In care and protection cases, important pieces of evidence are introduced in order for the court to decide issues of custody and visitation. One example, which serves to be significant evidence in care and protection cases, deals with the testimony, notes, and assessment of the social worker who is assigned to the case.
That testimony was at the heart of a recent case decided by the Massachusetts Appeals Court. In the case, Adoption of Luc, a birth mother’s parental rights were terminated by the Juvenile Court. At trial, the social worker who was assigned to the case testified on direct examination. The trial was then continued for several months. Before the trial resumed, and before the mother may have had the chance to cross-examine the social worker, the social worker died.
The trial judge struck and excluded the social worker’s testimony, but he allowed into evidence the dictation notes, reports, and assessments of the social worker, subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead, and she was allowed to summarize some of the contents of his reports. It should be noted that the judge only allowed in statements of fact and excluded any statements of opinion or impressions.
On appeal, the birth mother claimed that the evidence was admitted in error; that the documents were hearsay which should have been excluded by the trial judge; and that she was unduly prejudiced by their admission, as she was unable to cross-examine the author of the documents due to his death.
The Appeals Court disagreed, holding that the reports and assessments documents were widely recognized to be admissible under the public documents exception to the hearsay rule, while the dictation notes, which made up the basis for those reports, were admissible as declarations of a deceased person.
“The underlying reports were prepared by numerous professionals who also have an obligation to make truthful and accurate reports to the department ‘as a matter of duty and routine,’” the Court stated. “Any prejudice stemming from the factual observations of the service providers is found not in the summary prepared by the department social worker, but in the observations of the service providers themselves. This second-level hearsay may be rebutted by subpoenaing the source.”
Moreover, the Court noted that the mother herself did not dispute some of the findings of the social worker which were introduced, such as the fact that she failed to attend her Alcoholics Anonymous meetings and left the child alone with her brother, who recently had been arrested for sexual assault. With the evidence properly admitted, the Court held that the trial judge properly found that parental rights of the birth mother should be terminated. “The mother’s long-term history of mental illness, sporadically treated, her reliance on drugs and alcohol to self-medicate, her positive urine screens during the pendency of the case, her noncompliance with service plans, and her inability to attend to Luc, coupled with the systematic neglect of her six older children due to the same untreated mental health and substance abuse issues, ‘proved parental unfitness by clear and convincing evidence[,]’” the Court held.
If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.
Does the District Court have
subject matter jurisdiction over the issuance of protective orders,
particularly where they are issued ex parte, meaning without the defendant
present in court? This was a question posed in a recent case of the
Massachusetts Appeals Court.
sometimes also referred to as a restraining order, serves to protect a victim
of domestic abuse which is perpetrated by a member or former member of the
victim’s household. It may also serve to protect a victim from abuse or
violence perpetrated by someone the victim is or was dating. Subject matter
jurisdiction refers to the power of the court to decide a certain
matter—essentially, the power of the court over the type of case or controversy
In the case, V.M. v. R.B., the plaintiff filed for a protective order against
the defendant ex parte, meaning the defendant was not present at the hearing on
the matter. Typically, where an ex parte protective order is issued under
Massachusetts General Laws, chapter 209A, the defendant against whom the order
is issued may challenge the order at the ensuing hearing after notice, and not
by an appeal to an appellate court. In this case, however, the defendant
appealed. He argued that the plaintiff failed to present sufficient evidence of
a substantive dating relationship at the ex parte hearing, and because of this,
the District Court did not have requisite subject matter jurisdiction to hold
the hearing after notice.
At the ex parte hearing, the
plaintiff presented an affidavit, claiming that the defendant threatened her
through text messages, phone calls, and in person. On her Complaint for
Protection from Abuse form, she checked the box indicating that she and the
defendant “are or were in a dating or engagement relationship.” Her
affidavit did not describe the nature of the parties’ relationship, but she
testified at the ex parte hearing that they were in an exclusive dating
The judge entered an order
prohibiting the defendant from abusing or contacting the plaintiff and 978requiring
him to stay away from her. Nine days later, both parties appeared at a hearing,
where the defendant filed a motion to vacate the restraining order and expunge
the record at the hearing after notice, arguing that the judge lacked
jurisdiction to extend the order. The judge extended the order for six months.
