WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Tuesday, May 30, 2017

Can a person reporting a Restraining Order violation be sued if they're wrong?

Though our work is primarily focused on family mediation, a recent Anti-SLAPP case caught our attention. The Anti-SLAPP statute protects those “petitioning” a government entity from retaliatory civil lawsuits.  The recent case of St. Germain vs. O’Gara references this statute, in the context of a reported allegation of violating a restraining order.

St. Germain, the defendant, reported O’Gara to the police for violating a permanent abuse prevention order. She reported that St. Germain mailed documents to her which violated the protection order, but it turns out were properly filed court documents.  O’Gara was arrested for perceived violation of the order but later released due to lack of evidence against him.

The trial court denied St. Germain’s motion under the Anti-SLAPP statute to dismiss O’Gara’s complaint against her.  However, the Appeals Court found that the trial court failed to apply the two-part test appropriately.  The two part test requires first that the moving party show that the suit against her relates only to the petitioning activity, and if proven then the burden shifts to the opposing party to show "by a preponderance of the evidence, that ‘(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party.’ "

While the trial court indicated that there wasn’t enough factual evidence to rule on the Motion in favor of St. Germain, the Appeals Court disagreed.  The Appeals Court believed that St. Germain met the first part of the test because her report to the police was “petitioning activity” under the statute:
“When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of G. L. c. 231, § 59H.”  
While there were multiple counts to O’Gara’s complaint, they all stemmed from this petitioning activity and therefore the first part of the test was met.  The second part of the test required O’Gara to “establish by a preponderance of the evidence that ‘no reasonable person could conclude’ that St. Germain's report to the police was supported either in fact or in law.”

Here is where St. Germain believes she had a reasonable case to reach out to the police:

  1. She made attempts to check that the filing was proper:  Upon receiving the letters from O’Gara, St. Germain noted that there were no stamps certifying that the hand-written notes were official court documents. Though she was wary of the lack of court seals, she did not assume guilt and checked in with an unidentified individual at the Probate and Family Court who reported that “that there was no record whatsoever of the unstamped documents (that St. Germain) received."  It later turned out they had been likely been filed by mail and misplaced by the court.
  2. She reached out to a Police Officer to investigate who reached the same conclusion:  The officer investigated the inquiry and agreed that O’Gara had violated his order based on the documents he reviewed and his conversation with the Probate and Family Court. St. Germain did not propose the arrest but it was rather the officer that contacted the New Bedford police who took O’Gara into custody.

But O’Gara countered that he did contact the court and that St. Germain’s conversation with the police was malicious.  In the end, even if the Appeals Court agreed that her conduct was malicious (which they don’t seem to), the Court concluded that the intent wouldn’t matter under the Anti-SLAPP statute, so long as any reasonable person could agree that her petitioning activity had a basis in fact or law.

It was therefore determined that St. Germain could have been reasonable in believing the mailed documents were in violation of the restraining order.  While the facts later resulted in O’Gara’s prosecution being dismissed, that doesn’t overcome the burden required to proceed with his claims against St. Germain.  In other words, the Appeals Court believed that this is exactly the type of petitioning activity the Anti-SLAPP statute is intended to protect.

St. Germain was protected by the Anti-SLAPP statute and the case was remanded for an order allowing her Special Motion to Dismiss and to address the issue of attorney’s fees.

Written by Justin Kelsey & Patricia Cordischi

Thursday, May 25, 2017

Meet Our Summer Intern - Patricia Cordischi

Along with our projected move (more on that soon!) and fresh start to the summer, we have taken on a new member of the Skylark team. Patricia Cordischi, a rising senior at Brandeis University, officially started this week as our  Skylark summer intern. Patricia is minoring in legal studies at her university and curious about the world of law. She is highly interested in family law but wishes to explore beyond the domestic realm into entertainment law.

At the office, Patricia will have various responsibilities including administrative work, drafting, and sitting in on consultations. She will be answering your phone calls and will hopefully be another friendly face you can speak to. Her background is in marketing, specifically in re-branding of company’s digital platforms, so she will be instrumental in maintaining our blog as well.

She is a go-getter and quick learner. With each new endeavor she takes on, Patricia is determined to excel. Patricia looks forward to getting to know both our present and future clients and colleagues. Please do not be shy to say hello and introduce yourself.

Welcome to Skylark Law and Mediation Patricia! We are lucky to have you!

Thursday, May 18, 2017

5 Tips for Adding Video to your Mediation Practice

Video meetings are starting to
replace in-person and phone meetings.
Guest Post from Julie Tolek*

As more services go digital, it is necessary for legal and mediation professional to follow the trend. Clients expect an equal level of convenience and access in purchasing legal and mediation services that is provided in other online services. This means that the technological requirements on a modern law and mediation firm go well beyond having a good website.

