Guest Post from Julie Tolek * In the recent case of Smith v. Smith (17-P-765) , the Appeals court upheld a finding of not guilty of contempt of disobeying a court order to pay alimony, but vacated and remanded as to the retroactive modification of alimony made by the trial Judge due to the parties' verbal agreements, stating that retroactive modification of alimony requires findings “reflecting [the judge’s] consideration of all the factors mandated by” the statute. quoting Pierce v. Pierce, 455 Mass. 286 (2009). After a divorce which included an order for the husband to pay alimony, the parties agreed among themselves that the husband would pay less than the amount of alimony in their separation agreement. Relying on this agreement, the husband contributed financially to various expenses for his emancipated children, including payment toward a wedding, down payments for two of his children’s houses, and payment toward liabilities. After receiving a letter from the Wife’s att...

The Massachusetts statute on the enforcement of child support judgments is very clear that child support judgments are not "subject to retroactive modification except with respect to any period during which there is pending a complaint for modification." M.G.L. c. 119A §13(a) .  A recent Massachusetts Appeals Court decision recognized some exceptions to this rule "in certain very limited circumstances." Rosen v. Rosen (2016) The Rosen case involved a couple who were married fourteen years and divorced by agreement in 2003.  The mother had primary physical custody of three children and the father paid monthly child support of $4,500.  Upon the oldest child moving in with the father, he unilaterally reduced his support by 1/3 without court approval.  The parties later reached an agreement (2009) memorializing a change in support to $3,400.  The agreement was filed but not approved by the court due to procedural issues. In 2011, a second child moved in...

Even after a divorce the conflict between couples sometimes continues due to an ongoing support order or co-parenting relationship.  If spouses don't settle on an agreed upon process for addressing future changes, these disagreements can often lead to additional court cases. In the case of Fehrm-Cappucino v. Cappucino , a 2016 Massachusetts Appeals Court case, the parties took a modification and contempt action to trial and appeal, resulting in a remand of both cases back to the trial court for new findings.  In  Fehrm-Cappucino , the father sought a reduction in his child support in a modification, and the mother sought a finding of contempt against the father for non-payment of a lump sum owed under their agreement. Here is what we can learn from the Fehrm-Cappucino decision: 1.  Rental Income Is Includible for Child Support Calculations The trial Judge excluded rental income each parent had from properties they had an interest in.  The tri...

In the case of Bower v. Bournay-Bower , the Massachusetts Supreme Judicial Court has ruled that Judges in the Probate and Family Court cannot grant a Parent Coordinator  binding authority over the objection of one of the parties.  However, the SJC went much further then necessary in order to open the door for what might be the "appropriate circumstances" to order a Parent Coordinator. In Bower , the SJC summarized the trial judge's order as requiring a parent coordinator to: "hear the parties' current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court. The order also granted the parent coordinator the authority to make binding decisions on matters of custody and visitation and provided that these decisions must be complied with by the parties as if they were court orders unless one of the parties were to go to the court before the decision was to take effect...

"I think a plan is just a list of things that don’t happen.” – Parker in The Way of the Gun Often when negotiating a parenting plan with clients, I point out that the actual written plan doesn’t dictate what happens.  It’s just a piece of paper.  Even when the court enforces the agreement that process takes time, effort, evidence, follow-up, and more time.  When both parents agree to guidelines for co-parenting that make sense to both of them, then they are more likely to end up with an actual plan that everyone buys into.   When parents can’t agree the result is typically a Judgment or Divorce Agreement that results in more litigation in the form of Modification actions, Contempt actions and Appeals. One such case was recently remanded to the trial court by the Massachusetts Appeals Court on a 1:28 decision.  The case involved a Complaint for Modification, Cross-Complaints for Contempt and Cross-Appeals.   While the issues being appealed are numerous, ...

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment.  Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration. To succeed on a Complaint for Contempt you must prove two things: first, you must prove that there has been a "clear and unambiguous" order or judgment and second, you must prove that the other party "knowingly violated" the order. If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers  may also now require that you prove an "ability to pay."  Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration).  This w...

In some instances a parent is not or has not been paying the amount of child support that they should be paying, and these circumstances can lead to different results depending on the history of the case. The first question that must be answered is whether or not there is a current order in place. Retroactive Support in Cases without Current Child Support Orders: If child support has never before been ordered, then in Massachusetts whether retroactive support will be due is dependent on whether or not the child in question was born out of wedlock. In Massachusetts divorce cases there is a presumption that spouses have been supporting each other and their children and therefore child support can only be requested in a divorce case after the date of service of the Complaint for Divorce unless the parties voluntarily agree otherwise.  For example, sometimes parties in a Mediation or Collaborative  negotiation will agree to a voluntary temporary child support durin...

In many divorce cases that end up litigation, at least one of the spouses is not doing something they are supposed to do. A spouse who refuses to abide by court orders or the discovery rules can delay the process and drive up the costs for both parties. These situations often lead to the following exchange with clients, both during and after their divorce: Client: My ex is not making a payment that they agreed to make, and which was included in the court order. Attorney: Have you discussed it with them? Client: Yes, but they still refuse. Attorney: Okay, if you would like us to help with this issue, then we will start with a letter or phone call indicating that the payment should be made immediately. If they don't respond by the deadline then we can file a Complaint for Contempt. If there is an emergency then we can request a quick hearing, but that will require an extra court appearance. Otherwise we will have a court hearing in about one month. We will h...

Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children. This Judgment can be amended or enforced as necessary and dependent on certain circumstances.  Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment. In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual viol...

Under M.G.L. c. 215 s 34 , a Judge can incarcerate a Defendant who has failed to pay under a Court Order that was clear and unambiguous, so long as the Defendant had the ability to pay. Many Contempt Complaints in the past few years for issues of non-payment have been due to the down-turn in the economy. The key issue in many of those cases is whether or not the Defendant had the ability to pay. It can be difficult, though, for the Court to distinguish between a party who is a victim of circumstance and truly unable to pay, and the lazy or vindictive ex who is just not trying to pay their fair share. In 2009, Judges in Massachusetts incarcerated 848 defendants for Contempt. In 2010, the number dropped to 622. That drop may be due to a perception that the economy is affecting more Defendants, but it's difficult to know for sure. Regardless, you don't want to be among those counted in 2011 (nor do we want any of our clients to add to that number). In these cases the credib...

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in. Divorce Cases: If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency ( or in other unique circumstances ) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case. If your Divorce case has already been filed in Massachus...

Getting divorced doesn’t always mean the end of a relationship. When parents of a child get divorced, there is a need for some form of continuing communication and cooperation. When parents fail to recognize that need for ongoing cooperation, the child is the one who suffers. The latest example of parents putting their child in the middles is the story of Joseph and Rebecca Reyes as reported in this ABC news story: Joseph Reyes returned home from serving in Afghanistan and soon married his sweetheart, Rebecca. Because Rebecca is Jewish and Joseph was Catholic, Joseph converted to Judaism to make his wife, and her family, happy. After a few years, and the birth of a daughter, their marriage had started to deteriorate. Religion became a contentious issue between the two, and they decided to get divorced. Rebecca became the daughter’s custodial parent, and Joseph had visitation rights. Although Rebecca had been raising their daughter in the Jewish faith, Joseph unilaterally decide...