Aaml - Massachusetts Chapter
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AAML - MASSACHUSETTS CHAPTER ANNUAL MEETING JUNE 18, 2003 SUMMARY OF FORTY (40) FAMILY AND RELATED CASES DECIDED OVER THE PAST TWELVE MONTHS, plus some good forms. by Gerald L. Nissenbaum, J.D., LL.M. (Taxation) Past President AAML and IAML 1 Fellow, American College of Family Trial Lawyers 1Copyright © 2003 Gerald L. Nissenbaum, Boston, MA Permission is granted to Judges of the Massachusetts courts and Fellows of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers to use this material in their administration of and practice of law. 1 Nissenbaum’s Standard Set of Conclusions of Law: Divorce (G. L. c. 208, § 34), Custody, Visitation, Removal and related issues.................................................................................................................. 5 Modifications..................................................................................................... 51 Separation Agreements...................................................................................... 55 Contempt (Criminal and Civil)........................................................................... 58 Trusts................................................................................................................. 68 Chapter 209 A (soup to nuts)............................................................................. 69 Abuse Prevention - Chapter 209A- Overview 89 Twelve Cases on 209 A: Oldie but Goodie: Wooldridge v. Hickey (1998): “Inaudible” Wins the Day. 95 Comm. v. Raymond: Accidental contact does not violate order. 100 Carroll v. Kartell: If you are Afraid, are you abused? 106 Comm v. Eugene: Be careful when you go to church. You may find 111 more than God waiting there for you. 0 Comm. v. Habenstreit: Intrusion by Verbal Projection. 118 Doe v. Keller: If, after “particularly egregious” conduct, you are still afraid 121 two years later, the court can enter a permanent 209A no-contact order. Dollan v. Dollan: After all those years, victim of child abuse is still afraid. 125 Jones v. Gallagher: 127 Sticks and Stones can break my bones; and so too can words in poems. Litchfield v. Litchfield: Zone of protection - 134 Does a machine gun bullet travel more than a mile? Szymkowski v. Szymkowski: Daddy’s conduct is far from perfect - but it’s not 137 abuse. Uttaro v. Uttaro: His claim, that she made him do it, does not wash. 141 2 Lonergan-Gillen v. Gillen: You’ve got discretion. Now exercise it wisely, damn 145 it. Threat to Judge: “I hope you would die, too.” 149 Comm. v. Trimboli, Jr.: If you threaten the judge, you’ll go to jail. Chapter 208, § 31: 151 Maalouf v. Saliba: Where there is evidence of abuse, Section 31 A REQUIRES the court to make specific findings. Interest on Equalization Payments: 15 Karellas v. Karellas: A very “interesting” case. 6 Repayment of Legal Fees after judgment is vacated: 162 Cox (Mahlowitz, intervener) v. Cox: Gimme Back my money! No! Two cases on Separation Agreements: Coppinger v. Coppinger: Cannot modify a surviving agreement via a 176 contempt. Cohan v. Feuer, Administrator: No way do we part at your death. 182 Fourteen cases on Child Support, Alimony, Division of property Rutledge v. Blake: Single Justice says use Massachusetts guidelines 185 Saia v Saia: Don’t try to sneak in alimony when you can’t order child 186 support. But, hey. What about them c. 215, § 3 general equity powers? Eccleston v. Bankosky: Like I said, don’t try to sneak in alimony when you 18 can’t order child support. But, what about them c. 215, § 3 general equity 9 powers? Ladies and Gentlemen: In case you do not know it - we have an activist Supreme Court. Silverman v. Spiro: QDRO can be used to secure chid support and related 196 attorneys fees and costs. Richards v. Mason: No increase in child support, but the kids keeps her 206 3 husband’s name. Downey v. Downey: Alimony lives again! 213 Katz v. Katz: As between his pocketbook and the public till, the Appeals 217 Court chooses his! Appeals court “jumps ugly” on Judge Shaevel (Ret.) Krapf v. Krapf: What? No separate, unique or wacky Massachusetts rule 227 on VA v. Military Retirement pay? Child v. Child: Bergerizing has nothing to do with mad cow disease. 236 S. L. v. R.L.: If there is no other way, hold your nose and go for: “If, as and 244 when.” Sagar v. Sagar: Chudakarana or not to Chudakarana? That was the 248 question. Subtitle: Is that on the Atkins diet? Connelly v. Michell (Mass. Probate Court - Kagan, J.) 253 Non-biological Lesbian mother has to pay child support. L.S. K. v. H.A.N.: (PA appellate court) 256 Non-biological Lesbian mother has to pay child support. O’Connell v. Seiler: (Mass. Probate Court - Rockett, J.) 258 Did she steal his sperm? And, if so, does he still have to pay child support? In any event, he’s paying some of her lawyer’s fees. Civil Contempt: 263 Stabile v. Stabile: “And shall” means “and shall.” Three cases on Visitation, Child Custody / Kidnaping Blixt v. Blixt: Grandparent visitation O.K. after SJC majority re-writes c. 119, 269 § 39D, ADDS PLEADING REQUIREMENTS, trashes the dissent and declares it good. Ladies and Gentlemen: In case you do not know it - we have an activist Supreme Court. 