Protections of the Anti-SLAPP Statute Apply to Recipients of Restraining Orders

Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.

In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. The ex-husband was prohibited from contacting the ex-wife in any manner, with an exception carved out for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband, and he was charged with criminally violating the order.

The charges were later dismissed, as the court found no evidence that the restraining order was violated. The ex-husband defended by noting that his mailing to the ex-wife (the mailing which was the basis of the purported violation) actually contained court filings, which were covered under the exception to the restraining order. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official and was told by the clerk that no such filings existed. The investigating officer also called and was told the same thing.

As it turned out, the ex-husband did file those papers with the court, and the filings were misplaced by court personnel and not docketed until after these events transpired. As a result, the criminal charges were filed when no violation could be proven.

After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife, claiming that she caused him to be arrested without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute, claiming that the lawsuit was based entirely on her protected petitioning activity.

The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the ex-wife’s activities in reporting the suspected criminal activity to police was protected.

“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”

If you have any questions about issues of divorce, custody, or support, 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.

Spouse’s Waiver of Estate Claim by Agreement

Tim and Terri are getting married, and Terri has two children from a previous marriage. Terri would like her estate, upon her death, to pass to her kids, rather than to Tim and his family. She wants to know whether she and Tim could sign a waiver or contract to this effect.

Tim and Terri may certainly sign an antenuptial (also known as prenuptial) agreement, by which they waive their respective interests in each other’s estates upon death. The Massachusetts courts have long recognized this type of waiver. In addition, an applicable Massachusetts statute regarding antenuptial agreements notes the following:

At any time before marriage, the parties may use a waiver. They make make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property, and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.

Generally, in order for a prenuptial agreement to be considered valid and enforceable, it must be in writing; signed by the parties voluntarily under no signs of duress or fraud; made after full disclosure of the parties’ assets; conscionable to enforce, as the agreement is not against countervailing equities; and the parties don’t relieve themselves of their legal obligations during the marriage through the agreement.

In a 2009 case, the Appeals Court discussed the claim of a widow who sued the executor of her husband’s estate after signing a waiver. She claimed that, even though she signed a prenuptial agreement in which she waived any claims against her husband’s estate, the agreement was invalid, and that she was unduly influenced in signing the agreement. The widow claimed that because her husband failed to list some of the mortgages on his properties, the agreement was invalid due to lack of full disclosure; also, she claimed that she had inadequate legal representation due to the “inexperience” of her attorney, whom she had chosen herself.

The Court upheld the agreement and held that it made fair and reasonable provisions to the widow. The Court also noted that the husband’s failure to list his mortgage liabilities did not materially affect the widow’s decision to sign the waiver or the agreement—in fact, it played in her favor as applied to determining her husband’s net worth. The Court upheld the agreement.

Further, the widow claimed that her husband’s will ought to be invalidated, as he had promised her multiple provisions from his estate, yet left her only a lump sum cash devise. She claimed that the husband was unduly influenced by his attorney in making his will, and that the will was contrary to the husband’s intentions for distributing his property after his death. Moreover, she argued “that at the time she signed the antenuptial agreement, she and the decedent had a confidential relationship and that he violated that relationship with his fraudulent assurances that the agreement pertained only to divorce and that he would provide for her in his will.”

“We find nothing in the record before us to warrant or to justify disturbing the judge’s conclusion that the ‘[p]laintiff introduced no credible evidence that when the [d]ecedent executed the [w]ill he was not in good health, lacked free will to execute the [w]ill, or did not make a natural disposition of his assets[,]’” the Court explained. “It follows from our conclusion that by entering into the valid antenuptial agreement, the plaintiff waived any right that she might otherwise have had as the decedent’s widow pursuant to [the applicable statute.]”

If you have any questions about issues of divorce, custody, or support, 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] Mass. Gen. Laws, ch. 209 s. 25

[2] Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 (2009).

[3] Id., at 116.

[4] Id., at 115.

[5] Id., at 117.

