By: Theresa Ramos, Patricia O’Connell, and Lisa Shapiro
Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28
Tatarinov-Levin v. Tatarinov-Levin
10-P-309, July 13, 2012
The Wife in this matter appeals from the judgment of divorce nisi, the order denying her amended motion to stay the judgment of divorce, the contempt judgment against her and the order denying her emergency motion for reconsideration of appointment of a real estate master. The judgments are affirmed.
Per the divorce judgment, the parties were awarded an equal division of the equity in the marital home, and the property division will not be reversed unless it is “plainly wrong and excessive.” The wife also raised the issue of ineffective assistance of counsel at trial (she had different counsel for this appeal). It should be noted that the ineffective assistance of counsel may only be raised in criminal cases and child custody cases where the Department of Social Services is a party. The wife also appealed the divorce judgment because the trial judge ended the trial and did not give the wife any opportunity to ask one more question before making a closing argument. The trial judge has discretion to conclude trial and should be able to determine the length of a trial. Based on the record in this matter, the parties were scheduled for two (2) days of trial that turned into four (4) days of trial. There was no abuse of discretion on the part of the trial judge.
The wife’s amended motion for a stay of the divorce judgment pending appeal is left to the broad discretion of the trial judge. According to M.Dom.Rel.P. Rule 62(g), “an appeal form a divorce automatically staying the running of the nisi period when the appeal is from that portion of the judgment which dissolved the marriage.” The wife’s appeal was only concerned with the property division, and since the parties had sufficient notice of how and when the property was to be divided, the trial judge’s “decision to grant a stay was discretionary, and not automatic.” Thus, there was no abuse of discretion by the trial judge.
The wife was found in contempt because the divorce judgment ordered that the wife may keep the marital home if she paid a sum certain to the husband by a certain date. If the wife did not make the payment, then the marital home would be sold and the net proceeds would be equally divided by the parties. Neither of these conditions were met and the husband filed a complaint for contempt. In contempts, “there must be a clear and unequivocal command and an equally clear and undoubted disobedience,” and this was not challenged by the wife. Instead, in her defense, the wife’s argument was based on “the depressed real estate market.” The wife did not prevail on this argument and the contempt judgment is affirmed.
As a result of the contempt judgment against the wife the trial judge appointed a special master to sell the martial home. The wife challenged to the trial judge’s appointment but her brief made “no coherent legal argument and cites no case of statute for her objection to the judge’s decision.” Thus, her argument failed to rise to the level of appellate review.
Ingalls v. Allen
11-P111431, July 13, 2012
The parties in this matter were divorced in 2007, and their separation agreement granted the mother permission to relocate to India with the parties’ two children for two years. The parties further agreed that the mother would pay for all the children’s expenses; the father would pay for the children’s expenses when they were with him and that child support would not be paid by either party.
In July 2009, the mother and the children returned from India, and the parties voluntarily resumed their parenting plan. The parenting plan was as follows: “the father would have the children in week “A” from Thursday after school until Sunday evening, and in week “B” from Thursday after school until Friday evening.” However, there was no agreement with respect the child support and the mother filed a complaint for modification. Per the modification judgment, the trial judge adopted the parties’ current parenting plan, and assigned certain expenses to be paid for by the parties “in lieu of traditional child support.” In addition, the trial judge ordered that the parties pay into a college fund for the children and share equally the children’s uninsured medical expenses and tutoring. The trial judge reasoned that the Child Support Guidelines (“CSG”) were not applicable because of the children did not have a primary residence, and that applying the CSG would diminish the father’s active role in the children’s lives, which the father did not want. The trial judge further found that the mother’s preference would have been to receive a check from the father and that she did not want him to be too involved with the children. The mother appealed the modification judgment on the issues of the parenting plan, child support and the payment of the children’s expenses.
The trial judge’s finding that the parties’ children did not have a primary residence was clearly erroneous based on the parenting plan. The parenting plan was one that was contemplated under the CSG, and thus, a child support order should have been entered. However, the trial judge’s findings and rationale to assign payment of the children’s expenses to each parent was not improper. That said, the modification judgment pertaining to the child support order and payment of the children’s expenses was vacated and remanded to the trial court, and all other provisions of the modification judgment was affirmed.
