WINTER 2019: 1:28 Decisions

by Grace Roessler, Esq., Elizabeth S. Hegner, Esq., and Ethan Rittershaus, Esq.

Manning v. Manning
17-P-1087
August 1, 2018

The husband was not in contempt nor liable for an obligation set forth in the parties’ separation agreement when the wife did not fulfill a condition precedent necessary to obligate her husband. The parties agreed in their separation agreement that the wife had 60 days to produce documentation to the husband proving that the $45,000 she incurred in credit card debt was incurred during the marriage for marital purposes. If she did provide the documentation, then the husband would be responsible for half of the credit card debt. If she did not provide the documentation timely, she would be solely responsible for the debt.

Within the sixty day time period, the wife provided the husband the first page of every credit card statement for the time period required in the separation agreement. The husband informed the wife that the first page was insufficient. Instead of providing the required pages, the wife did nothing. Instead, after the sixty day period, the wife filed a contempt against the husband for his failure to pay his half of the credit card debt.

The trial court found that the husband is not in contempt for non-payment of the credit card, but still obligated him to pay half of the credit card debt. The appeals court reversed the lower court’s decision to obligate the husband to pay based on the clear intention of the parties that if the wife did not produce the documents in a timely fashion, which she did not, she would be so solely liable for the credit card debt.


Tarkoy v. Tarkoy
17-P-964
August 31, 2018

The husband requested termination of alimony under the durational limits of the Alimony Reform Act. The parties were married for more than five but less than ten years. The parties’ judgment of divorce nisi entered on December 10, 2002 ordering the husband to pay alimony to the wife of $2,500 per month. In 2008, the court reduced the alimony obligation to $1,000 per month. In September of 2014, the husband filed a complaint for modification seeking termination of alimony, based on reaching durational limits.

Under the durational limits of the Alimony Reform Act, for a marriage of that length, alimony should not continue for longer than sixty percent of the number of months married. M.G.L. Ch. 208, § 49 (b)(2). The husband had paid past the durational limit. The Alimony Reform Act presumes termination of alimony, but the court may order continued support beyond the durational limits if “written findings establish that deviation is required in the interests of justice.”’ George v. George, 476 Mass. 65, 70 (2016). To determine whether deviation is required, the court looks at the circumstances of the parties at the time of trial on the modification, not at the time of the divorce. The recipient spouse has the burden to prove by a preponderance of the evidence that a deviation is warranted.

Here, the wife proved by a preponderance of the evidence that circumstances warranted deviation. She required continued support from the husband because she was unable to work, had significant health issues (hearing issues, hand tremors, constant lower back pain that prevented her from standing long periods of time), and was dependent on family and friends for support. Not only was the wife unable to support herself, the court found that the husband had the ability to continue to pay the wife. He admitted at trial that he had purposely tried to hide his income and assets from the court. He had significant unearned income from trusts and also admitted to hiding money by putting it in his former girlfriend’s name. The husband was also $130,000 in arrears at the time of trial.


McNamara v. McNamara
17-P-100
September 5, 2018

Both parties appealed judgment on requests for modification. The appeals court affirmed the lower court’s ruling that draws made by father on his loan account associated with his company is income under the child support guidelines, and that his increased income since the divorce created a significant discrepancy in the parties’ lifestyles that warranted continued child support. The appeals court remanded the issue raised by mother of whether or not retroactive child support modification was appropriate, since the trial court had not made any findings regarding the issue.

Pursuant to the parties’ separation agreement, the father paid child support of $6,000 per month, along with one hundred percent of the children’s college-related expenses. His support obligation was based on annual income of $225,000. Three years later in 2015, the mother filed a complaint for modification seeking an increase in child support, alleging father’s income had increased since the divorce. Father alleged he earned approximately $550,000 in 2015 from salary and shareholder distributions. However, mother argued father earned an additional $500,000 in income from draws he took on a “loan” account associated with his company. The trial court and appeals court agreed.

The father had significant control over the corporation as its sole officer and ninety percent shareholder. The father routinely paid personal expenses from the loan account. Even though the father claimed he had to repay the loan draws with interest, the husband did not offer a promissory note at trial, and the court did not credit his testimony. Father’s description of the account varied from day to day during the trial, and he admitted that 2015 was the first year he deemed the account a loan account; in prior years, he reported the account draws as distributions to himself. Consequently, the husband’s income increased by four times from the divorce from $225,000 to $1,000,000.

The appeals court confirmed that child support may be modified upon a material change in circumstances, which may be “in the parties’ respective lifestyles or financial resources or in the needs of the children.” Brooks v. Piela, 61 Mass. App. Ct. 731, 734-735 (2004). Children’s needs are to be defined, at least in part, by their parents’ standard of living, and children are entitled to participate in a parent’s higher standard of living when available, so that the child can enjoy the standard of living the child would have had if the parties had remained together (citing Smith v. Edelman, 68 Mass. App. Ct. 549, 554 (2007).

Here, the father’s financial statement since the divorce showed more than three times the weekly expense of the mother, and standard of living is closely linked to household spending (citing to M.C. v. T.K., 463 Mass 226, 234 (2012). The father bought the children “cars, trips, expensive clothing and accessories, vacations, jewelry, football tickets, and it appears anything else that the children desire.” He used his income to pay for “substantial luxuries” for himself and his girlfriend, including multiple vacations, designer watches, a condo for skiing, over $260,000 in renovations to the primary residence, and purchase of a vintage Jaguar. The court found that since the divorce, the father has lived a lavish lifestyle while the mother “struggled to maintain the family home” and that despite the mother’s best efforts to mitigate financial difficulties, including obtaining employment and downsizing, her “‘ability to provide for the children is eclipsed by the monies expended by” the father.” Consequently, the trial court properly found a substantial disparity between the lifestyles of the parties brought about by the father’s increased income, and that the husband’s improved financial resources improved the children’s standard of living.


Heine v. Heine
17-P-309
September 10, 2018

The parties’ separation agreement provided the parties with joint legal custody and approximately equal parenting time, including two non-consecutive weeks in the summer for vacation. The parties were unable to reach agreement on the mother’s request to travel to Brazil, her native country, with the minor child every year. At trial on this issue, the court issued the following relevant orders: (1) the mother could travel internationally with the child for 21 days per year; and (2) the parties had to agree to Massachusetts having continuing and exclusive jurisdiction over future custody disputes. The father appealed.

On appeal, the appeals court vacated and remanded the trial court’s decision to allow the mother to travel abroad with the minor child for 21 days per year. The judge weighed the potential risks associated with traveling to Brazil (e.g., kidnapping) against the mother’s position that the travel to Brazil was the only way to maintain a relationship with the maternal grandmother, who was unable to come to the US. The judge properly determined it was in the child’s best interest to travel internationally - there was low chance of child snatching since mother had a history of returning the child to the US when she had taken international trips in the past. However, the appeals court found that the judge’s allowance of travel for 21 days was inconsistent with the parties’ separation agreement, which provided equal parenting time between the parties. The trial court had not explained whether the 21 days would be in addition to the two-week vacation already prescribed in the agreement, or in lieu of the two week vacation. The expansion of time with the mother was inconsistent with the intention of the parties, and was therefore remanded.

The appeals court reversed the trial court’s judgment relating to jurisdiction. The Massachusetts Child Custody Jurisdiction Act (MCCJA) G.L. c. 209 B reads, “a court must determine whether it has the power to exercise jurisdiction in a custody proceeding, and if so, whether it should exercise that power under the standard provided in the statute.” Custody of Brandon, 407 Mass 1, 5 (1990). Thus, the parties were precluded from conferring continuing jurisdiction on Massachusetts courts; the fact that the parties agreed to the provision meant nothing. The appeals court reversed the judgment pertaining to jurisdiction.


Connors v. Connors
17-P-1147
September 18, 2018

The issue on appeal was the validity of a post-nuptial agreement. The parties were married in 1988, and had four children. The husband, a sophisticated business man who had founded twelve health care companies and was CEO of ten of them, was the primary wage earner during the marriage, while the wife cared for the children and maintained the home. At some point before 2001, the parties learned that the wife was going to inherit approximately eight million dollars, and around 2008, the parties began discussing a postnuptial agreement. Around 2008, the husband started a document titled “In the event of divorce”, which became the basis for the post-nuptial agreement. The parties, with counsel and after lengthy negotiation process, executed a post nuptial agreement that specifically excluded wife’s potential inheritance from the marital estate in the event of a divorce, and provided that she retain all of her potential inheritance and divide equally the other assets and husband’s income.

