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 Fellow, American College of Family Trial Lawyers1
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.
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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
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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.
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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).
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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 . . . the judge's consideration of the contributions, in the statutory terms, of each spouse, as well as other factors in existence at the dissolution of the partnership which have been traditionally applied in determining alimony." Davidson v. Davidson, 19 Mass. App. Ct. 364, 376 (1985).
9 b. The judge’s findings must indicate that he or she has weighed all of the required statutory factors. Bianco v. Bianco, 371 Mass. 420, 423 (1976). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003). 2.6 It is entirely proper for the Trial Court to consider the opportunity of each spouse for "future acquisition of capital assets and income." Cabot v. Cabot, 18 Mass. App. Ct. 903 at 904 (1984).
2.7 a. A probate judge has broad discretion in awarding alimony and making equitable property divisions, but must consider "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income." G. L. c. 208, § 34. Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
b. In addition to these mandatory factors, "the judge may, in his or her discretion consider 'the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.' " Drapek v. Drapek, 399 Mass. 240, 243 (1987), quoting from G. L. c. 208, §§ 34. Cabot v. Cabot, 18 Mass. App. Ct. 903, 905 (1984).
2.8 In fashioning an award the Court may properly take into account the fact that the husband wasted assets that could have been used for marital purposes. Ross v. Ross, 385 Mass. 30, 37-38 (1982).
2.9 A party may not "alienate assets while continuing to enjoy their fruits and expect the court to hunt for an unencumbered source of income to satisfy obligations." Barron v. Barron, 28 Mass. App. Ct. 755 (1990).
2.10 The equitable factors stated in Section 34 reflect a view of marriage as an implied partnership for the purposes of distribution of property. Savides v. Savides, 400 Mass. 250, 508 N.E. 2d 617 (1987).
2.11 Property in which a party acquires an interest before divorce may be considered or assigned in property division even when it does not come into his possession until after the divorce. Davidson v. Davidson, 19 Mass. App. Ct. 364, 474 N.E.2d 1137 (1985).
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2.12 a. The uncertainty in value or the inalienability of a trust interest, in and of themselves are not sufficient to preclude considering the interest as subject to division. Lauricella v. Lauricella, 409 Mass. 211 (1991). Davidson v. Davidson, 19 Mass. App. Ct. 364, 372 (1985).
b. Court may include and divide a parties’ "present, enforceable, equitable right to use the trust property for his [own] benefit," Lauricella v. Lauricella, 409 Mass. 211, 216 (1991). See Comins v. Comins, 33 Mass. App. Ct. 28, 30-31 (1992).
c. "In making the determination of what to include in the estate, the judge is not bound by traditional concepts of title or property. 'Instead, we have held a number of intangible interests (even those not within the complete possession or control of their holders) to be part of a spouse's estate for purposes of §§ 34.'" S.L. v. R.L., 55 Mass. App. Ct. 880, 882 (2002), quoting from Baccanti v. Morton, 434 Mass. 787, 794 (2001). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
d. Some interests in assets interests may be "too remote or speculative" to be included in the marital estate, S.L. v. R.L., 55 Mass. App. Ct. 880, 882 (2002), and do not present any opportunity for future acquisition. See Williams v. Massa, 431 Mass. 619, 628-629 (2000).
2.13 The purpose of Section 34 is to provide a mechanism whereby, no matter how the property has been acquired or how it is held, the court can distribute it between the parties in such a way as to provide for balanced disposition and economic justice. Pare v. Pare, 409 Mass. 292 (1991).
2.14 Section 34 does not require the judge to limit his order to consideration of which party made the greater financial contribution to the acquisition of the assets. DeCastro v. DeCastro, 415 Mass. 787 (1993).
2.15 The marriage as a partnership concept embodied in G.L.c. 208, Section 34 recognizes that one party often concentrates on the financial side of the family while the other concentrates on homemaking and child care. DeCastro v.
11 DeCastro, 415 Mass. 787 (1993).
2.16 The concept of property assignment or equitable division under Section 34 must be read to apply in a broad sense to the value of all contributions of the respective spouses towards the marital enterprise. It contemplates something more than determining which spouse's money purchases a particular asset. Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977).
2.17 The weight to be given each factor in a particular case, in fashioning a judgment under Section 34, is left to the discretion of the trial justice. Handrahan v. Handrahan, 28 Mass. App. Ct. 186, 187 (1989). Ross v. Ross, 385 Mass. 30, 37 (1982).
2.18 In dividing the property, the issue of the parties' lifestyle is given great weight as what defines that standard are facts which disclose the way in which the parties led their lives during the marriage and how they will be able to maintain their separate lifestyles thereafter. Bacon v. Bacon, 26 Mass. App. Ct. 117, 121 (1988). 2.19 An equitable division of property does not result necessarily in an equal division. A division of property, based upon the factors enunciated in Section 34 need not be of precise parity. Belsky v. Belsky, 9 Mass. App. Ct. 852, 400 N.E. 2d 878 (1980); Cabot v. Cabot, 18 Mass App. Ct. 903, 462 N.E. 2d 1128 (1984); Johnson v. Johnson, 22 Mass. App. Ct. 955, 494 N.E. 2d 423 (1986).
2.20 In addition to or in lieu of alimony, the court may assign to either spouse all or any part of the estate of the other. G.L. c. 208, §34. Rice v. Rice, 372 Mass. 398, 401 (1977).
2.21 The estate of a party includes all property to which he or she holds title, however acquired. Rice v. Rice, 372 Mass. 398, 401 (1977)
2.22 In order to be properly divided, assets must be properly valued.
2.23 Where there is a question of valuation concerning a marital asset, a trial judge, when faced with conflicting expert evidence, may accept or reject all or parts of the opinions offered. Fechtor v. Fechtor,
12 26 Mass. App. Ct. 859, 863 (1989), and cases cited. See Dewan v. Dewan, 30 Mass. App. Ct. 133, 135 (1991). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
2.24 "[T]he judge may reject expert opinion altogether and arrive at a valuation on other evidence. Unless clearly erroneous, the trial judge's determination of value will stand." Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989). (Citations omitted.) See Mass.R.Dom.Rel.P. 52(a) (1987). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003).
DATE OF VALUATION
2.25 Typically, asset valuation must relate to the parties' status within the marriage, or at the outside, at a time that relates to the court's division of the assets. See, e.g., Savides v. Savides, 400 Mass. 250, 252-253 (1987) (assets valued as of the date of the parties' separation prior to the divorce; wife excluded from participation in the increase in value of the marital property where she made no contribution to the marriage after the date of separation and the increase in value was due solely to the husband's efforts); Pare v. Pare, 409 Mass. 292, 296 n.4 (1991) (where property division takes place after divorce is final, and post-divorce appreciation is not fairly attributable to one spouse alone, correct procedure is to value the divisible property as of the date of the order of division and apportion post-divorce appreciation in the value of the property between the parties); Daugherty v. Daugherty, 50 Mass. App. Ct. 738, 741-742 (2001) (value of husband's pension to be taken as of date of parties' separation, some ten years prior to the property division trial, with wife entitled to appreciation on that share only). Child v. Child, ---- Mass. App. Ct. —, No. 01-P-71 (2003).
2.26 An attempt to consider potential future increases (or decreases) in rental value and expenses of an interest in a life estate violates the partnership principle upon which property division is predicated. Compare Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 (1985). ("To hold that property interests acquired after the dissolution of the marriage are subject to division under § 34 would be contrary to the marital partnership concept on which § 34 is founded"). Child v. Child, ---- Mass. App. Ct. —, No. 01-P-71
13 (2003).
FUTURE NEEDS OF CHILDREN
2.27 The future needs of dependent children may be considered as a factor in the division of property under G. L. c. 208, § 34. See Passemato v. Passemato, 427 Mass. 52, 55-57 (1998).
FINANCIAL STATEMENTS REQUIRED
2.28 Rule 401 of the Supplemental Rules of the Probate Court (1997) provides in relevant part: "(a) Except as otherwise ordered by the court, each party to a divorce or separate support action or any other action where financial relief is requested, shall file with the court and shall deliver to the other party within 45 days from the date of the service of the summons, a complete and accurate financial statement showing, insofar as possible, the assets, liabilities and current income and expenses of both parties and children involved in the case."
CLAIMS AGAINST THIRD PARTIES
2.29 Any proceeds from a claim against a third party, when the claim arose during the marriage, is marital property, subject to distribution. Dalessin v. Dalessin, 409 Mass. 821, 829 (1991).
ALLOWING POST-TRIAL EVIDENCE.
2.30 Decision to admit additional evidence after the case is closed lies in the sound discretion of the trial judge. See Jones v. Vappi & Co., 28 Mass. App. Ct. 77, 83 (1989), and cases cited.
14 III. FINANCIAL CONSIDERATIONS.
3.1 The financial statement of a party should include all for the parties' financial capabilities necessary to enable the court to determine support and assignment of marital assets. Borman v. Borman, 378 Mass. 791 (1979).
3.2 "Each spouse in a divorce proceeding has the obligation to provide adequate financial data to the other spouse and to the court. A judge is entitled, barring special circumstances, to draw all reasonable inferences against a party who fails to do so." Grubert v. Grubert, 20 Mass. App. Ct. 811, 822 (1985); Gordon v. Gordon, 26 Mass. App. Ct. 973, 975 n. 4 (1988).
3.3 It is within the fact finding function for the judge to determine if a party has unreported income or assets based on an assessment of the evidence and the testimony. Davidson v. Davidson, 19 Mass. App. Ct. 364, 376-378 (1985).
3.4 Where a party has misrepresented his financial position, the Court has broad discretion to fashion appropriate relief. See, Demeter v. Demeter, 9 Mass. App. Ct. 860 (1980); Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 15-16 (1980).
IV. CREDIBILITY.
4.1 Conduct of the parties and their credibility is a relevant factor for the Court to consider in reaching its determination. Caldwell v. Caldwell, 17 Mass. App. Ct. 1032 (1984); Clarke v. Clarke, 3 Mass. App. Ct. 736 (1975).
4.2 Evasiveness or concealment by a party may justify inferences of fact that will support an equitable division. Amrhein v. Amrhein, 29 Mass. App. 336, 342 n.4 (1990); Grubert v. Grubert, 20 Mass. App. Ct. 811, 822 (1985).
V. ALIMONY.
5.1 The Trial Judge is vested with considerable discretion in
15 awarding alimony. Fechtor v. Fechtor, 26 Mass. App. Ct. 859 at 867.
5.2 a. Traditionally, alimony existed to provide economic support to dependent spouses, Fugere v. Fugere, 24 Mass. App. Ct. 758, 761 (1987), based upon the property and condition of the payor spouses. Goldman v. Goldman, 28 Mass. App. Ct. 603, 611, 554 N.E.2d 860 (1990). See, also, Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).
b. [T]he fundamental purpose of alimony [is] to provide economic support to the dependent spouse..." Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986). Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985) (even "scrupulous and careful" effort by the probate judge is inadequate if it failed "adequately to take into account traditional alimony considerations and resulted in an inequitable award"), quoting Partridge v. Partridge, 14 Mass. App. Ct. 918, 919 (1982). And, see: Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987) (modification decision must be based upon a balancing of all the financial and equitable factors). Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 570 (2001) (modification must be "consistent with common sense and justice").
5.3 The determination of alimony rests in the broad discretion of the trial court after a consideration of all the relevant facts. Lavalle v. Lavalle, 3 Mass. App. Ct. 736 (1975).
5.4 The amount of alimony a Court may award rests within the judge's discretion after consideration of all the facts; including the wife's needs, the husband's financial worth, and the parties' station in life and mode of living. Richman v. Richman, 335 Mass. 395 (1957).
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5.5 a. In deciding whether a support provider has the ability to meet his support obligations, the judge must consider all attendant circumstances. Accordingly, the Court should not be restricted to consideration of actual earnings, but may also consider earning power and past earnings. Schuler v. Schuler, 382 Mass. 366, 374 (1981).
b. "Common sense and basic concepts of fairness support the notion that ownership of a valuable asset demonstrates ability to pay without further inquiry as to whether payment can be enforced directly against the asset. . . . The law does not require that an obligor be allowed to enjoy an asset -- such as a valuable home or the beneficial interest in a spendthrift trust -- while he neglects to provide for those persons whom he is legally required to support." Krokyn v. Krokyn, 378 Mass. 206, 213-214, cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
c. For alimony purposes "[i]t would be manifestly unfair to permit [a party] to hide behind . . . [a presumed] transfer of [some interest in assets] into [another person’s] name, to evade [an alimony] obligation .... [by such a] self-imposed [transaction or encumbrance]." Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (1997).
5.6 The Court may also consider a continuing stream of money from any source as being available to pay alimony or child support. Mass. Child Support Guidelines.
5.7 a. The critical issue in an alimony dispute is the dependent spouse's actual need for support and maintenance at a standard commensurate with that enjoyed during the marriage. Partridge v. Partridge, 14 Mass. App. Ct. 918, 919 (1982). Putnam v. Putnam, 5 Mass. App. Ct. 10, 15, n.6 (1977); Lynch v. Lynch, 5 Mass. App. Ct. 167. 170 (1977).
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b. It is a public policy to not make an order that would result in a party becoming a public charge. See O'Brien v. O'Brien, 325 Mass. 573, 578 (1950); Knox v. Remick, 371 Mass. 433, 437 (1976); Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
5.8 The standard of need is measured by the station of the parties - by what is required to maintain a standard of living comparable to the one enjoyed during the marriage. Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985) (emphasis supplied). See, also, Meghrablian v. Meghrablian, 13 Mass. App. Ct. 1021, 1022-1-23 (1982); Belsky v. Belsky, 9 Mass. App. Ct. 852 (1980); Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 14 (1979)(short marriage); Rice, supra.
5.9 In Grubert, the Wife's earnings from part-time employment, together with the alimony ordered by the court, did not permit her to provide for her minimum needs. The court held that minimum was not the appropriate standard for her to have upon divorce. Rather the trial justice was required to enter an order which would permit the Wife to continue at the considerably higher standard of living which had appertained during the marriage, especially where the husband could afford greater payments. Grubert v. Grubert, 20 Mass. App. Ct. 811, 820-821 (1985).
5.10 The focus of any financial award must include "the crucial issue in an alimony dispute, namely, the [spouse's] need for support and maintenance in relationship to the respective financial circumstances of the parties." Gottsegen v. Gottsegen, 397 Mass. 617, 623-24 (1986) (cited in Goldman v. Goldman, 28 Mass. App. Ct. 603 (1990)).
5.11 In awarding alimony and making an equitable division for the marital estate, the court must give attention to the standard of living that each for the parties had become accustomed to during the marriage. Rice v. Rice, 372 Mass. 398 (1977).
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5.12 An award of alimony should take into consideration "the wife's needs in light of her station in life during the marriage." Goldman v. Goldman, 28 Mass. App. Ct. 603, 612 (1990) (emphasis supplied).
5.13 The precise need or standard of living is only one of several factors which must be considered in setting the amount of alimony to be paid to the dependent spouse. Robbins v. Robbins, 16 Mass. App. Ct. 576, 580 (1983).
5.14 a. Absent good reason, there is no justification for the lifestyle of one spouse to go down while the other remains high. Goldman v. Goldman, 28 Mass. App. Ct. 603, 611 (1990). Grubert v. Grubert, 20 Mass. App. Ct. 811, 820-821 (1985).
b. Absent some good reason, the financial orders in an divorce judgment should not cause the standard of living of a spouse to drop exceptionally low while that of the other spouse remains high. Denninger v. Denninger, 34 Mass. App. Ct. 429 (1983) at 443.
5.15 There is no justification to limit alimony in time, particularly when the future security available to a wife from her own assets would quickly be lost when alimony ends and the husband is financially secure and his limitations on his ability to support the wife are self-imposed. Barron v. Barron, 28 Mass. App. Ct. 755 (1990); Larson v. Larson, 37 Mass. App. Ct. 106 (1994).
5.16 In awarding alimony and making property assignment the court must give attention to the standard of living to which each of the parties had become accustomed during the marriage. Rice v. Rice, 372 Mass. 398, 361 N.E. 2d 1305 (1977).
5.17 a. Alimony should be based on the standard of need as measured by the station of the parties, that is, by what is required to maintain the standard of living comparable to the one the wife enjoyed during the marriage. Fugere v. Fugere, 24 Mass. App. Ct. 758, 760-761 (1987); Grubert v. Grubert, 20 Mass. App. 811, 819 (1985) (citing Rice v. Rice, 372 Mass 398, 402 (1977)); Meghreblian v. Meghreblian, 13 Mass. App. Ct. 1021, 1022-23 (1982); Belsky
19 v. Belsky, 9 Mass. App. Ct. 852 (1980); Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 14 (1979).
b. Alimony is not limited by need alone. Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903 (1992).
c. The precise need or standard of living is only one of several factors which must be considered in setting the amount of alimony to be paid to the dependent spouse. Robbins v. Robbins, 16 Mass. App. Ct. 576, 580 (1983). No specific formula need be followed to fashion a fair judgment for alimony and property assignment. Belsky v. Belsky, 9 Mass.App.Ct. 852,400 N.E.2d 878 (1980); Downing v. Downing, 12 Mass.App.Ct. 968,428 N.E.2d 336 (1981); Caldwell v. Caldwell, 17 Mass.App.Ct. 1032,461 N.E.2d 824 (1987).
5.18 Where a wife has been out of the work force for a time, had to be retrained in order to find modest employment, the Court should not put much emphasis on the wife's earning capacity. Goldman v. Goldman, 28 Mass. App. Ct. 603, 610 - 11 (1990).
5.19 A homemaker and primary-care parent with relatively few marketable job skills should not receive a lower alimony because she became employed in a relatively low paying job when the other spouse is able to provide suitable support and maintenance. DeLuca v. DeLuca, 26 Mass. App. Ct. 191 (1988).
5.20 When a spouse's earnings are insufficient to allow her to live at a standard of living comparable to that enjoyed during marriage, alimony is warranted where the other spouse is able to pay such. Belsky v. Belsky, 9 Mass. App. Ct. 852, 400 N.E. 2d 878 (1980).
5.21 When the husband has substantial financial means, resources or earning capacity, the wife is entitled to an award of alimony and property division which satisfies her needs and maintains her station of life that she enjoyed during the marriage. Aronson v. Aronson, 25 Mass. App. Ct. 164 (1987).
5.22 Among the considerations which establish the magnitude for the alimony award are the length of the marriage and the manner in which the parties, when married, lived. Grubert v. Grubert, 20 Mass. App. Ct. at 819 (1985).
20 5.23 Authority to award alimony is grounded in recipient's need for support and obligor's ability to pay. Gottsegen v. Gottsegen, 387 Mass. 617 (1986).
5.24 The fact that either party's employment prospects are limited should be weighed. Bush v. Bush, 402 Mass. 406, 411, 523 N.E. 2d 259, 262 (1988).
5.25 The court should take into account the ease or difficulty of finding employment in a field in which a spouse has training. Bak v. Bak, 24 Mass. App. Ct. 608, 511 N.E. 2d 625 (1987).
5.26 The contributions of a spouse in caring for the home and children which assist the other spouse to develop a greater capacity to spend time producing income can be given consideration in awarding alimony. Drapek v. Drapek, 399 Mass. 240, 246-247; Lyons v. Lyons, 403 Mass 1003 (1988).
5.27 a. A party cannot manipulate his or her income with impunity. See, Thompson v. Thompson, 12 Mass. App. Ct. 1010, 1011 (1981); Schuler v. Schuler, 382 Mass. 366, 374 (1981).
b. The court looks beyond a party's ability to manipulate income or resources in order to either avoid legal obligations or to falsely create a need. See, Barron v. Barron, 28 Mass. App. Ct. 755, 759 (1980).
c. A “party has no right to waste an asset deliberately or ignore a feasible source of income . . . ." Pagar v. Pagar, 9 Mass. App. Ct. 1, 4 (1980).
5.28 The wife is entitled to an award of alimony and property division which satisfies, but does not exceed, her needs and maintains her in a station in life that she enjoyed during marriage. Aronson v. Aronson, 25 Mass.App.Ct. 164,516 N.E.2d 184 (1987).
5.29 An award of alimony is warranted in light of the Wife's actual measurable present and future needs and the lack of income from anything but her employment. Rosenberg v. Rosenberg, 33 Mass.App.Ct. 903, 595 N.E.2d 792
21 (1992).
5.30 Military retirement pay may also be considered a "stream of income" for purposes of alimony. Andrews v. Andrews, 27 Mass. App. Ct. 759, 759 (1989).
5.31 Alimony is governed by G. L. c. 208, § 34, which does not recognize expenses of caring for dependent children among the factors to be considered in determining alimony. Saia v. Saia, ___ Mass. App. Ct. ___, No. 01-P-548 (May 15, 2003).
Term of Alimony.
5.32 "Liability for alimony imposed by a decree of court ceases with the death of the husband if the decree is silent on the subject of continuation." Taylor v. Gowetz, 339 Mass. 294, 297 (1959).
5.33 A decree may require that alimony payments continue beyond the paying spouse's death, see Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 125 (1932), and the parties may agree to the same in a settlement contract, see Taylor v. Gowetz, 339 Mass. 294, 298 (1959), cited with approval in Cohan v. Feuer, adm. Et al, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).
5.34 Where decree stated that alimony payments were to be made to the wife "during the term of her life" or until she should remarry. Farrington v. Boston Safe Deposit & Trust Co., Co., 280 Mass. 121, 122 (1932), court held language unambiguously required payments to continue after the death of the paying spouse: "If his estate were not held, how else could the [wife] be paid 'during the term of her life?' " Id. at 126, cited with approval in Cohan v. Feuer, adm. Et al, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).
22 5.35 A separation agreement providing that alimony payments were to continue "so long as the wife is living and remains unmarried," is an unambiguous requirement that payments continue so long as the wife was living and remained unmarried, notwithstanding the death of the husband. Taylor v. Gowetz, 339 Mass. 294, 298-300 (1959); Cohan v. Feuer, adm. Et al, — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003).
5.36 Where parties stipulated husband would pay alimony "for the Wife's support alone; payable until both children reach the age of 23. . . . In the event of the Wife's remarriage, all alimony payments for her sole support shall cease forthwith," court, in dicta, said the Farrington and Taylor cases "strongly suggest" that this language also required alimony payments to continue after the husband's death, as the children were not yet twenty-three, and the wife had not remarried. In DuMont v. Godbey, 382 Mass. 234, 239-240 (1981).
VI. CHILD SUPPORT / GUIDELINES / CHANGE OF NAME
Child Support
6.1 The policy underlying the Child Support Guidelines is to foster the security of children and "...to minimize the economic impact on the child of family breakup, to encourage joint parental responsibility for child support. In proportion to or as a percentage of income, to provide the standards for living the child would have enjoyed had the family been intact, to meet the child's survival needs in the first instance, but to the extent either parent enjoys that higher standard of living to entitle the children to enjoy that higher standard...." G.L. c. 211B, Section 15, as inserted by Ch. 310, Acts. 1986.
6.2 Child support is governed by G. L. c. 208, § 28, which authorizes such support for children over eighteen only where (i) a child between
23 eighteen and twenty-one is domiciled with one parent and is principally dependent on that parent for maintenance; or (ii) a child between twenty-one and twenty-three is domiciled with one parent and is principally dependent on that parent for maintenance due to the child's enrollment in an educational program (not extending beyond an undergraduate degree).
6.3 G.L. chapter 208, §28 and the Child Support Guidelines require the trial justice to make an award of support for the benefit of the minor children.
6.4 "In those cases in which it is the decision of the parties that the woman becomes the homemaker, the marriage is of substantial duration, and at separation the wife is [employable only at modest earnings], the husband simply has to face up to the fact that his support responsibilities are going to be of extended duration -- perhaps for life. This has nothing to do with feminism, sexism, male chauvinism, or any other trendy social ideology. It is ordinary common sense, basic decency and simple justice..." In re: Marriage of Branter, 67 Cal. App. 3d 416, 419, 420, 136 Cal. Rptr. 635 (1977), cited with approval in Bak v. Bak, 24 Mass. App. Ct. 608, 622 (1987).
6.5 G.L. chapter 208, §34 requires the trial justice to consider the present and future needs of the children, giving authority to the Court to award both child support.
6.6 Both Section 34 and the equitable powers of this Court provide more than sufficient authority to make orders as to which parent shall be the Trustee or custodian of the children's funds.
6.7 Child support is always modifiable. Ryan v. Ryan, 371 Mass. 430 (1976). Therefore, the Court can establish automatic readjustments of child support. 6.8 a. If the court finds a need to secure the future child support or alimony obligations of the Husband, might be possible and advisable, the Court may order the Husband to obtain life insurance payable to the Wife.
24 b. A "domestic relations order" is "any judgment, decree, or order (including approval of a property settlement) which -- (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (II) is made pursuant to a State domestic relations law." Silverman v. Spiro, 438 Mass. 725 (2003).
c. QDROs are exempt from ERISA's preemption provision. Silverman v. Spiro, 438 Mass. 725 (2003).
Child Support Guidelines.
6.9 The guidelines have presumptive application in all cases seeking the modification of a child support order. Canning v. Juskalian, 33 Mass. App. Ct. 202, 204 (1992); Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997).
6.10 The preamble to the guidelines states: "Modification may be allowed upon showing a discrepancy of [20% ] or more between an established order and a proposed new order calculated under these guidelines." Richard v. Mason, 54 Mass. App. Ct.568 (2002).
6.11 "[T]he court should deduct [payments made for support of a child of another relationship] from the gross income of payor before applying the formula to determine the child support order." Massachusetts Child Support Guidelines II-I. See G. L. c. 209C 9(f); O'Meara v. Doherty, 53 Mass. App. Ct. at 603-604. Richard v. Mason, 54 Mass. App. Ct.568 (2002).
6.12 Judge has discretion to increase or decrease by two percent "in consideration of the totality of the circumstances." Massachusetts Child Support Guidelines III-A. See Crowe v. Fong, 45 Mass. App. Ct. 673, 677 n.2. Richard v. Mason, 54 Mass. App. Ct. 568 (2002).
25 6.13 Judges have considerable discretion under the guidelines, and the exercise of this discretion may result in a range of proposed support orders. See, e.g., Canning, supra at 204-205 (range of $204 to $237 per week under guidelines); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 602-605 (2002) ($180 weekly support ordered by judge was within guidelines, notwithstanding that under mother's guidelines worksheet calculations $335.15 might have been ordered). Richard v. Mason, 54 Mass. App. Ct. 568 (2002).
Change of Name.
6.14 At common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose." Merolevitz, petitioner, 320 Mass. 448, 450 (1946).
6.15 A change of name petition may be sought pursuant to G. L. c. 210, 12 (“The change of name of a person shall be granted unless such change is inconsistent with public interests.") Richard v. Mason, 54 Mass. App. Ct. 568 (2002).
6.16 Section 12 "does not abrogate the common law right to use a name of one's choosing. . . . It simply aids a petitioner in securing an 'official record which definitely and specifically establishes his change of name.'" Verrill, petitioner, 40 Mass. App. Ct. 34, 35-36 (1996), quoting from Buyarsky, petitioner, 322 Mass. 335, 338 (1948).
6.17 Section 12 does not displace the "best interests" standard applicable to matters relating to the care and custody of children. See Jones v. Roe, 33 Mass. App. Ct. 660, 662 (1992). That standard is applicable to controversies surrounding the surnames of children, whether born to married or unmarried parents. See ibid.
26 6.18 Either parent can file change of name petition seeking to change the child's name from that of the father to the birth name or that of mother’s new husband. See Petition of Two Minors for Change of Name, 25 Mass. App. Ct. 941, 941 (1988). Jones v. Roe, 33 Mass. App. Ct. 660, 660 (1992) (father petitioned to change surname of daughter from mother's to his own)
6.19 Father can seek injunction to prevent mother using as that child's surname a name other than that of the father. See Margolis v. Margolis, 338 Mass. 416, 417 (1959). Cf. Cramer v. Hirsch, 18 Mass. App. Ct. 986, 986 (1984) (claim that mother's change of children's names to that of her new husband was breach of separation agreement).
6.20 "In resolving a dispute as to the surname of a child whose parents have not married, a court should not attribute greater weight to the father's interest in having the child bear the paternal surname than to the mother's interest in having the child bear her name." Jones v. Roe, 33 Mass. App. Ct. 660, 663 (1992), cited with approval in Richard v. Mason, 54 Mass. App. Ct. 568 (2002).
VII. CUSTODY.
7.1 Massachusetts law (Chapter 208, Section 31) provides that in making an order relating to the temporary or final "possession" of children:
the rights of the parents shall in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody or possession.
27
7.2 In making a decision about legal or physical custody, c. 208, § 31 provides that a judge may consider "whether or not the child's present or past living conditions adversely affects his physical, mental, moral or emotional health."
7.3 As a practical matter, beyond factors stated in c. 208, § 31, judges may also consider: (1) the age of the child and the parties; (2) the physical and emotional health and needs of or danger to the child, in the past, now and in the future; (3) the physical and emotional health of the parties; (4) the school performance, special interests and activities of the child; (5) the ability of each party to foster the growth and development of the child; (6) the ability of each party to provide continuity and stability of environment; (7) the relationship and attachments of the child to the parties, the parents, siblings and any other person who may have a significant effect upon the child; (8) the ability of each party to cooperate with those persons to whom the child has such a relationship and attachments and to provide them access to the child; (9) the acts or omissions of each parent which may indicate the nature of the existing parent-child relationship; (10) any excuse, justification or reason for acts or omissions of the parents; (11) the expressed preferences of the child, provided that the court has found such child to be of sufficient age and understanding to express such a preference; (12) the motivation of the parties seeking custody; (13) the length of time the child has resided in a party's environment; (14) the employment of each party; (15) the financial or emotional support of the child - past, present and future; (16) the amount of time spent away from the home by each party, the adequacy of child care arrangements and the programs available to assist the parties to promote the best interests of the child;
28 (17) the geographical accessibility of persons to whom the child has a significant relationship and attachment; and (18) any other factor which the court considers of relevance to its determination of custody.
7.4 The case law discloses that in a custody or visitation case, subject to the rules of evidence, a judge will listen to testimony so that the court can make a decision that is in the child's best interests.
7.5 a. G. L. c. 209B governs any proceeding in which a custody dispute is presented for resolution. MacDougall v. Acres, 427 Mass. 363, 366 (1998), and cases cited.
b. The trial court determines if it has jurisdiction in a custody proceeding and, if so, whether it should exercise that power. Custody of Brandon, 407 Mass. 1, 5-6 (1990).
7.6 The rights of the parties to custody of minor children are equal in the absence of misconduct, and the welfare and happiness of the children are the determining criteria. M.G.L. c. 208, Section 31. Bouchard v. Bouchard, 12 Mass. App. Ct. 899 (1981).
7.7 "[I]n deciding issues involving custody, the overriding concern of the court must be the promotion of the best interests of the children and their general welfare." Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981), (citing Hersey v. Hersey, 271 Mass. 545, 555 (1930); Heard v. Heard, 323 Mass. 357, 375-377 (1948); Clifford v. Clifford, 354 Mass. 545, 548 (1968)). 7.8 "It is the duty of the judge to consider the welfare of the child[ren] in reference not merely to the present, but also to the probably future, and it is a subject peculiarly within the discretion of the judge." Rolde v. Rolde, 12 Mass. App. Ct. 398, 403 (1981), citing Jenkins v. Jenkins, 304 Mass. 248, 250 (1939)).
7.9 "[I]n order for joint custody or shared custody to work, both parents must be able mutually "to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children." The best interests principle requires that the narrow focus be on the interests of the child. "[P]arents [too
29 often] cannot be relied upon to assert the best interests of the child[ren] adequately because of their conflicting economic and psychological stakes in the outcome." Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981) (quoting Developments in the Law, The Constitution and the Family, 93 Harv. I. Rev. 1156, 1222-1345 (1980)).
7.10 "Joint custody is synonymous with joint decision making and a common desire to promote the children's best interests." Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981).
7.11 "It is understandable, therefore that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion." " Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981), citing Braiman v. Braiman, 44 N.Y.S. 584, 589-590 (1978) "and where their respective concepts of child rearing are equally commensurate with the children's best interests. Children are entitled to the love, companionship and concern of both parents, and they usually are better off if their parents can agree to share in the responsibility of their rearing as well as physical custody." Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981).
7.12 "[I]n order to be effective "joint custody requires two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions." " Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981) (footnote omitted) (quoting Taussig & Carpenter, Joint Custody, 56 N.D.L. Rev. 223, 234 (1980)).
7.13 a. Various factors will be considered by the trial court in making its determination on joint custody in divorce proceedings, including fitness of parents, ability of the spouses to cooperate in guiding their children to adulthood, age of the child, distance between houses of the parents, frequency of transfer and proportion of each parents' custodial time. Lumbra v. Lumbra, 136 VT 529, 394 A.2d 1139 (1978).
b. Based upon the evidence, a judge can ascribe an abject breakdown in communication between the parties to one of the parents. Rosenberg v. Merida, 428 Mass. 428 Mass. 182, 191 (1998), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002)
30 (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
c. "The misconduct of the parent may adversely affect the welfare of the child." Murphy v. Murphy, 380 Mass. 454, 462 (1980), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
7.14 Frequent changes between parents' households "are inherently disruptive...A roughly equal division of physical custody is potentially more confusing to the child than a less balanced proportioning." Lumbra v. Lumbra, 136 VT 529, 394 A.2d 1139 (1978). citing Mayer v. Mayer, 150 N.J. Super 556, 567, 376 A. 2d 214, 220 (1977).
7.15 "[T]he "best interests" of the child are to be promoted, and when the parents are at odds, the attainment of that purpose may involve some limitation of the liberties of one or other of the parents." Felton v. Felton, 383 Mass. 232, 233 (1981) (citations omitted).
Mandatory Considerations where there is evidence of abuse.
7.16 General Laws c. 208, § 31A, c. 209, § 38, and. c. 209C, § 10 require the Probate and Family Court judge to "consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child" when issuing any temporary or permanent custody order.
7.17 Statute codified requirements expressed by the Supreme Judicial Court in Custody of Vaughn, 422 Mass. 590, 599-600 (1996). 7.18 A finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred, creates "a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody,
31 shared legal custody or shared physical custody with the abusive parent." General Laws c. 208, § 31A, c. 209.
7.19 General Laws c. 208, § 31A, c. 209 defines abuse as "the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury." A "serious incident of abuse" is defined as "(a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress."
7.20 Under the statutory scheme, the definition of "bodily injury" has the same meaning as provided in G. L. c. 265, § 13K, which defines bodily injury as "substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin." G. L. c. 208, § 31A.
7.21 Upon making a finding that a pattern or serious incident of abuse has occurred, the court is required to make written findings of fact within ninety days as to the effects of the abuse on the child. G. L. c. 208, § 31A.
7.22 Such findings must demonstrate that the temporary or permanent custody order "is in the furtherance of the child's best interests and provides for the safety and well-being of the child." G. L. c. 208, § 31A.
7.23 G. L. c. 208, § 31A states that if visitation is ordered to the abusive parent, "the court shall provide for the safety and well-being of the child and the safety of the abused parent."
7.24 G. L. c. 208, § 31A identifies nine possible orders that the court
32 may consider in order to achieve the statute's objective of providing "for the safety and well-being of the child and the safety of the abused parent."
"(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party; (b) ordering visitation supervised by an appropriate third party, visitation center or agency; (c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation; (d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation; (e) ordering the abusive parent to pay the costs of supervised visitation; (f) prohibiting overnight visitation; (g) requiring a bond from the abusive parent for the return and safety of the child; (h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and (i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent."
7.25 G. L. c. 208, § 31A’s requirements apply even in cases where the judge does not award custody to the abusive partner. Quirion, Increased Protection for Children From Violent Homes, 16 Mass. Fam. L.J. 67, 71 & 77 n.51 (1998) (discussing legislative history of statute which demonstrates intent of Legislature that statute apply regardless of who is awarded custody).
7.26 When there is evidence that a party was abusive by a party, the court may require that party to attend, participate in and complete a
33 certified batterer's treatment program. See G. L. c. 208, § 31A. Cf. Custody of Vaughn, 422 Mass. 590 (1996).
7.27 "Domestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication." In Custody of Vaughn, 422 Mass. 590, 599 (1996), cited with approval in Maalouf v. Saliba, 54 Mass. App. Ct. 547 (2002).
7.28 The court must make specific findings which comply with G. L. c. 208, § 31A. Maalouf v. Saliba, 54 Mass. App. Ct. 547 (2002). (case remanded for the making of findings which satisfy c. 208, § 31A).
VIII. REMOVAL OF THE CHILDREN FROM THE COMMONWEALTH.
8.1 A minor child of divorced parents "shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders." G. L. c. 208, § 30.
8.2 The original judgment awarded sole physical custody to the mother, and "must be presumed to have been right." Hersey v. Hersey, 271 Mass. 545, 554 (1930). See Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).
8.3 Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move. See, e.g., Hersey v. Hersey, 271 Mass. 545 (1930); Usen v. Usen, 359 Mass. 453 (1971); Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985); Williams v. Pitney, 409 Mass. 449 (1991); Haas v. Puchalski, 9 Mass. App. Ct. 555 (1980); Signorelli v. Albano, 21 Mass. App. Ct. 939 (1985).
8.4 A G. L. c. 208, § 28 “request for modification of custody is distinct from a [G. L. c. 208, § 30] request to relocate and must be based on a material and
34 substantial change in circumstances other than the move, is consistent with these decisions and with G. L. c. 208, § 28.” Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001)
8.5 Unless the parties agree to the temporary change in physical custody, a judicially imposed change in custody is governed by G. L. c. 208, § 28A. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.6 When a request for removal is made, the “appropriate course is to conduct a hearing on the non-custodial parent's request for temporary order” and, absent a demonstration of the requisite "injury, harm or damage," to make no change in custody. An evidentiary hearing on the merits of the claims for custody and removal should then have been scheduled on an expedited basis. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.7 A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974).
8.8 "The court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children". The custody claim must be considered in light of established principles governing custody determinations. See, e.g., Hersey v. Hersey, 271 Mass. 545, 554 (1930); Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-112 (1985); Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980); Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).
8.9 "The uprooting of a child . . . should be done only for compelling reasons." Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981) (citation omitted).
8.10 A parent who works outside the home, even one with a "hectic"
35 schedule, may still be the appropriate primary caretaker and that, standing alone, such employment would not warrant a custody modification. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.11 Changes occurring in a child’s living arrangements because of a temporary order that was not supported by findings of substantial and material change in circumstances, let alone the requisite findings of "injury, harm or damage," G. L. c. 208, § 28A, cannot form the basis upon which a final judgment modifying custody is granted. Were we to decide otherwise, tactical delays or overcrowded court dockets could come to dictate the result in every custody modification proceeding, and render meaningless any eventual hearing on the merits. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Removal from the Commonwealth.
8.1 "The best interests of the children for purposes of deciding whether to permit removal are also interwoven with the well being of the custodial parent, and the determination, therefore, requires that the interests of the mother also be taken into account." Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981).
8.2 "The words "upon cause shown" in the controlling statute, G.L. c. 208, Section 30 ... have been interpreted to permit removal if in the best interests of the child." Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981) citing Rubin v. Rubin, 370 Mass. 857 (1976).
8.3 A request for removal is governed by G. L. c. 208, § 30 as that statute has been interpreted by Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985) and Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981).
8.4 "[I]n determining whether removal should be allowed [the factors to be weighed include]:
"the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children;...the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the
36 desire to defeat or frustrate visitation by the non-custodial parent, and whether the custodial parent is likely to comply with substitute visitation orders... which can provide an adequate basis for preserving and fostering the parental relationship with the non-custodial parent if removal is allowed. The court should not insist that the advantages of the move be sacrificed...solely to maintain weekly visitation by the father. Hale at 818 (citing D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 206-207, aff'd per curiam, 144 N.J. Super. 352 (1976).
"[T]he correct legal standard in determining [issues of removal is] (sic) the "real advantage" test [which] is grounded upon the "realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce...[and] that the child's quality of life and style of life are provided by the custodial parent."
Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), citing Cooper v. Cooper, 99 N.J. 42, 53 (1984).
8.5 "Although the best interests of the children always remain the paramount concern, "[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the parent be taken into account." Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), citing Cooper v. Cooper, 99 N.J. 42, 54 (1984).
8.6 A parent's request to relocate with a child from the Commonwealth must be "grounded on the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . .[and] that the child's quality of life and style of life are provided by the custodial parent.' Although the best interests of the children always remain the paramount concern, '[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the custodial parent be taken into account." Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), quoting from Cooper v. Cooper, 99 N.J. 42, 53-54 (1984). See
37 Hale v. Hale, 12 Mass. App. Ct. 812, 815-818 (1981) quoting from D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 204-206, aff'd per curiam, 144 N.J. Super. 352 (1976) (a court must consider the advantages of the move in terms of whether the move is likely to improve the general quality of life for both the custodial parent and the child, the "new family unit").
Real Advantage / Motivation Tests.
8.7 "[T]he first consideration is whether there is good reason for the move, a "real advantage." If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985).
8.8 Real advantage is determined by assessing "the soundness for the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation . . . ." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985)(move to Greece where mother found new job and would be geographically close to her relatives "would be to [her] advantage"); Williams v. Pitney, 409 Mass. at 455 (that mother found employment and would live near her relatives in California were "good and sincere reasons"); Signorelli v. Albano, 21 Mass. App. Ct. at 940 (that mother had remarried, given birth to a child of the new marriage, and new husband obtained higher paying job in New Jersey were "good and sincere reasons" for move); Vertrees v. Vertrees, 24 Mass. App. Ct. 918, 919 (1987) (that mother wanted to move to Illinois because her relatives there would provide emotional support (i.e. supportive family) and social interaction and where she made reasonable plans for economic improvement were considered "good and sincere reason" for wanted to remove the child).
8.9 "The interest of the custodial parent in moving must also be assessed. The relative advantages to the custodial parent from the move, the soundness of the reason for moving, and the presence or absence of a motive to deprive the non-custodial parent of reasonable visitation are likely to be relevant considerations." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212
38 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
8.10 Denial of a request for removal should be accompanied by evidence in the record to support a finding that the custodial parent was motivated to deprive the father of reasonable visitation. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Interests of the child.
8.11 "An evaluation of the best interests of the child requires attention to whether the quality of the child's life may be improved by the change (including any improvement flowing from an improvement in the quality of the custodial parent's life), the possible adverse effect of the elimination or curtailment of the child's association with the non-custodial parent, and the extent to which moving or not moving will affect the emotional, physical or developmental needs of the child." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
(a) Improvement in child's quality of life.
8.12 The probate judge must consider "whether the quality of the child's life may be improved by the change (including any improvement flowing from an improvement in the quality of the custodial parent's life) . . . ." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).
8.13 There should be findings reflecting consideration of "the relationship of the [custodial parent] to the [child]," Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981), or "any improvement flowing from an improvement in the quality of the custodial parent's life." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).
8.14 It is not the custodial parent’s burden to provide evidence of
39 improvement. Rather, the factors must be considered collectively. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.15 "The judicial safeguard of [all parties'] interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof." Yannas v. Frondistou-Yannas, 395 Mass. 704, 712 (1985).
(b) Effect of move on child's association with noncustodial parent. 8.16 There should be findings reflecting specific consideration of the effect on the child of a possible "curtailment of the child's association with the noncustodial parent," in the event of relocation. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).
(c) Effect of move on child's emotional, physical, or developmental needs.
8.17 There should be findings reflecting consideration of "the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). Hale v. Hale, 12 Mass. App. Ct. 812, 817-820 (1981).
8.18 A child may have important relationships extending beyond those of his immediate family members that deserve protection, Youmans v. Ramos, 429 Mass. 774, 782-784 (1999); E.N.O. v. L.L.M, 429 Mass. 824, 828-829 (1999), and, if so, there must be findings reflecting a consideration whether those relationships are so important to the child’s emotional well-being that they deserve primacy over his relationship with his custodial parent, who was (up to a temporary change, if any, in primary physical custody) the primary custodial parent throughout the child’s life. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Interests of custodial parent.
8.19 There should be findings reflecting a consideration of the interests of the custodial parent in maintaining both her close relationship with the child, and in living with her new husband in the city in which he and the mother both work. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
40
8.20 There should be findings reflecting a consideration of the impact which a denial of the custodial parent’s request to relocate, and the temporary order changing custody because she made that request, had on the mother and her choice of living with her husband and suffering separation from her child, or living with her child and suffering separation from her husband. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.21 There should be findings reflecting a consideration of the “weight to the quality of life of the custodial parent by reason of the separations enforced on her," Signorelli v. Albano, 21 Mass. App. Ct. at 940, as a consequence of her decisions and the court’s temporary order changing custody. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.22 "The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered." Hale v. Hale, 12 Mass. App. Ct. Ct. 812, 818 (1981) (citations omitted), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Interests of noncustodial parent.
8.23 The court must consider "the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent." Yannas v. Frondistou-Yannas , 395 Mass. 704, 711 (1985).
8.24 "Finally, the interests of the non-custodial parent must be considered. If that parent is unfit or has not exercised his or her rights of visitation, the judge's problem is less difficult than in the case of a diligent non-custodial parent...The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). See, Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).
41
8.25 The test is not whether there is no impact on the non-custodial's association, but whether reasonable "alternative visitation arrangements" might achieve ongoing and meaningful contact appropriate to the circumstances. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.26 "From what we can ascertain, the judge recognized the importance of the 'frequent and continuing contact' of the child with both its parents . . . and entered [her] judgment prohibiting removal on the basis that the move would make visitation more difficult. We consider that factor not in itself conclusive." Hale v. Hale, 12 Mass. App. Ct. Ct. 812, 815 (1981) (citations omitted), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001). (Emphasis supplied).
Standard of Review on Appeal
8.27 Although great deference is accorded a probate judge's custody determination, "[t]here are limits to appellate deference," as when the judge's action is not supported by the findings, or the findings are not supported by the evidence, as here. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
8.28 Because of what the record discloses, "[a] remand for findings of fact to support the judge's order is unnecessary, because the evidence, weighed under the relevant factors . . . convincingly establishes that the plaintiff's request should have been allowed." Gridley v. Beausoleil, 16 Mass. App. Ct. 1005, 1006-1007 (1983), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
IX. Pensions.
9.1 If one spouse is to receive an interest in the other spouse's pension, it is preferable, if possible, to make the assignment in cash or by a tax free roll over, rather than with a Domestic Relations Order, so as to
42 permit the parties to go forward in life unentangled with each other. Dewan v. Dewan, 399 Mass. 754, 757 (1987).
9.2 If a cash assignment is not possible,2 then the recipient spouses's interest must be protected from the assigning spouse and his or her creditors by use of a QDRO. Peterson v. Peterson, 70 Mass. App. Ct. 932. 932 (1990).
X. COUNSEL FEES AND COSTS.
10.1 “The judicial setting of counsel fees involves a consideration of ‘numerous, complex variables.’ " Downey v. Downey, 55 Mass. App. Ct. 812 (2002). See Robbins v. Robbins, 19 Mass. App. Ct. at 543. See generally 1 Kindregan & Inker, Family Law and Practice §§ 6.4 (2d ed. 1996)
10.2 Alimony and counsel fees should be considered together. Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 17 (1979): [A] spouse's need for adequate legal representation in a lawsuit affecting the marital status is not materially different from those other needs ... which fall within the more common meaning of alimony or support ... Although ... particular considerations in measuring ...[counsel fees] may differ from those applicable to alimony or support, the basic factors of need and relative economic positions of the spouses are relevant to all those matters.
Goldman v. Roderiques, 370 Mass. 435, 437-438 (1976). See, also Grubert, supra, at 819; Borgarello v. Borgarello, 388 Mass. 652, 654 (1983).
2At bar, the Husband's Raytheon defined benefit plan, shown on his Financial Statement, falls into the category of a plan which requires a QDRO to transfer an interest to the Wife.
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10.3 a. In awarding attorneys fees and costs, trial courts are instructed to take a conservative approach to these matters:
...awards in domestic relations litigation are to be governed by caution and restraint, for "fees in such cases are awarded on strictly conservative principles."
Pemberton v. Pemberton, 9 Mass. App. Ct. 9,16 (1980), citing Hayden v. Hayden, 326 Mass. 587, 596 (1950).
b. Later cases suggest a softening of this conservative ("penurious") approach - see discussion in Pemberton v. Pemberton, 9 Mass. App. Ct. 9,16-17 (1980).
Nevertheless, it remains the rule that awards in domestic relations litigation are to be governed by caution and restraint ...
Kane v. Kane, 13 Mass.App.Ct. 557-560 (1982).
10.4 a. In considering an award of attorneys fees and costs, the Court may look to the services actually performed and, as well, whether the services were reasonably necessary, so as to enable a Court to evaluate the time and labor required, the novelty and difficulty of questions involved, and the results obtained. Supreme Judicial Court Rule 3:22.
b. Much “discretion must be accorded a judge in determining the necessity and amount of attorney's fees.” Robbins v. Robbins, 19 Mass. App. Ct. at 543. Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996) cited with approval in Downey v. Downey, 55 Mass. App. Ct. 812 (2002).
c. Much discretion is given to trial judges in setting counsel fees "if their findings of fact are not clearly erroneous." Krock v. Krock, 46 Mass. App. Ct. 528, 533 (1999), quoting from Kennedy v. Kennedy, 23 Mass.
44 App. Ct. 176, 179 (1986), further appellate review at 400 Mass. 272 (1987), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002).
10.5 a. In order to meet her burden of proof, Robbins v. Robbins, 19 Mass. App. Ct. 538, 541 (1985), the Wife has provided the affidavit of her counsel and, as well, among other information and documents: bills she received as the litigation proceeded; itemized list of each expense incurred; itemization of: . what work was done; . by whom; . when; . how much time each task took; . the hourly rate charged by each attorney or paralegal; and . whether any novel issues were involved.
b. The Court may also consider: whether more than one attorney populated one side of the case or the other; whether one side prosecuted his or her claims in an absence of good faith or in bad faith; . what result was accomplished; whether one party will suffer a hardship, absent an appropriate award; and why the moving party is not able or should not have to pay her or his own attorneys fees and costs.
10.6 In the exercise of its discretion, the Court may compare the services and legal fees of the parties and evaluate the work which was performed by counsel for each party as reflected in the pleading and during court appearances and trial. Robbins v. Robbins, 19 Mass. App. Ct. 538, 541 (1985).
10.7 After a trial, G.L. c. 208, §38 controls the awarding of any attorneys fees or costs.
10.8 The Court may award additional legal fees and costs to the Wife in
45 consideration of the Husband's obstructionist tactics. Kennedy v. Kennedy, 400 Mass. 272, 275 (1987). Downey v. Downey, 55 Mass. App. Ct. 812 (2002). (Husband’s “obstructionist conduct” prolonged proceedings and caused wife’s counsel to engage in extra ordinary discovery efforts.)
10.9 "In deciding the question of attorney's fees, the relative financial capacities of the parties are, of course, factors which should be considered." Fugere v. Fugere, 24 Mass.App.Ct. 758,761-762 (1987); citing Hano v. Hano, 5 Mass. App. Ct. 639, 642 (19779) and Robbins v. Robbins, 19 Mass. App. Ct. 538, 544 n.11 (1985).
10.10 No one factor should be viewed in a vacuum. Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 17 (1980) (referring to a "considerable" number of "judgmental variables"); Robbins v. Robbins, 19 Mass. App. Ct. 538, 543 (1985) (referring to "numerous, complex variables"); Kane v. Kane, 13 Mass.App.Ct. 557, 560 (1982) (referring to "the application of many factors"); and Perkins v. Blake, 3 Mass. App. Ct. 415 91975) (noting that no "single factor is necessarily decisive").
10.11 An award is even more appropriate when the Wife will suffer hardship if she has to pay her own attorneys fees and costs. Frietas v. Frietas, 26 Mass. App. Ct. 196,201 (1988). Kennedy v. Kennedy, 400 Mass. 272, 275 (1987).
10.12 Where a case is long and difficult, where a party has adopted dilatory and evasive litigation practices and is recalcitrant and taken positions which increase counsel fees, the Probate Court should award the responding party her attorney's fees. Perkins v. Blake, 3 Mass. App. Ct. 415 (1975); Redding v. Redding, 398 Mass. 102, 110-111(1986); Davidson v. Davidson, 19. App. Ct. 364, 378 (1985).
10.13 Where a party provokes unnecessary or ill - motivated litigation, the provocateur ought not to gain an advantage through its use, nor force the other party to bear the burden of defending such claims. See, Bird v. Bird, 24 Mass.App.Ct. 362 (1987),
46
10.14 Divorce counsel should not further irrational divorce litigation. Larson v. Larson, ("Larson III) 37 Mass.App.Ct. 106, 112 (1994) (Brown, J., concurring).
10.15 An award of counsel fees should be awarded to the Wife where the Husband made the proceedings unnecessarily complicated and burdensome. DiVenuti v. Reardon, 37 Mass. App. Ct. 73 (1994).
10.16 Where the claimant attorney has obtained a worthy result, counsel fees should be awarded. Perkins v. Perkins, 3 Mass. App. Ct. 415 (1975); Hano v. Hano, 5 Mass. App. Ct. 639 (1977).
10.17 The intransigence of the husband in revealing assets and his resistance to the pre-trial discovery process are factors the court may consider in awarding counsel fees. Allen v. Allen, 25 Mass. App. Ct. 515, 524 (1988). Grubert v. Grubert, 20 Mass. App. Ct. 811, 819-820 (1985).
10.18 Silverman v. Sprio,, ___ Mass. ___, SJC-08819 (February 24, 2003.)
a. Judge has authority to enter a QDRO to ensure payment of attorney’s fees.
b. The judge may correctly order “accommodation for the tax consequences resulting from the liquidation of retirement assets. Cf. Rice v. Rice, 372 Mass. 398, 402 & n.4 (1977) (if raised, tax consequences of marital distribution should have been considered by judge); Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989) (appropriate to consider and minimize tax consequences when apportioning marital assets).” c. As long as an award of attorney's fees is "not incommensurate with an objective evaluation of the services performed . . . '[t]he award of such costs generally rests in sound judicial discretion. . . . “
d. “[T]he award . . . may be presumed to be right and ordinarily ought not to be disturbed.' Ross v. Ross, 385 Mass. 30, 38-39 (1982), quoting Smith v. Smith, 361 Mass. 733, 738 (1972).”
10.19 An award of counsel fees is "presumed to be right and ordinarily ought
47 not to be disturbed." Ross v. Ross, 385 Mass. 30, 39 (1982), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972) both cited with approval in Downey v. Downey, 55 Mass. App. Ct. 812 (2002).
