Family Law Newsletter Fall 2012: Reported Case Summaries

Thursday, November 08, 2012

By Theresa Ramos, Alexis Kaplan, Allison Silber and Mindy Markvan

Murphy v. Murphy

11-P-1032

The parties were issued a judgment of divorce nisi on November 29, 2010.  The husband appealed the removal of the minor child on the grounds that the Yannas standard was inapplicable.  He also appealed the judgment of divorce nisi on the issues of payment of the minor child’s uninsured medical expenses, and the award of attorney’s fees to the wife.  The portion of the judgment regarding the payment of the minor child’s uninsured medical expenses is vacated and remanded to the trial court, and all other aspects of the judgment is affirmed. 

            In 2007, the parties met and married in New York.  At the time, the wife, who is originally from Honduras, lived near her sister and other family members and the parties lived with the husband’s parents.  In 2008, the parties had a daughter and the wife was the primary caretaker but the husband was substantially involved with the child’s care, too.  The wife was not employed during the daughter’s first year of life and the husband’s employment status caused him to take a job in Massachusetts.  The parties moved to Massachusetts but the wife filed for divorce in January 2010 because “she felt lonely and isolated in Massachusetts” and the parties’ relationship broke down.  The wife also sought permission to remove the minor child back to New York

            After the wife filed for divorce, the parties continued to live together and they shared the parenting responsibilities of their daughter.  When the parties separated, they agreed to a shared custody arrangement (which was incorporated into a temporary order) in that the daughter would continue to reside in the home and the husband would care for her there during the weekends.  The wife took care of their daughter during the week. 

            At trial, the wife testified as to her desire to be closer to her sister and other family members who could help her with child care and that she had a job opportunity as a hairdresser.  The trial judge also found that wife was primarily responsible for the minor child and awarded the wife sole physical custody of the parties’ daughter.  In applying the Yannas standard, the trial judge found that the wife had a “real advantage” in moving and had “no motive to use the move as a means to deprive the husband of contact with the child” and that it was in the child’s best interests to allow the wife to remove the minor child to New York based on the evidence at trial.  In addition to awarding the wife sole physical custody of the minor child, granting her permission to remove the minor child from the Commonwealth with a visitation plan for the husband, the trial judge ordered that the husband pay for all of the minor child’s routine, uninsured medical expenses and to pay the wife’s attorney’s fees in the amount of $4,000.00.

The portion of the judgment which required the payment of the minor child’s uninsured medical expenses is vacated and remanded because the trial judge did not make findings or explain why there was a deviation from the Child Support Guidelines (“CSG”).  Per the CSG, the custodial parent must pay for the first $250 of routine uninsured medical expenses; however, the judgment ordered the husband to pay 100% of the minor child’s uninsured medical expenses without any explanation. 

Lastly, the husband’s argument that the trial judge abused his discretion by awarding attorney’s fees to the wife fails because the trial judge has broad discretion to award attorney’s fees, which is presumed to be correct.  Based on the evidence at trial, there was a “substantial income disparity” between the parties, and the trial judge had the opportunity to observe the wife’s attorney and determine whether or not her attorney’s fees were reasonable. 

M.C. v. T.K.

463 Mass. 226 (2012)

The father in a never married couple who lived together for the first two years of the child’s life was ordered by the trial court judge to pay an amount to the mother as child support which effectively equalized the parties’ incomes despite the fact that the parents had shared physical custody, the income amounts were above the Massachusetts’ Child Support Guidelines, and both parties were already comfortably providing for the child.  The SJC overturned the lower court’s ruling which used child support to equalize a never married couple’s incomes.

As part of the lower court’s ruling which required the father pay child support to the mother, the mother was then required to pay for a number of the child’s specific expenses, including daycare and extracurricular activities.  This was remanded to the lower court along with the child support ruling which would have effectively equalized the incomes.

