Family Law Newsletter Spring 2013: Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Tuesday, April 02, 2013

By Rosanne Klovee, Esq., Lisa Shapiro, Esq., Melinda Markvan, Esq. and Patricia O’Connell, Esq.   

Inforzato v. Contois, 11-P-1840 (November 16, 2012)

 Pursuant to the terms of their Separation Agreement, the parties shared physical and legal custody of their children with neither paying child support to the other.  The Mother filed a Complaint for Modification seeking sole legal custody and changes to the parenting plan and the Father filed a cross Complaint for sole legal and sole physical custody.  Both parties claimed that they were unable to make the existing parenting plan work. After trial, the judge awarded the Mother sole legal custody after finding that the parties were unable to co-parent successfully.  The parties continued to share physical custody but the parenting plan was altered with the judge ordering that the children reside with the Mother during the school week and with the Father on weekends after a school adjustment counselor testified that the children needed to be in one home during the school week.  The judge further ordered that the Mother pay child support to the Father in the amount of $97 per week.  The Mother appealed arguing that the terms of the Separation Agreement precluded the judge from ordering her to pay child support to the Father since the children were to reside primarily with her.  The Separation Agreement defined “reside principally” as 20 or more nights out of 30 at the home of one parent in each of 4 consecutive months.  She argued that since the children resided primarily with her, she should receive child support from the Father.  The Appeals Court provided that pursuant to M.G.L. c. 208, § 28, since a material change in circumstances had occurred warranting modification of the divorce judgment in the best interests of the children, the trial court was required to modify the child support arrangement if the existing arrangement was inconsistent with the Child Support Guidelines.  The Appeals Court rejected the Mother’s argument that the Separation Agreement precluded a modification of child support given the plain language of the statute.   The Appeals Court did agree with the Mother’s argument that parenting time is a factor to be considered under the guidelines.  In this case, the trial court’s order and findings of fact did not detail his calculation or reasoning with respect to the amount of child support awarded to the Father.  The case was remanded for an explanation of the judge’s calculation and was later affirmed by the Appeals Court on February 8, 2013, after a review of the further findings entered by the trial court. 

Smith v. Jones, 12-P-616 (November 19, 2012)

The Father appealed from an Order making a temporary order permanent that prohibited the parties’ daughter from being removed from the Commonwealth and that she not be required to submit to any examination within the Commonwealth.  The Superior Court in California which had continued to assert jurisdiction had previously issued an order suspending the Father’s visits and ordering an evaluation of the child by a court appointed evaluator in California.  The Father acknowledged that the probate judge in Massachusetts had the authority to enter emergency orders to protect the child’s best interest and to protect her from harm.  He argued that the permanent order exceeded the judge’s jurisdictional authority because it violated the Federal Parental Kidnapping Act, 28 U.S.C. § 1738A.  The Appeals Court agreed with the Father.  Absent an emergency, the PKPA precludes a court from modifying a custody or visitation order of another court if that court maintains jurisdiction.  Since the court in California retained jurisdiction, the Massachusetts judge’s jurisdictional authority was limited to issuing temporary orders designed to effectuate California’s exercise of jurisdiction while keeping the child safe. Once the California Court asserted jurisdiction and entered its own orders, the probate judge did not have jurisdiction to enter a permanent order.  The order was thus vacated and the case was remanded to the probate court to enter an order extending the original temporary order for a period of 45 days to give the litigants time to bring any continuing concerns regarding the child’s contact with the Father and the court- ordered evaluation to the attention of the California Superior Court.

C.D. v. S.M., 11-P-1337 (November 21, 2012)