Four years after signing the post-nuptial agreement, the wife filed for divorce, and requested the court enforce the post-nuptial agreement. The husband’s counterclaim for divorce requested that the court declare the post-nuptial agreement invalid. He argued it was the product of duress and coercion and was not fair or reasonable either at the time of execution or divorce.

The Trial Court bifurcated the divorce, and in the first trial, declared the post-nuptial agreement valid. The Trial Court went through the Ansin v. Craven-Ansin factors (457 Mass. 283 (2010) and found they had been met. Specifically, the Trial Court found the husband signed the agreement freely and voluntarily, not by duress. He was a sophisticated businessman with significant experience in contract negotiation, and signed the contract of his own free will, and intended to be bound by the post-nuptial agreement when he signed it. The Trial Court also found that the provisions in the post-nuptial agreement were not unreasonable at the time it was entered. The Trial Court made the following note “If this agreement is upheld then at the divorce trial, husband intends to seek a disproportionate share of the non-inherited marital property 80/20 in his favor given wife’s inheritance. That is a matter for the divorce.” The Trial Court found the husband breached the post-nuptial agreement by challenging it, and ordered him to pay the wife’s attorney’s fees.

The Appeals Court agreed that the Trial Court judge’s comment evidenced a mistaken belief that that the husband would have an opportunity to seek a disproportionate share at the second trial. The Trial Court judge did not determine, as required by Ansin, whether the post-nuptial agreement was fair and reasonable at the time of divorce. The Appeals Court remanded the issue of whether the post-nuptial agreement is fair and reasonable at the time of divorce. Finally, the Trial Court must also determine whether the wife is entitled to her reasonable attorney’s fees where it is unclear whether, by the husband challenging the post-nuptial agreement, he breached the agreement.


Pinet v. Pinet
17-P-1221
October 1, 2018

Plaintiff appealed from an order entered under defendant’s Dom. Rel. P. R. 60 (b) motion which vacated an earlier award of attorney’s fees.

Parties were divorced in 2010. In 2011, plaintiff filed a contempt which, among other things, awarded her $1,500 in attorney’s fees. Defendant did not comply with that order, and in 2014, plaintiff filed another contempt in which she requested an order to compel him to pay the fees in question. Defendant was thereafter ordered to make the requisite payment by March 6, 2015. Defendant complied with the order, but attorney’s fees were again sought and granted. Approximately one year later defendant filed a rule 60 (b) motion, which argued that the order was based on inaccurate alleged facts and was unjust. After hearing on the motion, the judge determined that he could not recall the specific circumstances well enough to be satisfied that there was a basis for resolving the credibility questions in Plaintiff’s favor and that, as a result, he was no longer confident that there was a basis for the order. The judge treated the motion as a Dom. Rel. P. R. 60 (b) (6) motion, because it was filed outside the standard one year time period.

The Appeals Court first noted that the standard of review was, “a clear abuse of discretion”, Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998). Because of the confusing and differing memories displayed by both counsel and the judge surrounding the events at issue, the Appeals Court would not find a clear error judgment in weighing the relevant factors.

Turning to plaintiff’s second contention, the Appeals Court did not agree that defendant’s rule 60 (b) motion was untimely. Motions under 60 (b) (6) need not be brought within the typical one year deadline but rather, within a reasonable period of time. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Finally, the plaintiff argued that under, Sahin v. Sahin, 435 Mass 396 (2001), (“Where a wife’s proffered reasons for relief from a prior divorce judgment the husband’s alleged fraud in misrepresenting and failing to disclose significant financial information and the wife’s “newly discovered” evidence of such fraud - clearly fell within subsections (2) and (3) of Mass. R. Civ. P. 60 (b), the wife was not entitled to relief under rule 60 (b) (6).”) the defendant was not entitled to the relief sought because his motion was more properly brought forward under Dom. Rel. P. R. 60 (b) (3). “To prevail under rule 60 (b) (6), a party must show that there is a reason to justify the relief, and also that the reason is not within the grounds set forth in rule 60 (b)(1)-(5).” Id. at 407.

The Appeals Court disagreed. While plaintiff had characterized his argument as pertaining to plaintiff’s counsel committing a fraud on the court, the Appeals Court found that defendant had brought forward among other things, his financial hardship; his good faith effort to satisfy the judge’s known orders; plaintiff’s counsel’s alleged overzealous advocacy; his lack of notice of certain hearings; and alleged inaccuracies in the factual bases of the judge’s rulings. This served to make plaintiff’s motion not based in substantial part on reasons within the grounds set forth in Dom. Rel. P. R. 60 (b) (1)-(5). The order vacating attorney’s fees was affirmed.


A.L. v. C.D.
18-P-184
October 2, 2018

Defendant appealed from the denial of his 2017 motion to vacate various G. L. c. 209A orders, arguing that the judges involved abused their discretion.

On January 21, 2009, the plaintiff filed an abuse protection complaint supported by an affidavit that stated that the defendant, upon release from prison, appeared at her residence despite her having told him that she did not want him there. Based on her knowledge of his past associations and an abusive relationship, she stated that the event had placed her in fear for herself, her daughter, and the staff at the residence. The defendant did not appear the next day at the hearing and the previous order was extended to January 30, 2009. After the hearing after notice on January 30, which the defendant did not appear, a one year order entered which expired on January 29, 2010. On that day, an extension hearing was held and a permanent order entered. Defendant did not appeal any of these orders.

In 2013, defendant filed a motion to modify/terminate the permanent order for the purpose of removing the daughter from its scope. The motion was allowed. In 2017, the defendant moved to vacate the remaining portion of the orders. As grounds he argued that the orders should never have been entered because, although he appeared at plaintiff’s residence, he did nothing to place her in fear and left when it was clear that she did not want him there. He did not contend that any of this information was placed before any judge in the prior hearings.

The Appeals Court held that this posture did not place any of the underlying orders into jeopardy: the defendant had not appealed the issuance of any of the underlying orders, and the underlying basis of the order is not to be reviewed, nor is its validity to be second guessed when there has been no appeal. Iamaele v. Asselin, 444 Mass. 734, 742 (2005). The motion to vacate was properly denied.


C.F.M. v. J.E.
17-P-1470
October 2, 2018

Defendant appealed from the issuance of a G.L. c. 258E harassment prevention order for both the initial order and its subsequent extension.

On October 21, 2016, the plaintiff filed a complaint in District Court under G.L. c. 209A. The complaint and supporting affidavit alleged that she was or had been in a dating relationship with the defendant and the defendant had caused her physical harm. After cross examination of plaintiff by defendant’s counsel, the judge issued a 209A order set to expire by its own terms after half a year. Later that same afternoon, after defendant’s counsel had left the court, the judge expressed concern that the nature of the relationship between the plaintiff and defendant was insufficient to support the 209A order that had just been issued. The judge thereafter sua sponte converted the 209A order to a 258E order which was also set to expire after six months. Six months later, the parties appeared before a second judge for an evidentiary hearing. Based upon the evidence elicited during that hearing, the judge extended the 258E order for one year. The defendant appealed both the first 258E order and its extension.

On Appeal, the defendant argued that the original 258E order was improperly issued as the plaintiff did not offer evidence of three separate acts of harassment as required under the statute. In addition, the defendant argued that the judge’s decision to sua sponte amend the 209A order to a 258E order violated his right to due process. However, the defendant did not argue that the extension order suffered from either of these defects or was otherwise improperly issued. Nor did the defendant argue that there was any collateral consequences attached to the expired 258E order that in any way differed from consequences of the extended order which was unchallenged on appeal. Thus, the appeal regarding the initial order was rendered moot. Seney v. Morhy, 467 Mass. 58, 62 (2014) (appeal from expired 258E order is not moot where order may have continuing collateral consequences.) Order affirmed.


J.S. v. J.G
17-P-1318
October 6, 2018

Plaintiff appealed from an order denying her request for a G. L. c. 209A order at the ex parte hearing and later at the ten day hearing after notice. On appeal, the plaintiff argued that the judge applied the wrong evidentiary standard and erred with respect to the ultimate question as to whether or not she was abused.

