Case Summaries and Legal Developments

DOMESTIC VIOLENCE

“Coercive Control” under Section 1 of c. 209A

In September 2024, the so-called “Coercive Control” law went into effect. The law follows the lead of six other states which classifies coercive control as domestic violence. According to the MA law, “Coercive Control is defined as: a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy.”  

CUSTODY

Wendt v. Wendt, M.A.C. Rule 23.0 case, 22-P-1158 (2024)

Following a four-day divorce trial in March 2022, the father, William George Wendt, contested the Judge's custody determination, asserting that it was a clear abuse of discretion.

The mother filed a Complaint for Divorce on February 6, 2020, on the grounds of an irretrievable breakdown of the marriage. The parties had two children, born in 2015 and 2016, respectively. Through the proceedings, both parties sought custody of the children and ownership of the marital home. The Judge granted the mother primary physical custody and joint legal custody of the Children. The Judge ordered that the mother was the primary caregiver and found that the father did not always act in a manner that supported his children.

The father claims that the Judge failed to consider multiple relevant factors in determining custody. The trial Judge noted that he based his decision on the parents' ability to provide stability, their decision-making skills, and the impact of their lifestyles on the children. The trial Court found that the father was unable to provide the same level of stability as the mother. For example, the Judge cited that the father brought the children to school late on numerous occasions and was combative with the children's caregivers.

PET “CUSTODY”

Lyman v. Lanser, MA App. Ct (23-P-73) 2024

In Massachusetts, pets have always been treated as property. Now, in Lyman v. Lanser, the Court is acknowledging specific carve-outs for when pets may continue to be shared between co-owners. 

The Plaintiff in Lyman filed a motion for a preliminary injunction against his former romantic partner for specific performance of an oral agreement to equally share possession of their jointly-owned property, a Pomeranian dog named Teddy Bear (Teddy Bear). The parties split in 2021 and for two months, shared possession every other week. In March of 2022, Defendant cut off all communication with Plaintiff and refused to allow him access to Teddy Bear, which led to the filing of this action.

The Plaintiff moved for a preliminary injunction to restore joint ownership of Teddy Bear, which the motion judge issued, requiring the parties to alternate possession of Teddy Bear every two weeks. Defendant then petitioned for relief from the injunction, which was granted, leading the Plaintiff to file this appeal.

ALIMONY

Ayca Celikkol Gazelle v. Guy Scott Gazelle, Massachusetts Appeals Court, (2023) No. 22-P-829.

How do foreign assets and exchange rates impact Alimony and Property Division in a Massachusetts Divorce? 

The Massachusetts Appellate Court recently affirmed a trial judge's decision concerning a couple's Turkish assets in an alimony award. The Wife challenged the currency exchange rates used by the trial judge to convert the value of Turkish assets into US dollars for the division of assets and the calculation of alimony. The Wife argued that the judge should have used exchange rates from the date of judgment in 2020, instead of applying rates from 2016 or 2017, as the lira's value had significantly declined. The Wife contended that this resulted in her receiving less than her intended share of the marital estate, leading to an incorrect alimony calculation. Additionally, she requested that the alimony be periodically adjusted based on changes in exchange rates. The Court held that the Wife's arguments were based on a flawed assumption that changes in exchange rates fully accounted for differences in asset values.

CONTEMPT

J.D.M. VS. J.A.M., 22-P-499; Memorandum and Order Pursuant to 23.0, case may be cited for its persuasive value, but not as binding precedent. 

Evidentiary hearings in contempt matters.

In this case, the appeals court remanded a case to the Probate & Family Court concerning a finding of contempt. In this matter, the plaintiff ex-husband filed a Complaint for Contempt alleging that the defendant ex-wife had prevented him from having parenting time with his children; was trying to alienate him from his children and was placing tracking devices on the children’s possessions. 

The defendant’s attorney requested an evidentiary hearing, but the Court said it would need to be heard on another date. The defendant’s attorney then proceeded to state that he would be “happy to present the case and see what you think about it,” but added that the facts are in dispute. The Judge said she would hear the case on representations of counsel. Throughout the hearing, the defendant’s attorney raised repeated objections to an affidavit as well as the absence of an evidentiary hearing.

DIVORCE MODIFICATION

Jane E. Cunningham v. Jerry E. Thomas, Massachusetts Appeals Court, (2023) No. 21-P-956

The requirement of the Court following its own Pre-Trial and other Probate Court Procedural Orders.

A new case in which the Massachusetts Appeals Court ruled that allowing a new issue to be raised at the time of trial and denying recourse to the parties was an abuse of judge’s discretion.

The Parties were formally divorced in January of 2017; in which their Judgment required the Father to pay $6000 a month in unallocated support to the Mother, who had primary custody of their three children. The Parties were also required to list the marital home for sale by April 2017 and would split the proceeds evenly.

In December 2018 the Mother filed a Complaint for Modification for greater support as the Father had failed to exercise any parenting time leaving her the sole, not just primary, caretaker. The Father counterclaimed for a reduction of support due to slightly declined income and the ability to enter the marital home and list it for sale as it had not yet occurred. 