Appointment of Representation for Indigent Guardians – Recent Case Law

Is an indigent guardian or de facto parent whose guardianship of a child is subject to removal entitled to legal counsel? This was the issue addressed in a recent decision of the Massachusetts Supreme Judicial Court.

Guardianship of K.N. addressed the case of a child, born to a 15-year-old mother, whose maternal grandmother was granted guardianship of the child. Ten years later, the mother of the child filed a petition for removal of the child from the grandmother’s care. The mother also filed an emergency motion to return the child to her, which was granted. The grandmother filed a motion the following day, seeking the appointment of counsel; that motion was denied.

The grandmother filed a motion to reconsider, having retained counsel, but her motion was dismissed due to a procedural error, and her counsel then withdrew. The child eventually appealed, through counsel, claiming that the guardian’s procedural due process rights required that she be allowed to have counsel appointed in order to represent her interests. Alternatively, the child argued, the equitable powers which reside with the Probate and Family Court allowed the Court to appoint counsel for the guardian.

“We conclude that guardians who have established a de facto parent relationship with their wards do not have a liberty interest in that relationship such that they have a procedural due process right to counsel,” the Court noted. “We hold, however, that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child.” As with all issues involving the custody of children, the best interests of the child will be the governing factor here.

If you have any questions about issues of divorce, custody, or support, 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] Guardianship of K.N., 476 Mass. 762 (2017).

[2] Id., at 762.

Granting Property While Also Reserving a Power of Appointment Recent Case Law

In a recent case, the Massachusetts Appeals Court reviewed whether a testator may grant property while reserving to herself a power of appointment over the same property. Skye v. Hession involved a testator who granted her home to her three daughters and her son-in-law in equal shares, while reserving for herself a life estate, which allowed her to live in the home while she was alive. The testator’s intent in doing this was to avoid certain “spend-down” provisions or lien provisions of MassHealth, the Massachusetts Medicaid program, which currently has a “look-back” period of five years.

In the deed, the testator also reserved for herself a special power of appointment, which allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. This option was exercisable by either deed or will.

Two years later, the testator executed a new will, whereby she decided that her daughters and son-in-law should receive unequal shares of her property. She left one daughter (the plaintiff in the case) 5% of the property, reducing her share by exercising her power of appointment. The daughter sued, claiming that the power of appointment in the original deed was improper and void.

Ultimately, the Appeals Court sided with the defendants but acknowledged the plaintiff’s argument regarding the invalidity of the power of appointment. “We acknowledge the existence of some apparent tension between the grant of the remainder interests and the reservation of the power,” the Court noted. “The former granted the parties a present ownership interest, but the latter permitted Margaret to effectively terminate or alter those interests by exercise of the special power of appointment.”

The Court explained that interests are considered repugnant to one another where a grant of property includes two different conditions, the fulfillment of one of which breaching the other. However, the Court explained, that was not the case here: because the testator reserved for herself the power of appointment, she did not grant to the grantees a fee simple absolute—a grant with no limitations. Instead, she granted a fee simple defeasible, which is a lesser estate.

“Because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation, and they were in the nature of fees simple defeasible,” the Court held. “Had the deed merely reserved to [the testator] a life estate, this, of course, would have been the case. Here, the additional reservation of the power of appointment resulted in a grant of a lesser estate.”

If you have any questions about issues of divorce, custody, or support, 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.

Id., at 5-6.
Id., at 8.
Id., at 7.

Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye one two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

If you have any questions about issues of divorce, custody, or support, 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] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).

Affidavits of Care and Custody in Massachusetts

What is an affidavit of care and custody, and when does a party need to file one?

The short answer to the latter part of that question: a party needs to file an affidavit of care and custody whenever there is a proceeding involving the care or custody of a child. In addition to filing with the court, the party must also provide a copy of the affidavit to all other parties involved.