The plaintiff’s affidavit submitted at the hearing established the following: the defendant was the plaintiff’s first cousin. When the plaintiff was six years old, he began touching her inappropriately. On two occasions he forced her to perform oral sex on him, and on one occasion he raped her. At the time of the assaults, the plaintiff informed her second cousin that she knew what sex was because her cousin had showed her. The abuse stopped when the plaintiff was ten and the cousin entered the army. Years later the plaintiff disclosed this information to her therapist, the police, and the parties’ family. The state police investigated, interviewed the family, and the defendant. While informing her that they believed her, they recommended not pursing a criminal case because of the lack of evidence and the passage of time. The defendant was later released from prison and was living in Boston. When he learned that she had informed family members he sent her a message on Facebook threatening legal action.

At the hearing, the judge refused to admit a package of supporting documentation offered by the plaintiff including a written statement from the plaintiff’s treating psychologist, corroborating the traumatic injury the plaintiff suffered as a result of the defendant’s conduct. The defendant testified at the hearing and denied the plaintiff’s allegations. The judge thereafter denied the application for the 209A order.

The Appeals Court first noted that they reviewed the issuance of the order for an abuse of discretion or other error of law. E.C.O. v. Compton, 646 Mass. 558, 561-562 (2013). Under G. L. c. 209A, a person suffering from abuse by a family or household member may seek such protection from abuse by application to the court for an order. A plaintiff alleging abuse under § 1 (a) or § 1 (c) of G. L. c 209A (attempting to cause or causing serious harm or causing another to engage involuntarily in sexual relations by force, threat, or duress respectively) is not required to prove imminent harm. McIssac v. Porter, 90 Mass. App. Ct. 730, 730-734 (2016). Where, as in the instant case, the alleged abuse is based on having been the subject of physical abuse or sexual abuse the judge must conduct a, “discerning appraisal” to determine whether an abuse protection order is necessary, “to protect the plaintiff from the impact of the violence already inflicted. Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374 (2014).

The Appeals Court then turned to Plaintiff’s main contention: that the judge applied the rules of evidence strictly, which precluded the plaintiff from presenting adequate evidence of past abuse. The Appeals Court agreed. It has been well established in 209A cases that such strict application is unwarranted. “The rules of evidence [in a 209A case] need not be followed, provided that there is fairness in what evidence is admitted and relied upon.” Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). Guidelines for Judicial Practice: Abuse Prevention Proceedings § § 3:06, 5:03 (2011).

In the instant case, the judge insisted that the rules of evidence strictly applied even after the plaintiff’s counsel brought Frizado to his attention. While applying the rules of evidence was within the judge’s discretion, he was not obligated to do so. As a result, the judge failed to consider the plaintiff’s proffered evidence. Because the judge erroneously insisted that the rules of evidence apply, the Appeals Court found that the judge did not properly act within his discretion. Denial of 209A application vacated and remanded for a new hearing.


Walczak v. Dsicoll
18-P-228
October 5, 2018

Husband appealed from a judgment which dismissed his complaint for contempt against his former wife in connection to the college selection process. On appeal he argued that the judge abused his discretion in determining that the wife did not disobey a clear and unambiguous order.

The parties divorced in 2009. Their separation agreement, which was incorporated and merged into the divorce judgment, provided in relevant part that, “The parties agree to cooperate with each other and agree that the choice of educational programs and institutions for their children shall be made on the basis of joint consultation with due regard for the parties’ financial circumstances and the children’s aptitudes, interests, desires, and abilities. The parties further agreed that they would each contribute to the cost of the children’s education after exhausting financial aid options.

On June 29, 2016, the wife sent husband an email stating that the parties’ daughter will be attending college at Temple University. Husband responded that he was excited and happy and asked wife to send him all invoices etc. so he could review and see how best to assist her. In January 2017, after the daughter had started college, the husband filed a complaint for civil contempt against former wife by failing to consult with him regarding their daughter’s choice of college. A judge thereafter dismissed the complaint for contempt, finding that Husband had failed to prove a clear and unambiguous violation of a Court order.

On appeal, Husband argued that the judge abused his/her discretion because Wife’s obligation to consult with him prior to selecting a college was clear on the face of the separation agreement. The Appeals Court first noted that in a contempt action, the petitioner has the burden to prove, "by clear and convincing evidence" the alleged contemnor's, "disobedience of a clear and unequivocal command." Birchall, Petitioner, 454 Mass. 837, 853, 913 (2009). "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Id. at 852. Because the determination of the ambiguity or lack thereof of a separation agreement is a question of law, the Appeals Court reviewed the construction of the agreement de novo. McManus v. McManus, 87 Mass. App. Ct. 864, 868 (2015).

Upon review of the agreement in question, the Appeals Court agreed with trial judge’s analysis. The language did not provide a clear command. The provision was silent as to whom should initiate the consultation, when it must occur, the effect of the child’s desire to attend a specific college, or the appropriate course of action in the event of a lack of agreement. The vague and ambiguous language did not furnish a clear and unequivocal command necessary to support an action for contempt. Sax v. Sax, 53 Mass. App. Ct. 765, 772-773 (2002). Affirmed.


P.P. v. S.P.
17-P-1493
October 9, 2018

Defendant appealed from the issuance of an abuse prevention order entered pursuant to G. L. c. 209A. The plaintiff obtained a fourteen day ex parte order on June 6, 2017. Following an evidentiary hearing, a judge in the District Court extended the order for one year. On Appeal, defendant argued that the evidence was insufficient to support a finding that plaintiff possessed a fear of imminent serious physical harm.

The plaintiff and defendant were married with one child when the relationship ended in 2017. While defendant was away at National Guard training, plaintiff moved out of the marital home with her three year old son and obtained a stay away order. At the ten day hearing, plaintiff testified that the defendant threw eggs at her, nearly hit her with a child’s car seat, and was in possession of firearms. A judge determined that P.P.'s characterization of the relationship and demeanor at the hearing, coupled with S.P.'s alleged access to firearms, participation in the military, and alleged violation of the initial order, warranted extension of the original order.

The Appeals Court first noted that the standard to review an abuse prevention order is for an abuse of discretion or error of law. Crenshaw v. Macklin, 430 Mass. 633 (2000). An appellate court will only set aside the extension if, after reviewing all the evidence, it, “is left with the definite and firm conviction that a mistake has been committed.” White v. Hartigan, 464 Mass. 671, 675 (1977). An applicant for an abuse prevention order must prove by a preponderance of the evidence that an order, or the extension of an order, is necessary to prevent the types of abuse described in G. L. c. 209A. Under G. L. c. 209A, § 1, abuse is defined as: (1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; or (3) causing another to engage involuntarily in sexual relations by force, threat or duress. A fear of imminent serious harm requires more than, “generalized apprehension” Woodridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998).

In the instant case the Appeals Court found that plaintiff failed to meet her burden of proof. She testified that she was in fear due to her husband’s knowledge of firearms. However, the facts elicited were not sufficient to justify the issuance of the abuse prevention order if not coupled with actual or implicit threats. The other incidents of hostility also did not rise to the level required to issue the complaint: defendant had thrown eggs at the defendant five year prior to the issuance of the order. More recently, he was demeaning and almost hit her with a car seat while transferring it from his truck to her car. Plaintiff never testified that he tried to hit her with the seat, only that she was almost hit. Even when crediting the affidavit and testimony of plaintiff, the Appeals Court concluded that her fear was subjective and unspecified, which was insufficient to justify the extension of the original ex parte order. Restraining Order Vacated and remanded.


Ampomah v. Filson
17-P-1478
October 10, 2018

Father appealed from a judgment of paternity issued by the Probate and Family Court, awarding him joint legal custody, and mother sole physical custody. Father challenged the portion of the judgment which awarded Mother sole physical custody.

Father and Mother had a non-marital relationship in 2011. The mother gave birth to their first child later that year. The couple’s relationship ended in March 2013, when the mother and older child moved out of the residence. Mother gave birth to a second child about one month later. In 2014, Father filed a complaint to establish paternity.

In the instant case, the judge correctly determined that shared physical custody would not be appropriate because the parties were unable to meaningfully communicate or cooperate. Smith v. McDonald, 458 Mass. 540, 553 (2010). As shared physical custody was inappropriate, the judge was left to determine which parent would have sole physical custody.

The Appeals Court first noted that, the, “in issues involving custody, the overriding concern of the court must be the promotion of the best interest of the children…In exercising discretion, the judge is authorized to consider the widest range of permissible evidence.” Schechter v. Schechter, 88 Mass. App. Ct. 239, 246 (2015). In the instant case, the judge properly considered the evidence, including the Father’s history of alcohol abuse, the mother’s long term standing as the primary caretaker of the children, and incidents of domestic violence involving Father. See G. L. c. 209C, § 10. Father’s appeal mainly contended that the judge did not properly weigh the evidence before her or credit the Father’s testimony. However, the judge was in no way required to see the evidence Father’s way. Where “there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 (2003). The Appeals Court was ultimately satisfied that the judge considered all appropriate factors and reasonably exercised her discretion. Affirmed.