The Plaintiff appealed from a judgment of dismissal of his Complaint in Equity to determine paternity of the child.  The Mother who was married to the Defendant at the time of the child’s birth had an affair with the Plaintiff and he contended that the child was his.  After a three day hearing, the judge dismissed the Complaint finding that the Plaintiff had not proved the existence of a substantial parent-child relationship by clear and convincing evidence.  The Plaintiff asked the Appeals Court to modify this standard “in response to modern trends in society and law.”  The Appeals Court declined the request to modify the standard stating that the framework in both M.J.C. v. D.J., 410 Mass. 389 (1991) and C.C. v. A.B., 406 Mass. 679 (1990) were applicable to this case.  The only analysis the Appeals Court thus needed to determine was whether the trial judge’s findings were clearly erroneous.  The trial judge made detailed findings based on the factors established in C.C. v. A.B., and found that the factors did not weigh in the Plaintiff’s favor.  In addition, the Plaintiff had more than eight months between the child’s birth and the mother’s death to develop a substantial parent-child relationship with the child but failed to do so.  The award of legal fees to the Defendant was also affirmed.  The Plaintiff had admitted in his pleadings that it would be ‘almost impossible’ to meet the standard set forth in C.C. and M.J.C. but still advanced the case.  The Appeals Court further allowed the Defendant’s request for an award of attorney’s fees and costs incurred for defending the appeal. 

 

December 2012 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Adoption of Alexandra, 83 Mass. App. Ct. 1101 (2012)

The Juvenile Court terminated the father’s parental rights and granted permanent guardianship of the child to the preadoptive parents pending their adoption.  On appeal, the father argued that the Juvenile Court erred by: 1) failing to determine that that the father’s stipulation of surrender of parental rights was made knowingly and voluntarily; 2) failing to recognize that the surrender stipulation was conditioned on the paternal grandmother being appointed guardian or adoptive parent; and 3) basing its decision on evidence not on the record.  As to the issue of whether the surrender stipulation was made knowingly and voluntarily, the Appeals Court found that although at hearing the father answered negatively the judge’s inquiry as to whether he had a chance to discuss the stipulation with counsel, there was a strong inference available to the fact finder that there was consultation between the father and his attorney on the issues resolved in the stipulation.  In addition, the Guardian ad Litem appointed after the judge found the father was not competent to instruct and assist counsel represented in court that the surrender stipulation was something the father was “doing freely and voluntarily”.  Accordingly, the Appeals Court concluded that the father’s rights were fully protected.  As to the father’s surrender stipulation being conditioned on adoption by the paternal grandmother, the Appeals Court found that although the surrender stipulation set forth the father’s desired outcome of his mother becoming guardian and adopting the child, the surrender stipulation was not conditioned on such occurring.  Rather, the record demonstrated the judge’s consideration of the child’s best interests as well as substantial support in the record that seven of the fourteen relevant factors set forth in G.L. c. 201 Sec. (c)  were applicable, and that there had been evidence of the father’s mental and emotional disabilities (including a diagnosis of schizophrenia that required multiple hospitalizations and would likely continue for a prolonged period of time as well as the father’s inability to comply with service plans).  Finally, although the father claimed that it was error requiring reversal to reopen the proceedings over his objection (the Department of Children and Family Services having moved to reopen in order to address its new plan to allow adoption by the preadoptive parents), the Appeals Court, citing, Adoption of Gillian, 63 Mass. App. Ct. 398, 405-406 (2005), found that the issues of guardianship and termination of parental rights are discrete and that evidence relevant to one issue may or may not bear on the other.  Accordingly, the decree was affirmed.

Adoption of Francesca, 83 Mass. App. Ct. 1104 (2012). 

The mother of the child Francesca appeals from an August 5, 2011 Juvenile Court decree terminating her parental rights.  On appeal, the mother challenged the trial court’s finding that her involvement in abusive relationships, as well as other issues, placed Francesca at risk.  Citing Adoption of Ilona, 459 Mass. 52 (2011) and Adoption of Nancy, 443 Mass. 512 (2005), the  Appeals Court considered whether the trial judge had abused its discretion in that there must be clear and convincing evidence to support the conclusion that a parent is unfit and termination must be in the best interests of the child.  The Court of Appeals concluded that the trial judge’s findings were fully supported by the evidence, which included the mother continuing in a physically abusive relationship with the father of Francesca (who according to a G.L. c. 119 Sec. 51A report had allegedly physically and sexually abused one of the mother’s other children), and her allowing a restraining order to lapse after learning of allegations of sexual abuse and sent the father to school to pick up the child whom he was alleged to have abused.  Further, after the mother ceased her relationship with Francesca’s father, she  continued to engage in abusive relationships (including a relationship with a man having a lengthy criminal history, who was a registered sex offender as of August, 2009,  who the mother visited 53 times in jail between July 2010 and February 2011, and who, after he was released from jail, was arrested in the mother’s presence in April 1011 for first degree child molestation based on allegations by his mother that he had sexually assaulted his 7 year old daughter).  At trial the mother denied that she was in a romantic relationship with this man.  She testified that she did not now that he was a sex offender, but admitted that she knew he had physically abused his children. The trial judge found that the relationship presented a potential danger to the child, citing ,Care & Protection of Isabelle, 33 Mass. App. Ct. 548 (1992), and that the mother had a continuing inability to disentangle herself from men who present a danger to her children.  The Appeals Court found that the trial judge was not required to wait for harm to occur before terminating the mother’s parental rights, citing, Adoption of Katherine, 42 Mass. App. Ct. 25 (1997).  It affirmed the judgment, concluding that while a judge may find that a mother loves and provides for her child to the best of her ability, it may be in the best interests of the child that parental rights be terminated, as where here, the mother has an inability to protect herself or her children from abuse.

