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

1:28 Decisions

April decisions by Meredith DeJesus, Esq.

Gavin F. McNett v. Marita C. Bart, 12-P-631 (April 2, 2013)

            Husband appealed from a judgment on Wife’s counterclaim for divorce.  The judgment granted Wife, among other things, sole legal and physical custody of the parties’ minor child, provided the Husband supervised visitation, permitted the Wife to reside permanently in Oregon with the minor child, and ordered the Husband to pay to the Wife $61 per week in child support. The Husband contended that the trial court lacked subject matter jurisdiction over the matter on the theory that neither party was domiciled in Massachusetts at the time the action was filed.  Pursuant to Miller v. Miller, 448 Mass 320, 325 (2007), (See and M.G.L. c. 208, § 5), the Appeals Court upheld the trial court’s finding that the Wife was domiciled in Massachusetts at the time of filing,  the cause occurred in the Commonwealth, and the Wife did not come to the Commonwealth for the purpose of obtaining a divorce.

            The trial judge found that consistent with Fiorentino v. Probate Ct., 365 Mass. 13, 22 & n. 12 (1974), the Wife indicated the intent needed to establish domicile as evidenced by her bank account maintained at a local bank, her Massachusetts driver’s license, her Massachusetts motor vehicle registration, and apartment leaseholds in Cambridge and later in Salem where she resided with the husband and minor child. Additionally, the Husband claimed that the trial judge deprived him of a fair hearing in denying his request to continue the scheduled trial, based on his lack of counsel and inability to adequately prepare.  Husband sent his request in the form of a letter to the trial Judge on October 21, 2011, who treated it as a motion to continue, and which the trial court judge denied on October 24, 2011 on the basis that no notice was given to Wife’s counsel and there was no compelling reason to continue the trial.  The trial began on October 28, 2011 and the Husband did not appear.  The trial judge dismissed the Husband’s complaint for divorce with prejudice and entered the judgment of divorce nisi on the Wife’s counterclaim for divorce. 

            The Appeals Court found that the decision whether to grant a motion to continue lies within the trial judge and that a denial of the continuance will not constitute an error absent an abuse of that discretion.  The Appeals Court relied on Commonwealth v. Burston, 77 Mass. App. Ct. 411, 417 (2010), quoting from Commonwealth v. Super, 431 Mass. 492, 496-497 (2000), in stating that the trial judge should balance the movant’s need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted.” Thus, the Appeals Court affirmed the trial court’s decision and awarded the Wife $9,076.38 in appellate attorney’s fees on the basis that the issues raised by the Husband in the appeal were frivolous. 

Ronald H. Lapat v. Joell P. Lapat, 12-P-39 (April 5, 2013)

            Mother appealed from the judgment of divorce nisi on the grounds that a certain paragraph of the parties’ separation agreement violated her constitutional freedom to practice religion and to determine the religious upbringing of her children. The paragraph required that the children continue to be raised primarily in the Jewish religion.

             The Court, citing Felton v. Felton, 383 Mass. 232, 234 (1981), stated that when a child’s religious upbringing is at issue, the law tolerates and even encourages up to a point the child’s exposure to the religious influences of both parents although they are divided in their faiths. In determining whether or not to prevent a party from exposing the children to a particular religious influence, the Court must determine whether “such exposure(s) is/are disturbing a child to his or her substantial injury, physical or emotional, and will have a like harmful tendency for the future.” Id at 235.

            The Court held that where the father was unable to prove through substantial and clear evidence that Wife’s exposing the children to her Christian faith would harm the children, that the paragraph in the agreement must be stricken. The parties included language elsewhere in the agreement that provided that the parties were to utilize a parent coordinator if they were unable to agree issues surrounding the children, including their religion. The Court held that if the Father wished for the children to be Bat/Bar Mitzvahed, and/or of the Wife wanted the children to obtain any Christian education or to obtain any form of religious training, they needed to seek the services of their parent coordinator to mediate the issue.

Dana Jill Gordon v. Stephen Andrew Pitner, 12-P-372 (April 12, 2013)

            Husband appealed from a divorce judgment insofar as it divided the martial property and set the terms of a parenting plan.  Husband maintained that the judge selected an incorrect valuation date in valuing investments and his failure to include the terms of a stipulation regarding summer and vacation visitation in the final judgment was an abuse of discretion.

            Wife brought significant assets to the marriage in the form of investment accounts that were funded by her parents. Husband worked as a plumber throughout the marriage and eventually acquired a family plumbing business during the marriage using borrowed funds from his mother and aunt.  The trial court judge ordered that Wife keep her investments and Husband retain the business.  The judge also found that the increase in the value Wife’s investments during the marriage should be divided equally.  The Appeals Court, citing Champion v. Champion, stated it was bound by the trial court judge’s selection of valuation date unless it [was] clearly erroneous.  Champion v. Champion, 54 Mass. App. Ct. 215, 218-219 (2002).

