WINTER 2019: Reported Decisions

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

Adoption of Xarina
No. 18-P-82
93 Mass. App. Ct. 800 (2018)
August 22, 2018

After trial, Juvenile Court approved the plan of the Department of Children and Families (“DCF”) with a guardianship goal and terminated the mother’s, but not the father’s, parental rights. The mother appealed.

Following the parties’ divorce, the mother initially had sole legal and physical custody of Xarina, but legal and physical custody was transferred to the father after a report pursuant to M.G.L. Ch. 116, § 51A (“51A”) was filed against the mother alleging neglect. As part of a 51A investigation into the father alleging he had physically abused his new wife’s son from a prior relationship, Xarina was removed from the father’s home and placed in the care of DCF. Thereafter, the mother, who had a history of homelessness, substance abuse, domestic violence, and untreated mental health issues, failed to comply with DCF’s service plan for her and only visited Xarina once. The father partially complied with the service plan and was generally cooperating with DCF. While initially DCF was seeking to terminate both parties’ parental rights, on the day of trial, DCF changed decided only to proceed against the mother and that its goal would be guardianship.

The mother argued on appeal that it was error for the judge to terminate her parental rights because her actions did not trigger the filing of the care and protection petition, and that termination of her rights was not necessary once the goal was changed from adoption to guardianship. She did not, however, contest the judge’s finding that she was unfit. The Appeals Court did not credit the mother’s argument, relying on established case law that termination is in the best interests of a child when it would bring some measure of stability to the child’s life and that transition to a permanent home will be expedited once parental rights are terminated, regardless of whether it be adoption or guardianship. Further, it is well-established that a judge may terminate the parental rights of one parent but not the other and that there was no error in the judge doing so here.

The mother also argued that it was error for the judge to approve the guardianship plan when there was no rationale for why DCF changed its goal from adoption to guardianship. Noting that it would have been preferable for DCF to offer evidence to explain the change, the Appeals Court held that that was not fatal because the controlling consideration is the welfare of the child, and the record supported the finding that continued placement with the foster family was in Xarina’s best interests. Moreover, the law provides multiple options for permanency plans for children, and DCF is not required to choose one exclusively. Affirmed.


Ravasizadeh v. Niakosari
No. 16-P-1131
94 Mass. App. Ct 123
September 25, 2018

The appeals court held the husband’s interest in his premarital, inherited property was properly part of the marital estate and the doctrine of comity required the Massachusetts deferment to an Iranian court concerning the marital contract.

The husband appealed from the judgment of divorce challenging the division of assets, specifically the inclusion and division of premarital inherited properties in Iran. The wife filed a Complaint for Divorce in Massachusetts as well as an action to enforce the mahr (gift of money to the wife) in Iran.

The trial judge equally divided the assets, with the husband retaining exclusive right to his inherited property in Iran and the value of any appreciation of the property that occurred during the marriage to be divided equally. Such property included a 1/6 interest in the husband’s parents’ home, two apartments, and a flower shop (the “Tehran property”). The value of the wife’s mahr was found by the Iranian court to be 700 gold coins, an asset which the trial judge considered an asset of the wife, subject to division (“in the event the Supreme Court of Iran reverses the lower court verdict, the husband is still obligated to pay an amount equal to one-half of the money to wife to satisfy the liability.”) No alimony was awarded.

The trial judge held the Tehran property was never incorporated into the fabric of the marriage, and yet one-half of the appreciation in value was awarded to the wife. The Appeals Court upheld the trial judge’s decision as it “is well established that a party’s estate includes all property to which a party holds title, however acquired.” Williams v. Massa, 431 Mass. 619, 625 (2000). Once the Tehran property is found to be part of the estate, the judge has broad discretion to determine how to divide the estate equitably. Included in that discretion is “discretion not to divide the inherited and gifted assets between the parties but only the increase in value of the property during the parties marriage.” Id. The judge made no error and the rationale flows logically from the findings and consideration of the § 34 factors.

The husband alleges the trial judge lacked the jurisdiction to order husband to pay one-half of the value of the 700 gold coins. The Appeals Court found it was error for the trial court to order the husband to pay the mahr to the wife, in the event the Supreme Court of Iran finds in husband’s favor. Where the parties submitted to the jurisdiction of the Iranian courts, have not sought enforcement of the mahr in the Massachusetts court, the ruling of the Iranian court will not be disturbed.

The Appeals Court thereafter deleted the paragraph from the judgment referencing the split of the mahr as part of the marital estate, all other orders remained intact.


