January 1:28 Decisions

Monday, January 30, 2012

Szajda v. Szajda
10-P-1569
January 3, 2012

An amended judgment from the Probate and Family Court ordered that the mother have sole physical custody of the parties’ three children.  The father appealed on the grounds that the judge “(1) improperly rejected the GAL’s recommendations without adequate analysis or good cause, (2) failed to take proper notice of the harmful effect of the mother’s boyfriend on the children, and (3) abandoned a gender-neutral analysis by failing to consider whether the parties’ roles had changed or should change following their separation.”  The father also argued in the alternative that even if the mother was awarded sole physical custody, the trial court should have ordered that the children attend the Holliston school system instead of their current school system, Attleboro, because Holliston school system was of a “superior nature” when compared to Attleboro.  The trial court was affirmed.

The trial judge rejected the GAL’s recommendations because there was an “inherent bias” by the GAL in favor of joint physical custody.  The trial judge further found that the GAL did not consider that the mother was the primary care giver of the children; the father’s lack of interest in caring for the children in the past; the effect of the a custody change on the children; and the effect on the children if there were to spend half of their time in different communities.  Based on these findings and the evidence on the record, the trial judge did not abuse his discretion.

Regarding the father’s other issues on appeal, the trial judge found that the mother’s relationship with her boyfriend and the boyfriend’s presence in the children’s lives did not adversely affect the children’s welfare or well-being.  The trial court relied on the fact that the mother had been the children’s primary caretaker even though it acknowledged the father’s post-separation efforts to become more actively involved in the children’s daily lives.  Lastly, the father failed to show that the trial judge abused his discretion in ordering the children to remain in their current school system. 

Lopez v. Lopez
11-P-641
January 9, 2012

The parties were involved in a contentious divorce but eventually agreed that the wife was allowed to remove their son to Ireland.  The wife obtained a 209A restraining order against the husband the day before she and their son were to leave for Ireland.  The basis for the 209A restraining order was that the husband told their son that the next time the son visited the husband in Columbia he would not return him to his mother and that he would kill his mother if she interfered.  The 209A restraining order was not renewed at the hearing and it expired on its own.  The husband’s motion to vacate the 209A restraining order and expunge it from the record was denied and he appealed.

The trial court’s order is affirmed because the husband’s motion to vacate the restraining order became moot because the 209A order expired on its own terms.  Furthermore, in order to expunge a court record, it was the husband’s burden to show “through clear and convincing evidence” that the record resulted from fraud perpetrated on the court.  The husband failed to meet that burden.  The trial judge did not abuse her discretion by crediting the wife’s testimony, and based on the wife’s testimony regarding what the husband said to their son, there was sufficient grounds to issue a 209A restraining order.

Bertrand v. Bertrand
11-P-674
January 9, 2012

The parties had a long-term marriage, and after trial, the husband was ordered to pay the wife alimony until she turned 62 years old.  At that time, the husband’s alimony obligation would end because the wife would be eligible to received Social Security benefits.  The wife appealed the judgment, which was affirmed.

The parties had a traditional marriage wherein the husband worked outside of the home and the wife was the primary homemaker.  They enjoyed a “working class” lifestyle.  At the time of trial the parties had no significant assets and substantial liabilities.  At the time of trial, the husband was 65 years old, in poor health, lived in a rented room with no kitchen and had plans to retire.  The wife, at the time of trial, was babysitting her grandson 5 days a week for 8 hours per day in exchange for living with her daughter. 

It is noted that this decision was made before the Alimony Reform Act was passed.  The trial judge found that the parties were in dire financial and personal circumstances and considered such circumstances under the G.L.c.208, § 34 factors. The principle that “spouses should not be left to become public wards where the supporting spouse has an ability to pay” was not applicable in this case because of the parties’ circumstances.  There was no error for the trial judge to accept the husband’s intention to retire.  The trial judge did not abuse his discretion, and the judgment is affirmed.

Grabert v. Grabert
10-P-1903
January 10, 2012

After trial, the husband was ordered to pay the wife alimony in the amount of $2,000.00/week.  The husband appeals the alimony award.

The parties had a long-term marriage and lived an “upper-class lifestyle.”  The husband was in the roofing and construction business for over twenty years and that the business he worked for was owned by his brother and that the husband was only an employee of the company.  The wife had limited education and no employment.  She was the primary homemaker and caretaker of the parties’ children, and at the time of trial she was living with her daughter and her standard of living had decreased. 