            The trial judge utilized a statement of valuation of the accounts dated some six months following the date of marriage, as no such statement was submitted into evidence that valued the investment accounts at the time of marriage. The investment accounts and business were markedly different assets and not susceptible to easy valuation or formulaic division.   Where the husband retained all of the interest in his business, which he bought and operated during the marriage, and where the parties were to share the increased value of the investment accounts, the Appeals Court held that the trial judge did not abuse his discretion in valuing the accounts six months following the date of the marriage.  The trial judge considered all the assets in formulating the over-all division of the martial property.

            The Appeals Court vacated the order so much as it denied the Husband’s rule 59(e) motion related to the parenting plan, and remanded the case for further proceedings on the parenting plan.  The trial court’s lack of findings and rulings on the issue of a parenting plan created inconsistency which prevented the Appeals Court from discerning whether the judgment was intended to (1) foster the continued cooperation of the parties and agreement for shared parenting time, consistent with the judge’s statements, findings, and rulings, (2) deny Husband any additional time, or (3) some other outcome.

Thomas Cesso v. Cheryl Cesso, 12-P-996 (April 19, 2013)

            Husband appealed from a judgment that modified the amount of child support and alimony he owed to former wife, on the basis that the trial court failed to address his request for retroactive modification of his child support and alimony obligations.

            The parties were divorced in May 2009, in August 2009 Wife filed a complaint for contempt for unpaid child support. Husband counterclaimed seeking a modification on the basis of unemployment. In January 2011, Husband was ordered to pay a reduced amount of support to the mother in the amount of $500 per week toward child support and $300 per week toward alimony. The trial court entered a modification judgment in June 2011 ordering Husband to pay $750 per week to the Wife as child support during the duration of his 8 week severance pay. After the end of that period, the judgment required the Husband to pay 30% of his then-existing gross income to Wife. Husband filed a motion to amend or alter the judgment, or for clarification. The trial court denied his motion to amend, but clarified that all payments required by the judgment were for child support only.

            Husband limited his request for retroactive modification to child support only, not alimony, thus his claims for retroactive modification of the alimony award was not properly before the Court. The Appeals Court found, however, that the trial judge's decision to deny retroactive modification without explaining how he reached his conclusion was an abuse of his discretion. Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999). The Appeals Court vacated the portion of the judgment related to retroactive modification of the child support and remanded it for findings and rulings on that issue.

Donna McLaughlin v. Michael McLaughlin, 12-P-602 (April 22, 2013)

            Defendant husband appealed from a judgment finding in him in civil contempt of a divorce judgment.  Husband also challenged the trial judge’s award of statutory attorney’s fees and costs to the plaintiff wife in connection with the contempt action.

            Husband violated two specific provisions of the judgment.  The first required the immediate placement of the marital home on the market for sale, and required, amongst other things that the parties be “guided by the listing broker as to the appropriate listing price.”   The second provision required that the husband “maintain a life insurance policy with a death benefit of no less than $250,000.00 naming the wife as beneficiary, as long as he has an obligation to pay child support.” A subsequent amendment to the divorce judgment also stated that “payment of the husband’s child support and alimony obligations was to commence ‘upon the sale of the marital home.’”

            Following entry of the divorce judgment, the parties retained a broker to sell the marital home.  The broker recommended two reductions on the sale price and the husband refused to accept these reductions and sought to replace the broker.  The husband also failed to produce evidence that he applied for $250,000.00 life insurance policy. 

            The trial judge found the Husband in contempt under the first requirement because he neglected and refused to lower the sale price of marital home.  The husband countered that he was only required to be “guided” by the broker.  Citing Caveney v. Caveney, the Appeals Court held that the use of the tem “guided” did not suggest the broker’s recommendation was necessarily binding on the parties and, therefore the husband did not violate a clear and unequivocal command. See Caveney v. Caveney, 81 Mass. App. Ct. 102, 117 (2012).

            On the second requirement, the Appeals Court affirmed the lower court’s finding the husband in contempt for failure to secure the requisite life insurance policy.  According to the agreement, the husband’s obligation to carry life insurance lasted as long as he has an obligation to pay child support, which clearly denotes a termination point not a starting point. 

            The Appeals Court held that the according to O’Connell v. Greenwood, one sound basis of a contempt judgment is sufficient to validate it. O’Connell v. Greenwood, 59 Mass. App. Ct. 147, 153 n.7 (2003). The trial judge’s error with respect to the first requirement did not provide a basis to fully vacate the contempt judgment (though the Court vacated the judgment so much as it required the husband to sign documents necessary to reduce the listing price).  Court affirmed the awarding of attorney’s fees and costs to the wife because the husband was still found in contempt.

P.T.C. v. B.K.G, 12-P-93 (April 26, 2013)

            Father appealed from judgments of modification and contempt.  On appeal he challenged the lower court’s finding that the child reside with the mother, and the judge’s conclusion that his counterclaim for modification was filed in bad faith.  Father also maintained that the judgment of contempt for nonpayment of back child support and attorney fees awards were improper. The Appeals Court affirmed.