Diamond v. Diamond, 82 Mass. App. Ct. 1124 (2012). 

The mother appeals the trial court’s decision to modify the parties’ parenting schedule to provide the father with one additional overnight visit with the children every two weeks, arguing that because the parenting schedule was working, a modification was not necessary.  The Appeals Court found that the trial court did not abuse her discretion in determining that a modification was necessary and in the best interests of the children (ages 9 and 10) because a material and substantial change in circumstance of the parties had occurred despite the workability of the previous visitation schedule.  Pursuant to G.L. c. 208, Sec. 28, a court may modify an earlier judgment regarding the care and custody of minor children as long as the modification is the result of a material and substantial change in the circumstances of the parties and necessary in the best interests of the children.  Here, the trial judge listed several circumstances in her findings of fact and rationale, including that confusing nature of the present visitation schedule and its impact on the children and their school.  In addition, she observed that the children were more mature and more able to spend additional time away from their primary caretaker.  In addition, the judge discussed in detail how the father had moved to the community where the children live in order to make himself more accessible to them.  He also retired and had more time available, and he had taken on a substantial level of involvement in volunteering at the children’s school.  The court considered the children’s individual growth and development, need for consistency, relationships with parents and classmates and the children’s own independence.  The Appeals Court concluded that modifications are not limited to remedy problems, and here the modification substantially furthered the best interests of the children.

Finkelstein v. Finkelstein, 83 Mass. App. Ct. 1101 (2012). 

The husband appeals from certain monetary terms of an amended judgment of divorce nisi, including a ruling that he maintain $800,000 of life insurance for the benefit of the wife to secure alimony and that he pay the wife $325,000 for her legal fees and costs.  As to the life insurance obligation, the husband argued that this obligation was unnecessary because it was absent from the terms of the original divorce judgment and that it is impractical because his health may prevent insurability.  Citing General Laws c. 208 Sec. 36, which authorizes judges to require sufficient security for the payment of alimony according to the judgment, the Appeals Court found that life insurance is a practical and convenient source of security for alimony and that there was no abuse of discretion by the judge ordering that insurance of $800,000 be maintained (the death benefit would secure alimony for 13.33 years or until age 67).  As to the issue of counsel fees, the husband attacked the award on the grounds that it was not supported by objective criteria.  The Appeals Court found that although fees and expenses are awarded at the court’s discretion, the summary form of the award (the judge noted only an ability to pay) and the conclusory character of the wife’s motion for fees (there was no reference to verified itemized time sheets or any account of specific services and hours) prevented an evaluation of the reasonableness of the award.  Accordingly the Appeals Court affirmed the lower court’s ruling that the husband would maintain $800,000 of life insurance and remanded the decision for redetermination by the judge of the amount of attorney’s fees awarded by to the wife, providing that if time sheets are available they should be submitted to the judge, and if such were not available, counsel should furnish some computation of services, hours and hourly rates of attorneys.   

Fraser v. Fassler, 83 Mass. App. Ct. 1101 (2012). 