It is important for forward thinking mediators and lawyers to add online scheduling, paperless billing, cloud file access and similar options to their regular services for their clients.  Following the growing digital trend, video meetings will likely replace in-person and phone meetings. To help mediators face the changing needs of their practice we’ve thought about the most important considerations involved in adding these services and making them seamless for your clients:

Five things to keep in mind when adding video mediations to your practice: 

1. Are all participants at different locations or will at least one participant be coming to your location? If a participant will be with you in the office, consider whether they should still bring their own device so they can log onto the video conference individually, or do you have a camera system set-up where the entire conference room is in view? Otherwise you might have to sit very close to each other to appear on screen, which can be uncomfortable and awkward. Sitting close to each other might also give the impression of being on that person's “side”, since both of you are together on the other “side” of the camera, seemingly opposing the person who is out of the office on camera. Doing what you can to minimize this effect will keep your mediation in neutral territory.

2. Use a video conference app where you can share a screen. The new normal, even when in real life, is usually to view documents in some digital manner on your device, or to display them on a big screen so everyone in the room can view the document together. Printing every single document is becoming a rarity, especially when there are multiple people working on multiple drafts of the same document. Using a video conference app (such as Zoom) where you can share your screen (even better if you can share specific windows on your screen or apps you are running) makes it easier to go over documents or view websites collectively in the conference, instead of each person having to do it alone and at a difference pace. Remember that while some video apps allow screen sharing on the iPhone or other small device, it might be a bit trickier than on a computer. You can also email any documents you plan to go over ahead of time for the note-takers-by-hand so they can print what they want to and doodle away.

3. Double check your time-zones. Often, clients use video conferencing because someone lives far from any central meeting point, and the easiest way to get everyone together is via video. Make sure that everyone knows in what time-zone the video call is to occur and double check (maybe even triple check!) your calendar. Some calendars have a section where you can change the time-zone of a meeting, which can be equally as confusing as it is useful, depending on whether you have your time-zone settings active in your calendar. When in doubt, an email to participants to confirm the time-zone can get everyone on the same page.

4. Accessorize according to your environment. If there are other people around you and you are unable to be in a quiet room alone, use headphones and add a microphone when possible. Even the headphones that came with your smartphone likely have a microphone on the cable, making them super convenient when joining the video on your own device. You can also use an external microphone if you are using a computer to avoid unnecessary screaming into your screen. Depending on your surroundings, you may not need headphones or a microphone at all. Also if you are using a smaller device like your phone, a tripod or stand will keep you hands free and easily at “eye” level with other participants. Turn your video feed on to test the lighting and make sure people can see you!

5. Don’t be late to the party. Make sure your software is up to date and ready to use so you are not bogged down with updates or issues launching your video app. Just because you are virtual doesn’t mean you can slack on preparation.  Give yourself about 15 minutes to launch and deal with any update prompts, frozen screens, and hardware positioning, and then log in to your meeting. This routine will get you online a few minutes early, which is much better than being a few minutes late.


*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Tuesday, May 16, 2017

Will Quitting Your Job Reduce Child Support or Alimony?

It is a common refrain that support payments are usually more than the payor wants to pay and less than the recipient wants to receive.  This discrepancy can be extreme when the parties have been used to a particular lifestyle and the payor's income decreases significantly. It is also understandable that a recipient would be skeptical about reducing support if an income decrease for the payor was voluntary, e.g. quitting his or her job.

Those were the circumstances in the recent Appeals Court decision: Emery v. Sturtevant.  The husband/payor in the Emery case resigned from a high income position for "personal reasons" and after an extensive job search obtained a much lower paying job in the same line of work.  He then sought a reduction in his child support and alimony which the trial court dismissed indicating that they were attributing income to him at the job he left.

The Appeals Court overturned the trial court's decision and directed the lower court to calculate child support and alimony on the husband's actual income.  The discussion of the Appeals Court highlights why they thought the husband quitting his job in this case did warrant a reduction, while it might not in other cases:

Factors Considered by the Court in Allowing this Payor to Reduce his Support:

1. Leaving the job voluntarily matters, but what happened next matters more:

While the Appeals Court acknowledged that "[a]ttribution of income may be appropriate when a judge determines a career change is voluntary", they also noted that there is a second component of that review.  The second component is whether the party "thereafter failed to make reasonable efforts to secure comparable employment."

Examples given by the court of where this type of attribution might be appropriate were when a party takes an early retirement, or chooses to work in an unrelated field despite the availability of higher paying jobs.  The Appeals Court was therefore giving more weight to the availability of comparable employment in the same field than the fact that the husband left the first job voluntarily.  According to the Appeals Court, the "facts of this case are distinguishable from the voluntary career change line of cases."