The father is twenty years older than the mother, has retired, and is living off of savings he has accrued.  In filing the financial statement he showed weekly income from dividends and interest, but that amount was well below what father listed as spending on weekly expenses, and father did not list a number of uncontested actual expenses including entertainment, travel, clothing, and upkeep of his condominium.  The trial court judge saw fit to impute income to the father based on his average weekly expenses – both those listed and those acknowledged.  The imputation of income was upheld, as judges have wide discretion in this regards, particularly when a party’s financial statement is “vague, misleading, or untruthful.”  Mother’s income is around $150,000 as a doctor, and she is actively pursuing a salary increase which will serve to raise her income.

The Court found that because the parties had shared physical custody, and each provided for the daughter in a similar manner including clothes, toys, and strollers at each home, and each parent also took the child on nice vacations, there was already a showing that each parent provided a similar upper middle class standard of living for the child.  With the shared custody which was already in place, each parent was already providing equally for the child insofar as food, clothing, and childcare costs, as well as suffering any potential opportunity costs of being a residential parent.  Each parent was able to provide this based on his/her own financial set up.  The a judge does have discretion in child support, particularly when the incomes fall outside of the Guidelines, the Court found no reason to equalize incomes through child support in a situation like this when there was already shared physical custody and no “gross disparity” in standards of living which would have affected the child.  Instead, the Court worries that this type of policy can create unfairness for the parent with greater income in a situation like this where the child has approximately the same standard of living with each parent and the parents share physical custody.

Father additionally appeals from a denial of request for attorney’s fees which he requested based on discovery and litigation demands from mother he considered to be frivolous.  The denial of attorney’s fees was upheld by the Court, as the judge had sound discretion in this area, and the Court also noted father’s failures in timely responding or responding at all to specific requests of mother’s, which also resulted in dragging out the litigation.

Hunter v. Rose,

SJC-11010

Facts:

In 2003, a lesbian couple executed a declaration of domestic partnership in California, where domestic partnership laws grant same-sex domestic partners rights that are identical to those of marriage.  In 2007, the couple moved to Massachusetts.   

After the Plaintiff had several unsuccessful attempts at conception of a child, the Defendant gave birth to a daughter in August 2007.  Both women contributed to the daughter’s care, although the Plaintiff was the primary caretaker due to the Defendant’s medical residency.  In April 2008, the Plaintiff became pregnant, using the same sperm donor. 

The parties’ relationship deteriorated, and the Defendant and daughter moved out of the couple’s home in October 2008.  The Defendant ceased all communication with the Plaintiff by moving with the daughter to Oregon, cancelling the Defendant’s prior phone number, refusing mail from the Plaintiff, and refusing to respond to the Plaintiff’s other attempts at correspondence. 

In November 2008, the Plaintiff filed a complaint for custody of the daughter.  In December 2008, she filed an amended complaint in equity seeking sole physical custody of the daughter and unborn child, as well as a complaint for divorce.  The Defendant acknowledged she wanted neither physical nor legal custody of the second child. 

The Essex Probate and Family Court held a trial over November 2010 and January 2011.  The Essex judge dissolved the registered domestic partnership, declared both parties legal parents of both children, granted Sole Legal and Physical Custody of the second child (another girl) to the Plaintiff, and Joint Legal Custody of the first daughter with Primary Custody to the Plaintiff.  The Court awarded the Plaintiff attorney’s fees. 

SJC Holding:

The SJC upheld the lower court’s ruling.  First, the SJC affirmed that the registered domestic partnership was the equivalent of a marriage because that is the California law, and because a child’s welfare is promoted by having two parents.  The Defendant is a legal parent of both children because both children were born to the registered domestic partnership and the Defendant consented, in writing, to both children’s conception. 

Second, the SJC upheld the custody arrangement because the Plaintiff would support the involvement of both parents, whereas the Defendant demonstrated her refusal to do the same.  Additionally, the Plaintiff had moved fewer times than the Defendant, and had more stability. 