The husband’s testimony regarding any financial matters was not found credible by the trial judge.  The trial judge found that that the husband had a higher income and earning capacity then as shown on his financial statement and that he had significant tax liabilities to the IRS.  The trial judge also discredited the husband’s testimony regarding a stipulation between the parties that may have been intended to invalid an IRS lien on the marital home; and that it was the husband’s girlfriend, and not him, who made the down payment on their home in Canton.  The trial judge awarded the business and its property to the husband and ordered him to pay $2,000/week in alimony. 

The trial judge’s findings considered the wife’s need for ability and the husband’s ability to pay her alimony.  The wife’s circumstances do not allow her earn future income as she has no stated occupation or earning capacity.  Whereas, the husband does because he was awarded the business and he has future income earning potential.  Despite his claims that he has no ability to pay, the trial judge did not find the husband credible as to his financial circumstances and found that he has a higher earning capacity than the husband claimed.  The trial judge made findings in accordance with G.L. c.208 § 34, and they were not “plainly wrong and excessive.”  The trial judge did not abuse his discretion and the judgment is affirmed.

Killilea v. Chabot
11-P-437
January 10, 2012

In 2008, a trial judge entered a judgment on the mother’s complaint to establish paternity.  The judgment ordered, in pertinent part, that the parties share legal and physical custody of their daughter and that the child’s primary residence would be with the mother for school attendance, which was Quincy.  In 2010, the father filed a complaint for modification seeking that he be named “as the primary residential parent for purposes of school attendance.”  The father’s change in circumstances was that he had moved from his Boston condominium to Cohasset, which had a “school system comparable to that of a private school.”  The trial judge found that there was a change in circumstance and ordered the relief sought by the father, and the mother appealed.

There must be a substantial change in circumstance to modify an existing judgment.  Here, the father testified in the 2008 paternity trial that he was thinking about moving to a community with a “highly-rated school system.”  The trial judge was aware of the father’s intentions but ordered that the child’s primary residence be with the mother for purposes of school attendance. The trial judge also considered the child’s natural aging in the provisions of the judgment.  The fact that the father’s intentions of moving and the child’s natural aging were considered and anticipated at the time of the original judgment, there was no material or substantial change in circumstances.  The modification judgment is vacated.

Orrall v. Orrall
10-P-1915
January 10, 2012

In 2005, the parties executed a separation agreement that was incorporated and the child-related and alimony issues were merged into a judgment for divorce nisi.  In July 2007, the father filed a contempt related to visitation, and the mother filed a complaint for contempt and a complaint for modification.  In May 2008, the mother filed a motion for attorney fees pendente lite.  After three days of trial, the partied entered into a stipulation to resolve their contempts and the mother’s modification.  After the stipulation was entered as a modification, the parties were heard on the mother’s motion for attorney’s fees pendente lite.  The father was ordered to pay the mother’s attorney’s fees in the amount of $7,500.00.  The father filed a motion for reconsideration, which was denied, and the father appealed.  The mother challenged the timeliness of the father’s appeal.  The appellate court, however, held that the father complied with the time standards set forth in Rule 59(e).

The father argues that the trial judge’s order for attorney’s fees was flawed.  The father claimed that he was not given an opportunity to cross-examine the mother at trial, and that at the hearing for attorney’s fees; the father did not request an evidentiary hearing or ask to cross-examine the mother.  The father waived his right to cross-examine the mother when he entered into a stipulation with the mother.  During the hearing for attorney’s fees the father waived his right to cross-examine the mother when he failed to do so at the time.  The Father was given ample opportunity to be heard and did not request for an evidentiary hearing.  Thus, the trial judge did not abuse his discretion when the father failed to act. 

The father also argues that the trial judge “committed prejudicial error by allowing the mother’s lawyer to state in her argument that a previous award of attorney’s fees had been discharged in bankruptcy.”  The father’s argument is without merit because the father did not object at the time of trial, and there is no indication that the trial judge relied on the comment.  The trial judge’s award of attorney’s fees to the mother was warranted based on her financial circumstances.  Lastly, the mother was also awarded attorney’s fees for the appeal because “[t]he father’s appeal is premised entirely on unpreserved claims of error” and that the father’s “meritless appeal” was frivolous.  The trial judge’s award of attorney’s fees to the mother is affirmed. 