Frank v. Shoor
11-P-1440, July 16, 2012
The parties filed cross-appeals from a judgment on the wife’s divorce complaint. The wife appeals on the grounds that the trial judge erred on the issues of 1) the parenting plan, the husband’s discretion to choose the minor children’s first extra-curricular activity and where the children shall attend school; 2) attribution of income to her; and 3) the return of personal property to the husband. The husband appeals on the grounds that the judge erred by 1) awarding a greater share of the marital estate to the wife; and 2) attributing insufficient income to the wife.
The trial judge modified a joint custody arrangement, per agreement of the parties, to reduce the children’s transitions between the parties’ homes. The trial judge also ordered that the husband has the responsibility to choose the children’s first extracurricular activity, and the wife has the responsibility to schedule the children’s medical and dental appointments. Based on the record, the parties had difficulty communicating about the children, so the “judge reasonably concluded that a specific division of parental responsibilities was in the children’s best interests.”
The trial judges’ decision that the minor children should attend Cambridge public schools was based on the best interests of the children. It was not clear from the record where the wife was residing at the time of trial but based on the fact that the husband lived in Cambridge and the parties’ older daughter attended kindergarten and was currently enrolled in the 1st grade (at the time of trial), it was within the trial judge’s discretion to keep the children in Cambridge. The judgment also provided that the parties, by mutual agreement, were able to make other arrangements regarding the children’s education.
The judge did not abuse her discretion by attributing income to the wife for purposes of calculating child support. The findings support the trial judge’s decision to attribute income to the wife because she “voluntarily left her job, did not use reasonable efforts to secure comparable employment, and continued to live a lifestyle based on prior earnings while unemployed.” The trial judge attributed income in the amount of the wife’s base salary at Fidelity Investments, which incidentally reflected the wife’s entire income history. There is no requirement that the trial judge attribute a higher amount of income to reflect bonuses earned during a party’s actual employment.
The trial judge made specific findingings in accordance with G.L.c. 208, § 34 to support her award of giving the wife a disproportionate share of the marital estate. The parties had a short-term marriage; they were young, healthy and worked full-time. Although the wife was the high wage earner and the husband took primary responsibility of the child care, the parties shared the child care responsibilities with the assistance of a nanny, housekeeper, cook and driver. In addition, it was within the trial judge’s discretion to order the return of personal property to the husband.
For all the reasons above the divorce judgment is affirmed.
Krintzman v. Honig
11-P-2160, July 19, 2012
This matter is the third appeal in the parties’ divorce that has been ongoing for nine years. For this appeal, the parties’ issue pertains to the valuation of the wife’s trust distributions. Procedurally, this matter was remanded because the appellate court determined that it was necessary for the trial judge to make findings regarding the calculations to determine the then present value of anticipated future distributions of the trust. The wife appeals on the grounds that the trial judge committed reversible error.
On remand, the judge held an evidentiary hearing and heard testimony from the parties’ expert witnesses and a co-trustee of the trust. The judge issued detailed findings and rationale, which adopted the husband’s expert’s valuation report and “a longer timeline than that advocated by the wife to project the pattern and amounts of future distributions.” The record also supports the trial judge’s finding that the distributions from the wife’s trust did not distinguish interest distributions and principal distributions “in a disciplined fashion.” The trial judge has a “presumption of soundness” and this standard requires the reviewing court “to be left with the definite and firm conviction that a mistake has been committed.” The trial judge followed the appellate court’s instructions on remand, and the trial judge’s rationale is supported by the record. The judgment is affirmed.
Charlotte E. Beaudry v. James A. Beaudry,
11-P-1787 (entered September 12, 2012).
Upon review of the lower court’s supplemental findings on remand, and the parties’ responses thereto, the Appeals Court (Green, Grainger & Rubin, JJ.) affirmed the Judgment of Divorce Nisi. The panel found that the husband had not demonstrated any clear and convincing error in lower court’s findings of fact with regard to the amount of alimony awarded. Discerning no abuse of discretion in the amount of alimony awarded, the Court pointed out that “the judge adjusted the amounts allocated to alimony and child support, to the end that the former wife shall receive support adequate to meet the needs of the children, but also to meet her own needs based on her continuing ‘major disabling medical conditions.’”
