Tuesday, April 29, 2014

Can an Attorney be Liable for the Opposing Attorney’s Legal Fees?

For over a decade, federal courts have ruled that an attorney who files a frivolous appeal on behalf of his or her client can be ordered to pay the opposing party’s legal fees. For example, in the leading case of Cronin v. Amesbury, the First Circuit Court of Appeals ordered the losing party’s attorney to pay the opposing party’s legal fees after he “crossed the line from zealous advocacy to vexatious advocacy”.

Has this rule been expanded to Massachusetts?

In 2010, the question first came to Massachusetts in City of Worcester v. AME Realty Corp., in which the Appeals Court seemingly expressed support for the federal rule of imposing “joint and several liability” for legal fees on attorneys who file frivolous appeals. In City of Worcester, the Appeals Court referred approvingly to “numerous” federal “decisions applying the sanctions of ‘damages’ and ‘costs’” to attorneys who file frivolous appeals. However, the opinion ultimately declined to say whether the federal rule applied to Massachusetts attorneys.

Last week, a three-judge panel of the Appeals Court directly applied the federal rule in a Massachusetts case: Callahan v. Bedard, Case No. 13-P-914, decided on April 23, 2014 (available here), in which the Court held:

"The mother argues that the father's appeal is frivolous and calls for an award of her reasonable appellate legal fees as well as double costs. We agree. The father should have known that this appeal lacked any reasonable likelihood of success. His contentions conflicted with the plain meaning of both statutory provisions and precedent. His counsel should have appreciated, just as well, the meritless quality of those arguments. They have wasted the resources of both the mother and this court. The law provides a remedy for the mother. The father and the law firm of Bedard & Bobrow, P.C., shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs."

In the wake of Callahan, Massachusetts attorneys should be more wary than ever that filing a “frivolous” claim can result in liability not just for a client, but for the attorney as well. In Callahan, the recipient of the fee award was the Hingham law firm of Stevenson & Lynch, P.C., which represented the mother in the appellate proceedings.

(Note: although “unpublished” opinions of Appeals Court panels do not create the same binding precedent as decisions of the full Appeals Court, these so-called “rule 1:28 decisions” are available online, and are frequently cited by attorneys and judges in Massachusetts for their persuasive value.)

Why it matters Where a Restraining Order Violation Happens

The Abuse Protection statute in Massachusetts M.G.L. c. 209A, often referred to as a restraining order, includes provision relating to out of state orders.  Under section 5A, "any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction."

In a recent case, a Defendant raised on appeal the question of whose law applies when an out-of-state order is violated in Massachusetts: the law of the issuing state, or the law of the state where the order was violated?

In Commonwealth v. Shea SJC-11412 (2014), the defendant who lived in Weymouth applied for a restraining order in the Quincy District Court against the victim who already had a restraining order against the defendant in NH.  This forced the victim to attend the hearing in Quincy District Court where, after having her request denied, the defendant violated the NH restraining order by threatening the victim.  The Defendant was then arrested, charged and convicted with violating the NH restraining order in Massachusetts.

The defendant argues that NH law should have applied and that the jury instructions should therefore have been different, due to a requirement of "knowing" violation in the NH law.  The SJC disagreed.

The SJC points out that the language of Section 5A states that the out-of state order should be enforced "as if it were issued in the commonwealth."  In addition, the SJC quotes the federal Violence Against Women Act under which the enforcing state applies its own law to the violation of an out-of-state order.  

In this case, the SJC's decision led to greater protections for the victim, but that might not be the case if a Massachusetts restraining order was being enforced in New Hampshire, or another state that has a different legal standard for violations.

Thursday, April 24, 2014

209A Protections not available to Residents of DDS Residential Programs

The Abuse Protection statute in Massachusetts M.G.L. c. 209A, often referred to as a restraining order, does not apply to all relationships.  You cannot obtain a restraining order protecting you from anybody.  The statute limits the protections to individuals suffering from abuse by "family or household members" which is defined in the statute as follows:
“Family or household members”, 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) having 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 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. - M.G.L. c. 209A § 1
SJC refuses to expand this definition 
beyond family relationships.

The SJC recently reiterated their refusal to expand this definition beyond family relationships except as required by the language of the statute.

The recent appeals case of Silva v. Carmel, SJC-11438 (2014) limited section (b) of this definition.  In the Silva case, the SJC was asked to overturn an order from a District Court Judge who had awarded an Abuse Prevention Order against a defendant who resided in the same State-governed residential program as the victim.  The case turned on whether two parties residing in a state residential facility could be considered "residing together in the same household."    The SJC decided it cannot.

The Court points out that "the defendant and the victim were not voluntarily living together" and they were "assigned to the residence by a government agency."  The SJC determined that to include individuals in these facilities as living with the definition of a "household" under c. 209A would be too restrictive on the State agency, but also not within the language of the statute.