XI. RATIONALE.
11.1 At the time of issuing a judgment, the trial judge dividing marital property must make express findings indicating that all relevant statutory factors have been considered, Charrier v. Charrier, 416 Mass. 105, 616 N.E.2d 1085 (1993), whether or not findings of fact are requested by a party pursuant to Mass. R. Dom. Rel. P. 52. Mancuso v. Mancuso, 112 Mass. App. Ct. 973, 428 N.E.2d 339 (1981), rev. denied 385 Mass.1102, 440 N.E.2d 1174. King v. King, 373 Mass. 37, 364 N.E.2d 1218 (1977).
11.2 The trial justice should issue findings of fact and conclusions of law, which are supported by a rationale, in order to explain the judgment to the parties. Warman v. Warman, 485 N.E.2d 1345, 1347 (1985).
11.3 The reasons (i.e. the rationale) for the judge's conclusions must be apparent in the decision. Charrier v. Charrier, 416 Mass. 105, 616 N.E.2d 1085 (1993).
11.4 The findings must clearly indicate that the judge weighed all statutory factors set out in Section 34, Moran v. Moran, 5 Mass. App. Ct. 787, 360 N.E.2d 665 (1977), and no consideration of irrelevant matter or irrelevant facts. Denninger v. Denninger, 34 Mass. App. Ct. 429, 612 N.E.2d 262 (1993); Bowring v. Reid, 399 Mass. 265, 267 (1987). Redding v. Redding, 398 Mass. 102, 107 (1986). Brady v. Brady, 8 Mass. App. Ct. 43, 47 (1979). Rice v. Rice, 372 Mass. 402-403 (1977).
XII. STATUTORY REFERENCES.
48
12.1 The court takes Judicial Notice of the applicable case law and general laws of this commonwealth and of the federal law, including those set out in the following relevant statutes. G.L. c. 233, §70.
12.2 Massachusetts General Laws: a. c. 208, § I (grounds); b. c. 208, § 31 (custody of children; shared custody plans); c. c. 208, § 34 (equitable distribution, alimony, health insurance); d. c. 208, § 38 (award of attorney fees and costs); e. c. 209 (U.C.C.J.A.) f. c.231, §6F Frivolous Claims
12.3 Mass.R.Dom.Rel.P. Rule 11(a)
12.4 Internal Revenue Code of 1986 (as amended): a. Section 63 (taxable income defined); b. Section 63 (c)(6)(A)1 (who must file returns); c. Section 71 (deductibility of alimony paid per section 215); d. Section 151 (payment of alimony which can be deducted by payor and included in the income of payee); e. Section 1041 (transfers between married person or at time of or in connection with a divorce).
XIII. TAX CONSIDERATIONS AND OTHER ITEMS WHICH CAN IMPACT UPON AN
AWARD.
49 13.1 In fashioning its judgment, the court must consider and minimize any adverse tax consequences. Fechtor v. Fechtor, 26 Mass. App. Ct. 849, 534 N.E.2d 1(1989), rev. denied 404 Mass. 1103, 537 N.E.2d 157.
XIV. Interest is Mandatory on Awards of Money in Judgment of Divorce.
14.1 By statute, "[e]very judgment for the payment of money shall bear interest from the day of its entry." G. L. c. 235, § 8, as appearing in St. 1983, c. 652, 2. Osborne v. Biotti, 404 Mass. 112, 113-114 (1989), cited with approval in Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.2 A judgment is the act of the trial court finally adjudicating the rights of the parties including a decision by the court that a party shall recover a sum certain. Osborne v. Biotti, 404 Mass. 112, 113-114 (1989).
14.3 General Laws c. 235, § 8, is applicable to equitable relief expressed in terms of an order for the payment of money. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.4 "[A]n equity decree for the payment of money is a judgment made upon a finding of a judge and thus bears interest from the date of the judgment or award to the date the judgment is satisfied." Johnson v. Hazen, 333 Mass. 636, 638 (1956). See Hobbs v. Cunningham, 273 Mass. 529, 536 (1930); Boyer v. Bowles, 316 Mass. 90, 95 (1944); New England Factors, Inc. v. Genstil, 322 Mass. 36, 46 (1947).
14.5 The court in Osborne referred to the language of Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), in its interpretation of the statute. The language in Mass.R.Dom.Rel.P. 54(a) is identical. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.6 Mass.R.Civ.P. 54 (f): "(f) Interest. Every judgment for the
50 payment of money shall bear interest up to the date of payment of said judgment. . . . Unless otherwise ordered by the court, interest from the date of entry of a judgment to the date of execution or order directing the payment of said judgment shall also be computed by the clerk, and the amount of such interest shall be stated on the execution or order." 14.7 Rule 54 (f) was added to clarify the problem identified in Stokosa v. Waltuch, 378 Mass. 617, 620 (1979), as to the duty of the clerk to compute both prejudgment and postjudgment interest. Trinity Church in Boston v. John Hancock Mut. Life Ins Co., 405 Mass. 682, 684-685 (1989).
14.8 Rule 54(f) merely clarifies the duties of the clerk and does not establish the substantive rights of a party to interest on a judgment. See Stokosa v. Waltuch, 378 Mass. 617, 618 (1979), cited with approval in Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.9 Where the award is announced as a certain monetary sum, G. L. c. 235, § 8, acts to provide interest over any period of delayed payment. To hold otherwise would ignore clear legislative intent in enacting that statute and fly in the face of strong public policy supporting the inclusion of interest on monetary judgments. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002) (order to pay $100,000 in or within 90 days bears interest from the date of the judgment.)
14.10 If the judgment calls for a payment of money, under the plain terms of the statute, the judgment bore interest from the date of its entry. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.11 The fact that defendant was permitted to pay in or within 90 days does not affect interest but only whether he could be held in contempt. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.12 Although interest is available upon a finding of contempt, it is
51 not a substitute for statutory interest upon a money judgment under G. L. c. 235, § 8. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.13 Under G. L. c. 235, § 8, the rate of interest is computed using the same rate as provided for prejudgment interest. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.14 Where there is no statutory prejudgment rate of interest, the 6% standard statutory rate found in G. L. c. 107, § 3, applies. See Sharpe v. Springfield Bus Terminal Corp., 406 Mass. 62, 65 (1989); Robbins v. Robbins, 22 Mass. App. Ct. 982, 984 (1986). 14.15 Under G. L. c. 235, § 8, the rate of interest is computed using the same rate as provided for prejudgment interest.
14.16 Where there is no statutory prejudgment rate of interest, the 6% standard statutory rate found in G. L. c. 107, § 3, applies. See Sharpe v. Springfield Bus Terminal Corp., 406 Mass. 62, 65 (1989); Robbins v. Robbins, 22 Mass. App. Ct. 982, 984 (1986), cited with approval in Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.17 That an order is meant to effect an equitable division does not undermine the character of the judgment as one for the payment of money. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.18 The inclusion within the judgment of other orders not requiring the payment of money does not change this result. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
14.19 The fact that the judgment also provided security for the payment of the money does not deprive plaintiff of the statutory right to interest on that portion of the judgment that was an order for the payment of a fixed sum in recognition of an equitable division of the marital estate. Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
52
14.20 There is no consequence to the failure of the judge to include mention of interest in the original judgment nisi. The addition of post-judgment interest is an automatic ministerial task and a judge need not expressly allow it. Osborne v. Biotti, 404 Mass. 112, 117 (1989), cited with approval in Karellas v. Karellas, 54 Mass. App. Ct. 469 (2002).
Interest on Order of Attorneys Fees.
14.21 The ordering of interest on an award of counsel fees was upheld as proper in Robbins v. Robbins, 22 Mass. App. Ct. at 984. Compare Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 272 (1985) (no interest accrues on attorney's fees awarded under G. L. c. 93A).
XV. APPEAL.
15.1 An appellate court will not reverse a property division judgment unless it is found to be "plainly wrong and excessive." Baccanti v. Morton, 434 Mass. 787, 793 (2001), and cases cited.
15.2 To obtain reversal of a Judgment, appellant must show the court failed to apply proper legal standards or that the record does not disclose reasonable support for necessary factual evaluations. Bank of New England, N.A. v. Mortgage Corp. of New England, 50 Mass. App. Ct. 238, 244-245 (1991).
15.3 Case law describes abuse of discretion as “arbitrary,” “whimsical” or “idiosyncratic,” Monahan v. Washburn, 400 Mass. 126, 129 (1987), that “no conscientious judge, acting intelligently, could honestly have taken the view expressed” here, Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920) or “plainly wrong.” Redding v. Redding, 398 Mass. 102, 107-108 (1987).
15.4 A trial judge's factual findings are presumptively correct and will not be disturbed unless clearly erroneous. Clark v. Clark, 47 Mass. App. Ct. 737, 739
53 (1999).
15.5 The trial court’s factual findings and determinations of credibility will not be reviewed except on the most compelling showing of error. Johnston v. Johnston, 38 Mass. App. Ct. 531, 535-536 (1995)
15.6 As to matters of law, this court may review the issues de novo. Commonwealth v. Sneed, 56 Mass. App. Ct. 391, 393 (2002).
15.7 "The general rule is that an issue not raised in the trial court cannot be argued for the first time on appeal." M.H. Gordon & Son v. Alcoholic Bevs. Control Commn., 386 Mass. 64, 67 (1982). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003) (Party failed to offer evidence at trial seeking alternate valuation for interests in two trusts, instead stipulating and testifying that the value was the same as trusts’ res.)
15.8 By failing to object below, appellant waived the issue and cannot raise it for the first time on appeal. Bercume v. Bercume, 428 Mass. 635, 639-640 (1999).
15.9 There is no reason to exercise discretion to consider the issues not raised below if it does not raise "important questions of public interest." Filippone v. Mayor of Newton, 392 Mass. 622, 627 n.8 (1984). Child v. Child, — Mass. App. Ct. —, No. 01-P-71 (May 12, 2003) (Party failed to offer evidence at trial seeking alternate valuation for interests in two trusts, instead stipulating and testifying that the value was the same as trusts’ res.)
15.10 Conclusions based on a judge's credibility assessments deserve particular appellate deference and “[are] close to immune from reversal ..." Johnston v. Johnston, 38 Mass. App. Ct. 531, 535-536 (1995) (finding that husband’’s testimony about his assets and income were less than candid not open to challenge on appeal).
XVI. CONCLUSIONS.
54
16.1 As long as the court considers the mandatory factors enumerated in General Laws, Chapter 208, Section 34, the court has discretion to emphasize those factors which to the court are most conductive to an equitable Judgement. Ross v. Ross, 385 Mass. 30, 37 (1982); Rice v. Rice, 372 Mass. 398, 400-401 (1977).
16.2 Before the Court exercises its discretion to award alimony or assign estate assets, it must consider all the applicable criteria of the statute; length of the marriage, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs of each of the parties and the opportunity of each for future acquisition and capital assets and income. Trudel v. Trudel, 8 Mass. App. Ct. 939 (1979). Putnam v. Putnam, 6 Mass. App. Ct. 672 (1979).
16.3 Absent consideration and application of all of the section 34 factors, an equitable distribution would not be valid. Patridge v. Patridge, 14 Mass. App. Ct. 901, 918 (1982); Rice v. Rice, 372 Mass. 398, 400-401 (1977). King v. King, 373 Mass. 37, 39-40 (1977).
16.4 I have considered the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates, the contribution of each of the parties as a homemaker to the family unit and the present and future needs of the dependent children of the marriage, prior to entry of judgment in this case and such consideration as applied to the facts of this case warrants a division of marital property and for support as set forth in the Judgement of Divorce Nisi.
16.5 I have considered the proposed Requests for Conclusions of Law submitted by the parties. To the extent any of the above finding are the same as or similar to said proposed findings, I have, none-the-less made my own independent decision about which findings to include here as my own.
Dated: By the Court,
55
______Hon. ______First / Associate Justice ______Division Probate and Family Court Department cc: G. L. Nissenbaum ______
56 NISSENBAUM’S STANDARD SET OF CONCLUSIONS OF LAW - MODIFICATIONS OF JUDGMENT (as of May 31, 2003)
1.0 Modification Of Alimony.
“[T]he fundamental purpose of alimony [is] to provide economic support to the dependent spouse." Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986).
Even "scrupulous and careful" effort by the probate judge is inadequate if it failed "adequately to take into account traditional alimony considerations and resulted in an inequitable award." Grubert v. Grubert, 20 Mass. App. Ct. 811, 811 (1985).
Modification decision must be based upon a balancing of all the financial and equitable factors. Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987)).
Modification must be "consistent with common sense and justice" Huddleston v. Huddleston, 51 Mass. App. Ct. 563, 570 (2001).
Probate court judges have a great breadth of discretion when dealing with complaints for modification of alimony pursuant to G. L. c. 208, § 37. Schuler v. Schuler, 382 Mass. 366, 368 (1981), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
Judge is required to fairly and equitably evaluate and all of the circumstances relevant to the totality of the parties' situations. Schuler
57 v. Schuler, 382 Mass. 366, 370-373, 376 (1981), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
A “party has no right to waste an asset deliberately or ignore a feasible source of income . . . ." Pagar v. Pagar, 9 Mass. App. Ct. 1, 4 (1980).
Capital assets should be used to evaluate a supporting spouse's ability to pay alimony in a modification proceeding. See Krokyn v. Krokyn, 378 Mass. 206, 213-216 (1979); Schuler v. Schuler, 382 Mass. at 375-376; Pagar v. Pagar, 9 Mass. App. Ct. at 8; Cooper v. Cooper, 43 Mass. App. Ct. 51, 53 (1997), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
"Common sense and basic concepts of fairness support the notion that ownership of a valuable asset demonstrates ability to pay without further inquiry as to whether payment can be enforced directly against the asset. . . . The law does not require that an obligor be allowed to enjoy an asset -- such as a valuable home or the beneficial interest in a spendthrift trust -- while he neglects to provide for those persons whom he is legally required to support." Krokyn v. Krokyn, 378 Mass. 206, 213-214; Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
The judge must consider the income, potential income, or assets of a party’s then spouse in assessing the party’s overall financial capability and expenses. See Bak v. Bak, 24 Mass. App. Ct. 608, 623 (1987); Cooper v. Cooper, 43 Mass. App. Ct. 51, 55-56 (1997); Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
An obligor's personal aspirations "must be balanced against his obligations to support his former [as well as] present families." Schuler v. Schuler, 382 Mass. at 372).
58 The original judgment reflected no expectation or intention that Nathan's alimony obligation was to end short of his death or clearly established inability to pay. See Huddleston v. Huddleston, 51 Mass. App. Ct. at 570. Cf. Freedman v. Freedman, 49 Mass. App. Ct. 519, 523 (2000).
The abrupt termination of otherwise unconditional and indefinite alimony demands "clear and adequate explanation," Bowring v. Reid, 399 Mass. 265, 268 (1987).
An arbitrary limitation on the duration of an alimony obligation to a spouse whose needs are current and predictable is unwarranted when based on an assumption of future events, the occurrence of which is uncertain or unpredictable. See Goldman v. Goldman, 28 Mass. App. Ct. 603, 612-613 (1990); Martin v. Martin, 29 Mass. App. Ct. 921, 922-923 (1990); Ross v. Ross, 50 Mass. App. Ct. 77, 80-81 (2000).
It is a public policy to not make an order that would result in a party becoming a public charge. See O'Brien v. O'Brien, 325 Mass. 573, 578 (1950); Knox v. Remick, 371 Mass. 433, 437 (1976).
"We do not believe that the [former husband] ought to be permitted to shift to the public the obligation he assumed when he married [his first wife]. It may be that because of his second marriage he will suffer some financial hardship, but the short answer to that is that he must have entered into the second marriage conscious of his obligations to his former wife so that the second marriage with its attendant obligations affords him no relief." O'Brien v. O'Brien, 325 Mass. 573, 578 (1950), cited with approval in Katz v. Katz, 59 Mass. App. Ct. 472 (2002).
A support provider does not "have to deplete his total liquid or other assets in an effort to meet his support obligations". Schuler v. Schuler, 382 Mass. at 375.
59
2.0 Modification of Child Support
If the original order was consistent with the guidelines or based on a rebuttal of the guidelines, the rule that a modification is appropriate upon a showing that there is " 'a discrepancy of [twenty percent] or more between an established order and a proposed new order calculated under [the] guidelines' . . . does not apply." Crowe v. Fong, 45 Mass. App. Ct. 673, 677 (1998), quoting from Massachusetts Child Support Guidelines, introductory paragraph. Richard v. Mason, ---- Mass. App. Ct. ___, 99-P-1871 (2002)
3.0 Modification of Custody3
A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974).
"The court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children". The custody claim must be considered in light of established principles governing custody determinations. See, e.g.,
3 For conclusions regarding removal of a child from Massachusetts, see Section VIII in Conclusions - Divorce.
60 Hersey v. Hersey, 271 Mass. 545, 554 (1930); Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-112 (1985); Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980); Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).
A parent who works outside the home, even one with a "hectic" schedule, may still be the appropriate primary caretaker and that, standing alone, such employment would not warrant a custody modification. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Changes occurring in a child’s living arrangements because of a temporary order that was not supported by findings of substantial and material change in circumstances, let alone the requisite findings of "injury, harm or damage," G. L. c. 208, § 28A, cannot form the basis upon which a final judgment modifying custody is granted. Were we to decide otherwise, tactical delays or overcrowded court dockets could come to dictate the result in every custody modification proceeding, and render meaningless any eventual hearing on the merits. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
61 NISSENBAUM’S STANDARD SET OF CONCLUSIONS OF LAW - SEPARATION AGREEMENTS (As of May 31, 2003)
NEGOTIATING AND SIGNING SEPARATION AGREEMENTS.
Krapf v. Krapf, 439 Mass 97 (2003):
It is public policy to encourage divorcing couples to resolve their marital disputes by mutual agreement rather than resort to litigation. See G. L. c. 208, §§ 1A; Knox v. Remick, 371 Mass. 433, 436 (1976); Buckley v. Buckley, 42 Mass. App. Ct. 716, 720 n.3 (1997).
Divorcing parties may enter into written separation agreements, which they may elect to survive the divorce judgment as independent contracts. See Moore v. Moore, 389 Mass. 21, 24 (1983) (noting Commonwealth's "strong policy . . . favor[ing] survival of separation agreements, even when such an intent of the parties is merely implied").
Surviving agreements may secure with finality the parties' respective rights and obligations concerning the division of marital assets, among other things, according to established contract principles. See, e.g., Larson v. Larson, 37 Mass. App. Ct. 106 (1994); DeCristofaro v DeCristofaro, 24 Mass. App. Ct. 231, 236-237 (1987).
Spouses who enter into agreements with each other are held to standards higher than those tolerated in the arm's-length transactions of the marketplace.
62 Parties to a separation agreement stand as fiduciaries to each other, and will be held to the highest standards of good faith and fair dealing in the performance of their contractual obligations. See Eaton v. Eaton, 233 Mass. 351, 370 (1919). See also Larson v. Larson, 37 Mass. App. Ct. 106, 109 (1994).
A separation agreement is a "judicially sanctioned contract" that is valid and enforceable only if and as approved by the judge. Bell v. Bell, 393 Mass. 20, 26 (1984), cert. denied, 470 U.S. 1027 (1985) (Abrams, J., dissenting). In deciding whether to approve a separation agreement, judges have their own independent duty to ensure that the division of the marital estate is fair and reasonable in accordance with the factors set out in G. L. c. 208, §§ 34. See Knox v. Remick, supra at 436-437. Cf. Barry v. Barry, 409 Mass. 727, 732 (1991) (judge's finding agreement fair and reasonable not explicitly stated on record did not warrant reconsideration of issue).
Among other things, a judge must ensure that the division of marital property is equitable in the circumstances.
Equitable division of marital assets cannot be considered in a vacuum; property division is but one aspect of the finances of the divorcing household that the judge must consider. See G. L. c. 208, § 34; Caccia v. Caccia, 40 Mass. App. Ct. 376, 382 (1996). See also Andrews v. Andrews, 27 Mass. App. Ct. 759, 761 (1989) (combination of alimony and equitable division pursuant to G. L. c. 208, § 34, "must make sense").
The Legislature has recognized that pensions often constitute valuable marital assets.
General Laws c. 208, §34, specifically directs the court to consider the equitable division of "retirement benefits," including "military retirement benefits if qualified under and to the extent provided by federal law," when
63 apportioning the marital estate. See McMahon v. McMahon, 31 Mass. App. Ct. 504, 508-509 (1991) (dividing military retirement benefit as marital asset).
2.0 MODIFICATION OF SURVIVING AGREEMENT
A surviving agreement retains its force as an independent contract. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)
"[S]omething more than a 'material change of circumstances' must be shown before a judge of the Probate Court is justified in refusing specific enforcement of that agreement." Stansel v. Stansel, 385 Mass. 510, 515 (1982). See Larson v. Larson, 37 Mass. App. Ct. 106, 108 (1994); Cournoyer v. Cournoyer, 40 Mass. App. Ct. 302, 305 (1996).
Something more has been characterized as: “countervailing equities,” such as [when] one spouse “is or will become a public charge;” there has been failure to comply with the agreement; or there are equally compelling reasons." DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231, 235-236 (1987), citing Knox v. Remick, 371 Mass. 433, 436-437 (1976), and Stansel v. Stansel, 385 Mass. at 515-516.
"'The rationale for the more stringent standard is manifest: '[a] policy of enforcement supports finality and predictability, allows the parties to engage in future planning, and avoids recurrent litigation in the highly emotional area of divorce law.'" Broome v. Broome, 43 Mass. App. Ct. 539, 544 (1997), quoting from Ames v. Perry, 406 Mass. 236, 240-241 (1989).
In determining whether "something more than a material change" in the parties' circumstances has occurred, the probate court must weigh "all
64 relevant circumstances" and enter findings accordingly. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 89 (1991).
"The parties to a divorce may not relitigate the division of property that already has been the subject of a proceeding under G. L. c. 208, §§ 34." Bush v. Bush, 402 Mass. 406, 409 (1988)), Taverna v. Pizzi, 430 Mass. 882, 886 (2000); Drapek v. Drapek, 399 Mass. 240, 244 (1987) all cited with approval in Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).
65 NISSENBAUM’S STANDARD SET OF
CONCLUSIONS OF LAW - CONTEMPT (as of May 31, 2003)
I. Statutory Authority for Contempt, Legal Fees and Interest.
General Laws c. 215, § 34A, as amended through St. 1985, c. 342, provides: "Actions for contempt against any party for failure to obey any judgment of the probate court relative to support of a wife or children or affecting the custody of children shall be commenced in accordance with the rules of probate courts applicable to domestic relations matters. . . . In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his reasonable attorney's fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. . . . Any monetary contempt judgment shall carry with it interest, from the date of filing the complaint, at the rate determined under the 4 provisions of [G. L. c. 231, 6C]." (Emphasis added).
4See, discussion re requirement of interest; and rate of interest, infra.
66
II. The Law on Criminal Contempt.
Jurisdiction.
2.1 The Probate and Family Court Department has the "power and authority for enforcing orders, sentences, judgment and decrees made or pronounced in the exercise of any jurisdiction vested in it and for punishing contempts of such orders, sentences, judgments and decrees and other contempts of [its] authority...." G. L. c. 215, § 34.
2.2 The judgment at issue in the case at bar was properly issued by this court which had jurisdiction over the parties and the issues. Said judgment was not obtained by fraud. G. L. c. 215, § 34 B.
2.3 The court has jurisdiction over the parties and the subject matter of the within complaints for contempt.
2.4 The defendant was given fair advance notice of the proceedings and of the fact that the proceeding was both criminal and civil in nature. Sodones v. Sodones, 366 Mass. 121, 127 (1974).
2.5 When the defendant and counsel have notice of the trial date, they are obligated to come to court ready for trial. Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984).
Purpose.
2.6 A criminal contempt proceeding is punitive. It is intended to punish a person for having violated the order of the court. Blankenburg v. Comm., 260 Mass. 369 (1927).
67
No Jury Trial Required in the Probate Court.
2.7 The probate court does not provide, and a defendant is not entitled to. a jury trial in the probate court. Furtado v. Furtado, 380 Mass. 137 (1980).
Beyond a Reasonable Doubt.
2.8 In order to find the defendant guilty of criminal contempt, the charges must be proven beyond a reasonable doubt.
Ability to Pay at Time Obligation was Due.
2.9 A criminal contempt is based on a finding that the defendant had the ability to pay the obligation when it was due, but knowingly and intentionally failed to obey the order. Furtado v. Furtado, 380 Mass. 137 (1980).
2.10 In a criminal contempt, it must be established that the defendant had the ability to comply with the order or judgment at the time when he was obligated to obey it.
2.11 The defendant cannot be excused if, prior to the time he was obligated to obey the order, he intentionally spent or otherwise disposed of assets that would have permitted payment of said obligation. Bisienere v. Buccino, 36 Mass. App. Ct. 749 (1994) (rejecting defendant’s claim he could not comply with a support order because he did not have the ability to pay, where defendant voluntarily terminated his prior employment and entered
68 his own business; defendant also unsuccessfully attempted to misrepresent his income and to manipulate his earning potential to create the appearance of an inability to pay support.)
Length of Sentence in Probate Court Criminal Contempt Trial is a Maximum of Six (6) Months.
2.12 At bar, as a matter of federal constitutional law, because the defendant was not offered a jury trial, the court may not impose a sentence in a criminal contempt of more than six (6) months. Bloom v. Illinois, 391 U.S. 194 (1968).
2.13 There is no constitutional right to a jury trial in a criminal proceeding in which the penalty is six months or less in prison. Cheff v. Schnackenberg, 384 U.S. 373, 379-380 (1966).
2.13 G. L. c. 215, § 34 provides that the judge, in "sentencing a person to jail for failure to obey a judgment of the court relative to the support of his wife or minor child may order that a sentence be served during such hours as will permit the person to continue his employment." 5 2.14 Nothing in c. 215, § 34 prevents a limited order of confinement when there has been a finding of criminal contempt.
III. The Law on Civil Contempt.
Purpose.
3.1 Unlike its criminal counterpart, civil contempt is not punitive but it is “intended to achieve compliance with the court’s orders for the benefit
5Note that this provision also applies to civil contempt.
69 of the complainant”. Com. v. Rape Crisis Services of Greater Lowell, Inc., 416 Mass. 190, 193 (1993); Furtado v. Furtado, 380 Mass. 137, 141 (1980).
3.2 “[T]he purpose of civil contempt is remedial: its aim is to coerce the performance of a required act by the disobedient party for the benefit of the aggrieved complainant.” Sodones v. Sodones, 366 Mass. 121, 130 (1974).
3.3 Contempt is a remedy to compel compliance with a court order, whether a final judgment or interlocutory order. See Cherry v. Cherry, 253 Mass. 172, 174 (1925).
3.4 A complaint for civil contempt filed pursuant to G. L. c. 215, § 34A, is the usual method of remedying a failure to pay a continuing order for child support or alimony. See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000).
3.5 A contempt action may be utilized to punish a party for failing to comply with other orders, Benglian v. Benglian, 9 Mass. App. Ct. 891 (1980), or to enforce a debt that becomes due upon the happening of some event. See Mills v. Mills, 4 Mass. App. Ct. 273 (1976).
3.6 In order to find a party in civil contempt, the judge must find a clear and unequivocal disobedience of a clear and unequivocal command. Judge Rotenberg Educ. Ctr., Inc. v. Com’r of Dept. of Mental Retardation, 424 Mass. 430, 442-443 (1997); Whelan v. Frisbee, 29 Mass. App. Ct. 76, 82 (1990); Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990); Nickerson v. Dowd, 342 Mass. 462, 464 (1961).
3.7 For civil contempt to be found, "there must be a clear and undoubted disobedience of a clear and unequivocal command." Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), quoting from United Factory
70 Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972), cited with approval in Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).
3.8 The command must be clear and unequivocal to the extent that it can be understood by the person subject to it "without resort to the evidence at trial." Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981), cited with approval in Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).
Claimed Ambiguities
3.9 An ambiguity does not arise merely because an order, otherwise clear, may require "some legal interpretation." Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567 (1997).
3.10 Indefinite and uncertain language cannot support a complaint for contempt because of a lack of fair notice to the person subject to the order, and because "ambiguity carries with it the potential for becoming 'an instrument of [judicial] severity.'" Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 89 (1977).
3.11 Appellate courts ordinarily resolve ambiguities in divorce decrees in favor of the person charged with contempt. Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), citing Cohen v. Murphy, 368 Mass. 144, 147 (1975), and Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981).
3.12 While vague or ambiguous language in a judicial decree cannot constitute a "clear and unequivocal command," Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), a party's self-serving characterization of a
71 provision as "ambiguous" does not make it so. Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002).
3.13 "[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). See Mayer v. Medical Malpractice Joint Underwriting Assn. of Mass., 40 Mass. App. Ct. 266, 269 (1996) (party's interpretation of insurance policy language "appear[ed] to represent a strained attempt to create ambiguity where none exists").
3.14 If a party is uncertain about obligations under an agreement or court order, the proper remedy is to bring an action requesting clarification. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 451 (1997), citing Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 91 (1977); Krapf v. Krapf, 439 Mass. 97 (April 2, 2003) (declaratory relief used to resolve case of first impression in Massachusetts.) Ability to Pay as of Time of Hearing.
3.15 A civil contempt judgment is premised on the proposition that the defendant has the ability to pay the arrearages at the time of the contempt proceeding. 3.16 Upon a showing that a defendant in a civil contempt case is in arrears on his support or other obligations, the burden of going forward is on the defendant who must present evidence, which by its preponderance, convinces the judge that he has a present inability to comply with the judgment. If no such credible evidence is presented, the defendant can be found in civil contempt of court. Diver v. Diver, 402 Mass. 599, 603 (1988).
3.17 Breach of implied covenant of good faith and fair dealing does
72 not require showing of bad faith; lack of good faith may be inferred by considering totality of circumstances. Nile v. Nile, 432 Mass. 390, 398-399 (2000). (Putting assets into revocable inter vivos trust in favor of his new wife violated decedent’s agreement to bequeath the majority of estate to the children of his former wife.)
3.18 By destroying or injuring the rights of the children of his first marriage to receive the benefit of his agreement with his former wife, the decedent breached his continuing duty of good faith and fair dealing. Nile v. Nile, 432 Mass. 390, 398-400 (2000), cited with approval in Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).
3.19 A court of equity will not countenance such "questionable logic," nor permit "an individual to have an estate to live on but not an estate from which his debts could be paid." Nile v. Nile, 432 Mass. 390, 400 (2000). Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).
3.20 G. L. c. 215, §34 provides that “at the hearing of a complaint for civil contempt, the defendant shall have the burden of proving his or her inability to comply with the pre-existing order or judgment of which the complaint alleges in violation.”
3.21 Noncompliance with a court order may be excused when compliance becomes impossible, but the burden of proving impossibility lies with the alleged contemnor and is a difficult burden to meet. Com. v. One Ford Econoline Van, 413 Mass. 407, 413 (1992); Diver v. Diver, 402 Mass. 599, 603 (1988).
3.22 Ownership of capital assets can be considered an ability to pay obligations under a judgment without further inquiry as to whether the obligation can be enforced directly against the asset. Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (1997); Krokyn v. Krokyn, 378 Mass. 206, 213-214
73 (1979).
3.23 A judge can consider an alleged contemnor’s earning capacity in determining ability to comply with a judgment, particularly where the claimed reduced income is the result of voluntary circumstances. Cooper v. Cooper, 43 Mass. App. Ct. 51, 53 (1997); Flaherty v. Flaherty, 42 Mass. App. Ct. 289, 291 (1996).
3.24 Ability to pay includes all forms of income and assets possessed by a defendant. Krokyn v. Krokyn, 378 Mass. 206, 210 (1979).
3.25 A court in equity will not sanction voluntary action that amounts to an "evasion of the spirit of the bargain." Larson v. Larson, 37 Mass. App. Ct. 106, 110 (1994), quoting Restatement (Second) of Contracts §§ 205 comment d (1981). See Nile v. Nile, 432 Mass. 390, 398-399 (2000); Krapf v. Krapf, 439 Mass. 97 (April 2, 2003).
3.26 The fact that an obligor whose income had diminished chooses to use his assets to satisfy other creditors rather than pay alimony is no defense to a contempt action for failure to pay. Newman v. Newman, 12 Mass. App. Ct. 874, 875 (1981).6
3.27 Nothing in the record demonstrates that the defendant, as a matter of law, satisfied his burden of proving his inability to comply with the judgment and orders of the court. Diver v. Diver, 402 Mass. 599, 603 (1988).
3.28 The judge can consider if the defendant wasted, divested or otherwise placed his assets beyond his reach at a time when the defendant knew or should have known his assets would be required to meet his
6The holding in this case is equally applicable to allegations of criminal contempt.
74 court-ordered obligations.
Length of Sentence in Civil Contempt.
3.29 In a civil contempt proceeding, there is no right to a jury trial, nor any limit on the length of time that a defendant can be kept in jail because it is the defendant who hold the key to his cell by complying with the order. See, Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88 (1976).
3.20 In a civil contempt, a limited order of confinement is consistent with permitting the defendant to continue his employment and thus provide needed support for the plaintiff and the parties' minor children.
Legal fees on a Contempt
3.21 General Laws c. 215, §§ 34A, creates a presumption in favor of an award of reasonable fees and costs for a successful plaintiff in a contempt action. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)
3.22 The presumption "can be overcome only by specific findings supporting a reduction in a request for reasonable fees." T.M. v. L.H., 50 Mass. App. Ct. 856, 863 (2001), quoting from Kennedy v. Kennedy, 23 Mass. App. Ct. at 181. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)
3.23 Judge must make findings explaining basis for an award of legal fees in an amount less than that requested by counsel. See T.M. v. L.H., 50 Mass. App. Ct. at 863-864. Coppinger v. Coppinger, ---- Mass. App. Ct. ___, No. 00-P-1197 (2003)
75
The Law on Best Efforts:
3.24 The court will "assume a construction of 'best efforts' in the natural sense of the words as requiring that the party put its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom." Macksey v. Egan, 36 Mass. App. Ct. 463, 472 (1994). See Brewster v. Dukakis, 675 F.2d 1, 4 (1st Cir. 1982) (upholding provision in consent decree requiring state officials to "use their best efforts to insure . . . full and timely financing" before making cuts in services subject to that decree); Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225-226, 228 (1st Cir. 1987), cert. denied, 485 U.S. 935 (1988) ("best efforts" is the equivalent of acting in good faith, although it does not mean every conceivable effort).
Interest on Judgments of Contempt.
3.25 Where the award in a non-contempt judgment is announced as a certain monetary sum, G. L. c. 235, § 8, acts to provide interest over any period of delayed payment. To hold otherwise would ignore clear legislative intent in enacting that statute and fly in the face of strong public policy supporting the inclusion of interest on monetary judgments.
3.26 Although interest is available upon a finding of contempt, it is not a substitute for statutory interest upon a money judgment under G. L. c. 235, § 8.
3.27 Under G. L. c. 215, § 34A, the interest rate is calculated by referring to G. L. c. 231, § 6C, which ordinarily only applies to damages in contract actions.
76 3.28 Because there is no interest rate specified in a contract, the rate of 12% is applicable on a contempt order. See G. L. c. 231, § 6C.
3.29 Interest under G. L. c. 215, § 34A, is a remedy for an ongoing failure to comply with an order for periodic support or alimony that may not qualify as a "judgment for the payment of money" under G. L. c. 235, § 8, and might not thus carry such statutory interest.
3.30 G. L. c. 215, § 34A, fills in a gap and provides for interest that may not be otherwise available - for example interest on weekly or monthly payments of alimony or child support. See Kennedy v. Kennedy, 20 Mass. App. Ct. 559, 560-563 (1985).
Interest on Order of Attorneys Fees.
3.31 The ordering of interest on an award of counsel fees is proper in Robbins v. Robbins, 22 Mass. App. Ct. at 984. Compare Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 272 (1985) (no interest accrues on attorney's fees awarded under G. L. c. 93A).
77 NISSENBAUM’S STANDARD SET OF CONCLUSIONS OF LAW RE: INTERESTS IN TRUSTS (as of May 31, 2003)
From S.L. v. R.L. 55 Mass. App. Ct. 880 ( September 18, 2002)
Assigning interests in the marital estate is based on Section 34 factors Williams v. Massa, 431 Mass. 619, 625 (2000).
In deciding these questions about whether certain assets are part of the estate, judge is not bound by traditional concepts of title or property.
A number of intangible interests (even those not within the complete possession or control of their holders) have been held to be part of a spouse's estate for purposes of 34. Baccanti v. Morton, 434 Mass. 787, 794 (2001), quoting from Lauricella v. Lauricella, 409 Mass. 211, 214, 216-217 (1991) (vested beneficial interest in a trust may be divided.)
"When the future acquisition of assets is fairly certain, and current valuation possible, the assets may be considered for assignment under 34." Williams v. Massa, 431 Mass. at 628.
Contingent remainder interests in trusts are “mere expectancies” and may be excluded. Id.
Remote or speculative interests should be weighed under
78 "opportunity of each [spouse] for future acquisition of capital assets and income." Id., at 629.
A remainder interest in a trust, subject to survivorship and a spendthrift clause is divisible under 34. Davidson v. Davidson, 19 Mass. App. Ct. 364, 372-373 (1985)
Inclusion turns “more on the particular attributes of the respective disputed interests than on principles of general application." Lauricella, 409 Mass. at 215-216.
79 NISSENBAUM’S STANDARD SET OF CONCLUSIONS OF LAW - CHAPTER 209A
Index: (as of May 31, 2003)
1. General Underlying Principals 70
2. Arrest / Bail Determined by a Judge 71
3. Rules of Evidence 71
4. Obligation of the Judge to Exercise Discretion 74
5. Burdens of Proof 75
6. Annotated Discussion of Sections of Chapter 75 209A: Section 1...... 75 Section 3...... 76 Mutual Restraining Orders...... 77
7. Renewal of c. 209A order 79
8. Permanent c. 209A 80
9. Visitation With Children 81
10. Legal Fees 81
11. Violation of c. 209A order / Jury 81 Instructions
12. Destruction of Records if Order is Vacated 83
80
13. Appeal 84 Obligation of Appellant...... 84 Appeal May Proceed if Order Has 85 Expired...... 86 Standard of Review of Trial Court’s Findings......
14. What Has Met the Test of “Abuse” 86
15. What Has Met the Test of “Abuse” 87
81 1.0 General Underlying Principals
Violence among family or household members is the social ill for which G. L. c. 209A attempts a remedy Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003). Turner v. Lewis, 434 Mass. 331, 334 (2001).
The statute was enacted "to address the problem of domestic violence through the provision of judicial remedies," Turner v. Lewis, 434 Mass. 331, 332 (2001), and the "c. 209A proceeding is a civil, and not a criminal, proceeding." Frizado v. Frizado, 420 Mass. 592, 596 n.3 (1995).
The "[v]iolence brought on by, or exacerbated by, familial relationships was the 'mischief or imperfection to be remedied' by c. 209A." Turner v. Lewis, supra at 334, quoting from Adoption of Derrick, 415 Mass. 439, 444 (1993).
“The statute attempts to balance sensitive issues, and often brutal aspects, of fundamental human relationships.” Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
G. L. c. 209A is a “statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999), quoting from Commonwealth v. Gordon, 407 Mass. 340, 344 (1990), cited with approval in Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
Administration of the potent remedies of G. L. c. 209A requires great sensitivity for the suffering and, sometimes, the mortal danger that flow from domestic violence. Szymkowski, ppa v. Szymkowski,
82 57 Mass. App. Ct. 284 ( 2003). See Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999); Jones v. Gallagher, 54 Mass. App. Ct. at 887-889.
Judges have been instructed to be especially sensitive, and to examine such cases with restraint and compassion, see Commonwealth v. Contach, 47 Mass. App. Ct. at 253, "in the context of the entire history of the parties' hostile relationship." Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).
C. 209A aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).
"The [complaining parties] are under considerable stress because by the very nature of the process they are required to reveal to strangers details of intimate relationships that have disintegrated into violence and, indeed, even hatred." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999).
Consequences of the underlying situation, notwithstanding any order, tragically and too frequently include the most serious violence and sometimes death of the complainant. See Commonwealth v. Johnson, 429 Mass. 745, 746 (1999) (defendant convicted of first-degree murder and violating abuse prevention order under G. L. c. 209A, 7); Commonwealth v. Bianchi, 435 Mass. 316, 317 (2001) (same).
In deciding whether to issue, modify or renew an abuse prevention order, a judge's discretion is "broad." Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002). Crenshaw v. Macklin, 430 Mass.
83 633, 635 (2000). See Kindregan & Inker, Family Law and Practice § 57.7 (2d ed. 1996).
Judge’s broad statutory authority is based on "the Commonwealth's public policy against domestic abuse -- preservation of the fundamental human right to be protected from the devastating impact of family violence." Champagne v. Champagne, 429 Mass. 324, 327 (1999). Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).
With good reason, c. 209A has teeth, including: bail review consequences (see G. L. c. 276, § 57, as amended by St. 1992, c. 201, § 2); entry on a State record of abusers (St. 1992, c. 188, § 7); criminal record for violation of a c. 209A order; and deportation (see Commonwealth v. Villalobos, 437 Mass. 797, 798 [2002]). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).
For those reasons, among others, a court "should not issue a G. L. c. 209A order simply because it seems to be a good idea or because [it seems] it will not cause the defendant any real inconvenience." Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003). Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995); Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
“A c. 209A order will infallibly cause inconvenience. In considering whether to [initially] issue a c. 209A order, the judge must focus on whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002).” Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).
“Generalized apprehension does not rise to the level of fear of
84 imminent serious physical harm. Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002). In considering an application for a c. 209A order, a judge must be alert against allowing the process to be used, as it sometimes is, "abusively by litigants for purposes of discovery and harassment." Jones v. Gallagher, 54 Mass. App. Ct. 883, 887 n.4. (2002)” Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).
A c. 209 A order may make other family circumstances (especially involving the parties' children) and relationships substantially more complicated. See Commonwealth v. Silva, 431 Mass. 194, 198 (2000); Fabre v. Walton, 436 Mass. 517, 519 (2002); Wooldridge v. Hickey, 45 Mass. App. Ct. at 637; Commonwealth v. Leger, 52 Mass. App. Ct. 232, 235 (2001); Commonwealth v. Stewart, 52 Mass. App. Ct. 755, 762 (2001); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
C. 209 A aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child).
The Legislature intended that domestic abuse prevention order proceedings be as expeditious (i.e. brief) and informal as reasonably possible. Zullo v. Goguen, 423 Mass. 679, 681 (1996).
“The Legislature intended the c. 209A judicial process to be as "expeditious and as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. at 598 cited with approval in Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
It has been recognized that trial judges can be sensitive to the difficulties of pro se litigants, and although some leniency is appropriate in determining whether a pro se litigant meets the
85 requirements of procedural rules, the rules bind pro se litigants as they bind other litigants. Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985); Mains v. Commonwealth, 433 Mass. 30, 35 (2000); Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
2.0 Arrest / Bail Determined by a Judge
The order can also create criminal jeopardy specific to the defendant and subject him or her to arrest without a warrant. See Richardson v. Boston, 53 Mass. App. Ct. 201, 203 (2001).
General Laws c. 276, 57, as amended by St. 1992, c. 201, 2, limits the persons authorized to admit to bail those arrested and charged with a c. 209A offense, effectively eliminating bail commissioners and clerk magistrates, and requiring that any such bail requirement be determined by a judge.
3.0 Rules of Evidence
The very nature of c. 209A proceedings "is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue." Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003) citing Frizado v. Frizado, 420 Mass. 592, 598. "[T]he rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on . . . The process must be a practical one." Id. at 597-598.
In care and protection (G. L. c. 119, §§ 24-26) and termination of parental rights (G. L. c. 210, § 3) - cases involving the care and custody
86 of children, a judge, in the exercise of discretion, may admit in evidence and consider the factual content of such government reports, while rejecting the social worker’s conclusion. See Adoption of George, 27 Mass. App. Ct. 265, 269-275 (1989); Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990); Adoption of Irene, 54 Mass. App. Ct. 613, 620 n.8 (1990). Those considerations also come to bear in c. 209A proceedings. Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).
Evidence that a victim has obtained an abuse prevention order against the defendant is admissible to demonstrate the existence of a hostile relationship, as the relationship may be relevant to the defendant's motive to kill. Comm. v. Eugene, 438 Mass. 343 (2003). See Commonwealth v. Sarourt Nom, 426 Mass. 152, 160 (1997); Commonwealth v. Martino, 412 Mass. 267, 280-281 & n.9 (1992); Commonwealth v. Gil, 393 Mass. 204, 215-216 (1984).
4.0 Obligation of the Judge to Exercise Discretion
Champagne v. Champagne, 429 Mass. 324, 327 (1999) Case addressing whether G. L. c. 208, § 18, empowered a probate court to issue permanent orders, the court stated [in dicta] that "[a]lthough parties may receive c. 209A protective orders to supplement a divorce decree, they must renew these protective orders annually."
The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options. Discretion "implies the absence of a hard-and-fast rule" and may, in some settings, encompass taking no action. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).
87
Proper exercise of judicial discretion requires more than avoiding "arbitrary determination, capricious disposition, or whimsical thinking." It imports a willingness, upon proper request, to consider all of the lawfully available judicial options. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).
"Where discretion to grant relief exists, a uniform policy of denying relief is error." Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).
It is error for a judge to refuse to exercise discretion. Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982) cited with approval in Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).
It is error to refuse, on the basis of personal preference or philosophy, a request to give consideration to a permanent order permitted by G. L. c. 209A. Such consideration need not be extensive or formal, only conscientious. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).
5.0 Burdens of Proof
The party who seeks protection must prove, by a preponderance of the evidence, that abuse has occurred. Frizado v. Frizado, 420 Mass. 592, 597 (1995); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002). See Smith v. Joyce, 421 Mass. 520, 522 (1995).
There is no burden on a defendant to testify or present
88 evidence. "The burden is on the complainant to establish facts justifying the . . . continuance of an abuse prevention order. . . . The plaintiff must make the case for the awarding of relief." Frizado v. Frizado, 420 Mass. 592, 596 (1995).
6.0 Annotated Discussion of Sections of Chapter 209A
Section 1.
Section 1 of G. L. c. 209A defines "family or household members," as persons who: "(a) are or were married to one another; (b) are or were residing together in the same household; (c) are or were related by blood or marriage; (d) hav[e] a child in common regardless of whether they have ever married or lived together; or (e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts [upon] consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship."
Section 3.
89
G. L. c. 209A, § 3 is available to a person "suffering from abuse" by a "family or household member."
"Abuse" defined are acts: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress."
This language closely approximates the common-law description of assault, see Commonwealth v. Gordon, 407 Mass. 340, 349 (1990), and requires proof of some act that places the complainant in reasonable apprehension that force may be used. Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975).
Abuse that warrants a protective order in the c. 209A sense implicates physical harm or anticipation of imminent serious physical harm. See Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). Szymkowsi, ppa v. Szymkowsi, 57 Mass. App. Ct. 284 ( 2003).
Section 3 (b) focuses on both preventing imminent serious physical harm and responding to past abuse. Dollan v. Dollan, 59 Mass. App. Ct. 905 (2002).7
Standard for determining whether a defendant's acts rise to the level of abuse, however, is not subjective. Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).
7Note: The reported decision refers to §1 (b), while the language makes clear the court meant § 3(b).
90 Court must look to whether plaintiff's apprehension that force may be used is reasonable. See Commonwealth v. Robicheau, 421 Mass. 176, 181-182. See also Commonwealth v. Gordon, 407 Mass. 340, 349 (in determining whether an apprehension of anticipated physical force is reasonable, a court examines "the actions and words of the defendant in light of the attendant circumstances") both cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).
"The judge must focus on whether serious physical harm is imminent and should not issue a c. 209A order on the theory that it will do no harm, i.e., 'seems to be a good idea or because it will not cause the defendant any real inconvenience.'" Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998) quoting Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995), cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).
“Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638-639 (1998) cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002). See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020 (1997).
Determination of the distance sufficient to provide an appropriate zone of protection for an abused person or family depends upon the facts of each case and the judge's assessment of the threat posed by the abuser. Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002) (500 yard away from plaintiff and one mile from her home deemed proper, given defendant’s prior criminal conviction of having a machine gun and silencer and abuse on plaintiff).
91
Mutual Restraining Orders.
Section 3, provides, in part:
"A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order."
“Applications for retaliatory abuse prevention orders should be allowed only if the predicate conditions are shown and not as a prophylactic agent to prevent putative violations.” Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
There is no authority in c. 209A or case law containing any authority allowing the fear of arrest, even upon innocent contact, as a basis for a reciprocal restraining order. Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
Caution must be used in entering mutual restraining orders as they potentially create confusion for law enforcement authorities, who must interpret conflicting terms contained in the protective orders, and for the parties and courts because each party has been directed not to contact one another. Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
Allowance of mutual restraining orders “chills the abuse prevention system established by G. L. c. 209A, placing the victim in fear of the consequences of strict (or lax) enforcement of prior orders, cf. Sommi
92 v. Ayer, 51 Mass. App. Ct. 207, 210-211 (2001), particularly where ‘contact’ has been broadly interpreted. Commonwealth v. Finase, 435 Mass. 310, 314 (2001). Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 687 (2001).” Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
“The stringent requirements in G. L. c. 209A, ' 3, appear not without purpose and reflect a legislative policy against the issuance of mutual restraining orders except in rare instances. See Gender Bias Study of the Supreme Judicial Court 93-94 (1989). See also Note, Why Civil Protection Orders are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1061-1062 (1992).” Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002). (Emphasis added).
7.0 Renewal of c. 209A order
Section 3 explicitly provides that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. . . ." G. L. c. 209A, § 3, as inserted by St. 1990, c. 403, § 3. Doe v. Keller, 57 Mass. App. Ct. 776 (2003).
There is no presumption that the order be continued; and no entitlement that the order be made permanent. Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
93 The order expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from "abuse" as explicitly defined in c. 209A, 1 -- in this case, requiring a finding that a permanent order is, in fact, what is reasonably necessary to protect plaintiff from being placed "in fear of imminent serious physical harm" by defendant. See Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 309 (1998) ("extension of an annual order pursuant to 3 . . . is . . . by no means automatic"); Pike v. Maguire, 47 Mass. App. Ct. at 929-930 cited with approval in Jones v. Gallagher, 54 Mass. App. Ct. 883 (2002).
"The only criterion for extending the original order is a showing of continued need for the order." Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999). See Massachusetts Trial Court, Guidelines for Judicial Practice: Abuse Prevention Proceedings, Commentary to Guideline 6:08 (1997), both cited with approval in Doe v. Keller, 57 Mass. App. Ct. 776 (2003).
94 8.0 Permanent c. 209A
Until 1990, G. L. c. 209A, §§ 3 did not expressly authorize permanent orders. In 1990, an amended version of § 3 (St. 1990, c. 403, § 3) explicitly permitted the entry of permanent orders at a renewal hearing. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).8
G. L. c. 209A, § 3 now provides: "Any relief granted by the court shall be for a fixed period of time not to exceed one year ... If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order." Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003). (emphasis added).
G. L. c. 209A, § 3, empowers the judge to issue an order for a year. Thereafter, § 3 "empowers a judge in the District Court (or any other court with jurisdiction to consider the matter) to issue a permanent protective order at a renewal hearing." Crenshaw v. Macklin, 430 Mass. 633, 633 (2000) cited with approval in Doe v. Keller, 57 Mass. App. Ct. 776 (2003).
Because, as the judge found, the triggering event (the rape)which
8Note: Ten years after 1990 amendment, Court “Guidelines for Judicial Practice: Abuse Protection Proceedings § 6:08 ": (rev. 1997) stated, as late as December, 2000, that an order "may be extended for up to another year." Clearly the Guideline is not consistent with the amendment to c. 209A, § 3. Of course, the judge does have discretion to enter a continuation order of one or more years or a permanent order.
95 occurred some four years earlier, "was particularly egregious," we hold that the judge did not abuse his discretion in ruling that the plaintiff still feared the defendants even though there had been no contact between the parties in the past two years. Doe v. Keller, 57 Mass. App. Ct. 776 (2003).
96 9.0 Visitation With Children
Allowances may be made for visitation and incidental contact by a defendant with children, despite the imposition of a restraining order between two former participants in a relationship. See Commonwealth v. Silva, 431 Mass. 194, 197-198 (2000). Commonwealth v. Leger, 52 Mass. App. Ct. 232, 236-238 (2001). Commonwealth v. Stewart, 52 Mass. App. Ct. 755, 755-757 (2001). Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 491-494 (2002).
10.0 Legal Fees
G. L. c. 208, § 17 & 38 do not apply to a renewal hearing under c. 209A.
The appeals courts have yet to consider if a claim under G. L. c. 209A, § 3(f) is applicable to a renewal hearing. See Gustin v. Gustin, 420 Mass. 854, 858 (1995).
11.0 Violation of c. 209A order / Jury Instructions
Commonwealth must prove that: a valid G. L. c. 209A order was entered by a judge; order was in effect on the date of the alleged violation; defendant had knowledge of the order; and the defendant violated the order. Comm. v. Habenstreit, 57 Mass. App. Ct. 785 (2003)
97 To convict a defendant, Commonwealth must prove beyond a reasonable doubt that .... defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).
Intent is not an element of the crime of violating a c. 209A order. "The statute . . . requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute." Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).
A conviction does not require proof of actual intent to violate an order. Commonwealth v. Collier, 427 Mass. 385, 388 (1998). (Where son drove defendant, without defendant’s acquiescence, to place within impermissible proximity to the protected person, and "[w]here the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation." Id. at 389-390), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
The traditional view is that, in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes. Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982), citing State v. Brown, 38 Kan. 390, 393 (1888).
The "'long-standing' common-law principle is that, absent contrary indication from the Legislature, it is assume the Legislature did not intend to make a crime out of an accident or mistake. Commonwealth v. Finase, 435 Mass. 310, 315 (2001), quoting from Commonwealth v. Collier, 427 Mass. 385, 388 (1998). Commonwealth v. Raymond, 54 Mass. App. Ct.448, 493 (2002).
98 Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).
Defendant "cannot be convicted of violating a 'no contact' [or stay away] order issued under c. 209A where the contact occurs in circumstances where [he] did not know, and could not reasonably have been expected to know," of the proximity of the plaintiff or his children. Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493 (2002); Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).