            A judgment of paternity was entered in 1995, requiring father to pay mother $77 per week in child support.  In 2009 mother filed a complaint for modification to increase child support, which had remained unchanged since 1995.  In January 2010, the judge entered a temporary order requiring father to pay $183 per week in child support retroactive for one year in addition to attorney’s fees of $250.  In June 2010 mother filed a complaint for contempt for father’s failure to make payment of child support.  The resulting order required father to pay to mother $1,500 in unpaid child support and $250 in attorney’s fees within forty-five days.  In November 2010 father filed an answer to mother’s complaint for modification and a counterclaim for modification seeking custody of the child. Following trial the judge found that the father’s counterclaim for modification had been brought in bad faith and assessed additional attorney’s fees for the trial.  The judge also ordered the father pay $183 per week in child support to mother and found the father guilty of contempt for failing to pay child support, attorney’s fees, the lump sum amount related to child support arrearages, and additional attorney’s fees, she also required a portion of all payments made within ten days, and the balance paid out according to a schedule. 

            Testimony at trial provided that the child’s living with the aunt and mother did not undercut the fact that the child resided with the mother.  The trial judge’s conclusion regarding custody were largely based on the fact that the father had not been involved in his son’s life for a period of many years and that the “absence of any material or substantial change in circumstances since the original paternity determination in 1995, and the son’s evident well-being with the mother, the counterclaim for modification was brought as a response to mother’s request for an increase in child support, and was brought in bad faith. 

            Father testified at trial to a steady income from his job and that he had previously taken on extra work to pay his child support obligations.  Furthermore, his financial statement show3ed that he owned his own home and that he had equity in him home.  Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213-214 (1979).  In light of these facts, the Appeals Court held that the trial court did not abuse its discretion in determining that father was able but unwilling to pay.   

Geraldine Majella O’Shea v. Ciaran O’Shea, 11-P-1960 (April 30, 2013)

            On appeal from judgment of divorce granting legal and physical custody of the parties’ only child to the father and an order in a separate action, expunging a 209A order granted against the father, mother argued that (a) the custody order was not warranted by the evidence and constituted a violation of her due process rights, (b) the order for the division of marital assets and the award of attorney’s fees to the father was not justified by the evidence; (c) the judge erred by improperly excluding police reports containing the child’s allegation of physical abuse of the father; and (d) the judge lacked authority to expunge the 209A order against the father. 

            The Appeals Court held that “the determination of which parent will promote a child’s best interests rests within the discretion of the judge… [whose] findings in a custody case ‘must stand unless they are plainly wrong.’” Custody of Kali, 439 Mass. 834, 845 (2003).  However, the “absence of evidence in support of findings constitutes an abuse of discretion.” Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 486 (2012). Appeals Court found no merit in mother’s arguments following a six day trial with conflicting testimony on key issues from several witnesses.  Judge’s findings were supported by testimony from the father, the GAL, the child, the child’s therapist, and the father’s friend. 

            With respect to the property decision, the Court held that the judge has broad discretion to divide marital property equitably (Pare v. Pare, 409 Mass. 292, 296 (1991)) but the judge must make findings indicating that he has considered all factors relevant under section 34, and has not considered any irrelevant factors. Bowring v. Reid, 399 Mass. 102, 107 (1986).  The judge awarded a disproportionate share of the marital estate to the father for the trauma and wrongful incarceration and criminal charges resulting from mother’s false accusations of abuse.  The judge considered the section 34 factors and his decision regarding the division of marital property were within his broad discretion.

            The police reports were properly excluded because it had not been independently admitted and there was insufficient evidence to authenticate them.  At trial the initial department investigator and both police officers who prepared the reports testified, so the mother did not suffer any prejudice.

            With respect to the trial court’s expunging of the 209A order against the father, the Appeals Court held that the trial court judge made specific findings, supported in the record, after the evidentiary hearing and trial of this matter and the mother’s claim of abuse were false and the restraining order was a result of fraud on the court.

MAY 2013 1:28 DECISIONS by Patricia O’Connell, Esq.

Brian C. Joyce v. Krisanne Joyce, 12-P-339

The husband filed a complaint for modification, claiming that he was entitled to an “offset” for an alleged overpayment of child support and also seeking a declaratory judgment that his obligation under the parties’ separation agreement to pay for “extracurricular activities” was limited to camp-related activities (and nothing else).  The trial court dismissed the complaint for modification as to the extracurricular activities, finding it “does not lie.”  The trial court also dismissed with prejudice the husband’s claim that he was entitled to a credit for child support overpayment.

On appeal, the husband claimed that the lower court’s dismissal of his claim for a child support credit was error because the issued had never been squarely raised.  Affirming the decision of the lower court, the Appeals Court found that the husband had previously “squarely raised” his offset claim in a prior contempt proceeding and in a motion for clarification.