On appeal, the Massachusetts
Appeals Court held that the existence of a substantive dating relationship is
an element of a claim for a protective order, and not a prerequisite for subject
matter jurisdiction. “The elements that the plaintiff must establish to obtain
relief are not equivalent to the “nature” or “genre” of the
case, which determines subject matter jurisdiction,” the Court noted. The Court
explained that it is well-established that the Legislature has unequivocally
given the District Court, the Boston Municipal Court and the Probate and Family
Court jurisdiction over cases involving a protective order under chapter 209A.
“[A] plaintiff’s failure to establish a substantive dating relationship at the
ex parte hearing would not deprive the court of jurisdiction,” the Court
concluded, dismissing the defendant’s appeal as moot.
If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.
Now that recreational marijuana is legal in
Massachusetts, a burning question exists: how does use of marijuana affect
custody issues? If one spouse uses marijuana during a divorce, for example, how
does the Massachusetts Probate and Family Court determine child custody?
Picture this fictional scenario: Cindy and
Peter seek a divorce. They have one child named Kevin. Cindy is a great mother.
She also smokes marijuana. Her recreational use of marijuana occurs about once
or twice per week. Peter does not use marijuana. During the divorce, both
parties want to obtain custody of Kevin.
Child custody issues are determined with one
objective: the best interests of the child. The Massachusetts Probate and
Family Court will make child custody determinations based on what is best for
the child, which may include the actions or inactions performed by either or
both parents. This determination may involve concerns about a parent’s
recreational or medical marijuana use. Massachusetts judges may consider the
frequency of the use, the child’s age, whether the child is susceptible to
using the drugs, and whether the parent uses the drug in the presence of the
child. Although some may view marijuana in a similar light as alcohol, others
may hold strong a bias against marijuana. It is important to note that
marijuana is not legal at the federal level.
Using the above scenario with Cindy, a
Massachusetts judge has substantial discretion to determine the custody of
Kevin. A judge could determine that her use once or twice per week is frequent
and not best for Kevin. If Peter’s attorneys threaten to use Cindy’s use
against her potential custody of Kevin, the attorneys could damage Cindy’s
change of having custody or visitation of her son.
Suppose instead of her using recreational
marijuana, Cindy instead used marijuana for a medical purpose. Would her
medical use of the drug negate any argument made my Peter’s attorneys that she
is not fit to have custody of Kevin? Of course, this depends, but the general
answer is no. A Massachusetts judge could still decide that Cindy’s use of
marijuana, regardless of recreational or medical consideration, is not in the
best interest of Kevin. The best interests of Kevin are the most important
determination for child custody decisions. A court does not want to award
custody to a parent who could possibly put Kevin in some kind of danger.
Imagine, for instance, that Kevin was diagnosed with severe asthma and that
Cindy’s use of marijuana harmed Kevin or could harm Kevin as second or
third-hand smoke—in that case, Cindy’s use of the substance would not be in the
best interest of Kevin. Imagine instead, however, that Cindy used marijuana in
a different form than smoking the substance, perhaps instead as a tea. That
ingested form would not be as harmful to Kevin. These factors would all be
considered and determinations made by a judge in Massachusetts.
Some may want to know: Would a Massachusetts
judge award custody to a parent who was a seller or dealer of marijuana? It is
highly unlikely that a parent who sells marijuana as a side business would
receive custody of her child, though there may be some exceptions, such as the
cultivation or sale of hemp-based products or CBD oil. (These products do not
contain the THC that makes someone high, so as to impact the parent’s capacity
around his or her child.) Even in these circumstances, a Massachusetts judge
has the final determination as to which parent is the custodial parent and
which parent is the non-custodial parent. Marijuana may or may not be a large
Another issue that may come up in child
custody disputes is a parent’s prior use of marijuana. For example, suppose
that Cindy as mentioned above had used marijuana years prior to the divorce.
Would her prior use be a factor in the child custody decision? Most likely not,
so long as the prior use does not affect the best interests of Kevin. Courts
ultimately want children to be with parents who will make the best decisions
for the children, and will likely not use past marijuana use against the
parent, absent other issues.
If you have any questions about issues involved in family law, child law, child custody law, or other issues, you should contact a competent family law attorney licensed to practice law in the Commonwealth of Massachusetts. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at (866) 995-663 or complete a contact form on our website. We will return your inquiry with prompt attention.