2. Reasonable efforts inquiry is the controlling factor:

Since the husband had obtained a job in comparable employment, despite the much lower salary, the Appeals Court indicated that the lower court was required to consider whether the husband could have obtained a higher income in a similar position: "The reasonable efforts inquiry is critical, and is generally the determining factor in whether to affirm the attribution of income to a party based on his prior earning capacity."

The Appeals Court noted that the trial "judge did not make a specific finding regarding the reasonableness of the husband's efforts to secure employment" and they determined from the record that he had made such a reasonable effort.

The Appeals Court gave significant weight to  the “reasonable efforts” that the husband made to find replacement employment. While “reasonable effort” is certainly subjective, it is clear that the Appeals Court felt strongly that the efforts taken by the husband in this case were reasonable, despite the lower court's lack of finding on this issue (and presumably the lower court’s disagreement that the efforts were reasonably sufficient).

3. Attribution cannot be based on bad conduct:

The Appeals Court noted in footnote 15 that the trial judge gave weight to the husband's conduct, finding that the resignation was voluntary and the result of an affair.  However, the Appeals Court called this an "impermissible factor", directing lower courts to focus on the importance of the attribution factors only.

While this is strong direction to the lower court to focus on the reasonable efforts standard in future attribution cases, it seems unlikely that bad conduct will be ignored in these inquiries.  However, the Appeals Court has warned that the reasonable efforts to find replacement employment will weigh more heavily than any conduct that led up to the loss of the initial income .

Of Note - The Attribution Standard in Child Support v. Alimony

The Child Support Guidelines and the Alimony statute in Massachusetts have different language authorizing the "attribution of income":

Massachusetts Child Support Guidelines (as of 2013) state:
"Income may be attributed where a finding has been made that either party is capable of working and is unemployed or underemployed. The Court shall consider all relevant factors including without limitation the education, training, health, past employment history of the party, and the availability of employment at the attributed income level. The Court shall also consider the age, number, needs and care of the children covered by this order. If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court should consider potential earning capacity rather than actual earnings in making its order."
"In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed."
Despite the different language, the Appeals Court in the Emery case noted that the standard they were applying was essentially the same:
"At the outset, we note that 'attribution of income in the alimony context is not different in rationale from that in the child support context.' C.D.L. v. M.M.L., 72 Mass. App. Ct. 146, 153 n.5 (2008). Accordingly, the discussion that follows applies to both alimony and child support."
While that may be the case, it is apparent that the parties were fighting over more than the husband's voluntary income change.  Both the wife and the husband's standard of living were going to be significantly affected by the husband's voluntary job change.  Some discussion in the case of a subsequent Contempt ruling suggests that if the attributed income order had stayed in place, the husband wouldn't have the ability to pay the full order anyway.

As with many of our posts, we are left wondering whether these parties would have been better served by a mediation process that allowed them both the opportunity to explore these practical realities, rather than the all-or-nothing see-saw of the trial court and appeals court.  This was their second trip to the appeals court and we hope they consider trying another process before they end up there a third time.


Monday, May 1, 2017

The Collaborative Outpost

Skylark Law & Mediation, PC will soon be moving to Southborough, Massachusetts and it's an opportunity for us and other like-minded professionals.  Our new home will be a building in downtown Southborough, called the Collaborative Outpost, which has a particular mission:

To Provide an Enjoyable Work Space for Collaboratively Minded Professionals

ACCOMPLISHING THE MISSION:

Justin Kelsey, who will also be a manager of the Collaborative Outpost, first opened his law firm with Matthew Trask as Kelsey & Trask, PC in 2008.  Since that time Kelsey & Trask, PC has evolved into Skylark Law & Mediation, PC, a leader in the resolution of family and probate disputes.  Justin is active in the mediation and collaborative law communities and has long dreamed of opening a shared work space that could expand on the model that has worked so well for Skylark (now a firm with five attorney/mediators).

The Collaborative Outpost is the realization of this dream, but not the end.  Our goal is to continue to push the frontiers of collaboration and find new ways to expand the reach of peaceful dispute resolution.  We believe that a shared workspace model is conducive to these goals by reducing the overhead for individual practitioners, while increasing their opportunity for learning and networking.

outpost. noun – an outlying or frontier settlement

The joint problem solving that is central to Collaborative Law and Mediation shares a common thread with the collaborative model of shared work spaces.  They are both outliers from the traditional way of doing things.  The Collaborative Outpost combines and embraces those differences from tradition as we seek to be on the frontier of our work in every way.

“It’s always been done that way” is no longer good enough.  

We hope the idea catches on and we are able to expand to additional locations.  Aside from the obvious play on words for a former post-office building, we envision this to be just our first building, a true Outpost on the frontier of a new working model for collaboratively-minded professionals.

If you're interested in joining us or know someone who is, we have an initial offer (expiring on May 12, 2017) to join us.  Click here to view the pricing of memberships and to learn more.


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