Ioanna I. Kotzabaldiris v. Iraklis P. Kotzabaldiris, 12-P-352

In this case, the wife filed a complaint for contempt against the husband for failure to pay alimony.  The husband filed a complaint for modification, seeking to discontinue his alimony obligation to his former wife.  The trial court issued an order on the wife’s contempt complaint, finding the husband guilty and ordering him to pay$54,810 in alimony arrears for the 2 year period prior to his filing a complaint for modification.  On the same day, the trial court issued a separate judgment discontinuing the former husband’s alimony obligation.

The former husband appealed the judgment of contempt, claiming that the lower court should have retroactively released him from the alimony arrears because his health problems and financial difficulties prevented him from filing a complaint for modification at an earlier date.  Citing Pierce v. Pierce, 455 Mass. 286, 305-306 (2009), the Appeals Court specifically noted that the Probate and Family Court judge had the discretion to retroactively modify alimony arrears beyond the date of the filing of the complaint for modification.  The Appeals Court nevertheless declined to reverse the lower court’s determination based on the incomplete record appendix provided by former husband who, while pro se, was “held to the same standard as those represented by counsel.”  Maza v. Commonwealth, 423, Mass. 1006 (1996).

Elizabeth Janel Cole v. Steven Buckowski, 12-P-716

The former wife appeals from the amended judgment of divorce, claiming (i) that the judge improperly relied on the GAL report that was not in evidence, and (ii) that the lower court should not have vacated a G.L. c. 209A abuse prevention order against the former husband because the issue of the continued validity of the order was not before the court during the divorce trial.

The former wife claimed that the parties’ stipulation (entered into an order at trial) that the GAL report “shall be admitted into evidence without the need of the [GAL] to testify” only relieved the parties from calling the GAL—but not from having to move to enter the report in evidence.  The Appeals Court rejected her claim, noting that the parties explicitly agreed that the report would be admitted (as opposed to merely “admissible”).  The Appeals Court also found that the former wife’s repeated references to the GAL report at the trial foreclosed her argument that she was denied the opportunity to object to the report.  As such, the Appeals Court found that the Probate and Family Court properly relied on the GAL report—and properly made a determination of the former wife’s credibility—in issuing its findings and ruling.

In a footnote, the Appeals Court pointed out that the trial court found that there was not a pattern or serious incident of abuse and that the former wife was not in fear of any type of harm from the former husband.  The Appeals Court nevertheless agreed with the former wife, however, that the lower court should not have vacated the G.L. c. 209A abuse prevention order where (i) the former husband did not ask the trial judge to vacate it, and (ii) the trial court did not advise the parties that she could be considering and ruling on the continued validity of the 20A order.  As such, the Appeals Court vacated the lower court’s November 30, 2011 order that vacated the 209A order, but without retroactive reinstatement of the September 29, 2011 order (which was had extended the 209A order against the husband until September 29, 2012).

Kimberly A. Kozloski v. Stephen J. Kozloski, 12-P-828

The wife appealed from a divorce judgment that awarded physical custody of the parties’ two daughters to the husband.  She claimed that the decision was an abuse of discretion, that the judge’s findings were inadequate to demonstrate that it was in the best interests of the children to change their custody arrangement from the wife, and that the judge improperly admitted certain evidence beyond the purpose offered or permitted by law.

Affirming the lower court’s judgment, the Appeals Court rejected the wife’s contention that the lower court gave an insufficient explanation as to why the children’s best interests were served by the custody order; instead, it noted that the ruling was amply supported by the judge’s findings (which were supported by the evidence).  The Appeals Court pointed out that the rationale of the judge’s decision was, in essence, that the wife tried to poison the children’s relationship with the husband; that she demonstrated angry/inappropriate behavior toward the children; that she was either disinterested in or incapable of maintaining a proper living environment for the children; and was either disinterested in or incapable of ensuring that the children attended school regularly.  The Appeals Court also rejected the wife’s claim that the judge should not have entered certain photographs pertaining to the sanitary conditions in the home because the husband obtained them while under a G.L. c. 209A “stay away” order, noting that the judge’s conclusion that the home suffered from “out of the ordinary uncleanliness” was supported by other evidence.  Further, the Appeals Court also rejected the wife’s claim that certain audiotape recordings obtained by the children (which she alleged were secretly and therefore unlawfully obtained in violation of G.L. c. 272, § 99) should not have been admitted into evidence; it pointed out that there was much evidence in the record suggesting that the wife knew that the children were recording her statements and, further, that “the particular items at issue here appear to be merely cumulative, with little basis to conclude that the judge relied on this evidence to the wife’s prejudice.”