Defendant’s state of mind, apart from his awareness of the terms of the restraining order, would sometimes be relevant was explored in a different context in Commonwealth v. Silva, 431 Mass. 194 (2000). (restrained husband made contact with his protected divorced wife when he telephoned her residence for the purpose of speaking to the couple's teenage daughter. Such a call was authorized by the terms of the c. 209A order. The Supreme Judicial Court characterized the contact that occurred between the parties when the ex-wife answered the phone as "a lawful incident of the order," id. at 198, which would not by itself be sufficient to prove a violation. In Silva, the incidental contact between the parties degenerated into an angry outburst on the part of the defendant which warranted the finding that the c. 209A order had been violated. Id. at 198-199.)
The facts of a case may entitle the defendant to an instruction that "an incidental contact" occurring in the course of a permitted activity was not a violation of the c. 209A order. See, Commonwealth v. Leger, 52 Mass. App. Ct. 232, 237 (2001), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
In the context of a prosecution for violation of a "stay away" order issued under c. 209A, "accidental, mistaken, or unknowing violations
99 of the distance requirements of an abuse prevention order" will not be sufficient by themselves to support a conviction under G. L. c. 209A, 7. See Commonwealth v. Finase, 435 Mass. 310, 315 (2001), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
The policies advanced with remedies available under c. 209A do not require that restrained parties be convicted for what would generally be considered innocent activities. To hold otherwise would incorporate into the statute a concept of strict liability, and there is no basis for believing that this was the Legislature's purpose. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
In a case where, if defendant’s claims are believed, a jury could find that the contact with protected person was incidental to a permitted activity, or an accidental, mistaken, or unknowing violation, or even a coerced violation, the court must instruct that they may find the defendant not guilty. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
Failure to make the above instruction is an error that creates a substantial risk of a miscarriage of justice, one which may be raised on appeal, even if not preserved below. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).
12.0 Destruction of Records if Order is Vacated
C. 209A, Section 7 provides that whenever an abuse prevention order is vacated, the court shall direct the appropriate law enforcement agency to destroy all record of the vacated order. See Smith v. Joyce, 421 Mass. 520, 521 (1995). Wooldridge v. Hickey, 45
100 Mass. App. Ct. 637 (1998).
The order does not need to be vacated nunc pro tunc, see Santos v. Chrysler Corp., 430 Mass. 198, 216 (1999), because the registry created by G. L. c. 209A, § 7 includes specific measures to ensure that the record of a vacated restraining or protective order will be eliminated, thereby obviating the possibility of public disclosure or possible service of a vacated order. Vaccaro v. Vaccaro, 425 Mass. 153, 157-159, 161-162 (1997). Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
The § 7 mechanisms are sufficient safeguards, without the court’s intrusion into the legislative thicket entering a nunc pro tunc order. Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
13.0 Appeal
Obligation of Appellant.
An appellate court is free to disregard argument based on transcript not furnished to the court. Kunen v. First Agric. Natl. Bank, 6 Mass. App. Ct. 684, 689 (1978). Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
It is appellant’s burden to provide the appellate court with those portions of the record that support his claims on appeal. Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). A party claiming an insufficiency of evidence has the burden on appeal of furnishing the court with all the evidence. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
101
Gaps in an audio record of the kind that appeared here can be repaired by using the procedure set out in Mass.R.A.P. 8(b)(3)(v), as amended, 388 Mass. 1110 (1983), captioned: "Unintelligible Portions of the cassette." Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
Appeals court, as matter of discretion, can and did sent its our own motion to the register of probate, who furnished a copy of the transcript. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
By not having a full transcript (or agreed statement of what was said), appellate leaves a crucial gap in the record that will cause the Appeals Court to leave the main order undisturbed. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
Appeals Court will not, as a reviewing court, hypothesize the absence of a response that might support a finding of fear of imminent serious physical harm. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).
Appeal May Proceed if Order Has Expired.
If a c. 209A order expires, the appeal from it is not moot. See Frizado v. Frizado, 420 Mass. 592, 593-594 & n.2 (1995); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998) cited with approval in Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).
The proper issuance of mutual restraining orders is an issue of statewide legal significance that warrants a decision despite expiration of the order. See Cobb v. Cobb, 406 Mass. 21, 23-24 (1989);
102 Frizado v. Frizado, 420 Mass. 592, 593-594 (1995); Larkin v. Ayer Div. of Dist. Ct. Dept., 425 Mass. 1020, 1020 (1997). Cf. Zullo v. Goguen, 423 Mass. 679, 680 (1996); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
Entries of the orders against dad have been made in the Commonwealth's criminal records system. Defendant could be adversely affected by entries in the event of future applications for an order under G. L. c. 209A or in bail proceedings. Frizado v. Frizado, 420 Mass. 592, 593-594 (1995). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
Defendant has a surviving interest in establishing that the orders were not lawfully issued, thereby removing a stigma from his name and record. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998). But, see Wotan v. Kegan, 428 Mass. 1003, 1003-1004 (1998)
Standard of Review of Trial Court’s Findings.
Chapter 209A proceedings are civil in nature, Jones v. Gallagher, 54 Mass. App. Ct. 883, 886 (2002), and the Appeals Court accords the judge's findings the great deference prescribed by Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).
The Appeals Court may supplement those findings with inspection of the transcript of the c. 209A proceedings to assist us in determining whether the evidence, as matter of law, warranted issuance of the c. 209A order. See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020, 1020 (1997). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).
If the evidence is conflicting, the Appeals Court reads it in a light most
103 favorable to the plaintiff. See Ford v. Grafton, 44 Mass. App. Ct.
715, 721, cert. denied, 525 U.S. 1040 (1998). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284
(2003).
14.0 What Has Met the Test of “Abuse”
Commonwealth v. Gordon, 407 Mass. 340, 349-350 (1990) Defendant appeared at victim's house in violation of 209A order, called victim "bitch" and "whore," and prevented victim from closing door to her house by propping his back against it.
Commonwealth v. Robicheau, 421 Mass. 176 (1995) Defendant parked and stood in the street in front of victim's house in violation of 209A order, yelled obscenities and made an obscene gesture, and later told her over the telephone that he would kill her.
Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998) Appeals Court assumes there is sufficient evidence to support the issuance of the c. 209A order where appellant failed to provide a full transcript and where the Judge asked plaintiff if she felt subject to some danger of imminent physical harm, to which she responded with "Yes." And, where, when asked, "Why? Why do you feel that?" the answer was "Because, ‘inaudible.’ " This despite Appeals Court’s concern that plaintiff sought and judge granted order to help plaintiff level the playing field in a complaint for modification of divorce judgment.
104
Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002) Order to keep 500 yards away from plaintiff and one mile from her home deemed proper, given defendant’s 10-year history of beating and threatening plaintiff and his prior criminal conviction of for possessing a machine gun and silencer and abuse on plaintiff.
15.0 What Has NOT Met the Test of “Abuse”
Cobble v. Commissioner of the Dept. of Social Serv., 430 Mass. 385, 391-393 (1999). In complaint of "abuse" under G. L. c. 119, § 51A: Intemperate parenting does not equal violence or abuse. No evidence of "soft-tissue swelling or skin bruising," except for the child's own statements to her mother.
Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002). It was for the jury to be properly instructed and to then be permitted to decide if - when defendant when to mother’s home (a permitted place for him to be) where he had confrontation with his two sons who then held him down, would not let him go and called out to their mother, a protected person under a prior c. 209A order - the contact was a mistake or incidental to a permitted activity and, that once the contact occurred, whether defendant was not permitted to leave by his sons.
Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002). Cannot get a mutual 209A order because you are afraid of an existing 209A order being enforced against you for your own
105 violations. Such a claim is not “abuse” as that terms is used in § 3, even if you may be lulled into thinking the other party will not seek enforcement of the order issued against you.
Dollan v. Dollan, 59 Mass. App. Ct. 905 (2002). Accepting as true that the 29-year old daughter was physically and emotionally abused as a child and teenager, her mother’s telephone call, after four years of no contact, to the local police asking them to relay a message that mother is concerned, does not amount to abuse as defined in c. 209A, § 3.
Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003) Testimony by mother that child told her dad pinched her down her arm and made a line. While this claim literally come within the "causing physical harm" category of "abuse" as defined in G. L. c. 209A, § 1, that alone is not enough. See, Cobble v. Commissioner of the Dept. of Social Serv., 430 Mass. 385, 391-392 (1999) (in complaint of "abuse" under G. L. c. 119, § 51A, absence of affirmative evidence of "soft-tissue swelling or skin bruising," except for the child's own statements.)
106 Introduction: A Lawyers’ Overview of 209A Cases.
A 209A starts out as a civil case.
This civil order has some nasty repercussions. Your name goes permanently into an "abuser registry."
If you are then accused of violating the civil order, that is a criminal - not civil - case.
If you are accused of violating the civil order, if you are not arrested on the spot, a warrant will likely issue for your arrest.
ONCE ARRESTED, YOU CANNOT BE LET OUT ON BAIL UNTIL YOU HAVE APPEARED IN COURT BEFORE A JUDGE.
The cute little trick nasty people like to use is to make such complaints of violating the 209A order on - say a Friday afternoon of a long holiday weekend.
In that way, the citizen accused is arrested and must sit in jail until Tuesday morning, when the judge is in the courtroom. In my experience, if the police have taken a dislike to the defendant, they are far more willing to try to quickly make that arrest. And, if the police have decided the plaintiff is trying to use the 209A as a tactic in a divorce case, they understand there is no real threat of harm; and they are less likely to even seek the arrest warrant in the first place.
So, clients. Pay attention: Be polite and nice to the police at all times. Being a jerk might result in your spending a night or two in jail for facially
107 valid, but “thin” reasons.
In such circumstances, even if the arrested party is not convicted (beyond a reasonable doubt) of having violated the civil order, the accused person still spend have spent a night or two or three in jail! No fun. The other party makes his/her POINT, big time.
That first order 209A order is often obtained by the complainant simply calling the police to the house, car, shopping mall; and sounding very distressed and urgent. The police will promptly respond. If the caller tells the police a convincing, even thin story, to protect themselves from criticism, the police will call a judge. Whether it is n the middle of the night or on a weekend, there is always a so-called Emergency Judge available and who is assigned to take and respond to these calls.
If the judge believes the caller, the 209A order is issued over the telephone - without the defendant getting a hearing.
The defendant gets due process when s/he has the hearing, within 10 days. But, the defendant’s name has already gone into the registry!
At court, if the plaintiff cannot sustain her complaint, by a preponderance of the evidence (also known as “50%, plus the weight of a feather”), then the original order should be vacated and the court should order that your name be removed from the registry.
But, making sure your name is permanently out of the registry is not always such an easy task.
This year, I decided to prepare and include in this material a sample set of CHAPTER 209A CONCLUSIONS OF LAW . I also
108 a set of Proposed Conclusions of Law for a divorce case. Next year, I will be adding proposed conclusions for cases involving trusts.
Within a relatively short time, I will be putting all of tonight’s material onto my office web site, www.nissenbaumlaw.com, so you will be able to download and use whatever you may want or need.
Think of these Conclusions as “works in process.” I would appreciate your in-put, your suggestions about additional cases, corrections, etc. with the idea of working toward what might be called a standard set of Requests that we could all use.
In fact, I’d like to see a day, when the probate or appeals court issues a standard set of requests. And, then, instead of littering each case with its own set of citations, the court would only say something like:
See, Conclusions 23, 33, 53, etc.
I’d bet that would reduce the volume of the reported cases by 1/3rd.
Tonight, I am going to zoom through some of this year’s 209A cases, plus cover my choice for the “oldie but goodie of the year,” Wooldridge v. Hickey. All of these are in the
109 material.
We will see how easy it was for the plaintiffs to get those first orders. And, what defendants had to do to get the orders vacated - often years later in what are, at best, pyrrhic victories
In Wooldridge, the only reason the Appeals Court permitted the 209A order to stay put is because the husband or his lawyer screwed up.
Someone took an overdose of stupid pills.
The tape recording at the District Court was "inaudible" at that very crucial point when the judge asked the plaintiff why she was afraid.
Here is what was said:
Judge: Do you feel your are in danger of imminent physical harm? Mom: "Yes." Judge: "Why? Why do you feel that?" Mom: "Because, ‘inaudible.’ "
Practice Tip: Always have a stenographer go to court to take and transcribe every 209A hearing (and most motion hearing and every trial.) Don’t leave home without a
110 stenographer. The expense pays for itself time and time again.
As a matter of law, the appeals court must assume that the judge had proper facts and law to enter all orders.
The burden of proving otherwise is on the appellant. In Wooldridge, the judge asked the plaintiff why she was afraid.
At that point, the transcript says: “inaudible.”
Knowing there were gaps in the tap, the husband or his lawyer should have agreed with the other side - and failing that, gone before the trial judge to get agreement or a court order - on what was said during the inaudible portions of the tape.
Then you file a reconstituted transcript, which becomes part of the record on appeal.
In reading Wooldridge, you can tell the Appeals Court wanted to reverse the order - because there is nothing in the stated facts to sustain the order.
Whatever there is was hidden in the "inaudible." And, because the Appeals Court has to assume the judge made a proper order and because the defendant did not take steps to get “inaudible” defined, he lost.
If you know who has the burden, you can figure out what presumptions have to be overcome. In Wooldridge , the presumption of a lawful order was not overcome.
If the defendant did not take a stupid pill, then you may well assume that, as an intentional tactical choice, the defendant did not take steps to get
111 “inaudible” defined because that part of the plaintiff’s testimony would have been more than sufficient to support the order!
In the other 209A cases, we will see how easy it is for the plaintiff to get the order in the first place.
Why is that?
It may be two fold. First judges want to be on the safe side.
Second, judges do not want to be "Heffernized."
Judge Heffernan, a hard working judge in the Somerville District Court, refused to enter a 209A order for a lady who had been back to court several times. She had taken up lots of court, probation and police time. Each time she reconciled.
The last time, the judge decided not to issue the order because she would only reconcile again. So why bother?
A short time later she was killed by the defendant!
A day after that, it was Heffernan’s unflattering picture on the front pages of the Globe and the Herald, as the villain!
Since then, it seems judges have been more likely to issue 209A orders and extensions. Since then, the Appeals Court has been trying to draw the line between what is and what is NOT enough evidence to sustain the preponderance of evidence needed to support the order; and extensions.
112 From the plaintiff’s point of view, A 209A fight takes the other sides often limited resources away from the ability to fight in the probate court on other issues.
And, if the defendant is charged with violation of a 209A order, the commonwealth will then take up the fight for the plaintiff.
As a practical matter, if the defendant hires a lawyer and drags out a 209A case in the District Court, the defendants can wear down some prosecutors, the court and probation officers, etc.
This also forces the complaining party back to court numerous times. Often the complaining party just gives up. S/he cannot keep taking time off from work, cannot afford to keep paying his/her lawyer to come to court with them, etc.
That said, for the most part, chapter 209A orders work the way the law is intended, to protect victims of domestic violence. I, for one, would not like to go back to the “old” days, when plaintiffs had to make applications for criminal complaints which were heard weeks later by District Court Clerks (now called Magistrates). Often the Clerks told the defendant to stop bothering the complaining party - a strategy that was rarely successful.
That meant the complaining party had to then go through another round or two of making applications for issuance of criminal complaints, etc. until finally the Clerk was convinced the application should issue. That got the parties before a judge.
Back then, many judges were not sensitized to the real threat of domestic violence. If you were married or lived with some, that other person could treat the complaining party despicably - conduct that, if perpetrated on a stranger would put the defendant in jail!
113
It has taken a lot of time and training to get spouses and significant others the same rights as strangers.
And, now, on to this year’s cases.
114 “INAUDIBLE” WINS THE DAY.
After all the hoopla, if there is a gap in the transcript of the court tape recording, the Appeals Court assumes that is where the judge found a basis to support issuing the c. 209A order.
DENISE E. WOOLDRIDGE vs. STEVEN C. HICKEY 45 Mass. App. Ct. 637 October 13, 1998.
The Law. Please see separate “Conclusions of Law.”
Facts. Divorce judgment. Parties had joint legal custody of their three children. Dad had physical custody of children. Over time, children spent more time with mom, than dad. Mom filed complaint for modification. Parties had disputes about responsibility and financial obligations.
September 4, 1996 - ex parte Abuse protection order entered: • Mom testified: Dad was "abusive" and "verbally abusive." No explanation given as to what mom meant by the claim. • Dad ordered to stay away from mom and from the 3 children of whom he had physical custody and joint legal custody.
September 12, 1996: • Mom never speaks of: Having suffered physical harm. Being in fear of imminent serious physical harm.
115 Having been caused through force to engage in unwanted sexual relations. • Mom claimed there was no reasonable negotiating with former husband. • Mom could not stand arguing with him. • There was “just fighting about everything.” • Dad paid no child support. • “There's just intimidation, there's threats he's going to take [the children] away from me ... . My children depend on me." • Mom feels she has “unequal” ability to negotiate with dad because of his intimidating tactics. • Mom thought a protective order would level the field in the forthcoming custody and support discussion.
••Judge asked if mom felt subject to some danger of imminent physical harm to which she responded with "Yes." When asked "Why? Why do you feel that?" Mom answers: "Because, ‘inaudible.’ " • After hearing, c. 209A order extended: • Dad required to stay away from Mom. • Order continued to November 26, 1996.
November 26, 1996: • C. 209 A order extended for additional 6 months. Dad appeals. Orders expired before Appeals Court decided appeal.
Appeals Court.
116
Mootness. Dad’s appeal is not moot. Entries of the orders against dad have been made in the Commonwealth's criminal records system. Dad could be adversely affected by entries in the event of future applications for an order under G. L. c. 209A or in bail proceedings. Frizado v. Frizado, 420 Mass. 592, 593-594 (1995). Dad has a surviving interest in establishing that the orders were not lawfully issued, thereby removing a stigma from his name and record. Section 7, third par., of G. L. c. 209A provides that whenever an abuse prevention order is vacated, the court shall direct the appropriate law enforcement agency to destroy all record of the vacated order. See Smith v. Joyce, 421 Mass. 520, 521 (1995).
Abuse. Probate judge did not loose sight of the central importance of the fear of imminent serious physical harm in these cases. See Commonwealth v. Gordon, 407 Mass. 340, 348-349 (1990).
The “inaudible” answer to the judge’s question about immanent physical harm may have described past physical harm and fear of a repeat performance that gave the judge a basis for his order.
Dad’s lawyer did not have the probate court transcript transcribed.
An appellate court is free to disregard argument based on transcript not furnished to the court. Kunen v. First Agric. Natl. Bank, 6 Mass. App. Ct. 684, 689 (1978). Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992).
117
It is appellant’s burden to provide the appellate court with those portions of the record that support his claims on appeal. Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992).
A party claiming an insufficiency of evidence has the burden on appeal of furnishing the court with all the evidence.
Gaps in an audio record of the kind that appeared here can be repaired by using the procedure set out in Mass.R.A.P. 8(b)(3)(v), as amended, 388 Mass. 1110 (1983), captioned: "Unintelligible Portions of the cassette."
Appeals court, as matter of discretion, can and did sent its our own motion to the register of probate, who furnished a copy of the transcript.
By not having a full transcript (or agreed statement of what was said), dad left a crucial gap in the record that causes the Appeals Court to leave the main order undisturbed.
Appeals Court will not, as a reviewing court, hypothesize the absence of a response that might support a finding of fear of imminent serious physical harm.
On the basis of the record, as it was allowed to stand, we shall not disturb the issuance of the protective order issued September 12, 1996, directing dad to stay away
118 from mom.
There was no evidence that warranted issuance of the ex parte order of September 4, but that order was subsumed by the post-hearing order of September 12.
Only evidence was the children were subjected to verbal harassment by their father; and that their father "has hit my son and grabs him when angry." This is not evidence of abuse within the meaning of the statute. No evidence of imminent serious physical harm to the children.
Seeking to level the playing field is not an appropriate criterion for issuance of an abuse prevention order.
Orders of September 12 and November 26, 1996, directing dad to stay away from mom are affirmed.
The order to dad to stay away from his children is vacated.
Probate Court judge shall cause a direction to be sent, conformably with G. L. c. 209A, Sect. 7, third par., for the destruction of all record of the vacated order.
119
The record induces concern that, notwithstanding an absence of evidence of abuse, the judge may have acceded to the use of c. 209A orders as a bargaining chip in connection with pending proceedings for modification of a divorce judgment - which would not be a proper purpose.
GLN Comment:
The Appeals Court’s dicta on this last point, has created a niche market for defense lawyers and judges, particularly Appeals Court Judge Kass, to sniff out alleged issuance of c. 209A orders by judges so the plaintiff could use it as a bargaining chip in other litigation.
Why, one asks, would trial court judges be inclined to treat their court orders as presents to plaintiffs?
In my experience, the judges do no such thing. The judges want to make the right decision; and, as well, want to exercise caution so they will not be left open to criticism.
120 INCIDENTAL CONTACT OR CONDUCT IN COURSE OF PERMITTED ACTIVITY, CANNOT BE BASIS FOR CONVICTION OF VIOLATION OF
CHAPTER 209A ORDER.
Accidental or mistaken contact does not equal a crime. But, if that happens, you best get the hell out of there!
COMMONWEALTH vs. CARLTON W. RAYMOND. 54 Mass. App. Ct.448 (2002). - April 12, 2002.
The Law
To convict a defendant, Commonwealth must prove beyond a reasonable doubt that .... defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997). Intent is not an element of the crime of violating a c. 209A order. "The statute . . . requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute." Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997). A conviction does not require proof of actual intent to violate an order. Commonwealth v. Collier, 427 Mass. 385, 388 (1998) (Where son drove defendant, without defendant’s acquiescence, to place within impermissible proximity to the protected person, and "[w]here the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in
121 the violation." Id. at 389-390.) Defendant’s state of mind, apart from his awareness of the terms of the restraining order, would sometimes be relevant was explored in a different context in Commonwealth v. Silva, 431 Mass. 194 (2000) (restrained husband made contact with his protected divorced wife when he telephoned her residence for the purpose of speaking to the couple's teenage daughter. Such a call was authorized by the terms of the c. 209A order. The contact that occurred between the parties when the ex-wife answered the phone was "a lawful incident of the order," id. at 198, which would not by itself be sufficient to prove a violation. In Silva, the incidental contact between the parties was followed by defendant’s angry outburst which warranted finding that the c. 209A order had been violated. Id. at 198-199.) The facts of a case may entitle the defendant to an instruction that "an incidental contact" occurring in the course of a permitted activity was not a violation of the c. 209A order. See, Commonwealth v. Leger, 52 Mass. App. Ct. 232, 237 (2001). Common sense suggests that a defendant cannot be convicted of violating a "no contact" order issued under c. 209A where the contact occurs in circumstances where the defendant did not know, and could not reasonably have been expected to know, that the protected person would be present. We view this proposition as nothing more than an application of the principle enunciated by the Supreme Judicial Court in Commonwealth v. Silva, supra. The traditional view is that, in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes. Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982), citing State v. Brown, 38 Kan. 390, 393 (1888). In the context of a prosecution for violation of a "stay away" order issued under c. 209A, the Supreme Judicial Court has recently suggested that "accidental, mistaken, or unknowing violations of the distance requirements of an abuse prevention order" will not be sufficient by themselves to support a conviction under G. L. c. 209A, 7.
122 See Commonwealth v. Finase, 435 Mass. 310, 315 (2001). The policies that are advanced by means of the remedies available under c. 209A do not require that restrained parties be convicted for what would generally be considered innocent activities. To hold otherwise would incorporate into the statute a concept of strict liability, and there is no basis for believing that this was the Legislature's purpose.
Facts. Raymond and his mother owned house in Middleton (“House’) · Mother resided in the house. · House was condemned by local authorities. · House had to be cleaned. Veronica, Raymond’s ex-wife and the couple's two sons, Steven and Carlton, III, drove to the House to start cleaning out items. A truck, hired to haul the items away, was parked in front of the House. Veronica parked across the street in a neighbor's driveway. While Veronica and children in the House, Raymond came in.
Commonwealth’s claims: Raymond was angry and swearing. After a few words, Raymond swung at Steven. Steven and Carlton pinned Raymond to kitchen table. Veronica witnessed the encounter. Veronica called the police. · Sons offered to release Raymond if he would agree to leave. · Raymond refused. Police arrived. · Raymond admitted knowing Veronica would be at House when got there.
123 Raymond’s claims: He went to House to get clean clothes; and to start cleaning the House. On arrival he did not see Veronica’s car across the street. He did not know Veronica was at House. He saw truck loaded with items from the House. He saw that front door had been removed from its hinges. He entered House and, confronting his son Steven: · Accused him of being a heroin user. · Attempted to look in Steven’s eyes. Steven responded by: · Pushing Raymond toward the back table. · Calling to Carlton to give him a knife. · Asking Carlton to help throw Raymond out the window. Two sons held: · Raymond against the table despite the Raymond’s demand to be released. · Called Veronica to get the police. Raymond did not see Veronica until she came running into House in response to their sons' shouts that she call the police.
Parties stipulated to three of the four conditions that the Commonwealth is required to prove in order to convict under G. L. c. 209A, 7, see Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997): (a) that a court had issued an order prohibiting the defendant from contacting Veronica; (b) that the order was in effect on the date of the defendant's alleged violation; and (c) that the defendant knew the terms of the order. Parties disagreed on 4th, i.e., whether the defendant violated the order.
Instructions to Jury.
124 Judge gave jury preliminary instructions. The parties agreed on three of the conditions required for a conviction, but disagreed on the fourth - whether the defendant had violated the restraining order. At close of evidence, judge instructed jury: Four required items, each of which Commonwealth is required to prove beyond a reasonable doubt, even though the defendant had stipulated to three of them. Fourth item: Whether "the defendant violated the order by abusing the alleged victim or failing to vacate the household or workplace located at a particular address or reentering the household or workplace located at a particular address or by contacting the alleged victim." Since the House was not the parties prior residence, nor a place Raymond had been ordered to vacate, only the last of these possible violations (i.e., "contacting the alleged victim") was involved. Defined the term "abuse.," There was no reason for this as the evidence did not warrant a finding of "abuse," but only a finding of impermissible contact. One issue: "whether ..., with all of the evidence taken as [a] whole as you find it, this defendant violated the [209A] order”
Jury went to deliberate. Jury returned with two questions: (1) "[A]re we as jurors [to] decide[] whether he violated it or intended to violate it?" (2) "Are you violating a restraining order if you are unaware of the party being within 100 yards?" Raymond briefly raised issue of his lack of knowledge that Veronica was present. Judge considered, but rejected, proposition that a defendant who had
125 no knowledge of the presence of the protected person could not be convicted. Defense counsel stated that the judge’s proposed answer would not answer the jury’s question. Judge repeated his prior instructions to jury. Defendant did not object while the jury were still in the courtroom. Defendant did object after jury retired. Defendant convicted.
Appeals Court Defendant claims: Prejudicial error because judge failed to instruct the jury regarding the "voluntariness" of his actions. Defendant briefly introduced the concept that his lack of awareness of the protected person's presence might be significant.
Need for Proper Instruction to Jury. Defense counsel objected in response to an invitation by the judge. "[T]he point was brought to the judge's attention, and he rejected it." Commonwealth v. Biancardi, 421 Mass. 251, 254 (1995). Judge had adequate warning, before the jury retired, that his instructions may have been inadequate. Judge could have altered his instructions had he seen fit to do so. Judge had the power to call jury back for further instruction. Absent a proper preservation of the issue, the omission from the instructions was significant, and created a substantial risk of a miscarriage of justice.
Discussion. There is a conflict on the key issue: whether Raymond’s contact with Veronica was either incidental to a permitted activity, see Commonwealth v. Silva, 431 Mass. 194 (2000), or an accidental,
126 mistaken, or unknowing violation, see Commonwealth v. Finase, 435 Mass. 310, 315 (2001), as opposed to a contact that is neither incidental nor accidental. The order in question did not preclude Raymond from going to or into House. Raymond claimed he did not know Veronica was there until his sons called her and she entered from outside. Before learning Veronica was there, he was attacked, forcibly restrained, and not permitted to leave by his sons, despite his requests to do so. If the jury believed Raymond’s version, the jury could have found that his contact with Veronica was incidental to a permitted activity, or an accidental, mistaken, or unknowing violation, or even a coerced violation given that the contact took place while he was restrained by his sons. Neither the judge's general instructions nor his response to the jury's questions informed the jury that these considerations were relevant to a determination whether there had been a violation of the c. 209A order. Instructing only that it was up to the jury to decide on all the evidence whether a violation had occurred at best left the jury without guidance as to what constituted a violation, and at worst invited the jury to apply a strict liability standard. This misstep was particularly inopportune here, given that the jury, through their questions, evinced confusion and concern over these very issues. Under the circumstances, the failure to explain the significance of an incidental or accidental contact was prejudicial error. Even if the objection not been preserved, the error created a substantial risk of a miscarriage of justice.
Judgment of conviction reversed. Verdict of guilty set aside.
127 If You Are Afraid, Are You Abused?
If He Is Accused Of Killing His Wife’s Boyfriend, Is He A Danger to You?
To Justify Issuance Of First 209A Order, Complainant Must Identify Conduct Putting Him / Her In Imminent Peril of Physical Force Being Used.
BARBARA D. CARROLL vs. JAMES P. KARTELL, 56 Mass. App. Ct. 83 (September 25, 2002) The Law:
c. 209A, § 1 defines "family or household members" to include persons who "are or have been in a substantive dating or engagement relationship" as adjudged by the court in consideration of the following factors: " (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship."
Section 3, "Abuse" defined as acts: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." r. G. L. c. 209A, § 3 is available to a person "suffering from abuse" by a "family or household member."
128
Standard for determining whether a defendant's acts rise to the level of abuse, however, is not subjective.
Court must look to whether plaintiff's apprehension that force may be used is reasonable. See Commonwealth v. Robicheau, 421 Mass. at 181-182. See also Commonwealth v. Gordon, 407 Mass. at 349 (in determining whether an apprehension of anticipated physical force is reasonable, a court examines "the actions and words of the defendant in light of the attendant circumstances").
“Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. at 639. See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020 (1997).
"The judge must focus on whether serious physical harm is imminent and should not issue a c. 209A order on the theory that it will do no harm, i.e., 'seems to be a good idea or because it will not cause the defendant any real inconvenience.'" Wooldridge, supra quoting Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).
Contrast with: Commonwealth v. Gordon, at 349-350 (defendant appeared at victim's house in violation of 209A order, called victim "bitch" and "whore," and prevented victim from closing door to her house by propping his back against it).
Commonwealth v. Robicheau, (defendant parked and stood in the street in front of victim's house in violation of 209A order, yelled obscenities and made an obscene gesture, and later told her over the telephone that he would kill her).
Facts. • April 1, 1999: Parties meet at Boston Museum of Science. • Soon thereafter met for coffee with another couple at the Burlington Mall. • Before next meeting, Carroll told Kartell she was divorcing an abusive husband; and she had restraining order against her husband.
129 • April 3, 1999: on a Sunday, the two met for a movie and dinner date. • Kartell insisted Carroll ride in his car from movie theater to restaurant. • Carroll declined; and drove her own car. • During dinner, Kartell allegedly said: Restraining order obtained by his wife as "a feminist tool to screw him over," and he would "never hurt [Carroll]" or "do harm to [her] children." • Kartell began telephoning Carroll’s house with frequency, the number of calls being unclear. • Some times Kartell spoke to Carroll's children, asking them: about Carroll’s schedule and how to contact her. • Other times, Kartell spoke to Carroll. • In one telephone conversation, Carroll told Kartell she was concerned about a ticket he had reserved in her name for an event. • Kartell became very abrupt and Carroll became frightened. • Carroll told Kartell to not contact her again. • Kartell sent one letter to Carroll’s house. • April 11, 1999: On her way to Museum of Science brunch, Carroll learned from a friend that Kartell had recently been charged with murder in connection with the shooting death of his wife's boyfriend. • Kartell never told Carroll he had been charged with murder. • Carroll sees Kartell who approaches her several times. • Carroll told Kartell not to contact her. • Kartell demanded to call her that evening. • Kartell never again called Carroll. • April 13, 1999: Carroll receives letter from Kartell, saying: He meant no harm to her or her family. Instead of calling, "which you might regard as intrusive," he hoped that the two could "continue to cultivate a friendship", but only if she were to contact him.
130 • April 15, 1999: Carroll seeks 209A order against Kartell • Ex parte one-week no contact order issued. • April 22, 1999: both parties in court for hearing. • Carroll claimed Kartell placed her in fear of imminent serious physical harm. • Order extended for one year. • Kartell appealed.
Appeals Court:
Section 3's definition of abuse closely approximates the common-law description of the crime of assault.
Appeals Court is guided by the law of that crime.
Issue: Did Kartell’s actions and words objectively give Carroll a reasonable apprehension that physical force might imminently be used against her?
No evidence Kartell ever threatened Carroll, implicitly or explicitly, with physical harm. Kartell's behavior combined with revelation of criminal charges against him, caused Carroll to fear Kartell and his attentions generally. Carroll's subjective and unspecified fear of Kartell is insufficient to meet the definition of "abuse" under G. L. c. 209A, 1(b), and thus fails to serve as the basis for issuance of a c. 209A order.
XIX. Kartell’s remarks may have meant to reassure Carroll he was not like her husband but had the effect of frightening her. Carroll identified no particular menacing language or gesture suggesting she was in imminent peril of physical force being used against her. Carroll's experience with domestic violence may have left her
131 particularly sensitive to Kartell's assertiveness and his persistent efforts to contact her. From her view, Carroll’s fear of Kartell is understandable. Objectively considered, Carroll's apprehension was not here reasonable. Judge undoubtedly acted out of an abundance of caution. Kartell's persistent actions did not rise to the level of "abuse" defined as placing another in fear of imminent serious physical injury.
XX. The powers of the court under c. 209A must be exercised in accordance with the statutory language, which appropriately sets a higher bar for the issuance of a protective order than is found in the facts of this case.
Held:
Orders vacated. All records of vacated orders to be destroyed. G. L. c. 209A, 7, third paragraph.
132 Be Careful When You Go To Church. You Might Find More Than God Waiting There For You.
209A Orders Are Admissible Into Evidence To Reflect Parties’ Prior Relationship
COMM. v. JOSEPH EUGENE, 438 Mass. 343 (January 2, 2003)
Summary::
Joe convicted of murder in the first degree on the theory of extreme atrocity or cruelty in connection with the July 30, 1997, stabbing death of the woman with whom he lived.
The Law:
Evidence that a victim has obtained an abuse prevention order against the defendant is admissible to demonstrate the existence of a hostile relationship, as the relationship may be relevant to the defendant's motive to kill. See Commonwealth v. Sarourt Nom, 426 Mass. 152, 160 (1997); Commonwealth v. Martino, 412 Mass. 267, 280-281 & n.9 (1992); Commonwealth v. Gil, 393 Mass. 204, 215-216 (1984).
133 Appeal:
Joe claims error in three evidentiary rulings at trial: XXI. the admission of an abuse prevention order obtained by the victim five months prior to the killing, (2) the exclusion of portions of the defendant's statement to the police, and (3) the exclusion of the length of the sentence served by one of the Commonwealth's witnesses on an unrelated criminal conviction. Joe requests reduction in verdict to voluntary manslaughter.
Held: Conviction affirmed; no reduction in verdict.
Facts at Trial:
Joe and victim lived together for about 12 years. They had three children; plus child from victim’s prior relationship with another man.
February 21, 1997: · Victim obtained a 10-day temporary abuse prevention order against Joe. She did not seek to extend order the defendant. She ultimately recanted her allegations.
Spring of 1997: · Victim became an avid member of a newly formed church. · Shortly thereafter, victim became romantically involved with another church member, one Willie Lester. Joe became aware of victim’s affair with Lester. Joe became distraught at prospect that victim might leave him. Two weeks before killing, Joe told victim's aunt he felt like killing himself, the victim, Lester, and the children.
July 19, 1997:
134 · When victim did not return home from work, Joe and one of his sons went looking for her. · In the early morning hours, Joe found her with Lester, parked in a car in front of Lester's house. · Joe reached into the car and struck the victim, demanding that she and Lester get out. · Victim began to drive away · Joe leapt on the hood of the car, but slid off as car kept moving. · Joe treated at a hospital for scraped knees; and returned home later that morning. x. On returning home, Joe discovered victim and Lester in bed together. Victim screamed at Joe, telling him that it was "over" and that she wanted him to leave. · Joe went to stay at a friend's house nearby.
July 20, 1997: · Joe confronts Lester, telling him to leave the victim alone. · Joe grabbed Lester by the throat, knocked him down, and hit him several times. · Victim continued her relationship with Lester.
Few days later: · Victim let Joe return home within a few days. · Joe had a son telephone Lester and leave a message to effect that Lester should leave family alone. d. Joe confront Lester at church to hear Lester say he intended to marry the victim · Lester warned to stay away from victim.
July 30, 1997, evening: · Victim had planned to go to her cousin's house to record gospel music. · About 7:30 P.M., victim called cousin to tell her that she would not be coming. · Victim said, "I am just tired of [Joe] hunting me down like a dog when he can't find me." · Cousin heard Joe's voice in the background saying "he was tired of this F'n . . . S and he's not a slave and he is not going to take this anymore." · Joe picked up another telephone, at which point victim hung up. · Joe told cousin, "I feel like killing her. I love her so much, I feel
135 like killing her." · Cousin handed telephone to her husband, who also spoke with Joe. · Joe repeated he wanted to kill victim, and expressed anger she as seeing another man. · Victim then left the house, taking the children to a nearby park. · On return, she and Joe began arguing. · When victim headed into the bedroom, Joe got a large knife from a drawer in the kitchen. · Joe followed victim into bedroom, where he stabbed her repeatedly. · Immediately after the stabbing, Joe took a bottle of bleach from the kitchen, poured some into a cup, drank it, and proceeded to vomit on the victim's back. Joe telephoned a friend, Gene, who arrived within a few minutes. Gene found Joe dazed and foaming at the mouth, his clothes stained with blood. Joe told Gene that victim had tried to make him drink bleach. Gene saw victim lying on the bedroom floor, and asked Joe what he had done. Joe replied, "She's dead." After advising the defendant to contact the police, Gene left the house. Joe telephoned police emergency number, asking for an ambulance.
Version #1: Joe told dispatcher his girl friend had stabbed herself.
Versions #2 and #3: When ambulance personnel and fire fighters arrived, Joe told them differing versions of what had happened. XXVIII. Victim had given him something to drink and that he had woken up on top of her. Victim had made him drink bleach, "so [he] jumped on her back." Version #4 Police told victim had given him something to drink, that he had thought it was water, but on realizing it was bleach, he had beaten her and jumped up and down on her back. Joe taken to the Lynn police station and given Miranda warnings.
Version #5 Joe’s statement at police station: He had been half asleep when victim returned with the
136 children. He only remembered drinking something and falling down. When he woke up, he found himself lying on top of victim. He noticed blood on the floor and on his hands, and vomit on the victim's back.
Version #6 Joe testified: _ Victim had attacked him with a knife and that he had killed her in self-defense. Victim, who weighed almost 100 pounds more than he did, had been physically abusive to him during their relationship.
On February 21, 1997 (when victim got the 10-day temporary abuse protection order against him), the victim had slapped and bitten him after he had shoved a sandwich in her face.
On the night he found victim with Lester in the automobile, victim had deliberately tried to run him over.
On the night of stabbing, Joe went into the bedroom to get his medicine. Victim yelled at him and swung a knife at him twice, missing both times. Joe ran to the kitchen and got a knife. Victim chased him and blocked his way, forcing him back into the bedroom. Joe then stabbed the victim three times. On cross-examination, Joe admitted victim dropped her knife before he stabbed her, and her hands were up in a defensive posture when he struck the first
137 blow.
Denied any memory of striking more than three blows, but did not dispute the medical examiner's opinion that the victim suffered nineteen stab wounds.
After the stabbing, Joe wanted to kill himself, so he drank bleach - but then vomited.
Stabbing had nothing to do with victim's affair with Lester.
Denied ever making threats to kill the victim. Acknowledged giving different versions to the police and to Gene, omitted saying victim attacked him - claiming he did not "want to talk bad about her."
Psychologist testified on the subject of battered spouse syndrome and nature of abusive relationships · Abused men are particularly prone to keep the abuse secret. · When abuse victims kill the perpetrator of the abuse, they often suffer amnesia, confusion, and feelings of guilt.
Medical examiner: · 19 stab wounds; several of which punctured victim's heart. · Two stab wounds inflicted after victim already dead. Multiple wounds on victim's hands and arms, characterized as defensive wounds.
209A order: · Over Joe’s objection, judge allowed prosecutor to introduce evidence of the February 21, 1997, abuse prevention order Judge excluded the application for and affidavit in support of the order.
138 · Judge redacted material dealing with Joe’s prior criminal history. · Judge gave limiting instruction: order could only be considered on the issue of the relationship between Joe and victim as it may bear on Joe's motive on the day of the stabbing. · Next day, Joe moved for mistrial claiming error in introducing evidence of the abuse prevention order. Motion denied. · Judge gave jury further instruction, explaining: procedures involved in obtaining such an order; victim obtained order by going to court and submitting a sworn statement Joe not present when order issued so he was able to present his version. Order automatically expires in 10 days, unless complaining party returns to court to seek to renew it At that time, opposing party would have an opportunity to be present and to be heard at that time. Victim did not attempted to renew the order. Victim later recanted the underlying allegations. Jury reminded the sole purpose for which they could use the evidence concerning the order was with respect to the parties' relationship.
Supreme Judicial Court:
Discussion on Admissibility of 209A Order.
Commonwealth's theory focused on the increased tension in the parties' relationship stemming from the victim's later involvement with another man. But, this did not preclude Commonwealth from showing that that relationship had been a hostile one even earlier.
139 209 A order is relevant even though victim's affair with Lester did not begin until some time after the February 21, 1997, order.
Joe presented evidence of an allegedly long-standing abusive relationship, between himself and the victim.
Joe presented his version of events immediately prior to victim's obtaining the abuse prevention order, claiming that he -- not the victim -- was the one who had been physically abused on that occasion.
Fact that victim sought and obtained an abuse prevention order against Joe 5 months before the fatal stabbing was relevant to both the Commonwealth's theory of the parties' deteriorating relationship and to Joe’s claims about that relationship.
The duration of the order does not affect its relevance. So, it does not matter if this was a 10-day, 1 year or permanent order.
The relevant fact: victim and Joe were sufficiently estranged such that she ought an order. Whether order was renewed or not, it evidences the existence of some form of dispute, tension, or hostility between the victim and Joe at a point in time very shortly prior to the victim's involvement with Lester and only five months prior to the defendant's killing the victim.
Limiting instructions explained the one-sided way order was obtained, victim’s recanting, etc. and that the jury could only use the 209 A order to assessing the relationship between the parties, and not for any other purpose. And jury heard Joe’s version of what happened that day. So, no conceivable prejudice to Joe.
140 Other issues discussed in opinion:
Doctrine of Verbal Completeness.
Impeachment by prior conviction (exclusive of sentence imposed).
Joe learned of the infidelity of his longtime girlfriend and mother of his children, so no reasonable provocation justifying reducing crime to voluntary manslaughter. Joe had ample opportunity to "regain emotional control" after that discovery.
141 Don’t Even Go There If She is Not There!
Intrusion by Verbal Projection.
COMM. v. MICHAEL S. HABENSTREIT 57 Mass. App. Ct. 785 - April 15, 2003.
The Law:
Commonwealth must prove that: a valid G. L. c. 209A order was entered by a judge; order was in effect on the date of the alleged violation; defendant had knowledge of the order; and the defendant violated the order. Parties stipulated the first three requirements were satisfied. Issue:
Can defendant be convicted of violating a protective order (G. L. c. 209A) to stay away from a protected person's workplace if the alleged violation occurred at a time when the protected person was not at her workplace.
Defendant argues: there was insufficient evidence of a violation; and District Court should have allowed his motion for a required finding of not guilty. Facts:
Defendant and girlfriend - Jane +had had an "off and on" relationship for about eight years.
142 Relationship ended in December, 2000. Jane had obtained a c. 209A protective order. Defendant ordered: · not to abuse Jane · not to contact Jane "to stay at least 100 yards" from her, ... her residence (location stated)”, and · "to stay away from [her] workplace located at 210 & 212 Main Street, Northampton." In late fall of 2000, Jane began dating a coworker in her office. Defendant was aware of Jane's new relationship. About ten persons worked in the office. The desks of Jane and the coworker/boyfriend were in the same room.
February 22, 2001: · Jane called office to tell them that she was sick. · Jane did not come to work that day. · Coworker was in office. · About 4:20 P.M., coworker heard a loud horn blowing several times. · On looking out the window, he saw defendant stopped about 25 - 40 feet away in a pickup truck. · Coworker knew defendant because he had previously seen him in the office. · Defendant looked at coworker, raised himself up out of the truck window, and started shouting obscenities and making threats. · Coworker called the police.
Defendant · presented no evidence · moved for a required finding of not guilty after presentation of Commonwealth's case.
143 · Rested, after motion denied.
Jury warranted in finding:
Defendant knowingly shouted obscenities and made a threatening gesture to a person inside, thus intruding directly into Jane's workplace in violation of the stay-away order.
That Jane was not there was a fortuitous circumstance that does not constitute a defense to the defendant's actions.
An order to stay away from a protected person's workplace puts the workplace itself off limits in order to create a safe haven for him or her at work, leaving fewer opportunities for abusive contact.
The order was not conditioned on Jane's presence.
A protective order should not be interpreted in a manner to encourage a defendant to keep himself or herself informed about a protected person's schedule.
There was sufficient evidence of defendant's violation of the order.
144 Judgment affirmed.
145 IF YOU ARE STILL AFRAID TWO YEARS LATER, THE COURT CAN ISSUE A
PERMANENT C. 209A ORDER.
DOES THE COURT HAVE TO FIND CONDUCT WAS “PARTICULARLY EGREGIOUS?” THAT’S NOT IN THE STATUE.”
JOHN DOE vs. SAMUEL J. KELLER & another. 57 Mass. App. Ct. 776 (2003).
The Law.
G. L. c. 209A, § 3, "empowers a judge in the District Court (or any other court with jurisdiction to consider the matter) to issue a permanent protective order at a renewal hearing." Crenshaw v. Macklin, 430 Mass. 633, 633 (2000).
The statute explicitly provides that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. . . ." G. L. c. 209A, § 3, as inserted by St. 1990, c. 403, § § 3. Id.
"The only criterion for extending the original order is a showing of continued need for the order." Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999). See Massachusetts Trial Court, Guidelines for Judicial Practice: Abuse Prevention Proceedings, Commentary to Guideline 6:08 (1997)./ Id.
146
Procedural Facts.
• December 28, 1998: Doe filed a complaint under G. L. c. 209A against the defendants, individually: Claiming rape, physical abuse, and threats on his life. Doe got ex parte orders. • January 7, 19999 hearing: Entry of 1-year renewal of restraining order. Defendants ordered: · To refrain from abusing the plaintiff. · Not to contact the plaintiff, which included an order to the defendants to stay away from the plaintiff's work place. • January 7, 2000 hearing: Neither defendant appeared. Respective orders against each defendants extended to January 5, 2001. • January 5, 2001 hearing: Doe requested existing orders be made permanent. All parties present and represented by counsel. After hearing, judge ordered orders be made permanent. • Defendants appeal.
Facts.
9On December 29, 1998, defendants obtained ex parte restraining orders against Doe from Plymouth District Court. After a hearing on January 8, 1999, the day after the hearing on the plaintiff's complaint, a Plymouth District Court judge extended the orders against the plaintiff and he appealed, claiming that the orders obtained by the defendants were, in effect, mutual restraining orders and that the judge failed to make the findings required pursuant to G. L. c. 209A, §§ 3. This court agreed and vacated the orders entered against the plaintiff. Sommi v. Ayer, 51 Mass. App. Ct. 207, 209-211 (2001).
147 . 1997: Doe first met defendants in Provincetown. . Doe engaged in a sexual relationship with the defendants. . January 1998, Doe, at defendants' invitation, moved into their home. . Doe continued the sexual relationship previously established. . In the months before December of 1998, Doe repeatedly threatened by both defendants and often beaten by them. . December 22, 1998: Doe anally raped by Keller while being restrained by Sommi. . December 26, 1998: After threats from the defendants of physical harm, the plaintiff left the defendants' home, went to police and reported the rape. . A grand jury heard testimony about the rape but did not return any indictments against the defendants.
. January 5, 2001 hearing: Doe is a hair stylist, as are the defendants. Doe testified he still feared the defendants. Doe was afraid to leave his town or go to conventions or trade shows for fear that he would encounter the defendants. Defendants did not testify at the hearing. No evidence of any contact between Doe and defendants since the incidents that resulted in the restraining orders first being issued in 1999.
Trial Court.
After the hearing, judge issued written findings of fact and conclusions of law. Judge found that "there was credible evidence of abuse by the defendants against the plaintiff. Specific evidence of threats of bodily harm and at least one instance of anal penetration against the will of the plaintiff."
148 The fact that the grand jury failed to return an indictment of rape was "not dispositive of that issue." Based on his findings, the judge ordered the restraining orders be made permanent.
Appeals Court.
Defendants argue judge abused his discretion by: Issuing a permanent restraining order based solely on the plaintiff's testimony.10 Discrediting the failure of the grand jury to return an indictment in regard to the plaintiff's claim of anal rape. Judge heard plaintiff’s testimony as to the abuse he suffered and his ongoing fear of further abuse by the defendants. Judge specifically found that the plaintiff was raped by the defendants. The crime of rape is a traumatic offense, no matter the gender of the victim. It is "a crime involving not simply sex but violence and domination calculated to humiliate, injure and degrade." Commonwealth v. McCourt, 438 Mass. 486, 495 (2003), quoting from Commonwealth v. McCourt, 54 Mass. App. Ct. 673, 681 (2002).
Because, as the judge found, the triggering event (the rape) "was particularly egregious," we hold that the judge did not abuse his discretion in ruling
10Defendants claim a permanent restraining order violates their right to due process guaranteed by art. 12 of the Massachusetts Declaration of Rights. The “due process rights of a defendant . . . are amply protected." Lonergan-Gillen v. Gillen, ante 746, 750 (2003).
149 that the plaintiff still feared the defendants even though there had been no contact between the parties in the past two years.
Question before grand jury was whether there was probable cause to believe that Keller had raped the plaintiff with Sommi's assistance. Question before the District Court judge was whether, based on a preponderance of the evidence, there was a continuing need for a restraining order under G. L. c. 209A. See Frizado v. Frizado, 420 Mass. 592, 597 (1995). Different questions may result, as they did here, in different answers.
Order of January 5, 2001, affirmed.
Note: The Grand Jury only had to find probable cause - the lowest level of proof in the law.
The parties before the Grand Jury were the Commonwealth and the defendants. Therefore, any decision there is not binding on plaintiff.
If defendants were convicted of a crime, because the standard in that trial is beyond a reasonable doubt, that conviction could be used in the c. 209A trial.
150 ONE CALL VIA THE POLICE, AFTER FOUR YEARS OF NO CONTACT IS NOT ENOUGH TO SUPPORT ISSUANCE OF 209A ORDER.
After all those years, the fear still controls your conduct.
MARY DOLLAN vs. JANE DOLLAN 11 59 Mass. App. Ct. 905 July 22, 2002.
Facts: Daughter age 29. Her mother contacted Lynn police requesting they contact daughter. Police contacted daughter, advising: · Her mother was concerned. · Wanted daughter to contact her family. Daughter’s affidavit: · Mother was "one of [her] abusers from [her] early childhood and teenage years" · Physical, sexual, and emotional abuse had been involved. · Mother’s attempts to contact her caused her emotional distress. · Daughter feared mother would try to "coerce" her back into living with mother "in a very abusive environment." · There was no mother - daughter contact for 4 years. June 7, 2000: Daughter gets ex parte 209A order against mother. June 16, 2000: After, hearing, the order was extended for one year.
11Pseudonyms were used to protect the guilty.
151 Mother appealed. The Law: Expiration of the order does not make the appeal moot. (See 209A Conclusions) G. L. c. 209A, § 3 allows a person suffering from abuse from a family or household member to file a complaint requesting protection from that abuse. "Abuse" includes §3 (b) placing another in fear of imminent serious physical harm (See 209A Conclusions) Serious physical harm must be imminent. General apprehension, etc. “does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). Section 3(b) focuses on preventing imminent serious physical harm and responding to past abuse.12
Appeals Court
Mother’s call to police department cannot reasonably be said to have placed daughter in fear of "imminent serious physical harm."
Any past abuse allegedly occurred when daughter was a child or teenager.
Daughter failed to present any evidence that the abuse might resume if the c. 209A order was not issued.
Daughter’s fear, that mother might try to "coerce" her going back home to live is the kind of "generalized apprehension" that the courts
12Note: The reported decision refers to §1 (b), while the language makes clear the court meant § 3(b).
152 have refused to recognize as abuse under G. L. c. 209A. See Wooldridge v. Hickey, supra.
Issuance of the order on allegations of past abuse alone, without a fear of imminent physical harm, was inconsistent with the language of G. L. c. 209A.
There was no evidentiary basis on which to issue the order.
Order vacated.
GLN comment: The daughter still makes her point: Do not even think about calling or contacting me because it will then cost you two years of litigation and attorneys fees!
153 Is this poem: 1. From Barbara Johnson to: a. Mitt Romney, when she lost for governor? b. the BBO on filing its 22 page complaint against her? c. to Judge Gould on suing her in the Federal Court? d. to Jerry Nissenbaum, Ray Sayeg, John DiPiano, now-judge Chateau Merrill when Johnson’s case against them was dismissed by the Federal District Court? e. to Jerry Nissenbaum, Ray Sayeg, John DiPiano and Judge Lisa Roberts when Johnson’s case against them was dismissed by the Federal District court? f. to Judge Gould when Johnson’s Federal Court case was dismissed? b. From Joe Gallagher about Susan Jones, which was the basis for a 209A order? c. A recently discovered poem by Alan Ginsburg?
Sue Me To tear out your own heart with bloody jagged teeth, you must first bite through the breast plate, then the breast bone, past several sore, cracked and bruised ribs.
You seize it between upper and lower incisors drag it, broken but still beating into the fresh horrors of a new day. The sun shines, the clock ticks, the day stretches and yawns before you. You wonder why you just don't die.
What tenuous connection keeps you still breathing. Everything you loved and believed lies torn and twisted. All thorns without the rose, bleeding and broken another casual victim, no bandage can resuscitate. Details at eleven, see obit. section, page 68.
The heart dies, but the body lives on -- "Miracle of science," reports the National Enquirer. Inquiring minds don't want to know what fucked up fate might befall them.