Ruth Therrien v. Alan Therrien,
10-P-1359 (entered September 14, 2012).
In this case, the Appeals Court (Rapoze, C.J., Smith, Vuono, JJ.) affirmed the Probate and Family Court’s order denying the former husband’s motion for relief from judgments on his complaint for modification and on a complaint for contempt filed by his former wife.
In March 2007, the husband filed a complaint for modification seeking physical custody of the parties’ child, termination of his child support obligation, and the imposition of a child support obligation on his former wife. A few months later, the wife filed a complaint for contempt, alleging that her former husband had failed to inform her of increases in his income, failed to pay child support based on his increased income, and failed to maintain health insurance equivalent to the insurance that had been in place at the time of the parties’ judgment of divorce. At the hearing on both complaints, the Probate and Family Court awarded the former husband physical custody of the child, terminated his child support obligation, and imposed a child support obligation on the former wife. At the same time, however, the Probate and Family Court found that the former husband contemptuously failed to inform his former wife and DOR of increases in his income and failed to maintain health insurance equivalent to the insurance the parties had upon their divorce. In light of these findings, the Probate and Family Court calculated the amount of child support the former husband should have paid based on his actual income from 1999-2007, and ordered him to pay the same as arrears. The former husband did not appeal from either judgment, but instead filed a motion for relief from the modification and contempt judgments pursuant to Mass. R. Civ. P. 60(b). The Probate and Family Court denied the former husband’s motion for relief from judgments, and he appealed.
The Appeals Court found that the lower court had not clearly abused its broad discretion in denying the husband’s motion for relief from judgments, and addressed the merits of the former husband’s claims. It found that, contrary to the former husband’s statements, there was “nothing ambiguous” about the language requiring him to inform the wife of changes in his income; further, it rejected the former husband’s claim that his execution of a form allowing his former wife to seek copies of his income tax returns (as required by a separate provision in their separation agreement) satisfied his obligation to inform his former wife and DOR of any changes in his income. In addition, the lower court had not abused its discretion in finding that the former husband disobeyed the terms of the parties’ separation agreement with regard to maintenance of health insurance. Finally, the Appeals Court held that the lower court’s imposition of child support arrears was not a “retroactive modification,” as the former husband claimed in his motion for relief from judgments—rather, it was a means of “enforcing the original order which calls for the child support payments to remain at an amount consistent with the [Massachusetts] Child Support Guidelines as the husband’s income changes.”
Unsuk Izat v. Andrew B. Desiervo,
11-P-203 (entered September 14, 2012).
The father in this matter appealed from a judgment of modification in which the Probate and Family Court declined to order the mother to pay weekly child support, asserting the judge abused her discretion (1) by failing to review all relevant financial information in determining child support (including that the mother was now married and had joint assets) and failing to apply the Guidelines properly, and (2) by requiring the mother to report a change in her income to the father only upon her working 30 or more hours per week. The Court (Rapoza, C.J., Smith & Vuono, JJ.) rejected the father’s argument that the Probate and Family Court abused its discretion in not ordering the mother to pay weekly child support. It held that the Probate and Family Court’s findings and decision were supported by the record, which demonstrated that the mother had no income of her own and could no longer pursue her previous profession as an exotic dancer. The Appeals Court noted that while the mother’s current husband’s income and assets are relevant to the ability of the mother to use her own resources to contribute to child support, the mother in his case had no income or assets of her own (and, as such, the burden of an order that child support should be paid from joint assets would have fallen on the mother’s current husband). The Court also rejected the father’s argument that the lower court erroneously deviated from the Guidelines after attributing minimum wage income to the mother; it held that the lower court appropriately exercised her discretion in not ordering child support of $65/week (i.e., based on a minimum wage job), where the mother incurred significant travel expenses to visit with the children and where she paid half of their medical expenses. The Court also found that the record supported the lower court’s finding that the mother had “aged out” of her profession as an exotic dancer and that she faced significant barrier to other employment (such as her lack of English language skills). Finally, the Court rejected the father’s assertion that the judge had erred in ordering the mother to report her gross weekly income upon her working thirty or more hours per week because this threshold was an “arbitrary predetermination” of what would constitute a material change in circumstances. The Appeals Court clarified that “the reporting requirement simply fixes a point at which the father is to be provided information that could relate to the children’s support needs. The father can still request a modification based on any material change in circumstances of which he is aware. The would include any material change in the mother’s income, including one that involves a work schedule compromising less than thirty hours per week.”