Carol A. Tatro v. Vincent P. Allard, Sr., 12-P-949

The wife appealed the Probate and Family Court’s judgment of divorce, which found that she was not entitled to alimony after 27 years of marriage and a significant discrepancy between the parties’ incomes, because “the wife did not demonstrate a financial need warranting an alimony order at this time.”  At the time of trial, the wife earned $41,000 annually at a day spa and the husband earned $95,236 from his position as a plant supervisor and from part-time employment at the parties’ liquor store.  The wife was awarded $144 per week in child support for the parties’ middle son who resided with her when college was not in session; she was not awarded any child support for the parties’ youngest (18 year-old son) who lived with her, even though the court found that the son “continues to rely upon the wife for many of his basic need[s]…”

In finding that the wife had no “need” for alimony, the lower court expressly discounted the wife’s financial statements based on the wife’s trial testimony that many of the expenses listed on her financial statement were inaccurate and that she had other unlisted sources of income.  The Appeals Court found that the errors the wife acknowledged in her financial statements provided the judge with some reason to question the precise amount of the wife’s claimed shortfall between her weekly income and expenses, “but they do little to undercut her overall claim that she now has been relegated to unsustainable ‘deficit spending.’”  The wife’s conceded additional sources of income provided her with income only slightly higher than the income reflected on her financial statement, and her expense-side errors were not of significant consequence. 

The Appeals Court also rejected the trial court’s implicit suggestion that the wife would be able to position herself to meet her weekly expenses by utilizing the pool of cash she received as an asset distribution in the divorce to purchase real estate with little or no mortgage.  The Court pointed out that the kind of house the wife would be able to purchase, and her resulting station in life, was not established by the judge’s findings or the record; that the wife would have various additional expenses incident to such a home purchase; and that there are “equitable concerns” regarding a “solution” that would require the wife to spend all of the equity she received from her half of the marital home and the parties’ liquor store.  The Appeals Court thus ultimately found that “[a]t least without addressing such concerns, the judge’s findings and reasons do not provide adequate support for her ultimate conclusion that the wife has not demonstrated ‘need.’”

The husband argued that even if the wife could demonstrate need, he lacked an ability to pay.  The Appeals Court pointed out that the lower court did not scrutinize the husband’s expenses or ability to pay because it concluded that the wife had not demonstrated any need justifying alimony.  As such, it found that the denial of alimony could not be upheld on the ground of the husband’s alleged inability to pay.

Accordingly, the Appeals Court vacated the judgment insofar as it addressed alimony and remanded the matter to the Probate and Family Court for further findings and a ruling on alimony.

R.F. v. M.F., 12-P-995

Following an ex parte hearing, the lower court entered a temporary abuse prevention order pursuant to G.L. c. 209A, § 4 that barred “M.F.” from approaching the children of his sister (“R.F.”).  The evidence presented that R.F. sought the order against her brother after he attended a baseball game where her 11 year-old son was playing, stood directly behind the boy at the game, and attempted to speak to him.  R.F. alleged that this behavior caused her son to be “scared and humiliated.”  She did not present any evidence that M.F. had used or threatened violence against the child (or anyone else).  The Appeals Court vacated the 209A order, finding that the evidence he would place R.F.’s children “in fear of imminent serious physical harm” (as required by the statute) was legally insufficient to warrant the order.

Kevin R. Gralton v. Michelle Gralton, 12-P-1220

The Appeals Court in this matter noted that, during the pendency of this action, the Supreme Judicial Court decided Adams v. Adams, 459 Mass. 361, 388-389 (2011), which makes clear that where an interest in a pass-through entity is valued using the income method, the value must be “tax affected” utilizing the approach described in Bernier v. Bernier, 449 Mass. 774, 790 (2007) (“Bernier I”).  The tax-affected valuation of the interest must be used unless it is ‘materially at odds with the totality of the circumstances or…at variance with the requirements of the equitable distribution statute.”  Bernier I, 449 Mass at 785.  However, the lower court in this matter did not tax affect the husband’s interest in an S-corporation (“KAM”), and did not determine whether a tax affected valuation would be at odds with the circumstances or the requirements of the statute.  As such, the Appeals Court held that the aspect of the judgment valuing the interest in KAM must be vacated and the case remanded so that it may be reconsidered in conformity with the requirements of Adams and Bernier I.  The Court also stated that the wife was not foreclosed from offering arguments as to the appropriate tax affecting rate on remand.

The Appeals Court also held that it was not clear error for the lower court to adjust the book income of KAM to reflect the overpayment of salaries to its officers (even where it used the inflated salary number to calculate the husband’s child support obligation).  Further, it found no clear error in the judge’s chosen rent adjustment to reflect the KAM’s payments of artificially low rent to real estate entities owned by the owners of KAM, rather than the higher adjustment proposed by the husband, where the husband’s accountant testified that the amounts stated as actual rent paid to the real estate entities owned by the owners of KAM did not include other amounts paid to the real estate entities to cover payments on mortgages.

Further, the Appeals Court refused to consider the husband’s argument that the power of appointment in a trust (of which the husband was presently a beneficiary) rendered his entitlement a mere expectancy, since it was not raised below.

Based on the forgoing, the Appeals Court vacated so much of the amended judgment as sets the distribution of marital property in reliance on the valuation of the S-corporation; that aspect of the judgment was remanded for further proceedings consistent with the decision.

