Video or Phone Testimony in Divorce Cases: New Case Law

Should a party in a family law proceeding, who is unable to testify at trial or a hearing in person, be allowed to testify through the use of video or telephone? This was the issue in a recent case addressed by the Massachusetts Appeals Court.

In Bonaparte v. Devoti, the parties were married in 2005 in Italy. The husband lived in New Jersey, while the wife was an Italian national. In 2006, the wife gave birth to the couple’s son in Italy; she continued to live there, while the husband continued to live in New Jersey but visited his wife and son often. By 2009, the parties moved to Cape Cod, where they lives together in their marital home until 2011, when the wife and child returned to Italy. The wife was responsible for her own expenses and received little help from the husband until 2015, when he began sending her $100-150 per week.

In 2015, the husband filed for divorce. Nine days before the trial, the wife filed a motion seeking permission to testify via telephone or video. She explained that she was unable to enter the United States due to an irregularity with her permanent resident status. She also asserted that the child’s passport was expired and could not be renewed until the husband signed “the appropriate papers with the Italian Consulate.”

The trial judge denied the wife’s requests, stating that she had not properly sought a continuance. The judge entered a divorce judgment which closely resembled the proposed judgment submitted by the husband. The judge declined the wife’s request to deviate upward from the child support guidelines, and instead deviated downward—the judge noted the husband’s travel expenses as the reason.

The wife appealed, claiming that her due process rights were violated, and that denying her the opportunity to testify electronically was an abuse of discretion. The Appeals Court agreed. “It is apparent the judge viewed the wife’s motion to testify by electronic means as untimely, despite that there is no specific time frame for filing such a motion, under rule 30A(k) or otherwise,” the Court explained. “In focusing on audiovisual depositions pursuant to rule 30A, the judge appeared to overlook other available options to facilitate the wife’s participation in the trial, including live testimony via telephone or video, as requested by the wife.”

In doing so, the Court said, the trial judge failed to consider other relevant factors, such as the potential prejudice to the wife, and most importantly, the potential impact on the child’s best interests. “The judge’s findings contain minimal discussion of the child’s needs, despite those needs being a mandatory factor for the judge to consider under G. L. c. 208, § 34. The wife sought to introduce, through testimony, evidence regarding the child’s needs, including the various expenses she regularly incurs in connection with the child’s developmental and learning disabilities.”

Because the wife was not afforded the opportunity to present information regarding the mandatory factors, the Appeals Court held that the matter must be remanded to the trial court. “Here, the risk that the child may be receiving less support than necessary due to the wife’s inability to testify is too great to ignore. In light of the judge’s failure to consider the interests of the wife and the child, we conclude the denial of the wife’s request to testify by electronic means was an abuse of discretion.”

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, 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.

Can You Appeal a Temporary Order During Divorce?

If you have issues in your case that require an order sooner than later, filing a motion for temporary orders and having it heard by the judge may be the solution. While trial in a divorce case doesn’t ordinarily occur until the case has been going on for 12 to 15 months, you can get into court for temporary orders in the first few months. It typically makes the most sense to ask for temporary orders in cases with custody and support issues, when real estate mush be sold, or when there’s a need for an order for one party to vacate the marital home. But, what to do if the judge rules incorrectly at the temporary order hearing?

Joe and Jane are getting divorced. During the proceedings, the judge issued a couple of temporary orders with which the parties disagreed. Joe took exception to the probate judge’s temporary abuse prevention order against him. Likewise, Sam objected to the probate judge’s allowance of Cindy’s motion that he vacate the marital home during their divorce proceedings.

Are temporary orders appealable before the parties are granted a final judgment of divorce?

Both the Appeals Court and Supreme Judicial Court may review orders by the Probate and Family Court. The appellate process is costly, complex and time-consuming, so alternatives such as asking the probate judge to reconsider an order or seeking a modification of an order should be initial considerations.

A spouse aggrieved by a probate court order may appeal the order to the Appeals Court or SJC within 30 days of its entry.[1] Interim or temporary decisions by a probate court judge are called “interlocutory orders” and do not constitute a final resolution of the parties’ divorce proceedings. Under Massachusetts law, a party aggrieved by an interlocutory order of a probate court judge may seek relief from the order within 30 days of its entry before a single justice of the appellate court.[2] Further appeal of a single justice’s ruling may be sought before the full Appeals Court or the Supreme Judicial Court.