Bobblis v. Costa
No. 17-P-557
October 18, 2018

Father appealed the dismissal of his complaint for retroactive modification of a child support order. After eleven years of marriage, the parties divorced in 2000. The parties entered a separation agreement, which held in relevant part that the Mother would have custody of the two children of the marriage and that Father would pay child support, “until the emancipation of all the children.” They further agreed that emancipation would occur upon the earliest of certain future events, two of which were relevant to the facts in contention: (1) “if the child attends college or other accredited post-high school training or education, emancipation shall be at the age of 23 or such time as the child completes such training or education”; and (2) upon, “entry by the child into the military.” In 2012, the child enrolled in Springfield College. In addition to numerous other scholarships, the child obtained a scholarship through the army ROTC program in his junior year and entered a, “cadet contract” as a result. Father took the position that the child’s enrollment into ROTC effectively emancipated the child.

A trial was held on September 23, 2016. In her memorandum of decision, the judge referred to the ROTC documents (submitted into evidence), indicating how each confirmed the distinction between the ROTC program, and the military service than an ROTC cadet formally commits to undertake upon graduation.

The Appeals Court first noted that judge’s decision in denying or allowing modification of a child support order are reviewed for an abuse of discretion, defined as, “where a trial judge has made a clear error in weighing the relevant factors for a modification, so that the ‘decision falls outside the range of reasonable alternatives.’” L. L. v. Commonwealth, 470 Mass. 168, 185 (2014). In addition, a judge’s interpretation of the meaning of a contractual term is reviewed de novo as a question of law. Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017). The Appeals Court then examined the, “cadet contract” in question, noting that it tracked Chapter 103 of Title 10 of the U.S code which establishes and governs ROTC programs. 10 U.S.C. §§ 2101-2111b (2012). This chapter lists the requirements for a person’s initial enrollment in the ROTC “advanced training” program. 10 U.S.C. §§ 2101-2104 (b). This chapter stated that, “an ROTC cadet may be ordered to active duty as an enlisted reservist only if he does not complete his course of instruction or declines to accept a commission when offered. Allison v. United States, 426 F.2d 1321, 1326 (6th Cir. 1970). The Appeals Court found that the contractual provisions of the enlistment document and cadet contract, demonstrated a clear distinction between participation in the ROTC program and military service under the ROTC program’s terms. As put by the trial judge, “[an] ROTC cadet is simply a scholarship student who receives some special training and has an obligation to perform military service or repay the funds received after participation in the program.”

The Appeals Court went on to note that statutory and decisional authority also demonstrated significant differences between being an active duty member of the military and an ROTC cadet. The U.S.C. specifically distinguishes between members of the armed forces and ROTC cadets by providing death benefits to military members. 10 U.S.C. § 1475 (a) (1)-(4) (2012). Additionally, the legislative history behind the Federal Employees Compensation Act (FECA), “indicates a belief on the part of members of Congress that ROTC students are not members of the armed forces.” Allison at 1327. Finally, further distinction exists between the two designations as ROTC candidates are not subject to the Uniform Code of Military Justice. 10. U.S.C. §§ 801, 802 (2012).

In addition, while Massachusetts Courts had not confronted this particular issue, other courts have considered whether such enrollment constituted an emancipating event. Military service was considered an emancipating event because it subjects an individual to “extensive government control, which is inconsistent with a parent’s control and support of a child.” Zuckerman v. Zuckerman, 154 A.D.2.d 666, 668,546 N.Y.S.2d 666 (N.Y. 1989). Such emancipation was not found in related fact patterns in other jurisdictions. See Howard v. Howard, 80 Ohio App. 3d 832, 385 (1992)(enrollment as a cadet in the United States Coast Guard Academy was not equivalent to entering the military and did not emancipate the parties’ child). Judgment Affirmed.


Panda v. Panda
SJC – 12541
October 15, 2018

Father appealed from a single justice of the S.J.C who denied his petition pursuant to G. L. c. 211, § 3.

Father and mother were divorced in April, 2016. They had two minor children. In September, 2017, Father filed an amended complaint for modification. After a trial, a judge of the probate and family court declined to modify a portion of the agreement which permitted mother’s travel to India for up to four weeks. After trial concluded, the father filed a motion to prohibit Mother’s travel to India. That motion was denied, and Father filed a timely appeal on both the denial of the motion and the portions of the judgment which related to travel to India. Father also filed a motion to stay which was also denied. Father than sought a stay from a single justice of the Appeals Court. This was denied as well. On the same date father’s appeal was entered, he filed a petition pursuant to G. L. c. 211, § 3.