Marital property is often at the center of contention in a divorce case. Among the many types of property that may be considered part of the marital estate are retirement accounts and pension plans, business assets, and inheritance assets—and these assets are often litigated in a seriously contentious manner.
A recent Massachusetts appellate case, Dilanian v. Dilanian, addressed the issues of business assets, inheritances, and pension plans as part of the marital estate. In that case, the parties were married for thirty-one years, living a comfortably upper-middle-class lifestyle. The wife stayed home, while the husband ran a successful business, which he originally started with his father, but of which he was the sole owner by the time of the divorce proceedings. The parties filed for divorce, and while they amicably resolved issues regarding some of the marital property, including the marital home, much of the trial centered around the value of the husband’s business and the husband’s share in various assets, including pension plans.
The trial judge reviewed the husband’s income from his business, noting that in order to avoid double taxation, the husband paid himself a salary and a year-end bonus each year, leaving little funds in the company’s account as retained earnings. The husband’s financial statement reported significant income increases between 2008 and 2010, but his income was drastically reduced in 2011 and 2012, after the divorce proceedings started—yet at the same time, the amount of cash left in the business accounts increased by over $294,000, contrary to the husband’s prior practice.
The judge found that the husband had artificially lowered his income, and that the husband’s real annual income was approximately $325,000, ordering alimony to be paid to the wife in the amount of $2,000 per week. In valuing the marital estate, the judge did accept the husband’s valuation of the business, only adding in the amount of a promissory note payable to the husband for a personal loan made to the company. The husband was allowed to keep the business.
At issue were also two pension plans that the husband had contributed to during the marriage, along with an inheritance from his father, which occurred very late in the course of the marriage. The judge found that the inheritance was received so late as not to be “woven into the fabric of the marriage” and belonged to the husband. However, the judge also ordered the husband to transfer 60% of both pension plans to the wife.
The husband appealed, claiming that the trial judge abused discretion in both the judge’s valuation of the business and in giving the wife 60% of the pension plan benefits. He argued that the company’s defined contribution plan belonged partially to his now-deceased father, and thus to his sister, who received part of the father’s estate after the father died.
The Appeals Court disagreed. The Court explained: “contrary to the husband’s argument, the judge’s order will not adversely affect the interests of third persons. The plan documents establish that the beneficiaries of any portion of the defined contribution plan that belonged to the husband’s father are the husband and his sister, in equal shares. The sister, as coexecutor of the estate, signed an estate tax return taking the position that $663,961 of the plan belonged to the father. Accordingly, half of that amount ($331,981) could be claimed by the sister. Once sixty per cent of the plan is transferred to the wife, the remaining amount will be well in excess of the amount the sister claimed in the estate tax return and appears able to claim.”
The Appeals Court also found no issue with the trial judge’s valuation of the business as part of the marital estate, holding that there was nothing unreasonable in considering the $150,000 note payable to the husband part of the value of the company. The Court also disagreed with the husband on his assertions that the income imputed by the judge to the husband at trial was incorrect. “[C]ontrary to the husband’s assertion, the evidence supported the finding that the husband’s reported income was increasing until he filed for divorce in 2011, and that the husband intentionally reduced his own salary while amassing corporate earnings usually directed toward his personal income,” the Court held. “Given this evidence and the husband’s furtive financial disclosures, including his failure to prepare a 2012 financial statement for [the company], the trial judge could reasonably conclude the husband artificially reduced his income to alter his financial condition in light of the impending divorce.”
It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about property distribution, alimony, divorce, or family law issues, please call our offices at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.
In Massachusetts, judges of the Probate and Family Court may award alimony to one of the spouses during the divorce process. Alimony is payment by one former spouse towards the maintenance of the other spouse. Under the Massachusetts alimony law, there are four types of alimony: (1) general term; (2) rehabilitative; (3) reimbursement; and, (4) transitional. One form of alimony is called reimbursement alimony. The aim of reimbursement alimony is to pay one spouse back for the support (financial or otherwise) that spouse provided during the marriage.
Couples embarking on the divorce process in Massachusetts should hire competent legal counsel for this process. Divorcing couples must understand the various forms of alimony that a spouse in a divorce could receive from the payor spouse. The type of alimony that a Massachusetts judge awards to a person is based upon various factors and the length of the marriage.