Obi v. Okoli
17-P-1394
October 15, 2018

Husband appealed from an order denying his motion to vacate a divorce judgment. Husband and wife were married in 2010. Wife filed for divorce in 2015 and a divorce judgment entered November, 2016. The husband filed two motions to vacate the divorce judgment in April and May of 2017. The motion was denied without comment after a May, 2017, hearing.

In support of his motion to vacate, the husband charged that the wife’s earlier Nigerian marriage had not been properly terminated and as a result, the parties were never legally married. These issues were not discussed at the divorce trial. Husband also made no effort to explain why he had not brought these matters forward more hastily.

The Appeals Court concluded that Husband was using Mass. R. Dom. Rel. P. 60 (b) as a means to appeal when no extraordinary circumstances existed to justify relief under that rule. This was the case because there was no newly discovered evidence: “Evidence is considered ‘newly discovered’ in this context only if it was ‘unknown and unavailable at the time of trial despite the diligence of the moving party.” Jones v. Boykan, 464 Mass, 285, 291-292 (2013).

Additionally, Husband’s motion was additionally unsupported by affidavit. Moreover, he did not properly authenticate the documents which allegedly showed wife’s failure to divorce her first husband. Given these facts, the judge was left with nothing before him other than the husband’s unsupported claim, which was contrary to his concession at trial. Thus, there was no abuse of discretion. Order affirmed. Wife’s request for appellate attorney’s fees denied.


Marshall v. Marshall
17-P-745 
October 23, 2018

Husband appealed from an amended judgment of divorce nisi. On appeal, he principally challenged the amount of the base alimony award, the imposition of additional contingent alimony awards tied to his bonus income, and the division of assets.

Parties were married in 1996. Two days prior to their wedding, they entered a prenuptial agreement designating which property would be subject to equitable division. The Agreement held in part that the parties’ property rights would be determined as of their physical separation, each party would retain their separate property, and any property not designated as separate property would be martial property. The separate property designated in the Agreement was referenced as, “all business assets referred to in Sections 3 and 4 hereof.” It was limited to the parties’ respective interests in family businesses, any property received either via trust or inheritance. There was also an additional separate property listed on two schedules including husband’s Canadian registered retirement plan (RRSP) and McDermid Saint Lawrence account containing approximately $108,000.00 dollars.

On November 1, 2008, the parties separated, and the husband moved out of the marital home. In May of 2013, wife filed a complaint for divorce seeking alimony, child support, and an equitable division of the marital estate consistent with the prenuptial agreement. During the pendency of the divorce, husband was ordered to pay child support in the amount of $965 per week, base alimony of $1,355 per week, and additional unallocated support equivalent to thirty three percent of his bonus income. After a four day trial, the judge issued a judgment which held in relevant part that the parties would equally share the equity value of the marital home, and the husband would receive as his separate property the $443,634 dollars rolled into his TD Ameritrade account from his separate property, the full equity value of his new home (173 Crafts Street), and the full value of his Canadian RRSP accounts. The judgment also required (1) the husband to pay child support of $965 per week, base alimony of $1,355 per week, and additional alimony equivalent to thirty-three per cent of any cash bonuses; (2) the parties to share equally in the children's extracurricular expenses, and (3) the wife to pay for the children's childcare expenses, her own health and dental insurance coverage, and to maintain a $250,000 life insurance policy naming the husband as beneficiary thereof until the children's emancipation.

Wife thereafter filed a motion to amend the judgment, asserting that the base alimony award did not meet her increased post-divorce expenses and that certain aspects of the property division conflicted with the judge’s findings. The judge thereafter allowed Wife’s motion, and issued an amended judgment. This judgment departed from the original judgment in that it assigned the entirety of the equity in the martial home as the wife’s separate property, assigned wife a share of another home in the amount of $84,312.00 (previously assigned in its entirety to husband), assigned $108,000.00 rather than the full value of husband’s TD Ameritrade Account (previously assigned to him in its entirety), assigned wife $27,121 as her share of the “growth” in Husband’s RSSP account, required husband to reimburse wife in the amount of $100,000.00 of her separate property shares used to purchase husband’s partnership shares in a business, increased the base alimony award from $1,355.00 per week to $1.680.00 per week. Additionally, there was no additional amended findings issued in connection to the amended judgment.

The husband appealed and claimed error with respect to the base and contingent alimony award and the property division. The Appeals Court first turned to husband’s contentions regarding the base alimony award. The Appeals Court first noted that, “a judge has broad discretion when awarding alimony under the statute, but the act [Alimony Reform Act] establishes presumptive parameters: the amount of general term alimony ‘should generally not exceed the recipient’s need or thirty to thirty-five percent of the difference between the parties’ gross incomes established at the time of the order being issued.” Young v. Young, 478 Mass. 1, 5-6 (2017). Further, “Where the supporting spouse has the ability to pay, ‘the recipient spouse’s need for support is generally the amount needed to allow that spouse to maintain the lifestyle he or she enjoyed prior to termination of the marriage.” Id. at 6.

In the instant case, the trial judge found that the parties enjoyed an upper middle class lifestyle during the marriage. The trial judge further found that the wife’s claimed expenses of $2,719.00 per week was overstated and that the wife’s needs could largely be met with the same amount of weekly child support and case alimony established during temporary orders. On her motion to amend, the wife argued that the judge failed to take into consideration her increased expenses imposed by the divorce judgment. The Appeals Court noted that both parties enjoyed commensurate lifestyles at the time of the divorce as reflected in their similar household spending. M.C. v. T.K., 463 Mass. 226, 234 n.11 (2012). There was also no question that husband had the ability to pay given his income of nearly $10,000.00 dollars per week. As a result, the Appeals Court did not find the base alimony award to be excessive or an abuse of discretion.

However, the Appeals Court did find that the contingent alimony award must be vacated in light of Young. “There may be cases in which a variable or contingent alimony award is warranted, but such cases are the exception rather than the rule, and must be justified by the special circumstances of the case. Young. at 9. Here, there was no special circumstances indicated in the judge’s findings that would have justified a contingent award. Because Young was undecided at the time judgment entered, it was also unclear as to what extent the contingent alimony award factored into the judge’s calculation of the base alimony award. As a result, the Appeals Court vacated and remanded the judgment in light of Young.

The Appeals Court then moved on to the contentions raised by Husband vis-à-vis the property division. In regard to assigning the full equity of the marital home to wife as her separate property, the agreement provided that any real property held as tenants by the entirety would be deemed marital property. However, there was a valid, although unrecorded, deed in which husband transferred title to wife in 2012. The judge found that this effectively converted the asset into the wife’s separate property under the terms of the ante nuptial agreement. The ante nuptial agreement specified that the marital property included any property held as tenants by the entirety. Any waiver of that term would have to be specifically waived in a writing. In this case the deed sufficed as such. This was further buttressed by the spirit of the ante nuptial agreement which was intended to preserve the parties’ respective premarital property. As the judge had found that the marital home was purchased entirely with funds furnished by the wife and her mother, the Appeals Court found no error.

Moving on to the parties’ residence at 173 Crafts Street, the husband again asserted error. The Appeals Court disagreed. The property was purchased in 2009, and while it constituted separate property, the $150,000 dollar down payment was comprised of marital funds withdrawn from the TD Ameritrade account held in the wife’s name. There was nothing in the record which indicated the wife waived her right to share in the marital property used to provide the down payment. As a result, the property was subject to division.

The husband also contended that the division of any appreciation during the marriage of his TD Ameritrade and RRSP accounts was in contravention of the parties’ Agreement. The Appeals Court disagreed. The separate property identified in Section 3 and 4 of the parties’ antenuptial agreement did not contain either retirement account. Thus, any appreciation of the accounts was marital property and were divided as such. This was the case because the Agreement specifically stated that the carve out regarding appreciation of the separate property only applied to property noted in Section 3 and Section 4 of the Agreement. As neither of these assets was included in that section but rather in the asset schedules, the appreciation in value was properly divided.

Finally, the husband argued on appeal that it was error to require him to reimburse the wife for the $100,000.00 investment in a business venture. The Appeals Court disagreed because the partnership shares in question were purchased with Wife’s separate property. The parties had never entered into a writing converting this separate property into marital property as required under their agreement. Therefore, there was no error on the part of the trial judge. Judgment vacated and remanded as to the provisions concerning alimony, affirmed as to the property division.