The Court determined that as the Mother’s trip to India with the children had already happened and she had already returned with the children, Father’s appeal was moot. Rasten v. Northeastern Univ., 432 Mass. 1003. 1—3. 731 N.E.2d 1074 (2000). The Court found that to the extent Father’s petition sought to preclude future travel, his remedy was within the regular course of a direct appeal as, “there are other routes by which the petitioning party may adequately seek relief.” Sabree v. Commonwealth, 432 Mass. 1003, 1003-1004, 732 N.E.21d 275 (2000). No error or abuse of discretion in the denial of relief.


Guardianship of Kelvin
94 Mass. App. Ct. 448 (2018)
17-P-250
November 8, 2018

Mother appealed from the dismissal of her petition to remove the paternal grandfather as guardian of mother’s child. Mother gave birth to the child out of wedlock. One year after the child was born, mother and the maternal grandmother got into an altercation in the presence of the child, and the Department of Children and Families (“DCF”) became involved. Subsequently, the paternal grandfather filed a petition to become the child’s guardian. An order was entered appointing him temporary guardian based on the judge’s findings that mother was homeless, mentally unstable, and violent. Said guardianship was extended multiple times until trial at which time the paternal grandfather was granted permanent guardianship based on the unfitness of mother and mother was granted unsupervised parenting time.

Approximately one year later, mother filed a petition to remove the guardian of her child while the paternal grandfather filed a petition to terminate mother’s parenting time. A trial was held at which the judge stated that the burden of proof for the petition regarding parenting time was on the paternal grandfather as guardian, and the burden of proof for the petition regarding removal of the guardianship was on mother. Neither party objected. During the trial, mother requested to present evidence regarding her ability to parent her second child. The judge denied such request. After trial, the judge dismissed mother’s petition for removal of the guardian finding her unfit and entered a decree permitting mother weekly parenting time. Mother appealed.

Mother’s first argument on appeal was that the Lower Court Judge erroneously placed the burden on mother to prove her fitness. The Appeals Court first noted that mother did not properly preserve issue for appeal but given that the issue was unresolved, likely to arise again, and had already been briefed by both parties, the Appeals Court considered the issue. The Appeals Court noted that a petition to remove a guardian involved an issue of custody and therefore a judge was required to make a determination regarding the parent’s fitness in considering the best interest of the child. While the relevant statute, M.G.L. c. 109B, §5-212(a), did not expressly mention parental fitness, it was clear from case law that consideration of parental fitness, when at issue, is relevant in determining the child’s best interest and a finding of unfitness must be supported by clear and convincing evidence. The Appeals Court stated that this standard of proof applied to petitions to remove a guardian. Given that the statute was silent as to who bears the burden of proof, the Appeals Court looked to the review and redetermination process in a care and protection proceeding for guidance because both involve an adjudication of a custody order wherein a judge must decide whether to maintain the separation of a parent and child. Under such proceeding, the moving party bears the initial burden to produce credible evidence that circumstances have changed since the initial determination such that the child is no longer in need of care and protection. Once the moving party has met this burden, the department bears the burden of proving the child was still in need of care and protection by clear and convincing evidence. The Appeals Court determined that this burden of proof applied to petitions to remove a guardian. At the trial in the lower court, the Appeals Court then stated that the judge improperly placed the burden of proof solely on mother and therefore the case needed to be remanded for further proceedings.

With regard to the Lower Court Judge’s refusal to allow mother to introduce evidence of her ability to parent her second child, the Appeals Court stated that evidence of a parent’s ability to care for another child in his or her custody is relevant to his or her general fitness. Judgment of dismissal vacated and remanded.


Dilanian v. Dilanian
94 Mass. App. Ct. 505 (2018)
17-P-173
November 21, 2018

Husband appealed from an amended judgment of divorce that was entered after a trial and the denial of post-judgment motions. Husband worked at a family-controlled company. The company was operated by husband and his father until his father’s death at which time husband became the sole stockholder in the company. For compensation, husband took a base salary from the company and then paid himself a bonus out of the year-end profits. Prior to the divorce proceedings, husband’s net income increased from year to year, but after the commencement of the divorce proceedings, he reported large decreases in income.

Husband was also a participant in a defined contribution plan and a defined benefit plan established by the company. He testified that he and his father were the only participants in both plans. Upon the paternal father’s death, husband allocated a portion of the defined contribution plan and defined benefit plan to his father’s estate. At trial, husband failed to produce documents regarding contributions made by the company to defined contribution plan on his father’s behalf. He also failed to produce documents demonstrating that the defined benefit plan was established before the father’s death. The paternal father’s estate was administered by husband and his sister.