It is unclear from the decision whether the victim was unable to obtain suitable protections from the Department of Developmental Services but the footnotes indicate the defendant lost housing and support from the department due to the restraining order.  This suggests the Department was unable or unwilling to accommodate one of the parties in a different facility.  The SJC has essentially pushed the issue back to that Department, indicating that a 209A restraining order can't be used for protection of the victim in this case.  Hopefully, the Department finds a way to provide services to both, without endangering the victim.

Tuesday, April 22, 2014

Parent Education Program For Never Married Parents in Massachusetts

In Massachusetts, if you have any minor children at the time of the filing of a divorce case, you are required to attend the Court-sponsored Parents Apart education program before you can be divorced.  There has not traditionally been a similar requirement for never married parents in Massachusetts, despite the fact that separating parents will have many of the same issues regardless of whether they were married or not.

Children whose parents live in separate households may face many of the same difficulties regardless of whether their parents were married.  Recognizing this need, the Probate & Family Court in Massachusetts has a pilot program in three counties seeking to expand parent education for never married parents.  Under Standing Order 6-08 Judges in Hampshire, Essex and Suffolk counties may order parents to attend a program known as "For the Children" when they are a party to a Complaint to Establish Paternity, a Complaint for Custody/Support/Visitation, or any case involving visitation or custody of minor children of never-married parents filed on or after July 1, 2008.

Similar to the program for divorcing parents, the Court may waive attendance for certain reasons, and the Court may sanction parties for failure to attend.  The program is 2 2-1/2 hour long sessions and covers many of the same topics as the court for divorcing parents, but focuses on the different needs of children born out of wedlock.  The program is open to the public as well.

More information about the "For the Children" program is available on the Hampshire County Bar Association's website here.

More information about the the court procedures for never married parents in Massachusetts is available here.

Thursday, April 3, 2014

Does Divorce Hurt Children?

When parents are considering the D-word, they may have many fears, concerns and questions:  How will I afford a divorce?  How often will I see my children?  Where will I live? Will the divorce hurt my children?  

For most parents this last question can be so concerning that it causes them to put off their divorce.  Even when a divorce is inevitable parents are often paralyzed by their fear of how the divorce may impact their children, especially when the children are young.  This fear is warranted because many parents significantly damage their children's mental health by how they divorce and how they manage their relationship after the divorce.

A recent thread on Reddit highlighted the question:  Reddit Children of Divorce, what was the biggest thing you learned from your parents split and how did you end up?

Many of the responses are both heartbreaking and insightful:

Excerpt from AskReddit

Split, a recent film, also explored this issue from the perspective of children ages 6-12:

Fortunately, divorce doesn't have to be this way.  With the availability of films like Split and the recent release of Sesame Street's: Little Children, Big Challenges: Divorce Toolkit, there are many resources available to help parents minimize the impact of divorce on their children.

While the divorce process necessarily involves the division of a financial and emotional partnership, the most important impact divorce will have on both the day-to-day family life and the long-term family legacy begins with how the children perceive and react to the divorce.  Parents who want to put their children first should know that divorce all begins with how they choose to divorce.

How do the different divorce options treat children?

Divorce in Court: If parents choose to litigate their divorce case by filing a Complaint in court, the first information the court asks them to exchange is financial information.  Either parent can ask the court for temporary orders that define a parenting plan and, if they cannot agree, the court will tell them both when they spend time with their children and sometimes even how to communicate about their children.

While the court's mandate requires consideration of the "best interest of the children", the court orders are directed at the parents, not the children.  In most of these hearings, there is no person in the courtroom specifically advocating for the children.  While one might presume the parents are advocates for their children, their interests may not always align with the children's best interest.  In addition, court is confusing and stressful, and most people have trouble focusing on their own needs, nevermind fully understanding the needs of their children.

The most glaringly obvious example of this disconnect, is the complete lack of one major component from any court order.  I have been practicing in the divorce field in Massachusetts for almost 10 years and I have never seen a court order address how the parents should tell their children about their divorce.  Practically it make sense that the court would not get involved in this level of detail.  But consider the importance of that conversation to the child, especially now that a temporary order exists telling that child that on certain nights they can't see one of their parents.  Take a moment and try to imagine how that feels to a child.  What if I told you right now that you can't call or visit your Mother on Tuesdays?  Even as an adult, how hurtful and confusing would that be?

Divorcing outside of Court:  There are options for reaching agreements to divorce outside of court and many of these options offer the opportunity to put your children first.

Mediation involves two people hiring a neutral trained mediator to help them reach an agreement.  Many people choose co-mediation with both an attorney and practitioner with some other skill set, such as a child specialist or divorce coach.  While the attorney mediator helps focus on the legal issues that divorcing couples face, the mediator who has training in child development and communication skills assists parties in finding the best ways to co-parent their children.