Arden Tesmer v. Eric Estevez, 12-P-1262

Estevez appealed from the entry of an order by a judge of the Boston Municipal Court that extended a G.L. c. 209A abuse prevention order against him for one year, claiming that the judge lacked sufficient evidence to support his approval of the order (i.e., no evidence to show that threatened Tesmer with imminent bodily injury or caused her to fear imminent physical danger, as required by the statute).  The Appeals Court affirmed the lower court’s holding, noting that Estevez (who was pro se) failed to file his appellate brief with a proper record appendix that would enable the Court to review the sufficiency of the evidence. 

Jessica Breese-Mollica v. John Mollica, 12-P-1270

Due to various procedural deficiencies (including failing to file a timely notice of appeal and failing to provide  a sufficient record appendix), the Appeals Court in this matter (i) affirmed the lower court’s order that denied the father’s motion for reconsideration of the judgments dismissing his complaints for contempt and for modification; (ii) affirmed the judgment of contempt against the father; and (iii) affirmed the order denying the father’s motion for reconsideration of the judgment of contempt against him.  The Appeals Court also noted that the father’s appellate claims of judicial bias as demonstrated at two hearings were not borne out by the Court’s review of the record.

Christine A. Russo-Martines v. John R. Martines, 12-P-1526

The husband appealed from a judgment of divorce following his “de facto” marriage of 20 years (the last 5 years and nine months of which time the parties were legally married), asserting that the judgment as a whole was inequitable.  He specifically alleged error in the distribution of the marital estate (58% to the husband and 42% to the wife) and in the award of alimony to the wife.   The Appeals Court affirmed the judgment.

In distributing the marital estate, the lower court found the husband’s closely held busing company to have a value that was approximately $927,690 higher than the value proposed by the husband.  The lower court arrived at its value by eliminating the husband’s proposed discount for lack of marketability, and by using “fair value” (instead of fair market value) as the standard for valuation.  The Appeals Court found that the lower court’s findings in this regard, and the resulting valuation, were well within its discretion.

The Appeals Court also found no abuse of discretion in the lower court’s distribution of 42% of the marital estate to the wife, despite the husband’s claims that the wife’s contributions could not support such an allocation. The lower court properly gave consideration to the disproportionate assets brought into the marriage by each party; each party’s financial and non-financial contributions to the marriage; and the husband’s decision to deplete an investment account (i.e., marital asset) to pay temporary alimony during the pendency of the proceedings despite his conceded ability to pay from his earned income.

The lower court had also ordered alimony to continue until either party’s death, the wife’s remarriage, or the husband’s retirement—i.e., “what was the traditional scheme in the Commonwealth.”  On appeal, the husband argued that the provisions of G.L. c. 208, sec. 48-55—the alimony reform statute that became effective just two days after the judgment in this case—should be applied.  In such instance, the husband argued, his alimony obligation should be limited to 45.6 months duration (60% of the number of months of the marriage, which the husband asserted was 76 months despite the lower court’s finding that the marriage had lasted 20 years).  The Appeals Court rejected the husband’s argument, finding that (i) the judge did not err in applying the law in effect at the time of trial and still in effect at the time of the judgment, and (ii) even if the lower court had applied the new statute before its effective date, there was ample evidentiary support that the “economic marital relationship” lasted 20 years.  In addition, the Appeals Court found that the lower court was well within its discretion in setting the amount of alimony based on its careful findings (which were supported by the record and considered all relevant factors).

James Smith v. Mary Jones, 11-P-2178

In this matter, the amended judgment of modification of child support was vacated and remanded to the Probate and Family Court for further proceedings “as it has not been shown on the record whether a modification was warranted in the particular circumstances presented here.”  The findings and rationale reflected the lower court’s reliance on the former husband’s incarceration.  The Appeals Court instructed that while incarceration is “a factor” to be considered, it is “not necessarily the controlling factor.”

June decisions by Brian McLaughlin, Jr., Esq.

DALE M. GERARD vs. MICHAEL K. GERARD & another, 12-P-467

In this case, Mary Gerard, the mother of Michael Gerard, appealed an order from the judge of the probate court dissolving her attachments and execution on the marital home previously owned by Dale Gerard and Michael. The court vacated the dissolution order, but did not reinstate the attachments and execution.

Dale and Michael sought a divorce in 2008. Mary than filed a complaint in Superior Court seeking to recover for loans totaling approximately 700 thousand dollars from both Michael and Dale.

In 2009, the Writs of attachment and execution were granted to mother in superior court and the interest properly recorded.  In 2011 the probate and family court issued a judgment of divorce nisi ordering that the marital home be sold.  A special master was then appointed and the next day entered a P&S agreement. The closing on the home was scheduled approximately 2 months later. The day of the close, the special master entered an ex parte motion asking the court to dissolve the attachment and execution. After a three minute hearing this was granted on the grounds that there was an emergency, in that, if the encumbrances were not removed the sale would not close. The marital home was subsequently sold and no proceeds went to the Mary or Michael.