Boreri v. Boreri
17-P-1288
October 24, 2018

Husband appealed from the dismissal with prejudice of his complaint for contempt, which was filed based on his allegation that the wife may have understated her income in financial submissions both pre and post-divorce.

Parties were granted a divorce in 2002. On January 17, 2017, Husband filed a contempt complaint against wife requesting that she be found in contempt for submitting fraudulent financial statements. Wife filed a motion to dismiss pursuant to Mass. R. Dom. Rel. P. 12 (b) (6) and 9 (b). At the hearing on Wife’s motion to dismiss, Wife argued that the complaint must be dismissed as he had not alleged disobedience of a clear and unequivocal command of the court. The hearing judge agreed because Husband’s allegations were of fraud or misrepresentation and dismissed the complaint.

The Appeals Court first noted that the allowance of a motion to dismiss is reviewed de novo. Curtis v. Herb Chambers I-95, 458 Mass. 674, 676 (2011). The Court accepts as true the factual allegations in the plaintiff’s complaint as well as any favorable inferences reasonably drawn therefrom. Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

In the instant case, it was proper to dismiss the underlying contempt complaint as it failed to state a claim from contempt. “Civil contempt is a means of securing for the aggrieved party the benefit of the court’s order…It can be used as an enforcement mechanism only if the underlying order is sufficiently clear, so that the party to be bound is provided with adequate notice of the required or prohibited activity. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565-566 (1997). There was no merit in Husband’s contention that he was denied an opportunity to contest the motion to dismiss. Husband had filed a written opposition and was afforded an opportunity to advance the argument at the hearing on the motion. Finally, the Appeals Court granted wife’s request for appellate attorney’s fees. Judgment Affirmed.


Becker v. Phelps
17-P-938
October 26, 2018

Wife appealed from various judgments and orders that dismissed her complaints for modification and held her in contempt of the divorce judgment. The Husband cross-appealed from a judgment of modification.

On November 9, 2010, during their initial divorce trial, the parties executed an agreement. Pursuant to that agreement, both parties waived their right to receive alimony payments from the other. In consideration of this waiver, wife agreed to pay the husband one million dollars in two lump sum payments on or before December 1, 2013 and December 1 2018. In addition, the wife agreed to pay an amount of alimony equal to four percent of the outstanding indebtedness.

The agreement also divided assets, provided for health insurance and educational expenses for the parties’ minor children and set forth the parties’ obligations to maintain life insurance. The parties agreed that the terms of the agreement would survive the judgment of divorce except as to those provisions which dealt with the children.

Thereafter, a bifurcated judgment issued which did not address custody and visitation of the children. On February 17, 2011, a supplemental judgment issued with respect to custody and visitation. Both parties appealed. Following a remand, the parties again appealed.

In 2012, the husband remarried. That same year CNT (Wife’s company) was sold and its assets were given to creditors. In August, 2012, Wife filed a complaint seeking a declaration that her alimony obligation under the agreement was terminated by law pursuant to the Alimony Reform Act of 2011. On August, 22, 2014, a court held that the four percent interest payments constituted alimony which was non modifiable because the parties agreed that the terms survived the judgment of divorce.

On August 13, 2013 wife filed a complaint for modification of her child support. On October, 2016, following a six day trial, a second judge found a material change of circumstances based upon the failure of wife’s company, wife’s continued unemployment, and the husband’s increased income. Both parties appealed this judgment.

On November 19, 2013, the husband filed a complaint for contempt, asserted that the wife had received tax refunds from CNT but had not paid the husband his proportionate share as required by the agreement. Following an evidentiary hearing, a judge held wife in contempt and ordered her to pay 50% of the tax refunds along with Husband’s costs and attorney’s fees. A subsequent motion to vacate the contempt was allowed because the judge had made no finding regarding the wife’s present ability to pay.

On August, 12th, 2014, the wife filed a complaint for modification of alimony citing countervailing equities. Thereafter, on August 25, 2014, the wife moved to vacate the agreement and an August 16th, 2011 contempt judgment, arguing that the husband had misrepresented his income and the value of his business. On October, 22, 2014, the wife’s motion to vacate was denied in a margin endorsement. Husband thereafter filed a Mass. R. Dom. Rel. P. 12 (b) (6) to dismiss the Wife’s complaint for modification and her motion to vacate the agreement and the contempt judgment. This motion was allowed.

On May 26, 2015, wife filed a complaint for modification alleging that husband refused to co parent with her, was drinking heavily, and was scaring the children. In this complaint for modification the wife sought sole custody of the children, and an order that husband pay all expenses incurred, appointment of a guardian ad litem, and appointment of a parenting coordinator to be paid for by husband. Husband filed another 12 (b) (6) motion. On June 22, 2016, a Probate and Family Court judge issued a partial judgment of modification that dismissed those portions of Wife’s complaint for modification that sought relief from financial obligations.

Finally, on July 21, 2016, wife filed a motion for entry of separate and final judgment and/or to vacate those portions of the June 22, 2016 judgment that dismissed her financial claims, prohibited her from further filings. Wife thereafter appealed the partial judgment that dismissed her financial claims and prohibited her from further filings.

The Appeals Court first noted that the sufficiency of Wife’s complaint for modification based upon countervailing equities was reviewed de novo, taking the wife’s factual allegations as true and drawing all reasonable inferences in her favor. Curtis v. Herb Chambers I-95 Inc., 458 Mass. 674 (2011). The Appeals Court ultimately agreed with the lower court judge’s interpretation that the lump sum payments in question were a property division not alimony and thus not modifiable. Heins v. Ledis, 422 Mass. 477, 483 (1996). Because countervailing equities is a doctrine which serves as the basis for modification, it does not apply to non-modifiable property settlements.

The Appeals Court also quickly disposed of Wife’s appeal regarding the denial of her motion to vacate under Dom. Rel. P. R. 60 (b). Because she was alleging fraud/ misrepresentation, she was time barred from bringing forward the claim after one year. As a result, there was no abuse of discretion in denying a motion which was not brought forward in a timely fashion. All Orders and Judgments affirmed.


Hanley v. Hanley
18-P-11
October 30, 2018

Husband appealed a modification judgment issued by the Probate and Family Court contending that the judge erred in issuing an alimony order that deviated from durational limitations without sufficient findings. The husband further contended that the judge abused her discretion in vacating a provision of the original judgment pertaining to shared college expenses. The judgment in question eliminated Husband’s child support obligation of $250.00 per week, and declined to impose a child support obligation on the wife on the grounds that the child was not financially dependent on the wife.

First turning to the husband’s contentions regarding alimony, the Appeals Court noted that by statute the duration of general term alimony is presumptively capped by formulas based upon the length of the marriage for marriages less than twenty years. G. L. c. 208 § 49(b). A judge may order alimony to continue beyond those limitations if written findings based on the evidence establish that deviation is, “required in the interest of justice.” George v. George. 476 Mass. 65, 70 (2016). The burden to establish the need to continue alimony lies with the recipient spouse who must prove that need by a preponderance of the evidence.

In the instant case, it was not clear from the judge’s written findings that the factors of G. L. c. 208, § 53(e) (the statutory factors to be considered in deviating from the presumptive limitations to alimony) were properly considered. The judges written findings were sparse and did not explicitly reference that section at all. The judge also did not making the requisite findings that deviation from the durational limits was, “required in the interests of justice.” Zaleski v. Zaleski, 469 Mass. 230, 236 (2014).

The Appeals Court agreed that lower court’s evaluation of wife’s earning capacity and issuing a finding that Husband had the ability to pay alimony was not sufficiently supported. In the instant case, the judge’s rationale stated that, “the husband earns $1,730 per week in the IT field and has the ability to pay.” The Appeals Court found this to be an insufficient finding because it was silent as to the husband’s expenses and his recent decrease in pay.

In considering wife’s earning capacity, the trial judge stated in their rationale that the Wife had, “no real employable skills except for piano teaching,” and that, “a part time minimum wage job in the retail or service industry is all that is realistically available to her.” This was problematic to the Appeals Court because the judge made no findings as to how much wife had or could earn from private piano teaching. There was also no explanation of why the wife could only work a part time job. The judge did attribute $200.00 per week to the wife, but no finding was made on the source of the imputed income. While, the Alimony Reform act does not “unduly limit judicial discretion, so long as the judges make detailed subsidiary findings of fact.” Hassey v. Hassey, 85 Mass. App. Ct. 518, 533 (2014), in the instant case, there was insufficient findings. Judgment vacated and remanded.