Because divorce is primarily seen as a legal division, the needs of the children can get lost in the legal requirements.  Having a mediator who helps parents focus on their children's needs, can create the opportunity to discuss issues such as how the parents will tell their children about the divorce.

Collaborative Divorce is another out-of-court settlement option that provides parents with the expert assistance needed to address the needs of their children and themselves in a healthy way.  Collaborative Law is a form of alternative dispute resolution where both parties in a dispute have their own attorney, but those attorneys agree not to go to court and instead work on settlement in meetings with a Divorce Coach.  The Divorce Coach is someone who likely has training in child development and communication skills to help address the co-parenting relationship now and in the future.

I often tell clients and potential clients that divorce with children should not be about breaking up a family, but simply restructuring it.  Collaborative Divorce is a team approach to that restructuring using the skills of everyone in the room to build a new family dynamic.

Ultimately if a parent wants to divorce in a way that minimizes the damage to their children this is the take-away message:

A healthy divorce with children requires finding ways to 
still be a family while living in separate households.

Here are some resources that parents in divorce might find helpful in accomplishing this goal:

Wednesday, April 2, 2014

Temporary Alimony is Distinct from General Term Alimony - According to SJC

In September of 2011, the Alimony Reform Act was signed into law in Massachusetts, and it took effect on March 1, 2012.  We've previously summarized the many changes that this Act brought to Massachusetts Alimony Law: The New Massachusetts Alimony Law in a Nutshell. 

As with many new laws, though, it raised as many questions as it answered.   Now that this law has been around for two years we are starting to receive answers to some of those questions from the Appeals Court and SJC.

One of these questions was whether temporary alimony orders count against the duration of general term alimony orders which begin only after a final Judgment.  The new alimony law contains duration limits in M.G.L. c. 208 § 49, which create a presumption that alimony ends at a certain time based on the length of the marriage.  For example a marriage of between 15 and 20 years, could have alimony as long as 80% of the length of the marriage.  For a marriage of 15 years this would mean alimony could last up to 12 years.  Beyond that, the court would have to make a written finding "that deviation beyond the time limits of this section are required in the interests of justice."

In many cases, however, alimony doesn't typically begin after a Judgment but instead usually begins at the Temporary Order stage of litigation.  Most cases take six to twelve months to resolve by agreement, and even longer when litigated to trial.  It is not unusual for a case to take two years from the date of filing before a trial is held, if the parties are not able to settle the matter.  If temporary alimony doesn't count against the duration of general term alimony, then the length of time a case is pending could add years to the ultimate length of time alimony is paid.

Should temporary alimony be included in the duration limits for general term alimony?

Today, the SJC answered this question in a decision on the Holmes v. Holmes case (SJC-11538, 2014, available here).   The SJC answered definitively:
"We conclude that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony."
But also gave trial judges a way out:
"We also conclude that, where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony."
In the Holmes case, the trial judge had not subtracted the two years and three months that temporary alimony had been paid by the husband to the wife from the twelve year duration that she was ordering the husband to continue paying.  The husband appealed and the SJC agreed with the trial judge.

In the SJC's discussion they point out that trial judges are not required by the statute to order alimony for the maximum duration and can, without a finding, use their discretion to limit alimony for a shorter period of time.  However, a written finding is required to exceed the maximum duration.  The SJC also points out that the Alimony Reform Act does not amend the temporary alimony statute: M.G.L. c. 208 § 17.  The SJC weighed all of this to show that the intention of the legislature was not to include temporary alimony in the duration limits of general term alimony.

The husband's best policy argument was that the trial judge's interpretation would encourage recipients of temporary alimony to delay the divorce process.  The SJC believed that a "a spouse who acts in this way does so at his or her peril because, as noted earlier, a judge in her discretion may order that general term alimony terminate before the presumptive maximum duration."  While this doesn't necessarily address the husband's practical concern it does encourage practitioners to point out to judges that the maximum duration is not necessarily the appropriate duration.

Footnote Tidbit (if there's anything I learned in law school, it's that appeals courts love to put important information in the footnotes):

Footnote 9 addresses the fact that this decision was made in a post-divorce Modification Judgment, and not in the original Judgment.  The wife argued that the duration limits didn't apply to her case in which the divorce was decided prior to the Reform Act because the husband would not have been allowed to request that the court amend the duration until after September 1, 2015 (pursuant to a stepped filing provision in the Act).

The SJC points out, however, that the husband didn't file the first Complaint for Modification, but only responded to the wife's request to increase support.  Since the modification wasn't "'solely because' the husband sought to limit the duration of alimony", the judge could address the duration issue before September 1, 2014.    This would seem to open the door for payors (of 15 to 20 year marriages) to try and limit duration prior to September 1, 2015 if they also make a claim that the amount of alimony should change due to a change in circumstances.  It should also be a warning to recipients filing a Modification that opens that door.

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