The husband appealed the denial of a motion for relief from judgment pursuant to Mass. R. Dom. Rel. P. 60(b)(6) pertaining to a judgment denying relief requested by the husband in a complaint for modification of the parties’ judgment of  divorce.  On appeal the husband argued that the wife had made contradictory representations in two successive court filings regarding the source of $65,000 in a joint savings account with her second husband (in one filing the $65,000 was said to be inheritance received from the wife’s new mother-in-law, and in a second filing, the wife claimed that the funds received from her mother-in-law were an inter-vivos gift made to defray the daughter’s college expenses), which cast serious doubt on the evidence used to determine the husband’s support obligations.  The Court of Appeals reversed the denial of the husband’s motion as there was no written decision through which the Appeals Court could determine whether the motion judge considered the husband’s allegation of fraud in deciding the Rule 60(b) motion. The matter as remanded for an explicit finding as to whether the husband’s allegations have any basis, and, if so, whether there was an inter-vivos gift intended to defray college expenses that should result in an amendment to his support obligations.  The Appeals Court rejected the additional issues raised by the husband, which included invitations to reject the Massachusetts child support guidelines or to apply those from other jurisdictions, and his request to be redesignated as the primary parent of the parties’ daughter in order to elicit more financial aid, finding that were it not for the issue of the inheritance and alleged fraud, this case would be an appropriate one for an award of appellate fees and costs.

Jillson v. Loraditch, 83 Mass. App. Ct. (2012). 

The husband filed a complaint for modification wherein he sought an order requiring the wife to pay him alimony and to carry the operating expenses for the parties’ Vermont home until its sale.  His complaint was dismissed on the grounds that he failed to demonstrate a substantial and material change of circumstances since entry of the divorce judgment.  The Appeals Court concluded that the there was no merit to the husband’s modification complaint in light of the judge’s findings, which included:  1) that the husband voluntarily caused his own financial problems by refusing to work; 2) that although the husband’s income decreased his expenses also decreased and that although the wife’s income increased her expenses also increased; and 3)  that the husband had attempted to thwart the sale of the Vermont home, had failed to pay the mortgage on the property and had neglected the property.

Saad v. Saad, 83 Mass. App. Ct. 1103 (2012). 

The father filed a complaint for modification approximately one month after the parties’ divorce judgment entered, alleging that he had lost his job and seeking a downward modification in his child support obligation.  The mother, who was awarded physical custody of the parties’ four children at the time of divorce, then filed her own modification complaint wherein she sought leave to remove the children to North Carolina.  After trial, the Court entered a modification judgment which provided, inter alia, authorization for the mother to remove the children to North Carolina, a visitation schedule and a reduction in the father’s child support obligation to $219 per week “consistent with the child support guidelines”. The Father filed an appeal arguing that the trial judge abused his discretion in allowing the mother to remove the children to North Carolina and erred in his modified award of child support.  Citing Yannas  v. Frondistou-Yannas, 395 Mass. 704 (1985) and Woodside v. Woodside, 79 Mass. App. Ct. 713 (2011), the Appellate Court found that the trial judge had determined that the mother had a sincere reason for seeking removal of the children to North Carolina (as that state provided a financial and emotional support network of family and friends) and that there was no malevolent motive in the mother’s seeking removal to North Carolina. The Appeals Court concluded that the father’s claims for relief from the removal order had no merit as the only argument regarding removal appeared to be an alleged due process violation, and as the father’s additional claims relating either to the original custody decision or decisions involving the Department of Children and Families which occurred prior to entry of the modification judgment.  As to the issue of child support, the trial court found that although the father had lost his job he was earning approximately $35,000 annually in unemployment compensation and the Appeals Court found that there was no support for the father’s argument that the guidelines had been improperly applied.  Although the Appellate Court concluded that the father presented a “weak case for reversal” and that the “appeal boarders on frivolous”, it denied the mother’s request for costs and attorney’s fees and costs incurred in the appeal.

Wolski v. Wolski, 83 Mass. App. Ct. 1102 (2012).  

The wife appealed the entry, sua sponte, of a reciproacal G.L. c. 209A abuse prevention order, arguing that the judge erred in entering the order where there had been no application or request by the husband.  The Appeals Court vacated the abuse prevention order issued against the wife.