154
Instead, pretend that unendurable pain is sort of fascinating, like twenty-two pound twins delivered by menopausal grandmother, or how scientific proof of heaven's existence or is it hell's, lies just past the next galaxy. Take it for granted -- pictures on page 63.
It's the way of the world, no thought, no word, no deed, need apply not necessary, not applicable. Not to worry, have a nice day, life goes on don't try to understand, go with the flow. Life is a bumper sticker, a buzz word, life is a cabaret. Life is a bitch, a bowl of cherries, a ten second sound bite. Use every available cliché to arm yourself against any glimmer of self-awareness, comprehension or culpability. Everything else is to blame except you or me. It's them, they, those, others, always, all ways, Not us. We did all we could. We did what we had to do. We played the hand that was dealt us. We did the best that we could. We did all that we could do. We did everything that was humanly possible. We went above and beyond what could be expected. We put ourselves out, extended ourselves in extraordinary fashion. We coped, hoped, discussed, dialoged, forgave, forgot, taught, listened, learned, lectured helped, hurt, healed, supported, sacrificed, shared, screamed, dreamed, danced, denied, delighted, desecrated and destroyed. What memories, what stories we'll have to tell. Not to each other of course, but to ourselves, not lonely of course, but alone. In place of love and laughter the light of eternity or earth. We'll have loss and regrets, but we'll remain reasonable. We'll recognize the road too rocky, the cost too great. And we're practical people, civilized, survivors. We'll master the art of living as if it still mattered. You'll collect original haiku from the 5th century Tang dynasty reminding you of a poet you vaguely remember. I'll hoard exquisite examples of calligraphy Pre-Raphaelite period, lovely letters, like dancer's limbs
155 motionless without music, evocative, reminding me of some thing I can't quite place, a faint silhouette of a familiar face.
156 STICKS AND STONES CAN BREAK MY BONES;
AND SO TOO, CAN WORDS IN POEMS.
Gallagher’s poem freighted Ms. Jones; and the Judge too. But the words, alone, are not abuse.
SUSAN B. JONES vs. JOSEPH W. GALLAGHER. 54 Mass. App. Ct. 883 May 29, 2002.
Facts. Parties were coworkers in a school system. They dated and broke up. After their break-up, Joe authored a poem with some violent imagery that expressed his emotional upheaval. The poem was never sent directly to Sue. The poem was attached to a letter from Joe to a mutual acquaintance. Sue saw the poem. August 6, 1998: Sue sought a 209A order against Joe. September 24, 1998 hearing: (judge #1) · Order on standard form "Abuse Prevention Order." · Findings recorded by checking off the boxes. · Joe ordered "not to abuse the plaintiff," "not to contact the plaintiff," and to "stay away from the plaintiff's residence" and workplace. · Checked at box reciting "[t]here is a substantial likelihood of immediate danger of abuse." · Form says: "Violation of this order is a criminal offense punishable by imprisonment or fine or both." · Order recites expiration and "next hearing date," September 23, 1999. September 23, 1999, hearing: · Joe, his counsel, and Sue were present. · The proceeding was brief and informal. Zullo v. Goguen, 423
157 Mass. 679, 681 (1996). Judge said "[t]here have been extensive hearings apparently on this matter in which exhibits and testimony were taken." "How have things been since the order went into effect?" Sue said: "OK," Judge' asked is Sue wanted order made permanent. Sue said yes. • No other proof or offer of proof. • Joe’s attorney said: Parties had a personal relationship that started "when they both were married," and lasted for approximately two and one-half years. Relationship ended one and one-half years before the initial order was granted. Order issued on the basis of a poem "that [Joe] had written about his own pain [using] imagery that was violent in terms of his own pain . . . ." No physical contact between parties for 2 ½ years. No longer worked together. Did not live anywhere near each other. • Judge examined original file - but it is unclear what he reviewed. • Judge explained his understanding of the law: If judge finds Sue was in need of protection and there was a sufficient basis for issuing that order, at the end of the year, [Sue] has a right to request that the order be made permanent and . . . the fact that no abuse occurred during that period of time is not enough to dismiss or vacate the order." • Judge made no comment as to order of proof or burden of proof. • Judge stated, "I'm suggesting absent extraordinary conditions, the statute says [the plaintiff] is entitled to have [the order] made permanent or continued." Judge asked Sue, "Do you feel you are in need of protection, and if so, why?" Sue said: "Absolutely . . . I feel that I am in imminent fear. I am in fear of imminent physical and psychological harm. . . .
158 First of all, the decision that was made last year was made . . . [and] it was the law that came in and protected me for the last year in which time I haven't heard from him. I now face renewal where it's going to end and I won't have that protection there. I've been in fear of this day coming when I don't have the law there to protect me. I also have a case at the Mass[achusetts] Commission Against Discrimination pending. We will have contact again in the future and I need that protection there for me." Joe’s attorney asked the judge, "What is the reasonableness of her current statement that she is in fear. Why is she in fear of imminent bodily harm?" Attorney suggested the order be extended until the end of the MCAD litigation. Judge entered a permanent order and stated the following, in part: "I find that there is ongoing litigation matters between the two of them that stem from the original time, apparently when they were both working at the same location. That they have now separated that litigation apparently it is going into the Superior Court and she is in reasonable fear based on what [the issuing judge] apparently found in the past." Joe appeals, claiming: Judge #2 erroneously placed the burden of proof on him. Evidence insufficient to make the order permanent.
C. 209A is a “statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999), quoting from Commonwealth v. Gordon, 407 Mass. 340, 344 (1990).
The statute attempts to balance sensitive issues, and often brutal aspects, of fundamental human relationships.
"They are under considerable stress because by the very nature of the process they are required to reveal to strangers details of intimate
159 relationships that have disintegrated into violence and, indeed, even hatred." Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999).
The Legislature intended the c. 209A judicial process to be as "expeditious and as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. 592, 598 (1995).
It has been recognized that trial judges can be sensitive to the difficulties of pro se litigants, and although some leniency is appropriate in determining whether a pro se litigant meets the requirements of procedural rules, the rules bind pro se litigants as they bind other litigants. Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985); Mains v. Commonwealth, 433 Mass. 30, 35 (2000).
And, with great respect, we note that "[j]udges often must deal with large numbers of these emotional matters in busy court sessions." Ibid. "
A judge must consider carefully whether serious physical harm is imminent and should not issue a G. L. c. 209A order simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience." Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).
Judges have been instructed to be especially sensitive, and to examine such cases with restraint and compassion, see Commonwealth v. Contach, 47 Mass. App. Ct. at 253, "in the context of the entire history of the parties' hostile relationship." Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).
In the light of these ponderous, demanding, somewhat conflicting, and complicated circumstances, many of which are beneath the surface of complex lives, we state our understanding of the judicial inquiry and procedure upon a complainant's request that a c. 209A order be made permanent.
Permanent order.
In 1990, the Legislature rewrote the statute, adding language that expressly grants the judge discretionary authority to "enter a permanent order" at the
160 renewal hearing, generally, the date set in the original order when "the order is to expire" and "the matter will again be heard." Crenshaw v. Macklin, 430 Mass. 633, 634-635 (2000).
There is no presumption that the order be continued; and no entitlement that the order be made permanent. The order expires unless extended after a judicial determination, essentially, a new finding, that the plaintiff continues to require protection from "abuse" as explicitly defined in c. 209A, 1 -- in this case, requiring a finding that a permanent order is, in fact, what is reasonably necessary to protect Jones from being placed "in fear of imminent serious physical harm" by Gallagher. See Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 309 (1998) ("extension of an annual order pursuant to 3 . . . is . . . by no means automatic"); Pike v. Maguire, 47 Mass. App. Ct. at 929-930.
There is no burden on a defendant to testify or present evidence. "The burden is on the complainant to establish facts justifying the . . . continuance of an abuse prevention order. . . . The plaintiff must make the case for the awarding of relief." Frizado v. Frizado, 420 Mass. 592, 596 (1995).
"Although it is not expressly stated in G. L. c. 209A, . . . [the] plaintiff must make a case for relief by a preponderance of the evidence." Id. at 597. See Smith v. Joyce, 421 Mass. at 522.
Evidentiary use of initial order and record.
The mere fact that a c. 209A order issued in the past, standing alone, is not enough for a judge to conclude, on a request for renewal, that "additional time [is] reasonably necessary to protect the plaintiff." G. L. c. 209A, 3.
From the record in this case, we are concerned that the judge may have acted upon a presumption that a complainant is entitled to have a one-year, after-notice order made permanent, absent the defendant being able to prove "extraordinary conditions" to persuade the court otherwise.
It appears that in making the order permanent the judge inappropriately used the mere existence of the earlier order, issued by a
161 different judge, at a different time, as the sole basis for making the order permanent.
The permanent abuse prevention order is therefore vacated.
162 ARE YOU IN OR OUT OF THE ZONE OF
PROTECTION?
Does a Machine Gun Bullet Travel More Than a Mile?
DIANE L. LITCHFIELD vs. PAUL M. LITCHFIELD., 55 Mass. App. Ct. 354 June 27, 2002.
Abuse Prevention. Protective Order. Public Policy. Practice, Civil, Judicial discretion.
William G. Small for Paul M. Litchfield. Geoffrey H. Lewis for Diane L. Litchfield.
Facts. September 29, 1995 divorce filed. Divorce heard by Judge Ginsburg. C. 208, § 34B order entered by Judge Ginsburg. • Paul ordered to stay at least: 500 yards from the plaintiff and One mile from her home. June 3, 1977 hearing: • Paul brought to court pursuant to a writ of habeas corpus. • Paul was then incarcerated at M.C.I, Cedar Junction, on a sentence for possessing a machine gun and silencer. October 31, 1997 - renewal hearing before Judge Ginsburg. • Diane sought to modify and make permanent c. 209A order while keeping the geographic restrictions. Over a period of ten years, including when she had been Pregnant with her first child, Paul repeatedly beat and
163 threatened her. Paul also threatened her brothers and father. Paul was in prison for various charges including: · Assault and battery against Diane; and · For possessing a machine gun and silencer. Diane said the children were afraid of Paul. Diane was very fearful of Paul, even now in court, and would never feel safe. • Paul sought to reduce the geographic terms of order. His mother, friends and business contacts lived within the one-mile radius of the plaintiff's home. Under present order he is precluded from visiting his family and from conducting business in the town in which he had lived his whole life. • Permanent c. 209A order entered: Contained the same terms as a previous order issued under G. L. c. 208, § 34B. Defendant agreed to permanency, but not to the geographic terms. • Paul again ordered to stay at least: 500 yards from the plaintiff and one mile from her home. Defendant appeals. Appeals Court.
Paul claims the geographic restrictions contained in the order are unreasonable and unconstitutional.
Judge has broad discretion to enter order. Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). See Kindregan & Inker, Family Law and Practice § 57.7 (2d ed. 1996).
164 The Commonwealth's public policy is “against domestic abuse -- preservation of the fundamental human right to be protected from the devastating impact of family violence." Champagne v. Champagne, 429 Mass. 324, 327 (1999).
Determination of the distance sufficient to provide an appropriate zone of protection for an abused person or family depends upon the facts of each case and the judge's assessment of the threat posed by the abuser.
In view of the criminal assaults and batteries upon Diane and Paul’s prior illegal possession of a machine gun, the judge did not exceed the wide discretion accorded him by G. L. c. 209A, § 3, in concluding that the circumstances warranted the relief ordered.
If the record did not indicated the extreme danger posed to Diane, particularly by Paul’s possession of a machine gun and silencer, the imposition of such a great distance in a stay away order should have been accompanied by findings explaining the unusual order.
Paul fears he may unknowingly violate the 500-yard order.
Paul "cannot be convicted of violating a 'no contact' [or stay away] order issued under c. 209A where the contact occurs in circumstances where [he] did not know, and could not reasonably have been expected to know," of the proximity of the plaintiff or his children. Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493 (2002).
The "'long-standing' common-law principle is that, absent contrary indication from the Legislature, it is assume the Legislature did not intend to make a crime out of an accident or mistake.
165 Commonwealth v. Finase, 435 Mass. 310, 315 (2001), quoting from Commonwealth v. Collier, 427 Mass. 385, 388 (1998). Commonwealth v. Raymond, 54 Mass. App. Ct. at 493.
So ordered.
166 DADDY’s CONDUCT IS FAR FROM PERFECT - BUT IT’S NOT “ABUSE”
Next time, Do You Admit the DSS Report
BRITTANY SZYMKOWSKI by her mother and next friend, Christine King-Leland vs. PATRICK SZYMKOWSKI. 57 Mass. App. Ct. 284 February 5, 2003.
Case heard by Edward J. Rockett, J. Patrick Szymkowski, pro se.
Facts. January 1998: Patrick (dad) and Christine (mom) divorce Mom remarried, now known as Christine King-Leland. Judgment: • Shared legal custody of three minor children. • Primary custody with mom. • Dad had regular visitation with the child, Brittany. Relations between dad and mom have been hostile and distant. February 2000: Dad took Brittany on 5-day skiing trip to Vermont. Brittany then 7 years old. Brittany complained of four events during that trip. • 1. On Saturday morning, while in bed at a motel where she and dad shared the available bed, Brittany said that she missed her mother. That annoyed dad who kicked Brittany "hard" in the back of her legs.
167 • 2. Brittany woke up in the middle of the night and asked for a glass of milk. Dad said, "Wait, I'm finishing a dream . . . ." Dad related dream: · Brittany was on the floor playing. · Dust bunnies and monsters came out from under the bed and cut her with a knife until she died. · Dad took the dust bunnies and monsters outside, poured gunpowder on them and killed them. • 3. On Wednesday morning, day 5 of ski trip, Brittany said she did not feel well and did not want to go to ski school, in which dad had enrolled her. · Dad told her that "quitters never win, and winners never quit." Brittany reported that the defendant, by way of emphasis, threw an empty plastic milk container at her that hit her foot. • 4. On the way back from Vermont, dad stopped with Brittany at a K-Mart store in N. H. to buy a piece of jewelry for her. · The two became separated when dad walked to a cashier to conclude his purchase. · Brittany was looking at "pretty pink Easter eggs." · Dad asked a customer service representative to page his daughter but spotted her before a page went out. · Loud enough for Brittany to hear, and for her benefit, Dad said to the customer representative, "Don't call the police." · Dad then took Brittany aside and struck her twice with his hand under her chin. On one occasion, dad: • Pinched Brittany's arm causing her “physical harm that resulted in bruises." • Angrily pushed Brittany into the back seat of a car "and press[ed] and pin[ned] her down."
168 Judge’s findings noted with disapproval that dad frequently had shared a bed with Brittany in motel or hotel rooms when traveling with her. Brittany did not enjoy visits with her dad; and wished to avoid them as the visits upset her. Dad and Brittany should attend counseling Someone made a non-mandated report of abuse filed under G. L. c. 119, § 51A Judge sustained objection to dad offering DSS social worker’s § 51B report that the allegations of abuse and neglect by the dad were unsupported. C. 209A order entered against dad.
169 Appeals Court. (Kass, J.)13
[For the Law, please turn to Chapter 209 A Conclusions of Law, p. 65 supra.] By way of summary, we have a dad who told his 7-year old about peculiar and frightening dreams; tossed a milk container at the child; cuffed her under the chin in irritation; gave her a kick in the back of her legs while both were in bed, again because he was irritated; and pinched his daughter on the arm so that it left a mark.
There are distinct overtones of the use of c. 209A as a weapon in circumstances of reciprocal hostility between divorced parents and differences, as well as genuine concern, about how to deal with a child.
Dad is hardly entitled to an "A" grade as a parent. Dad’s conduct is unacceptable parental behavior. But c. 209A is not designed as a prod toward better parenting. C. 209 A aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child). Violence to children may not be tolerated, and c. 209A is part of the arsenal to prevent such violence. Abuse that warrants a protective order in the c. 209A sense implicates physical harm or anticipation of imminent serious physical harm. See Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
13Kass has a very sensentive nose. As in Woodridge v. Hickey, another opinion he wrote, he can smell when the plaintiff’s actions are in the nature of seeking a bargaining chip in a divorce. This brings to mind Henry Kissinger’s comment about President Nixon: “When everyone is out to get you, it is not paranoid to think so.”
170 The facts in this case lie more on the intemperate parenting side of the line than the parental violence side of the line. Cf. Cobble v. Commissioner of the Dept. of Social Serv., 430 Mass. 385, 391-393 (1999). It misconceives the level of social pathology at which c. 209A aims, however, to categorize the defendant's conduct as abuse within the meaning of that statute. A court concerned that a parent may be interacting with a child in hurtful ways should consider the less draconian but equally, if not more, effective measures that are available, e.g.: . Modification in the custody and visitation components of the divorce judgment . Supervised or cessation of visitation pending the further order of the court.
Admissibility of DSS Report. On hearsay grounds, probate court denied admissibility to Dad’s offer of a DSS social worker’s 51B report - not supporting allegations of abuse and neglect. In care and protection (G. L. c. 119, §§ 24-26) and termination of parental rights (G. L. c. 210, § 3) - cases involving the care and custody of children, a judge, in the exercise of discretion, may admit in evidence and consider the factual content of such government reports, while rejecting the social worker’s conclusion. See Adoption of George, 27 Mass. App. Ct. 265, 269-275 (1989); Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990); Adoption of Irene, 54 Mass. App. Ct. 613, 620 n.8 (1990). Those considerations also come to bear in c. 209A proceedings. The very nature of c. 209A proceedings "is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. at 598. "[T]he rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on . . . The process must be a practical
171 one." Id. at 597-598.
Held: The conduct described by the Probate Court judge as the basis of a c. 209A order against the defendant did not, within the meaning of the statute, involve the infliction of physical harm on his daughter -- she was seven years old at the time of the c. 209A hearing -- nor did the defendant place her in fear of imminent serious physical harm.
Order issued under G. L.c. 209A is vacated.
172 JESSE’S CLAIM THAT JANET MADE HIM DO IT - FORCED HIM TO VIOLATE THE 209A ORDER ISSUED AGAINST HIM - DOES NOT
WASH.
Fear of 209A a order being enforced against you because you violated it, even if other party encouraged the behavior, is not the kind of “abuse” which supports a no-contact order against the other party.
JESSE C. UTTARO vs. JANET B. UTTARO. 54 Mass. App. Ct. 871 ( 2002)
Case heard by Sheila E. McGovern, J.
Facts: August, 1998: Waltham District Court. · Janet proves she was physically and otherwise abused by Jesse. · G. L. c. 209A, § 3, abuse prevention order issues against Jesse from · Jesse ordered to refrain from abusing and contacting Janet, stay away order (50 yards) (except O.K. to page their children), leave and stay away from marital residence and Janet's workplace, surrender any firearms, stay away from the marital vehicle, pay 1st and 2nd mortgages on residence and return funds to a joint bank account. · Janet awarded custody of their three children. · Children resided with Janet in Waltham home. · Order to expire on December 3, 1998. September 8, 1998: · Jesse files divorce complaint in Middlesex Probate Court. · 209A order modified by a Probate Court judge to allow Jesse telephone contact with the parties' three children.
173 · In all other respects, order remained the same. December 3, 1998: District Court order expired. January 12, 1999: · Janet obtained another G. L. c. 209A order from the Middlesex Probate and Family Court, presumably showing a continuing need for protection. January [21], 1999: · Jesse did not appear on the return date. · Order extended to January 21, 2000. Summer 1999: · Jesse moved back into the marital residence with the parties' children -- two daughters (then age 18; 19) and son (15). · Janet took up residence on her own. · Janet maintains close contact with the children, picking them up and driving them to various locations. · Interaction involving the children caused the parties to clash. Middle of summer 1999: · Middle child in hospital. · Her brother tried to contact his sister or find out about her condition by telephone. · Call was directed to Janet, who was at daughter's bedside. · Per Janet, their conversation was rudely interrupted: Jesse grabbed telephone from the son. Cursed at Janet for not disclosing that their daughter was in the hospital. Waltham District Court: · Janet applied for a criminal complaint against Jesse · Jesse arrested. July 15, 1999: · Probate Court hearing on Jesse’s motion to vacate c. 209A order, supplemented with an affidavit, was allowed. · Janet did not appear at this hearing. July 19, 1999: · Janet obtains another 209A order from the Probate Court. · Returnable on July 22, 1999. July 22, 1999: · Both parties present, before a different judge (McGovern, J.) · Jesse applied for a G. L. c. 209A order to protect himself from what
174 he claimed were Janet’s selective prosecution of prior orders against him. · Conflicting testimony presented on whether Janet unjustifiably had Jesse arrested for violations of the no-contact orders. · Acrimonious and emotional hearing. · Parties’ vitriolic comments got out of hand. · At one point, the judge suggested a psychiatric referral. · Judge's patience taxed as she unsuccessfully tried to broker an acceptable arrangement to accommodate the parties' needs. August 11, 1999: Judge issued written findings and rulings: · Jesse's application for G. L. c. 209A relief does not indicate which definition of abuse he invoked. · Neither Jesse’s affidavit nor testimony include any details of either actual or attempted physical or sexual abuse. · Janet places Jesse at risk for arrest from her "unilaterally acting different [from] the restraining order." · Janet had Jesse arrested on the basis of conduct she either initiated or exaggerated out of proportion. · Janet "selectively [enforced] existing restraining order alleging violations" in two questionable instances: (1) Above mentioned hospital telephone call. (2) June 14, 1999: Jesse drove in front of her home while she was having an outdoor barbeque, honking his horn and shouting epithets as he drove past. · Janet went to former marital home, repeatedly contacted Jesse by telephone, and went out to dinner with Jesse. · Janet's reactions to Jesse's vexatious behavior “placed [his] liberty in jeopardy in that she has forced him to possibly violate the existing restraining orders . . . issued to him, thereby subjecting him to abuse.” · July 19, 1999 order against Jesse extended until July 21, 2000. § 3 order against Janet, not to contact Jesse. Janet appeals.
Appeals Court: Jesse did not file a brief in this appeal or appeal from August 11, 1999 order. Even though order against Janet expired and is technically moot, [case law
175 permits the appeal to continue]. Burden of proof , by a preponderance of the evidence, was on Jesse. Frizado v. Frizado, 420 Mass. 592, 597 (1995). The c. 209A, § 1 language defining abuse - "attempting to cause or causing physical harm" or "placing another in fear of imminent serious physical harm" - closely approximates the common-law description of assault ... requires proof of some act that places the complainant in reasonable apprehension that force may be used.” Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975). Complainants of "[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress," are insufficient. Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638-639 (1998). If mutual restraining or mutual no-contact orders are issued, the court must make specific written findings of fact and provide a “detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order." c.209A, § 3. (Emphasis supplied). Nothing in the record supports a finding that Janet "abused" Jesse, as the cases have defined that term in the statute. Applications for retaliatory abuse prevention orders should be allowed only if the predicate conditions are shown and not as a prophylactic agent to prevent putative violations. There is no authority in c. 209A or case law containing any authority allowing the fear of arrest, even upon innocent contact, as a basis for a reciprocal restraining order. The § 3 requirements reflect a legislative policy against the issuance of mutual restraining orders except in rare instances. Mutual restraining orders create confusion for law enforcement authorities who must interpret conflicting terms contained in the protective orders and for the parties and the courts, because each party has been directed not to
176 contact one another. Mutual restraining orders chills the abuse prevention system established by G. L. c. 209A, placing the victim in fear of the consequences of strict (or lax) enforcement of prior orders, particularly where "contact" has been broadly interpreted. No need to vacate order "nunc pro tunc" as § 7 mechanisms have sufficient safeguards to ensure the order is destroyed and Janet’s name taken out of the registry. August 11, 1999 order prohibiting Janet from having contact with Jesse, is vacated. GLN Comment: Hey, it only took 3 years to get the order vacated.
177 You’ve Got Discretion - Now Exercise It Wisely, Damn It!
Refusal of Judge to Exercise Discretion in 209A Case
WENDY LONERGAN-GILLEN vs. MICHAEL J. GILLEN. 57 Mass. App. Ct. 746 October 8, 2002. - April 9, 2003 14 [6 months]
Law:
Until 1990, G. L. c. 209A, §§ 3 did not expressly authorize permanent orders. In 1990, an amended version of § 3 (St. 1990, c. 403, § 3) explicitly permitted the entry of permanent orders at a renewal hearing.
G. L. c. 209A, § 3 now provides: "Any relief granted by the court shall be for a fixed period of time not to exceed one year ... If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order." (emphasis added).
Note: Ten years after 1990 amendment, Court “Guidelines for
14It took The Appeals Court some six months to issue this opinion after the oral argument. One wonders what the in-fighting was before the panel agreed on the language of the opinion.
178 Judicial Practice: Abuse Protection Proceedings § 6:08 ": (rev. 1997) stated, as late as December, 2000, that an order "may be extended for up to another year."
Champagne v. Champagne, 429 Mass. 324, 327 (1999) Case addressing whether G. L. c. 208, § 18, empowered a probate court to issue permanent orders, the court stated [in dicta] that "[a]lthough parties may receive c. 209A protective orders to supplement a divorce decree, they must renew these protective orders annually."
Crenshaw v. Macklin, 430 Mass. 633 (2000) (District Court judge has the discretion to issue a permanent order).
Facts:
Parties divorced in 1998. October 5, 1999 - Woburn District Court: First temporary abuse prevention order issued against Mike After another hearing, at which Mike did not appear: order further extended to October 5, 2000. Mike had a Kansas address; and was served with the order, in hand. October 5, 2000 - Hearing before Douglas W. Stoddart, J. Mike does not show, but he is ordered not to contact the couple's two minor children and to stay at least one hundred yards away from them. Wendy’s counsel asked for a permanent order. Judge replied: "I'll give you a year . . . I think due process requires annual review dates. I don't want to do an indefinite." "There's a big dispute among judges. Some judges are [entering permanent orders] and some aren't."
179 Wendy’s counsel: "The [Supreme Judicial Court] just decided this issue . . . and made clear that a District Court judge has the discretion to issue a permanent order." Judge: "Yeah, I know some, some are doing it. . . . I don't think there's any great harm to due process to come in at least once a year to review what's going on." Wendy’s counsel: It is difficult for Wendy to "relive this year after year." Judge: "I don't think we as judges make it real difficult for litigants . . . . I just have a philosophical difference with you. I don't see the great harm that you do in reviewing these once a year." Judge, without taking or alluding to any evidence, denied the request for a permanent order and approved a one-year extension, saying: "My guess is that maybe half the judges do grant these indefinitely, so next year, you may have a good opportunity to have that." Appeal:
Wendy appeals from denial of her request for a permanent abuse protection order.
Discussion.
Any confusion about judge having power to enter permanent protective order was resolved by Crenshaw v. Macklin - decided 10 months before this hearing.
SJC held that "G. L. c. 209A, § 3, empowers a judge . . . to issue a permanent protective order at a renewal hearing." Id. at 633.
180
At “a renewal hearing, a judge's discretion is broad: [a judge] may permit the existing order to expire without renewal; [a judge] may issue a permanent order; or [a judge] may issue an order of shorter duration of 'any time reasonably necessary' to protect the abused person." Id. at 635.
Judge recognized he had discretion to enter a permanent order.
This case presents the troubling picture of a judge who does not even purport to exercise permitted discretion and instead idiosyncratically applies a self-imposed limitation upon his remedial jurisdiction.
The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options.
Discretion "implies the absence of a hard-and-fast rule" and may, in some settings, encompass taking no action.
Proper exercise of judicial discretion requires more than avoiding "arbitrary determination, capricious disposition, or whimsical thinking." It imports a willingness, upon proper request, to consider all of the lawfully available judicial options.
"Where discretion to grant relief exists, a uniform policy of denying relief is error."
It is error for a judge to refuse to exercise discretion. Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).
181 It is error to refuse, on the basis of personal preference or philosophy, a request to give consideration to a permanent order permitted by G. L. c. 209A.
Such consideration need not be extensive or formal, only conscientious. See, FN. 9 (printed at end of this summary).
Judge's due process concerns were misplaced. The due process rights of a defendant in a G. L. c. 209A proceeding are amply protected.
Also, the "permanency" of an order is only theoretical, for it always is subject to modification under G. L. c. 209A, §§ 3, which provides that "[t]he court may modify its order at any subsequent time upon motion by either party."
Holding: Denial of plaintiff's request for a permanent order is vacated. Case remanded to the District Court for further hearing.
Footnote 9: Given the foreclosing nature of the judge's remarks and the fact that "[a]t a hearing on the plaintiff's request for an extension . . . the plaintiff is not required to re-establish facts sufficient to support that initial grant of an abuse prevention order," Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001), counsel may be excused from making a formal offer of proof supplementing the information set out in the plaintiff's affidavit. It is also noteworthy in this regard that the judge extended the initial order without hearing any evidence.
Compare Jones v. Gallagher, 54 Mass. App. Ct. 883, 890 (2002) ("The mere fact that a c. 209A order issued in the past, standing alone, is not enough for a judge to conclude, on a request for renewal, that 'additional time [is] reasonably necessary to protect the plaintiff.' G. L. c. 209A, § 3").
182 Privileged and Protected Speech Stops Here!
Disruption of Court Proceedings.
Advise your clients NOT to tell the judge: “I hope you would die, too."
COMM. v. PAUL V. TRIMBOLI, JR., No. 01-P-1076. April 7, 2003.
Probate Court proceedings: Former wife of defendant sought two restraining orders. Extension hearing. Hearing on possible visitation by defendant with his son. Ex - wife testified: ll. Defendant said to her that he hoped her father would die. Defendant testified: · Defendant admitted having made the statement. · Defendant looked at ex- wife and said, XXII. "Do I hope you would die, too? I do. You're an evil person." This statement gave the probate judge the "chills." Probate judge (judge) found that to be a direct threat to the ex-wife's physical safety; and told this to defendant. Lunch break. Hearing resumed.
Judge ruled: · The restraining orders would be extended. · Visitation issue taken under advisement.
183 Defendant asked how long that would take. Judge said there was no specific time period. Defendant said: "I just want to state for the record that I hope you would die, too."
Case recessed Defendant taken into custody. XLI. Judge testified he was emotionally shaken by the statement, which he took as a threat. Judge went to his office and spent about forty-five minutes talking to the State police. Ex-wife, her lawyer and child waited for judge to conclude the matter. Defendant disrupted his own case and delayed three scheduled pretrial hearings.
Defendant charged with: Threatening to commit murder Disrupting a court proceeding.
Jury Trial: Defendant acquitted of the threatening to commit murder. Defendant found guilty of disrupting court proceeding. Defendant appeals from the conviction.
Appeals Court:
Although testimony finished, the judge stated he had not yet adjourned the proceedings. If his case was concluded, three other cases were waiting, but were delayed.
Cannot say, as matter of law that court proceedings were not disrupted. Jury warranted in convicting the defendant of "willful disruption of
184 proceedings of any court." G. L. c. 268, § 13C.15
Judgment affirmed.
15In Commonwealth v. Diamond, 46 Mass. App. Ct. 103, 105 (1999), a crude and vulgar comment to counsel, not to the judge, did not disrupt the court's business.
185 WHEN THERE IS EVIDENCE OF SPOUSAL OR CHILD ABUSE, COURT MUST COMPLY WITH G. L. c. 208, § 31A BY MAKING SPECIFIC FINDINGS.
Its no joke: Findings must be made to show the judge had made provision "for the safety and well-being of the child and the safety of the abused parent."
ANDREA MAALOUF vs. ELIE SALIBA. 54 Mass. App. Ct. 547 (2002)
The Law
General Laws c. 208, § 31A, c. 209, § 38, and. c. 209C, § 10 requires the Probate and Family Court judge to "consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child" when issuing any temporary or permanent custody order. Statute codified requirements expressed by the Supreme Judicial Court in Custody of Vaughn, 422 Mass. 590, 599-600 (1996). A finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred, creates "a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent." General Laws c. 208, § 31A, c. 209. General Laws c. 208, § 31A, c. 209 defines abuse as "the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or
186 causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury." A "serious incident of abuse" is defined as "(a) attempting to cause or causing serious bodily injury; (b) placing another in reasonable fear of imminent serious bodily injury; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress." Under the statutory scheme, the definition of "bodily injury" has the same meaning as provided in G. L. c. 265, § 13K, which defines bodily injury as "substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin." G. L. c. 208, § 31A. Upon making a finding that a pattern or serious incident of abuse has occurred, the court is required to make written findings of fact within ninety days as to the effects of the abuse on the child. G. L. c. 208, § 31A. Such findings must demonstrate that the temporary or permanent custody order "is in the furtherance of the child's best interests and provides for the safety and well-being of the child." G. L. c. 208, § 31A. G. L. c. 208, § 31A states that if visitation is ordered to the abusive parent, "the court shall provide for the safety and well-being of the child and the safety of the abused parent." G. L. c. 208, § 31A identifies nine possible orders that the court may consider in order to achieve the statute's objective of providing "for the safety and well-being of the child and the safety of the abused parent." "(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party; (b) ordering visitation supervised by an appropriate third party, visitation center or agency; (c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's
187 treatment program as a condition of visitation; (d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation; (e) ordering the abusive parent to pay the costs of supervised visitation; (f) prohibiting overnight visitation; (g) requiring a bond from the abusive parent for the return and safety of the child; (h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and (i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent." G. L. c. 208, § 31A’s requirements apply even in cases where the judge does not award custody to the abusive partner. Quirion, Increased Protection for Children From Violent Homes, 16 Mass. Fam. L.J. 67, 71 & 77 n.51 (1998) (discussing legislative history of statute which demonstrates intent of Legislature that statute apply regardless of who is awarded custody).
Facts. June 1994: Parties married. July 1996: triplets born. November 10, 1996: Parties separated, after an incident of abuse. Beginning in 1994: father swore at the mother and verbally abused her on a daily basis. Beginning in June, 1995: father occasionally resorted to physical violence. June 3, 1995: while he was driving, he grabbed her throat and said, "Shut up or I will throw you out of the car." December 6, 1995: again while driving, father put his hands over
188 her mouth, and when she pushed his hands away, he grabbed her by the throat and called her various obscene names. October 20, 1996: father again grabbed her by the throat and called her various obscene names. November 10, 1996: father became angry when he could not locate photographs of his family, screamed and swore at her, kicked her in the buttocks, grabbed her jaw and threatened to knock out her teeth, and grabbed her by the throat and threatened to push her down the stairs. Mother had a strong and genuine fear of the father. November 27, 1996: divorce filed 8-day trial Findings: · It is in the children's best interests to maintain the close bond they have formed with the father and his family, including his mother and sister. · The father and his family provide a safe, appropriate, and loving environment for the children during visitations. · The father cares for the triplets in a loving and appropriate manner. · The children respond well to the father and are very affectionate to him. · The father needs assistance with the children and ordered that he arrange for assistance from specified family members or an approved family service officer. Judgment: (David H. Kopelman, J. ) · Divorce to mother - cruel and abusive treatment · Permanent restraining order prohibiting father from contact with mother. · Mother awarded legal and physical custody of couple's young triplets. · Based on finding that there was a risk that the father would unlawfully remove the children from this country, order:
189 · Supervised visitation until father met certain conditions, including relinquish control of his passport, communicate certain information to the Lebanese Embassy, and post a bond. Mother appeals from the portion of the order granting the father unsupervised visitation of their triplets upon meeting the foregoing security requirements.
Mother argues on appeal Because mother was subjected to abuse at the hands of the father, unsupervised visitation would not adequately provide for the safety and well-being of the children until the father participates in and completes a certified batterer's treatment program. See G. L. c. 208, ' 31A. Cf. Custody of Vaughn, 422 Mass. 590 (1996). Judge failed to make sufficient findings regarding the impact on the children of the father's abusive behavior toward her and that the findings therefore did not support unsupervised visitation under G. L. c. 208, § 31A.
Appeals Court Judge’s detailed, comprehensive findings, do not permit conclusion he made findings sufficient to satisfy the statute. "Domestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication." In Custody of Vaughn, 422 Mass. 590, 599 (1996). Judge found that father resorted to physical violence on four occasions and concluded that the mother had suffered abuse at the hands of the father. It is unclear whether the judge would have determined that this was a pattern of abuse or a serious incident of abuse within the meaning of the statute. There is no finding regarding the effect of the abuse of the mother on the children.
190 Judge considered safety and well-being of the children in making the custody determination and taking precautions to prevent their removal from this country. It is unclear whether he considered the safety and well-being of the children in granting unsupervised visitation, as required by G. L. c. 208, ' 31A.[6] The judge provided for the safety of the mother by ordering the exchange of children to occur in the presence of an appropriate third party, an option contemplated by the statute. There is no evidence that the father abused the children. Even with finding that father had a loving and appropriate relationship with the children, in the absence of the necessary findings, the requirements of Custody of Vaughn and G. L. c. 208, § 31A, have not been satisfied.
Holding: Vacate that portion of the judgment that permits unsupervised visitation by the father after the father meets certain conditions. Case is remanded to the probate court for explicit findings as required by G. L. c. 208, § 31A. Judge does not have to hear further testimony if he does not consider that necessary. Parties should be provided the opportunity to be heard and the judge should make explicit findings on the matters set out above, as identified by G. L. c. 208, § 31A. Custody of Vaughn, 422 Mass. 590, 600 (1996); R.H. v. B.F., 39 Mass. App. Ct. 29, 41 (1995).
191 A VERY INTERESTING CASE
Judgments for payment of money start to bear interest from the date of entry - each date on which the money is due.
Be Careful NOT to bring a contempt until you get an order from the Judge requiring issuance of a Writ of Execution on Judgment which calculates interest from date of the order. Otherwise, you will get interest only from the date of filing a compliant of contempt.
A permissible delay in making the payment (e.g. 90 days) does NOT delay accural of interest!
NICHOLAS KARELLAS vs. STACY KARELLAS. 54 Mass. App. Ct. 469 (April 11, 2002)
January 14, 1993 - Divorce filed in Middlesex Probate Court.All matters heard by Sheila E. McGovern, J.
The Law
By statute, "[e]very judgment for the payment of money shall bear interest from the day of its entry." G. L. c. 235, § 8, as appearing in St. 1983, c. 652, 2. Osborne v. Biotti, 404 Mass. 112, 113-114 (1989).
192
A judgment is the act of the trial court finally adjudicating the rights of the parties including a decision by the court that a party shall recover a sum certain. Osborne v. Biotti, 404 Mass. 112, 113-114 (1989).
General Laws c. 235, § 8, is applicable to equitable relief expressed in terms of an order for the payment of money. "[A]n equity decree for the payment of money is a judgment made upon a finding of a judge and thus bears interest from the date of the judgment or award to the date the judgment is satisfied." Johnson v. Hazen, 333 Mass. 636, 638 (1956). See Hobbs v. Cunningham, 273 Mass. 529, 536 (1930); Boyer v. Bowles, 316 Mass. 90, 95 (1944); New England Factors, Inc. v. Genstil, 322 Mass. 36, 46 (1947).
The court in Osborne referred to the language of Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), in its interpretation of the statute. The language in Mass.R.Dom.Rel.P. 54(a) is identical.
Mass.R.Civ.P. 54 (f): " (f) Interest. Every judgment for the payment of money shall bear interest up to the date of payment of said judgment. . . . Unless otherwise ordered by the court, interest from the date of entry of a judgment to the date of execution or order directing the payment of said judgment shall also be computed by the clerk, and the amount of such interest shall be stated on the execution or order."
Rule 54 (f) was added to clarify the problem identified in Stokosa v. Waltuch, 378 Mass. 617, 620 (1979), as to the duty of the clerk to compute both prejudgment and postjudgment interest. Trinity Church in Boston v. John Hancock Mut. Life Ins Co., 405 Mass. 682, 684-685 (1989).
193 Rule 54(f) merely clarifies the duties of the clerk and does not establish the substantive rights of a party to interest on a judgment. See Stokosa v. Waltuch, 378 Mass. 617, 618 (1979).
General Laws c. 215, § 34A, as amended through St. 1985, c. 342, provides: "Actions for contempt against any party for failure to obey any judgment of the probate court relative to support of a wife or children or affecting the custody of children shall be commenced in accordance with the rules of probate courts applicable to domestic relations matters. . . . In entering a judgment of contempt for failure to comply with an order or judgment for monetary payment, there shall be a presumption that the plaintiff is entitled to receive from the defendant, in addition to the judgment on monetary arrears, all of his reasonable attorney's fees and expenses relating to the attempted resolution, initiation and prosecution of the complaint for contempt. . . . Any monetary contempt judgment shall carry with it interest, from the date of filing the complaint, at the rate determined under the provisions of [G. L. c. 231, 6C]." (Emphasis added).
Contempt is a remedy to compel compliance with a court order, whether a final judgment or interlocutory order. See Cherry v. Cherry, 253 Mass. 172, 174 (1925).
A complaint for civil contempt filed pursuant to G. L. c. 215, § 34A, is the usual method of remedying a failure to pay a continuing order for child support or alimony. See Quinn v. Quinn, 49 Mass. App. Ct. 144, 147 (2000).
A contempt action may be utilized to punish a party for failing to comply with other orders, Benglian v. Benglian, 9 Mass. App. Ct. 891 (1980), or to enforce a debt that becomes due upon the happening of some event. See Mills v. Mills, 4 Mass. App. Ct. 273 (1976).
194
Where the award is announced as a certain monetary sum, G. L. c. 235, § 8, acts to provide interest over any period of delayed payment. To hold otherwise would ignore clear legislative intent in enacting that statute and fly in the face of strong public policy supporting the inclusion of interest on monetary judgments.
Although interest is available upon a finding of contempt, it is not a substitute for statutory interest upon a money judgment under G. L. c. 235, § 8.
Under G. L. c. 215, § 34A, the interest rate is calculated by referring to G. L. c. 231, § 6C, which ordinarily only applies to damages in contract actions.
Because there is no interest rate specified in a contract, the rate of 12% is applicable on a contempt order. See G. L. c. 231, § 6C.
Interest under G. L. c. 215, § 34A, is available as a remedy for ongoing failure to comply with an order for periodic support or alimony that may not qualify as a "judgment for the payment of money" under G. L. c. 235, § 8, and might not thus carry such statutory interest. G. L. c. 215, § 34A, fills in a gap and provides for interest that may not be otherwise available - for example interest on weekly or monthly payments of alimony or child support. See Kennedy v. Kennedy, 20 Mass. App. Ct. 559, 560-563 (1985).
Under G. L. c. 235, § 8, the rate of interest is computed using the same rate as provided for prejudgment interest.
Where there is no statutory prejudgment rate of interest, the 6% standard statutory rate found in G. L. c. 107, § 3, applies. See Sharpe
195 v. Springfield Bus Terminal Corp., 406 Mass. 62, 65 (1989); Robbins v. Robbins, 22 Mass. App. Ct. 982, 984 (1986).
Interest on Order of Attorneys Fees. The ordering of interest on an award of counsel fees was upheld as proper in Robbins v. Robbins, 22 Mass. App. Ct. at 984. Compare Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 272 (1985) (no interest accrues on attorney's fees awarded under G. L. c. 93A).
Facts. This was not an amicable divorce. Parties fought bitterly over several years, on many fronts in both the Probate and Superior Courts. There is no need to review the contentious details. Trial lasted several days. Husband ran a dry cleaning business. Large amounts of cash flow. Husband owned some rental real estate. January 12, 1996 Judgment: · No alimony justified from husband to wife. · $100,000 to be paid by husband to wife within 90 days for outstanding child support, outstanding uninsured medicals, needs, and the Wife's share of marital assets. If Husband fails to timely pay, he must convey 24 Pine Street, Belmont, Massachusetts to wife so she can sell it to satisfy husband’s obligation. If no deed from husband, title shall vest under Rule 70 · $45,870 o be paid within 90 days by husband toward wife’s attorney's fees. Judgment also dealt with custody, visitation, support of children, etc. Judgment had no order for payment of interest. February 21, 1996: Husband files notice of appeal.
196 March 4, 1996: Husband moves to stay judgment. July 5, 1996: memorandum and order allowing stay of payment. Eventually: appeal dismissed as husband "failed to proceed with [the] appeal zealously [and] in good faith." Husband appealed dismissal. That appeal was also dismissed for a failure to prosecute. See Karellas v. Karellas, Appeals Court No. 98-P-834. April 1, 1999: · Order, on wife’s motion, for Writ of execution on judgment should issue with interest, until judgment is paid in full. Husband appeals from the order of interest.
Appeals Court The January 12, 1996 order was a final adjudication of the rights of the parties. It was an order for the payment by the husband to the wife of $100,000. It was a "judgment for the payment of money." Under the plain terms of the statute, the judgment bore interest from the date of its entry. The fact that husband was required to pay within 90 days does not affect interest but only whether he could be held in contempt. If assets had been assigned and ordered transferred in order to effect an equitable division, that would not be a judgment for the payment of money and not automatically bear interest. That this order is meant to effect an equitable division does not undermine the character of the judgment as one for the payment of money. The inclusion within the judgment of other orders not requiring the payment of money does not change this result. The fact that the judgment also provided security for the
197 payment of the money does not deprive plaintiff of her statutory right to interest on that portion of the judgment that was an order for the payment of a fixed sum in recognition of an equitable division of the marital estate. When the husband’s appeals were dismissed, wife could have brought a complaint for contempt against husband for his failure to comply with the judgment, but then, interest would only run from the date of the filing of the contempt complaint. G. L. c. 215, 34A. On a contempt, the interest would not have run between the date of the judgment and the final dismissal of the appeal because the husband would not have been in contempt during that time. The statutes serve different purposes as one provides for interest and the interest on a finding of contempt serves a coercive function because it is awarded at a higher rate than the judgment rate.
There was no consequence to the failure of the judge to include mention of interest in the original judgment nisi. The addition of post-judgment interest is an automatic ministerial task and a judge need not expressly allow it. Osborne v. Biotti, 404 Mass. at 117.
Chapter 231, § 6F enhanced interest. The judge also ordered enhanced interest at the rate of 1 ½ times the statutory rate, per G. L. c. 231, § 6F. Appeals from § 6F must go the a single justice of this court, not a full panel. See G. L. c. 231, 6G; Bailey v. Shriberg, 31 Mass. App. Ct. 277, 282-284 (1991). Husband’s single justice appeal was properly stayed pending the outcome of this appeal. See Bailey v. Shriberg, 31 Mass. App. Ct. at 284. Issues relating to the award of § 6F enhanced interest must now be decided in the appeal that is pending before the single justice.
Ordered:
198 Affirm awards of 6% interest on $100,000 and on attorney's fees of $45,870, from January 12, 1996. Issues relating to the award of interest under G. L. c. 231, § 6F, are deferred to the single justice.
199 GIMME BACK MY MONEY! No!
What Happens When An Award of Attorneys Fees is Paid But the Judgment Is Reversed on Appeal?
Subtitle: An Astonishing Legasee
This is a VERY important case setting out a road map for claims of post-successful-appeal re-payment of legal fees.
Practice tip: Get a Stay. Do NOT pay back that money until after the appeal and re-trial.
NANCY L. COX & Edward Mahlowitz, intervener vs. RICHARD E. COX. 56 Mass. App. Ct. 864 (December 31, 2002.)
Edward M. Mahlowitz (John L. Mason, Jr., with him), pro se.John Legasee, Lisa Stern Taylor for Husband Facts:
Probate Court - Round #1: Major point of controversy in case was whether Husband had an ownership interest in land and buildings in the Post Office Square, Lynnfield, area (“Property”). Wife claimed husband fraudulently conveyed this marital asset to his father.
200 Wife filed both divorce and equity action (regarding Property) against husband and his father.
· January 5, 1994: · In Equity action: Agreed that husband’s deed to father was “null and void.” Husband owes father $284,000. Stipulation for judgment. In Divorce case: Parties signed agreement stating husband would be getting Property subject to note to father. Wife’s financial statement listed Property at $350,000. Husband did not list Property on his financial statement. · Judge reviewed both agreements and finds them fair and reasonable. Judgment of divorce.
Probate Court - Round #2 - Before Edward Rockett, J.: After entry of judgment of divorce, wife: • Had second thoughts about signing agreement. • Hires Edward Mahlowitz (Mahlowitz). January 4, 1995 (one day shy of one year): • Wife moves to vacate the judgment and agreement as to the division of marital property. • Wife claimed: · Husband had ownership interest in Property · Failure to list Property on his financial statement prevented the court from being able to assess if settlement was fair and reasonable. · The failure to include Property on his financial statement was a fraud upon the court. · Settlement was not fair and reasonable.
201 • Husband claimed: · Wife knew of Property. · Value of Property was factor in arriving at settlement. · Wife could not prove she settled the case not knowing of the Property and its value. · Wife did not rely on whatever misrepresentation she claimed. May 31, 1995: Husband ordered to file financial statement disclosing “all assets.” _ June 9, 1995: Motion to vacate allowed. • Held: Husband committed fraud on court by failing to disclose equity in Property on his financial statement.
Wife filed complaint for contempt against Husband. Each party filed complaint for modification. Consolidated trial. Mahlowitz filed motion for counsel fees for new trial. Judgment of contempt against Husband: . Mahlowitz sought fees and costs . Award: $1,075.00, presumably pursuant to G. L. c. 215, §§ 34A . Amount was less than ½ sum sought.
December 26, 1995 - New divorce judgment: Prior judgment vacated for fraud. More property to wife. Husband to pay $30,000 to Mahlowitz as contribution to wife’s legal fees.16
16Analysis and fact-finding in this difficult area would be aided immeasurably if the judge had described the basis for the fee award and the considerations underlying it at the time he made the award itself.
202 Citing Brash v. Brash, 407 Mass. 101, 106 (1990), and Grubert v. Grubert, 20 Mass. App. Ct. 811, 819-820 (1985), judge said: "As a result of the defendant's fraudulent conduct and continuous obstructive behavior to discovery, the unraveling of the defendant's financial affairs was extremely difficult and therefore required considerable expense and effort by the attorney for the plaintiff. Hence the court has granted plaintiff's counsel the sum of $30,000 as a contribution towards plaintiff's counsel fees." _ Judge's rationale suggests fees awarded per G. L. c. 208, § 38. $30,000 was less than ½ of what Mahlowitz requested.
Post - Trial #2: Husband paid Mahlowitz the fees awarded. Husband appealed from order vacating judgment and from other judgments, including attorneys fees.
Wife got new counsel for the appeal.
Appeals Court - Round #1: Unpublished Rule 1:28 decision, Cox v. Cox, 44 Mass. App. Ct. 1118 (1998): Probate court judge should not have allowed wife's motion to vacate judgment. Agreement said husband would be receiving Property. Husband’s failure to list Property on his financial statement “was of no importance whatsoever” given all the other documents and facts.
203 It is, “at the very least, inexplicable,” to see counsel’s assertion in wife’s motion to vacate, that the husband’s January 5, 1994 failure to disclose his interest in Property was fraudulent. As in Innis v. Innis, 35 Mass. App. Ct. 115, 117-118 (1993), this was a “morning after” effort to retreat from an agreement now thought to be ill-advised. See Grindlinger v. Grindlinger, 10 Mass. App. Ct. 811, 812 (1980). Judge felt bound to rectify what he saw as an unjust result. Judge cannot undo what parties knowingly, voluntarily, and with the assistance of counsel, agreed to do.
There was no basis to allow Motion to Vacate.
“all orders arising out of the allowance of the motion to vacate and the entry of amended judgment were nullities.”
Original judgment reinstated. Case remanded to probate court to act on husband’s motion to restore parties to status quo ante, consistent with this opinion.
Probate Court - Round #3:
Husband filed: “Motion to Restore Parties to Status Quo Ante Pursuant to Appeals Court Decision."
Judge Rockett, whose orders had been reversed on “appeal abruptly recused himself, sua sponte and without explanation.”
Wife filed for bankruptcy. Wife filed a motion to continue Probate Court proceedings based
204 upon bankruptcy filing.17
Mahlowitz was not served with husband's motion Mahlowitz did not participate in hearing or appeal.
John C. Stevens, III, J. (the motion judge) acted on the husband's motion; and ordered: Wife to take action to restore the husband to his former position. Certain QRDO’s nullified. Wife to pay husband $127,120 previously awarded her. Wife to pay husband $47,301.43 in counsel fees incurred in connection with the trial and appeal.
"[Wife] and her attorney, Edward Mahlowitz, are hereby ordered to pay to [Husband] the amount of . . . $31,075 together with interest at the rate of . . . 12% per annum from May 31, 1996 to date of payment, within . . . 30 days of this Court's order."
Motion judge's rationale for order, presumably based on Appeals court 1:28 decision: The equities favored the husband. Wife and Mahlowitz had been "less than candid with the Court" in bringing the motion pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), which was "without substance," "a meritless proceeding," and prosecuted in "bad faith."
Mahlowitz, upon being notified of order, successfully moved to stay
17It seems that no one understood there was an automatic stay issued by the Bankruptcy Court on the filing of Wife’s petition, the violation of which is not taken lightly by that court!
205 and vacate the order insofar as it concerned him. Sua sponte, judge joined Mahlowitz as a party plaintiff.
Probate Court - Round #4: Motion judge orders a trial limited to determining: "(a) whether the husband paid fees to Attorney, and, if so, how much; (b) whether the payment included interest and, if so, how much; (c) whether any amount was repaid; (d) whether Attorney shall be ordered to repay the award, all or in part; (e) if so, whether interest is applicable; and (f) if so, the rate and amount of interest." April 1, 1999 - limited evidentiary hearing. Mahlowitz ordered to repay husband $31,075. Findings: Mahlowitz initiated the Rule 60(b) proceeding . . . which the Appeals Court found to be without merit. Mahlowitz was notified by counsel for the husband of the appeal. Mahlowitz knew or should have known that if the appeal were successful, all orders made by the judge including those for attorney's fees, were in jeopardy. Judgment is a nullity so it follows the order to pay legal fees to Mahlowitz is a nullity. Only by repayment of the $31,075 can the husband (a party) be restored to the status quo ante contemplated by the Appeals Court decision. Mahlowitz filed and the court allowed a motion to stay payment to husband, pending appeal.
Mahlowitz appealed. Wife did not participate.
206
Appeals Court - Round #2:
Mahlowitz’s grounds of appeal, inter alia: No subject matter jurisdiction in Probate court to order restitution. Motion judge erred in joining him as a party plaintiff. Mahlowitz did not have timely notice that husband was asserting a claim for repayment. Motion judge misinterpreted scope and effect of Appeals Court's memorandum and order.
Held: Subject Matter Jurisdiction: Probate court has broad, flexible and general equity powers. Probate court has power to correct what has been wrongfully done, such as ordering a restitution of monies obtained under the court's statutory authority after the decision has been overturned.