Smith v. Williams
10-P-1059
January 13, 2012

The parties were same-sex partners who were together for eight years.  During their relationship, the parties decided to have a child together through artificial insemination, and the defendant was the birth mother.  When the parties ended their relationship the child was 4 years old.  The plaintiff filed a verified complaint in equity seeking joint legal and physical custody and visitation of the minor child.  The trial judge found that the plaintiff was a de facto parent of the child and awarded visitation to her as well as ordered her to pay child support.  The defendant filed a motion for summary judgment to the claim for joint legal and physical custody, which was granted.  The plaintiff appealed the portions of the judgment pertaining to the child support award and the motion for summary judgment.  The defendant appealed a trial judge’s order vacating the dismissal of the plaintiff’s appeal.

“In granting the motion, the judge stated, among other things, that the comprehensive statutory framework in place to address the issue of child custody makes no reference to de facto parents, and that by virtue of that statutory framework, the court’s equity powers could not provide a remedy in the case.”  The trial judge further held that an award for joint legal and physical custody would violate the defendant’s “constitutionally protected liberty interest in determining the best interests of her child.”  The plaintiff raised the principles of estoppel in challenging the defendant’s motion for summary judgment; however, there is no “theory of parentage by estoppel” and, thus, no error by the trial judge.  The judgment on the motion for summary judgment is affirmed.

The child support award is vacated and remanded to the trial judge because the parties did not have the “opportunity to litigate” the issue.  The defendant dismissed her counterclaim for child support prior to trial, and it was not an issue before the trial judge.  Instead, the trial judge ordered child support without apprising the parties that she would consider the issue of child support.  It is noted that the findings and rationale make no reference to child support.  It was error for the trial judge to award child support without giving the parties an “opportunity to litigate” the issue.

The defendant’s appeal was based on the grounds that the plaintiff did not comply with the rules of procedure.  The appellate court may overlook procedural error in certain circumstances, and the facts presented here persuaded the court to allow the plaintiff’s appeal to proceed.  The “judicial policy favors affording every reasonable opportunity to a party to have her appeal considered on the merits.”  Here, the plaintiff made “meaningful efforts to perfect her appeal” and that the plaintiff “raised at least some meritorious issues on the appeal.”  Thus, it is appropriate to let the plaintiff proceed with her appeal.

Cosgrove v. Cosgrove
11-P-658
January 18, 2012

The wife filed a complaint for contempt and for declaratory judgment, and the husband appeals from the consolidated judgment.  The husband was found in contempt for failure to pay child support but he does not challenge this part of the judgment as he conceded to the fact that he failed to pay $6,300 in past child support in 2009. 

The husband takes issue with the trial judge’s order that the husband pay past child support based on his gross salary, commission and/or bonus “if, as and when actually received” as per the terms of the parties’ separation agreement and the husband challenged the trial judge’s interpretation of said terms.  Also, the husband was not able to decipher between his true business expenses and expenses paid for his benefit because of his poor record-keeping.  The trial judge placed the burden on the husband to produce documentation in support of his business expenses, which the husband challenged.  Lastly, the husband appeals the award of the attorney’s fees to the wife.  The judgment is affirmed because there was no error of law or abuse of discretion by the trial judge.

McCarthy v. Mulcahy
10-P-1986
January 24, 2012

The plaintiff is the ex-wife of the defendant’s husband who is now deceased.  The parties were divorced in 1997 and per their separation agreement the husband was ordered to maintain life insurance policy in the minimum amount of $200,000 for the benefit of the parties’ unemancipated child.  The policy was payable to the plaintiff for the benefit of the child or to a trust for the child’s benefit.  When the ex-husband died he did not have an insurance policy and the plaintiff filed a complaint for declaratory and equitable relief.  After a trial, the defendant was ordered to plaintiff $200,000 from the decedent’s estate.  The defendant appealed.

The defendant appealed on the grounds that the plaintiff’s pleadings contained procedural errors; the plaintiff failed to prove a breach of contract; and that the $200,000 awarded to the plaintiff was an “improper windfall.”  First, the defendant’s claims that the plaintiff’s pleadings contained procedural errors do not stand because if there are no allegations of unfair surprise or prejudice and it is clear that the plaintiff is the real party interest an amendment to the complaint would be permitted. 