Jennifer L. Craig v. Thomas Craig,
10-P-168 (entered September 17, 2012).
In this case, the father appealed from (1) a judgment finding him guilty of civil contempt by failing to comply with various terms of the parties’ separation agreement (and awarding the mother $5,000 in attorneys’ fees), and from (2) a judgment finding the mother not guilty of contempt (and awarding the mother $2,500 in attorneys’ fees). The Appeals Court (Berry, Trainor, & Hanlon, JJ.) affirmed both judgments.
The Appeals Court considered, in turn, the various counts of contempt against the father. First, it held that there was no abuse of discretion in the judge’s finding that that father contemptuously failed to provide the mother with proof that he maintained a life insurance policy upon her request in accordance with the terms of the agreement, where the record reflected an email from the wife’s counsel seeking the same. The Court also held that the lower court did not abuse its discretion by finding the father in contempt for producing a court-ordered reconciliation of expenses at 1:00 a.m. on the day of the contempt hearing—i.e., an “appallingly late production” submitted 9 months after the due date did not constitute a cure. The Court also held that the lower court did not abuse its discretion by finding the father in contempt for failing to pay his equal share of the children’s educational expenses, where the mother’s post-hearing submissions sufficiently demonstrated that the father had failed to pay $2,699 to their daughter’s school.
The father also appealed from the finding of contempt based on his failure to divide the parties’ retirement assets “equally utilizing the values as of March 31, 2008 set forth in the parties Asset Allocation Chart.” The father claimed that he failed to divide the retirement assets because of a dispute over the interpretation of the agreement; that is, he argued that the parties intended to divide the retirement assets in half based on the number of shares held on March 31, 2008, whereas the mother argued that they intended to divide those assets based on their dollar value as of said date. As such, he argued that the lower court abused its discretion by finding him in contempt where “no clear and unequivocal order” was violated. The Appeals Court disagreed with the father’s suggestion of ambiguity based upon the plain language of the agreement and affirmed the finding of contempt on this count.
The Appeals Court then considered the father’s appeal from the lower court’s judgment that the mother was not guilty of contempt for allegedly failing to transfer sufficient retirement assets to the father. It stated that “[t]he father’s contempt complaint was, effectively, an attempt to reargue the division of retirement assets, a matter already decided in the first contempt judgment.” As such, it affirmed the lower court’s ruling that the mother was not in contempt based on its previous reasoning (i.e., the plain language of the parties’ agreement called for an equal division of the dollar value of the retirement assets—not the shares—as of March 31, 2008).
Finally, the Appeals Court upheld the award of attorneys’ fees to the mother as within the lower court’s discretion. It rejected the father’s argument that an itemized account of the tasks performed for each count of the contempt complaint is a prerequisite to an award of fees. The Court instead pointed out that mother’s counsel had submitted a 17-page affidavit that detailed his background and “laborious efforts” to obtain compliance from the father, as well as a “plethora of correspondence submitted as exhibits” to various filings.
Amy Merrill v. Robert Cecil Johnson,
11-P-1830 (entered September 19, 2012).
The former husband in this case appealed from the amended supplemental judgment of divorce and the order denying his motion to vacate the judgment pursuant to Mass. R. Dom. Rel. P. 60(b), where the primary issue was whether he was entitled to a portion of the wife’s $12 million interest in multiple trusts established by her grandfather (the “Merrill trusts”). The lower court found that the parties had lived a middle-class lifestyle during the marriage since they did not know the extent of the wife’s inheritance. It awarded each party the assets that he/she brought to or acquired individually during the marriage and one- half of the equity earned during the marriage in the marital home; it also awarded the husband $172,751 in assets from the wife (including 15% of the $445,009 that the wife inherited during the marriage from various sources). However, it also held that “[t]he Court does not find that an award of a portion of the wife’s trust assets or future inheritance is appropriate in this case…the Husband’s contribution to the marital partnership was limited…There was no use of any income or principal from the Trusts during the marriage since the wife has no right to receive any distributions from the Trusts until the death of her father. The Court finds that the Wife’s interests in the Trusts, and her potential inheritance from her father, were contingent when the parties were married and remain contingent today.”