January, 2013 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Li v. Zhang, 12-P-360

 

The Wife appeals a modification judgment ordering the Husband to pay college expenses (capped at $1,058 per week) and reducing child support to $200 per week retroactive to 2009 in light of the fact that the child was living at college full time most of the year and the father was paying her substantial college expenses.  The judge specifically determined that the Child Support Guidelines were inapplicable because the parties’ combined income was over $250,000 per year, the child was over 18 and was in college.  The Appeals Court applied the Wasson standard of review on modifications of child support and determined that the Wife was unable to demonstrate that the judge abused her discretion.  The judgment was affirmed.

Morris v. Tynan, 12-P-197

 The Husband, pro se, appeals a judgment of divorce that denied his request for alimony and divided marital property. His record appendix lacked a copy of the trial transcript, therefore the Appeals Court was unable to find an adequate basis upon which to disturb the judgment.

 Moore v. Moore, 12-P-375

Prior to the Alimony Reform Statute, the Wife appeals a modification judgment ordering $250 per week in alimony, thereby reducing a temporary order of $350 per week in alimony.  The parties were divorced in 2003.  Their Separation Agreement required the Husband to pay $483 per week in child support until their only child became emancipated in 2009.  Upon Wife’s complaint for modification filed in 2008, the judge temporarily ordered $350 per week in alimony.  The parties’ health allowed the Husband to work full time, earning approximately $120,000 annually and the Wife worked 37.5 hours at $18.58 per hour.  On appeal, Wife argues that the trial judge’s decision reducing alimony to $250 per week must be reversed because it fails to set forth any rationale to explain how her findings of fact were weighed or considered in arriving at the alimony award.  Based on the judge’s findings, the Appeals Court was unable to find that the alimony award is plainly wrong or excessive.

Lourie v. Lourie, 11-P-431

 The Mother appeals a judgment on her 2009 Complaint for Contempt for Father’s failure to provide monthly income documentation and quarterly payments of a percentage above base pay.  She also appeals judgment on Father’s 2009 Complaint for Modification whereby the parties stipulated to a parenting coordinator, leaving to the judge the issue of payment, which was determined as Father paying 65% of the cost and Mother paying 35%.  During the contempt proceedings, the Mother did not request an evidentiary hearing.  The contempt judgment modified the original child support order by requiring the Father to pay more workable formula of determining child support.  The Appeals Court reasoned that the judge, who was familiar with the case, did not abuse his discretion in modifying the prior order in an effort to simplify the child support calculation and minimize ongoing legal fees.

Murphy v. Murphy, 12-P-167

 The main issue in this case is Wife’s appeal of the judge’s denial of her motion to alter or amend judgment for failure to apply interest on judgment of her second Complaint for Contempt brought against her former husband for failure to transfer his interest in the marital home and pay $160,000 within 90 days to accomplish the equitable division of assets.  In her brief, the Wife incorrectly cites G.L.c.235, s.8 & G.L.c.231, s.6C as requiring 12% interest applying to the $160,000 that the Husband should have paid. 

Every judgment for the payment of money shall bear interest from the day of its entry, the award of interest is an ‘automatic, ministerial task’ of the clerk and occurs regardless of whether a judge instructs the clerk to add the interest or not. Osborne v. Biotti, 404 Mass. 117 (1989).  Further, an award as part of an equitable division of a marital estate, begins to accrue interest on the date of the judgment. Karellas v. Karellas, 54 Mass. App. Ct. 469, 472 (2002).  However, under G.L. 235, s.8 the rate of interest is computed using the same rate as provided for prejudgment interest.  In this case, there was no prejudgment rate of interest, therefore, the statutory rate of 7% found in G.L. c. 107, s. 3 applies to the $160,000. 

Because the Wife did not address whether the allegations of her second complaint for contempt fall within the purview of Section 34, failing to request specifically that she be awarded interest under Section 34A, rather she directed her question of interest to G.L. c. 235, s.8, the Appeals Court declined to disturb the judgment. 

The Wife also appeals that there should be an assessment of interest on the first Contempt judgment, however the judge did not make an express finding that the Husband was found in contempt.  Unlike the second judgment that held the husband in contempt for “failing to pay Plaintiff the amounts required,” the judgment on the first contempt was not clear that the Husband was found in contempt. 