For example, suppose that Jessica and Tim met during college. Soon after their graduation from school, they were married. Jessica worked as an entry-level technical writer, on a track to eventually be promoted to a senior-level technical writer or director of technical writing, with a dream of going to law school to become an attorney. Tim was an entry-level financial analyst. Jessica earned more than Tim. After one year of marriage, Tim and Jessica decided that Tim would attend graduate school for business. The two-year business program was intensive, but Jessica supported her husband’s dream to become a business mogul. During their discussions about whether Tim should attend business school, the couple decided that Jessica would wait to pursue her dreams of law school until her husband finished his two-year business program. Additionally, Jessica would not work while he was in graduate school, so that she could support him. After his graduation, Tim found a job that offered a significant pay increase, and Jessica continued to support Tim as a homemaker. She never went to law school, so she did not have the chance to pursue a law degree and eventually a wonderful and arduous career as an attorney. A few months later, Tim asked Jessica for a divorce. Jessica has many questions for her attorney: first, is she entitled to reimbursement alimony?
Reimbursement alimony is intended for marriages that are shorter in length of time, five years or less. The purpose of reimbursement alimony is to compensate the payee, or recipient, spouse for all that the spouse did to support his or her spouse. The payee spouse receives reimbursement alimony to compensate for time, money, and effort spent in enhancing the other spouse’s earning capacity.
Jessica would likely be the person in the marriage entitled to alimony, because Tim earned more money and because Jessica would need to be compensated for all that she did to support Tim. Because their marriage was shorter in length–less than five years–the form of alimony that a justice would likely award to Jessica would be reimbursement alimony. A Massachusetts Probate and Family Court judge may decide to award Jessica reimbursement alimony to compensate her for her time, money, and effort in enhancing Tim’s earning capacity. The spouses had decided that Tim would pursue an education to support his career. Because of this, Jessica was unable to advance in her career. This decision boosted Tim’s earning capacity and not Jessica’s as an individual. Because of this, a Massachusetts judge would award Jessica an alimony amount to reimburse her for all that she did to support Tim as a spouse, such as her staying at home to support Tim as a homemaker and also her foregoing her dreams to support his.
Suppose that Tim and Jessica had been married for longer than five years. Could Jessica receive alimony? The answer is that Jessica could receive alimony, but not reimbursement alimony, because reimbursement alimony is for marriages that lasted five years or less. A Massachusetts judge would likely award Jessica one of the other forms of alimony, such as general term alimony, to make her whole and comfortable as she was during the marriage. Reimbursement alimony is not designed to support longer marriages.
It is important to hire a competent family law lawyer to handle your unique case or answer your personal questions. If you have any questions about reimbursement or other forms of alimony, divorce, or family law issues, please call our offices at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission with prompt attention.
A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating.
The recent case of G.B. v. C.A. involved veracious protective order requests against a defendant who was a Boston police officer. In that case, the parties were in a dating relationship for three years. The day after the relationship ended, the defendant appeared at the plaintiff’s workplace and attempted to return ceramic flowers to her. A struggle ensued, and the video of the struggle was captured by surveillance cameras from two different angles. The video showed that the plaintiff threw the flowers in the trash; the defendant retrieved them; and the plaintiff then lunged at the defendant, pointing long fingernails at his face. As the parties struggled, they went off camera for some time, and the plaintiff eventually landed on the ground and injured her face and lip.
The plaintiff attempted to call the police, and the defendant tried to take her cell phone away from her, boxing her into a corner. When a 911 operator called back, the defendant answered the plaintiff’s phone. He then walked across the street to a police station, and officers came on the scene and transported the plaintiff to a hospital for treatment.
The following day, the parties appeared in court, each seeking a protective order against the other. The judge viewed the video recording of the struggle between the parties and declined to grant either party’s request. Subsequently, the matter was investigated by Boston Police Department’s domestic violence unit, which eventually filed criminal charges against the plaintiff. The defendant was not charged, though the matter was also referred to the BPD’s Internal Affairs division.
About six weeks later, the plaintiff filed for another protective order against the defendant, alleging that he followed her in his car, intimidated her, and had a friend call her and threaten her not to go to court. The following month, a clerk magistrate heard the criminal charges against the plaintiff. The clerk held the application “in abeyance” for sixty days, told the parties to stay away from each other, and noted and that, if there were no further incidents, the criminal complaint would be dismissed.