Joinder: Sua sponte joinder was proper. Mahlowitz not technically a necessary party for joinder purposes. Husband had independent cause of action in restitution against Mahlowitz which husband could have filed in probate court. Equities of husband's case for restitution against wife may well have weighed strongly in his favor, but: That result not an inevitability. Wife filed for bankruptcy protection which might affect the equities.
207 Bankruptcy filing could raise concern as to whether the requested restitution might result in the wife becoming a ward of the public. This matter not raised by any party on appeal. Question the propriety of adjudicating husband's motion in the face of the wife's docketed suggestion of bankruptcy absent any indication that relief from the presumed automatic stay of proceedings had first been obtained.
No Timely Notice to Mahlowitz Not fair to say Mahlowitz was on notice that fee issue had been raised on appeal or that, were the fee award tipped on appeal, his retention of it would be put at risk. Husband payment of $30,000 to Mahlowitz was wife's debt paid by husband. That the wife might be required to repay that amount to the husband as a consequence of reversal on appeal does not, of itself, necessarily suggest that Mahlowitz was equally at risk. Mahlowitz was not a named party to that appeal. Does not appear Mahlowitz was served with appellate briefs Rule 1:28 memorandum did not address Mahlowitz's status or liability. Husband did not serve his motion on Mahlowitz. Vacating initial order requiring Mahlowitz to repay the counsel fees and thereafter conducting a limited evidentiary hearing in which Mahlowitz participated, belatedly rectified deficiency in notice as to the restitution proceedings.
Scope of Rule 1:28 decision: Joining Mahlowitz as a party does not transform him into a party ab initio.
208 Remand was for consideration of husband motion to "restore the parties" to the status quo ante as between the two parties - who were the only people before the court. The order to "restore the parties" was not issued in a legal vacuum but within the context of well-established equitable remedies. The memorandum contemplated application of the remedy of restitution, not the mechanical imposition of a foreordained result.
The motion judge mistakenly construed the memorandum as an edict requiring him to do whatever was necessary to put the husband in the position he had been in before the original judgment of divorce was vacated at the wife's behest.
This view had the result of hobbling Mahlowitz’s efforts to raise defenses recognized as legitimate in restitution cases. Given this, the order at issue cannot stand and that a new hearing, governed by the law of restitution, is necessary to determine whether Mahlowitz should repay the counsel fees he had been awarded
The Applicable Law of Restitution: No Massachusetts appellate authority precisely addresses issue of whether a party's former attorney, who was himself neither a named party nor a participant in an appeal, may be ordered to restore a fee awarded him as part of a judgment that has been reversed.
209 "Restitution is an equitable remedy by which a person who has been unjustly enriched at the expense of another is required to repay the injured party.” “The fact that a person has benefitted from another 'is not of itself sufficient to require the other to make restitution therefor.' ... Restitution is appropriate 'only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for [her] to retain it.' ”18 Unjust enrichment is the key predicate to recovery when a judgment has been reversed on appeal.
18 In Keller v. O'Brien, 420 Mass. 820, 821 (1995) (Keller I) the Court vacated the Probate Court's dismissal of husband's complaint for modification, holding for the first time that remarriage, in the absence of an agreement to the contrary, is a prima facie change of circumstances that terminates alimony obligations absent proof of some extraordinary circumstances. The Probate Court's "erroneous judgment" reversed in Keller I was technically not an order to pay alimony but the dismissal of the husband's complaint seeking to terminate or modify the pre-existing order requiring the payment of alimony. Restitution had only been awarded in Massachusetts in cases "where a party has been unjustly enriched because of the breach of some duty, a violation of trust, bad faith, or fraud." Keller II, 425Mass. 774, 779 (1997). Court found that restitution would be unfair because wife had no reason to anticipate, as matter of fact or law, that she would be asked to reimburse her husband for alimony received after her remarriage, and retroactive application of the new rule would be substantially inequitable to the wife. Some courts have ordered restitution where a judgment has been reversed after a party has been ordered by a court to make payment to another, and the judgment has been paid. Restatement of Restitution §§ 74 (1937) ('[a] person who has conferred a benefit upon another in compliance with a judgment . . . is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable . . .')." Keller II, supra at 781. Prospectively, if alimony is not terminated after remarriage and not stayed pending appeal, if the denial is reversed - the payments of alimony pending appeal will not operate as a waiver of any timely claim for a refund of the alimony, and restitution may be ordered dating from the judgment of the Probate Court. Probate judges are in the best position to determine whether any claim of hardship is warranted. Keller II, supra at 785. And, see, Heron v. Heron, 428 Mass. at 542
210 Restitution is not automatically required upon reversal. A party seeking restitution from another party after a judgment has been reversed on appeal may satisfy its initial burden of establishing unjust enrichment by showing that the order compelling payment was ultimately reversed. The burden shifts to the payee party to show why it should not be compelled to repay, whether by virtue of change of position, undue hardship or other limited affirmative defenses, thereby demonstrating that it would not be unjust for the payee party to retain the amount paid. Keller v. O’Brien (Keller II), 425 Mass. 774 (1997) and Heron v. Heron, 428 Mass. 537 (1998) contemplate restitution being demanded by one party from the other party. Neither addresses restitution sought by one party from the other party's lawyer, i.e., a third party. Per Restatement, upon reversal of the judgment pursuant to which payment was made, a nonparty creditor of the initially prevailing party who in good faith received a portion of the judgment proceeds generally will not be required to repay. A nonparty may be liable, however, where the nonparty is effectively a party to the action, such as where an attorney retains portions of the judgment under a contingent fee arrangement. "An attorney or other agent of the judgment creditor who receives payment from the judgment debtor . . . is not liable if the judgment was valid before reversal and if he had no knowledge of any fraud used in securing it. Under the same
211 conditions he is under no duty to repay money which he received on account of the judgment creditor and which he retains as payment for services or for a debt owed by the judgment creditor to him . . . since he received the money as a bona fide purchaser." Cases from other jurisdictions take essentially the view that an attorney acting in good faith is not required to restore monies paid to the attorney in satisfaction of a valid debt incurred for legal services rendered, which monies were received from the opposing party pursuant to a judgment that is subsequently reversed. But other courts have held: "After the reversal of a judgment any person who, although not a party to the action, was a real party in interest and who received payment in whole or in part as the beneficial owner or as one of several owners, is under a duty to restore the amount received by him." Notably, many of these cases involve the active participation of the attorney in the appeal and related proceedings. Third parties should be sorted into two categories: 1. bona fide creditors of the judgment creditor (not liable in restitution) and 2. real parties in interest (liable in restitution). When the third party is an attorney, the nature of the fee arrangement should be a chief consideration in determining the category into which the third party falls. "[A] lawyer who receives a share of a judgment pursuant to a contingent-fee [sic] arrangement does not take the money as a bona fide creditor of the judgment creditor, notwithstanding that the lawyer takes the money in good faith. Between lawyer and client, in such circumstances, the lawyer assumes the risk of non-recovery: this makes the lawyer, not the client's creditor, but the assignee pro tanto [sic] of the client's judgment."
212 Held: A bona fide creditor paid before judgment reversal is not liable in restitution because s/he is entitled to payment regardless of the judgment's validity - so no unjust enrichment by retention of payment. Attorney is not liable in restitution to the judgment debtor upon reversal of the judgment unless the judgment debtor, on remand, proves either that the payment did not discharge an unconditional, bona fide obligation the client had to the attorney or that, although the payment did discharge such an obligation, other circumstances exist that make the attorney's retention of the payment unjust. The foregoing principle applies at least when, as here, the attorney receives the payment directly from an opposing party pursuant to a court order.
Considerations on remand:
The nature of fee arrangement between wife and Mahlowitz. The impact that husband's payment to Mahlowitz had on any bona fide debt existing pursuant to the lawyer-client arrangement at the time of payment. Note: Mass.R.Prof.C. 1.5(d)(1) prohibits contingent fees in divorce cases. Mahlowitz submitted hourly time records in support of his motions.19
19Wife is liable in restitution to husband for legal fees husband paid on her behalf
213 If husband cannot make a satisfactory evidentiary showing that his payment to Mahlowitz performed some function other than the unconditional discharge of a debt for hourly legal services rendered to the wife, then Mahlowitz is to that extent a bona fide creditor. Mahlowitz's conduct of the litigation that generated the aforesaid debt for legal fees. Motion judge indicated : absence of any unethical or improper conduct on Mahlowitz's part. Alluded to statement in 1:28 memorandum, characterizing the allegations in the rule 60(b) motion Mahlowitz filed on the wife's behalf as, "at the very least, inexplicable." Allowance of that motion generated a significant portion of the litigation in connection with which the fees were awarded. Circumstances surrounding Mahlowitz's filing of the motion will bear on whether, satisfaction of his client's unconditional obligation notwithstanding, it would be inequitable, at least as between Mahlowitz and husband, to allow Mahlowitz to retain the paid attorneys fees. If remand judge determines Mahlowitz's conduct of the litigation was such that equity would require him to restore to the husband some portion of the husband's payment for legal fees, then
Any repayment to husband would be subject to the wife's right to show, and, thus, to Mahlowitz's right to
to Mahlowitz. To extent, husband shows he is unable to recover from Wife the full amount pay for her legal fees, he may seek payment from Mahlowitz, the relevant third party.
214 show on her behalf, that her retention of the benefits of the husband's payment to Mahlowitz does not constitute unjust enrichment.
Did some fees result from husband's contumacious conduct.
G. L. c. 208, § 38 fees are not predominantly success driven but designed to level the playing field and allow both sides access to capable legal representation in divorce litigation.
Repayment of portions of the fee awarded under either theory would appear not to be necessary in order to avoid the wife's unjust enrichment and, if so, Mahlowitz's retention of such portions of the fee award would likewise not be inequitable.
The issue on remand is whether Mahlowitz will be unjustly enriched if permitted to retain the court-awarded fees.
Order requiring Mahlowitz to repay the husband $31,075 is vacated.
Case remanded for proceeding consistent with the opinion.
215
Probate Court - No Round #5.
April 24, 2003: Mahlowitz moves for summary judgment. May 12, 2003: Motion for summary judgment allowed (Stevens, J.)
Per John Legasee, Esq.: Husband decided to stop fighting and let Mahlowitz keep the money That was cheaper than continuing the fight. After 10 years, it was over.
Questions:
Would it have been cheaper for Mahlowitz to just give the money back?
Was this a matter of principal or principle?
216 Proving “Something More” is Not Something Easy
Findings Needed to Support Award of Contempt Fees in An Amount Less Than Requested.
No Modification of Surviving Separation Agreement via Contempt
JANICE COPPINGER vs. DANIEL COPPINGER. — Mass. App. Ct. ----, No. 00-P-1197, April 2, 2003.
The Law
Re: Legal fees on a Contempt:
General Laws c. 215, §§ 34A, creates a presumption in favor of an award of reasonable fees and costs for a successful plaintiff in a contempt action.
The presumption "can be overcome only by specific findings supporting a reduction in a request for reasonable fees." T.M. v. L.H., 50 Mass. App. Ct. 856, 863 (2001), quoting from Kennedy v. Kennedy, 23 Mass. App. Ct. at 181.
_ Judge made no findings explaining basis for reduced award, we remand for reconsideration of the issue and entry of the required findings. See T.M. v. L.H., 50 Mass. App. Ct. at 863-864.
Re: Surviving Agreement:
A surviving agreement retains its force as an independent contract.
"[S]omething more than a 'material change of circumstances' must be
217 shown before a judge of the Probate Court is justified in refusing specific enforcement of that agreement." Stansel v. Stansel, 385 Mass. 510, 515 (1982). See Larson v. Larson, 37 Mass. App. Ct. 106, 108 (1994); Cournoyer v. Cournoyer, 40 Mass. App. Ct. 302, 305 (1996).
Something more has been characterized as: “countervailing equities,” such as [when] one spouse “is or will become a public charge;” there has been failure to comply with the agreement; or there are equally compelling reasons." DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231, 235-236 (1987), citing Knox v. Remick, 371 Mass. 433, 436-437 (1976), and Stansel v. Stansel, 385 Mass. at 515-516.
"'The rationale for the more stringent standard is manifest: '[a] policy of enforcement supports finality and predictability, allows the parties to engage in future planning, and avoids recurrent litigation in the highly emotional area of divorce law.'" Broome v. Broome, 43 Mass. App. Ct. 539, 544 (1997), quoting from Ames v. Perry, 406 Mass. 236, 240-241 (1989).
In determining whether "something more than a material change" in the parties' circumstances has occurred, the probate court must weigh "all relevant circumstances" and enter findings accordingly. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 89 (1991).
Standard of Review
Resolution of the various factors involved in a modification rests with the judge's sound discretion, and we defer to the judge's evaluation of the evidence
218 "[u]nless there is no basis in the record for the judge's decision." Bush v. Bush, 402 Mass. 406, 411 (1988).
Facts and procedural history.
Divorce - 1982: 22 year of marriage. "Stipulation and Agreement" incorporated in and survived judgment. Husband to pay $275 weekly to wife as undifferentiated alimony and child support until the emancipation of their daughter in August of 1987; and thereafter $200 to the wife as alimony.20 First Contempt - August 23, 1996: • Wife alleges husband did not fully pay; and then stopped paying alimony. January 16, 1997: • Husband filed complaint for modification, seeking to terminate alimony on the basis of financial and medical problems.
• Judgment - July 31, 1998 (Hon. Eileen Shavell): Husband’s modification dismissed - failed to establish circumstances warranting a termination of alimony. Alimony arrears - $46,400. Husband to immediately resume $200 weekly payments. Plus pay $25 a week toward arrears, beginning January 1, 1999, for a total of $225 per week. Husband to pay $2,200 in fees to wife's attorney.
Second Contempt - March 12, 1999: Wife alleging further alimony arrears and failure to pay the attorney's fees.
20At that time, this language did not result in the clear child-support portion of the payment from being deducted as alimony.
219
Judgment - September 9, 1999: (Shavell, J.) Further arrears of $9,948 as of July 31, 1999. Stipulation: Husband to pay $200 weekly current alimony, plus $25 per week on arrears. All arrears to be paid by October 28, 1999 Wife reserves right to seek attorney's fees incurred after May 3, 1999.
October 28, 1999 compliance hearing (Robert W. Langlois, J.)
Husband testified:
He was evicted from his apartment and living at his office. Health problems continued. He was seeking a buyer for his business. He was not looking for employment. His business continued to pay his automobile insurance, health insurance, and life insurance expenses, plus the electricity and telephone bills. Wife's attorney represented:
Wife continued to have back problems and was receiving weekly therapy. Husband paid $6,000 since March hearing, but nothing since September 9, 1999. Husband claimed he "[did]n't have any money."
Judgment -
Husband’s “ no money” claim not credible. Husband sentenced to 120 days in the house of correction -
220 To be served on weekends Additional time to be spent in community service several evenings per week. Stipulation of alimony arrears at $53,248
Supplemental judgment of contempt - November 2, 1999:
husband to serve two evenings each week, from 4:30 P.M. to 6:30 P.M., at a facility providing meals to the homeless.
Modified alimony obligation:
Husband to pay $100 current alimony, plus $50 toward arrears. Wife awarded $800 in attorney's fees. No provision for adding $100 weekly shortfall to the arrears.
Amended supplemental judgment of contempt - November 22, 1999:
Jail sentence suspended. Husband to spend 3 evenings (4:30 - 6:30 P.M.) each week in community service each week;
Appeals Court:
Wife’s Issues on Appeal:
221 Because there was no complaint for modification during second contempt, court erred in reducing husband's alimony obligation. There was no notice to Wife, nor a hearing on the issue of modification. Court erred in reducing alimony obligation in a surviving divorce agreement where husband failed to meet the standard required for such modification.
Basis for Reversal:
Judge [Langlois] made no findings reflecting a demonstration by the husband of "something more" than a "material change in circumstances" or "countervailing equities," and the record lacks evidence that would support such findings.
No evidence to support finding that "the nature of the sentence imposed . . . will, to a degree, inhibit the defendant in his work" establishes "countervailing equities."
No evidence to support reduction of husband's alimony obligation.
No findings demonstrating consideration of "all relevant circumstances."
Because of above basis for reversal, no need to deal with claim that judge inappropriately modified the alimony award in the context of a contempt proceeding, when no petition for modification was pending and the husband had not sought to raise the modification claim by motion or otherwise.
Reinstates order obliging husband to pay $200 per week "for current alimony" plus $25 per week toward arrears.
222
Attorney's fees.
Wife’s attorney requested $1,800 in fees for 5.5 hours @ $200 per hour up to hearing, plus time at hearing.
Husband did not challenge stated $1,100.
Judge awarded $800 in attorney's fees.
Wife requests award be increased to $1,800, reflecting the $1,100 figure above and additional time spent in court on October 28.
Basis for Reversal:
There is no documentation in the record substantiating the additional time and expense.
Case remanded for:
Reconsideration and entry of findings re attorney's fees to the wife; and Recalculation of the alimony arrears to reflect reinstatement of the September 9, 1999, judgment. Judge may hold such hearings as he deems appropriate.
223 NO WAY DO WE PART AT YOUR DEATH.
If you agree to: alimony to be paid until the wife dies or remarries, it means, alimony to be paid until the wife dies or remarries.
In this unhappy little family, the dad’s estate and the parties’ children want to cut off their mother’s alimony. You can’t make this stuff up!
BARBARA COHAN v. CURT FEUER, administrator, Estate of Henry H. Cohan. and the children. — Mass. App. Ct. —, No. 01-P-1367 (May 29, 2003.)
The Law "Liability for alimony imposed by a decree of court ceases with the death of the husband if the decree is silent on the subject of continuation." Taylor v. Gowetz, 339 Mass. 294, 297 (1959). A decree may require that alimony payments continue beyond the paying spouse's death, see Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 125 (1932), and the parties may agree to the same in a settlement contract, see Taylor v. Gowetz, 339 Mass. 294, 298 (1959). Where decree stated that alimony payments were to be made to the wife "during the term of her life" or until she should remarry. Farrington v. Boston Safe Deposit & Trust Co., Co., 280 Mass. 121, 122 (1932), court held language unambiguously required payments to continue after the death of the paying spouse: "If his estate were not held, how else could the [wife] be paid 'during the
224 term of her life?' " Id. at 126. A separation agreement providing that alimony payments were to continue "so long as the wife is living and remains unmarried," is an unambiguous requirement that payments continue so long as the wife was living and remained unmarried, notwithstanding the death of the husband. Taylor v. Gowetz, 339 Mass. 294, 298-300 (1959). Where parties stipulated husband would pay alimony "for the Wife's support alone; payable until both children reach the age of 23. . . . In the event of the Wife's remarriage, all alimony payments for her sole support shall cease forthwith," court, in dicta, said the Farrington and Taylor cases "strongly suggest" that this language also required alimony payments to continue after the husband's death, as the children were not yet twenty-three, and the wife had not remarried. In DuMont v. Godbey, 382 Mass. 234, 239-240 (1981).
Facts. July 17, 1973: New Jersey judgment of divorce. Barbara awarded: $540 monthly alimony; $460 monthly for child support. Henry (former husband), now deceased, failed to make required payments. Henry is sentenced to jail in New Jersey for contempt. To avoid payment, Henry left N.J. and eventually relocated to Massachusetts. 1977: Barbara found out where Henry was living. Barbara started proceedings under G. L. c. 273A (Uniform Reciprocal Enforcement of Support Act. [Massachusetts G.L. c. 209D - Uniform Interstate Family Support Act.] Enforcement obtained against Henry. About five years later, without an evidentiary hearing, a judge of the District Court reduced Barbara’s alimony payment. Barbara sought restoration of original amount of alimony.
225 February 23, 1983 Stipulation: · Henry to pay: $150 per month for child support until June, 1984. $475 per monthly alimony "until the death or remarriage of [Barbara]" · Barbara waived claim for other arrears. · Both parties were represented by counsel. · Handwritten stipulation was approved by a judge of the District Court. 1998: Henry died. November 24, 1998: Barbara’s Superior Court complaint for declaratory relief - seeks order that, , notwithstanding Henry’s death, 1983 stipulation entitles her to continuing alimony payments until her death or remarriage. Administrator of Henry's estate and the parties’ children opposed the relief. Both sides moved for summary judgment. Motion judge ruled for Henry's estate and heirs. Barbara appeals.
Appeals Court Where the decree or stipulation is entirely silent as to duration, the court will fill that void with a default assumption that the payor's death terminates the obligation. Where duration is addressed, there is no void to fill, and the meaning of the plain language chosen by the court or the parties governs. At bar, the parties agreed that payments "shall cease upon the death or remarriage of [Barbara]." Because the parties established the circumstances under which the payments would cease, there is no call for the court to import terms. Barbara has neither died nor remarried, and therefore Henry's estate is
226 bound to continue making payments. See Taylor v. Gowetz, 339 Mass. 294, 297-300 (1959). Practice Tip offered by Appeals Court. Where parties wish to establish that an alimony obligation terminates with respect to other events (e.g., the recipient spouse's death or remarriage) as well as upon the death of the payor spouse, they would be well served to follow the guidance provided by Kindregan & Inker, Family Law & Practice §§ 51.39, 51.47 (2d ed. 1996) ("Such payments shall cease upon the death of either party or upon the remarriage of the party entitled to receive such payments"; "[obligation to pay alimony] shall immediately terminate on the happening of any of the following events, whichever shall occur first: the death of the husband, the death of the wife, the remarriage of the [husband/wife] . . .").
Held Superior court judgment is vacated. New judgment shall enter declaring that: (1) Henry's estate must continue to make alimony payments to Barbara until her death or remarriage; and (2) Henry's estate owes Barbara $4,100 for alimony in arrears at the time of Henry's death, plus statutory interest.
GLN comment: This result is not surprising to an experienced matrimonial lawyer. Had the case been filed in the probate court, it is likely Barbara would have prevailed at that time. Then the appeal would have been dismissed under Appeals Court rule 1:28, as the case merely restates prior good law.
227 Child Support - Applicable Guideline
Massachusetts or Minnesota? Its where the kid lives.
Rutledge v. Blake (Lawyers Weekly No. 11-075-03) (2 pages) (March 24, 2003) Appeals Court - Single Justice Docket No. 03J-78 - Beck, J.
Facts: Mother and child live in Minnesota Father lives in Barnstable County, Massachusetts Mother brought a paternity suit, G.L. c. 209C in Barnstable County
Probate Court : • Mother argued, per, Uniform Interstate Family Support Act (UIFSA), G. L. c. 209D, the Massachusetts guidelines should govern because: · a. Massachusetts is the 'issuing state,' see G.L. c. 209D, Sect. 1101(9), and · b. the court is the 'issuing tribunal,' see G.L. c. 209D, Sect. 1-101(10). • The judge denied the motion; and applied Minnesota guidelines.
Single Justice appeal (G.L. c. 231, § 118, second paragraph)
Massachusetts is the “issuing state,” G.L. c. 209D, Sect. 1-101(9).
The law of the issuing state governs the nature, extent, amount and duration of current payments and other obligations of support and the payments of arrearages under the order.
228
The mother does not have to chose between G.L. c. 209C and G.L. c. 209D. Subsections 1-101(9) and (10) of c. 209D both refer to 'a judgment determining parentage,' which is the subject matter of G.L. c. 209C. The presumption that the Massachusetts guidelines apply is rebuttable. G.L. c. 209C, Sect. 9(c); and deviations are O.K., if supported by findings. Denial of mother's motion to implement the Massachusetts guidelines is vacated; and a new order shall enter allowing the motion.
229 EVEN JUDGES CAN’T BREAK THE LAW WHILE TRYING TO DO GOOD.
Don’t try to slide in an unsupportable section 34 alimony award in place of an unsupportable section 28 award of child support.
JANICE M. SAIA vs. THOMAS E. SAIA. No. 01-P-548. May 15, 2003.
Facts. September 18, 1998: complaint for divorce in Barnstable County. Older child, age 22, a daughter: · Suffered from depression and bulimia · Received monthly SSDI disability payments. · Not enrolled in an educational institution. Younger child, age 19, a son: · Expected to enroll in a local community college. · Had not begun attending classes. Both children lived with wife. Husband: · Unable to work by reason of a mental disability. · His annual $26,000 income was from disability retirement payments. Wife: · Worked for a community college, earned $22,000 a year. · Received $160 monthly rent from daughter. Judgment (Robert E. Terry, J.) · Husband ordered to pay alimony to wife 25% of monthly disability retirement payments. · Both parents to contribute toward son's college expenses from
230 the proceeds of mutual fund accounts which were divided equally between them. Rationale. · Daughter, although emancipated, is principally dependent on her mother. · Son "may be unemancipated" by reason of his anticipated enrollment in the community college. · No order of child support - just alimony. Husband appeals. Findings of Fact - issued after claim of appeal: · Both children are principally dependent on Wife for financial support. · Thus, Wife has increased need for financial assistance from Husband. · Husband has ability to pay. · Disability payments treated as a stream of income rather than as a marital asset. · 25% of Husband's disability retirement payments should be paid to the Wife as alimony.
Appeals Court Judge offered no explanation of how amount of alimony was determined.
Because son, age 19, was principally dependent on the wife for financial support, son was not emancipated within the meaning of G. L. c. 208, § 28 - whether he was in college, or not.
Findings make apparent judge ordered husband to pay alimony to assist wife with her expenses in supporting the couple's children, one of whom was emancipated. That was beyond his authority.
231
"The statutes governing the wife's right to alimony and child support constitute 'a complete statutory system, intended to cover the field of civil liability for maintenance between husband and wife . . . There is in this Commonwealth no nonstatutory right to sue for alimony or support.'" Orlandella v. Orlandella, 370 Mass. 225, 227 (1976), quoting Gediman v. Cameron, 306 Mass. 138, 140 (1940).
Future needs of dependent children may be considered as a factor in the division of property under § 34. Passemato v. Passemato, 427 Mass. 52, 55-57 (1998).
Difference between alimony and child support is significant: As to son: Under G. L. 208, § 28, child support terminates either at age 21 or age 23. Alimony would terminable on a complaint for modification.
As to daughter: At age 22, she is legally emancipated as she is not enrolled in an educational program. Neither alimony, nor child support are permissible to pay for her expenses. Judge found daughter, to some extent, was dependent on wife for support.
Court’s general equity powers, Feinberg v. Diamant, 378 Mass. 131, 136 (1979), authorize an order for support of a disabled
232 dependent adult child only under the guardianship.
Eccleston v. Bankosky, 438 Mass. 428, 437-438 (2003): SJC, relying on general equity jurisdiction of the Probate Court, authorized an order for payment of child support to a child's former guardian, on whom the child was dependent for educational and living expenses while enrolled in college; and, in so doing the court harmonized the treatment of a postminority child previously placed in guardianship with that of a postminority child domiciled with a parent under § 28.
Since parties' daughter is not under wife's guardianship, court's equitable jurisdiction over matters relative to guardianship does not apply.
Held: It is apparent judge improperly awarded support in the form of alimony, based in part on the son's dependent status. Son was eligible for child support. Vacate that portion of judgment ordering the husband to pay alimony. Since son was eligible for child support at the time of the order, case remanded for further proceedings on the question of child support for the son.
233 PROBATE COURT’S GENERAL EQUITY POWERS AUTHORIZE POST-MINORITY CHILD SUPPORT.
And you thought last year’s case about supporting a 35 year old child, who had a law degree but no job could only be something that happened in Italy.
The dissent thinks such an order is now permissible and likely.
G. L. c. 208, §34 does not authorize granting post minor support to the guardian of a child living with that guardian. But, that order can be made under G. L. c. 215, § 6.
KATHLEEN A. ECCLESTON vs. PAUL E. BANKOSKY. 438 Mass. 428 January 13, 2003.
Case of First Impression heard by SJC on Direct Appellate Review Lois M. Farmer for father, Kathleen R. Eccleston, pro se.
Facts May 13, 1983: Cailyn Bankosky (Cailyn), born · Only child of marriage of Paul Bankosky (father) and Kathryn Mulroy (mother). 1990 divorce: mother awarded physical custody of Cailyn. Father ordered to pay $171.31 weekly child support. Cailyn age 11: Placed in custody of Department of Social Services. · Parents were unfit to care for her. · Mother - alcohol abuse. · Father - "inappropriate touch[ing]" See G. L. c. 119, § 23.
234 DSS placed Cailyn: · First in a foster home · Next, with maternal relatives. · December 1995 - Cailyn returned to her mother's home. · March 13, 1997: DSS petitioned to restore custody of Cailyn, then 13 to mother - granted by probate court. December 1997: Kathleen Eccleston and her husband, Joseph Bell, successfully moved for immediate appointment of temporary guardianship of Cailyn on the ground that the mother's behavior put Cailyn at risk for neglect. · Eccleston / Bell were Cailyn's "former foster parents." · Eccleston had "significant" relationship with Cailyn since the child was 10 months old; and that the guardianship represented the second time that Cailyn resided with them. March 1998: over mother's objection, guardianship made permanent. · Judge transferred father's, now $75 weekly child support obligation, from mother to guardian. · Mother ordered to pay $50 monthly child support to guardian.
Guardianship does not sever the parental-child relationship, nor the support obligation of a legal parent to a child. See, e.g., Freeman v. Chaplic, 388 Mass. 398, 403 (1983) (appointment of guardian does not, without more, extinguish parental custody rights); G. L. c. 201, § 40 (judge may award child support to guardian). · Judge prohibited mother and father from contacting Cailyn. Several months later: guardian filed a pro se complaint against father seeking upward modification of child support consistent with the child support guidelines. January 8, 1999: modification judgment ordered father to pay $125 weekly child support to guardian via DOR wage assignment. · The request for child support should have been per G. L. c. 201,
235 § 40, which specifically permits a judge to revise an award of child support payable to a guardian. · The judgment did not specify a date for termination of support. · The father did not appeal. April 2001: one month before Cailyn's 18th birthday, guardian filed a second modification complaint requesting continuation of the existing child support order beyond Cailyn's eighteenth birthday. · Sought relief per G. L. c. 208, § 28. · Cailyn would still be in high school when she turned 18 · Cailyn would begin college in the fall of 2001. · Cailyn was awarded a 4-year partial scholarship to the college of her choice in North Carolina. · Scholarships, loans, and grants, including a work-study grant, were insufficient to meet her anticipated tuition, room and board needs by $1,100. · No testimony presented about cost of other educational expenses, such as books, or other costs, such as travel home or daily living expenses at college or when residing at home with Eccleston. Father answered: · Once Cailyn reached 18, guardianship ended as a matter of law. See G. L. c. 201, § 4. · Eccleston lacked standing to pursue the modification. · Court lacked jurisdiction under G. L. c. 208, § 28, to order post-minority child support because Cailyn did not "reside with a parent." Father counterclaimed: · For termination of his support obligation as of the date Cailyn graduated from high school (about one month after her eighteenth birthday). · For a "credit" toward arrearages for any child support paid to the guardian after Cailyn's high school graduation. July 20, 2001: brief trial (Robert E. Terry, J.)
236 Judge granted guardian's modification complaint. Judge denied father's motion to dismiss and his counterclaim. · Guardian had standing to pursue the modification complaint on Cailyn's behalf because the complaint, filed prior to Cailyn's eighteenth birthday, "tolled" the operation of G. L. c. 201, § 4. · Guardian could proceed as Cailyn's "next friend." · Guardian had proved a "material and substantial change in circumstances" and that modification would be in Cailyn's best interests, by showing that, without her father's continued financial assistance, Cailyn, an unemancipated child, would experience a "deficit in support" that would have a "negative impact" on her welfare. [10] · Guardian entitled to child support as Cailyn's "de facto parent," see Youmans v. Ramos, 429 Mass. 774, 776 & n.3 (1999). Father to continue paying $125 weekly child support to guardian. Father filed two post-trial motions, one for reconsideration. September 14, 2001: Father’s motions denied. Father appeals. SJC granted the father's application for direct appellate review. SJC Modification. Father does not deny Cailyn's welfare will suffer without his continued financial support. Father’s continued support is in Cailyn's best interests. Father does not seriously contest that he has the ability to pay continued support in the amount of $125 a week. Once Cailyn attained age 18 and did not reside with either of her parents as required by the postminority support provisions of G. L. c. 208, § 28, she was an "adult child" over whom the Probate Court lacked further jurisdiction. We agree. Cailyn is not, as required by §28, "domiciled in the home of a
237 parent." Award cannot be predicated on G. L. c. 201, § 40, as the guardianship ends when minor attains age The statutory reference to an actual age precludes judicial discretion. See Leibovich v. Antonellis, 410 Mass. 568, 576 (1991) (no question of statutory construction where Legislature's intentions expressly stated). Statutory end date cannot be extended because action was commenced before Cailyn’s 18th birthday. See Risk Mgt. Found. of the Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990) ("general statutory language must yield to that which is more specific").
Post-minority support. At age 18, Cailyn was not emancipated as a matter of law for all purposes. The Legislature did not intend that emancipation "automatically occur on reaching the age of majority" in all circumstances. Larson v. Larson, 30 Mass. App. Ct. 418, 420 n.3 (1991), citing Turner v. McCune, 4 Mass. App. Ct. 864, 865 (1976). Contrary to dissent, father was not beyond the reach of the Probate Court's jurisdiction in the matter of her continued support. Legislature has made parents responsible for child support beyond a child’s 18th birthday, if still dependent upon parents for support - to age 21; and to age 23 if in undergraduate college. Massachusetts recognizes that merely attaining age 18 does not by itself endow young people with the ability to be self-sufficient in the adult world.
Children of non-intact families, who, prior to turning 18, have become wards of the State because their parents are found unfit to care for them and who, after reaching eighteen years of age,
238 continue to make their domicile with a custodial adult who voluntarily provides for them. As to such children, insofar as they are found to be "unemancipated" (that is, financially dependent), the equity powers granted to Probate Court judges in G. L. c. 215, § 6, are broad enough to permit a judge to impose a post-minority support order on the child's financially able non-custodial parent or parents.
The general equity jurisdiction of the Probate Court may be invoked to order a divorced, financially able non-custodial parent to contribute to the support of a mentally or physically incapacitated adult child. See Feinberg v. Diamant, 378 Mass. 131, 134-136 (1979).
In conferring general equity jurisdiction on the Probate Court, the Legislature intended to "assure that the interests of justice are served." Feinberg v. Diamant, 378 Mass. 131, 137 (1979).
Rather than a "dangerous" act of superlegislation, as the dissent claims, resort to equity is both explicitly authorized by the Legislature and appropriate as the narrowest ground on which relief can be afforded to Cailyn.
Cailyn would qualify for post-minority support from her non-custodial divorced parent pursuant, had she a fit parent with whom she could "domicil" during her college years. But the neglectful, or worse, behavior of her mother and father has deprived Cailyn of any opportunity to establish domicil with either of them, not by her own choice but mandated by the Commonwealth for her own safety.
It would be inimical to the Legislature's command that Massachusetts courts safeguard "the long-term well being of the child," G. L. c. 119, § 1, including "dependent" adult children to age twenty-three, to deny relief to a dependent child who is bereft of her
239 parents' custody in the circumstances present here. See also G. L. c. 215, § 28 ("The supreme judicial court or appeals court may, upon appeal, reverse or affirm, in whole or in part, any judgment, decree or order of the probate court . . . or make any order therein as law and justice may require").
Eccleston, provides a domicil for Cailyn, although under no legal obligation to do so, and has performed her caretaking role in a manner both appropriate and supportive. Having determined that the Commonwealth, for Cailyn's own benefit, prevented Cailyn from maintaining a domicil with either of her parents, that Eccleston continues to provide a domicil for Cailyn, that Cailyn still needs financial support, that Cailyn's father is able to provide that support, and that Cailyn's domicil with Eccleston remains in her best interests, the judge properly could have ordered the father to pay post-minority support to Eccleston for Cailyn's benefit under G. L. c. 215, § 6. He "simply should not have done so as a corollary to the decree nisi of divorce." Feinberg v. Diamant, 378 Mass. 131, 136 (1979).
Judge's denial of father's motions are affirmed. The support order, entered pursuant to G. L. c. 208, § 28, is vacated. Case is remanded to the Probate Court for further proceedings in accordance with this opinion, to be treated as a complaint by Eccleston for equitable relief pursuant to G. L. c. 215, § 6. The judge should reinstate the support order and "take any other action consistent with general equity jurisprudence to assure that the interests of justice are served." Feinberg v. Diamant, supra at 137.
COWIN, J. (dissenting). A judge may not act in equity in a manner contrary to statute. The court, in sanctioning such action, has created a dangerous precedent. Equity must follow the law.
240 Where the law (either common or statutory) provides a remedy bounded by restrictions (as the court admits G. L. c. 208, § 28, does here), a court may not act in equity either to extend or to supplement that remedy. See Hedges v. Dixon County, 150 U.S. 182, 192 (1893); Freeman v. Chaplic, 388 Mass. 398, 406 n.15 (1983) ("a grant of equitable powers does not permit a court to disregard statutory requirements"); Feinberg v. Diamant, 378 Mass. 131, 134-136 (1979). The rationale behind this restriction is self-evident: if courts had the power to fashion equitable remedies for problems already addressed by legislation, they would be free to ignore any statutory remedies and restrictions that they deem inconvenient. They would become, in short, super-Legislatures. The court has fallen prey to this temptation before, see Adoption of Vito, 431 Mass. 550, 570-571 (2000) (Cowin, J., concurring), and does so again today. The court is operating in the mistaken assumption that G. L. c. 215, § 6, allows the Probate Court to fashion equitable remedies that run counter to statute, so long as the Legislature has not explicitly forbidden it to do so. That impression is both wrong and disingenuous. It is wrong because § 6 states specifically that the Probate Court's equitable powers are limited by the general principles of equitable jurisprudence, and the rule that equity follows the law is one of those principles. It is disingenuous because the court is well aware that the Legislature is not in the habit of prohibiting actions contrary to statute; it presumes that the courts will adhere to the restrictions its statutes impose. The Legislature enacts laws, not suggestions, and it assumes that courts understand this. The court has apparently failed to grasp that to act outside the bounds of a comprehensive legislative scheme is necessarily to act
241 contrary to it. In holding that a probate judge may award post-minority support to a child pursuant to its equitable powers, regardless whether that child is domiciled with a parent or principally dependent on that parent, the court essentially eliminates two of the three statutory post-minority support requirements contained in G. L. c. 208, § 28. Nor is there any reason to suppose that the third requirement is safe. Given that the reach of the Probate Court is now constrained only by "the long-term well being of the child," a probate judge could presumably grant a post-minority support order to a deserving thirty year old "child" if the judge found justice so to require. The true import of today's opinion lies not in what it does but in what it portends. From this point forward when the Probate Court acts in equity it may ignore statutory boundaries and the gaps that those boundaries produce. The vast opportunities for judicial overreaching thus created are, by themselves, disturbing. The court's inability (or unwillingness) to recognize the problem, however, leads me to believe that future abuses will go uncorrected and become increasingly common. I must, therefore, dissent.
242 QDRO - RETIREMENT FUNDS USED TO PAY ATTORNEYS FEES FOR WORK RELATED TO COLLECTION OF CHILD SUPPORT
Question of First Impression
ROBERT D. SILVERMAN v . CLAUDIA A. SPIRO. 438 Mass. 725 (2003) Direct appellate review - February 24, 2003
Complaints for contempt and modification, filed on December 17, 1998, were heard by Eileen M. Shaevel, J.; and a motion for entry of a qualified domestic relations order was heard by Paula M. Carey, J.
Facts at time of Divorce: 11-year marriage. Mother filed for divorce; Judgment nisi entered on August 6, 1998. Separation agreement (except for division of marital property) was incorporated and merged in the judgment. Shared legal custody of three minor children mother as primary physical custodian; visitation to father. All conditioned on mother's participating in regular weekly therapy; and father's continuing in his weekly therapy.
Probate Court - Father’s complaint for Modification - December, 1998: · Mother repeatedly interfered with father’s visitation
243 · Requested sole legal and physical custody of the children. · Mother removed children for a 2-week period; whereabouts were unknown.
Probate Court - Father’s complaint for Contempt: · Mother violated the judgment by: (1) denying him visitation; (2) failing to sign the title of their Geo automobile over to him; and (3) failing to provide information needed to prepare joint tax return.
Temporary orders: Father granted temporary physical custody of the children Capias issued for Mother's arrest. Father permitted to enter the former marital home to retrieve certain personal property that he claimed was needed to establish a home for the children.
Criminal (withdrawn after children retrieved): Parental Kidnaping against Mother March, 1999 - Mother was arrested in Texas Father went to Texas, took custody of the children, and brought them back to Massachusetts.
Mother unsuccessfully sought to regain custody. Cases consolidated trial, July, 2000:
Modification judgment: December 12, 1998, Mother left Massachusetts with children.
244 Mother did not seek, nor get father's consent to leave. Mother did not notify father she was removing children from Massachusetts. Mother intended to go to Texas. Mother told children they would never again see their father. Mother - not credible in claiming she went to Texas for vacation and to look for job; and had car trouble which prevented return for more than 2 months. Mother "had no intention of returning to Massachusetts with the children." While in Texas, the children and the mother lived in a shelter. Children registered in school under mother's last name. When father got children, one son ill with strep throat and a 105 degree fever. Mother had not attended to child’s medical care. Children traumatized (posttraumatic stress disorder) as a result of trip to Texas, living in a shelter and being told that they would never see their father again. Children did not trust mother, believed she lied to them, and feared that, if left with her, she would take them away again. Children have made progress while living with father. Children wish to continue living with father. Mother fails to acknowledge the trauma she caused children; and blames father for past behavior. Mother's contentions on custody issues refuted by GAL investigation. Best interests of the children required father to have sole legal and physical custody.
Mother to remain involved in children’s lives - via slow "transition” period.
Mother must see family therapist.
245 “(2) In order to enable [the mother] to have contact again with the three children, a child and family therapist . . . shall be designated to facilitate contact between the mother and the children. [The GAL] shall continue in [his] role as [GAL] and shall select the therapist and monitor the contact between the mother and children in the therapeutic setting and any later transition to visits outside of such a setting. The GAL shall work with the children's therapist . . . and the family therapist in arranging for meetings between the children and the mother. The mother shall pay the cost of the GAL and the cost of the family therapy. "(3) The therapist shall first meet alone with the mother and then with the children.
No meetings with the children shall be arranged until the mother has seen the therapist alone for as many sessions as he/she deems appropriate.
Thereafter, the therapist shall arrange for times for both mother and children to meet together. As the meetings progress, the therapist shall contact the [GAL] to report on the progress of the meetings. The therapist shall determine when the children are ready to visit with the mother outside the therapeutic sessions. The initial visits outside of the sessions shall be supervised until the family therapist, the children's therapist, and the GAL determine that unsupervised visits are appropriate. The children's adjustment to these visits shall be monitored by the GAL, their individual therapist, and the father. The mother shall not at any time discuss with the children
246 the issue of custody or taking the children away with her." Father given ownership of property removed from former marital home. Mother capable of employment; and income imputed to her. Father supporting children since March, 1999, when they returned with him from Texas. Mother to pay $90 weekly child support to father, plus back child support. Wage assignment entered. Separate child support QDRO entered. Mother to pay $44,465 to father on account of his legal fees and costs: . Father forced to incur substantial fees and costs in locating the mother and children after she wrongfully removed the children from Massachusetts. . Mother has been uncooperative in providing information in the process of discovery. . Mother “unreasonable in her refusal to resolve this case without the necessity of trial, thereby causing the father to incur an inordinate amount of fees and costs in bringing this matter to a conclusion." "Payment of [attorneys' fees] shall be effected through a transfer of the [retirement] funds currently held for the benefit of the mother under an account . . . in the amount of $55,000. . Increase of $11,000 above the award ... gives some consideration to the tax consequences and penalties which may be incurred if father liquidates any portion of the transferred funds. . [Father’s counsel] shall prepare a [QDRO] for approval by the [c]ourt so that the funds can be transferred within the next 30 days. . The [c]ourt shall at that time release from the [t]rustee [p]rocess sufficient funds to allow for the transfer."
247
Contempt Judgment: Mother in contempt for failure to comply with judgment re father’s visitation with the children Mother was able to, but did not paid, child support since September, 1999. Mother owed $5,000 back child support. Mother’s arrearage to be paid at the rate of $25 a week. Parties to file 1997 joint tax return within 21 days Mother to "promptly sign over the title" of the parties' Geo automobile to the father. QDRO: Approved in the amount of $55,000 to effect payment of the father's attorney's fees.
Appeals Court
Amount and Method Used to Award Fees:
Judge was correct in awarding attorney’s fees.
Judge had authority to enter the attorney’s fees QDRO.
As long as an award of attorney's fees is "not incommensurate with an objective evaluation of the services performed . . . '[t]he award of such costs generally rests in sound judicial discretion. . . .
[T]he award . . . may be presumed to be right and ordinarily ought not to be disturbed.'" Ross v. Ross, 385 Mass. 30, 38-39 (1982), quoting Smith v. Smith, 361 Mass. 733, 738 (1972).
Judge’s award reflects 70% of the father’s fees and costs, which
248 demonstrates the judge considered issues raised by the mother, including the disparity of the parties' income.
The attorney's fees sought were commensurate with the services performed.
Fees were awarded in connection with both the modification judgment and the contempt judgment, thus embodying an award that simultaneously granted reimbursement to the father and sanctioned the mother. See Edinburg v. Edinburg, 22 Mass. App. Ct. 192, 197 (1986).
Judge correctly ordered accommodation for the tax consequences resulting from the liquidation of some of the mother's retirement assets. Cf. Rice v. Rice, 372 Mass. 398, 402 & n.4 (1977) (if raised, tax consequences of marital distribution should have been considered by judge); Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989) (appropriate to consider and minimize tax consequences when apportioning marital assets). No abuse of discretion in declining to grant the mother an evidentiary hearing. See Ross v. Ross, supra at 38.
Judge gave mother adequate opportunity to address the issue of attorney's fees and costs in a written submission, and the mother did so.
The Law on Ability to Use QDRO to Pay Legal Fees Incurred in Collecting
ERISA antiassignment and antialienation provision: Federal law requires that ERISA-governed pension plans [4] "shall provide that benefits provided under the plan may NOT be assigned or
249 alienated." 29 U.S.C. § 1056 (d)(1). (Emphasis added.)
Provision protects "an employee from his own financial improvidence in dealing with third parties."
Retirement Equity Act of 1984 (REA), amended ERISA to provide an exemption for a "qualified domestic relations order," or a "QDRO."
QDRO is "a domestic relations order . . . which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan."
A "domestic relations order" is "any judgment, decree, or order (including approval of a property settlement) which -- (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (II) is made pursuant to a State domestic relations law."
QDROs are exempt from ERISA's preemption provision.
The QDRO in this case was entered in reliance on these provisions.
Mother’s argument:
QDRO does not "relate to child support, alimony or marital property rights."
No State law authorizes "a levy on retirement assets to pay attorney[']s fees imposed not as an adjunct to support but as a
250 penalty related to custody litigation."
The attorney's fees were incurred "not to facilitate the collection of child support[,] but essentially as a sanction . . . for her actions in the course of the [change of custody] litigation," and as such fall outside of the QDRO exception to ERISA.
Public Policy:
ERISA does not expressly permit an assignment of retirement funds pursuant to a QDRO to satisfy an award of attorney's fees.
The requirement that a QDRO "relate to" alimony, child support, or the division of marital property, seeks to ensure that assets protected under ERISA will be used for the benefit of a former spouse or a dependent, and then only for specified purposes.
Necessarily implicit, however, in the Federal law's recognition of a QDRO, is authorization for the reimbursement of attorney's fees incurred in obtaining a proper order. Otherwise, a former spouse or party who succeeded in obtaining an appropriate QDRO, would have the order reduced by the necessity of paying attorney's fees.
In some circumstances, a former spouse or party might even forgo seeking a needed QDRO because of the prohibitive nature of unreimbursed attorney's fees.
These results would undermine the intent of Congress in establishing the QDRO exception by denying deserving parties and children a recovery to which they are entitled.
251 Equitable considerations, no matter how compelling, could not be used to override the antialienation provision of ERISA.
An exception to ERISA's antialienation provision, such as the QDRO exception, must be strictly construed.
Use of QDROs for payment of attorney's fees in domestic relations disputes have been upheld in claims for collection of past due spousal or child support.
QDRO can be used to permit recovery of attorney's fees in connection with enforcement of an existing order for spousal or child support.
Appeals Court QDRO Analysis:
Here, there are orders that (a) modify the judgment of divorce nisi to change custody of the children from the mother to the father; (b) adjudicate, and make provision for, the mother's payment of, $5,000 in back child support; and (c) adjudicate, and make QDRO provision for the mother's payment of on-going child support (no appeal on this issue).
In cases where the parent against whom the support order is entered has no other assets beyond his or her retirement fund to comply with the order, a QDRO to ensure payment would be appropriate under the "relates to" language of the exception.
252 Otherwise, a basic purpose of the QDRO exception -- to ensure the payment of spousal and child support -- would be frustrated, perhaps necessitating provision for the needs of the spouse and children out of public funds.
QDRO in this case is permissible, but over broad.
Father's attorney entitled to QDRO to recover attorney's fees in connection with his work related to the order establishing back child support owed by the mother because that order collects arrearages.
The amount awarded must be recalculated to award fees for only those services and not to work on other parts of the case, as that work does not relate to the "provision of child support, alimony payments, or marital property rights."
The QDRO is vacated, case remanded for new QDRO, limited to the attorney's fees attributable to the past child support order.
Appeals Court Visitation Analysis:
Ample support for judge's imposition of restrictions on the mother's visitation with the children.
Restrictions, with one exception, fell within the judge's discretion, see Vilakazi v. Maxie, 371 Mass. 406, 409 (1976) (sustaining order of sole custody to dad with no visitation to mother.)
That exception conditions the mother's visitation on individual therapy sessions between the mother and a therapist "for as many sessions as [the therapist] deems appropriate."
253 This provision, conceivably, could result in the improper termination of the mother's right to visitation in the absence of "specific findings demonstrating that parental visits will harm the child[ren]."
No such findings have been made.
The judge found the opposite, that it "is important for the children to have the mother returned to their lives in some manner."
The judge is charged with making specific findings on the issue of visitation. The therapist should not have sole authority to determine the matter.
If the mother petitions, the issue of visitation should be reexamined by a judge in light of present circumstances including the mother's progress in her therapy.
Appeals Court Property Analysis:
Modification judgment erroneously awarded the father "sole ownership of the property he removed from the former marital home."
The separation agreement distribution of marital property was final and survived entry of the judgment of divorce as a contract which the judge could not alter.
While alimony is modifiable on the showing of a material change in circumstance . . . property settlements are not.
Courts have no authority to modify the obligations voluntarily
254 undertaken by the parties to a separation agreement
Remanded for review by the probate court.
Attorneys Fees For Appeal
Father’s attorney may apply to a single justice of this court for an award of attorney's fees for work on the appeal that may be entitled to such reimbursement.
255 NO INCREASE IN SUPPORT; BUT, THE CHILD KEEPS HER HUSBAND’S
NAME.
It’s a Beautiful Thing to See How a Judge Takes a Conservative View of the Child Support Guidelines.
MAURA F. RICHARDS vs. MARTIN E. MASON 99-P-1871 Appeals Court April 25, 2002.
THE LAW:
On Change of Name:
At common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose." Merolevitz, petitioner, 320 Mass. 448, 450 (1946).
A change of name petition may be sought pursuant to G. L. c. 210, 12 (“The change of name of a person shall be granted unless such change is inconsistent with public interests.")
Section 12 "does not abrogate the common law right to use a name of one's choosing. . . . It simply aids a petitioner in securing an 'official record which definitely and specifically establishes his change of name.'" Verrill, petitioner, 40 Mass. App. Ct. 34, 35-36 (1996), quoting from Buyarsky, petitioner, 322 Mass. 335, 338 (1948).
Section 12 does not displace the "best interests" standard applicable
256 to matters relating to the care and custody of children. See Jones v. Roe, 33 Mass. App. Ct. 660, 662 (1992). That standard is applicable to controversies surrounding the surnames of children, whether born to married or unmarried parents. See ibid.
Either parent can file change of name petition seeking to change the child's name from that of the father to the birth name or that of mother’s new husband. See Petition of Two Minors for Change of Name, 25 Mass. App. Ct. 941, 941 (1988). Jones v. Roe, 33 Mass. App. Ct. 660, 660 (1992) (father petitioned to change surname of daughter from mother's to his own)
Father can seek injunction to prevent mother using as that child's surname a name other than that of the father. See Margolis v. Margolis, 338 Mass. 416, 417 (1959). Cf. Cramer v. Hirsch, 18 Mass. App. Ct. 986, 986 (1984) (claim that mother's change of children's names to that of her new husband was breach of separation agreement).
"In resolving a dispute as to the surname of a child whose parents have not married, a court should not attribute greater weight to the father's interest in having the child bear the paternal surname than to the mother's interest in having the child bear her name." Jones v. Roe at 663.
On Child Support Guidelines:
The guidelines have presumptive application in all cases seeking the modification of a child support order. Canning v. Juskalian, 33 Mass. App. Ct. 202, 204 (1992); Buckley v. Buckley, 42 Mass. App. Ct. 716, 723 (1997).
Preamble to the guidelines states: "Modification may be allowed
257 upon showing a discrepancy of [20% ] or more between an established order and a proposed new order calculated under these guidelines."
If the original order was consistent with the guidelines or based on a rebuttal of the guidelines, the rule that a modification is appropriate upon a showing that there is " 'a discrepancy of [twenty percent] or more between an established order and a proposed new order calculated under [the] guidelines' . . . does not apply." Crowe v. Fong, 45 Mass. App. Ct. 673, 677 (1998), quoting from Massachusetts Child Support Guidelines, introductory paragraph.
"[T]he court should deduct [payments made for support of a child of another relationship] from the gross income of payor before applying the formula to determine the child support order." Massachusetts Child Support Guidelines II-I. See G. L. c. 209C 9(f); O'Meara v. Doherty, 53 Mass. App. Ct. at 603-604.
Judge has discretion to increase or decrease by two percent "in consideration of the totality of the circumstances." Massachusetts Child Support Guidelines III-A. See Crowe v. Fong, 45 Mass. App. Ct. at 67,7 n.2.
Judges have considerable discretion under the guidelines, and the exercise of this discretion may result in a range of proposed support orders. See, e.g., Canning, supra at 204-205 (range of $204 to $237 per week under guidelines); O'Meara v. Doherty, 53 Mass. App. Ct. 599, 602-605 (2002) ($180 weekly support ordered by judge was within guidelines, notwithstanding that under mother's guidelines worksheet calculations $335.15 might have been ordered).