Oliveira v. Oliveira, 12-P-620

The parties were divorced in 2006 and the Wife appeals denial of her declaratory judgment action to obtain judicial interpretation of the meaning of a provision of the parties’ handwritten separation agreement from 2006, which states “Wife shall receive 50% of the coverture value of Husband’s military pension for the length of the marriage.”  The judge found the agreement clear and unambiguous and determined that Wife shall receive half of Husband’s pension based upon his rank and time of service as of the time of the divorce.  Wife argues that she is entitled to the benefit of postdivorce increases in the husband’s rank and pay grade.  The Appeals Court found the agreement to be ambiguous as to the parties’ intent with respect to the effect of postdivorce enhancements in the husband’s position. The relevant question is the intent of the parties, which is not clear.

Keener v. Keener, 12-P-447

The Husband appeals the arbitrator’s amended award that was confirmed by the Probate Court.  The Appeals Court found the amended award to be within the scope of G.L.c. 251, s.13(a)(1) as an “evident miscalculation of figures or an evident mistake,” and within the scope of G.L.c.251, s. 9 “for the purpose of clarifying the award.” 

February, 2013 Decisions of the Massachusetts Appeals Court Pursuant to Rule 1:28

Jane Doe v. John Doe, 12-P-90

At the beginning of the trial on the complaint for divorce and the wife’s request for removal of the parties’ four children to California, the husband—who had been diagnosed with stage III melanoma—made an oral motion (without advance notice to the wife or the court) to continue the trial.  The court denied the motion, and the husband became upset and left the courtroom; the trial proceeded in his absence to conclusion.  A single justice of the Appeals Court—after consideration of the likelihood of success and the balance of harms, including bringing the children back from their new home in California—denied the husband’s motion for a stay of execution of the judgment of divorce nisi.  The husband appealed pursuant to Mass. R. App. P. 6(a)(1), arguing that the judge abused his discretion in not granting his oral motion for a continuance on the first day of trial.

The Appeals Court highlighted the trial court judge’s discretionary authority to grant a motion to continue.  It held that the lower court’s finding that the husband was “not impaired” in his ability to participate in a court proceeding deserved “great weight,” and that the lower court’s “description of a pattern of [husband’s] conduct that is suggestive of bad faith” was also significant.  Based on the record, the Appeals Court could not “say that the single justice abused his discretion in concluding that the judge properly considered the interests of not only the husband, but the wife and their children.” 

The Appeals Court also rejected the husband’s argument that the single justice also abused his discretion in denying relief because the trial judge did not adhere to the requirements of Yannas. v. Froudistou-Yannas, 395 Mass. 704 (1985), in allowing the wife to remove the children from the Commonwealth.  The record demonstrated that the wife had always been the primary caretaker for the children; that the husband had an erratic visitation pattern and provided very little financial support; and that the wife’s California-based boyfriend was the one who provided the financial support for the wife and the children.  Under these circumstances, “the single justice was warranted in not only considering the merits of the appeal, but also was warranted in considering the detrimental effect on the children and their mother, their primary caretaker, both in terms of the financial and social burdens, if they were required to return from their new home in California.”  As such, the Appeals Court found that the husband failed to establish that the single justice committed an error of law or abused his discretion in denying the motion for a partial stay of execution.

Mary Ann Z. Swistak v. William Stelmokas, 12-P-628

In this case, the plaintiff/maternal grandparents filed a complaint for grandparent visitation of their granddaughter in 2007(two years after their daughter—the child’s mother—died in an accident).  The plaintiff/grandparents and the child’s father entered into a judgment by stipulation in 2008, which provided the grandparents with weekly visitation and one week of vacation each summer.  In June 2009, the plaintiff/grandparents filed a complaint for modification to formalize the visitation schedule (which they alleged had expanded since the initial judgment), but also included negative allegations about the defendant/father’s parenting.  In May 2010 (for reasons that are unclear in the decision), the Probate and Family Court granted the defendant/father’s motion to terminate visitation temporarily.  In October 2010, the grandparents filed a motion for further temporary orders to reinstate the weekly schedule.