J.M. v. J.W.
17-P-1462, 17-P-1553
October 31, 2018

Defendants appealed the issuance of Harassment Prevention Orders pursuant to G. L. c. 258E. On appeal, defendants argued that the plaintiff failed to establish three or more acts of harassment as required under G. L. c. 258E, § 1. Defendants were neighbors of the plaintiff since 1990. On May 8, 2017, the plaintiff filed complaints for protection from harassment by both defendants. An evidentiary hearing was held May 30, 2017, after which the judge issued the 258E orders.

In her affidavits, the plaintiff described roughly a dozen incidents spanning over the course of approximately four years. These incidents included the defendants throwing pennies at her house, yelling at the plaintiff that she needed to paint her house, disposing of yard waste in plaintiff’s yard, and throwing garbage on the property. The plaintiff became aware of the vast majority of these incidents by reviewing surveillance footage.

The Appeals Court first turned to the relevant standard when reviewing a 258E order - “whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property, and that did in fact cause fear, intimidation, abuse or damage to property. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, and that each act was intended by the defendant to place the plaintiff in ‘fear of physical harm or fear of physical damage to property.” In assessing plaintiff’s fear, the standard is a subjective one. O’Brien v. Borowski, 461 Mass. 415, 427 (2015). However, generalized apprehension, nervousness, etc. does not rise to the requisite level of fear. Woodridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). In the instant case, the plaintiff testified that she felt under attack, unsafe, and afraid. The Appeals Court assumed arguendo that she had sufficient fear.

The Appeals Court then moved on to the requisite findings of defendant’s intent to cause fear, intimidation, abuse, or property damage. The actions occurred outside the plaintiff’s presence and without the defendant’s knowledge or expectation that she would become aware of these activities. Moreover, there was no physical aggressions. As a result, there was no evidence that the defendants intended to cause fear.

The Appeals Court then turned to whether or not there may have been requisite intent on the part of the defendants to cause intimidation, abuse, or property damage. The Appeals Court did not find intent on any of the stated grounds. There was no attempt to cause physical harm, and no physical harm occurred, nor was there fear of imminent serious physical harm. The small amounts of debris and yard waste thrown onto the plaintiff’s property also did not indicate that there was any attempt to cause property damage.

Finally, the Appeals Court did not find that the conduct of the defendants were malicious acts which display, “cruelty, hostility, or revenge.” G. L. c. 258E, § 1. While the Appeals Court was generally disapproving of the conduct of defendants, that conduct did not rise to the requisite level necessary to support the issuance of a 258E order. Orders Vacated.


S.B v. D.G.
18-P-164
November 2, 2018

Father filed a complaint for modification of the parties’ divorce judgment, requesting, in relevant part, an adjustment to his obligation to contribute to the parties’ children’s college education expenses. Specifically at issue was the payment of college education expenses for the parties’ third child.

Per the parties’ separation agreement, which was incorporated into the divorce judgment, each party was required to contribute to each child’s college education expenses not covered by loans or scholarships according to his or her respective incomes at that time. At the time of trial, mother had paid for all of the third child’s college education expenses. Father asserted that he should not be responsible for any of the child’s college education expenses because he did not know the child was attending a private college. The judge did not find this credible given that father paid half of the child’s admission fee and also contributed to the cost of books and athletic fees. Father also asserted that mother failed to provide him with information regarding the daughter’s expenses. The judge rejected this assertion as well because father’s obligation to contribute to the child’s educational expenses per the separation agreement was not contingent on his receipt of such information. After trial, the judge found that father had not demonstrated that a material and substantial change in circumstance had occurred. The judge ordered father to reimburse mother for his share of the child’s college education expenses. Father appealed.

The Appeals Court affirmed the decision of the Lower Court Judge. The Appeals Court stated that the judge’s findings were more than adequate to support her decision that father failed to demonstrate a material and substantial change in circumstance. The Appeals Court also stated that the judge had the equitable authority to order father to reimburse mother. Judgment affirmed.


Shine v. Shine
18-P-667
November 6, 2018

Plaintiff appealed from March 2018 orders denying her leave to file a complaint for contempt and a complaint for modification. On appeal, plaintiff failed to provide the Appeals Court with either proposed complaint. The Appeals Court stated that the burden was on plaintiff as the appellant to provide the Appeals Court with an appendix supporting her position on appeal. The Appeals Court also stated that plaintiff failed to articulate a legal basis for her position that her constitutional rights were violated by the Lower Court Judge’s orders. The Appeals Court then determined that plaintiff did not sustain her burden on appeal. Orders affirmed.


Singh v. Kurup-Singh
17-P-961
November 5, 2018

Mother appealed from a judgment of divorce awarding father sole legal custody of the parties’ daughter and granting mother supervised parenting time once per week. Mother asserted that the Lower Court Judge’s custody determination was not in the best interests of the child because the judge did not properly consider the domestic abuse of mother by father. The Appeals Court disagreed noting that the judge’s findings reflected that she had considered all the evidence before her, including such domestic abuse. Specifically, the judge found that while each party had committed abuse against the other, mother typically initiated the violence and would abuse father in front of the child. The judge also found that mother failed to take responsibility for her actions, failed to cooperate with the Department of Children and Families (“DCF”) and the guardian ad litem (“GAL”), failed to visit the child consistently, and failed to follow the recommendations of the various professionals involved in the matter.

The judge found that father, on the other hand, cooperated with DCF and the GAL, consistently attended to the child’s needs, and encouraged a relationship between mother and the child. The judge’s findings reflected that she considered father’s parental shortcomings in issuing her decision. In light of this evidence and the evidence that the parties could not effectively communicate with each other regarding the child, the judge determined that it was in the best interests of the child to award legal custody to father. The Appeals Court affirmed the Lower Court Judge’s decision stating that there was no indication that the judge made a clear error or that the judge abused her discretion in issuing her decision. Judgment affirmed.



Bennett v. Bennett
17-P-1494
November 8, 2018

Father appealed from a judgment of divorce granting mother’s request to remove the parties’ two children to Florida and ordering father to pay one-half of mother’s student loan payments.

With regard to the removal, the Appeals Court stated that the Lower Court Judge properly applied the standard articulated in Yannas v. Frondistou-Yannas to mother’s request. First, the judge found that the move presented a real advantage to mother. She had family in Florida, as did father, and had a large support system there, while in Massachusetts she had no one. Mother had job opportunities in Florida, while she had none in Massachusetts. There was also no evidence that mother sought to deprive father access to the children by moving. The judge found that the move presented a real advantage to mother and the Appeals Court agreed.

Next, the Lower Court Judge weighed whether the move was in the best interests of the children. He found that the move would benefit the children as they were close with their family in Florida. The judge also considered the interests of father as the noncustodial parent. The judge found that father had the means to visit the children in Florida, and the judge designed a parenting plan for father that provided him with meaningful time with the children. The Appeals Court confirmed that there was ample evidence in the record supporting the judge’s decision to allow the removal of the children.

With regard to the student loan payments, the Appeals Court noted that the judge made the proper findings under M.G.L. Ch. 208, §34 to support his determination that father should pay one-half of mother’s student loan payments. Specifically, the judge found that father’s student loans were paid off while mother’s loans were not. The judge also made findings regarding mother’s role as the primary caretaker of the children, father’s financial contributions, and father’s use of substantial sums of money for his own purposes during the marriage without mother’s knowledge. The Appeals Court stated that in light of the evidence, there was no abuse of discretion by the judge with regard to the loan payments. Judgment affirmed.


Ramos v. Lopez
18-P-559
December 4, 2018

Father appealed from a modification judgment of the Probate and Family Court that increased his weekly child support from seventy-five to ninety dollars per week. On appeal, Father argued that the judge improperly deviated from the child support guidelines by: (1) considering his income from a second job, (2) failing to make the requisite findings as to whether the child’s needs under the existing order were adequately met / whether the application of the guidelines would result in a, “gross disparity” in the standard of living between the households, and (3) improperly applying an income equalizing approach to modify the child support.