Because interlocutory orders can be modified during the pendency of a divorce case, appellate courts are hesitant to hear reviews of such orders. Motions for temporary support, orders to vacate the marital home and discovery-related rulings, consequently, are usually viewed as unappealable until a final judgment of divorce issues. Limiting appeals of temporary orders is justified, the Supreme Judicial Court has held, because it prevents a party from ongoing disruption of proceedings through appellate review of issues that prove unimportant in the long run.[3] Interlocutory judgments not appealed from are open to revision on appeals from final judgments only if the Appeals Court of Supreme Judicial Court deem the final judgments were erroneously affected by the interim decrees.[4]

A party requesting an appellate court to review an interlocutory order must demonstrate that the consequences of applying the order would be harmful and could not be remedied when the proceedings are over or through a regular appeal.[5] This is referred to as the present execution doctrine.

Appellate courts hearing interlocutory order appeals do so without the benefit of the record of lower court proceedings, so the appellant petitioning for review must provide:

  • a request for review giving the date and nature of the order;
  • a statement of issues;
  • a statement of relief requested; and
  • a copy of the order at issue.

Additionally, the petition to a single justice requires a maximum 15-page memorandum of law that includes portions of the records pinpointing the issues the petitioner wants the justice to review.

Want to speak with a divorce lawyer about your case? Schedule a free consultation with our office and you’ll learn how the law applies to your facts and circumstances. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] M.G.L. c.215, §9.

[2] M.G.L. c. 231, §118.

[3] Borman v. Borman, 378 Mass. 775, 779 (1979).

[4] M.G.L. c.215, §14.

[5] Maddocks v. Ricker, 403 Mass. 592, 598 (1988); Metzler v. Lanoue, 62 Mas. App. Ct. 655 (2004).

Preparing to Pay for College Expenses: A Primer for Co-Parents

Planning for college expenses is hard enough, but it gets even more challenging for those who co-parent. Among other expenses related to the maintenance and welfare of a child, college costs are sometimes ordered by the court to be paid by a party during a divorce or child support proceeding.

In a related article, we wrote that in Massachusetts, a party may be required to continue paying child support when his or her child heads off to college. Under Massachusetts General Laws Chapter 208, Section 28, parents have an ongoing duty to support a child who is at least 18 but not yet 21 if the child maintains a legal domicile with a parent and is principally dependent upon that parent for support.  Even after a child turns 21, if the child has a legal domicile with a parent, remains principally dependent upon a parent for support and is enrolled in an educational program, a parent may be ordered to pay support until the age of 23.

And as we explained in a recent blog post, the 2017 Massachusetts Child Support Guidelines, which were recently passed and become effective on September 15, 2017, provided additional guidelines regarding college cost contributions. On the issue of contributing towards college expenses, the 2017 Guidelines adopts a position that many Probate & Family Court judges have articulated. This issue remains as not presumptive, but reincorporates the factors of “the cost of post-secondary education” and “the availability of financial aid,” among others, in considering whether to order a parent to contribute towards the cost of college.

The Guidelines establish a presumptive cap on the contribution to pay for college of 50% of the cost on undergraduate in-state costs of the University of Massachusetts Amherst, including fees, tuition, and room and board. This limit can be exceeded if “the Court enters written findings that a parent has the ability to pay a higher amount.” Lastly, the 2017 Guidelines continues the 2013 Guidelines’ consideration of the amount of a child support order if also ordering a parent or both parents to contribute towards the cost of college, and vice versa.

What does all of this mean if you are a parent (whether custodial or non-custodial, whether payor or payee) of a college-aged or soon-to-be-college-aged child? Simply put, it is essential that you and your co-parent are on the same page and that you plan early for college expenses. Turning to a trusted professional may be very helpful.

An independent educational consultant who knows the college process and the steps to complete the process may help with the added stress between two divided parents,” says Rebekah Elmore, independent educational consultant and founder of Peak College Consulting. “ A professional IEC knows how to deal with the complexity of family dynamics and works closely with everyone to make the college process as stress free as possible. By hiring a college consultant, parents can step back and let the consultant and student work through the steps without the possible stress the divorce or separation has on the relationship. Many of the students that I work with from divorced families like the fact that they don’t have to pick one parent over another. Keeping both parents informed of where we are in the process and what the overarching plan looks like, keeps them both equally informed and equally a part of this amazing journey.”