At the hearing, the plaintiff grandparents learned from the judge that the child had been adopted by the defendant/father’s new wife.  The judge then opined that the grandparents no longer had standing under G.L. c. 119, § 39D because an adoption had taken place.  As such, the judge then sua sponte dismissed both the complaint for modification and the underlying complaint for visitation (which resulted in the judgment incorporating the parties’ stipulation).  The plaintiff/grandparents appealed.

Reviewing the issue de novo, the Appeals Court held that the lower court erred as a matter of law in holding that the plaintiff/grandparents no longer had standing to seek visitation under G.L. c. 119, § 39D because the minor child had been adopted by her stepmother.  G.L. c. 119, § 39D explicitly provides that any grandparent visitation rights ordered by a court shall be terminated “if said minor child has been adopted by a person other than a stepparent;” as such, the plaintiff grandmother’s right to visitation was unaffected by the child’s adoption by her stepmother.  Further, the Appeals Court also agreed that the plaintiff/grandmother had been denied due process—specifically notice and an opportunity to be heard—when the lower court determined that she no longer had standing and sua sponte dismissed both the modification complaint and the underlying visitation complaint.  The Appeals Court therefore (1) vacated the portion of the judgment purporting to dismiss the complaint for visitation, the portion of the judgment dismissing the plaintiff’s complaint for modification, and the orders denying the plaintiff’s post-judgment motions to alter/amend and for reconsideration; and (2) remanded for proceedings before a different judgment “in light of the history of this case.”

Lawrence Watson v. Sherry Walker, 12-P-785

In this case, the Appeals Court held that it could not reasonably conclude that the Probate and Family Court judge had abused his discretion by requiring supervision and other restrictions on the plaintiff/father’s visitation time with his non-marital child. 

The child was born to the parties in 2002, and the defendant/mother was awarded sole legal and physical custody of the child in 2004.  In that judgment, the father’s right to visitation with the child was suspended until he completed parenting classes.  The mother also obtained a G.L. c. 209A abuse prevention order against the father after their romantic relationship ended in 2003; after a series of extensions, this order was made permanent in December 2006.

The plaintiff/father filed a complaint for modification in May 2007, seeking unsupervised visitation.  Following a hearing, the Probate and Family Court issued a judgment in August 2009 that allowed only for supervised visitation under certain circumstances.  The Appeals Court affirmed the decision on appeal, finding that the lower court’s decision was well-supported by the findings of fact, none of which were clearly erroneous, including: the mother continued to fear the father, who had abused both her and the child in the past; the father’s last visit with the child was in 2003 when she was 7 months old; the father failed to complete his court-ordered parenting class until 2007 (approximately 3 years after the judgment ordering him to do so); the father put his own needs before the child’s and had not contributed to her care/comfort in years; and the mother’s fears that the father may harm or kidnap the child were reasonable.

Kristen Bryant v. Jonathan Maislen, 12-P-4

In this case, the plaintiff sought and obtained an ex parte G.L. c. 209A abuse prevention order in the Lowell District Court.  At that time, she testified that she had been living in Newmarket, New Hampshire, left due to her fear of the defendant, and currently resides in the Lowell area.  The temporary order required that the defendant not abuse or contact the plaintiff; that he stay away from her residence and workplace; and that he surrender his firearms and FID card to the Newmarket police department; and that he permit said police department to accompany the plaintiff to retrieve her belongings. 

At the return date on the extension of the temporary order, the defendant appeared and (1) moved to dismiss the case on the grounds that the court lacked personal jurisdiction over him; and (2) argued that the plaintiff had failed to meet her burden of showing that she was in fear of imminent serious physical harm.  The District Court rejected both of the defendant’s claims based upon the testimony of the parties and extended the order for a one-year period.

The Appeals Court held that the lower court did not abuse its discretion in extending the abuse prevention order based on the plaintiff’s testimony (and by refusing to credit the defendant’s testimony).  The Court nevertheless disagreed with the judge’s determination that the Lowell District Court had personal jurisdiction over the defendant (a New Hampshire resident whose only demonstrated contacts with Massachusetts were phone calls made to the plaintiff’s friends and family).  The Court therefore held that while the District Court had authority to issue an abuse prevention order to protect the plaintiff (who was living in the jurisdiction), it was without authority to impose affirmative obligations on the defendant in light of the lack of personal jurisdiction.  As such, the Court vacated so much of the extended 209A order that required the defendant to turn over his firearms to the Newmarket, New Hampshire police department and to allow the plaintiff to retrieve her property from his New Hampshire residence.