Second, the defendant claims that the plaintiff failed to meet the “burden of proof to establish the existence and extent of the alleged breach of contract” because she offered no evidence that a trust did not exist.  At trial, the plaintiff and another witness testified that they had no knowledge that a trust had been established for the unemancipated child.  The plaintiff’s testimony was prima facie evidence that there was no such trust, and the defendant failed to present rebuttal on this issue.  Thus, the trial judge took the prima facie evidence as true and that no trust existed.

Lastly, the plaintiff sought equitable relief because the decedent failed to maintain a life insurance policy per their separation agreement; however, she sought recovery in her own name rather than that of the unemancipated child.  Per the separation agreement the unemancipated child was the intended beneficiary and not the plaintiff, and that the purpose of the life insurance policy for the support and education of the child.  The monetary award was made to the plaintiff outright without any guidance as to how the money should be used by the plaintiff.  Thus, the judgment was vacated and remanded to the trial court for clarification of the monetary award and findings to support the award.

C.P. vs. R.S., administrator
No. 10-P-1010
January 31, 2012

The plaintiff is the biological father of a young boy whose mother was married to the defendant.  In 2003, the father and the mother had a child, Samuel, but she was married to the defendant with whom she also had a son with.  Their son, Frederick, was born in 1999.  Even though the mother and her husband were separated while she was pregnant with Samuel, they reconciled before he was born and the defendant was present at his birth.  The defendant was listed as the father of Samuel on his birth certificate, and the mother, defendant, Samuel and Frederick lived together as a family.  The mother passed away in 2006, and since her death Samuel has been living with his mother’s husband and Frederick.

While Samuel’s mother was alive, she brought Samuel to the father for visits, and she received some financial support from him.  However, the visits and the support ceased when the mother died.  It has been the defendant who has been solely responsible for Samuel’s daily needs, well-being and financial support.    

Nine months after the mother died, the father filed a complaint in equity requesting that he be declared the father of Samuel.  The father’s complaint was dismissed.  The father then filed a complaint to establish paternity but the judge entered a “directed finding” for the defendant because the father failed to introduce any DNA evidence as to the parentage of Samuel.  The father filed a motion to vacate the judgment, which was allowed and the father’s complaint to establish paternity was reopened.  After trial, based on genetic marker testing the judge found that the father was indeed Samuel’s father.  The trial judge, however, found that the father was unfit to parent Samuel based on the circumstances and that it was in Samuel’s best interests that the defendant be awarded legal and physical custody of Samuel with visitation between the father and Samuel.  The father appealed the judgment.

The trial judge applied the principle set forth in Guardianship of Estelle which states “the fitness of a particular parent cannot be judged without a consideration of that parent’s willingness and ability to care for the child, as well as the effect on a child of being placed in the custody of that parent.  One who is fit to parent in some circumstances may not be fit if the circumstances are otherwise.  A parent may be fit to raise one child but not another.”  Based on the evidence, the trial judge found that the father had visits with Samuel but the father’s involvement was not one of being an active parent or taking responsibility for Samuel’s financial support or taking care of Samuel’s basic daily needs.  It was the defendant who has been primarily responsible for all of Samuel’s needs before and after his mother’s death.  The defendant has treated Samuel like his own son and Samuel calls him “daddy”.  After the mother died, the father ceased his visits with Samuel and stopped giving any financial assistance towards Samuel’s support. 

The trial judge also found that the defendant has fostered Samuel’s relationships with his brother and both of his grandmothers.  Samuel and his brother Frederick have a close bond, and Samuel sees both of his grandmothers on a regular basis.  There was no evidence that the father would continue to foster Samuel’s relationships.  The trial judge found that it would not be in Samuel’s best interests if his relationship with the husband, his brother and grandmothers were terminated.  This effect on Samuel was appropriate for the trial judge to consider when considering the father’s fitness.  In light of the fact that the father had a minimal caretaking role of Samuel and given the closeness of Samuel’s family relationships, the trial judge properly found that it would not be in Samuel’s best interests if custody were to be awarded to the father.  The trial judge’s decision is affirmed.