February 1:28 Decisions

Monday, March 26, 2012

Gribbell v. Gribbell, 11-P-533 (February 1, 2012)

After a long term marriage, the trial court equally divided the value of property in Nantucket the Husband had received halfway through the marriage as a gift from his family which was used and enjoyed by the parties during the marriage.  The trial court declined to discount the Husband’s interest in the property by reason of his minority interest as there was no present intention to sell the property and the management and operation of the property was relatively free of controversy among the Husband and his family.  The judge ordered more cash to the Wife to equally offset the Husband’s retained interest in the Nantucket property and did not consider the potential taxes associated with a hypothetical future sale of the property.  The alimony award to the Wife included a provision for alimony to increase to an amount equal to 30% of the Husband’s commission income above $120,000.  At the time of trial, the Husband’s income was greatly reduced from the income he earned during the last nine years of the marriage. The Appeals Court stated that any concern for excessive alimony would arise only after the Husband’s income rises above its level during the last nine years of the marriage, which was speculative at the time of trial.  Judgment affirmed in its entirety.

 Nutting v. Werling, 10-P-1770 (February 24, 2012)

As part of the divorce judgment in 2006, the Husband was ordered to pay alimony in the amount of $125 per week from his income, the source of which was workers’ compensation benefits.  Two years later, the Husband’s benefits ended and his sole remaining income came from VA benefits of $243 per month. The Husband filed a Complaint for Modification seeking to terminate alimony.  Later, the State Retirement Board determined that he was permanently disabled as a result of the injury that resulted in his prior worker’s compensation benefits and awarded him accidental disability retirement benefits retroactive to February, 2008.  Pursuant to the QDRO entered at the time of divorce, the Wife was to receive a portion of the Husband’s retirement benefits.  The Husband received a lump sum the following May, part of which was paid to the Wife.  The Husband moved pursuant to Rule 60(b) to revoke the QDRO arguing it was inconsistent with the separation agreement which he claimed contemplated division only of regular retirement benefits that had accrued at the time of divorce, not disability retirement benefits.  He also argued that even if the QDRO applied to disability retirement benefits, his spouse should not have received the enhanced benefits that flowed from the disability.  After a trial, the Court terminated alimony and revoked the QDRO, substituting an amended QDRO.  The Wife appealed.  A motion pursuant to Rule 60(b)(1) for post judgment relief must be brought within one year.  In this case, the Husband’s motion was well past the one-year limit.  His claim that his motion was brought under the catch-all provision of Rule 60(b)(6) also failed because the motion was clearly brought due to mistakes in the QDRO as evidenced by the motion and the Husband’s arguments on appeal. The trial court also retroactively terminated the Wife’s alimony based on a finding that the Wife had more income on a monthly basis than the Husband at the time of trial.  The Appeals Court remanded the case because it was not clear in the findings that the judge considered the Section 34 factors (the Wife raised the Husband’s employability based on his partial disability vs. her complete disability and resulting inability to supplement her income) although the order did clearly contemplate the Wife’s need for support and the Husband’s ability to pay.  The timing of the retroactive relief also needed clarification since it preceded the Wife’s receipt of social security benefits which rendered her income higher than the Husband’s. 

Ballou v. Garcia, 10-P-1800 (February 24, 2012)

This case involves a child born out of wedlock shortly after the parties finished high school.  The parties raised the child jointly until their relationship ended within a year of her birth.  The Father was continuously involved with the child until the Mother moved to California with the child without telling the Father a few months after the end of their relationship.  The Father filed a complaint seeking custody when he learned of the Mother’s departure.  The Mother returned to the Commonwealth a month later.  The trial court granted the parties shared legal and physical custody in temporary orders.  A later temporary order granted the Father sole physical custody after the Wife went to California with the child for a short trip that was agreed upon by the Father.  After trial, the judge awarded the Father primary physical custody and sole legal custody until the child’s sixth birthday at which point the parties would share legal custody.  The Mother was granted visitation every other weekend and 2.5 hours once a week along with holiday time.  The judgment also ordered that the child be raised Catholic unless the parties agreed otherwise in writing. Lastly, the Father was awarded counsel fees in the amount of $22,500.  The Appeals Court remanded the case because it was not clear in the record why the Father and not the Mother was granted custody.  The trial court had found that both parents had good parenting skills and were devoted to the child who was attached to both parents.  There was a long history of the child residing with the Mother and the temporary order of joint custody had resulted in the child doing well.  The trial court did find that the Mother’s family disrupted her parenting relationship with the Father and cited four instances in which she had failed to communicate or co-parent with the Father.  With regard to legal custody, apart from stating that the child would be enrolled in school at the age of six, there was no explanation as to why joint legal custody would become in the child’s best interests at six years old.  The Appeals Court found this to be an abuse of discretion and stated that it raised “significant questions about the judge’s underlying rationale” for the sole legal custody award.  The judge’s order prohibiting the Mother from having the child formally participate in non-Catholic religious education, rituals, or rites in order to avoid confusion for the child was reversed because there was no evidence that non-Catholic religious training would cause the child substantial harm.  The award of attorney’s fees was also vacated.  The record did not show that the judge had considered the fair market rate for the services rendered by the Father’s attorney or the amount of time she reasonably spent on the case.  Her affidavit did not specify the amount of time she spent on each of her services. 

Kowalska-Davis v. Davis, 10-P-2191 (February 27, 2012)

The Husband appealed the second amended judgment of divorce which granted the Wife exclusive use and occupancy of the marital home until the child graduated from high school, $3,000 a month in alimony, $2,000 a month in child support and security in the form of a $1,000,000 in life insurance to be maintained by the Husband.  The Appeals Court affirmed.  The order of exclusive use and occupancy is a traditional child support provision based on the best interest of the children.  The judge did not abuse his discretion by failing to add safeguards to the Wife’s occupancy based on her alleged fiscal irresponsibility in the past.  The judge did not commit error by failing to fashion alimony as rehabilitative based on the Husband’s argument that the Wife was underemployed.  She was out of the work force for eleven years and had limited future opportunities.  The judge’s order granting the Wife one-half of the equity in the Husband’s dental practice was also upheld.  The Husband argued on appeal that because the dental practice was the primary source of funds for the family, it should not have been treated as an asset subject to division.  The Husband further argued that the judge did not make findings which show that she separated the owner’s income from the rest of the business net income before allocating half of the business to the Wife.  The Appeals Court cited Adlakha v. Adlakha, 65 Mass. App. Ct. at 865-866 (no improper double dipping where expert deducted a reasonable salary expense when valuing wife’s medical practice).  In this case, the judge valued the dental practice and employed the methodology used by the Husband’s expert.  There was at least a question in the expert’s report and a page in the supplemental appendix that the expert may have considered an owner’s salary.   It was not clear whether there was additional evidence before the court shedding light on this point but the burden was on the Husband to demonstrate error which he failed to do.