Guardianship of Caleb, 11-P-1190

In this guardianship dispute between two sets of grandparents, the Probate and Family Court awarded sole permanent guardianship of the grandchild to the maternal grandparents and established a visitation schedule for the paternal grandmother.  The paternal grandmother then filed a complaint for modification to increase her visitation with the grandchild, which the Probate and Family Court dismissed.  The paternal grandmother then appealed both the award of permanent guardianship to the maternal grandparents and the dismissal of her complaint for modification to increase visitation.  The Appeals Court affirmed, rejecting the paternal grandmother’s various claims that the Probate Court judge was biased in favor of the maternal grandparents; improperly elevated testimony as to the animosity between the sets of grandparents; violated applicable standards in appointing a GAL who had previously served in a different capacity as the child’s attorney/GAL-next friend in prior paternity and guardianship actions; was unduly biased by the GAL’s report; and erroneously delegated judicial authority to the child’s therapist.

Maria Pellegrino v. Joseph Villapiano, 11-P-1117

The plaintiff in this case appealed from the denial of her application for an abuse prevention order pursuant to G.L. c. 209A by a judge of the Boston Municipal Court.  She also argued that a judge in the same court erroneously permitted the defendant to discover her medical records without a hearing, that another judge in the same court made erroneous discovery rulings and improperly heard matters in the case, and that two judges erred in denying her request for an ex parte order and a one-year abuse prevention order.

In affirming the judgment below, the Appeals Court pointed out that medical records are discoverable in G.L. c. 209A proceedings and that this request was not without basis given the fact that the plaintiff alleged sexual assault.  The Court found no prejudice with respect to the use of the discovery materials in light of the fact that the medical records were submitted to the lower court under seal and not admitted into evidence; it further rejected the plaintiff’s other discovery-related claims.  Finally, the Appeals Court held that the lower court judges did not abuse their discretion in declining to enter either an ex parte abuse prevention order or a one-year abuse prevention order, as they were not required to take the plaintiff’s allegations at face value.

Ms. Klovee is a partner in the firm focusing her practice on family law, including divorce, modifications, paternity, and custody disputes.  Ms. Klovee is also a trained family law mediator.  Mr. Klovee prides herself on the dedication she brings to her work.  

As a litigator, Ms. Klovee understands that her clients need a strong and supportive advocate.  As a trained mediator, Ms. Klovee enjoys serving as a neutral guide to assist parties in negotiating an amicable resolution to the issues they face.  Ms. Klovee enjoys client contact and has vast experience working with people in crisis.  Ms. Klovee strives to provide compassionate and top rate service to everyone she has the privilege to work with.


Ms. Klovee is a partner in the firm focusing her practice on family law, including divorce, modifications, paternity, and custody disputes.  Ms. Klovee is also a trained family law mediator.  Mr. Klovee prides herself on the dedication she brings to her work.  

As a litigator, Ms. Klovee understands that her clients need a strong and supportive advocate.  As a trained mediator, Ms. Klovee enjoys serving as a neutral guide to assist parties in negotiating an amicable resolution to the issues they face.  Ms. Klovee enjoys client contact and has vast experience working with people in crisis.  Ms. Klovee strives to provide compassionate and top rate service to everyone she has the privilege to work with.

Ms. Klovee graduated cum laude from Suffolk University Law School in 2001.  She has been recognized as a Rising Star by Boston Magazine and Super Lawyers Magazine for the past several years. 
Ms. Klovee is an active member of the Boston Bar Association, the Massachusetts Probate and Family Inns of Court, and also serves on the MCLE Family Law Advisory Committee. 

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.

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.

Patricia A. O'Connell is an associate in Prince Lobel's Domestic Relations Practice Group. She 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.

In June 2011, Patricia was on the faculty of the MCLE seminar "Calculating Divorce: It's Getting Personal." Since 2009, Super Lawyers has recognized Patricia as a Massachusetts "Rising Star" in the area of Family Law, as published in Boston magazine. 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.