At trial, husband valued the company at $200,000. The judge credited his valuation but then included the value of a $150,000 note payable to the company for a total value of $350,000. With regard to husband’s income, the judge found that he had artificially lowered his income. She found his real income to be $325,000, imputed income to wife, and then calculated alimony. The judge also found that husband was the only participant in both company retirement plans. She ordered husband to transfer sixty percent of both plans to wife. Husband appealed.

Husband’s first argument on appeal was that the company’s defined contribution plan belonged partially to his deceased father and therefore partially to his sister as a beneficiary of his estate. The Appeals Court noted that at trial, Husband failed to produce evidence tracking individual contributions for the supposed participants even though he testified that such information was available to him as the plan’s trustee. The Appeals Court stated the Lower Court Judge could infer that husband’s testimony about the plan was not credible and conclude that the division of the defined contribution plan was a post-divorce filing act. Therefore, the judge did not have to credit husband’s allocation of the plan to his father’s estate. With regard to the sister’s interest, the Appeals Court noted that she could seek her portion of the defined contribution plan from husband as his remaining interest would still be more than the interest the sister was said to be owed from the father’s estate.

Husband’s second argument on appeal was that the judge improperly based the business valuation on cash held in the company’s accounts. The Appeals Court disagreed stating that the judge used husband’s valuation of $200,000 and then added a note payable to the company in the amount of $150,000. The Appeals Court found no error in the judge’s valuation.

Husband also argued on appeal that the judge improperly calculated alimony based on an incorrect figure for his income. The Appeals Court disagreed stating that the judge properly included interest and expense reimbursements in husband’s income and that the evidence supported her finding that he was under reporting his income.

Lastly, husband argued on appeal that his motion for relief from judgment was improperly denied. Said motion sought relief based on a discovery that husband was not a beneficiary of a spray trust when he testified at trial that he was a beneficiary. The Appeals Court stated that because the error was caused by husband’s own testimony and such interest was not integral to the judge’s division of the marital estate, the judge acted in her discretion by denying the motion. Amended judgment affirmed and order denying post-judgment motions.


Aktas v. Aktas
481 Mass. 1018 (2018)
SJC-12104
December 27, 2018

Petitioner, Sevket Aktas, appealed from a judgment of a single justice of the Supreme Judicial Court, which denied his petition for extraordinary relief brought forward pursuant to G.L. c. 211, § 3.

Petitioner was divorced from the respondent, Tina Aktas, pursuant to a judgment of divorce nisi entered February 7, 2011. In May of that same year, the respondent filed a complaint for modification of the child support order in the Probate and Family Court. Thereafter, respondent in January, 2012, filed a motion pursuant to Massachusetts Rule of Domestic Relations Procedure 60(b), asking in substance to set aside the property settlement in the original divorce judgment. Both of these requests were subsequently allowed and a judgment issued December 27, 2013.

The petitioner thereafter made several self-represented filings in the Appeals Court in an attempt to appeal. The first filing was treated as a motion to file a late notice of appeal, which was denied without prejudice. The petitioner renewed the motion in his second filing to the Appeals Court, and a single justice of that court granted the motion, directing the petitioner to file his notice of appeal in the Probate and Family Court on or before November 24, 2014. Rather than doing this, the petitioner thereafter filed on November 24, 2014, a number of miscellaneous documents, none of which was a notice of appeal. The Clerk docketed these items but informed the petitioner that “the case was closed and that no action will be taken by this court on this or any future filing in this matter.”

Thereafter the petitioner filed for extraordinary relief with a single justice of the S.J.C pursuant to G. L. c. 211, § 3. The Supreme Judicial Court first noted that it is, “incumbent on a party seeking exercise of this court’s extraordinary power of general superintendence under G. L. c. 211, § 3, to demonstrate the absence or inadequacy of alternative means of redress.” Lasher v. Leslie-Lasher, 474 Mass. 1003, 1004 (2016). In the instant case, the petitioner had failed to meet this burden because he had the opportunity to obtain review of the judgment in an appeal to a panel of the Appeals Court but did not file the notice of Appeal as directed. Cimini v. Cimini, 449 Mass. 1033 (2007) (affirming the denial of relief pursuant to G. L. c. 211, § 3, where appropriate avenue for relief of interlocutory orders of Probate and Family Court Judge was “to appeal in the ordinary course from any final adverse judgment in the Probate and Family Court.). Judgment Affirmed.