Another consideration comes up as to the amount of college expenses to be paid by the non-custodial party. Just what is reasonable? When must one pay for an out-of-state school, or a more expensive private school? These questions frequently arise, and many factors are taken into consideration when answering them.

One case illustrates this point. In that case, the parties agreed that they would split college expenses evenly and that they would mutually select the college for their daughter to attend; however, the daughter and mother chose her college without input from the father. 1 When the father balked at paying $17,000 per year for college, the mother instituted contempt proceedings against him.

A Probate and Family Court judge eventually found that the mother and the child had selected a school “financially out of reach” for the father and ordered him to pay approximately one-quarter of the expenses of the private college. On appeal, however, the Appeals Court reversed and remanded the case, holding that the trial judge failed to consider all relevant factors in reaching her decision. “It was appropriate for the judge to consider whether the cost of Roger Williams was out of reach for [the father]. However, other important equitable factors were not addressed,” the Court held. “From this record, we have very limited information about [the daughter’s] scholastic aptitude, course of study, or any benefits of attending Roger Williams or any alternate schools, or how they might meet [the daughter’s] goals. In sum, more is required to satisfy the requirement that the judge give appropriate consideration to the parties’ intentions as expressed in the college expense provisions.” 2

It should also be noted that several Massachusetts cases have weighed in regarding the timing of support orders for college expenses. In several cases, the Appeals Court has stated that determination of college expenses (and their shares by the parties) was premature where the minor children were not yet nearing college, absent some special circumstances. 2

If you have any questions about divorce or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

 

 

1 Mandel v. Mandel, 74 Mass. App. Ct. 348 (2009).

2 Id., at 357.

3 See, for example, Braun v. Braun, 68 Mass. App. Ct. 846 (2007) and Ketterle v. Ketterle, 61 Mass. App. Ct. 758 (2004).

Challenges Faced by Grandparents Seeking Custody or Visitation

Forget the sappy Hallmark ads depicting grandparental bliss. Forget the press about the important relationship forged between grandparents and grandchildren. When it comes to visitation, grandparents using the courts to assert their rights to see their grandkids face an uphill battle. Count Massachusetts among roughly 20 states with restrictive visitation statutes.

The notion that parents have the right to custody, control and care of their offspring is well-established in law. In a 2000 case[1], the U.S. Supreme Court found a “presumption that a fit parent will act in the best interest of his or her child” regarding whether grandparent visitation should occur.

Under Massachusetts law[2], grandparents may petition a probate court for visitation rights with their unmarried minor grandchild if that minor child’s parents:

  • are divorced;
  • married but living apart;
  • under a temporary order or judgment of separate support;
  • are one or both deceased; or
  • bore the child out of wedlock and paternity has been adjudicated or acknowledged in writing and the parents do not reside together.

The probate court may grant “reasonable visitation rights” to the grandparents, even if the minor child’s parent(s) object, if the court deems, in writing, that doing so serves the minor child’s “best interest.” The statute, however, offers no insights into gauging “best interest.” Moreover, adoption of the minor child by anyone other than a stepparent precludes granting grandparent visitation rights or terminates any such rights that were in effect pre-adoption.

The seminal Massachusetts case[3] on this subject involved a maternal grandfather who sought visitation of the minor child of unmarried parents where paternity had been adjudicated. The mother successfully argued in probate court that the visitation statute unconstitutionally violated her due process rights. The Supreme Judicial Court reversed the judge’s dismissal of the grandfather’s claim and upheld the statute’s validity, but imposed on grandparents the burden of proving “failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare.”

The high degree of risk to a minor necessary to rebut the presumption favoring parents deciding their child’s best interest was demonstrated in another Massachusetts case.[4] In that case, the Appeals Court reversed the dismissal of a maternal grandmother’s visitation complaint where the parents didn’t cohabit. The parents had cut off contact between the child and the grandmother, who had previously obtained a restraining order against the father for alleged abusive and harassing phone calls. Grandparent visitation was warranted, the Appeals Court concluded, to deter the possibility of the minor facing isolation from family and physical abuse.