Subsequently, the plaintiff filed for another protective order, alleging that the defendant followed her, carried a gun, and drove by her work, that he had contacted her on an Internet application called “WhatsApp,” and that he “went to Housing to try to tell lies.” A third judge denied the request.
The plaintiff filed for a protective order for the fourth time, about a month later. This time, because the plaintiff had moved, she was referred to a different court for her filing. The plaintiff recounted the original altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also stated that she was “tired of being afraid” of the defendant and claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates.
The fourth judge granted the protective order ex parte, then scheduled the matter for further hearing. Another judge heard the matter and extended the protective order for a year. The defendant appealed, claiming that the judge abused his discretion in granting the order. The defendant argued that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse, and that the only “new” evidence presented by the plaintiff in support of the request was an incident where the defendant drove by the plaintiff’s workplace.
The Appeals Court disagreed with the defendant, holding that the trial judge was within his discretion to find for the plaintiff, based on the totality of the circumstances. The court explained that “it was ultimately up to the judge to determine the credibility of the witnesses. He could have believed her version of events, or not. Indeed, he would have been within his discretion in finding that the plaintiff was the initial aggressor in the December, 2015, incident, or that it involved mutual combat. Neither finding, however, would negate the further discretion afforded the judge to consider this incident in the totality of the circumstances surrounding the request for the 209A order at issue in this case.”
If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.
Divorce can inevitably become a very stressful period in a person’s life. As emotions run high and become all-consuming, many parties do not realize that financial mistakes can be made during a divorce. This article will discuss some of the financial errors your divorce attorney can help you avoid during this high-stress time.
It is likely you and your spouse share many financial commitments—credit cards, a mortgage, health insurance, and variety of monthly bills are just a few examples. Separating these commitments is incredibly difficult, and our divorce attorneys are aware of the emotional toll this reality can take on your life.
The biggest asset you will likely have trouble separating is the marital home. As a first practical point, it is imperative that if you or your spouse stay in possession of the home, you are able to afford to do so. Our attorneys are aware that there are many memories and emotional attachments that are rooted in this home. In the moment, you may just want to keep this home since it means a lot to you, but you must ensure that you can afford to upkeep the property, as well as pay the mortgage and taxes on the property independently. If you think you would be unable to meet these obligations, we advise you not to make the financial errors of relying upon your former spouse to pay for your marital home.
While you may want to avoid dealing with separating your assets from your spouses, this is essential in a divorce proceeding. Leaving financial accounts and obligations as joint ones can create a number of devastating situations—for instance, your former spouse running up debt on credit cards or refusing to separate joint bank accounts. These situations can lead to long-term financial hardships, so our divorce attorneys strongly recommend moving forward with this difficult, but necessary step.
Another oversight that can lead to financial errors in a divorce is failing to remove your former spouse from a will or trust. During a marriage, many people will name a spouse the beneficiary of a will or trust. As it is likely that you do not want any money or property going to your former spouse after the divorce settles, it is encouraged to change your will or trust as soon as possible. Doing this simultaneously along with separating assets will avoid any mishap in the future which would give your former spouse the inheritance you wanted him or her to have while your marriage was thriving.
Taxes are another financial area that you may forget about during a divorce proceeding. In the Commonwealth of Massachusetts, it is important to know the difference between spousal support and child support payments. While you may be aware that child support may only be used for your children, and alimony may be used as spousal support, you may not be aware that alimony payments are taxable, while child support payments are not.
Also, do not forget that these payments often eventually end, and it is important that you are financially self-sufficient. For instance, child support payments may stop when a child turns 18 years old, or when a child completes their college education. Additionally, based on the type of alimony you receive, payments may end if you remarry or cohabitate with a new partner, or when you become financially stable. In the moment, you may forget that these support payments have an inevitable end date, so please be sure you are not fully reliant on these support payments.
Lastly, do not rely on your ex-spouse to help you with any of these payments. Even if your ex says he or she is going to be helpful with credit card payments, car loans, or other bills, remember that your name is on them and put yourself first. If your former spouse does not hold up his or her commitment, these costly financial errors can negatively affect your future.
If you have questions or concerns about issues involving finances, family law, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.
When it comes to emancipation of children for purposes of child support, does joining the Reserve Officer Training Corps (ROTC) in college equate to joining the Armed Forces? This was the issue addressed by the Massachusetts Appeals Court in a recent decision.