258
Standard of Review:
"We review for an abuse of discretion." Crowe v. Fong, 45 Mass. App. Ct. 673, 677 (1998). The Appeals Court may affirm a correct decision on any sound basis. See Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730, 734-735 (1992); Doeblin v. Tinkham Dev. Corp., 7 Mass. App. Ct. 720, 722 (1979).
FACTS Parties never married. May 8, 1987: Joshua born Birth certificate: Joshua Shannon Sullivan Mason. Parties separated soon after Joshua's birth. September 30, 1988: complaint to establish paternity. October 1, 1989: . Mother married Michael Richards . Since then, she had Joshua use surname Richards
April 1990: judgment: . paternity established. . Mother to have custody. . Dad to pay $200 week child support.
February, 1991: . Stipulation: Joshua would be known as Joshua Richards Mason. Stipulation never made a part of the record or incorporated into court order Joshua did not resume use of the surname Mason. Joshua has been in his mother's custody since his birth.
259 Joshua resides with mother, his step-father, and two half-siblings, all of whom bear the surname Richards. Father paid child support for approximately 9 ½ years Father maintained contact with Joshua starting when Joshua was about five years old after they participated in counseling for the purpose of "reintroducing" Joshua to the father. Father spent increased time with Joshua during visits.
October 25, 1996: . Mother’s complaint for modification seeking: increase in child support, per Mass. Child Support Guidelines (guidelines), G. L. c. 211B, 15 Order requiring dad to obtain dental insurance and pay all of the child's uninsured dental expenses. . Dad’s counterclaim seeking: Reduction in child support. Child resume using Mason as surname.
Modification Judgment, Norfolk Probate Court (Malcolm Jones, J.) . "The child shall be known by his surname Mason. Counsel for the Father shall furnish the appropriate school authorities with a copy of this Order."
. $200 in weekly support is "adequate and reasonable in all respects," having "considered the reasonable needs of the child, the resources of the Father and needs of the parties, the income available to the Mother by reason of her present employment and the fact that the household in which the child resides is inhabited by Mother, her Husband and Mother's two other children. . . .”
. “Circumstances have changed since the date of entry of the current order, but not to an extent mandating increase or
260 decrease of said financial order."
Appeals Court:
Name Change: Consideration of parental preference does not appropriately focus the inquiry on what the child needs, nor on the effect on the child of a change in his surname. Court should consider, among other things: Effect of the change of the child's surname on the preservation and development of the child's relationship with each parent and other siblings. Length of time the child has utilized a given name. Age of the child as it may relate to his or her identification with the surname; and Difficulties and embarrassment that the child may experience from bearing the present or proposed surname. No evidence presented on likely effect on Joshua of a change in his name from “Richards” or whether he wishes his name to be changed to Mason. None of these factors were addressed by the trial judge. Therefore, order is vacated; case remand for further hearings. Either party may present evidence on remand whether additional considerations should now be entertained, and others abandoned. Joshua is now fourteen years old. May have his own view of the matter Trial judge should determine whether Joshua is of sufficient maturity that his preference regarding his surname should be considered.
Child support.
261 Record does not disclose how original $200 weekly order was determined. Appeals Court proceeds on the narrow question of whether, on application of the guidelines to the facts of this case, there is a greater than twenty percent discrepancy between the current order and a proposed new order under the guidelines. If guidelines applied and no discretionary adjustments made, order would be $379. Trial judge incorrectly concluded that the guidelines are inapplicable because the father's income exceeded the threshold income level. Guidelines apply up to $75,000 for a non-custodial parent. Guidelines need not be applied to income above $75,000. Pearson v. Pearson, 52 Mass. App. Ct. 156, 159-160 (2001). Based on the judge's findings, and additional facts that, as we will indicate, are supported by uncontested evidence, Schuler v. Schuler, 382 Mass. 366, 371 (1981), we do not think the judge abused his discretion in failing to increase support. See Buckley v. Buckley, 42 Mass. App. Ct. at 723. Modification would not have been called for unless the proposed new order was equal to or in excess of $240 per week.
Calculation of Guideline Support Order: Father's annual gross income - $75,000. Less, $6,000 paid for support of daughter from another relationship.($75,000 - $6,000) x (27% - 2%) or $1,396.92 x .25 = $331.73. "Totality of circumstances" sufficient to justify a two percent decrease from 27% where Father is 58 year old insulin-dependent diabetic In poor health. Unable to obtain health or life insurance. Resides in a houseboat that is in a state of considerable
262 disrepair. Plus 10% (based on child’s age) or $331.73 + $33.17 = $364.90. Preamble to guidelines say they are intended to 'encourage joint parental responsibility for child support in proportion to, or as a percentage of, income.'" Crowe v. Fong, 45 Mass. App. Ct. at 677. To reflect custodial parent's contribution to support, the basic support figure is reduced by the net result of use of a formula (proportion of custodial parent income bears to total parental income, with custodial parent income subject to a "disregard" of "up to a maximum of $15,000." Mother earns $26,500 working 30 hours per week. Additional hours are available to her. Mother does not work full-time in order to be available to take her three children to their various after-school activities. Her husband pays half of the approximately $1,200 in total weekly household expenses. Family car is provided by the husband's employment. Based on these facts, judge had discretion to apply some or none of the "disregard" to the mother's annual income of $26,500. With no income disregard, basic support is reduced by nearly twenty-eight percent. Guidelines provide for adjustments reflecting cost of child's health insurance costs.
Mother’s husband’s employer - provided family insurance provides coverage for Joshua.
Father was order to pay ½ Joshua’s extraordinary uninsured medical and dental expenses which was $40.38 per week, thereby reducing basic support to $223.26. Guidelines provide in these circumstances "consideration
263 toward a reduction in the child support order should be given." Massachusetts Child Support Guidelines II-G(3).
Probate judge did not abuse his discretion in declining to modify support because a proposed new order would not have been equal to or in excess of $240 per week.
Judge did not abuse his discretion when, after calculating the amount of child support due under the guidelines, he concluded that no increase in the original amount of $200 per week was warranted. See O'Meara v. Doherty, 53 Mass. App. Ct. at 605.
Conclusion. Child support is affirmed. Vacate order requiring child to be known as Mason. Remanded to probate court for further hearings on name change.
264 ALIMONY LIVES AGAIN !
Obstructionist Conduct Justifies Award of Legal Fees.
Divorce and Separation, Modification of judgment, Alimony, Attorney's fees.
DOWNEY v. DOWNEY , 55 Mass. App. Ct. 812 (September 12, 2002)
Janet H. Pumphrey (Russell R. Kadl with her) for Gerald F. Downey Richard D. Packenham for Carol A. Downey.
The Law.
Re: Attorney's fees:
“The judicial setting of counsel fees involves a consideration of ‘numerous, complex variables.’ " See Robbins v. Robbins, 19 Mass. App. Ct. at 543. See generally 1 Kindregan & Inker, Family Law and Practice §§ 6.4 (2d ed. 1996)
Much “discretion must be accorded a judge in determining the necessity and amount of attorney's fees.” Robbins v. Robbins, 19 Mass. App. Ct. at 543. Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996).
An award of counsel fees is "presumed to be right and ordinarily ought not to be disturbed." Ross v. Ross, 385 Mass. 30, 39 (1982),
265 quoting from Smith v. Smith, 361 Mass. 733, 738 (1972).
Re: Modification:
"To be successful in an action to modify a judgment for alimony . . . , the [plaintiff] must demonstrate a material change of circumstances since the entry of the earlier judgment."
"The change may be in the needs or the resources of the parties . . . or in their respective incomes."
"The determination of the extent and palpability of such change, however, lies in large measure within the discretion of the trial judge." Judge must weigh all relevant circumstances.
"Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial."
While it can be argued (1) the only material change of circumstances was the wife’s loss of child support upon emancipation of the youngest child, and where the wife's resources were sufficient for her support, (2) emancipation was not unexpected, and (3) modification cannot be based on an anticipated event, these parties agreed in 1991 that wife retained the right to raise the issue of alimony upon the emancipation of the youngest child.
The parties' reservation of the wife's right to revisit the question of alimony constitutes a tacit acknowledgment that the real financial circumstances of the wife could well change upon the child's emancipation.
Emancipation of a child does not automatically result in a reduction in
266 support.
The fundamental purpose of alimony is to provide economic support to the dependent spouse.
Facts. January 25, 1982 - complaint for divorce Husband earned $34,000; Wife earned $5,340 in 1982. Each listed interest in marital home as primary asset. September 23, 1982 - agreement merged into divorce judgment Wife granted physical custody of three minor children Husband pays $225 alimony and support (34% of gross income), deductable by husband, includable in wife’s income No specific provision for end of alimony or child support obligation.
June 25, 1990 - wife’s complaint for modification, claiming Husband making substantially more money and youngest minor child was a full time student. February 26, 1991: · Husband's gross income $61,750 a year. · Husband's assets worth $164,200, including his ½ interest in former marital residence (which the husband valued at $87,350) and pensions · Wife's gross income $30,500 a year. · Wife’s assets - $124,000, including her one-half interest in the former marital home (which she valued at $100,000). Written agreement, incorporated in a temporary order: weekly child support increased to $275 (23% of husband's gross income) not tax deductible by husband, nor included as income by wife. Wife retains right to raise alimony issue on emancipation of child No judgment of modification entered.
267
November 5, 1996 - wife’s complaint for modification · wife in need of support · Husband’s income $82,368 a year, plus $1,000 interest income. · Husband's expenses and those of his current wife, exclusive of mortgage and property tax payments and alimony, amounted to $752 a week. · Husband assets - $267,506. · August 28, 1998 - temporary order terminating husband’s child and college support but required him to pay $300 to meet wife’s present financial needs.
At trial: • Husband is college professor, age 62. • Wife is a legal secretary, age 58. • Wife earned $33,500 a year, plus $3500 interest and dividend income. • Wife’s net income, exclusive of alimony, was $764.78 a week. • Wife’s weekly expenses, exclusive of attorney's fees and income taxes, amounted to $950. • Wife’s assets - balance of sale proceeds from marital home ($89,006), an IRA ($12,000), and an automobile. • The emancipated child residing with wife was working for one year in a public interest job at an extremely modest salary. • The child does contribute money to wife, but pays her own bills.
Probate Court Order (Duffly, J.)
Husband to pay $275 weekly alimony to ex-wife Husband to pay $25,000 for wife’s attorney’s fees.
Probate Court Rationale
268
Due consideration is given to parties' agreements, including wife's retention of the right to seek alimony upon emancipation of the youngest child).
Loss of $14,200 child support constitutes sufficient change in circumstances to warrant consideration of wife’s claim.
Wife’s income was never sufficient to allow her to provide adequately for her own needs.
Wife should not be required to deplete her assets in order to maintain herself.
Wife needs $275 weekly alimony to meet her needs.
Husband has the ability to make that payment.
Appeals Court
Judge considered all relevant factors, including the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings and caused the wife's counsel to engage in extraordinary discovery efforts.
The judge did not abuse her discretion or otherwise erred as matter of law in ordering the husband to pay to the former wife alimony in the amount of $275 a week.
269
The court's award was grounded on "strictly conservative principles."
Wife's request for double costs and attorney's fees on appeal is denied.
270 AS BETWEEN THE EX-HUSBAND’S POCKETBOOK AND THE PUBLIC’S POCKETBOOK, THE COURT CHOOSES HIS!
Cannot have an abrupt termination of alimony which would cast ex-wife below poverty level income, without consideration of making ex-husband use his assets or a lower, but on-going order, or both.
If You Have A High Tolerance For Pain, Read This Opinion to See the Appeals Court Jump Ugly on Retired Judge Shaevel’s Head.
CHARLOTTE KATZ vs. NATHAN KATZ. 59 Mass. App. Ct. 472 (2002) December 6, 2001. - July 19, 2002.21
Abbe L. Ross for Charlotte Katz; Phyllis K. Kolman for Nathan Katz.
Facts: June 1956: Katzes married. May 1970: Katzes separated. July 7, 1976: complaint for divorce filed in Norfolk Probate Court. June 1983: Judgment of Divorce · Charlotte - 48; Nathan =- 51.
21The Appeals Court lambasts Judge Shaevel (retired), but ignores it took from the late 1997 judgment to July 19, 2002 to issue its opinion. Is it fair to wait five (5) years and then retroactively impose the 1993 (higher) order of alimony?
271 · Three children: 2 were minors at time of divorce. Separation Agreement: · Nathan ordered to pay, inter alia: $550 per weekly unallocated alimony and child support Charlotte - no cut off date. Charlotte's life and health insurance premiums. Charlotte a lump sum of $100,000 on January 31, 1993, per the terms of a $315,000 promissory note then payable to Nathan by his employer. · Charlotte got sole ownership of Quincy marital home. · Nathan retained Brookline condo purchased in the 1970's. Nathan then employed in a family retail business, earning $86,000 per year. Charlotte: · Was homemaker and primary caretaker of the children. · Had no marketable skills. 1983: Nathan remarried shortly after divorce. For next 9 years, Nathan complied with all of the terms of the judgment. 1991 - Nathan earning $125,000 a year from the family business. January, 1992: · Nathan forced out of the business and into early retirement at age 60. · Nathan remained a "consultant" Receiving $96.15 per week, $3,000 year "clothing allowance." All-expenses paid automobile - for the next five years. 1992: Complaint for Modification by Nathan: · Alleges materially changed employment and financial circumstances. · Seeks reduction of his support obligation to $175 a week. · Temporary order: Cut payment to $450 per week alimony.
272 All children emancipated · Nathan’s: interest and other income - $520 per week. weekly expenses - $1,288, including cost of Charlotte's alimony ($450) and insurance ($54.03). Total assets - $732,470, including interest in Brookline condo. Liabilities: his share of outstanding mortgage on condo. Then age 61, claimed numerous health problems. · Nathan claimed: He had to use assets to meet his expenses. Without relief, he would deplete those assets in ten years. · Charlotte's: Assets - $196,000 (equity in marital home and anticipated $100,000 lump sum payment from the promissory note.) Liabilities - $25,519, plus mortgage. Income - $515 per week, including $450 alimony and interest income from the $100,000 payment. Expenses - $546. The net result - living now "a spartan lifestyle." · Parties’ adult daughter, Dayle, lived with Charlotte, Paid no rent, but made some contributions to expenses.
March, 1993: Judgment of Modification. (Eileen M. Shaevel, J.) · Nathan’s alimony permanent reduced to $450 per week. · Rationale for rejecting deemed decrease, judge said: "Nathan's financial security is set for the foreseeable future." "Charlotte almost totally dependent upon Nathan for her support." Nathan will enjoy financial benefits from his former employer for another four years. Nathan "will be relocating to Florida where he expects the
273 cost of living to be less expensive." Nathan bought condo in West Palm Beach, Florida. · Used $112,000 of his investment funds. · Title taken as co-tenant with his second wife. Nathan continued to maintain his Brookline home. Nathan and second wife lived 8 months of the year in West Palm Beach and 4 months (June through September) in Brookline.
September 1996: Second Complaint for Modification by Nathan: · requested "reducing or terminating" his alimony obligation to Charlotte. Late 1997 trial: (Eileen M. Shaevel, J.) · Nathan claimed: He went to Florida for health reasons. Returned to Brookline for health reasons; and to spend time with second wife's mother, who lived in the Boston area. · Nathan’s: Assets - since 1993, decreased to $478,293.29 (which included his $307,700 equity "½ interests" in the two condos. Weekly income - $515.58 ($297.28 from interest income on investments and $218.30 from Social Security benefits.) Weekly expenses - $1,450.07, including the $450 per week alimony to Charlotte and $54.03 per week for her health insurance (an obligation that was, however, to expire in eighteen months when Charlotte would turn sixty-five). Liabilities (exclusive of mortgage) - went from zero to $26,600, all reflecting credit card debt. Mortgage balance on the Brookline condominium had declined to $23,000.
274 Nathan withdrew an average of $80,000+ from his investments every year since 1994 to support himself, second wife and meet obligations to Charlotte. Satisfaction of obligations to Charlotte totaled $26,208 per year. At that rate, “retirement assets will be depleted in or within four years." · Charlotte's: Assets - $176,066.24 ( $129,217.37 - equity in the Quincy home and $34,364.21 left from $100,000 she got in 1993.) Weekly income - $575.80 ($450 in alimony, $106.15 in Social Security benefits, and $19.65 in interest income). Weekly expenses - $622.75, $174.81 of which were her continued mortgage payments on a mortgage balance of $60,382.63). Liabilities, exclusive of the mortgage: • $5,500 owed on several credit cards. • $5,000 owed to her lawyers.
· Judgment of Modification: Nathan’s alimony obligation to Charlotte to be terminated as of July, 1999, after periodic $100 reductions. · Rationale: Nathan's lifestyle had "declined" to the level of "modest." Charlotte's lifestyle had not changed since 1993. Charlotte (almost 64) and Nathan (almost 66) continued to have "serious health problems." Both were unemployable. It was less expensive for Nathan to keep Brookline condo than to pay for a motel or renting an apartment in Boston when he and his current wife came north during the
275 summer months. Judge praised Nathan's frugality in the face of the decline in his lifestyle . • "He uses coupons to save money at the supermarket, dines out infrequently . . . no longer attends sporting events or the theater [and takes no vacation."] Judge critical of Charlotte's money management: • She opted to collect Social Security benefits at age 62, , rather than awaiting a larger benefit at sixty-five. • Spent over $56,600 of the $100,000 from the promissory note over the prior four years. • Did not efficiently manage $100,000 she received. • Refinanced home only achieved net saving of $10/ month. • Carrying credit card balance at "high finance charges." • Allowing Dayle, who worked and was capable of paying rent, to continue living with her rent-free. Dayle helped pay for certain items and "also leaves money for groceries." • Not willing to rent a room in her house in order to obtain additional income and help defray expenses. Substantial change in Nathan’s circumstances since 1993. Nathan is “using his assets to support himself and his wife, . . . [and] should not be required to reduce his assets to zero by paying a support obligation he no longer has the ability to pay.” This is one of those unfortunate cases where both parties have needs, and there is simply not enough money to go around."
276 Charlotte's motion to amend the findings and judgment was denied without hearing. Charlotte appeals.
Appeals Court
The judgment reflected an abuse of discretion. Reversed and remanded. Probate Court judges have great breadth of discretion when dealing with complaints for modification of alimony pursuant to G. L. c. 208, § 37. See Schuler v. Schuler, 382 Mass. 366, 368 (1981).
Even so, termination of Charlotte's alimony constituted, on this record, an abuse of that discretion and legal error.
Judge failed to evaluate and balance, fairly and equitably -- as was required -- all of the circumstances relevant to the totality of the parties' situations and to keep in mind "the fundamental purpose of alimony: to provide economic support to the dependent spouse." Gottsegen v. Gottsegen, 397 Mass. 617, 623 (1986). See Grubert v. Grubert, 20 Mass. App. Ct. 811, 811 (1985) (even "scrupulous and careful" effort by the probate judge is inadequate if it failed "adequately to take into account traditional alimony considerations and resulted in an inequitable award"); Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987) (modification decision must be based upon a balancing of all the financial and equitable factors); Huddleston v. Huddleston, 51 Mass.
277 App. Ct. 563, 570 (2001) (modification must be "consistent with common sense and justice").
Charlotte will not be able to satisfy her basic needs as a result of the judge's termination of all alimony.
Court takes judicial notice that Charlotte's no-alimony-weekly income would be $6,552, which places her well below the poverty level of $8,240 for a single person, raising the undesirable prospect of her becoming a public charge -- a result to be avoided as a matter of public policy. See O'Brien v. O'Brien, 325 Mass. 573, 578 (1950); Knox v. Remick, 371 Mass. 433, 437 (1976).
The dependent spouse's "need for support and maintenance [is to be evaluated] in relationship to the respective financial circumstances of the parties . . . [and] grounded in the supporting spouse's ability to pay," Gottsegen v. Gottsegen, 397 Mass. 617, 624 (1986).
The judge's analysis fell seriously short of the requisite full, fair and equitable consideration in several respects: By disparately treating Charlotte's and Nathan's financial situations. By ignoring assets available to Nathan for continued (if reduced) support of Charlotte. By overlooking the reality that Nathan's claim of impending impoverishment by virtue of having to pay anything at all to Charlotte rested upon his having incurred self-imposed, voluntarily assumed expenses with full knowledge of his legal obligation to support his former wife. By failing to give any consideration to the feasibility of Nathan's providing a continued, if lesser, amount of support to Charlotte. Judge's flawed rationale flowed from her employment of
278 a double standard in analyzing the parties' respective circumstances. Judge glossed over Nathan's move to West Palm Beach while retaining his Brookline condominium, resulting in maintaining two homes year-round, while reducing his investment income. Judge criticized Charlotte for not obtaining a better deal on the refinancing of her mortgage and not more profitably invested the $100,000. But in 1993, Judge noted Charlotte would be using part of the $100,000 to pay off existing liabilities Judge chastised Charlotte for not requiring her live-in adult daughter to pay rent and not taking in a boarder for additional income but ignored that Nathan never attempted to secure rental income for the eight months (approximating the normal academic year) his Brookline property stood vacant or for the four months his West Palm Beach condominium was empty.
The judge thus one-sidedly applied the principle that "[a] party has no right to waste an asset deliberately or ignore a feasible source of income . . . ." Pagar v. Pagar, 9 Mass. App. Ct. 1, 4 (1980).
An even more significant deficiency in the judge's evaluation was her failure to consider the extent to which Nathan's two properties could be utilized in reckoning his support obligation.
Capital assets should be used to evaluate a supporting spouse's ability to pay alimony in a modification proceeding. See Krokyn v. Krokyn, 378 Mass. 206, 213-216 (1979); Schuler v. Schuler, 382 Mass. at 375-376; Pagar v. Pagar, 9 Mass. App. Ct. at 8; Cooper v. Cooper, 43 Mass. App. Ct. 51, 53 (1997).
"Common sense and basic concepts of fairness support the notion that ownership of a valuable asset demonstrates ability to pay without
279 further inquiry as to whether payment can be enforced directly against the asset. . . . The law does not require that an obligor be allowed to enjoy an asset -- such as a valuable home or the beneficial interest in a spendthrift trust -- while he neglects to provide for those persons whom he is legally required to support." Krokyn v. Krokyn, 378 Mass. 206, 213-214. Nathan's claim, that his real property interests cannot be sold without the approval of his current wife, is both factually and legally unsupported, as well as irrelevant under the authorities cited above.
Since Nathan owned the Brookline condo before his remarriage, for alimony purposes "[i]t would be manifestly unfair to permit him to hide behind . . . his [presumed] transfer of [some interest in] the home into [his second wife's] name, to evade his [alimony] obligation to [his first wife] . . . [by such a] self-imposed [encumbrance]." Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (1997).
In any event, the assets should still be taken into consideration. Krokyn v. Krokyn, 378 Mass. 206, 210-214. See Shwachman v. Meagher, 45 Mass. App. Ct. 428, 430-432 & n.4 (1998) (either spouse can convey or encumber his or her interest in a tenancy by the entirety created after February 11, 1980, without the other's consent).
Similarly, the judge did not consider the income, potential income, or assets of Nathan's second spouse in assessing Nathan's overall financial capability. See Bak v. Bak, 24 Mass. App. Ct. 608, 623 (1987); Cooper v. Cooper, 43 Mass. App. Ct. 51, 55-56 (1997).
The judge's conclusions that Nathan will "be required to reduce his assets to zero" within four years and "no longer has the ability to pay" any support obligation were unsupported and manifestly erroneous in light of the facts of record and applicable legal principles.
280 So was her effective determination that Charlotte "could maintain herself without [any] assistance from the [former] husband." Barron v. Barron, 28 Mass. App. Ct. 755, 758 (1990).
Such a view was not only dismissive of the penury into which Charlotte was being thrust, contrary to public policy, but also disregarded the fact that, to a significant extent, the "limits on [Nathan's] ability to provide [continued] support to [Charlotte] are self-imposed . . . [and reflect] an obligor's ability to manipulate his resources to avoid his legal obligations." Barron v. Barron, 28 Mass. App. Ct. 755, 759 (1990). Cf. Schuler v. Schuler, 382 Mass. at 372 (an obligor's personal aspirations "must be balanced against his obligations to support his former [as well as] present families"); Newman v. Newman, 12 Mass. App. Ct. 874, 875 (1981) (the fact that an obligor whose income had diminished chooses to use his assets to satisfy other creditors rather than pay alimony is no defense to a contempt action for failure to pay).
The original judgment reflected no expectation or intention that Nathan's alimony obligation was to end short of his death or clearly established inability to pay. See Huddleston v. Huddleston, 51 Mass. App. Ct. at 570. Cf. Freedman v. Freedman, 49 Mass. App. Ct. 519, 523 (2000).
The abrupt termination of otherwise unconditional and indefinite alimony demands "clear and adequate explanation," Bowring v. Reid, 399 Mass. 265, 268 (1987).
An arbitrary limitation on the duration of an alimony obligation to a spouse whose needs are current and predictable is unwarranted when based on an assumption of future events, the occurrence of which is uncertain or unpredictable. See Goldman v. Goldman, 28 Mass. App. Ct. 603, 612-613 (1990); Martin v. Martin, 29 Mass. App. Ct.
281 921, 922-923 (1990); Ross v. Ross, 50 Mass. App. Ct. 77, 80-81 (2000).
The judge erroneously accepted the underlying premise of Nathan's effort to end his support of Charlotte, viz., his right to prefer his second family over his first.
"We do not believe that the [former husband] ought to be permitted to shift to the public the obligation he assumed when he married [his first wife]. It may be that because of his second marriage he will suffer some financial hardship, but the short answer to that is that he must have entered into the second marriage conscious of his obligations to his former wife so that the second marriage with its attendant obligations affords him no relief." O'Brien v. O'Brien, 325 Mass. 573, 578 (1950).
Of course, a support provider does not "have to deplete his total liquid or other assets in an effort to meet his support obligations". Schuler v. Schuler, 382 Mass. at 375.
Nathan's ability to pay, when considered in the context of the entirety of the parties' respective financial situations and upon an even-handed balancing of the equities, may well have become sufficiently straitened to warrant some, perhaps a substantial, lessening of his alimony obligation.
Holding:
At the time of the hearing on the complaint for modification, the evidence established the existence of valuable and potentially income-generating assets that were available to Nathan to pay some level of support without in fact impoverishing him, as well as the likely reduction of Charlotte to poverty, if not destitution, in the absence of any alimony, the termination of Nathan's alimony obligation without
282 appropriate consideration of all the relevant circumstances constituted reversible error.
The 1997 judgment of modification is reversed and the case is remanded to the Probate Court for further proceedings consistent with this opinion.
The 1993 order of alimony is reinstated as of the date of this opinion and is to stand until revision by a probate judge, who shall take into account, inter alia, whether any retroactive amounts shall be due.
Neither party is to have the costs of this appeal.
283 IF YOU AGREE YOUR EX-SPOUSE IS TO GET HALF YOUR DISPOSABLE MILITARY RETIREMENT OR RETAINER PAY, YOU CANNOT DIVEST YOUR EX-SPOUSE’S RIGHTS BY WAVING THAT PENSION IN FAVOR OF VA DISABILITY PAYMENTS.
Case of First Impression in Massachusetts - But Other Courts Have Decided the Issue the Same Way.
What! No Separate, Unique or Wacky Massachusetts Rule?
CONSTANCE E. KRAPF vs. ALBERT H. KRAPF 439 Mass. 97 (April 2, 2003)
On further appellate review from Appeals Court: Krapf v. Krapf, 55 Mass. App. Ct. 485, 492 (2002).
The Law on Separation Agreements:
(See Conclusions - Separation Agreements) (See Conclusions - Divorce )
Facts:
284 Twenty seven year marriage; three children. 1984: Al filed for divorce from Connie in Middlesex Probate Court. Al then 49, Connie then 51. Al on inactive or reserve duty in U.S. Army. Al then in good health; had no known or suspected disability.
December 5, 1985, judgment of divorce, incorporating agreement, which survived as an independent contract. Separation agreement, inter alia provides: · (1) Al to pay Connie $200 monthly alimony for 7 months Thereafter, “neither [party] will make any claim against the other for alimony, support or maintenance." · (2) Al would get court to enter order "allocating half his pension rights with the U.S. Army to the [Connie]." · (3) If agreement breached, breaching party "shall be responsible for all reasonable costs incurred by the non-breaching party to enforce" the agreement. June 2, 1986: · Per 10 U.S.C. §§ 1408(a)(2) (2000), court enters qualified court order directing Secretary of the Army to apportion to Connie 50% of Al’s "disposable retire[ment] or retainer pay" accrued as of December 5, 1985. "[D]isposable retired pay" excludes military retirement pay waived to receive VA disability benefits. See 10 U.S.C. §1408(a)(4)(B). May, 1994: After 37 years of service, Al separated from army. Department of Defense begins paying Al and Connie their respective 50% share of Al’s military retirement benefits, including periodic cost-of-living increases.22
22Per the separation agreement, Connie was entitled to 50% of Al’s "disposable retire[ment] or retainer pay [accrued as of December 5, 1985]” - NOT 50% of the total retirement pay! If Al’s retirement increased while he was in the reserves and Connie got ½ the total, she got more than she bargained for.
285 Early 1998: Without Connie’s knowledge, Al applied for VA disability benefits claiming he suffered posttraumatic stress disorder stemming from his wartime service in the army. April, 1997: VA classified Al as 10% disabled. April, 1998: VA reclassified Al as 50% disabled. June, 2000: VA reclassified Al as 100% disabled. With each determination of increased disability, Al received a commensurate increase in VA disability income. Federal law: · Prohibits a military retiree from "double dipping" into Federal retirement accounts. · Al signed a waiver that reduced his military retirement payments one dollar for every dollar of VA disability payments he received. Military retirement pay is subject to taxation. VA disability pay is exempt from taxation. See 38 U.S.C. §5301(a) (2000). "Not surprisingly, waivers of retirement pay [to receive VA disability benefits] are common." Mansell v. Mansell, 490 U.S. 581, 584 (1989). Al’s waiver impacted his military retirement pay and, therefore, the gross from which Connie was to receive her share. Connie’s monthly military retirement income was reduced: · April, 1997: from $1,009.04 to $969.09; · May, 1998: from $969.09 to $797.38; · June, 2000: from $787.38 to $145. As of April 4, 2001: · Al’s total monthly VA disability payment was $2,166, including a stipend for his current wife. · Al also received an additional monthly $145 in military retirement pay. Connie got $145 monthly military retirement pay.
Once Al got 100% disability rating, his
286 service-related income more than doubled, 23 while Connie’s fell by about 86%.
July 19, 2000: Connie filed contempt against Al. September 18, 2000: Contempt dismissed with prejudice: · No notation on complaint disclosing reason for dismissal. · Connie claimed Al argued his conduct was not contumacious such that Connie had to bring either modification or complaint for declaratory relief. · Connie did not appeal dismissal of Contempt. October 6, 2000: · Connie files Complaint for Declaratory Judgment. · Connie claimed: Al’s seeking and obtaining VA disability pay "defeated the intentions of the parties" under the agreement that Connie would receive ½ of Al’s military retirement pay. · Relief requested: Declaration of the parties’ rights concerning the VA and DOD payments. An award of money that would "restore [the plaintiff] to the financial position she would have enjoyed from April, 1997 to date." Counsel fees. · Al filed answer and Motion to Dismiss per: Mass. R. Civ. P. 12 (b) (5) and 12 (b) (6). · Al claimed: He was in compliance with the agreement. Connie was to get 50% of his disposable retired or retainer pay accrued as of December 5, 1985. Thus, there was no controversy.
23And let us not forget that his VA disability pay was tax-free.
287 Res judicata because of final and binding dismissal of contempt. · Case submitted: on the pleadings. on a statement of agreed facts. Filed financial statements showing: • Connie’s adjusted net weekly income at $389.13. • Al’s adjusted net weekly income at $1,423. • Connie’s assets - $103,000; liabilities -$9,000. • Al’s assets - $508,000; liabilities - $16,000. April 4, 2001: · Declaratory judgment for Connie. (Boorstein, J.) · Al impermissibly modified agreement by divesting himself of an asset he legally pledged to Connie. · Connie had a vested interest in and had a reasonable expectation of receiving income from Al’s disposable retirement or retainer pay. See Nile v. Nile, 432 Mass. 390, 398-399 (2000). · Al violated: His fiduciary obligation to Connie, see Eaton v. Eaton, 233 Mass. 351, 370 (1919). The covenant of good faith and fair dealing inherent in all contracts, see Kerrigan v. Boston, 361 Mass. 24, 33 (1972). Court's authority and obligation under G. L. c. 208, § 34 to provide equitably for divorcing spouses. · Agreement specifically enforced: Al to pay Connie: • an amount that, when added to the amount Connie currently received, was the equivalent of 50% of his pension "if same was in payout status." • Arrearages accumulated from April, 1997 to the judgment date. · No legal fees to Connie "[a]s this is a case of first impression
288 . . . ." Al filed a Rule 52 (b) Motion for Reconsideration: · Judgment amounted to an impermissible division of his military disability pay, violating 38 U.S.C. § 5301 (2000) (exempting VA disability payments from certain creditors' claims and enforcement mechanisms). · Motion denied (Boorsetin, J.) Al appealed from: · April 4, 2001, declaratory judgment. · Denial of his reconsideration motion. May, 2001, Connie moved: · To restrain Al from diminishing his assets. · For attorney's fees pendente lite to defend against the appeal. Allowed (Dilday, J.) Al filed: · Rule 52(b) motion for reconsideration of both orders - denied. · Motion to stay award of attorney's fees. · Both motions denied (Dilday, J.) Al timely files Claim of Appeal.24
Appeals Court
Judgment affirmed, except modified to include:
"a declaration that [Connie] is entitled to receive from [Al], pursuant to the agreement, a sum of money per month equivalent to [50%] of the monthly military retirement pay that [Al] would receive if his military retirement pay were not
24Note - Trap for the Unweary: Any claim of appeal is waived by the filed of a motion for reconsideration. Therefore, after the reconsideration motion is denied, in order to preserve the right to appeal, you must file another Claim of Appeal. Blackburn v. Blackburn, 22 Mass. App. Ct. 633 (1986).
289 reduced by the disability payments minus the monthly military retirement pay [Connie] receives directly from the [DOD]." Krapf v. Krapf, 55 Mass. App. Ct. 485, 492 (2002).
SJC
Takes case on Al’s request for further appellate review.
When agreement signed, Al's "pension rights with the U.S. Army" constituted divisible marital property to be equitably divided in accordance with G. L. c. 208, § 34.
Issue: Whether Al breached the agreement by waiving his military retirement benefits in order to receive VA disability benefits.
Contract interpretation is a question of State law to be decided by the court. Agreement does not define the term "pension rights with the U.S. Army."
Judge made no specific findings regarding the parties' intent in using those words. Agreement must be construed in a manner that "appears to be in accord with justice and common sense and the probable intention of the parties . . . [in order to] accomplish an honest and straightforward end [and to avoid], if possible, any construction of a contract that is unreasonable or inequitable." Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930).
There is no difficulty in concluding that the parties intended the term "pension rights with the U.S. Army" to mean exactly what it
290 says: the totality of benefits due to the defendant on his retirement from the army. Conclusions are drawn from the entire agreement itself and from the context of its execution. See Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930); DeCristofaro v. DeCristofaro,, 24 Mass. App. Ct. 231, 237 (1987) and cases cited. It is inferred that Al’s military pension was among the parties’ most substantial marital assets. Wife, in this long-term marriage, agreed to take a vested ½ interest in the military pension in exchange for waiving alimony, support, or maintenance. It is highly unlikely she did so while intending to give Al carte blanche to reduce the value of her pension to a pittance in order to benefit himself. There is no such authorization in the agreement. The agreement gave Connie a "reasonable expectation" that she would receive pension income in her later years. See Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000). As of the date of the agreement, Al was able bodied and no longer on active duty, and had reason to anticipate a disability claim stemming from his active service. Al’s unilateral waiver of the joint military retirement rights serves to confirm, at the time they signed the agreement, each party expected and intended that Connie would receive ½ of Al’s full "pension rights with the U.S. Army" when he retired. Connie’s interest in the military retirement benefit was reduced because of Al's unilateral and voluntary action. We respect Al’s long years of service and sacrifice in the armed forces. That does not change the conclusion that, by converting his and Connie’s military retirement benefits to VA disability benefits for his own benefit, he denied Connie the fruits of her bargain in breach of his continuing duty to exercise the utmost good faith and fair dealing in performing his obligations under the agreement. See Nile
291 v. Nile, 432 Mass. 390, 398-399 (2000) (breach of implied covenant of good faith and fair dealing does not require showing of bad faith; lack of good faith may be inferred by considering totality of circumstances). In Nile, in a modification, an ex-husband agreed to bequeath the majority of his estate to the children of his former wife. Ex-husband put most of his assets into a revocable inter vivos trust in favor of his new wife. When he died, children of his former wife were left with nothing in the probate estate and very little from the trust. By destroying or injuring the rights of the children of his first marriage to receive the benefit of his agreement with his former wife, the decedent breached his continuing duty of good faith and fair dealing. See Nile v. Nile, 432 Mass. 390, 398-400 (2000), and cases cited. We rejected the trustees' argument that the agreement merely required the decedent to leave the bulk of his "probate" estate to his heirs, while leaving the decedent free to empty the probate estate of all value. Nile v. Nile, 432 Mass. 390, 399 (2000). A court of equity will not countenance such "questionable logic," nor permit "an individual to have an estate to live on but not an estate from which his debts could be paid." Nile v. Nile, 432 Mass. 390, 400 (2000). Federal law permitted Al to seek and obtain VA disability payments. Characterization of Al’s disability and degree of impairment rested with the VA. A court in equity will not sanction voluntary action that amounts to an "evasion of the spirit of the bargain." Larson v. Larson, 37 Mass. App. Ct. 106, 110 (1994), quoting Restatement (Second) of Contracts §§ 205 comment d (1981). See Nile v. Nile, 432 Mass. 390, 398-399 (2000) To conclude otherwise would negate a divorcing spouse's high obligation of good faith and fair dealing in both the execution and the
292 performance of a surviving separation agreement
Declaratory Judgment issues: We reject Al’s argument that the judge improperly transgressed the declaratory judgment statute by effectively converting a declaratory judgment action under G. L. c. 231A into a modification proceeding under G. L. c. 208, §§37, and then reapportioning the division of marital property contrary to established law. Declaratory judgments are designed "to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations." G. L. c. 231A, § 9. A judge may order monetary relief in a declaratory judgment action. See Trustees of Dartmouth College v. Quincy, 331 Mass. 219, 227-228 (1954). It was Al, not the court, who unilaterally and impermissibly accomplished a de facto modification of the agreement. The judge merely exercised her well-established equitable authority to construe the agreement to effectuate the parties' intent in circumstances where the contracted-for method of paying Connie’s equitable share of the marital estate was no longer available because of Al's actions. The Federal act does permit courts to order alimony payments from VA disability benefits. See 10 U.S.C. §§1408(a)(2)(B)(ii). This judgment does not divide Al’s VA disability benefits in contravention of Federal case law. The judgment merely enforced Al’s contractual obligation to his former wife, which he may satisfy from any of his resources.
The judgment must be modified to declare the respective obligations of the parties.
Attorney's fees.
293 The agreement provides that a party in breach of its provisions shall be "responsible for all reasonable costs incurred by the non-breaching party to enforce" the agreement. Once Al was found to have breeched the agreement, it was reasonable to order Al to pay Connie’s legal fees, since Al elected to continue with the litigation. See Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dep't of Mental Retardation (No.1), 424 Mass. 430, 468 (1997) (attorney's fees may be awarded by contract of stipulation, by statute, or by rules concerning damages). Cf. G. L. c. 208, §§ 38 (permitting award of attorney's fees at judge's discretion in original or subsidiary actions under G. L. c. 208).
Res judicata. The record was not sufficient to enable the appeals court to determine the judge's reasons for dismissing the complaint for contempt with prejudice. Krapf v. Krapf, 55 Mass. App. Ct. 485, 492 (2002). At least two things may be inferred from the dismissal by the judge: That Al did not violated the agreement by waiving his military retirement benefits for VA disability payments. That an action for civil contempt was the wrong vehicle to resolve an issue of contract interpretation. See Diver v. Diver, 402 Mass. 599, 603 (1988) (civil contempt cannot be found absent proof of "a clear and unequivocal command" and "ability to comply"). Al did not meet his burden of proving that Connie’s declaratory judgment action should have been dismissed.
Held: The declaratory judgment as modified by the Appeals Court is upheld as is the award of attorney's fees pendente lite. Affirm the denial of the defendant's motions for reconsideration.
294 BERGERIZING HAS NOTHING TO DO
WITH MAD COW DISEASE.
How do you value a life estate in a cooperative apartment? Think of it as a pension.
GLN comment - somebody took a stupid pill before trying this case.
Husband’s financial statement, stipulation and testimony valued his interests in trusts the same as the principal value of each res, even though he only had an interest in income in one trust and principal in both and income in the other being subject to a spendthrift clause.
If husband did this on purpose, sad for him. If his lawyers failed to know enough to offer needed evidence, sad for them!
There was substantial evidence supporting the valuation assigned to wife’s trusts and no evidence offered to support a value different from that testified to and stipulated by the husband for his interests in trusts.
SUSAN F. CHILD vs. JOSIAH H. CHILD, JR. No. 01-P-71. Under advisement for 9 months: September 11, 2002. - May 12, 2003.
295 Case and Motion to reopen evidence ( Jeremy A. Stahlin, J.) James S. Dittmar (Robert J. Rutecki with him) for husband.Ellen S. Zack for wife.
The Law.
[Please see “Conclusions of Law”] A probate judge has broad discretion in awarding alimony and making equitable property divisions, but must consider the mandatory factors of and may consider the discretionary factors of G. L. c. 208, § 34. Drapek v. Drapek, 399 Mass. 240, 243 (1987).
Where there is a question of valuation concerning a marital asset, a trial judge, when faced with conflicting expert evidence, may accept or reject all or parts of the opinions offered. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989), and cases cited. See Dewan v. Dewan, 30 Mass. App. Ct. 133, 135 (1991).
"[T]he judge may reject expert opinion altogether and arrive at a valuation on other evidence. Unless clearly erroneous, the trial judge's determination of value will stand." Fechtor v. Fechtor, supra at 863. (Citations omitted.) See Mass.R.Dom.Rel.P. 52(a) (1987).
If a party does not appeal from the dissolution of the marriage, the dissolution becomes final, Mass.R.Dom.Rel.P. 62(g) (1992), while the rest of the appeal continues.
Facts.
48 year marriage; three adult children. Parties accumulated considerable property by work, skill, and
296 inheritance. Wife inherited from her mother’s estate a life estate in of 14-room penthouse 81 Beacon Street, Boston, MA cooperative apartment. · Wife required to pay all monthly expenses associated with the apartment. · Wife’s ability to rent apartment limited to a term of less than two years. · Her mother's estate retained the right to sell the apartment. · In case of sale: Wife loses use of the apartment. Wife entitled, under mother's will, to receive only the income from ½ of net sale proceeds. Wife's actual interest in apartment more in nature of a limited tenancy at will. Traditional life estate, defined by husband's expert, is the "right to the use, possession, and income from a piece of property for the lifetime of an individual . . . ."
September 1998: wife filed for divorce. There were two trusts in favor of husband: · Parkinson Trust Trustees had sole discretion to distribute income and principal to the husband or for his benefit. · DeBonand Trust Income must be distributed to husband. Distribution of principal, in sole discretion of Trustees, to husband or for his benefit.
Valuation of cooperative apartment. · Edward Berger, expert retained by wife. · Berger relied on estimate of current fair market rental value of parties' joint expert, Steven Elliot. Elliot testified current rental value of apartment was
297 $7,500 per month. Berger deducted monthly charges of $3,403 that wife was obligated to pay as a condition both of her retaining the life estate and the right to live in the apartment The difference amounted to $4,097 per month. Berger then computed the present value of a single life annuity, paid to the wife for her lifetime, of $4,097 per month. The value of the wife's interest in the apartment thus achieved was $476,222. Judge accepted this method of valuation, but · Reduced the expenses because cost of heating the apartment had been double counted. · The present value after this correction computed to $493,657.
Parties stipulated to a $2.3 million value for apartment based, in part, on 2-year old sale of a comparable apartment on the 10th floor at a then price of $1.8 million. As trial concluding, parties became aware of pending sale of 10th floor apartment. · Husband moved evidence be left open re value of 10th floor apartment so he could offer additional evidence. · January 9: 2000 order: Husband given to January 21, 2000 to file motion to present additional testimony from real estate appraiser, on “grounds the appraiser has a new opinion as to fair market value, provided the motion is accompanied by an affidavit from the appraiser." · March 13, 2000: Husband filed motion to introduce new evidence. Husband’s affidavit claimed 10th floor apartment under agreement to be sold in April, 2000, for $3.17 million.
298 No affidavit from the appraiser. Husband claimed appraiser now had $2.57 million valuation. January 2000: trial concluded. Months later, husband filed “Motion to Reopen Evidence” to offer additional evidence with regard to the marital home. September 2000: · Judgment of divorce nisi. · Memorandum of decision. · Denied husband's motion to reopen evidence. November 2000: · Corrected memorandum of decision, eliminating the double counting of one asset, nunc pro tunc to September 29, 2000. Husband appeals from the judgment awarding certain property to wife; and from denial of motion to reopen the evidence. December 29, 2000: divorce absolute.
Appeals Court
We consider the trial judge's findings and rulings with respect to valuation against this well rehearsed background. The property award, set out in sparse but appropriate findings,25 and partially based on a stipulation of the parties, reveals again the complexities that arise in attempting to fairly allocate property when parties separate. Husband claims error in four aspects of the judge's decision: (a) in the valuation assigned by the judge to the wife's life
25Why does the Appeals Court take a back-handed slap at the trial judge? The findings were, as it admits, sufficient. Is there a need to say more, just to take up space and time?
299 estate in the marital residence - a cooperative apartment formerly owned by wife’s mother ; (b) in the value assigned by the judge to two discretionary trusts; (c) in the treatment given by the judge to the husband's and wife's property interests; and (d) in the allocation that the judge made of the marital estate between the husband and wife. Husband also claims abuse of discretion in refusing to reopen the evidence in order to take additional testimony on the value of the marital residence.
Valuation of the cooperative apartment.
Husband argues reversible error resulted because Judge relied on speculative methodology - as net rental income is contingent and subject to changes due to market conditions. Valuation has no basis in the evidence because Berger had no information about future fair market rental value and future expenses, his opinion and facts were devoid of evidentiary support. Valuation inconsistent with U.S. Treasury regulation on which the valuation was based. XII. Husband's argument ignores that value of wife's life estate must be taken at the time of divorce (or the time that consideration is given to the property division). Judge has flexibility in determining the exact date at which assets must be considered and valued. Husband’s attempt to consider potential future increases (or decreases) in rental value and expenses violates the partnership principle upon which property division is predicated. Compare Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 (1985). ("To hold that property interests acquired after the dissolution of the marriage are subject to division under § 34 would be contrary to the marital partnership concept on which § 34 is founded").
300 Husband failed to demonstrate how, if used, there would be an applicable difference if annuity tables for life estates established in a U.S. Treasury regulation were used instead of another table similarly established by the U.S. Treasury. There was no clear error in valuation method adopted by the judge, who was free to reject the opinion of the husband's expert and the valuation methods on which it was based, and to adopt that proffered by the expert for the wife. Fechtor v. Fechtor, 26 Mass. App. Ct. at 863. Judge did not abuse discretion in refusing to reopen the evidence. XIV. Decision to admit additional evidence after the case is closed lies in the sound discretion of the trial judge. See Jones v. Vappi & Co., 28 Mass. App. Ct. 77, 83 (1989), and cases cited. Husband offers no reason why his motion and affidavit of the appraiser could not have been filed on or before the date due, even if all of the information necessary for a hearing on the motion would not be forthcoming until a later date. Husband had some evidence the agreed-upon sale price of 10th floor apartment far exceeded the 3-year old sale price. Husband offers no reason for his failure to submit appraiser’s affidavit. Appraiser determined fair rental value based on comparable rental values at the time of the appraisal. Judge determined value of Property based on its present fair market rental value. Husband offers no evidence that the Property’s fair rental value would differ based on a different or higher market value of the apartment itself.
Valuation of the trusts.
As to Parkinson Trust, husband had no "present, enforceable, equitable right to use the trust property for his [own] benefit," Lauricella v. Lauricella, 409 Mass. 211, 216 (1991). As to DeBonand Trust, husband’s rights are limited to distribution of the trust income.
Husband’s Rule 401 financial statement included, among his assets, the principal values of the trusts.
301 These values were later submitted to the court in a stipulation signed by both parties. Husband did not attempt to provide evidence or argue for a different, reduced value of the assets, based on the provisions of the trust instruments.
Husband’s testimony confirmed the value of the assets as being their principal value. Even though husband has limited rights in the trusts, that is not conclusive in the judge's determination of what portion of the trust res to include or the value to be placed thereon. "In making the determination of what to include in the estate, the judge is not bound by traditional concepts of title or property. 'Instead, we have held a number of intangible interests (even those not within the complete possession or control of their holders) to be part of a spouse's estate for purposes of §§ 34.'" S.L. v. R.L., 55 Mass. App. Ct. 880, 882 (2002), quoting from Baccanti v. Morton, 434 Mass. 787, 794 (2001).
Husband did not try to prove at trial that his interests are "too remote or speculative" to be included in the marital estate, S.L. v. R.L., supra at 882, and do not present any opportunity for future acquisition. See Williams v. Massa, 431 Mass. 619, 628-629 (2000).
Because Massachusetts has an expansive view of the marital estate, it may include a beneficial interest in a trust, notwithstanding that distribution of that
302 interest has not occurred and may be conditioned on factors outside of the spouse's control, see Lauricella v. Lauricella, 409 Mass. 211, 216 (1991), “exclusion of the principal of the trust res, or inclusion of the principal at a different and lower value, is not a foregone conclusion based upon the husband's seeming lack of a ‘present, enforceable, equitable right to use the trust property for his benefit.’ Ibid.”
"The general rule is that an issue not raised in the trial court cannot be argued for the first time on appeal." M.H. Gordon & Son v. Alcoholic Bevs. Control Commn., 386 Mass. 64, 67 (1982).
We see no reason to exercise our discretion to consider the issue of valuation here, as it does not raise "important questions of public interest." Filippone v. Mayor of Newton, 392 Mass. 622, 627 n.8 (1984). Trial judge was well within his discretion in adopting the husband's stipulated statement of the values of the trusts.
Property Division.
Judge was well within his discretion in establishing the property division award in this case.
303 A property division is not reversed unless we find it "plainly wrong and excessive." Baccanti v. Morton, 434 Mass. 787, 793 (2001), and cases cited. The court's valuation of the various assets of the parties was amply supported by evidence presented by the parties.
The Shot Between the Eyes.
The court arrived at a fifty-fifty division of the assets, reasoning that, because many of the parties' assets are held in discretionary trusts, a precise percentage allocation was not possible, and that the assets should be left so that the parties would each retain assets in their own name, even though he concluded that, based on the relative contributions of each to the marriage and on the husband's conduct during the latter stages of the marriage, a sixty-forty division in favor of the wife might have been appropriate.
Conclusion.
Review of the record clearly shows that, both in the determination of values and in the ultimate division of the assets, the trial judge properly exercised his discretion. See Baccanti v. Morton, 434 Mass. 787, 793 (2001). Fechtor v. Fechtor, 26 Mass. App. Ct. 849, 863 (1989).
Judgment affirmed.
304 IF THERE IS NO OTHER WAY, HOLD YOUR NOSE AND GO FOR “IF, AS AND WHEN!”
Alimony, Division of property; trust property
S.L. v. R.L. 55 Mass. App. Ct. 880 ( September 18, 2002) Trial judge: Hon. Edward J. Rockett. Robert J. O'Regan for S.L. (Wife); Michael T. Cetrone for R.L.(husband)
The Law
Assigning interests in the marital estate is based on Section 34 factors Williams v. Massa, 431 Mass. 619, 625 (2000).
In deciding these questions about whether certain assets are part of the estate, judge is not bound by traditional concepts of title or property.
A number of intangible interests (even those not within the complete possession or control of their holders) have been held to be part of a spouse's estate for purposes of 34. Baccanti v. Morton, 434 Mass. 787, 794 (2001), quoting from Lauricella v. Lauricella, 409 Mass. 211, 214, 216-217 (1991) (vested beneficial interest in a trust may be divided.)
"When the future acquisition of assets is fairly certain, and current valuation possible, the assets may be considered for assignment under 34." Williams v. Massa, 431 Mass. at 628.
Contingent remainder interests in trusts are “mere expectancies” and may be excluded. Id.
305
Remote or speculative interests should be weighed under "opportunity of each [spouse] for future acquisition of capital assets and income." Id., at 629.
A remainder interest in a trust, subject to survivorship and a spendthrift clause is divisible under 34. Davidson v. Davidson, 19 Mass. App. Ct. 364, 372-373 (1985) Inclusion turns “more on the particular attributes of the respective disputed interests than on principles of general application." Lauricella, 409 Mass. at 215-216.
Facts:
32-year marriage; 2 children (now grown). Husband employed as a public accountant until 1977 (per fn. 2.) Post 1977, husband ran a business jointly acquired by the parties (per fn. 2.) Wife intermittently worked part-time outside the home (per fn. 2.) Upper middle class life-style Husband’s earning provided principal source of income. 1995: Wife filed divorce.
Wife is beneficiary under six trusts, viz: W.C. marital trust: · Wife’s mother has, exercisable in her will, a power of appointment of remainder. · Wife’s remainder interest is subject to complete divestment. Other four trusts: · Wife has vested remainder interest, subject only to her surviving her mother, in
306 · Two trusts - as a life income beneficiary; and · Two trusts - as outright distribution of corpus. One trust, not detailed in the opinion other than to say wife did not raise an issue on appeal about its disposition. (per fn. 3.)
At time of trial: Wife age 55 in good health Wife’s mother age 77 Trusts conservatively administered, with history or preserving capital, despite discretionary authority to make distributions of principal to mother.
Trial Court held:
• Wife has “vested interest” in five trusts26 • All five trusts included as marital property • Ability to assign a present value does not turn on whether wife is beneficiary of the underlying assets or a stream of income. • Value of non-trust marital property just under $700,000 (per fn. 6.) • Judgment valued wife’s interests in trusts at $2,000,000+ (essentially adopting values set by husband’s expert) (per fn. 6.) • Unnecessary to set value on trust interests, as they are being treated
26Appeals Court, in fn 5, states judge did not state basis for this finding. Appeals court says judge was “inaccurate” in calling wife’s interest in the trusts (which depend upon her surviving her mother) as “vested.” But, even though wife has to survive her mother to get paid as a life income beneficiary, the Appeals Court opinion describes that interest as “vested.”Go figure.