The court held that the record did not demonstrate a genuine emergency. The closing of the home that day was not sufficient grounds. They also held that the unsigned affidavit was insufficient to support the motion. Given the time frame, the master could have brought the motion earlier and allowed Mary time to reply. Thus, the judge erred in granting the motion. However, the appeals court declined to reinstate the attachment and execution holding that a parallel superior court case would provide the proper vehicle to remedy that situation.

STEPHEN SALVIUOLO vs. DANA SALVIUOLO, 12-P-1282

Stephan appealed from the dismissal of his appeal from a judgment of divorce as untimely and from the denial of his motion for reconsideration by a judge of the Probate and Family Court.

Plaintiffs’ appeal violated Mass R.A.A 8(b)(3(ii) in that he failed to acquire the tape cassette recordings in a timely manner and was nearly 5 months late with his notice ordering transcription. The plaintiff argued that without an explicit finding of inexcusable neglect pursuant to rule 10(c) there was judicial error. The appeals court noted that per Maciuca v. Papit, 31 Mass. App. Ct. 540, 534 (1991), the burden of proving excusable neglect lies with the plaintiff.  Nevertheless, they remanded the case so that the probate and family court judge could make explicit findings of facts relevant to the issue of inexcusable neglect.

SHELLEY COHEN vs. M. DAVID COHEN, 12-P-1035

David Cohen appealed a probate court ruling that denied his motion for relief pursuant to Mass.R.Civ.P. 60(b). Because the case involved the Uniform Interstate Family Support Act and the impact of the statute was not apparent from the judge’s decision the order was vacated and remanded for clarification. In California a child and spousal support order was entered in 2000. Sometime later, David Cohen moved to Massachusetts. In 2004, the California child support service requested that the DOR collect approximately $60,000.

            Cohen was subsequently found in contempt multiple times for failure to comply and filed a petition for relief pursuant to rule 60(b) arguing that the contempt judgment issued by the family court in Massachusetts was void for want of jurisdiction.

            However, the appeals court held that UFISA only allows one State at a time to have jurisdiction in enforcing a child support order. Because in February 2009, the California Child Support Services Department had purged Cohen’s arrearages balance and was garnishing his social security benefits, the Appeals Court held that the Probate and Family court in Massachusetts was without authority to enforce the husbands order past Feb of 2009m pursuant to  G. L. c. 209D, § 2-207(b). Thus, the order was vacated and remand for further determination consistent with UFISA.

JUNE M. DEVENEAU vs. FRANK R. ACCETTA, 12-P-1537

June Deveneau appealed from a finding of the probate and family court that Frank Accetta was not guilty of civil contempt. Father by judgment of divorce nisi was ordered to pay child support for their daughter. A stipulated agreement was incorporated into the divorce judgment that father would pay $400 monthly until the daughter was emancipated. Emancipation occurred per the agreement if the daughter reached 18 years old and had no plans to enroll in a post-secondary program.

            The daughter had her 18th birthday and father stopped paying child support in 2010. In 2011, at the civil contempt action brought by June father produced proof of insurance and proof that the State of Washington (where daughter and June lived) had been garnishing his wages in the amount of $550 per month to cover child support and arrearages. The court held that as the purpose of a contempt finding is to achieve compliance with the court's orders, see Furtado v. Furtado, 380 Mass. 137, 141 (1980), there was no error in the judge's decision that the court's objectives were being met through Washington's garnishment of the father's wages.  There was also, no clear error from the judge in concluding that the father had not willfully disobeyed the support order as he was unaware that the daughter had enrolled in post-secondary education and had not had contact with either her or June for some time.

BARBARA STRYER vs. NATHAN STRYER, 12-P-1359

Following a hearing a district court judge vacated a 258E harassment prevention order. Plaintiff Barbara appealed arguing that the judge imposed a higher standard for continuation than is required statutorily.

            Nathan did contact Barbra’s employer and there was a record of some irritating communications. The employer responded by checking to see if plaintiff was all right. Following this, the plaintiff sought a HPO but it was vacated at the hearing.

            The appeals court held that while 258E(d) provided that harassment not occurring during the pendency of the order shall not in itself constitute sufficient ground for denying an order, it was not the only fact the judge took into consideration. The lack of true threat was the reason the judge vacated the order.

            The appeals court held that true threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals. Given that standard the judge properly concluded and was supported by the record that the plaintiff being ‘embarrassed and uncomfortable’ was not sufficient to establish that a true threat had occurred.

KATHLEEN LINCOLN vs. CHARLES B. LINCOLN, 12-P-862

Husband appealed from a contempt judgment claiming there was insufficient evidence and laches.  In a judgment of divorce in 1992, Husband was ordered to pay $100 a week in alimony until the wife’s death or remarriage. The husband stopped paying alimony upon retirement. Approximately 6 years later with no payment remitted during that time, the wife filed a complaint for contempt.