The former husband challenged the division of specific assets pursuant to G.L. c. 208, § 34 on appeal. The Appeals Court (Kafker, Katzmann & Carhart, JJ.) rejected the husband’s argument that the lower court erred by failing to include the wife’s interests in the Merrill trusts as part of the marital estate and found that the lower court “fully considered the wife’s interest in the trusts and the extent to which her future inheritance was woven into the fabric of the marriage.” Further, it held that the lower court had correctly applied the standards of Williams v. Massa [431 Mass. 619 (2000)] in awarding the husband most of the non-trust assets “to compensate the husband for the substantial likelihood that the wife would acquire assets in the future”—that is, assets from the Merrill trusts as well as property located in New Hampshire. The Appeals Court also found that the lower court’s decision to award the husband half of the appreciated value of the marital home (rather than half of the fair market value at the time of the divorce) was not plainly wrong and excessive, where the court (1) considered the forgiveness of a promissory loan as part of the wife’s inheritance during the marriage, and (2) awarded the husband 15% of the value of the promissory note along with other inherited assets.
Flatley v. Abrahamian,
Temporary and permanent protective orders were entered by the Probate & Family Court pursuant to G.L. c. 209A barring the father from contacting the mother (his ex-wife) and the parties’ children upon his release from incarceration on charges of possession of an infernal machine (pipe bomb) and violation of probation (cocaine use). Evidence at the hearing included that father abused mother during their eight year marriage; the father placed a gun to mother’s head in front of the children; the father made repeated threats to kill the mother and their children and dogs; the father was a gun collector and possessed more than 100 guns; the father built pipe bombs; the father threatened his wife, girlfriend and children after the divorce; and the father sent letters during his incarceration to the children which contained thinly veiled threats. The father appealed entry of the permanent protective order, claiming that it was impermissibly based on stale events that took place a decade ago during the marriage, and that there was no present basis for the order due to minimal contact since the parties’ divorce and the three year period of the father’s incarceration. The Appeals Court found that the lower court did not abuse its discretion nor was there an error of law as the evidence at hearing established that the mother was in reasonable fear of imminent physical harm, justifying the issuance of a permanent restraining order.
Scarlett v. DaCosta,
The Probate and Family Court entered a temporary order terminating child support based upon the father’s representation that the parties’ child was no longer a full-time college student. After the father failed to introduce evidence at a further hearing that the parties’ daughter was no longer a full-time college student (and the evidence indicated that the parties’ child was in fact a full-time student), the Probate and Family Court entered judgment on the father’s Complaint for Modification. Thereafter, the mother filed a motion to amend the judgment to include an order for retroactive child support in the amount of $2,200, which was denied, and she filed an appeal. The Appeals Court found that the judge erred in failing to order retroactive child support, and ordered that the judgment be modified to include a provision for retroactive payment in the amount of $2,200.
Mirchandani v. Paul,
Upon review of the briefs and record appendix (including exhibits and transcripts) the Appeals Court found nothing to indicate that the Probate and Family Court's findings were inadequate or that there was another basis to disturb the supplemental judgment.
Care and Protection of LEIF,
A mother and her son (age 14) appealed a decision of the Juvenile Court finding the child in need of care and protection due to current parental unfitness of the mother, and committing the child to the custody of the Department of Children and Families (“DCF”). The Juvenile Court found that the mother had repeatedly failed to insure minimally adequate medical care for the child, who had been diagnosed with asthma and ADHD, and that the mother had neglected the child’s educational needs. In addition, the mother repeatedly failed to meet with the court investigator and failed to respond to multiple attempts by DCF to communicate and to meet. Although the evidence indicated that the child’s condition had declined since placement in custody, and that he had become increasingly disruptive and defiant in foster care (and had been through at least six foster placements over the course of fourteen months after which he was placed in residential care), and although the evidence indicated that there was a strong bond between the child and his mother, the Juvenile Court concluded that the mother was unfit to care for the child. The Appeals Court affirmed the Judgment, finding that parental unfitness was established by clear and convincing evidence, and suggesting that issues surrounding the care the child is receiving in DCF custody may be explored in future proceedings.