307 as wife’s “future interest in ... [trusts] as a stream of income.”27 • Controversy over valuation was immaterial, given the “if and when” distribution (per fn. 6.) • Value of trusts excluded from consideration of division of marital assets, but that “if and when” wife receives distributions from the trusts, the husband is entitled to get 20% of those distributions.28
Appeals Court:
Inclusion of Trust Interests:
Wife’s interest in W.C. marital trust, being subject to complete divestment, is “equivalent of an expectancy under a will and should have been excluded from the assets divided as part of the marital estate and, instead considered under § 34 criterion of “opportunity of each for the future acquisition of capital assets and income. See Williams v. Massa, 431 Mass. at 629. ....” Since W.C. marital trust was less than 4% of aggregate trust value, there is no need to remand for redetermination of property division because this trust excluded from marital property and being placed into “opportunity of each.....” (per fn. 14.) Trust assets, which may be received upon surviving of a beneficiary, may be included in the marital estate.
Wife’s interests in four remaining trusts properly included in the marital estate.
Disposition of Trust Interest:
27 The Appeals Court notes the wife is not being asked to pay alimony.
28 Wife did not challenge the 80/20 division on appeal.
308 Distributing assets on an “if and when” basis is generally disfavored. If there are NOT sufficient assets available to divide present value of future interest in assets without causing undue hardship to either spouse, use of “if and when” method is warranted and appropriate. In future, division of future interests on an “if and when” basis must explain the basis for doing so. Remand, on whether husband should get 20% of this 4% - which is an expectancy, would “exacerbate one of the reasons for disfavoring “if and when” distributions - they promote “continued strife and uncertainty between the parties. Dewan v. Dewan, 399 Mass. at 757 (per fn. 15.) Judge permissibly employed the "if and when received" method for distribution of the wife's interest in those trusts.
Alimony award.
Husband’s income, less his expenses, leaves him a net - which is roughly equivalent to his weekly alimony obligation. Husband’s expenses include mortgage on house, the proceeds of which were used to buy a sail boat. The weekly alimony, plus wife’s other income exceeds her weekly expenses. There is no reason to disturb the judge's alimony award under the broad discretion extended under 34. Williams v. Massa, 431 Mass. at 634.
309 Chudakarana? or Not to Chudakarana.
That is the Question.
Many cultures and traditions do not translate well to Massachusetts.
SAGAR v. SAGAR, 57 Mass. App. Ct. 71 (January 14, 2003)
This case extends the discussion in Kendall v. Kendall, 426 Mass. --- (20–) providing more guidance on how much a trial judge can get into and impact a religious practice.
One wonders, after reading the facts, if Mother said “no” to Father as a way to exert her independence from him, after suffering through years of his physical and emotional abuse. And, at the same time, if he truly believed atonement was required, to force him to endure a 12-day fast, interrupted on three days by consuming cow dung. Is that on the Atkins diet?
If you have a case involving religious practices, then Sagar is mandatory reading if, for nothing else, its law and the cites to other relevant cases.
FACTS ABOUT HINDU.
Chudakarana: A Hindu religious ritual. A ceremony involving tonsure and prayer. While mantras are recited, a priest removes hair from five parts of the child's head, offering some of the hair ritually. The child's entire
310 head is shaved, and an auspicious [i.e. lucky] mark is then placed on the child's head, and benedictions are offered. Per Father, if not performed when child is 3, an elder (here the father) may atone, allowing the ceremony to be performed at a later date.
Atonement: Atonement consists of a 12-day fast, during which only food given voluntarily by others may be eaten on three of the days. Other variations on the fast permit consumption only of five products of the cow: urine, dung, milk, curd, and ghee (clarified butter).
FAMILY FACTS.
The parties, both devout Hindus, knew each other one month before their 1990 traditional marriage in Baroda, India, arranged by their parents. After marriage, parties moved to USA. June 17, 1998: DOB only child, a daughter. Parties in substantial agreement over rearing of daughter, including her religious upbringing. During and after marriage, parties followed substantially the tenets of the Hindu faith. There were ceremonies to mark daughter's birth, homecoming, naming, visit to temple, child's first solid food and ear piercing. Weekly temple attendance and daily worship in home “temple.” Husband mentally and physically abused Wife, including throwing things at her, hit her with a rolling pin, pulled her hair, chased her from their house, burned her with a cigarette and tore apart a book given her by her brother. · Husband was very controlling - allowing Wife to telephone her relatives only on birthdays and anniversaries. The contents of the kitchen cabinets had to be arranged as he specified. He threatened to stop paying tuition for the wife's education should she fail to get
311 straight A's. · Husband made questionable transfers of marital assets and refused to comply with a court order to hold certain funds in escrow. November 1998: parties separated. _ December 3, 1998: divorce filed in Middlesex Probate Court _ Both parents truly love the child, are willing to meet the child's needs and work together to comply with the parenting plan and agree it was appropriate for the wife to stay at home due to the child's age. _ The child is equally comfortable with each parent. _ The visitation schedule allows Father to spend every weekend and one day a week with the child.
ISSUES IN THE PROBATE COURT.
Father moved the court for permission to perform Chudakarana on daughter, claiming it must be done before child is 3 (unless there is atonement - see above) in order to contribute to child's longevity and ward off illness; and it is a necessary prerequisite to Hindu marriage.
Wife claimed Chudakarana is not integral to Hindu faith. No one in her family participated in or believes in the efficacy or necessity of the ceremony. Husband never asker her if she was Chudakaranaized.
GAL recommended there be no designation of a primary physical custodian.
TRIAL COURT DECISION (Spencer M. Kagan, J. ).
"The religious ceremony known as Chudakarana shall not be performed on the minor child, until the child is of sufficient age to
312 make that determination herself, absent a written agreement between the parties."
_ Joint legal custody, with primary physical custody to Mother.
ISSUES ON APPEAL.
Does order violate Father’s right to free exercise of religion as guaranteed by the First Amendment to U.S. Constitution and Constitution of the Commonwealth?
Was it error to grant mother primary physical custody?
APPELLATE DECISION.
_ Neither parent demonstrated a compelling State interest justifying intervention, one way or the other.
_ Judge's order should be affirmed because it intrudes least upon both parents' fundamental rights while remaining compatible with the child's health.
_ Judge did not abuse his discretion in granting physical custody to the mother.
BASIS FOR APPEALS COURT DECISION. 1. The No-Chudakarana Order, Right Now:
Each party has a sincerely held religious belief which is entitled to the same protection as more widely held religious beliefs.
313
Each party can inquire into the sincerity of a professed religious belief, but not examine the truth behind that belief. That is, a person can believe something they cannot prove.
The record supports the judge’s finding that "the husband's reasons for his insistence on having the Chudakarana are not purely religious[,] [but] an issue of control."
A determination of the husband's motivation as not "purely religious" is different from whether his belief is "sincerely held."
The due process clause protects certain fundamental rights and liberty interests, including the right of a parent to direct a child's education and upbringing.
When custody is contested, each divorcing parent seeks to impair each other's rights. So, the State is forced into the role or mediator. If the parties cannot agree, then the court must make determinations as to a child's best interests.
An order permitting Father to have the ceremony of Chudakarana performed upon the child would permanently repudiate the Mother’s corresponding right to direct that the ceremony not be performed. And, vice versa.
When parents' religious views or practices conflict and cannot mutually coexist, the State may NOT intervene to vindicate one parent's fundamental rights to the exclusion of the other parent's rights unless a compelling State interest, such as physical or psychological harm, is shown.
The parent who seeks court intervention has to prove, in detail, that,
314 absent the court order, the child would be harmed.
The evidence as to the impact of performing, or not performing, Chudakarana on the child was insufficient either way to have justified an order restricting either parent's fundamental rights. So, the appropriate recourse was an accommodation that intruded least upon both parents' religious inclinations and, at the same time, was compatible with the child's health and well being. The challenged order represents such an accommodation.
The order does not coerce the father to believe as the mother does; or compel him to practice his religion in a particular way, while respecting the child's ability to eventually control her own religious destiny while encouraging continued exposure to her parents' religion.
2. The order for physical custody.
While a judge may consider a guardian ad litem's recommendations, the judge is required to draw his own conclusions.
The responsibility of deciding the case is his and not that of the guardian. Delmolino v. Nance, 14 Mass. App. Ct. 209, 212 (1982), quoting from Jones v. Jones, 349 Mass. 259, 265 (1965).
The judge did not abuse his discretion in awarding joint legal custody to the parents and designating the wife's residence as the child's primary residence with liberal visitation to the husband.
Judgment affirmed.
315 EXTENDING 'DE FACTO' PARENTAL RIGHTS TO OTHER SIDE OF THE COIN - ORDERING DE FACTO PARENT TO PAY CHILD SUPPORT.
Judgment Entered After Lesbian Couple Split
Connolly v. Michell29
Probate Court - Spencer Kagan, J. 30 Lawyers Weekly No. 15-004-02 July 22, 2002
Rulings Of Law
“Court may, in exceptional cases, impose a parental child-support obligation upon a person who may not be the child's [biological] parent under state law, but whose prior course of affirmative conduct equitably estops that person from denying a parental-support obligation to the child."
A “ ‘de facto’ parent is ‘eligible for visitation rights and subject to child support obligations’ ” (citation to R.I. case omitted).
“A party does not need to enjoy the ‘full’ rights of parenthood
29See also, L.S.K. v. H.A.N., Pennsylvania Superior Court, Appellate Division, No. 396, MDA 2002 (December 17, 2002). Lawyers Weekly USA No. 9924758.
30See ENO v. LMM, SJC (1999) following American Law Institute's recognition of “de facto” parent status.
316 identical to a legal parent to carry an obligation of child support.”
Facts:
Plaintiff Grace A. Connolly (Partner) and defendant Annette Michell (Mom) were partners in a committed relationship from 1990 to 1999, when they separated.
February 1995: Mom artificially inseminated; and gave birth to a baby girl, Ashlin Rose Michell.
June 1996: Partner adopted Ashlin as a legal parent.
Parties had second child by same process.
August 17, 1996: Mom gave birth to Bailey Aaron Michell. Partner intended to adopt Bailey
1999: parties separated before adoption proceedings commenced.
1999: Partner files “equity” action filed in Middlesex probate court.
In temporary order, Partner agreed to $200 weekly child support .
Temporary order includes detailed schedule of visitation rights and other obligations of both parents.
At trial:
Day I of trial, February 15, 2002: stipulation parties agree Partner is de facto parent of both children
317 with rights to attend school conferences, have access to medical records and share holidays with Mom. In 2001 Partner earned $200 a week more than Mom, so, if support required for both children, child support guidelines worked out to $261 per week.
Unresolved Issue at Trial:
Partner argued that, because she did not get joint legal custody of Bailey, she could not be ordered to pay child support for Bailey.
Findings and Order: Parties agreed Partner is "de facto" parent of child. Partner obligated to pay child support to the defendant in the amount required by the child support guidelines and made the Partner had substantial parent-child relationship with each child. Partner consistently conducted herself as a de facto parent to Bailey. Partner received almost as many rights Mom with "joint custody" under the voluntary agreed order of the parties. Partner is obligated to pay child support for child after the couple separated. Child support guidelines apply to this case. Parties equally responsible for reasonable medical, dental and psychological expenses of the children on an equal basis.
"It would not make any sense and in fact it would be contrary to public policy where a
318 person holding herself out as a de facto parent, given all of the benefits of a 'legal' parent and who has been the major provider of the family unit, can cease providing child support simply because she does not have the 'label' of joint legal custody."
"If the plaintiff wishes to have basically all of the rights of joint legal custody and be considered as a de facto parent then she also needs to accept the financial responsibility."
319 YOU AND ME AND FIVE MORE MAKES QUITE A LOT OF NOISE; AND MAYBE SOME
LAW.
If you are going to be there for the insemination and birth, you best be prepared to pay child support.
Ex Lesbian Lover Must Pay Support for Jointly Desired Children.
L.S.K. v. H.A.N. Lawyers Weekly USA No. 9924758) Pennsylvania Superior Court Appellate Division, No. 396 MDA 2002. December 17, 2002.
Facts. Couple decided together to have children. Mother was artificially inseminated on two occasions. First time, mother gave birth to a single child. Three years later, mother gave birth to quadruplets. Defendant (non-biological parent) was present at the births. Defendant stayed home and cared for the children while the mother worked and completed her college degree. Couple separated a few years later. Mother moved away with the children. Defendant never adopted her former partner's five children. Defendant sought and was granted shared legal custody of the children and partial physical custody during summers and school breaks. Mother then sought child support.
320 Defendant claimed her status was similar to “step-parent.” • She had no legal duty to pay support because: She never adopted the children. She never agreed to pay child support if the couple separated.
Appeals Court.
Defendant did not enter into a relationship where children already existed between the mother and the children, ergo, this is not step-parent situation.
Defendant and mother decide to start a family together.
"[Defendant] acted as a 'co-parent' with [the] mother in all areas concerning the children's conception, care and support.”
By virtue of the “custody agreement, [defendant’s influence over the children remains.
“Equity mandates that [the defendant] cannot maintain the status of in loco parentis to pursue an action [for custody] as to the children, alleging she has acquired rights in relation to them, and at the same time deny any obligation for support merely because there was no agreement to do so.”
Where statutory law does not create a legal relationship, equitable principles can act to “protect the best interest of the children involved.”
321
Both parties “are to be responsible for the emotional and financial needs of the children."
322 He: IF SHE STEALS YOUR SPERM, GETS PREGNANT AND HAS CHILDREN, YOU STILL HAVE TO PAY HER ATTORNRYS’ FEES
UNTIL YOU PROVE IT.
She: You have to be careful what you wish for. It may come true.
O'CONNELL v. SEILER, Lawyers Weekly No. 15-007-02. Middlesex Probate Court - Rockett, J. Docket No. 01W-1117-PA1
Disclosure. Donald Tye, Esq. for Mother. Since May 13, 2003, Gerald L. Nissenbaum, for Father.
The Facts.31
Father (Seiler), a German national and resident. Father is Professor, Ph.D. and M.D. with private practice. Father is married, with 3 children (28, 25, 15). Father has German health insurance; has 6-figure income. Mother (O’Connell), a U.S. national and resident. Mother is supervisor for a particular medical procedure now undergoing a course of human tests, in hoped-for FDA approval. Mother has own medical insurance; has 6-figure income.
31All facts are subject to more discovery and trial; and, one guesses, an appeal.
323 February 1988: Parties “maintained intimate relationship. February 1989: Relationship ended. Late 1999: Father separated from wife and resumed relationship with mother. Next 18 months: parties together frequently in various locations. Mother claims they talked of marriage when his divorce was over. Mother wanted to have children. Mother claims their meetings, with Father’s knowledge, coincided with her ovulations. No pregnancies result. July and August 2000: Father agrees to have his sperm tested for fertility and mobility. Father “deposits” one sperm sample at Boston In Vitro Fertility Clinic. Boston IVF advises of abnormalities in sperm which would make conception very difficult. Allegedly, father desires second opinion from own doctors in Switzerland. October 27, 2000, father made another deposit of sperm at Boston IVF. “At no time did [father] sign a donor consent form.” Father reconciles with wife. Father claims he told Mother he was not going to marry her; and that their relationship was over, as he was staying with his wife. Mother claims father agreed she could use his sperm to try to get pregnant. Father denies he agreed to her use of his sperm. December 2000: · Mother goes to Boston IVF: · Mother forges father’s name, consenting to use of his genetic material for purpose of trying to impregnate mother. · Although only mother is present, Boston IVF doctor signs form as if both mother and father are before him, getting
324 his explanation of the meaning of their signatures. · Mother takes needed injections of various substances to promote growth of multiple eggs. · Multiple (9) eggs “harvested” of which several deemed viable. December 11, 2000: · Viable eggs injected with father’s sperm and four eggs inserted into mother’s uterus. December 22, 2000: Mother learns she is pregnant. December 2000 - May 2001: contact between parties became “more and more sporadic and strained.” January 28, 2001: Father writes Boston IVF advising he is “not willing to give further permission to use my semen for an IVF procedure.” May 30, 2001: twins born at 24 weeks, almost 4 months premature · Special premature care required for both children. · Children now 2 years old, one of whom is still unable to eat solid food. · Projected life-long challenges for each child. October 5, 2001: Mother files G. L. c. 209C action to confirm father’s paternity and have him pay child support and children’s medical expenses. Mother hires attorney in German to force Father to take DNA testing. German court enters order. DNA testing confirms Father is biological parent. Father moved to dismiss on lack of personal jurisdiction and other grounds. Mother moved for allowance of attorneys fees and costs, pendente lite. · Mother’s costs include translating all documents into German for purpose of filing them in German court; and overseas telephone calls.
325 Trial Court Ruling.
Motion allowed: $25,000
The Law (Rockett, J.)
“Although there is no specific authority under the paternity statute for the imposition of attorney’s fees ... the statue has been interpreted to include the same discretion in providing for such fees as under G.L. c. 208, s.38 in actions seeking support for non-marital children." Doe v. Doe, 32 Mass. App. Ct. 63, 69 (1992).
In Section 10 "the adjudication language is a prerequisite to an award of custody," but Section. 9 "does not provide similar language."
"Therefore the specific language that is utilized would suggest that the Legislature did not intend to require an adjudication prior to an order of [temporary] support."
The Legislature intended to provide for “temporary support orders to enter prior to adjudication of paternity.”
"[B]ecause the need for adequate legal representation is essential to meet the children's needs of support, the imposition of attorney's fees, pendente lite, is appropriate, pending a final adjudication in this matter."
Awarding attorneys' fees and costs during the pendency of the action satisfies the Legislative goal.
Adequate “legal representation ‘is not materially different from those other needs which fall within the more common meaning of
326 alimony or support.’" Doe v. Doe, 32 Mass. App. Ct. 63, 68 (1992) quoting Goldman v. Roderiques, 370 Mass. 345, 437 (1976).
Mother "clearly has a need for these funds so that the minor children receive adequate representation in establishing their paternity."
An “award of attorneys' fees rests within the sound discretion of the trial judge and is to be based on 'strictly conservative principals.'"
"It remains the rule that awards in domestic relations litigation are to be governed by caution and restrain and should take into consideration [among other things] the reasonableness of the fees and the other party's ability to pay."
"An award that is not incommensurate with an objective evaluation of the services provided will not be disturbed."
Over the course of several court appearances, mother had provided adequate information to make a determination that attorneys' fees were appropriate.
A “substantial portion of the fees have accrued as a direct result of [the putative father's] actions which ultimately resulted in several motions in her favor."
"Applying conservative principals, the award of $25,000 pendente lite is appropriate.”
Father’s motion for reconsideration of award of fees was denied.
Epilogue
327 Father has commenced civil action against Boston IVF.
328 Issues:
If Mother wrongly used father’s sperm:
Can father he still be required to pay for their support?
If father appeals the award of legal fees, what risk is there for mother’s attorney to have to re-pay the fees to father?
If court finds Father agreed to let mother use his sperm, does father still have a viable civil action against Boston IVF for not following its own internal rules - of non-use unless father in-person specifically gives Boston IVF written permission to use sperm?
Assuming Father has a viable action against Boston IVF, are his damages:
a. All of the costs of raising the children which Father is going to have to pay?
If so, those costs are determined by a jury? Will that verdict, if collectable, necessarily be enough - or more than enough - to cover court orders?
Father’s emotional upset over this happening?
Can mother intervene to obtain any money which would otherwise be paid to father on account of the child-related damages assessed by the jury?
Do children have an action against Boston IVF for wrongful birth?
329
Does public policy permit any or all of these actions?
330 Stabile v. Stabile, 55 Mass. App. Ct. 724 (2002)
Is the following a clear and unequivocal command which requires the Defendant to pay $10,000 a year into each of the children’s college funds?
"Beginning in 1997, the Defendant will use his best efforts to maintain a college and/or trust fund for each of the parties' minor children, and shall contribute $10,000.00 annually to each fund by December 31st of that year.”
Does your answer change by knowing that:
before signing the typewritten document, the Defendant insisted that the
word “shall” be deleted and replaced with the handwritten words “will use
his best efforts.”
331 IF IT TOOK THE APPEALS COURT NINE MONTHS TO FIGURE OUT THAT “AND SHALL” MEANT “AND SHALL,” HOW CLEAR COULD IT BE?
KATHIE A. STABILE vs. GERALD A. STABILE, JR. 55 Mass. App. Ct. 724 (2002) December 14, 2001. - September 6, 2002. 9 months under advisement
Kathie A. Stabile, pro se. Martin F. Kane, II, for Gerald A. Stabile, Jr.
The Law on civil contempt:
For civil contempt to be found, "there must be a clear and undoubted disobedience of a clear and unequivocal command." Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), quoting from United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972).
The command must be clear and unequivocal to the extent that it can be understood by the person subject to it "without resort to the evidence at trial." Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981).
An ambiguity does not arise merely because an order, otherwise clear, may require "some legal interpretation." Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 567 (1997).
Indefinite and uncertain language cannot support a complaint for contempt
332 because of a lack of fair notice to the person subject to the order, and because "ambiguity carries with it the potential for becoming 'an instrument of [judicial] severity.'" Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), quoting from Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 89 (1977).
Appellate courts ordinarily resolve ambiguities in divorce decrees in favor of the person charged with contempt. Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002), citing Cohen v. Murphy, 368 Mass. 144, 147 (1975), and Inspector of Bldgs. of Provincetown v. Eder, 11 Mass. App. Ct. 1011, 1011 (1981).
While vague or ambiguous language in a judicial decree cannot constitute a "clear and unequivocal command," Sax v. Sax, 53 Mass. App. Ct. 765, 771 (2002), a party's self-serving characterization of a provision as "ambiguous" does not make it so.
"[A]n ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other." Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). See Mayer v. Medical Malpractice Joint Underwriting Assn. of Mass., 40 Mass. App. Ct. 266, 269 (1996) (party's interpretation of insurance policy language "appear[ed] to represent a strained attempt to create ambiguity where none exists").
If a party is uncertain about obligations under an agreement or court order, the proper remedy is to bring an action requesting clarification. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 451 (1997), citing Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. 79, 91 (1977). The Law on Best Efforts:
The court will "assume a construction of 'best efforts' in the natural sense of the words as requiring that the party put its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom." Macksey v. Egan, 36 Mass. App. Ct. 463, 472 (1994). See Brewster v. Dukakis, 675 F.2d 1, 4 (1st Cir. 1982) (upholding provision in consent decree requiring state officials to "use their best efforts
333 to insure . . . full and timely financing" before making cuts in services subject to that decree); Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225-226, 228 (1st Cir. 1987), cert. denied, 485 U.S. 935 (1988) ("best efforts" is the equivalent of acting in good faith, although it does not mean every conceivable effort).
Facts: September 22, 1993: Divorce filed in the Essex Probate Court. December 10, 1993: Judgment of divorce. December 18, 1996: Complaint for Modification. · Signed stipulation incorporated into modified judgment of divorce. "Beginning in 1997, the Defendant [Gerald] will use his best efforts to maintain a college and/or trust fund for each of the parties' minor children, and shall contribute $10,000.00 annually to each fund by December 31st of that year" (emphasis added). · Original typed stipulation had words “shall” which was, at Gerald’s request, crossed out and the words "will use his best efforts to" were handwritten. July 27, 1998: Complaint for contempt. · In the 1 ½ years since judgment of modification, Gerald failed to create, maintain or put money into a fund for the future education of either minor child as required by agreement. Trial (John P. Cronin, J.): · Parties proceeded on representations of counsel. · Kathie asserted that Gerald's income had more than doubled since the modified order entered. · Parties agreed Gerald had not yet set up any type of or put money into a college fund for the children. · Gerald asserted he had hoped to establish those funds on exercise certain stock options, which ultimately failed to materialize. Judgment of Contempt: · Gerald not in contempt. · Terms of stipulation relating to the maintenance of college funds were
334 not "clear and unequivocal as to the duties and obligations of the defendant." · Kathie “did not meet her burden of proving a clear and undoubted violation of a clear and unequivocal order of" the court. Court denied Kathie's motion for reconsideration and clarification, asked the court to specify how the contested provision was not "clear and unequivocal." Kathie appeals.
Appeals Court. Kathie claims: Provision requiring Gerald to maintain college funds for each of their minor children is both clear and unequivocal. Gerald made no effort whatsoever to comply. Gerald claims: Obligations are unclear due to an inconsistency between requirement that he ‘shall pay $10,000 annually’ into each fund and the provision that he use his "best efforts" to maintain the funds. The removal of the command, "shall," and insertion of the more permissive words, "will use his best efforts to," make his duties discretionary, not mandatory.
Held: Discern no ambiguity or inconsistency.
The express language of the parties' stipulation is sufficiently clear and unequivocal to support a claim for contempt against Gerald.
Modified order requires Gerald to use his best efforts to maintain college funds for each of the parties' minor children.
The order also says “and” [he] shall contribute $10,000 annually to each child's
335 fund.
Gerald is necessarily under an obligation first to establish college funds for each child.
The term "best efforts" helps to delineate, rather than to obscure, Gerald's responsibilities under the order.
The provision that Gerald use his "best efforts" suggests that, at a minimum, he will exert more than "no effort."
The specification, that he use his "best efforts" to maintain such funds, does not relieve him of his duty to provide college funds for the minor children.
The phrase “best efforts” clearly and unequivocally indicates the measure of exertion that he is to apply to the task at hand.
The provision that he use his "best efforts" comprehends the establishment of such funds.
The requirement that he deposit $10,000 annually into each account further confirms he is to establish such funds in the exercise of his "best efforts."
The terms stipulated in 1996 were clear and unambiguous then and now.
Modified order clearly and unequivocally requires Gerald to establish a "college and/or trust fund" for each of his minor children and to contribute $10,000 to each fund annually while maintaining each account with the use of his "best efforts."
Kathie satisfied her burden of proof that the provision in issue was "clear and unequivocal."
Judgment vacated.
336 Case remanded for a determination whether or not there was a "clear and undoubted disobedience" of the modified decree and of what relief, if any, shall be granted.
GLN comments: Does anyone need a paralegal? Hire Kathie.
Gerald better set up the two college funds, fast!
Presumably, before going back before Judge Cronin, Gerald found money to deposit into the kids accounts, even if it meant selling his house, so as to avoid being a guest of the Essex County Sheriff’s House of Correction.
337 GRANDPARENT VISITATION IS PERMITTED AFTER SJC RE-WRITES STATUTE;
AND DECLARES IT GOOD.
But, the remaining standard is so hard, that only a few grandparents will be qualify.
Any parent who wants to avoid such a claim will simply keep the kids away form the grandparents.
What’s wrong with this picture?
ATTENTION: This case announces new requirements for specific pleading and verified allegations in chapter 119, § 39D cases.
JOHN D. BLIXT vs. KRISTIN BLIXT & Paul Sousa 437 Mass. 649 February 5, 2002. - September 9, 2002.
SJC - direct appellate review.
The Grandparent Visitation Statute.
G. L. c. 119, § 39D reads:
338 "If the parents of an unmarried minor child ... born out of wedlock whose paternity has been adjudicated ... or [ acknowledged ], and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights to the minor child during his minority ... upon a written finding that such visitation rights would be in the best interest of the said minor child ...... "
Facts. Plaintiff, John D. Blixt, is the maternal grandfather of the minor child of the defendants, a boy born on June 10, 1993. Defendants never married each other. Paul Sousa adjudicated the child's father. Child resides with his mother, Kristin Blixt (mother). Defendants share legal custody of the child. Grandfather sought visitation with the child under G. L. c. 119, § 39D, the so-called grandparent visitation statute (statute). Mother filed Rule 12 (b) (6) motion to dismiss because statute: · Unconstitutional on its face - violates her substantive due process rights under the 14 Amendment to US Constitution and cognate provisions of Massachusetts Declaration of Rights. · Violates equal protection provisions of Federal and State Constitutions.
Probate Court (Sabaitis, J.) Statute unconstitutional: It infringed on the defendants' "fundamental right to make decisions concerning the care, custody, and control of their child[]." Statute "contains no presumption that [the defendants] are acting in [the child's] best interest in denying visitation, nor . . . contain[s] a requirement that the [p]laintiff demonstrate how
339 [the child] is harmed by the denial of visitation."32 Grandfather appealed
SJC Holding:
Statute survives a facial challenge on due process grounds and also does not violate equal protection insofar as the mother's statutory classification is concerned.
The Law on Due Process.
Troxel v. Granville, 530 U.S. 57 (2000) (Troxel), is only U.S. Supreme court case deciding Federal due process (but not equal protection) implications of grandparent visitation statutes. The liberty interests of parents protected by the due process clause of the 14 Amendment to U.S. Constitution are also protected by our State Constitution. Standard of review for such claims: (a) A facial challenge to the constitutional validity of a statute is the weakest form of challenge, and the one that is the least likely to succeed. A statute so questioned is presumed constitutional. A court may interpret a statute to set forth considerations to clarify and specify, and, where necessary, to narrow, the statute's terms in order that it may be held constitutional. (b) The Troxel plurality held that Washington statue, in which grandparent visitation with their grandchildren was sought, was, as applied, unconstitutionally infringed on
32This conclusion obviated the need for the judge to reach the mother's challenge equal protection argument. SJC ordered parties to file supplemental briefs on the equal protection issue.
340 mother's parental rights protected by Federal due process guarantees. The Washington statute provided: "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances." Washington Supreme Court failed to narrowly construe the statute. Statute "breathtakingly broad." Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Washington trial court judge’s decisional framework "Directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child." The Due Process Clause “does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." When a fundamental right is at stake, the so-called "strict scrutiny" formula for examining the constitutionality of State infringement on that right comes into play. This formula traditionally is stated in terms of requiring: (1) a legitimate and compelling State interest to justify State action, and (2) careful examination to ascertain whether the action taken was "narrowly tailored to further [that] interest." A State grandparent visitation statute, to be held valid, must furnish the judge applying it with sufficient objective criteria to
341 make reasonable decisions based on facts, not idiosyncratic choices based on undefined amorphous standards.
Massachusetts has a compelling interest to protect children from actual or potential harm. Massachusetts statute limits standing to seek visitation to grandparents in certain classes and circumstances. The statute adopts the "best interests of the child" standard as the test for determining visitation, but uses the standard in a new context. The standard, left unspecified, cannot survive a due process challenge. The interpretive role of an appellate court now comes into play. An appellate court may, in an appropriate case, construe a statute to render it constitutional. See, e.g., Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985) The traditional best interests considerations can, and should, be construed to fit the statute's context and, thereby, satisfy due process.
To accord with due process, an evaluation of the best interests of the child under the statute requires that a parental decision concerning grandparent visitation be given presumptive validity. To obtain visitation, the grandparents must rebut the presumption.
The burden of proof will lie with grandparents to prove, by a preponderance of the credible evidence, that visitation is in the best interests of the child.
The grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare.
342
The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child.
In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.
Imposition of the standards just stated, as explained in specific written findings by the judge, see Guardianship of Norman, 41 Mass. App. Ct. 402, 407 (1996), ensures a careful balance between the possibly conflicting rights of parents in securing their parental autonomy, and the best interests of children in avoiding actual harm to their well-being.
These standards do not require de facto parental status on the part of the grandparents, but the standards are consistent with our cases concerning de facto parents.
Disruption of a child's preexisting relationship with a non-biological parent can be potentially harmful to the child, and they hold that such a relationship may be protected by court-ordered visitation with a non-parent over a fit parent's objection.
The statute satisfies strict scrutiny because our construction narrowly tailors it to further the compelling State interest in
343 protecting the welfare of a child who has experienced a disruption in the family unit from harm.
The Law on Equal Protection.
Statute does not apply to grandparents of a minor child whose parents are living together. The mother maintains that "[t]here are no distinguishing characteristics of widowed, divorced or otherwise single parents relevant to any interest of the [S]tate in promoting grandparent visitation under any standard of review." Essentially, the mother argues that the statute is both "underinclusive," because it does not burden biological parents of minor children who are living together at the time the petition is filed, and "overinclusive," because it burdens a single parent, or any two parents living separately, but who are, nonetheless, fully capable of making decisions in their children's best interest.
(a) Because the statute's classifications implicate fundamental parental rights, "strict scrutiny" analysis is again appropriate to evaluate the mother's equal protection challenge. Under this analysis, a statutory classification is permissible if it "furthers a demonstrably compelling interest of the State and limits its impact as narrowly as possible consistent with the purpose of the classification." Opinion of the Justices, 374 Mass. 836, 838 (1977). (b) We review the validity of the statute on equal protection grounds only as it pertains to the class in which the mother belongs, that is, a parent of a nonmarital child born out of wedlock, living apart from the child's other parent, in this case, the child's father.[18]
344 "Ordinarily one may not claim standing . . . to vindicate the constitutional rights of some third party." "Only one whose rights are impaired by a statute can raise the question of its constitutionality, and he can object to the statute only as applied to him" Contrary to dissent, there is no exception to these rules governing standing permitting challenges to certain classifications if those classifications happen to share one particular characteristic, here, parents living apart. The other classifications in the statute contain characteristics that do not apply to the mother: she is not divorced, she is not married, she is not a widow. Those classifications raise different characteristics and different issues that may be challenged only by persons who are members of those classes. It is inappropriate for us to examine them, and Justice Sosman's dissent does so in a diffused, scattershot effort to invalidate the statute on any basis.
The statute's intent, as we have stated, is not to penalize parents but to safeguard children. Hardly a more compelling State interest exists than to keep children safe from the kinds of physical or emotional trauma that may scar a child's "health and . . . physical, mental, spiritual and moral development" well into adulthood. The Legislature has long recognized that children whose parents are unmarried and live apart may be at heightened risk for certain kinds of harm when compared with children of so-called intact families. That children whose unmarried parents live apart may be especially vulnerable to real harm from the loss or absence of a grandparent's significant presence is a permissible legislative conclusion, drawn from
345 social experience and consistent with the State's compelling interest in protecting minors from harm. Studies show that, in the over one-quarter of households in which children are raised by single parents, grandparents may play an increasingly important role in child rearing. Thus, grandparents may play an increasingly important role in a child's development. This important role, when it does develop, does not arise by accident, but by a parent's deliberate choice to invite the grandparent into the family fold, and to permit (or encourage) a bond between grandparent and grandchild that may then become crucial to the child's physical or emotional security. In such situations, the State's intervention may be necessary to secure the child's well-being from traumatic separation from the grandparent. Such intervention has nothing to do with appeasing a grandparent's hurt feelings, castigating a parent's lifestyle, or perpetuating an illusion of family unity. It has everything to do with protecting the child, insofar as possible, by preserving the fruits of significant developmental attachment whose seeds were planted by a parent.
The Legislature does not offend the principles of equal protection, as seen through the narrow lens of strict scrutiny, by confining the reach of the grandparent visitation statute, as we construe it today, to a discrete class of children within the discrete class of households at issue.
346
Pleading requirements under statute.
A complaint under the statute for grandparent visitation is brought under the rules of civil procedure. The "burden of litigating a domestic relations proceeding can itself be 'so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated.' Notice pleading does not safeguard these concerns. Before a parent or parents are called upon to litigate fully a grandparent visitation complaint, with all the attendant stress and expense, the grandparent or grandparents should make an initial showing that satisfies a judge that the burden of proof, set forth above, can be met. To this end, any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief. A complaint not so verified, or one accompanied by an inadequate affidavit, would be subject to dismissal (or summary judgment) on motion by the defendant or defendants. This procedure should minimize the burden placed on a parent or parents to defend against unwarranted actions.
Remand. The present case was dealt with by the judge on a motion to dismiss. We have concluded that the action should not have been dismissed. The judge may choose to deal with the case on the summary judgment record or take other action necessary or appropriate to decide the case.
347 Judgment dismissing the complaint is vacated.
Judge Cowen files separate opinion, agreeing statute is, as written, unconstitutional, but, as glossed and narrowed, is constitutional. Judge Sosman, with whom Judge Ireland joins, has a long dissent covering her view of constitutional law; and concludes the statute is not constitutional, even as narrowed by the majority.
348 Just what is indoctrination?
And, how can it be proven?
If you feed traif to your Jewish children, you still get visitation. But somebody’s God is going to be angry.
ZEITLER (formerly, Kendall) v. KENDALL, Rule 1:28 decision, December 16, 2002 See, Kendall v. Kendall, 426 Mass. 238 (1997), cert. denied, 524 U.S. 953 (1998)
Kendall #1 (Harms, J.): Zeitler is Jewish. Kendall is Christian. Three children. · Before marriage, parties agreed their children would be raised in the Jewish faith. 1991: Kendall, raised as a Catholic, became member of Boston Church of Christ (“BCC”), a “fundamentalist Christian faith. 1994: Zeitler adopted Orthodox Judaism. 1994, Zeitler filed for divorce - 5 day trial. Aug. 20, 1996 judgment, clarified (for reasons not affecting the appeal)
• Section 5 of Judgment: “Restrictions Upon Religious Exposure.”
Each parent shall be entitled to share his/her religious beliefs with the children with restrictions as follows: neither may indoctrinate the children in a manner which substantially promotes their rejection of their Jewish ethnic and religious identity, or promotes their alienation form either parent or their refection of either parent.
349 The father shall not take the children to his church (whether to church service or Sunday School or church education programs); nor engage them in prayer or bible study if it promotes rejection, rather than acceptance, of their mother or their own Jewish self-identify. The father shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about heir mother or bout themselves. Thus, for example, father may have picture of Jesus Christ hanging on the wall of his residence, and that will not serve as any basis for restricting his visitation with his children. But, father may not take the children to religious services where they receive the message that adults or children who do not accept Jesus Christ as their lord and savior are destined to burn in hell. By way of further example, father may not shave off [the child’s] payes [Section five] shall not be construed so as to prevent father from having the children with him at event involving family traditions at Christmas and Easter.
October 1996: Zeitler filed complaint for civil contempt alleging Kendall took children to various religious programs and services in violation of judgment. October 22, 1996 pretrial order: Kendall forbidden to take children to any “adult” church service at the BCC, but Sunday school or other religious program, service or event was O.K. - if it was tape recorded [to permit review of] the content and specifically whether the content ‘promotes rejection, rather than acceptance, of their
350 mother or their own Jewish self-identity.’” Kendall sought c. 231, §118 relief from the Appeals Court Single Justice December 9, 1997: SJC affirmed judgment of divorce and refused to review the temporary order. February 11, 1998 - January 27, 1999: Kendall’s visitation was supervised (based upon allegation that one of Kendall’s roommates sexually abused a child during a visit.)
Kendall #2 (Not Harms, J.):
Allegations: March 26, 1999: Zeitler filed complaint for civil contempt alleging violations of judgment and March 22, 1996 temporary order, claiming Dad: · took children to non-tape recorded church education programs and services; . fed the children nonkosher food; . showed the children a movie depicting a “gory crucifixion; and . told the children not to tell mother about this stuff. Mother claimed this promoted “rejection, rather than acceptance, of their mother or their own Jewish self-identity.” Children now 6, 8,10 years old
Trial: Mother testified: children came home singing Christian songs, confusing Christianity with Judaism, told her that Dad said not to tell her about the movies, nonkosher food, etc.
Father testified:
351 He took kids to church services and educational programs where they learned about Jesus Christ and sing Christian songs, as he thought the judgment / order permitted him to do. He forgot about tape recording, until Mother reminded him, saying she was taking him to court. He knew at Mother’s home children ate kosher food; and at his house they sometimes ate non-kosher food. Meals were not planned to violate kosher dietary laws - I did it because “that’s what we eat at my house.” He told kids to not eat at his house or to eat and not tell mom to avoid upsetting her.
Contempt Judgment: Parties agreed and case tried on basis that October 22, 1996 order modified the judgment. No willful or negligent violation of any clear or unambiguous court order. GAL report said children were “dealing with the parental conflict very well.” Dad’s conduct had not caused children any emotional distress or concern. Dad did not purposely promote rejection of children’s Jewish identity by exposing them to Christian teaching and by offering meals of non-kosher food. Because Mom offered no evidence about the tapes, judge concluded she no longer insisted on that provision. Failure to tape record was not willful or negligent.
Appeals Court :
352 Mom had burden of proving existence of a “clear and unequivocal command and an equally clear and undoubted disobedience” by a preponderance of the evidence. If the order is ambiguous or the disobedience doubtful, an adjudication of contempt cannot stand. Judge’s interpretation of the order is a question of law subject to de novo review. There must be clear error in challenged findings of fact and abuse of discretion in his ultimate conclusion. Court looks to Webster’s Third New International Dictionary (1993) to define the verb “indoctrinate:” (1) to teach, imbue, or “make markedly familiar”; (2) cause to be impressed and usually ultimately imbued,” or “cause to be drilled or otherwise trained (as in a sectarian doctrine) and usually persuaded.” Showing the “crucifixion” movie to the children and feeding them non-kosher food did not constitute violation of a clear and unequivocal order. Based upon GAL’s finding, there was no credible evidence the children had been negatively affected by Dad’s action in any “significant” way. Dismissal of contempt, affirmed.
Comments: 1. What are the odds that Mom will want to move with the children to Israel or to an Orthodox community in New York City? Or will she just move to Pittsfield? 2. Will dad seek primary physical custody of the children? 3. Note, the impact on the outcome flowing from GAL’s opinion! 4. The GAL’s opinion is, by necessity based on assignment of credibility to each parent’s statements and assessment of the children. But, the
353 GAL is NOT an expert on assessing credibility!
354 IF SHE LOVED THE CHILD SO MUCH, WHY DIDN’T SHE COME FOR VISITATION FOR MORE THAN THREE YEARS?
Post - divorce Change of Custody of 4-year old son to Father from Mother after her removal of child to Italy without court or Father’s permission, refusal to obey child-related court orders and other conduct demonstrated she was not able to put child’s needs ahead of her own.
The Italian Court, on receiving copies of the Massachusetts temporary orders granting father sole legal custody, ordered mother to turn child over to Father - an order that was complied with when Father went to Italy to retrieve the child.
The Father’s lawyer served the interests of justice. Its too bad that justice did not help or serve the lawyer or make the wife’s lawyer also pay sanctions for her bad conduct!
ADRIAN HERNANDEZ vs. SUZANNE BRANCIFORTE. 55 Mass. App. Ct. 212 (2002) June 14, 2002.
Ed Hamada for father. Peter M. Barlow for mother (on appeal, only).
Facts
355 July 18, 1995: complaint for divorce filed in Worcester Probate Court August 5, 1997 Stipulation: · O.K. for mother to take 4 year old son, Maximillian to Italy from September 1 - October 10, 1997. · Both left for Italy and returning to U.S. for divorce hearing. October 16, 1997: · Judgment of divorce (Susan D. Ricci, J. - who, unless stated, heard all matters.) · Separation agreement: Survives except for child related matters. Detailed only Christmas visits for the father through the remainder of 1997. Father consented and court approved Mother and Maximillian going to Italy from October, 1997 -l August 31, 1998. Set schedule for the father to visit Maximillian. March, 1998: father’s first contempt complaint. · Mother refused two of the agreed-upon visits. July, 1998: father’s complaint for modification. · Sought change of physical custody. · Establish visitation schedule. · Mother intending to reside permanently in Italy with child, contrary to understanding in signing stipulation and agreement. Mother’s affidavit: · Separation agreement did not restrict her choice of residence. · Parties need to agree to new schedule after July 31, 1997. · She lost job as professor of Italian literature at the College of the Holy Cross in Worcester; few prospects for new U.S. job. · Stronger career opportunities in Italy. · She wanted to remain in Italy with child for indefinite future. August 3, 1998: court appearance
356 Pre trial motions filed GAL appointed. Just before August 31, 1998 - Orders: · Mother directed to file G. L. c. 208, § 30 petition for child’s removal to Italy, or be deemed to have waived such a request. · Mother allowed to take child to Italy temporarily, on condition they return for scheduled. · There will be consolidated trial on: Father's complaint for modification. Father’s contempt actions. Mother's removal petition. · Order requiring Mother to post a surety bond as a condition precedent to child’s temporary removal and to ensure his return for the trial. Mother files petition for removal; and then files an amended petition. On arrival in Italy, became evident that mother intended not to return to USA. October 2, 1998: Father obtained a temporary custody order from a second Probate Court judge. After October 2, 1998, Mother files action Juvenile Court in Genoa, Italy: · October 8, 1998 Italian court order on mother ‘s complaint: Maximillian "given to the mother . . . so that he be kept with her until a definitive decision of the American Judicial Authority." · November 1998: father files complaint in Italy seeking physical custody of Maximillian "in accordance with the [Hague Convention on the Civil Aspects of International Child Abduction]. · February and April, 1999 decisions: "provided for the return of the boy to his father" (see note 6, infra). Father went to Italy and took child back to Massachusetts. Mother has not seen child since April 1999.
357 · March 28, 2000: Italian Supreme Court reversed and remanded. · September 29, 2000: Dismissed the father's petition as child sent to father, per February and April 1999 rulings. Mother refused to comply with all Probate Court discovery orders. October 27 and November 2, 1998: cases on for trial. · Mother refused to appear or produce child. Later, 1998 and early 1999: Evidentiary hearings held - · Judge issued extensive findings of fact and rulings of law. · Although mother absence, her counsel mounted a prodigious defense: Presented an expert witness to counter the adverse recommendation of the guardian ad litem. Cross-examined father and the guardian ad litem. Required 5 additional days beyond 2 days allotted for the case. On Contempt: Mother found in contempt for failure: · To make son available for February 1998 school vacation visit. · To comply with several court orders re: Discovery. To appear for a scheduled deposition or to pay for husband and his counsel to travel to Italy to take her deposition. To return to Massachusetts with child for consolidated trial. On Modification: · Father granted sole physical custody. · Mother granted reasonable, supervised visits in Massachusetts conditioned only on her appearing before Judge Ricci prior to doing so. · Court to hold child’s passport.33
33GLN comment: this order ignores that child is dual citizen of USA and Italy. Mother can ask and get a duplicate Italian passport for the child. The Massachusetts
358 · Mother to pay $50 weekly for child support to father. · Ended father's child support payment obligation after January 26, 1999. · Assessed the mother $35,000 to cover half of the father's counsel fees.
Appeals Court34
JURISDICTION / CUSTODY FINDINGS
Mother argues: When father filed complaint in Italy, Italy had "home state" jurisdiction under G. L. c. 209B.
Appeals Court Discussion: Probate court could take jurisdiction under 209B, not requiring that Massachusetts be the child's "home state." G. L. c. 209B governs any proceeding in which a custody dispute is presented for resolution. MacDougall v. Acres, 427 Mass. 363, 366 (1998), and cases cited. C. 209B treats "modification proceedings as distinct from initial ones." Umina v . Malbica, 27 Mass. App. Ct. 351, 358 (1989). Trial court determines if it has jurisdiction in a custody proceeding and, if so, whether it should exercise that power. orders are not binging on and will not control the issuance of the Italian passports. However, the USA Department of State will, if informed of this judgment, make notation in its records, preventing Mother from ever getting a new or duplicate passport for the child - unless she first gets a new USA court order.
34As case resolved under G. L. c. 209B, no need to discuss the Hague Convention.
359 Custody of Brandon, 407 Mass. 1, 5-6 (1990). G. L. c. 209B, § 2(a)(4) vests jurisdiction in any court where: "(i) it appears that . . . another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction." Jurisdiction under § 2(a)(4) does not rest on whether Massachusetts, rather than Italy, is child’s "home state." Italy was not Maximillian's "home state" because there was no consent by father or court permission for his permanent removal from Massachusetts, as required by G. L. c. 208, § 30. If father knew mother intended to permanently remain in Italy, "he would not have agreed to allow Maximillian to move there even on a temporary basis." Massachusetts may, per G. L. c. 209B, §§ 2(d), 2(e), 14, defer to custody proceedings in a foreign country. Custody of a Minor (No. 3), 392 Mass. 728, 731 (1984); Bak v. Bak, 24 Mass. App. Ct. 608, 615 n.8 (1987); Tazziz v. Tazziz, 26 Mass. App. Ct. 809, 814-815 & n.6 (1988). The Italian courts acted to maintain the status quo, allowing the child to remain in Italy and otherwise declining jurisdiction until the Massachusetts court could issue a final decision. G. L. c. 209B, § 2(a)(1)(ii) gives Massachusetts had jurisdiction because it "had been the child's home state within six months before the date of the commencement of the [modification] proceeding," the child was being retained in Italy "by a person [the mother] claiming his . . . custody or for other reasons," and the father continued to reside here. There was authority (no abuse of discretion) for Probate Court's taking jurisdiction before mother petitioned Italian courts (even if one claims Massachusetts lost jurisdiction on some other ground.)
360 Mother did little to explain why Massachusetts either should have declined or was prohibited from taking jurisdiction, under G. L. c. 209B, §§ 2(d), 2(e), 7(a), and 7(d). See Custody of a Minor (No. 3), 392 Mass. 728, 733-734 (1984); Custody of Brandon, 407 Mass. at 7-13; Guardianship of Zeke, 422 Mass. 438, 445 (1996); Bak v. Bak, 24 Mass. App. Ct. 608, 615-616 (1987); Tazziz v. Tazziz, 26 Mass. App. Ct. 809, 815 (1988); Umina v. Malbica, 27 Mass. App. Ct. at 355; Giambrone v. Giambrone, 32 Mass. App. Ct. 118, 129 (1992); Orchard v. Orchard, 43 Mass. App. Ct. 775, 780 (1997). Removal was not permitted (or even discussed) in the separation agreement. Contrast, Williams v. Pitney, 409 Mass. 449, 452-455 (1991), where a surviving separation agreement contained a provision prohibiting removal without the non-removing spouse's consent, and the Supreme Judicial Court applied the removal standard in G. L. c. 208, § 30, rather than the usual standard in judging separation agreements. Judge concluded, using testimony by father, GAL and GAL’s report, per, G. L. c. 209B, § 2 (a)(4), that: Assumption of “jurisdiction is in the best interest of the child." "It would not be in [Maximillian's] best interest to be removed from the Commonwealth, and . . . physical custody should be with the father." Judge’s subsidiary findings: All of child’s paternal relatives reside in Massachusetts. Father demonstrated parenting skills. Father has been "an involved, loving and nurturing parent throughout the child's life." See Redding v. Redding, 398 Mass. 102, 106 (1986) ("Although G. L. c. 209B, ' 2[a][4], does not set forth considerations relevant to whether the court's assumption
361 of jurisdiction is in the best interest of the child, ' 2[a][2] does. The child and at least one parent must have 'significant connection' with the Commonwealth, and 'substantial evidence concerning the child's present or future care, protection, training, and personal relationships' must be available here"). Father has close relationship with son. Father made preparations to enroll child in school upon his return from Italy
REMOVAL PETITION. Mother argues: She was in Italy with child when Agreement signed so father implicitly agreed to child's removal and waived his right to object.
Appeals Court Discussion: Agreement does not mention removal or mother living in Italy with child. Agreement survived with independent legal significance. Surabian v. Surabian, 362 Mass. 342, 345-346 (1972). All child - related provisions specifically merged into judgment. Permanent removal of child from Commonwealth without both parents' consent or a finding of good cause was unlawful under G. L. c. 208, § 30. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985).
MODIFICATION OF CUSTODY. Mother argues: Judge used impermissible factors in awarding custody to father.
362 Hersey v. Hersey, 271 Mass. 545 (1930).
Appeals Court Discussion: Mother flouted pretrial orders and had no intention of returning to Massachusetts after leaving in fall 1998. Nothing in record indicates judge used modification proceeding as a way "to discipline the [mother] for her shortcomings." Hersey v. Hersey, 271 Mass. 545, 555 (1930). Judge dealt with violations by means of the monetary sanctions. Transfer of custody from one parent to another must be based on some material and substantial change in circumstances since the divorce. Rosenberg v. Merida, 428 Mass. 182, 191 (1998). Change must be of sufficient magnitude to satisfy the governing principle, namely, whether the transfer is in the best interests of the child. Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982). A parent's removal of the child from Massachusetts, without the other parent's consent, is alone insufficient to warrant modification of the custody order. Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980). Other factors contributed to a material and substantial change in the circumstances. Stevens v. Stevens, 337 Mass. 625, 627 (1958) (independently of father's unlawful conduct in removing daughter from Massachusetts, there was a relevant, significant change in circumstances with mother's new home and marriage sufficient to warrant change in custody). Aufiero v. Aufiero, 332 Mass. 149, 154 (1955) (although mother unlawfully removed child from custody of father's parents in New York, material change in circumstances had occurred since father's Nevada divorce decree sufficient to warrant change in custody to mother).
363 Judge’s other relevant findings have solid support in the record, include: Abject breakdown in communication between the parties, which the judge was justified in ascribing to the mother's defiance. Rosenberg v. Merida, 428 Mass. 428 Mass. 182, 191 (1998). Cf. Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981) (discussing need for respect and ability to work together in context of joint legal custody). Mother’s performance as custodial parent demonstrated she: Was not capable of separating her needs and interests from those of the child. Chose to make a unilateral move. Failed to consider that "it is in [child's] best interest to have a meaningful relationship with both of his parents." A change in custody to father would disrupt child's living environment in Italy and any relationships that he had formed there, but: Mother compromised child’s relationship with his father and his extended paternal family in the United States. "The misconduct of the parent may, nevertheless, adversely affect the welfare of the child." Murphy v. Murphy, 380 Mass. 454, 462 (1980). GAL recommended change in physical custody was in child's best interest. Judge considered all relevant factors in weighing the best interests of child with respect to physical custody. Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981). A "request for modification of custody is distinct from a request to relocate and must be based on a material and substantial change in
364 circumstances other than the move". Rosenthal v. Maney, 51 Mass. App. Ct. 257, 261 (2001).
CONTEMPT. To support a finding of civil contempt, there must be a clear and unequivocal command and an equally clear and undoubted disobedience. Nickerson v. Dowd, 342 Mass. 462, 464 (1961). Diver v. Diver, 402 Mass. 599, 602-603 (1988). The stipulation and agreement are sufficient to apprise mother of her obligation to facilitate visitation during the father's February vacation from his teaching position. She failed to do so. Pretrial orders were carefully crafted to accommodate mother's travel needs, and to control the subsequent conduct of the parties, unless modified at trial to prevent manifest injustice. Slade v. Slade, 43 Mass. App. Ct. 376, 380 (1997). Once the issues are defined in a final pretrial order, "they ought to be adhered to in the absence of some good and sufficient reason." Monod v. Futura, Inc., 415 F.2d 1170, 1173 (10th Cir. 1969). Judge had ample authority to impose even more drastic sanctions for noncompliance with the pretrial orders than contempt, including refusing to hear from her witnesses and entering a default judgment. Britt v. Rosenberg, 40 Mass. App. Ct. 552, 554-555 (1996). Given the numerous dilatory and vexatious actions on the part of the mother and her several lawyers (jointly and separately), and their apparent flouting of court orders, we are confident that the judge did not abuse her discretion in finding the mother in contempt.