The appeals court held that to hold a party in contempt, the judge must find a clear and undoubted disobedience of a clear and unequivocal command. The complainant must prove his case by a preponderance of the evidence. The judge's ultimate finding of contempt is reviewed under the abuse of discretion standard. An abuse of discretion consists of judicial action that no conscientious judge, acting intelligently, could honestly have taken." L.F. v. L.J., 71 Mass. App. Ct. 813, 820-821 (2008).

            The appeals court held that the original order was clear and unequivocal and that the husband had disobeyed it by not paying alimony for 6 years. There was no abuse of discretion. In dismissing the husband’s argument with respect to laches, the appeals court held that sufficient reason had given by the wife with regard to the delay in pursuing the contempt motion the judge did not abuse his discretion in accepting her reasons which included a house fire, bankruptcy, and general chaos in her life.

MAYRA BERAS vs. CHRISTOPHER MASTERMAN, 12-P-1566

            Mother appealed from a modification judgment and an order regarding transportation which she argues should not have been decided without a hearing. The appeals court held that the trial judge did not abuse their discretion in finding that there had been a material and substantial change in circumstances since the paternity judgment. 

However, because the trial judge had since retired an important case review did not occur. The appeals court therefore remanded the case to the Probate and Family Court for prompt initiation of the review process, consistent with the terms of the judgment, so that any appropriate adjustments may be implemented before the start of the child's 2013-2014 school year.

July Decisions by Melinda Markvan, Esq.

William C. Boone v. Kris Ann Joltki, 11-P-154

The wife appealed denial of her motion for relief from judgment of divorce nisi arguing severe sleep deprivation and material misrepresentations on husband’s financial statement.  The Appeals Court affirmed the decision on the basis that the probate court judge had not abused her discretion in finding that the wife actively participated in the proceedings and the omissions from the husband’s financial statement, while not to be condoned, were not material in view of the magnitude of the marital estate.

Guardianship of Caleb, 12-P-972

The Appeals Court affirmed a judgment dismissing a complaint for contempt brought by paternal grandmother against the maternal grandparents.  The paternal grandmother had guardianship of the minor child and the maternal grandparents had visitation rights.  The paternal grandmother alleged, based on alleged statements to the child’s psychotherapist, that the maternal grandparents violated a stipulation by allowing the unfit mother to have contact with the child.  A GAL declined to waive the child’s psychotherapy privilege.  The judge further denied the paternal grandmother’s motion for appointment of a GAL, reasoning that the parties would not be bound by the GAL’s findings and, given the animosity between the parties, they would continue to litigate the matter.  At the evidentiary hearing, the paternal grandmother failed to call the mother or the paternal grandparents to testify, reducing the basis of her entire contempt to hearsay of a six year old child.

Mont Andrew Phelps v. Jill S. Becker, 11-P-1556

The mother appealed the Supplemental Judgment on Complaint for Divorce, which incorporated a GAL’s opinion that the 2-2-3 parenting schedule in place at the time of judgment was in the children’s best interests, and that the children had adjusted to it.  Even though the mother had been the primary caretaker and the psychological parent at the time of separation, the judge found that the schedule maintained regular contact with both parents, and that it furthered the GAL’s opinion that regular contact with both parents was optimum for the children.  On appeal, the father argued that mother’s M.R.Dom.Rel.P. 59(e) motion to amend the supplemental judgment filed more than 10 days after the judgment was untimely.  The Appeals Court cited the reporter’s notes of Rule 59(e) stating that Rule 59(e) motions filed more than 10 days after a judgment are considered Rule 60(b) motions therefore must be made within a reasonable time, but not more than one year after the judgment. 

Sara Katherine Bellew v. Bruce Wayne Johnson, 12-P-1441

The Appeals Court vacated the Boston Municipal Court’s order denying the plaintiff a full hearing on her petition to extend the abuse prevention order and remanded the case for further proceedings.  The plaintiff appeared pro se at the hearing and the defendant was represented by counsel.  At a side bar conference between the defendant’s counsel and the judge, the defendant’s counsel divulged information that the plaintiff had mental health issues and brought the action out of spite. The parties had a three-year-old child together and there were proceedings in the Probate Court at the time of the abuse prevention hearing.   Ultimately, the plaintiff obtained an abuse prevention order in the Probate Court, however the Appeals Court ruled the case was not moot in the legal sense because the importance of assuring the proper judicial administration of restraining orders is of great “legal significance.” Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 873 n.2 (2002).



Meredith DeJesus is an associate at Sugarman Rogers Barshak & Cohen representing clients in complex family law matters. Her practice involves divorce and separation proceedings, asset division, alimony modification, support and child care arrangements, paternity proceedings, child custody and visitation matters, removal cases and postdivorce modification. In addition, Meredith routinely negotiates and drafts pre-nuptial agreements.  Prior to joining SRBC, Meredith was a domestic relations associate at another Boston law office.

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 Bostonmagazine. 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. 

Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC.  His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation.  He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.

Brian is a graduate of Boston College, magna cum laude and Boston College Law School. His article Not Your Average First Year appeared in the July 2011 edition of the Massachusetts Lawyers Journal.

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.