ALIMONY AND CHILD SUPPORT

Cavanagh v. Cavanagh, SJC 13222, (MA SJC August 8, 2022)

A case in which the Massachusetts Supreme Judicial Court ruled that alimony and child support can be awarded concurrently.

In 2016 the Parties filed for divorce after 21 years. The Mother had briefly worked at the beginning of the marriage; but spent the majority of the time being a stay-at-home mother for the Parties’ three children, only one of which was not emancipated at the time of the divorce. The original judgment required the Father to pay $800 a week in child support. Mother did not get any alimony, and during the trial the Parties agreed not to include Father’s medical center job in income calculations for alimony or child support.

Both Parties sought a modification of this judgment. Father sought a modification of child support and Mother sought alimony.

PROPERTY DIVISION

American Family Life Assur. Co. of Columbus v. Parker, 488 Mass. 801 (2022)

A case in which the Massachusetts Supreme Judicial Court held that an ex-wife could not be the beneficiary under her deceased ex-husband’s life insurance policy.

In American Family Life Assur. Co. of Columbus v. Parker, the Husband purchased a life insurance policy naming his then wife as the primary beneficiary and his mother as the sole alternative beneficiary. The Husband and Wife divorced and several years later the Husband passed away. The policy did not mention the effect of a divorce on the Husband’s beneficiary designation. The Wife argued that the Husband’s life insurance policy should be designated to her despite his passing after their divorce. See American, 488 Mass. 801, 802, 178 N.E.3d 859, 861 (2022). According to the Wife, the Husband lost his job shortly after taking out the policy and she began paying the premiums out of her “sole account” at his direction. The parties divorced in 2016 and did so Pro-Se. The agreement was silent regarding life insurance. The Husband instructed the Wife to continue to make payments on the policy, which she did. The Husband died in 2018 and the Wife filed a “Proof of Death” with the insurer. The insurer denied the claim. The insurer filed an action in 2019 asking the Court to decide the matter.

MARITAL ASSETS

Savoy v. Savoy, 97 Mass App. Ct. July 8, 2020 

What date should be used to determine the date of the marriage termination? 

Can trust income be included in the marital estate for purposes of division?

In Savoy v. Savoy, the Husband appealed the trial court decision for two determinations:
(1) To determine the date to be used as the date of the marriage termination and
(2) to confirm whether or not the Wife’s trust interest should be included as part of the divisible marital estate. Savoy v. Savoy, No. 19-P-1076 (Mass. App. Ct. July 8, 2020). 

When trying to divide a marital estate, how does one determine the date when a marriage has ended? Is it the date the parties separated? The date of filing for divorce? Or, is it when the Court enters the divorce decree? Any of these three dates could be correct. Determining when a marriage has ended is a finding of fact to be determined by the judge. In Savoy, the lower Court determined the marriage effectively ended at the time of divorce in February 2017. On appeal, the Husband argued that the court should divide the parties’ marital assets from the time they originally separated in March 2006.

PARENTAL RIGHTS

“Adoption of Zebediah”: A Rule 1:28 decision regarding termination of parental rights and post-adoption visitation.

A previously incarcerated father recently fought to reestablish his parental rights with his son or receive an order for post-adoption visitation, but the matter was ultimately affirmed by the Massachusetts Appeals Court, and the father received neither. Courts are permitted to terminate parental rights only if they find by clear and convincing evidence that a parent is unfit, and doing so would be in the best interests of the child. Adoption of Nancy, 443 Mass. 512, 515 (2005).

ALIMONY

DB. v. J.B., 97 Mass App. Ct. 170 (2020): Duration of Temporary Alimony and the Freedom to Contract

Should temporary alimony paid to a spouse “in need” during the divorce process count towards the total number of months in which a payor must pay support? What does the term “in need” mean? These are some of the issues which are addressed in D.B. v. J.B., a Massachusetts Appeals Court case, decided in April 2020. In D.B ., the husband worked at an investment firm that managed private equity accounts. The wife was a stay-at-home mother, who raised the children, managed the house staff, and planned events for the husband’s career. While the case was pending in its pre-trial phase, the parties entered into a stipulation where the husband would pay the wife temporary support in the amount of $30,000 per month and agreed in writing that all temporary alimony paid would be credited against the durational limit the Court adjudged.

The Court determined that, as this was a 15-year marriage, alimony would be paid by the husband to the wife for 123 months, to terminate September 1, 2027. However, the Court did not take into consideration the 37 months of support paid while the divorce was pending. Husband appealed, arguing that the judge erred when not crediting him the months paid, and the determination of the wife’s need for the amount of alimony.

DOMESTIC VIOLENCE

T.D v. J.O. (SJC–12674)

How does the Court evaluate the role of domestic violence in custody disputes?