SANCTIONS AND COUNSEL FEES. Judge imposed financial sanctions because of mother’s contemptuous actions.
365 G. L. c. 215, § 34 gives probate courts authority to enforce orders, sentences, judgments, and decrees made or pronounced in the exercise of any jurisdiction vested in them. See generally Kindregan & Inker, Family Law & Practice ' 72.1, at 632 (2d ed. 1996). Judge also ordered mother to pay to father's counsel approximately fifty percent of his fees because of her dilatory actions, and for his lawyer's efforts related to the contempt action. We afford much discretion to trial judges in setting counsel fees "if their findings of fact are not clearly erroneous." Krock v. Krock, 46 Mass. App. Ct. 528, 533 (1999), quoting from Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 179 (1986), S.C., 400 Mass. 272 (1987). The record facially substantiates the fees awarded, there is no need to second-guess that determination. Father cross-appealed, seeking more counsel fees. Judge found neither mother's nor the father's counsel had covered themselves with glory: “At times, [the lawyers'] conduct was of no assistance in determining the issues at hand and disrupted the judicial process." The degree of civility to which lawyers should aspire was found entirely lacking in this litigation. Even taking an extremely generous view of zealous advocacy, we still would be hard pressed to find anything close to a favorable argument that the judge, who patiently presided over this bitterly contested case, abused her discretion in awarding financial sanctions and only partial attorneys' fees.
Judgment affirmed.
GLN comment on attorney’s fees issue: Even though the other side’s counsel and the mother were found to have improperly engaged in numerous dilatory and vexatious actions, and they flouted court orders, the
366 father’s lawyer has to take a kick in the side of the head because, as a human being, he, too, was outraged at their conduct; and showed it.
O.K. the new rule is: All lawyers line up for mandatory Valium tables 30 minutes before each court appearance. Dosage will be increased commence rate with lawyer’s age and number of court appearances.
The net effect of this is to discourage lawyers from taking inter-country custody / kidnaping cases. Nothwithstanding what judges may think about the success or failure of a lawyer’s practice, these cases consume an inordinate amount of time and energy, plus costs. It is a sum few clients can afford and pay. That is why court should be diligent in awarding full fees in these cases - to protect this child and other children who might be subject to being kidnapped by a parent.
367 ITS O.K. TO DO SOME MESSING AROUND
Ex Parte Contact with Other Side’s non-Management Employees is Permissible.
Elaborating on Messing: Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002) (Messing)
ELLEN L. PATRIARCA vs. CENTER FOR LIVING & WORKING, INC., et ali. 438 Mass 132 (November 14, 2002).
The Law. Rule 4.2, Mass. Rules of Professional Conduct, entitled, "Communication with person represented by counsel," states: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
An organization may not assert a preemptive and exclusive representation by the organization's lawyer of all current (or former) employees as a means to invoke rule 4.2 and insulate them all from ex parte communication with the lawyers of potential adversary parties.
If the person is represented by his or her own counsel, then it is that
368 counsel's permission that must be obtained prior to ex parte contact. DaRoza v. Arter, 416 Mass. 377, 381-382 (1993) (setting out circumstances in which implied attorney-client relationship can arise). Messing, supra at 356-357.
Model Rule 4.2 "does not contemplate that a lawyer representing the entity can invoke the rule's prohibition to cover all employees of the entity, by asserting a blanket representation of all of them." ABA Formal Op. 95-396, VI (1995).
Courts reject "the notion that every city employee is automatically a represented party simply by virtue of his or her employment without any initiative on the part of the employee to obtain legal help from the City." Carter-Herman v. Philadelphia, 897 F. Supp. 899, 903 (E.D. Pa. 1995).
No “attorney has the right to appear as counsel for another without the latter's consent . . . and it follows that an attorney cannot properly hold himself out as representing a person who has not agreed to the representation" [citation omitted]). Brown v. St. Joseph County, 148 F.R.D. 246, 250 (N.D. Ind. 1993.
Rule 4.3, Mass. Rules of Professional Conduct, entitled, "Dealing with unrepresented person," states: "(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. (b) During the course of representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such
369 person are or have a reasonable possibility of being in conflict with the interests of the client." See Restatement (Third) of the Law Governing Lawyers 103 comments (2000).
"Prohibiting contact with all employees of a represented organization restricts informal contacts far more than is necessary to [protect attorney-client privilege, or prevent clients from making ill advised statements without the counsel of their attorney]." Messing, supra at 358.
Blanket ban rejected because it would exact high price and be unnecessary to achieve objectives of rule. Niesig v. Team I, 76 N.Y.2d 363 (1990)
Facts. Patriarca alleges that Bailey pressured her to: · Evaluate individuals who were not eligible for personal care services. · Falsify documents to make it appear that certain individuals were eligible for personal care services. · Present false information to the Department of Medical Assistance by recommending more services for clients than was required. Patriarca’s claims against the center allege breach of contract and wrongful termination in violation of public policy. February 23, 1999: Patriarca sues the center alleging wrongful termination from her employment as a registered nurse supervising the center's personal care attendant program. In interrogatories, Patriarca admitted: · Contacting 4 former center employees. · Discussed “events which had occurred while we were both employed at [the center]."
370 Defendants filed motion for a protective order restraining Patriarca and her counsel from having ex parte contact with the center's former employees on matters concerning their employment and the pending litigation. Defendants argue: · Rule 4.2 prevents ex parte contact with any former employee without first obtaining a ruling from the court in question or permission from the former employer's counsel. · That oversight is necessary because: Former employees may be able to divulge confidential or privileged information. Judge should be the gatekeeper by deciding in the first instance that the ban should be enforced to the extent to which a former employee's statements, made during the employment relationship and within the scope of employment, might be admissible in evidence in an action against the employer. Patriarca argues: · Blanket no-contact rule provides institutional defendants with the power to control any information in the possession of anyone who ever worked at that institution. · It is the rare case where a former employee would be in a position to make a statement that could bind the former employer. · The burden of showing that a former employee might be in a position to make such admissions should be on the former employer. · Broad access to former employees by opposing counsel furthers the interest of promoting the search for the truth and furthering informal, efficient, and inexpensive information gathering at the discovery stage of a proceeding. · Such access should be permitted "subject to appropriate conditions."
371 Superior court judge - who did not have the benefit of Messing, concluded that rule 4.2 may prohibit ex parte contact with former employees. · Statements of former employees could be potentially admissible against the center. · Former employees' acts or omissions could be imputed to the center. Protective Order: · Patriarca's counsel barred from "contacting any former employees of the defendant corporation on matters concerning their former employment and this litigation unless defense counsel is present or permission is granted from this [c]ourt or from opposing counsel." · Protective order "applicable only to the plaintiff's counsel and not to the plaintiff herself [because] [r]ule 4.2 is inapplicable to parties." Since the center did not take an interlocutory appeal of the latter order, it is not ripe for decision. Patriarca appealed to Single Justice of The Appeals Court. Single Justice (Charlotte A. Perretta, J): · Granted Patriarca's petition for interlocutory review. · Authorized an appeal to a panel of the Appeals Court. SJC granted an application for direct review
SJC A threshold question is whether a particular employee is actually represented by corporate counsel. The center may not invoke rule 4.2 to claim that all current and former employees are represented. Therefore, the protective order is overbroad. Any analysis must be employee specific. The center made no factual showing that the former employees
372 in question are actually represented by the center's (or their own personal) counsel.
Review of Messing consideration of what employees may be considered represented for purposes of rule 4.2. The purpose of rule 4.2 is to "protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney." Messing, supra at 358. Prohibiting ex parte contact with all employees of a represented organization went beyond the purpose of the rule, which was not to "protect a corporate party from the revelation of prejudicial facts." Id., quoting Dent v. Kaufman, 185 W.Va. 171, 175 (1991). A balance between the need to discover relevant facts and the competing need to protect the attorney-client relationship is necessary. Id. at 358-359. Rule 4.2 (and comment [4] thereto) prohibits an attorney from having ex parte contact only with certain employees of an organization, namely, those "who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the corporation to make decisions about the course of the litigation." Id. at 357. . After Messing decided, effective June 5, 2002, comment [4] was changed to read: "In the case of an organization, this [r]ule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the
373 litigation. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this [r]ule. Compare [r]ule 3.4(f)." As construed, the rule allows "ex parte interviews without prior counsel's permission when an employee clearly falls outside of the rule's scope." Id. at 359. Patriarca’s registered nurse duties were to manage the personal care attendant program (provides persons who have permanent or chronic disabilities with assistance to allow them to live independently in their community instead of being institutionalized.)
Four contacted former employees: Two had been occupational therapists. Third was assistant community department manager-supervisor and skills trainer. These three had worked closely with Patriarca and Bailey at the center. Fourth had been a business manager at the center and had witnessed the events which led to Patriarca's separation from the center. These four former employees of the center do not come within any category of employee covered by rule 4.2. Messing, supra at 357. No allegation they committed wrongful acts at issue in the litigation. No evidence, under their job descriptions or otherwise, that any of them had authority on behalf of the corporation to make decisions about the course of the litigation. The question whether any of them exercised managerial responsibility in the matter, however, is less obvious. Employees with managerial responsibility in the matter "include only those employees who have supervisory authority over the events at issue in the litigation." Id. at 361.
374 These 4 has to be in a position to direct Bailey to conduct himself as alleged, or to cause the center to respond as alleged in order for them to have exercised managerial responsibility in the matter. The center makes no claim that the first three had such managerial responsibility. Center claims fourth employee, was "Director of PCA/Fiscal Intermediary Services and former Business Manager," was "a 'management' witness to the [p]laintiff's separation which ultimately led to this [c]omplaint," and "was a central part of [the center's] management team." Being a "witness" to plaintiff's separation does not establish that the fourth employee was involved in supervising, planning, or directing the events and practices that led to this litigation. The record has no basis to conclude that the fourth employee "exercise[d] managerial responsibility in the matter" (emphasis added). Id. at 357. The center will be provided a new hearing in which to be given opportunity to show the fourth employee comes within the managerial category under Messing Subject to the above: None of 4 former employees in this case came within a protected category of employee identified by the Messing case while she was employed by the center. None are protected from ex parte contact while an active employee of the center. A change in status from current to former employee does not change the fact that each falls "outside of the rule's scope." Messing, supra at 359. They are not protected by rule 4.2 from ex parte contact by Patriarca's counsel. In making any ex parte contact with these former employees, Patriarca's counsel must, of course, be assiduous in meeting
375 other ethical and professional standards found outside rule 4.2. (See Rule 4.3)
General applicability of rule 4.2 to former employees is not addressed on the facts presented. (See footnote 10 for discussion of position of various jurisdictions.)
Superior Court protective order is vacated. Case remanded.
376 What is Rule 70 and Why Should I Love it so?
Negligence and Malpractice by Attorney at law.
JUDITH MEYER vs. AUGUSTUS F. WAGNER, JR. Appeals Court - No. 01-P-1123 (March 4, 2003)
Superior court civil action commenced July 24, 1992. Prior appeal: SJC, 429 Mass. 410, 411, 525 (1999) George C. Deptula for Meyer; James R. DeGiacomo for Wagner.
The Law
Whether evidence is sufficient is a question of law.
A verdict must be sustained if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor" of the plaintiff.
The inquiry is not intended to invite the judge to substitute his view of the evidence for that arrived at by the jury.
Appeals court apples same standard as the judge, but do not defer to his view of the evidence.
Whether verdict is against the weight of the evidence is a question addressed to the discretion of the trial judge, and his decision will not be disturbed unless that discretion has been abused. But, the judge’s decision is not immune from review.
377 "The standard ... is whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion."
Facts: Husband in real estate development and construction, with numerous companies, with intermingled assets and liabilities. November 1987 - Meyer files divorce (with another lawyer) March 1988 - Wagner hired Meyer told Wagner husband would use devices to dissipate or conceal marital assets. _ July 27, 1989 - settlement during trial, separation agreement incorporated into judgment. Meyer to get $250,000 within 100 days, plus $100,000 within one year (to go to $150,000 if not timely paid), plus $600,000 on sale of Blueberry Land, Sandwich land owned by husband - on December 31, 1989. Marital home to be sold. Husband to give mortgages to secure husband’s payments, subject to existing mortgages of $500,000 on Cranberry Lane; unspecified amount on the Blueberry Lane property; and $600,000 blanket mortgage on Cranberry and Blueberry Lane. Wagner did not get husband to sign mortgages at time of settlement. Husband did not come to meet Wagner at Barnstable Registry of Deeds to sign mortgages Wagner did not make immediate further attempts to get mortgages, nor pursue Mass. R. Dom. Rel. P. 70 relief,
378 nor seek attachments. November 30, 1989: husband paid $250,000 using deposit received on singing a P & S agreement for sale of marital home for $1.125 million. (Buyer got mortgage from husband to secure re-payment if sale did not go through.) $600,000 not paid by 12/31/89 (Blueberry Lane property not yet sold). January 19, 1990 - complaint for contempt; Wagner got attachments on Cranberry and Blueberry Lane properties. Attachment on Cranberry Lane subordinate to purchaser's $250,000 mortgage. January 26, 1990 - marital home closed for $1,125,000, with $875,000 balance paid at closing. $500,000 paid to first mortgagee; $300,000 paid to holder of blanket mortgage to clear portion of that lien that encumbered the Cranberry Lane real estate. Taxes and fees consumed most of the remainder. The broker did not receive his commission. $15,300 put in escrow and eventually received by the plaintiff. April 1990: Husband held in contempt for failure to pay $600,000 due by 12/31/89 November 29, 1990, Wager got attachments on the rest of husband’s real estate December 11, 1990: first mortgage on Blueberry Lane foreclosed, leaving Meyer with no money from that source. Spring 1991: Wagner fired Husband and corporations file for bankruptcy. September 27, 1992: husband died. Meyer got the $15,300 escrow from Cranberry Lane sale and another $50,000 to $60,000 as a result of the husband's bankruptcy. Meyer claimed Wagner’s negligence resulted in her sustaining losses
Procedural History:
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First jury trial: Verdict for Wagner by jury or directed verdict and finding by judge of no 93A violation.
First Appeal (SJC on direct appellate review): Reversed jury verdict and sent back for new trial.
Second jury answered two special questions:
Wagner was not negligent in the preparation or execution of Meyer’s settlement agreement or in the advice that he provided
Wagner was negligent in failing adequately to secure the marital assets and that the plaintiff had incurred a loss of $750,000 as a result; and. awarded Wagner $70,000 in attorneys fees
On Wagner’s motions, judge entered: judgment for defendant, NOV - no evidence to support a finding that defendant's negligence caused the plaintiff any loss; allowed motion for new trial (in case NOV was reversed).
Second Appeal:
Reverse the judgment NOV and reverse allowance of motion for new trial.
The argument:
Wagner agreed he could be found negligent but Meyer’s loss
380 was not attributable to his negligence, but rather to factors over which he had no control - a decline in the real estate market. The judge's conclusion disregarded contrary evidence - that Cape Cod waterfront property had maintained much, if not all, of its previous value. Appraiser testified marital home worth between $1.6 and $1.8 million, so if sold at $1.125 million, there was $675,000 lost in that transaction. Expert testified Wagner could have taken steps to bring about the sale of the martial home at a higher price.
Wagner could have made a timely effort to compel the husband to give the mortgages, eliminating or reducing the possibility of a below-market sale.
Wagner could have requested the court (Rule 70) divest the husband of the power to conduct the sales himself, instead placing the authority to do so in a fiduciary whose objective would be to maximize the value received.
Meyer should have, but did not have a mortgage on the marital home in existence before the buyer paid $250,000 and got his mortgage. Granting that $250,000 mortgage resulted in Meyer’s loss of leverage to protect her rights. Judge impermissibly substituted his view of value of Cape Cod real estate for that of the experts and the jury. The $750,000 did not give weight to the $15,300 Meyer got from sale of marital home or the $50,000 and $60,000 received from husband's bankruptcy proceedings. On remand, there should be a determination whether such amounts were in fact received and, if so, whether they should be credited against the $750,000 otherwise awarded.
381 Mass. R. Civ. P. Rule 70
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has the effect as if done by the party.
On application of the party entitled to performance, the clerk shall issue a writ of attachment against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt.
If real or personal property is is within the commonwealth, the court in lieu of directing a conveyance there may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.
When any other order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution upon application to the clerk.
382 HOW TO STAY AWAY FROM WAGNERIZING PROBLEMS BY IMMEDIATELY ADDING THESE CLAUSES TO YOUR LETTER OF REPRESENTATION
1. OBJECTIONS TO AMOUNTS ON BILLS.
Any objection which the client has to any item listed on the bills for services rendered or for costs must be brought to the attorney's attention by the client within thirty (30) days of the date of the bill. Otherwise, the bill is deemed to be proper, as sent.
The reason for wanting you to do this right away is so that information about the bill is fresh in the mind of both the lawyer and the client. There are so many things which happen in the lawyer's office, day-to-day, that it is often hard to recall specific facts or circumstances about a particular day or time charged on that particular day.
We, your lawyers will not be upset, nor should you be embarrassed about talking with us about your statement for services rendered and costs listed on your bill. This is our time and your money. Each of us needs to understand and accept that there is nothing wrong with discussing your concerns about a bill. While we certainly try to keep errors out of our billing, we are all human. By having you check your bills as they are received and by asking you to bring any questions to our attention within 30 days, we are preserving our mutual interests of going forward as a team.
2. ENFORCEMENT OF CONTRACT.
By signing this contract you accept the principal that, if you had borrowed money from a bank or charged goods or services on a credit card and then refused to pay that money back, you could be sued. You know that if the terms of the contract with the bank or credit card company so provided, it could collect the balance due, plus the amount of its collection costs, including its reasonable legal fees.
While the practice of law is considered a profession, we agree that it is also, by necessity,
383 a business, one which requires your lawyers to pay for rent, telephone, secretary and paralegal assistance, associates and the multiple costs of doing business, all of which have to be paid before the lawyer takes home money for him or herself. If you do not pay your lawyer, your lawyer still has to pay these expenses out of his or her own funds, so that forces your lawyer to essentially be lending you money. You agree that your accepting services and costs from your lawyers, without paying therefore, in accordance with the other provisions of this contract, is similar to your not paying back money borrowed from a bank or not paying for goods or services you obtained by using your credit card.
Therefore, you agree that if this contract between you and Nissenbaum Law Offices is enforced through any legal proceedings or arbitration, if we prevail, we shall be entitled to also recover reasonable compensation for our time spent as if it were attorneys' fees which we paid to another, plus court costs and interest at the rates for overdue bills, discussed elsewhere in this contract, or if that interest rate is declared to be void, then at the highest permissible rate on any sums owing from the date that the same became due hereunder. Further, if you make any counter claims or commence any separate civil actions or arbitrations alleging professional negligence or other causes of action against us, whether directly or in response to our claim for unpaid legal fees and costs, if you are not successful, Nissenbaum Law Offices shall also be entitled to recover reasonable compensation for our time spent defending your claims.
By signing this contract you agree that the hourly and other rates stated in this contract for legal services, expenses and cash disbursements establish a reasonable hourly rate which will be used in assessing our fees in connection with either our enforcement of this contract or in defending your unsuccessful claims.
If we use lawyers to help enforce this contract, to help us on the mandatory arbitrations discussed below or to defend against your claims or counter claims, you shall also be required to pay those legal fees and costs, if, as the case may be, we are either successful in pursing our claims or you are not successful in pursing all of your claims, or both.
By signing this contract you agree that if Nissenbaum Law Offices sues you, something we both hope will never occur: (a) service of process made be made by first class, postage prepaid U.S. Mail and (b) that any such law suit must be commenced in the state courts of the Commonwealth of Massachusetts.
3. A. BINDING MANDATORY FEE ARBITRATION.
384
In the event of any dispute between the lawyer and the client about the amount of the fee paid or due to the lawyer, both the lawyer and the client agree to submit their dispute for binding arbitration to the Massachusetts Bar Association Fee Arbitration Board (hereafter MBA/LFAB) and to the panel it assigns to this case, in accordance with its Rules then in effect, unless otherwise agreed, in writing.
In the event either you or Nissenbaum Law Offices start a fee arbitration, the other party must give his, her, their or its consent to the proceeding, by signing the forms provided by the MBA/LFAB. If the other party refuses to sign the assent to arbitration within a reasonable time (not to exceed thirty (30) days), then the party requesting arbitration is hereby appointed as the other party's attorney- in- fact, for the purpose of signing the assent to arbitration.
The fee arbitration shall not include any other matter or party, whether by consolidation, joinder or in any other manner, even if arising out of this contract, except as to another person substantially involved in a common question of fact or law, whose presence is required in order to permit complete relief. For example, if you want to claim that we should not be paid because you claim we were professionally negligent or did not get the result you wanted, you cannot use that as a defense in the fee arbitration. Instead, you must start a separate arbitration proceeding,
385 discussed below.
Notice of the demand for fee Arbitration shall be sent in writing to the other party and filed with the Massachusetts Bar Association Fee Arbitration Board, but in no event after the date when institution of legal or equitable proceedings, based on such dispute, would be barred by the applicable statue of limitations.
B. BINDING MANDATORY ARBITRATION ON ALL OTHER MATTERS.
In the event of any dispute between the lawyer and the client, other than over the fees and costs, including, without limitation, claims of professional negligence, THE PARTIES AGREE THAT THEY MUST SUBMIT THEIR DISPUTE(S) FOR BINDING ARBITRATION.
The Arbitration panel shall consist of three Fellows of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers (hereafter Mass. AAML), each of whom has completed the arbitration training program offered by the Academy of Matrimonial Lawyers (AAML) (and if three so qualified Mass. AAML Fellows are not available, then the panel may be completed or filled with three such Fellows) .
The demand or cross or counter-demand for arbitration shall be made by one party serving the other with a document in the form that would otherwise be used for a civil action or counter claim, together with the names of three Mass. AAML Fellows who meet the above qualification. The other party shall respond within thirty days with a document in the form that would otherwise be used to respond to a civil action, including any counter claims and defenses, together with notice of
386 whether any or all of the three named Mass. AAML Fellows are acceptable as Arbitrators and, to the extent less than three are acceptable, identifying the name(s) of those who would be acceptable. The initiating party shall respond within thirty days to any counter claim and to advise if all or any of the newly named Mass. AAML Fellows are acceptable. If the parties are not able to agree on a panel of three Mass. AAML Fellows, they jointly appoint the then President of the Mass. AAML to fill any needed places or, if need be, to appoint the entire three personal panel. In the event that the then President of the Mass. AAML is, for whatever reason, disqualified or unable or unwilling to perform the above duties, the then President-Elect, most senior Vice President or Secretary (in descending order) shall be so designated; and failing that, the then President of the National AAML. Thereafter Arbitration shall proceed in accordance with the Rules propounded by the AAML Arbitration Committee, then in effect, or, if none, with the Rules propounded by the American Arbitration Association, unless otherwise agreed, in writing.
In the event the other party fails to respond to the demand for arbitration within thirty days, by filing an answer and counter claim, the three Mass. AAML Fellows designated by the requesting party shall be deemed appointed to hear the matter and they shall proceed, accordingly.
Each party to the arbitration may have discovery of the type and nature permitted under the Massachusetts Rules of Civil Procedure, including depositions, production of documents, requests to admit and interrogatories. The three designated Arbitrators shall designate one of their number to make all rulings on contested issues of discovery and, generally, to supervise the pre trial proceedings. In the event an Arbitrator is not able to complete the case, the parties (and failing that, the then President of the Mass. AAML) shall designate a replacement.
Initially, the parties to the Arbitration shall each pay one half the cost of the Arbitrators' fees (at their usual hourly rates) and costs. However, at the end of the arbitration, the Arbitrators must consider reallocating the responsibility for their fees and costs, consistent with the other provisions of this contract regarding payment of fees and costs.
Notice of the demand for non-fee Arbitration must be sent before the date when institution of legal or equitable proceedings, based on such dispute, would be
387 barred by the applicable statue of limitations.
C. THINGS RESULTING FROM THE AGREEMENT FOR MANDATORY ARBITRATION.
Generally, in arbitration the rules of evidence are somewhat relaxed, as compared to a formal trial in court. You should also understand that in order to promote a speedy finality to the proceedings, decisions made by Arbitrators cannot be challenged on such items as alleged errors of law or fact.
The award rendered by the Arbitrators shall be final. A court judgment may be entered upon the award in accordance with applicable law in any Massachusetts court to which jurisdiction the parties submit or in the Superior Court Trial Department.
You agree that, to the extent not included in the arbitrator's award, the court enforcing the award shall also order you to pay for our out of pocket costs incurred in the arbitration, for our legal fees and for the value of our time, that is our reasonable compensation (as defined elsewhere in this contract) in connection with enforcement of any award and related proceedings.
D. WAIVER OF RIGHT TO TRIAL BY JURY.
The signing of this contract is to be deemed a signature agreeing to the mandatory and binding arbitration on all fee and non-fee disputes or claims referenced above and an acknowledgment that, in the event of any dispute between them, the lawyer and the client and, if applicable, the guarantor are giving up their right to a trial by a jury and giving up their right to a trial by a judge.
388
E. STATUTE OF LIMITATIONS.
For purposes of resolving disputes between the lawyer and client, the making of demand for Arbitration shall stop the running of the applicable statute of limitations. In this way neither party will be prejudiced by proceeding with arbitration.
4. INTEREST EXPENSE:
If you do not maintain a credit balance in your client deposit account, you must pay interest on all balances which have been due for more than 30 days. While it is expected that you will maintain a credit balance in your client deposit account, there ought not to be any interest on the money due us for fees and costs. However, if you do not timely pay, whether we continue as your counsel, or not, the interest will be added monthly.
5. TRUTH-IN-LENDING ACT AND REGULATION Z:
The following information is provided in order to comply with the Truth-in-Lending Act and Regulation Z.
Finance Charge for Late Payments: The client understands that all bills are due when received. If there is not enough money on deposit in your account in the client trust account to pay the full amount on the bill rendered, the client will pay any outstanding balance within 10 days of receiving the bill. If a bill has not been paid in full before the expiration of a 30-day period from the date on the bill, a FINANCE CHARGE of 1-1/2 percent (1-1/2%) per month will be imposed on the balance due per the last
389 statement. This is an EFFECTIVE ANNUAL PERCENTAGE RATE of 19.562 percent (19.562%). The FINANCE CHARGE will begin to accrue 30 days after the date on the bill. If the client pays the bill in full before the expiration of the 30-day period, no FINANCE CHARGE will be imposed. The balance of the account on which interest is charged is determined by referring to the last statement and deducting any credits during the current month in the Billing Cycle.
IF A FINANCE CHARGE is imposed, the client will receive a statement as of the end of each billing period setting forth separately: (a) the outstanding balance in the account at the beginning of the Billing cycle ("Previous Balance"); (b) payments thereon ("Payments") and credits thereto ("Credits") during such Billing Cycle; (c) the balance on which the FINANCE CHARGE is computed ("Balance subject to FINANCE CHARGE"); (d) FINANCE CHARGE; (e) charges for legal services, expenses and general and administrative expense incurred during the Billing Cycle; (f) the balance due on the billing date ("New Balance" or "Payment Due"); (g) the minimum payment is the full balance due, that is, the new Balance due; (h) the closing date of the Billing Cycle ("Billing Date"); (i) due date of payment to avoid additional interest ("Payment Date") which is 30 days after the Billing Date; (j) the monthly periodic rate of FINANCE CHARGE ("Periodic Rate"); (k) the ANNUAL PERCENTAGE RATE; (l) the date by which the New Balance must be paid to avoid additional FINANCE CHARGES; and (m) the address to be used for notice of any billing errors. Monthly Payments shall be applied first to the payment of FINANCE CHARGES, and then to the charges for legal services.
390 Nissenbaum Law Offices reserves the right to amend or modify these terms and conditions upon notice to the client in accordance with applicable law.
6. ALTERNATIVE DISPUTE RESOLUTION:
Rule 5 of the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution requires that all lawyers inform their clients of court-connected dispute resolution services. Enclosed is a pamphlet entitled “Have You Considered All of Your Options?” which will give you a brief overview of the kinds of mediation services available through the court.
Typically I have found that by the time someone gets to me, their situation has gone beyond the point of being able to successfully use mediation services. For clients who are dealing with an abusive spouse, mediation would just serve as another forum for intimidation and abuse.
However, for clients who have an amicable relationship and are able to communicate effectively with their spouse/ ex-spouse, mediation can be a valuable money saving tool. Mediation is good for people who need help in working out their differences in such areas as visitation with children or how assets will be divided.
391 If you would like additional information on the mediation process, please advise.
xxx
392 DO NOT TAKE STUPID PILLS BEFORE YOU COME TO WORK.
Eighteen Month Suspension turns into 3 years, on appeal - due to Attorney’s pervasive willingness to have client testify falsely.
IN THE MATTER OF STEVEN M. FOLEY. May 6, 2003 SJC-08847 Facts: FBI investigation into alleged corruption at the BMC Special Agent, using pseudonym Thomas Abate, caused himself to be arrested by Boston police. Boston Police did not know Abate was an undercover FBI agent. Charges: • Driving while under the influence of alcohol • Illegal possession of a handgun. An unloaded .38 caliber handgun was found in the back seat of the agent's rented vehicle. .38 caliber bullets found in agent’s pocket. Open and nearly empty bottle of Jack Daniels whiskey was found in the front seat. [GLN note: the Boston cop must have thought he hit the jackpot on this stupid perpetrator!]
Following May 25, 1993 BMC arraignment, Abate hired Attorney Foley to represent him. Foley’s name was supplied to Abate by a BMC court officer.35
35Court officer subsequently pleaded guilty in Federal District Court to an
393 Foley and Abate / client discussed the case 38 times. Those conversations were secretly recorded.
June 11, 1993: first meeting: • Discussed charges and Abate’s defense. • Agent made clear he owned gun for some time and knew it was in the car. • Foley indicated it would be best for Abate to distance himself from the gun, but that the bullets in his pocket would be problematic. • Abate inquired about testifying falsely with regard to how the gun came to be in his rented vehicle - e.g. he did not know it was there, he found it and took the bullets out to be safe. • Foley expressed no reservations about his doing so - but wanted to check the police report before going further.
July 6, 1993 - telephone call: • Foley told Abate he planted seeds for a fabricated defense in his initial conversation with the prosecutor. • Foley would convey the details of the story to the prosecutor at a later meeting after they were more fully concocted.
July 6 - July 23, 1993: • Foley told prosecutor a fabricated story to explain how the gun came to be in Abate's rented car. · Abate was drinking at a bar, met a guy. · They decided to go to combat zone. · Abate saw guy had a gun, didn’t want the guy to be packing while there were in the Zone. · Told guy to leave gun in car, and Abate took out bullets. indictment charging him with racketeering.
394 · They went drinking; and he met a girl and spent time with her. Doesn’t know what happened to the guy.
July 23, 1993: • Foley met with Abate to prepare for trial. • Foley told Abate the fabricated story • Foley instructed Abate on how to give false testimony • To bolster credibility of the false testimony Abate was to give at trial, Foley repeatedly encouraged Abate to go to the Combat Zone, familiarize himself with the area; and imagine somebody to describe as the man who owned the gun. • Later that day, Abate expressed reservations about going to trial on July 26; and asked if Foley could get postponement. • Foley, in Abate’s presence, telephoned prosecutor, falsely said Abate was out of town for a couple of weeks, and negotiated a continuance.
September 3 and October 20: • Foley and Abate met to again discuss fabricated story to be used at trial. Case thereafter continued further. November 29, 1993 - Abate defaulted. Based on discovery received from prosecutor, Foley began to pursue a motion to suppress the gun that did not depend on the agent's testimony. Motion to suppress never heard.
Case never went to trial, as charges nolle prossed when Suffolk County DA true identity of the agent and that his arrest had been part of an undercover investigation. Procedural History. US Attorney reported Foley’s conduct to BBO.
395 Bar counsel filed petition for discipline before a hearing committee of the board. Tape recordings of the agent's conversations with the respondent were admitted in evidence and played at the committee hearing. Prosecutor, Foley and agent testified at hearing.
Committee found Foley: . Fabricated false story for the agent's defense; . Presented the fabricated false story to the prosecutor; and . Encouraged the agent to testify falsely in keeping with the fabricated story.
Mitigating Circumstances: . Agent induced Foley's misconduct by initially broaching the subject of perjury; . Foley’s consideration of using perjured testimony was a brief "flirtation" that he quickly realized was error; . Foley did not actually present the agent's false testimony in court; and . Foley was not able fully to cross-examine the agent at the hearing on his misconduct - as agent only documented the tapes.
Conduct violated: . S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) and (6) "A lawyer shall not . . . (4) [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation[; or] (6) [e]ngage in any other conduct that adversely reflects on his fitness to practice law." . S.J.C. Rule 3:07, Canon 7, DR 7-102 (A) (5) and (7)
396 "In his representation of a client, a lawyer shall not . . . (5) [k]nowingly make a false statement of law or fact[;] (7)[c]ounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." Bar counsel sought 3-year suspension. Committee recommended a public reprimand.
Board:
Adopted committee's findings of fact and conclusions of law; Concluded Foley also violated DR 1-102 (A) (5) "A lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration of justice." Recommended 6-month suspension. Two board members dissented - wanted 18 - month suspension. Two board members favored a lesser (unstated) discipline. Bar Counsel and Foley appealed to SJC Single Justice.
Single Justice:
Imposed 18-month suspension as being similar to action taken in similar cases. Foley’s making false statements to prosecutor was akin to making false statements to a court. Foley appealed to the full court.
Full SJC:
Evidence leaves no doubt as to the serious nature of the misconduct. What is unusual is ability to clearly see depth of that misconduct and
397 the ready ease with which Foley engaged in it. Foley’s own words repeatedly reflect complete disregard, if not utter contempt, for the fundamental ethical obligations of an officer of the court. No mitigating circumstances.
Inducement. When agent initiated idea of fabricating a defense, Foley had a duty to reject any suggestion that a defense could be devised and presented through false testimony. Foley not pressured to do what he recommended Foley embraced the idea of a false story being used. Foley developed the false story, advised the agent to seek out and make up details to ensure his false testimony would appear credible, and passed the fabricated story along to the prosecutor in an effort to influence the outcome of the case. Flirtation. On June 11th, Foley adopted false story strategy. Foley developed it in full detail over the period of 1 ½ months. Foley met with agent to lay out false story and prepare his perjured testimony; advised the agent to visit the location to be able to ack story up with details, made up a false character, lied to prosecutor to get a continuance; and continued to discuss the false defense Not a brief flirtation. Prolonged, close embrace with false testimony. The nolle prosequi cannot be mistaken for a change of heart.
Apparent, if not unavoidable inference to be drawn from the respondent's ready willingness to fabricate a defense and prepare false testimony to support it is that this was not an aberration from his normal practice, but business as usual.
398
The recorded conversations also reflect the respondent's long-standing and easy familiarity with the corrupt practices of the court officer who subsequently pleaded guilty to racketeering.
SJC will not ignore such an inference. Matter of Orfanello, 411 Mass. 551, 556-557 (1992).
False testimony not presented.
If case was tried and Foley presented false, concocted story and presented false testimony (which the record suggests he was fully ready to do), he would be disbarment. In re Storment, 873 S.W.2d 227 (Mo. 1994) (attorney disbarred for encouraging client to testify falsely at trial and presenting false testimony). Matter of Edson, 108 N.J. 464 (1987) (attorney disbarred for assisting clients in fabrication of false testimony and presenting false testimony at trial). Board of Overseers of the Bar v. Dineen, 481 A.2d 499 (Me. 1984) (attorney disbarred for knowingly eliciting false testimony at trial from client). "There is no room in the profession of the law for those who commit deliberate falsehood in court." Matter of Sleeper, 251 Mass. 6, 20 (1925) (attorney disbarred for committing perjury). That false testimony was never presented in court, under oath, is a factor to be considered - so that Foley avoids disbarment - but it does not mitigate the misconduct that has been proved. Otherwise stated, Foley’s misconduct is not mitigated by his failure to commit a more severe offense. Matter of Gross, 435 Mass. 445, 452 (2001).
399
“No true harmed” argument rejected.
Because client was undercover FBI agent, the case was not "real." Argument misperceives the harm that the ethical rules are intended to prevent. The most significant harm arising from the respondent's conduct is its effect on the profession and the public's confidence in its integrity. Foley’s misconduct has now been brought to light, and the method by which that was accomplished does not mitigate the harm done.
Length of Suspension.
Decline to adopt the single justice’s view that the respondent's summary of the would-be fabricated defense to the prosecutor as an "officer of our government" was the equivalent of presenting such a defense to a judge in a judicial proceeding. Rules governing the relationship between lawyers and judges are different from those that govern the relationship between one lawyer and another. Single justice ordered 18 month suspension. Foley claims punishment "markedly disparate" from sanctions imposed in similar cases.
Because the conduct at issue is pernicious to our legal system, and highly destructive of public confidence in the integrity of the legal profession, we conclude that a
400 suspension of 3 years is warranted.
Conduct in other case was not comparable (in terms of depth and heft) to the insidious nature of what has been laid bare in the present case. We therefore must establish independently a sanction adequate to address the seriousness of the misconduct, to reassure the bar and the public that such conduct is completely contrary to the oath of office taken by every lawyer, and to underscore that, when it is uncovered, such conduct will be treated with the utmost severity. In our view, that sanction is a three-year suspension.
Conclusion. Eighteen-month suspension vacated; and increased to 3 years.
401 If You Hit Your Spouse,
You’ll Lose More Than Just the House!
Attorney at Law, Disciplinary proceeding, Suspension.
IN THE MATTER OF PAUL J. GRELLA. 438 Mass. 47 (October 30, 2002)
Issue: What is the appropriate disciplinary sanction for a member of the bar convicted of a misdemeanor arising from his violent assault on his estranged wife.
Procedural Background before Board of Bar Overseers:
Bar counsel notified by the county court that Paul J. Grella, had been convicted of assault and battery.36
Bar counsel filed a petition for discipline alleging Grella violated Mass. R. Prof. C. 8.4 (b) and (h), 426 Mass. 1429 (1998). [2]
Board hearings committee recommended: two month suspension from practice of law - his failure to show remorse for his conduct being a factor in aggravation.
36On June 18, 1999, Grella pleaded guilty to a misdemeanor on a single count of assault and battery in violation of G. L. c. 265, § 13A. Superior Court sentence to five years' supervised probation on conditions that he abstain from alcohol; undergo psychological, batterer's, and sex offender evaluation and treatment as deemed necessary by the probation department; remain gainfully employed; obey any restraining orders issued under G. L. c. 209A; and stay away from members of the victim’s family, other than their children in common.
402
Board adopted the hearing committee's findings and recommendations, and filed an information to that effect.
Single justice (Cordy, J.) rejected board's recommendation and ordered that . Grella be suspended for six months . suspended the execution of the discipline for three years provided · Grella abstain from alcohol and · abide by the rules of the profession.
Bar counsel appealed.
Supreme Judicial Court.
De novo review at the SJC
Held: suspension of the respondent from the practice of law for two months.
Facts: Grella graduated law school 1987 having married victim while attending law school. After law school, couple moved to Massachusetts. Grella clerked for Bankruptcy Court judge in Rhode Island. Grella admitted to Massachusetts bar in 1989 - sole practitioner. May, 1998 - separated, followed by 1999 divorce.
Events of July 29,1998:
At 12:50 A.M. Grella started by repeatedly telephoning her, leaving messages on her answering machine to the effect that he wanted to come over to see her. Wife did not answer the telephone, heard the recorded messages, eventually turned off the telephone ringers and fell asleep Wife awakened when she heard the respondent calling her name. He
403 was in her bedroom. She asked the respondent to leave. He refused, pushed her on the bed, lay on top of her, and put his hand over her mouth. The victim, feeling that she was unable to breathe, finally pushed him away, and she fell to the floor. Grella fell on top of her, screaming at her while slapping her and pulling her hair. The respondent pulled at the victim's clothes, ripping off two buttons. He pushed her back down on the bed. The victim begged him to stop. Fearing for her life, she scratched the respondent's cheek in the hope that someone would notice if something happened to her. She told the defendant "not to do anything because of the children." The assault continued for approximately four hours, with the respondent refusing to let the victim leave her bedroom. At 5:45 A.M., the respondent finally left the house. The victim immediately dialed 911, reported what had happened; and that Grella threatened to harm her if she telephoned the police. The police later observed and photographed the wife's injuries. Grella pleaded guilty, which is a conviction within the meaning of S.J.C. Rule 4:01, § 12 (1)
Committee Conclusion:
Grella’s assault and battery on his estranged wife constituted a violation of Mass. R. Prof. C. 8.4 (b) and (h).37 When an attorney commits an act of domestic violence, a discipline of suspension is generally warranted regardless of whether the attorney is later convicted of a felony or a misdemeanor. Recommended two month suspension.
37Rule 8.4, Mass. Rules of Professional Conduct: "It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects . . . (h) engage in any other conduct that adversely reflects on his or her fitness to practice law."
404 SJC Discussion.
The sustained, violent attack on his estranged wife adversely reflects on his fitness as a lawyer. The conviction is conclusive evidence that the respondent had committed an assault and battery in violation of G. L. c. 265, § 13A. This conviction is not defined as a "serious crime" within the meaning of S.J.C. Rule 4:01, § 12 (3) "A lawyer should be professionally answerable only for [criminal] offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence . . . are in that category." "Each act . . . by a lawyer . . . which violates any of the Massachusetts Rules of Professional Conduct . . . shall be grounds for appropriate discipline even if the act or omission did not occur in the course of a lawyer-client relationship or in connection with proceedings in a court" The essence of the conduct of a lawyer is to facilitate the resolution of conflicts without recourse to violence, for law is the alternative to violence. Engaging in violent conduct is antithetical to the privilege of practicing law, and such conduct generally will warrant suspension from the practice of law. Had the respondent in this case broken into a stranger's home and committed the same acts of violence as he perpetrated on his wife, suspension would almost certainly have been warranted.
Where the victim of violence is a family member, the violence "is not less but more of a threat" to the victim's basic sense of security. Custody of Vaughn, 422 Mass. 590, 596 (1996). Whether a conviction is obtained and whether that conviction is of a felony or a misdemeanor is less important than the nature and extent
405 of the assault itself. There may be many cases of serious domestic assault where no conviction is obtained. See, e.g., Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1860-1861 & n.40 (1996) (explaining that "victim noncooperation, reluctance, or outright refusal to proceed" are often cited as "major reasons" for lack of criminal prosecution in domestic violence cases). We also cannot ignore the harmful effects of a domestic abuser's actions on those whom the law commands us to protect. The record supports an inference that the children were present in the home and were potential witnesses to the respondent's violent attack. "Particularly for children the sense that [the home] is the place of greatest danger is the ultimate denial that this is a world of justice and restraint, where people are entitled to respect". "Abuse by a family member inflicted on those who are weaker and less able to defend themselves . . . is a violation of the most basic human right, the most basic condition of civilized society: the right to live in physical security." Custody of Vaughn, supra at 595. The hearing committee and the board recognized the seriousness of the respondent's assault, but reasoned that, "because the respondent did not engage in a pattern of domestic abuse and violation of abuse prevention orders, his suspension should be shorter than that in Lee." We are of the view that a recommendation by the board for a longer suspension would have been warranted, but we give the board's determination "substantial deference."
406 NISSENBAUM’S DIVORCE GAME: SHORTEST CELEBRITY MARRIAGES LIST Can you guess who numbers 1 - 10 will be? See clues on 4th page.
14. Lisa Marie Presley & Michael Jackson Married: May 1994, in Dominican Republic Presley age 27; Jackson age 37 Separated December 10, 1995. Lasted 20 months - on paper
Presley’s publicist said grounds were irreconcilable differences A publicist for Jackson said he knew nothing about it.
At the time, many speculated that the wedding was a just a masquerade, a ploy to prop up Jackson's public image, which had taken a battering after a 13-year-old boy alleged that the pop star had sexually molested him. Jackson later reached a multimillion dollar out-of-court settlement with the boy. No charges were ever filed. In June, 1955, both Presley and Jackson appeared on ABC's Primetime Live and declared that they were deeply in love, and were trying to have a child ."Do we have sex?" Presley asked during the interview. "Yes! Yes! Yes!" they replied.
13. Jennifer Lopez & Cris Judd Married: Sept. 29, 2001 Split after 9 months (270 days)
407 "I've been married twice but I haven't had a marriage yet," Jennifer Lopez has said. This might have been news to first husband Ojani Noa, whom she divorced in 1998 after just a year, and then-second hubby Cris Judd, the bald-pated choreographer who lasted nine months in J. Lo's white-hot orbit. Marriage #1 = 1 year; #2 = 9 months Undeterred by Liz Taylor comparisons, the diva accepted a 6.1-carat pink diamond engagement ring from Ben Affleck months before her divorce was finalized. And while love don't cost a thing, divorce sure does: Judd reportedly pocketed $15 million. Who wants to take bets on 6 months, 9 months, etc.?
12. (Tie) Drew Barrymore & Tom Green Married: July 6, 2001Split after 5 months (150 days) This was Drew’s second marriage. Drew’s first marriage was to Jeremy Thomas - anyone guessing how long that lasted? From the start, Barrymore's endlessly teased union to Tom Green seemed jinxed: * the dorky comedian was diagnosed with testicular cancer * the couple barely escaped a fire that destroyed Barrymore's home. * Soon, the relationship also went up in flames.
"I recommend that people don't get in high-profile marriages," a bitter Green said after the split.
408 Barrymore, who says she's not looking for a band of gold from Strokes drummer Fabrizio Moretti, remains upbeat: "I am so in love with love."
12. (Tie) Charlie Sheen & Donna Peele Married: September 3, 1995 Lasted 5 months. - divorce final in November 1996
12. (Tie) Shannen Doherty & Ashley Hamilton Married: Sept. 24, 1993 - two weeks after they met Split after 5 months (150 days) - divorce filed April 1994
Beverly Hills, 90210 bad girl Shannen Doherty, 22, and 19-year-old Ashley Hamilton (son of perma-tanned actor George Hamilton) The bride allegedly pulled a gun on a former fiancé; The groom was a recent rehab grad. Married after a two-week courtship It was a BYOB ceremony in which the barefoot bride wore a silk bathrobe. By February, the honeymoon was over, with Hamilton accusing the actress of threatening him with a pistol. O.K. So they learned their lesson, right or wrong.
11. Colin Farrell & Amelia Warner Married: July 17, 2001
409 Split after four months (120 days)
In July 2001, the serial playboy Colin Farrell, who's rumored to have had relations with everyone from Demi Moore to Britney Spears, wed 19-year-old actress Amelia Warner in Bora Bora.
Though Farrell permanently etched "Millie," his bride's nickname, on his ring finger, their endless love survived a mere four months. "Too fast, too young," said the Irish lothario.
Fortunately, divorce proved a snap: turns out their marriage wasn't legal.
Insists Farrell, "I'm into casual sex now."
410 What are your guesses for the SHORTEST CELEBRITY MARRIAGES LIST:
No. Length Clue to help you guess who? Your guesses.
10 3 ½ A singing bird in a cage months
9 3 months His dad loves the sunshine
8 32 days His gas won over her Broadway projection
7 21 days This goes back in time to a great movie actress
6 19 days She started young and got involved with outer space
5 12 days Dynastic blonds and much older directors don’t mix.
4 9 His 1st marriage lasted 82 electrifyi days - so he’s really, also a ng days #9
4 9 days Who could figure a tie here, in a marriage that produced one record album and one blue son.
3 8 days They argued over whose
411 handcuffs to use
2 1 day She had been set up by a knock out (another tie)
2 1 day She never gave back the diamonds
1 6 hours Its shocking. The great lover did not have staying power.
412 Star-studded vows often come with an expiration date.
When we hear about a celebrity marriage, we think: “ I hope they got a premarital agreement signed.” “until the publicity dies down” “until s/he meets someone more famous,” “until its safe to come out for air.”
10. Nicolas Cage & Lisa Marie Presley Married: Aug. 10, 2002 Split after 3½ months (105 days)
You'd think someone who was Mrs. Michael Jackson for an awe-inspiring 20 months could make any relationship work. Nope. Though Lisa Marie Presley pledged to love Nicolas Cage tenderly and forever, matrimony left them all shook up. Elvis' little girl and the Oscar winner (who had twice paid homage to the King on screen) threw in the trousseau after three months. "We shouldn't have been married in the first place. It was a big mistake," said Lisa Marie, She never moved in with Cage. While the split might have seemed sudden, there were red flags, including reports Presley had tossed her $65,000 engagement ring from Cage's yacht and had pushed the star into auctioning off his million-dollar comic-book collection.
9. Ashley Hamilton & Angie Everhart December 1, 1996,
413 Lasted 3 months38
8. Ernest Borgnine & Ethel Merman Married: June 26, 1964 Split after 32 days
This was the fourth marriage for Merman; and the third marriage for Borgnine. Things began coming apart on the honeymoon, when, according to Borgnine, he garnered the lion's share of fan attention, which left Merman seething. "By the time we got home, it was hell on earth," he recalled in 2001. " After 32 days - Borgnine was gone. From Merman’s side of the coin, things weren’t exactly coming up roses for her: She was allegedly subjected to the silent and deadly "Dutch Oven," which involved Borgnine releasing toxic fumes in bed while trapping her under the sheets. Merman devoted a chapter of her autobiography to the Borgnine marriage: It consisted of one blank page.
38 December 30, 1953: Dominican playboy-diplomat Porfirio Rubirosa (Rubi) married Barbara Hutton. Lasted 73 days, because Rubi had been and continued to see Zsa Zsa Gabor. Given Rubi’s lesser star quality, he and Hutton did not make it into Celebrity marriage.
414
7. Katherine Hepburn & Ludlow Ogden Smith Married: 1928 Lasted 21 days - but the divorce took until April 30, 1933 to finalize
6. Drew Barrymore & Jeremy Thomas Married at age 18 - 1993 to Welsh barman Lasted 19 days (some say 2 months) - see # 12
5. Robert Evans & Catherine Oxenberg Married: 1998 Lasted 12 days. Evans was director of such successful films as Rosemary's Baby, The Odd Couple, Chinatown, Harold and Maude. He then had a string of unsuccessful films: The Cotton Club. And even less-than-successful in the 1990s - The Saint, The Phantom, The
415 Out-of-Towners, He then goes into his fifth marriage with to ex-Dynasty actress Catherine Oxenberg, over thirty years his junior. Marriage lasted 12 days Proving he had style and taste, the learning curve of a pigeon and the chutzpah of the devil's poker buddy.
4. Dennis (the worm) Rodman & Carmen Electra Married: Nov. 14, 1998 Split after 9 days
It wasn't the wedding gift Dennis Rodman and Carmen Electra had in mind. One day after they pledged their troth in Las Vegas, the b-ball bad boy's agent questioned the validity of the nuptials, claiming The Worm was "deeply intoxicated" and hinting that the former Baywatch babe had "ulterior motives." Rodman, whose previous marriage lasted 82 days, defended his bride: "I love Carmen and am proud to be married to her." Nine days later, Rodman filed for an annulment, citing fraud and an unsound mind. The
416 pair remained on-again, off-again until their November 1999 battery arrest in Miami, when they were officially off and again. 4. Cher & Gregg Allman Married: July 9, 1975 Split after 9 days
Three days after divorcing Sonny Bono, Cher said "I Got You, Babe" to Gregg Allman in Las Vegas. "One Sunday morning I woke up and she said, 'I got this Lear jet and Nevada ain't too far away. Why don't we get married?'" the rocker explained. Cher reportedly cried all the way home from the ceremony and nine days later, fed up with Allman's heroin and alcohol problems, she filed for divorce. "I believe it's best to admit one's mistakes as quickly as possible," Cher said. They reconciled after Allman sobered up, but their romance finally fizzled three years later, leaving in its wake one bad album (Two the Hard Way) and son Elijah Blue.
3. Dennis Hopper & Michelle Phillips Married: Oct. 31, 1970 Split after 8 days
417 You know your marriage isn't off to a good start when your new bride asks, "Have you considered suicide?" So went the eight-day union of Dennis Hopper and Michelle Phillips. During the brief conjugal co-habitation, the wild-man actor allegedly kept the Mamas & Papas beauty handcuffed so she couldn't run away (Hopper later claimed Phillips was the one with the cuffs). Years later, both were sentimental about their whiplash coupling, which was solemnized on Halloween (insert joke here). Quipped Hopper, "Seven of those days were pretty good. The eighth day was the bad one," while Phillips said they were "the happiest eight days of my life."
2. (Tie) Robin Given & Svetozar Marinkovic Married: 1997 One day. Marinkovic was Given’s tennis instructor 1988: married boxer Mike Tyson. Ended 1 year. Rumors hinted at abuse and infidelity.
418 2. (Tie) Zsa Zsa [Sari] Gabor & Felipe von Anhalt de Alba Married: August 14, 1982 Lasted One Day
Marriage was annulled after one day because her latest divorce had not yet gone through. Gabor, born on February 6, 1917, in Budapest, crowned Miss Hungary in 1936, married De Alba, who was 16 years younger than her. They never re-married, Gabor, in one of her quotes said: he didn’t have enough stamina to keep UP with her.
Another of her quotes: "I have never hated a man enough to give his diamonds back."
"Getting divorced just because you don't love a man is almost as silly as getting married just because you do" "A girl must marry for love, and keep on marrying until she finds it"..
419
1. Rudolph Valentino & Jean Acker
Married: November 1919
Split after 6 hours
For someone nicknamed "The Great Lover," Valentino struck out big time with his first wife, actress Jean Acker.
Six hours after pledging to stay together in good times and in bad, they were putting their vows to the test. And failing.
The bride locked Valentino out of their honeymoon suite.
He knocked for 20 minutes before heading home.
Acker claimed in divorce proceedings that the marriage was never consummated and that she'd dumped the sex symbol for another woman.
420 Legend has it that Valentino, who died in 1926 at age 31, remembered his ex in his will, bequeathing her the sum of one dollar.
What a guy!
That’s all folks!
421