Third, the SJC upheld the attorney’s fees.  The Plaintiff’s attorney was highly competent with reasonable fees, and a bulk of the trial was the result of the Defendant’s refusal to recognize the Plaintiff’s legal parentage of the first child, a point that a single justice of the Appeals Court affirmed prior to trial.   

T.E. v A.O.,

11-P-246

Prior to the new alimony reform statute, this judge’s decision to award one year of alimony and a division of assets for this two month marriage was upheld.  The husband was a doctor and the wife was a department director.  They met working at the same hospital in 2006.  Shortly after meeting, they moved into wife’s condo and the husband contributed $2,100 per month toward shared expenses.  Thereafter they were engaged and planned a lavish, expensive wedding.  Five nights before the wedding, the husband flew to Las Vegas for his bachelor party, where he charged $20,000 at a “men’s club” and started a relationship with a woman he met in Las Vegas. 

Weeks after their October 2008 wedding, the wife found out about the men’s club charge and the relationship.  She filed a Complaint for Separate Support in December 2008.  The husband moved to California to be closer to the woman he met in Las Vegas.  The wife sold her condo at a loss, took a leave of absence from the hospital and was eventually hospitalized for emotional health issues surrounding the breakdown of the marriage. 

Pursuant to section 34, a short term marriage does not preclude an alimony award; and all property in which the parties have an interest is included in the marital estate.  At the time of trial in December 2009, the judge awarded the wife one year of alimony and $29,500 as a division of assets. The judge took into consideration the husband’s infidelity and the wife’s emotional health issues as factors in her determination.  The judge viewed the $29,500 payment to the wife was equitable given the husband’s contribution to the diminished assets and “debt” incurred during the marriage.


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).


Alexis Kaplan is a solo practicioner who founded the Law Offices of Alexis B. Kaplan, LLC in 2011 in order to provide clients with dedicated representation that is also sensitive to clients’ needs. The firm focuses on issues relating to estate planning, probate, guardianships, and non-profit organizations.

Alexis takes a personal interest in all of her clients and when creating estate plans she works with her clients in order to understand their wants to tailor each family’s estate plan. Alexis understands that clients have a variety of planning goals, such as protecting their families, donating to charitable causes, and ensuring control over assets.
The greater community is very important to Alexis, and to that end she actively engages in pro bono work. She is an active panel attorney in guardianships and family law with the Volunteer Lawyers project, and she is also involved in pro bono work for the Women’s Bar Foundations’s Elder Project, creating wills, health care proxies, and powers of attorney for clients.


Alison Silber is a family lawyer in private practice in Cambridge.  She specializes in mediation and negotiation,  and also appears regularly in Middlesex, Suffolk, and Norfolk Probate and Family Courts.  Prior to opening her practice, Alison clerked for the Superior Court of the District of Columbia. 
Alison is a member of the Boston Bar Association and Massachusetts Bar Association, and she provides pro bono services for the Boston Volunteer Lawyers Project and the Women’s Bar Foundation Family Violence Project.
 


Melinda Markvan (Mindy) is a family law attorney practicing in Massachusetts. She received a Bachelor’s Degree in Philosophy & Women’s Studies from Goucher College in Baltimore, Maryland, and a Juris Doctor from Massachusetts School of Law in North Andover, Massachusetts. Prior to starting her own practice, Mindy was an associate family law attorney with Lewis & Leeper, LLP in Framingham, Massachusetts and a paralegal & law clerk with Nissenbaum Law Offices in Boston, Massachusetts. Mindy’s career as a paralegal and an attorney has given her over 1o years of experience exclusively in family law.  Mindy has appeared in Probate and Family Courts throughout the Commonwealth on matters involving complex divorce and post-divorce matters. She is a member of the Boston Bar Association, Family Law Newsletter and Steering Committees and is committed to Pro Bono work.