A parent’s death or incarceration often underlies visitation disputes. Courts weighing visitation examine factors, including the preexisting relationship between the petitioner and grandchild, the child’s emotional needs, and the danger of physical or emotional abuse to determine whether the grandparent’s absence would significantly affect the child.

A visitation petition[5] should detail the nature of the grandparent’s relationship with the minor, describe present access to the grandchild, how curbing or denying access significantly harms the minor, and propose a visitation schedule. The minor’s parents must be informed of the petition, which often triggers a court appointment of a guardian ad litem to investigate and offer a recommendation to the court.

If parents abdicate their child-rearing obligations, a grandparent may seek legal custody. No specific statute provides for grandparents to sue for custody. Unless the parents consent, are deemed unfit, or are otherwise unavailable to provide care, grandparents will be hard-pressed to obtain guardianship of their minor grandchildren. Besides foster care and adoption, the Commonwealth does permit a parent to sign a revocable Caregiver Authorization Affidavit that gives a grandparent a concurrent voice with the parent regarding decisions affecting the minor’s health care and education.

 

[1] Troxel v. Granville, 530 U.S. 57 (2000).

[2] M.G.L. c. 119, §39D

[3] Blixt v. Blixt, 437 Mass. 649 (2002)

[4] Sher v. Desmond, 70 Mass. App. Ct. 270 (2007)

[5] Affidavit of Care and Custody

Prenuptial Agreements and Fairness

In Massachusetts family law in general, the importance of equity and fairness is of utmost concern. The court, when reviewing prenuptial agreements, will seek to ensure that the agreement is fair and reasonable and that its enforcement does not go against countervailing equities.

The Agreement Must Be Fair and Reasonable at the Time of Signing

In one case, the court chose to invalidate the agreement in part due to its lack of fairness. Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). The court stated, quoting the trial judge:

“[the father] had over $7.5 [m]illion in equity when the agreement was signed and [the mother] had $2[,]500.00 in equity. The provision for [the mother] to receive, upon a divorce, a lump s[um] payment of alimony at the rate [of] $5,000.00 for each full year of marriage is well below fair. When her lawyer tried to negotiate it up a little, [the father] said no. He negotiated himself out of a fair agreement. The property division agreement is also unfair when viewed from the date of signing. The agreement gives the wife one-half of the increase in the equity, if any, in the marital home from the date of the agreement less mortgages and encumbrances. If the parties lived in a rental home or an apartment the wife would receive no assets. If the equity in the home did not go up, the wife would receive no assets. If the husband chose to encumber the home to the maximum extent possible, the wife would receive no assets.” Schechter, at 259.

Of particular importance to this issue is the 2009 case of DeMatteo v. DeMatteo, in which the Supreme Judicial Court enforced an antenuptial agreement which had been contested by the wife during the divorce. DeMatteo v. DeMatteo, 436 Mass. 18 (2002). In that case, the husband (whose net worth was between $108-$133 million) presented the wife with an antenuptial agreement, providing full written disclosure of his assets, including tax returns. Both parties retained counsel, and negotiations followed.

The agreement, drafted by the husband’s attorney, provided that in the event of a divorce, the wife would receive the marital home free of encumbrance, the automobile that she was then driving, and an annual payment from the husband of $25,000 until her death or remarriage. The wife initially rejected the agreement and asked for the husband to increase the annual payments to the wife to $35,000, adjusted annually for increases in the cost of living. She also asked for medical insurance, life insurance, and the lesser of twenty per cent of the husband’s estate or $5 million. Upon further negotiations, the wife dropped that last demand, but the annual payments were increased to $35,000 and medical insurance was also provided for the wife in the final antenuptial agreement.

The high court in DeMatteo spent particular effort on discussing the requirement of “fair and reasonable” in antenuptial agreements. The court explained this requirement as follows:

To meet the requirement of “fair and reasonable,” at the time of execution an antenuptial agreement need not approximate an alimony award and property division ruling a judge would be required to make under G.L. c. 208, § 34. Judged by those statutory requirements, the parties’ right to settle their assets as they wish would be meaningless. The relinquishment of claims to the existing assets of a future spouse, even if those assets are substantial, also does not necessarily render an antenuptial agreement invalid. An antenuptial agreement may be most desired when a wealthy individual contemplating marriage seeks to ensure that, if the marriage is not successful, his or her own assets will not accrue to the spouse. Many valid agreements may be one sided, and a contesting party may have considerably fewer assets and enjoy a far different lifestyle after divorce than he or she may enjoy during the marriage. It is only where the contesting party is essentially stripped of substantially all marital interests that a judge may determine that an antenuptial agreement is not “fair and reasonable” and therefore not valid. DeMatteo, at 31.