T.D. v. D.D.,
The wife filed a complaint for divorce in 2007 after a sixteen year marriage during which the husband was the primary wage earner and the wife was the primary caretaker of the parties’ two children. Among the husband’s business ventures during the marriage was a business he developed providing customers with information and “e-books” on obtaining government grants. In 2004, the husband sold that business to his sister’s company in Ireland for $4,000. At trial, the Probate and Family Court credited the opinion of the wife’s expert that the business was worth between $390,000 and $444,000 at the time of sale. The judge used the average of those values, $417,000 as the actual value of the business and included that value (minus the $4,000 received from the sale) within the marital estate, awarding that asset to the husband. The husband filed an appeal challenging the divorce judgment’s division of marital assets, and the wife cross appealed the court’s award of joint legal custody of the children. On appeal, the husband argued that the judge abused her discretion by effectively treating the sold business as a dissipated asset even though the sale of the business to his sister was not made in contemplation of divorce and the wife enjoyed the benefits of the sale. The Appeals Court found that even if it were to assume as asserted by the husband that the appropriate analysis for the husband’s transaction is the standard espoused for dissipation, that concept must be viewed within the context of the statutory factors governing equitable division of marital property, which include the conduct of the parties during the marriage. Here, the judge’s extensive and detailed findings supported the notion that the husband’s manipulation of his business interests harmed the marital estate. As to the issue of joint custody of the children, the Appeals Court concluded that the lower court’s findings, which indicated difficulty or problems communicating and conflicts between the parties exacerbated by the husband’s actions as well as disagreements regarding the children’s health treatments and religious upbringing, did not support joint custody. Accordingly, the Appeals Court vacated the judgment as to joint legal custody and remanded the case, affirming the judgment in all other respects (and denying the wife’s request for attorneys’ fees associated with the appeal).
Attorney Theresa Ramos joined RF&G in 2005. Theresa brings to the firm a wide array of unique legal experiences that have taken her from the halls of large firms to the intimacy of a solo practitioner office, to the judicial chamber as a clerk. Theresa served as a judicial law clerk for the Justices of the Massachusetts Probate and Family Court from 2001-2002. After her clerkship, Theresa focused her practice exclusively in family law. Prior to joining RF&G, Theresa was Of Counsel to Lisa A. Greenberg, and was an associate at the Boston firm Partridge, Anker, and Horstmann LLP. Theresa is also trained in collaborative law as well as mediation.
While her experiences in each of these various settings were rewarding, her practice at RF&G has been uniquely enhanced by the firm’s environment. “Not only do we practice family law, but we are a family as well and we support and learn from each other within our practice.”
Theresa has taken an active role in Boston’s legal community. She is active member of the Massachusetts Bar Association and the Boston Bar Association, where she co-chairs the New Lawyers sub-committee of the Family Law Steering Committee. Theresa also participates in the Limited Assistance Representation program through the Suffolk Probate Court, providing free legal counsel to low-income individuals and families.
Theresa is a graduate of the University of North Carolina at Greensboro (B.A., 1994) and Suffolk University Law School (J.D., 2001).
Patricia A. O'Connell handles all areas of family law litigation and negotiation, including complex divorce, modification, paternity, custody and removal, and reproductive technology cases.
She has been an adjunct professor at Northeastern University School of Law, and is the co-author (with Donald Tye and Phyllis Kolman) of Trying Divorce Cases in Massachusetts (MCLE, Inc. 2007). In 2010, Patricia and firm colleagues Donald G. Tye and Peter A. Kuperstein were co-authors of that book’s second edition.
Prior to joining Prince Lobel, Patricia practiced general commercial litigation at a large national law firm. She is a cum laude graduate of the College of the Holy Cross and the University of Virginia School of Law.
Lisa A. Shapiro is an associate in Prince Lobel's Domestic Relations Practice Group. Her prior work experiences include insurance and reinsurance coverage and litigation, as well as professional malpractice defense.
While attending the Washington College of Law, Lisa participated in its Public Interest Law Clinic, where she represented individuals in disability benefit appeals and public housing grievance procedures.