In Bobblis v. Costa, the parties were divorced in in 2000. The mother retained custody of the parties’ children, and the father agreed to pay child support. The separation agreement between the parties provided that the father would continue paying child support until the child reached the age of emancipation, which in this case would be 23 in the event the child was enrolled in a college or post-secondary program. The agreement further provided that the father would cease to pay child support in the event that the child entered the Armed Forces.
In August of 2012, one of the parties’ children enrolled in a college program. He later also joined the ROTC on campus, having been offered a scholarship beginning in his junior year. The child signed two documents: a cadet contract, which governed his conduct as an ROTC member during college, and an enlistment document, which governed his enlistment after college. After graduation, in 2016, he joined the Army as an officer.
Subsequently, the father claimed that the child joining ROTC was equivalent to the child to joining the Armed Forces, which served as an event of emancipation. The father filed for retroactive modification, seeking to end his child-support payments as of the child’s junior year of college, when he first enrolled. The probate and family court judge rejected the father’s argument, and the father appealed.
The Massachusetts Appeals Court looked closely at the two documents signed by the child, ultimately finding that they did not serve as an event of emancipation. The Court held that the documents did not indicate that the child entered the Armed Forces as a junior, but rather after he graduated.
“The contractual provisions of the enlistment document and cadet contract, as well as the statutory authority governing the ROTC program, demonstrate a clear distinction between participation in an ROTC program and military service under the ROTC program’s terms,” the Court noted. “As the trial judge noted, “[an] ROTC cadet is simply a scholarship student who receives some special training and has an obligation to perform military service or repay the funds received after participation in the program.” Importantly, the cadet contract and 10 U.S.C. §§ 2101 et seq. contemplate the possibility that a cadet may never enter active duty, for a number of reasons, and in such circumstances require the cadet to repay the Army for the scholarship.”
The Court also looked to other federal statutory and decisional law in contrasting ROTC from military service. As some examples, the Court explained, federal law specifically distinguishes between ROTC and armed services in providing life insurance and death benefits. The Court affirmed the decision to deny a retroactive modification of child support payments.
If you have questions or concerns about issues involving child support, modification, family law, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.
When a family is experiencing an emergency, a few things could be worse than being unable to stay in the comfort of one’s own home. Unfortunately, this is a reality for many families. Just recently, the Merrimack Valley experience devastating gas explosions which displaced many families.
Some families face this issue more permanently, however, as they struggle with homelessness: roughly 3500 people are currently served by the emergency assistance program of the Massachusetts Department of Housing and Community Development. But to what extent is that assistance available, particularly when it comes to families who fall under the Americans With Disabilities Act (ADA)? This was an issue addressed in a recent Supreme Judicial Court case, Garcia v. Department of Housing and Community Development.
The case involved a class action suit, brought by plaintiffs who contended that the department failed to promptly place the plaintiff families in shelters within 20 miles of their home communities, which would have better allowed the plaintiffs to be restored to those communities as soon as possible. The lawsuit also alleged that the department failed to comply with the ADA, among other federal and state laws, in regards to plaintiffs’ children with disabilities. The Court explained that in recent years, the Department greatly expanded the number of shelter beds provided across Massachusetts and used motel placements as a last resort only when overflow needs require it, or in limited exigent circumstances. According to the plaintiffs, this practice resulted in preventing them from receiving adequate accommodations for family members who were protected by the ADA.
At the trial level, the plaintiffs were certified as part of a class action suit by the judge. Before the completion of the discovery process, the plaintiffs asked the court for a class-wide preliminary injunction, ordering the Department to use motels to the extent necessary in order to comply with the 20-mile statutory requirement and provide adequate accommodations. The judge allowed the injunction in part, as applied to participants whose ADA accommodation requests had been approved by DHCD, but not yet implemented, and whose requests could be satisfied by a motel placement. The judge denied the injunction as to any other members of the class or claims.
The trial judge then concluded that DHCD likely had violated regulations under the ADA, requiring public entities to provide reasonable accommodations in order to avoid discrimination on the basis of disability and prohibiting public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability.
