green card (during a visit to the United States approximately six months earlier, she was detained by immigration officials due to an irregularity with her green card, something she began immediately to attempt to resolve upon her return to Italy but which had not yet been resolved by the time of trial. In addition, the child’s Italian passport had expired and could not be renewed because the husband had not signed the appropriate papers with the Italian consulate.) The judge denied her motion and two days of trial followed during which the husband, the husband’s counsel, and the wife’s counsel appeared. Thereafter, a divorce judgment was entered, which closely resembled the husband’s proposed judgment. The wife appealed from the divorce judgment and also appealed from the order denying her motion for a new trial.

The Appeals Court found that it was an abuse of discretion for the trial judge to have denied the wife’s motion to testify by telephone or video and vacated the judgment and remanded for a new trial, but did not vacate the judgment granting the divorce. The Appeals Court opined that where the husband had only visited with the child a few times since 2011, it is “inconceivable that the wife’s testimony” “would have no effect on the judge’s findings” and that her testimony was relevant not only to the amount of child support, but also the appropriate property division.