The Appeals Court first noted that a judge may modify an existing order if there has been a “material and substantial change of circumstances since the entry of the previous judgment.” Child Support Guidelines § III.A.5. The Appeals Court further noted that, modification judgments are reviewed for both an abuse of discretion and error of law. Flor v. Flor, 92 Mass. App. Ct. 360, 364 (2017). An abuse of discretion can be found where, “the judge made ‘a clear error’ of judgment in weighing’ the factors relevant to the decision…such that the decision falls outside the range of reasonable alternatives.” L.L v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Child support is controlled by G. L. c. 208 § 28, and there is a rebuttable presumption that the amount of the order which results from the application of the guidelines is the appropriate amount of support. P.F. v Department of Revenue, 90 Mass. App. Ct. 707, 709 (2016). Where a deviation is ordered the judge must explain the deviation in specific findings. Wasson v. Wasson, 81 Mass. App. Ct. 574, 579 (2012).

The Appeals Court first turned to father’s argument that the judge improperly considered earnings from his secondary job when he did not have a second job when the original order entered. In the judge’s findings and rationale two child support calculations were contained - one considered Father’s secondary job income. The judge’s findings did not explain how he overcame the presumption against considering such secondary income under the guidelines.

The Appeals Court declined to consider the other two grounds for Father’s appeal. The Appeals court vacated and remanded the issue to the lower court regarding why the judge failed to enter findings explaining how the presumption against considering Father’s secondary job income was rebutted.


M.L v. T.L
18-P-141
December 5, 2018

Defendant appealed from the extension of an abuse prevention order issued pursuant to G. L. c 209A entered October 20, 2017 after an evidentiary hearing. On appeal, the defendant argued that there was insufficient evidence to establish that he caused the plaintiff to be in reasonable fear of imminent serious physical harm.

The Appeals Court first noted that it reviewed the extension of a 209A order for, “an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 562 (2013). Such an abuse of discretion can be found when, “the judge makes a clear error of judgment in weighting the factors relevant to the decision…such that the decision falls outside the range of reasonable alternatives.” L. L. v. Commonwealth, 470 Mass 169, 185 n.27 (2014). A plaintiff seeking the extension of an abuse prevention order must prove ‘by a preponderance of the evidence’… that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm. G.B v. C.A., 94 Mass App. Ct. 389, 393 (2018).

In the instant case, the parties had been married for approximately ten years and were in the midst of a contentious divorce. The plaintiff had felt motivated to file the complaint for an Abuse Prevention Order after an incident during the transfer of the parties’ children. During this transfer, the defendant screamed and swore in the presence of the children and the plaintiff’s parents. Approximately three months earlier the defendant had threatened the plaintiff saying that he would beat up her boyfriend and that he would make her life hell for the next 18 years. Additionally, there was also physical abuse approximately a year and a half prior to the hearing in question; the defendant had choked the plaintiff and struck her.

The Appeals Court found that the defendant’s argument that plaintiff had failed to prove imminent physical harm fell flat. Because the judge had already found that she had been subject to physical abuse, the plaintiff did not bear the burden of proving a reasonable fear of imminent serious physical harm as the defendant insisted she did. Instead, “a judge may reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.” Callahan v. Callahan, 85 Mass. App. Ct. 369, 374, 10 N.E.3d 159 (2014). Simply by dint of the physical abuse, there would be a sufficient basis to justify the continuance of the order. Issuance of the 209A order was affirmed.


A.C v. J.C.
17-P-1007
December 6, 2018

Defendant appealed three-year extension of an abuse prevention order issued under G. L. c. 209A and the denial of his motion for the judge to recuse himself.

The procedural history of this case is complex and worth restating: On November 19, 2013, the plaintiff obtained an ex-parte abuse prevention order. After a hearing held on December 3, 2013, the order was extended until November 19, 2014. The extension hearing occurred on another date, but due to a recording equipment malfunction there was no contemporaneous record. Defendant filed a timely notice of appeal, but that appeal was dismissed for failure to timely reconstruct the record pursuant to Massachusetts Rule of Appellate Procedure 8(c). In a prior 1:28 decision, the dismissal of appeal was vacated, and on remand, the second judge recreated the record. While the recreation procedures were in process, the defendant filed a motion for the second judge to recuse himself, which was denied.

The reconstructed record showed the following: the parties were in the middle of a divorce and had children. Plaintiff had testified that between July 2013 and the issuance of the ex parte order (1) defendant grabbed plaintiff’s face in a restaurant; (2) put his genitals on her face, hit her, and called her a repressed German; and (3) did not allow defendant to leave the house and told her he could smash her face into a “thousand pieces.” At other unspecified times he had assaulted her, pushed her, and humped her, at times leaving bruises.

After the issuance of the order, there were no further acts of physical violence, but the fifty-foot stay away had been violated. She also testified that she was still in fear on him.

On Appeal, the defendant first argued that the delay and reconstruction of the record has rendered the record, “wholly inadequate for the purposes of his appeal,” because it prevented him from arguing the insufficiency of the restraining order. However, he was not able to argue that this was prejudicial because the factual accuracy of the reconstructed record was not challenged.

Next, he argued that the second judge erred in extending the order for three years because the plaintiff did not demonstrate that she reasonably feared him. Specifically, he argued that the plaintiff had not testified to any incidents of abuse following the issuance of the order, the alleged instances of abuse occurred while the parties were cohabitating, and the parties had been involved in further sexual relations. The Appeals Court first noted that extension orders are reviewed for an abuse of discretion. Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). In examining his second argument, the Appeals Court was unpersuaded: the statute itself explicitly states that, “the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order.” G.L. c. 209A § 3. Rather, a judge, is to assess the “totality of the circumstances” including “the defendant’s violation of previous orders”, and ongoing litigation Iamele v. Asselin, 444 Mass. 734, 740 (2005). In the instant case, the plaintiff had testified to ongoing fear, and there was evidence that the order had been violated several times. Furthermore, the parties had ongoing hostile divorce proceedings. The judge was in no way required to conclude that the plaintiff did not remain in reasonable fear. Reasonable fear, even of an incarcerated defendant, can suffice to extend an abuse prevention order. Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). In short, there was no error in the judge’s decision to extend the order.

Finally, the Appeals Court examined the defendant’s arguments regarding the denial of his motion for the judge to recuse himself. Defendant argued that the judge in question was biased because: (1) he allowed the three year extension of the order; (2) a prior panel vacated the judge’s dismissal of his appeal; and (3) the judge had granted the plaintiff sixty days to file a counterstatement of record on the Appeal when the rules only allowed for ten days. The Appeals Court first noted that a judge facing a motion to recuse must decide whether he or she can decide the case fairly and impartially, and whether, as an objective matter, the judge involvement in the case creates the appearance of partiality. Lena v. Commonwealth, 369 Mass. 571, 575 (1976). This decision was reviewed for an abuse of discretion. The Appeals Court found no such abuse of discretion. The order had been properly extended; a judge is not required to recuse himself/herself because of a reversal on appeal; and the judge had harmonized his order with that of the Appeals Court on the previous case, which had instructed the judge to provide the plaintiff a “reasonable time” to present her own statement. Affirmed in all matters.


Carbonneau v. Carbonneau
18-P-478
December 6, 2018

Husband appealed from a judgment of divorce nisi issued by the Probate and Family Court disputing the alimony award granted to him, and the assignment of a portion of his pension. On appeal, he argued that the judge erred in assigning a portion of the pension, erred in ordering insufficient alimony and its termination date. Finally, he argued that the judge erred in treating his funds from his pension as both an asset and an income stream.

The Appeals Court first noted that, “a judge has broad discretion when awarding alimony and dividing marital assets pursuant to G. L. c. 208, § 34.” Heins v. Ledis, 422 Mass. 477, 480-481, (1996). As long as the judge's findings show that all relevant factors in M.G.L Ch. 208 § 34 were considered, and the reasons for the judge’s conclusion are apparent and flow rationally from the findings and rulings, a judge's determination on the equitable division of marital property will not be disturbed.” Williams v. Massa, 431 Mass. 619, 631(2000).

In the instant case, the judge’s written findings indicated that the M.G.L Ch. 208 § 34 factors were fully considered. The parties were married for over thirty years, during which both parties worked and earned income. The parties’ pensions were the largest part of the marital estate, and it was within the judge’s discretion to find that it was fair and equitable to treat the pensions as assets and divide them equally.

Husband argued that the division was error because the judge did not determine the precise value of the pensions. However, the Appeals Court disagreed: the pensions were divided equally, and “mathematic precision is not required for an equitable division of the property.” Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989). The Appeals Court discerned no error under these facts.