On appeal, the Supreme Judicial Court first discussed the preliminary injunction. “The judge presumed that if an [emergency assistance] participant had requested a transfer as part of an ADA accommodation, and [the Department] agreed to grant the transfer ‘when administratively feasible,’ then the shelter unit where the [emergency assistance] participant resides in the interim is ‘ADA noncompliant[,]’” the Court stated. “His conclusion, however, rested on the incorrect assumption that any delay in providing a reasonable accommodation is per se unlawful. The judge also concluded that DHCD’s motel policy likely violates two other regulations, which prohibit public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability…His conclusion with regard to these two regulations was premised on a factual predicate that is not supported by the record.”
The Court noted that what constitutes a “reasonable accommodation” is a factual question which must be decided on a case-by-case basis. Likewise, in this context, “[d]etermining whether unreasonable delay has occurred depends on the specific circumstances, including the length of delay, and whether the defendant has provided alternative accommodations in the interim,” the Court stated. It was error for the trial judge to rule that only an immediate transfer would constitute a reasonable accommodation, the Court held, especially on a limited preliminary record. The Court vacated the trial judge’s order to allow the injunction.
If you have questions or concerns about issues involving family law, domestic relations, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.
As divorce attorneys, we often see litigation and settlement questions regarding individual retirement accounts (IRAs). A pension plan, IRA, or other type of account is considered marital property for purposes of distribution during a divorce.
New questions may arise, however, where unmarried persons engaged in a romantic partnership seek to designate each other as beneficiaries of an IRA. In a recent opinion, the Massachusetts Appeals Court addressed an issue concerning an IRA beneficiary who was the former romantic partner of the decedent, whose IRA account was in question.
In UBS Financial Services, Inc. v. Aliberti, three different IRA accounts were in question, in the amounts of $31,000, $18,000, and $276,000, respectively. The account holder originally designated his romantic partner (party to the suit) as beneficiary of all three accounts. In November 2013, the account holder expressed a desire to name additional beneficiaries, and he sent back completed and signed designation update forms for the two smaller accounts, but not the third one. The updated forms designated an additional primary beneficiary and two additional contingent beneficiaries, but they also indicated that each beneficiary should receive a 25% share of the account proceeds. UBS asked the account holder to clarify whether he meant to list each of the four as primary beneficiaries. The account holder did not respond and unexpectedly died the following month. The romantic partner then contacted the account administrator regarding each of the IRA accounts and requested that all funds be distributed to her as the sole beneficiary.
The administrator of the accounts happened to be the decedent’s former sister-in-law, who worked at UBS as a financial advisor. Although the beneficiary reached out to the administrator to check on the status of her claim, the administrator never provided a status update. Instead, she sent to the beneficiary several text messages with responses such as: “How big of a whore are you,” “You are the most worst piece of filth I have ever encountered,” and, “Are you so eager to grab the money. Did you even notice his death certificate is wrong? Oh no you were too busy ransacking.”
The Court agreed with the beneficiary that UBS unlawfully withheld from her the proceeds from the largest IRA account, for which the Court noted that UBS never received any documentation naming anyone other than the romantic partner as beneficiary. “ Considering the time value of money and the fact that no investment decisions were made regarding the largest IRA for over two and one-half years, the facts alleged in the pleadings support the inference that [the beneficiary] likely was damaged from the delay in distributing those funds,” the Appeals Court held. Accordingly, the Court held that the beneficiary properly pleaded her breach of contract claims.
Additionally, the Court held that the beneficiary also properly pleaded claims for breach of fiduciary duty, holding that a fiduciary relationship existed between the decedent and UBS. “As a fiduciary, UBS was obligated to administer the IRAs for the exclusive benefit of [the beneficiary] (assuming the truth of [her] allegation that she was the only proper beneficiary) while acting fairly and in her best interests,” the Court stated, holding that UBS was required to timely distribute the IRA proceeds to the beneficiary and to keep her otherwise informed of their status.
The Appeals Court then held that the beneficiary’s claims for infliction of emotional distress were not sufficient and should be dismissed. On the issue of violation of the Massachusetts consumer protection statutes, however, the Court again held for the beneficiary. “Based on the pleadings here, UBS … (1) denied Aliberti the funds to which she was entitled; (2) for multiple years; (3) without good reason; (4) until she was forced to take legal action and incur unnecessary costs and fees,” the Court noted, holding that those actions constituted a violation of Massachusetts General Laws chapter 93A.
If you have questions or concerns about issues involving family law, domestic relations, or other legal issues, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.