The Agreement Must Also Be Fair and Reasonable at the Time of Divorce 

In addition to the validity of the agreement, the court will also consider whether the agreement is enforceable at the time of divorce.

The seminal recent case on this doctrine is DeMatteo v. DeMatteo, in which the trial court invalidated an antenuptial agreement signed by the parties. The Supreme Judicial Court ultimately reversed, holding that the agreement was both valid at the time of execution and enforceable at the time of the divorce. In a very important paragraph regarding antenuptial agreements and their enforcement, the high court also clarified the meaning and application of the Second Look Doctrine in Massachusetts as follows:

“In Massachusetts, a valid antenuptial agreement is not unenforceable at the time of divorce merely because its enforcement results in property division or an award of support that a judge might not order under G.L. c. 208, § 34, or because it is one sided. Moreover, it is not appropriate for a judge to use the same test of enforceability of an antenuptial agreement as she would for the enforceability of a separation agreement, for the reasons explained earlier. Rather, we follow the majority of courts and require that a judge may not relieve the parties from the provisions of a valid agreement unless, due to circumstances occurring during the course of the marriage, enforcement of the agreement would leave the contesting spouse “without sufficient property, maintenance, or appropriate employment to support” herself. ..Such circumstances might include, for example, the unanticipated mental or physical deterioration of the contesting party (here the antenuptial agreement provided for full health insurance for the wife), or the erosion by inflation of agreed-on support payments to such a degree as to nullify the obvious intention of the parties at the time of the agreement’s execution (here the support payments agreed to by the parties contained an adjustment for cost of living, which the wife does not claim is inadequate). The “second look” at an agreement is to ensure that the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution.” DeMatteo, at 36-37.

In a subsequent case, however, the appeals court upheld a trial court’s invalidation of the antenuptial agreement based on the Second Look Doctrine, as enforcing the agreement would have left the wife with negative equity in the marital home. Kelcourse v. Kelcourse, 87 Mass.App.Ct. 33 (2015). In that case, the husband had considerable assets, including a commercial marina, while the wife had no appreciable assets at the time of signing. The agreement provided for each party to retain his or her assets, and it provided for the wife to take the marital home in the case of a divorce. During the marriage, the parties bought a fixer-upper home together, which they inhabited as their principal residence, and which the husband intended to renovate. By the time of the divorce, the property had further deteriorated, and the husband had moved out.

The court noted, quoting DeMatteo:

“A “second look” at the agreement during divorce proceedings ensures that it “has the same vitality at the time of the divorce that the parties intended at the time of [the agreement’s] execution.” … A prenuptial agreement will not be enforced if enforcement, “due to circumstances occurring during the course of the marriage, … would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.” Ibid., quoting from 1 H.H. Clark, Jr., Domestic Relations in the United States § 1.9 (2d ed. 1987). The Probate and Family Court judge found that the prenuptial agreement was valid when entered into by the parties, but upon taking a second look, the judge found that it could not be enforced. She determined that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated when they executed the agreement, and that enforcement of the agreement would be unconscionable.” Kelcourse, at 35.

If you have any questions regarding prenuptial agreements or family law in general, our experienced family law attorneys are here to help. Schedule a free consultation with our firm, or call our offices at any time.

 

 

Open Adoption Agreements and Enforceability: New Case Law

In a recent case, of interest to adoption attorneys and parties alike, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.

In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. As family law lawyers, it’s not uncommon to see substance abuse and mental health issues transcend from biological parents to adoptive children. This particular adoptive child had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.

The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.

Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2  This guidance is instructive to an adoption attorney considering the route of open adoption for his or her client.

In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.

In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.

At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare. Experienced adoption attorneys would clearly have an valid argument on either side of that issue.

The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.

The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3

The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.

“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”

If you have any questions about adoption or family law generally, our experienced family law attorneys are here to help. Call our office or schedule a free consultation today.

 

1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).

2 Id., at 4.

3 Id., at 8.