The Appeals Court then turned to husband’s contention vis-à-vis alimony: The Appeals Court first noted that that judge had property considered the statutory factors in awarding alimony. The judge determined that the wife’s current income and the result of the division of the marital estate would put her in a superior financial position to the husband, as she continued to work full time and the husband was in need of support. The judge took into account the parties’ current earnings or ability to earn, the husband’s expenses (including that his expenses which were being subsidized by his girlfriend), and the post-divorce health insurance costs. The judge also acknowledged that the husband's knee problems may limit his work opportunities, but found that he did have the ability to work and earn more than a nominal amount based on his skills and experience. The husband contended that the judgment leaves him in an inferior financial position; however, he did not identify any expenses that would demonstrate that fact. In sum, the amount of the alimony award was not plainly wrong. See Heins v. Ledis, 422 Mass. at 481.

Husband also argued that the judge had erred when setting the alimony termination date. The Appeals Court disagreed. Due to the length of the marriage the judge was within his/her discretion to order alimony for an indefinite period of time. In setting it to terminate within three years after the wife turned 62, the judge did not deviate from any presumptive durational limits. Moreover, the judge found that this was equitable because the Husband had retired at the age of forty seven, and the judge found it equitable to afford the wife the same opportunity to have an earlier retirement than that dictated by the statutory definition.

Finally, the Husband argued that the judge double dipped from his Connecticut pension by treating it as both an asset and an income stream. The Appeals Court disagreed; dividing his pension was not an inequitable double dip when it was the wife who was ordered to pay alimony. Affirmed.


M.D. v. R.D.
18-P-95
December 6, 2018

Plaintiff appealed the judgment of divorce that granted sole legal custody of the parties’ minor daughter to the defendant, and shared physical custody.

The Appeals Court first noted that in deciding issues regarding custody and parenting time, the best interest of the child are paramount. M. G. L. c. 208, § 31. The determination as to which parent will promote that child’s best interest is an exercise of judicial discretion. Custody of Kali, 439 Mass. 834, 845 (2003). In exercising this discretion, “a judge may consider any factors found pertinent to those interests in the circumstances of the dispute.” Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000).

In the instant case, the center of the dispute between the parties was that allegation that defendant had sexually abused the child. At trial, the parties, certain family members, and several professional witnesses testified. The judge’s findings indicated that she had paid careful attention to the case and explained her various credibility determinations. Ultimately, the judge found that there had not been sexual abuse, and absent clear error (which did not exist in this case), the findings of fact control. Mass. R. Dom. Rel. P. 52(a).

In claiming error, the appellant mainly disagreed with the judge’s credibility assessments. However, the judge was entitled to make such assessments, and absent error, such judgments shall stand. To buttress his argument, the appellant emphasized the judge rejected the G.A.L. recommendations. However, the judge noted in her findings that significant changes had occurred since the completion of the GAL report. Appellant had been found in civil contempt, and the GAL had not had the benefit of the expert reports prepared by the evaluation of appellant. Further, the GAL had not spoken with a visitation supervisor or social worker from DCF, both of whom believed there was parental alienation afoot. While the judge is required to consider a GAL’s recommendations, as she did here, it is also the judge’s responsibility to draw their own conclusions. Sagar v. Sagar, 57 Mass. App. Ct. 71, 79 (2003). Judgment Affirmed.


D.C. v. D.M.
17-P-1618
December 7, 2010

Defendant appealed from two harassment prevention orders on the grounds that they were based on insufficient evidence. Plaintiff’s husband was involved in an extra marital affair with the defendant which led to her conceiving a child with him. Defendant thereafter delivered a packet of photographs at plaintiff’s door that included images of a home pregnancy test and the husband’s genitals.

The Appeals Court first noted that a protective order issued under M.G.L. c. 258E requires a finding of harassment, defined as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse, or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” O’Brien v. Borowski, 461 Mass 415, 419 (2012). Where, the conduct in question is speech, it must either be in the form of fighting words or true threats.

The Appeals Court, after reviewing the photographs was satisfied that they were neither a true threat, nor fighting words. While sexually explicit, they were not, “a serious expression of an intent to commit an act of unlawful violence to a particular individual.” Virginia v. Black, 538 U.S. 343, 359 (2003). Nor were they personally abusive epithets which, when addressed to an ordinary citizen, are inherently likely to provoke violent reaction.

Finally, even assuming that the photographs met that threshold requirement, there was only one single act of delivery. Multiple photographs in the packet did not transform the one unitary act of delivery into multiple acts. Smith v. Mastalerz, 467 Mass. 1001, 1001 (2014).

Both orders vacated.


R.C. v. J.K.
18-P-503
December 7, 2018

Defendant appealed from the issuance of an order of protection issued pursuant to G. L. c. 209A. On appeal, the defendant argued that the evidence was insufficient to support the issuance of the order.

About one year before the hearing on the matter, defendant and plaintiff were living in Cincinnati, Ohio. They began a dating relationship and discovered that plaintiff was pregnant. Both parties moved to Massachusetts in July, 2017, and had their child on October, 2017. On January 18, 2018, the parties’ already strained relationship grew worse, with plaintiff slamming doors, throwing pillows, and shouting that he “hated” the plaintiff as she held her son. Upon moving out, defendant refused to return his keys. He then arrived at plaintiff’s residence without contacting her while she was at work. Upon finding out that the locks had been changed, he then called her and engaged in another outburst.

The Appeals Court first noted that, “A person seeking an initial protective order… must show that at the time of the application…she ‘suffers from abuse’ i.e. that…she has a reasonable fear of imminent serious physical harm produced by the defendant’s words or actions, viewed in light of the attendant circumstances.” Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009). This burden is born by the plaintiff and, “in evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties’ relationship.” Iamele v. Asselin, 444 Mass. 734, 737 (2005).

In the instant case, the Appeals Court found that she had met her burden. Defendant’s behavior had escalated over time. The defendant’s anger and outbursts were harbingers of abuse, “which created the picture of a volatile situation in which the possibility of physical abuse was present.” Commonwealth v. Gordon at 350. The Appeals Court found the factual predicates in the case to be analogous to those contained both in Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 (2006) and Commonwealth v. Gordon, 407 Mass. 340 (1990) (obscene outbursts after an unannounced arrival at the plaintiff residence and physically blocking the door were sufficient to grant a restraining order). Affirmed.


Jacobson v. Jacobson
18-P-755 
December 21, 2018

Plaintiff appealed from the denial of her amended motion from relief for judgment. The plaintiff filed a pro se complaint for divorce pursuant to M.G.L. Ch. 208 § 1B. Counsel thereafter appeared on her behalf, and the plaintiff was represented for the remainder of the proceedings. On August 16, 2016, the judge recused herself from the case. The judge explained in a written order that the defendant was known personally to the Judge. The case proceeded until April 4, 2017, when the parties submitted a separation agreement to the Court for approval. On that date, the judge, who had previously recused herself, conducted the hearing. On August 21, 2017, the plaintiff filed a motion for relief from judgment pursuant to Mass. R. Dom. Rel. P 60 (b) (3), (6). More than two months later on November 6, 2017, the plaintiff filed an amended motion for relief from judgment, arguing that it was error for the judge, who had previously recused herself, to conduct the hearing.

On Appeal, the plaintiff’s primary argument, buttressed by Parenteau v. Jacobson, 32 Mass. App. Ct. 97, 104 (1992), was that the judge, having recused herself, could not participate thereafter in the case. The Appeals Court was unmoved. A judge’s action taken pursuant to a Rule 60 motion will not be reversed absent an abuse of discretion. Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999). Moreover, “Rule 60 does not provide for general reconsideration of an order or a judgment. Nor does it provide an avenue for challenging supposed legal errors, nor for obtaining relief from errors which are readily correctible on appeal. Relief under rule 60 (b) (6) will be granted only in extraordinary circumstances.” Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm’n, 394 Mass. 233, 236, (1985).

Here, there was no abuse of discretion because the plaintiff did not timely preserve the issue. During the hearing in question, no objection was made to the recused judge conducting the hearing. In the instant case, the plaintiff did not appeal the judgment. More importantly, the objection to the recused judge hearing the matter was not even raised until she filed the amended motion for relief from judgment. Her failure to raise the matter, or, why she was unable to raise the matter, was also totally unexplained in all the filings. Finally, the plaintiff did not argue, nor did she show how the judge failed to comply with S.J.C. Rule 309, Cannon 2, Rule 2.11 (2011). The burden was on her to prove that she was entitled to the relief she sought. The simple fact that the judge had recused herself then conducted a later hearing was insufficient in and of itself absent further context to justify the allowance of the Rule 60 motion. In these circumstances, the Appeals Court discerned no error in the denial of her amended Rule 60 motion. Affirmed.