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Legal Update

June 17, 2016 - Custody

Moving a child out of Massachusetts 

In Rosenwasser v. Rosenwasser, the Appeals Court examined a decision of the Probate Court denying a divorced custodial parent (father) the right to move with the only child of the marriage to Florida, and away from the mother.


The father was originally from Florida, where much of his extended family still lives, and where the parties lived together for the first seven years of their marriage.  The mother's family, originally from Canada, also lives in Florida for five months every year.


After a twenty year marriage the parties separated in early, 2010, when the mother was pregnant.  In May, 2010, she gave birth to the parties' only child, a daughter.  A year and a half later, in October, 2011, the parties were divorced; and the mother had primary custody of the daughter.  Unfortunately, almost immediately after the divorce, the mother developed significant mental health problems, including anxiety and depression, which left her unable to care for the parties' daughter.  In fact, it was undisputed that during the two years immediately preceding the trial in this case, the mother missed the majority of her scheduled parenting time with the daughter.

The father, who worked full-time as an attorney, immediately took over primary responsibility for the care of their daughter, then less than a year old.  Shortly thereafter, the father sought to modify the divorce judgment to give him primary physical custody, reflecting the reality of the arrangement which already existed, and had since the mother became mentally disabled.  He also sought the Court's permission to move to Florida with their daughter to Florida, where he had better employment opportunities, the cost of living was lower, and he had a support system of extended family.

The Probate Court denied permission for his to move to Florida with their daughter, and he appealed.  Following the standard of analysis set out in the caselaw, the Appeals Court overturned the Probate Court's decision and ordered the Probate Court to reconsider the matter in light of the appellate decision,

What makes this decision particularly relevant is that the Appeals Court emphasized several tenets of judicial decision-making to which it felt that the Probate Court judge had not paid sufficient attention.

The Probate Court judge cannot simply make conclusory statements, findings or rulings. Probate Court judges must support their decisions with detailed findings to make it apparent how they arrived at their decisions, the facts upon which their decisions are based and the analysis they employed in applying the law to the facts that they find.

More broadly, while an appellate court (in Massachusetts, the Appeals Court and the Supreme Judicial Court) will not substitute its judgment for that of the Probate Court judge, and absent a clear abuse of discretion will defer to the Probate Court judge's finding of facts (which involves assessing the credibility of witnesses and other evidence as well as weighing the evidence), the appellate court will review the appropriateness of the legal criteria used by the Probate Court judge in his/her analysis and the way that the judge applied the criteria to the facts of the case.

In Rosenwasser, the Appeals Court found that while the judge placed much emphasis on the mother's interest, the judge failed to place sufficient emphasis on the interests of the father, the custodial parent.

The father argues that the judge gave "undue -- in effect, dispositive -- weight" to the disruption of the mother's parenting time. ... We agree.

The Appeals Court sent the case back to the Probate Court for further consideration, instructing the Probate Court judge to:

... make detailed findings regarding the father's interests, including the extent to which the father's unhappiness in Massachusetts affects the child's well-being, and the impact of economic and emotional benefits resulting from the move on the child's quality of life.  In addition, the judge should make detailed findings regarding the child's needs, and her relationship and routine with both parents.

June 15, 2016 - Alimony

Calculation of the length of a marriage

In Duff-Kareores v. Kareores, the Supreme Judicial Court addressed that provision of G.L. c. 208, § 48 which provides that "the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage."

The parties were married for nine years before they divorced.  A few years later the parties began living together again as husband and wife; although they did not marry at that time. After living together for about 5½ years, the parties remarried.  It didn't work out, however; and about seven months after they were married for the second time the husband moved out again and was served with the wife's complaint for divorce (this now being the second divorce for these people).

The trial judge in the second divorce found that once the husband moved back into the marital home after the first divorce, "the parties functioned exactly as they had during their previous marriage, ..." thus establishing that the parties had created the "economic marital partnership" which allows a judge to consider a period of cohabitation immediately prior to a marriage in determining the length of that marriage.  (The length of a marriage is the first on a list of factors that a judge is required to consider in determining alimony. G.L. c. 208, § 53.) The judge then calculated the length of the marriage by adding together the first marriage, the period after they were divorced but before they reconciled, the period during which they lived together as a family but were not married, and the period of the second marriage, purportedly relying on the language cited above from G.L. c. 208, § 48, and finding that, "[t]he parties have been in a relationship, with only a brief period of separation, for eighteen years."

The Supreme Judicial Court held that the judge made an error by including in his calculation of the length of the marriage the fifty months that the parties were neither married nor living together.  Even if, the Court said, the fifty months during which the parties were neither married nor participating in an economic marital partnership, can legitimately be considered "brief," the law does not permit the judge to count a period of time when the parties were neither married nor participating in an economic marital partnership.

As a result, the judgment establishing alimony was vacated, and the matter was sent back to the Probate and Family Court for a new determination of alimony based on a proper calculation of the length of the marriage which does not include the time that they were not together.


January 30, 2015 -- Alimony


Limitations on modifications under the Alimony Reform Act

The Massachusetts Supreme Judicial Court issued three decisions today which greatly limit one's right to seek the modification of an order for alimony which was entered prior to the effective date of the Massachusetts Alimony Reform Act (ARA), March 1, 2012.  The Court decided that with respect to alimony orders which were issued before the effective date of the ARA, only the durational limits of the ARA would apply.  Specifically, the Court decided that the retirement and cohabitation provisions do not apply to such orders.

The ruling of the court in each is similar.  Let's look at Chin v. Merriot.  Mr. Chin was divorced from his wife (now known as Ms. Merriot) in August, 2011, approximately seven months prior to the effective date of the ARA.  A year after the ARA became effective, Mr. Chin went to court seeking to terminate his obligation to pay alimony to his former wife.  The "changed circumstances" he cited in support of his request were that he was 68 years old, "full retirement age" as defined in the ARA (at G.L. c. 208, § 48).  He later amended his request to add that his wife had "been cohabiting with another person . . . and maintaining a common household" for more than three months, meeting the test set out in the statute (G.L. c. 208, § 49) regarding terminating alimony based on cohabitation.

First, it should be noted that at the time of the divorce in 2011, Mr. Chin was 67 years old and had already reached full retirement age.  So one might conclude that it was disingenuous for him to go to court a year after the divorce claiming that he had reached retirement age.  Since he had already reached it before the divorce, there was no change in circumstances.

In a fairly technical legal argument which has generated a fair amount of controversy, the Court concluded that the provision for modifying alimony in the event of the retirement of the payor or the cohabitation of the recipient was intended to apply prospectively (from the effective date of the ARA, March 1, 2012) only.  Thus Mr. Chin could not modify his alimony.  One of the members of the Alimony Task Force, which wrote the Alimony Reform Act, even submitted a brief to the Supreme judicial Court explaining that Mr. Chin "is precisely the type of payor for whom the Act was intended to provide relief . . . ."  Nevertheless, the Court made its decision.  Legislation is currently pending (House Bill 4110) which would reverse the effect of the Court's decision and make alimony modification universally available in cases which were decided prior to March 1, 2012, except where the parties had already agreed that alimony would not be modifiable.

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