4 Zeitler (f/k/a Kendall) v. Kendall: If you feed tref to your Jewish children, you 277 still get visitation But somebody’s God is going to be angry. Hernandez v. Branciforte: If she loved the children so much, why hasn’t she 281 come for visitation for more than three years? Four lawyer - related cases Patriarca v. Center for Living and Working, Inc.: Ex parte contact with the 291 other sides’ non-management employees is Permissible. Meyer v. Wagner: What is Rule 70? And why should I love it so? 298 Avoid Wagnerizing: clauses to immediately add to your fee agreement 303 In the Matter of Steven M. Foley: Do not take stupid pills before coming to 310 work - three - year suspension from practice of law. In the Matter of Paul J. Grella: If you beat up your wife, you’ll lose more than 317 just your house - two-month suspension from practice of law. Other Stuff Nissenbaum’s Divorce Game: Shortest Celebrity Marriage List “11 - “14 321 Top Ten Shortest Celebrity Marriages 325 5 NISSENBAUM’S STANDARD SET OF CONCLUSIONS OF LAW - DIVORCE Index (as of May 31, 2003) I. JURISDICTION AND GROUNDS. 6 II. EQUITABLE DISTRIBUTION. 7 III. FINANCIAL CONSIDERATIONS. 12 IV. CREDIBILITY. 13 V. ALIMONY. 13 VI. CHILD SUPPORT/GUIDELINES/CHANGE OF 20 NAME. VII. CUSTODY. 24 VIII. REMOVAL OF THE CHILDREN FROM THE 30 COMMONWEALTH. IX. PENSIONS. 38 X. COUNSEL FEES AND COSTS. 38 XI. RATIONALE. 43 XII. STATUTORY REFERENCES. 44 XIII. TAX CONSIDERATIONS AND OTHER ITEMS 44 WHICH CAN IMPACT UPON AN AWARD. 6 XIV. INTEREST IS MANDATORY ON AWARDS OF 45 MONEY IN JUDGMENT OF DIVORCE. XV. APPEAL. 48 XVI. CONCLUSIONS. 49 7 REQUESTS FOR CONCLUSIONS OF LAW I. JURISDICTION AND GROUNDS. 1.1 The Court has jurisdiction over the parties and the subject matter. 1.2 A period of separation due to marital difficulties is strong evidence of the irretrievable breakdown of the marriage. Desrochers v. Desrochers, 115 A.2d 591 (1975). 1.3 When the Court is satisfied that the parties can no longer live together because their difficulties are so deep and substantial that no reasonable effort could eradicate them so as to permit the parties to live together in tranquility, then a Judgment of Divorce Nisi on the grounds of irretrievable breakdown of the marriage should be entered. M.G.L. c. 208, Section 1B. 1.4 The Court is satisfied from the evidence that there has been an irretrievable breakdown of the marital relationship to the extent that the legitimate objects of matrimony have been destroyed and that there remains no reasonable likelihood that the marriage can be preserved and conciliation efforts will not be successful. 1.5 An irretrievable breakdown of the marriage has existed from the period of the filing of the Complaint to the date of the hearing. M.G.L. c. 208, Section 1B. 1.6 The Husband knew or should have known that his conduct and behavior would have an adverse physical effect on the Wife's health; and it did, providing sufficient proof of cruel and abusive treatment. Bailey v. Bailey, 97 Mass. 373; Rudnick v. Rudnick, 288 Mass. 256 (1934); Brown v. Brown, 323 Mass. 332 (1948). 8 II. EQUITABLE DISTRIBUTION. 2.1 In dividing assets and awarding an equitable distribution pursuant to G.L. chapter 208, Section 34, the Court has broad discretion, deCastro v. deCastro, 415 Mass. 787, 791 (1993); Lauricella v. Lauricella, 409 Mass. 211, 214 (1991); Harris v. Harris, 26 Mass. App. Ct. 1004 (1988); Drapek v. Drapek, 399 Mass. 240, 243 (1987); Bianco v. Bianco, 371 Mass. 420 (1976); Rice v. Rice, 372 Mass. 398, 401 (1977), after consideration of all the factors. Caldwell v. Caldwell, 17 Mass. App. Ct. 398, 425 N.E.2d 834 (1984); Ross v. Ross, 385 Mass. 30 (1982); Rolde v. Rolde, 12 Mass.App.Ct. 398, 425 N.E.2d 388 (1981). 2.2 A distribution of marital assets is based upon an implied partnership between the parties during the marriage where the contributions to the marital enterprise are reflected in the ultimate division of assets. Savides v. Savides, 400 Mass. 250, 252-53 (1987); Davidson v. Davidson, 19 Mass. App. Ct. 364 (1985); Heacock v. Heacock, 402 Mass. 21, 24 (1988); Bacon v. Bacon, 26 Mass. App. Ct. 117, 119 (1988). 2.3 "The purpose of...the division of marital property is to recognize and equitably recompense the parties' respective contributions to the marital partnership." Heacock v. Heacock, 402 Mass. 21, 24 (1988) . 2.4 A significant disparity in the estates of the parties should be considered. Grubert v. Grubert, 20 Mass. App. Ct. 811, 483 N.E.2d 100 (1985). 2.5 a. "The underpinning of any order for division of property under § 34 is .