The Supreme Judicial Court (“SJC”) of Massachusetts recently heard arguments in a case called T.D. v. J.O. (SJC–12674) argued September 9, 2019, still under advisement. The issue of the case is whether or not the court can consider prior acts of domestic violence in evaluating later custody decisions, regardless of whether the issue was raised at the time of the divorce and whether the statutory presumption regarding custody to an abusive parent is applicable. In T.D., the parties were divorced in 2015. During the divorce, the judge held that both parties engaged in physical assaults upon the other, concluding with a particularly violent attack on the mother by the father in 2011. Less than a year after the divorce judgment, the father filed a Complaint for Modification seeking sole legal custody of the children after the child came home with a bruised cheek.

GRANDPARENT VISITATION

Frazier v. Frazier, No. 19-P-178

Do grandparents have the “right” to see their grandchildren?

The interest of parents in the care, custody, and control of their children is one of the oldest fundamental liberty interests, which courts recognize. While the courts prioritize a parent’s interests in child-rearing over the interests of the state and third parties, some states have created statutes allowing third parties to petition the court to authorize the third party’s visitation with a child. However, some questions remain as to whether or not such statutes infringe upon the constitutional rights of the biological parent to care for his or her children.

CHILD SUPPORT AND CUSTODY

Feinstein v. Feinstein

How to talk about College With Your Ex After Divorce?

For some parties, one of the most difficult challenges after a divorce is developing or continuing open and inclusive communication about the kids. Without regular and open communication, either party may find themselves left out of the loop regarding important educational, medical, and religious decisions for their children. Such was the situation in Feinstein v. Feinstein, a 2019 decision that dealt with communication about a college decision gone awry.

MODIFICATION OF ALIMONY

9 George Clemence v. Kristine Sklenark, 98 Mass.App.Ct.646 (2020)

A key decision that determines alimony waivers constitutes a "zero-dollar alimony award" and starts the clock for the Alimony Reform Act's durational limits.

After thirteen years of marriage, George Clemence and Kristine Sklenark decided to part ways and divorced in January 2017. The judgment of divorce incorporated the terms of the parties’ separation agreement within which the husband conditionally waived any past, present, or future alimony. Mandated by the alimony condition, the marital home was to be sold to a non-relative for $725,000, with 60% of the resulting equity belonging to the husband. If the marital home could not be sold for the agreed-upon amount, the husband would hold the right to seek future alimony by filing a complaint for modification.

The marital home sold in August 2017, for $433,000 – resulting in a significantly smaller equity payment to the husband than outlined in the separation agreement. Following the sale, the husband brought forth a complaint for modification, seeking alimony. On November 9, 2017, the probate court judge ordered the wife to pay $200 per week in alimony for the maximum duration under the Alimony Reform Act of 2011 for a 13-year marriage – 98 months. The alimony award would continue unless modified, until October 8, 2026, unless a party died or if the husband remarried or cohabitated with another.

MODIFICATION OF ALIMONY

Dolan v. Dolan

During the parties’ twenty-seven-year marriage, Lisa Dolan managed the household, cared for their two children, and earned a modest wage working part-time. Conversely, her spouse, Shaun Dolan, was the primary wage earner and a co-owner of a company where he earned $481,233 annually. Due to the significant difference in the parties’ wages, the wife’s need for support to maintain the marital lifestyle, and the husband’s ability to pay, the court awarded the wife $2,885 in alimony per week. As further part of the asset division, the husband maintained his ownership interest in his company.

Nearly two years later, the husband sold the company, with his share of the profits totaling more than $2.5 million. With the sale, the husband was only guaranteed an annual salary of $300,000 for the first two years, which would subsequently be subject to change in August 2019. This immediately decreased his annual salary by 38%, although the husband would continue to receive compensation for the sale through July 2019. Following the sale, the husband sought a retroactive modification in the amount of alimony paid to the husband based on his decreased salary. 

ALIMONY AND CHILD SUPPORT

Calvin C. v Amelia A.

A recent decision involving alimony and child support.

Calvin is a case about alimony and child support. G.L. c. 208 Sec 53(c) provides that, "when issuing an order for alimony, the Court shall exclude from its income calculation... Gross income which the Court has already considered for setting a child support order." Section 53(c) was met to address an inequity in cases where one spouse is ordered to pay child support and alimony to the other spouse. In those cases, alimony is calculated without consideration of the effect of the child support order on the payee's ability to pay both support orders.

While Calvin deals with reciprocal payments, where one spouse pays alimony while the other pays child support, the Court was still able to address whether courts may order alimony and child support to the same spouse when the parties earn less than $250,000.00.

CARE AND PROTECTION

Care and Protection of Rashida

What constitutes “reasonable efforts” when DCF is involved in your case?

A case involving new rules for DCF as to what constitutes “reasonable efforts” when DCF is involved in your case.

Rashida is the second iteration of a child protection case in which the Court clarifies that "under G. L. c. 119, § 29C, a Juvenile Court judge conducts a hearing to determine whether the Department of Children and Families (department) has made ongoing reasonable efforts to make it possible for a child who previously has been removed from his or her home and committed to the custody of the department to return safely to his or her parent or guardian, the department must prove that it has made reasonable efforts by a fair preponderance of the evidence.” [129-137]