Spring 2014 Newsletter: Reported Cases

By Attorney Melinda Markvan, Attorney Lauren Pond, and Attorney Wendy Hickey

 Lourie v. Lourie, 466 Mass. 1023 (November 2013)

The SJC affirms a single justice decision affirming the probate judge’s various orders in part requiring the petitioner to liquidate certain assets to pay for and meet with the GAL.   The single justice denied the petition on the basis that “petitioner has or had other avenues of relief available.”  In a two page letter, without a brief or memorandum, the SJC could not find that the single justice erred or abused his discretion. 


Care and Protection of JAMISON (February 20, 2014)

Questions Presented:

In this case, the SJC had to determine (1) whether the Juvenile Court has subject matter jurisdiction over petitions for sibling visitation (GL c. 119, s. 26B(B)), where the petitioning child is in State custody and his siblings are wards in custody of legal guardians; (b) whether the presumption of validity afforded to parental decisions regarding grandparent visitation applies also to decisions of fit guardians regarding sibling visitation; and (c) whether the lower court judge abused his discretion when mandating the visitation sought by the petitioning sibling.

Summary of Facts:

In October 2005, Jamison (9) and three of his siblings, Christopher (15), Fergus (5) and Rosalie (4) became wards of their maternal aunt Darlene and her spouse Dorothy (Guardians). Jamison began exhibiting behavioral issues in 2006 and was hospitalized twice for emotional issues. In late 2007, Jamison alleged that he was being harmed physically by his guardians and all children were removed from the care of their aunt.  Following this incident, the Guardians voluntarily terminated guardianship of Jamison and he was placed in permanent custody of DCF.

In April 2011, having not seen his siblings since he was placed in DCF care, Jamison petitioned the Juvenile Court for visitation with Fergus and Rosalie pursuant to GL c 119, s. 26B(b). Jamison, now 16, had been doing well in school, had not exhibited behavioral issues since 2009, and continued to see a therapist.  The guardians opposed visitation until the wards were older, saying that visitation would be disruptive and harmful to the wards.  Neither Fergus nor Rosalie wanted to visit Jamison. There was no expert testimony regarding the impact of visitation on Fergus and Rosalie. 

The Juvenile court found that visitation would be in the best interest of all three children and ordered supervised visitation 4 times a year. The guardians and wards appealed to the Appeals Court and the SJC transferred the case on its own motion.

Held:  

The SJC found (1) the Juvenile Court has subject matter jurisdiction over sibling visitation where the petitioning child is in DCF custody and his siblings are wards subject to guardianship (using statutory construction, the SJC found that the Juvenile Court had subject matter jurisdiction); (2) the presumption of validity afforded to parental decisions regarding grandparent visitation does not apply to judgments of fit guardians in such circumstances; and (3) there was insufficient information to inform the judge’s determination whether visitation would serve the best interest of all three children.  Thus, the SJC remanded for further proceedings.


McDonald v. Caruso (March 11, 2014)

 Question Presented:

 Whether the clear and convincing evidence standard is the appropriate standard to be applied when a defendant seeks to terminate a permanent abuse prevention order and whether the judge in the instant case abused her discretion in finding that defendant failed to meet said burden.

Relevant Facts:

 Tracey McDonald obtained an abuse prevention order against Kevin Caruso in 1994 in the State of New York.  Thereafter she moved to Massachusetts.  In 1999, McDonald obtained an abuse prevention order in Massachusetts after she began receiving odd mail from Caruso including calls from a credit card company which revealed he had obtained credit using her name and social security number and failed to pay the bills.  She then saw Caruso watching her and sought a new order in Massachusetts.  The order was extended on two occasions and then made permanent.

In May, 2011, Caruso filed a motion seeking to terminate the permanent order.  Caruso claims the following changes in circumstances since entry of the permanent order (1) he moved from New York to Utah; (2) he has been happily married since 2004; (3) he has retired from the “business world”; (4) more than twelve years have passed since the issuance of the permanent order; and (5) there have been no “alleged or proven violations” of the order.  Caruso states that he has moved on with his life and that the permanent restraining order continues to cause disruptions in his life including added scrutiny when he passes through airports, disqualification of charitable pursuits that require record checks, and his inability to hunt and obtain a pistol permit for self-protection.

McDonald did not appear at the hearing on Caruso’s motion to terminate the permanent order.  Nevertheless, the trial judge denied Caruso’s motion to terminate the permanent order because he failed to establish the material change in circumstances by clear and convincing evidence.

Held:

Relief from a permanent abuse prevention order may be obtained where it is no longer equitable that the judgment should have prospective application.  The only standard to apply where the defendant seeks to terminate an order, recognizing the standard may not be the same when both parties seek to modify the order, is one of clear and convincing evidence of a material change in circumstances.  It is the defendant who bears the burden of proof.  Passage of time cannot be reason for such a change inasmuch as the trial judge issuing the order understands that time will pass.  However, in this case, Caruso’s move to Utah might be a material change.  Unfortunately, the initial order was entered when he was living in New York and McDonald was living in Massachusetts.  What used to be a six hour car ride is now a six hour plan ride. 

Of greater significance is Caruso’s marital status.  Unfortunately, the only evidence he presented of this change was his own testimony.  To prove that he had truly moved on with his life, Caruso needed to demonstrate that he has not only moved on to another relationship but that he has moved on from his history of domestic violence and retaliation.  Caruso might still meet his burden of proof if he were to renew his motion with stronger evidentiary foundation, perhaps records from the police departments where he currently resides and his CORI reports showing no additional domestic abuse over the last twelve years. 

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.

Lauren Ann H. Pond is a trial lawyer at DLA Piper.  She very active in the Boston office's signature pro bono Special Education Project, representing Massachusetts Advocates for Children (MAC). She assists families through the procedural hurdles associated with the Free Appropriate Public Education (FAPE) process and works with children who have physical, emotional and psychological disabilities.  Ms. Pond also works on pro bono matters through the Women’s Bar Association.  She is an active member of the Boston Bar Association Family Law Section Newsletter Committee. 

Prior to joining DLA Piper, Ms. Pond was a law clerk at the Superior Court of Massachusetts, where she worked extensively with justices on trials, hearings and motions sessions in all phases of civil and criminal litigation.

Attorney Wendy Overbaugh Hickey is a graduate of Fisher College (1994), Suffolk University (1998) and Suffolk University School of Law, cum laude (2003).  She has been employed by Nissenbaum Law Offices since 1994 and, since 2003 has been practicing all aspects of family law.

Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).  She is active in the Boston Bar Association (Member of the Family Law Section Steering Committee and Co-Chair of the Family Law Section Newsletter Committee) and is also a member of the Massachusetts Bar Association, the Women’s Bar Association and the American Bar Association.  Wendy is also a member of the American Academy of Matrimonial Lawyers Foundation.

Wendy co-authored “What You Need To Know About Vaughan Affidavits” which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.         

She has lectured at CLE’s on the topic of International Child Abductions under the Hague Convention.

Wendy has been named a Super Lawyer by Boston Magazine’s publication of Super Lawyers in 2013 and prior to that as a Rising Star for the last few years.