The affidavit must include relevant information regarding care and custody of the child or children involved. Per Massachusetts General Laws, chapter 209b, section 3, this includes the following:

• The present address of residence of the child and each address at which the child has resided during the past two years;
• The names and addresses of any party to any custody proceedings involving the child in the past two years; and
• Information regarding whether the party has participated in any prior custody proceeding involving the child, whether in Massachusetts or in any other jurisdiction; the capacity in which the party has participated; and copies of any pleadings or determinations which were involved.

The affidavit must be written in a form which is in conformance with the relevant court rules. In addition, it must be revised if any new relevant information is discovered regarding care and custody. Unless good cause is shown and an extension is granted by the court, failure to file this affidavit may result in a party being sanctioned by the court.

What Are the Discretionary Factors in Property Assignment, and How Do They Work?

Sam and Sally are going through a divorce. For years, Sam worked outside of the home while Sally stayed home to care for the couple’s children. Sam was responsible for the acquisition of most of the couple’s property. He now wonders whether the court will consider his contributions in deciding how to divide marital property. Conversely, Sally wonders if her contributions as a homemaker will be considered by the court in property assignment.

In short, both parties’ individual contributions will be considered in this situation. The Massachusetts Probate and Family Courts use a process called equitable distribution for property assignment in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how best to divide marital property in the fairest manner in each particular case. There are many factors that the court considers as part of this process, most of them mandatory for the court’s consideration and analysis.

In addition to the mandatory factors, the court may also consider some discretionary factors:

• the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and
• the contribution of each of the parties as a homemaker to the family unit.

The fact that these factors are discretionary means, of course, that the court does not have to take them into consideration. However, these factors are still important and cannot be ignored by the court in the case of property assignment.

In one case, where the husband was responsible for the acquisition of most of the parties’ property, the Supreme Judicial Court held that the trial judge property considered the parties’ contributions and the sources of the marital property in property assignment. The Court noted: “an equitable, rather than an equal, division of property is the ultimate goal…To that end, a judge is required to consider the respective contributions of the parties to the marital partnership, and a disparity in contributions may be reflected in the distribution of the inherited and gifted assets. A judge may also consider, as the judge clearly did in this case, the source of the assets, each parties’ role in managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property. In light of these considerations, and in light of her conclusion that the husband’s contributions to the marital estate greatly exceeded those of his wife, the judge’s determination to award the inherited and gifted assets to the husband, while awarding the wife the bulk of the jointly produced assets, was well within her discretion.”

If you have any questions about issues of divorce, custody, or support, 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.

Adoption Cases: When is Parental Consent Needed, and When Might the Court Waive It?

Typically, written consent of certain parties is required before an adoption may take place; the requirements are set forth in Massachusetts General Laws, chapter 210, section 2. If the child being adopted is over the age of 12, consent by the child is needed. If the person being adopted is an adult who is married, consent of the person’s spouse is also needed.
In addition, written consent of the “lawful parents” must also be obtained before the adoption may go forward. If the child was born during a valid marriage, both biological parents must provide consent. If the child was born out of wedlock, only the consent of the mother is required; the father is entitled to notice of the adoption proceedings and may request custody, so long as he was adjudicated the father, or has filed a parental responsibility form with the Department of Children and Families.

According to the statute, the form of written consent must take the following shape:

I, as the (relationship) of (name of child), age , of the sex , born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).

I UNDERSTAND THAT THIS SURRENDER IS FINAL AND CANNOT BE REVOKED.

Under some circumstances, however, the courts may dispense with parental consent and allow an adoption to proceed without it. As with all issues dealing with custody, the court will use the “best interest of the child” standard: the court may dispense with parental consent only where it is in the best interests of the child to do so. According to Massachusetts General Laws, chapter 210, section 3, there are many statutory factors which the court will consider in determining parental fitness. Some of them include:

• Abandonment of the child;
• Severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
• Willful failure to visit the child where the child is not within the parent’s custody;
• A prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child
based on such prior pattern or assault; and many others.

In one important case, the Supreme Judicial Court considered whether the trial judge erred in holding that a mother was proven by clear and convincing evidence to be an unfit parent, dispensing with the requirement of parental consent in the adoption of her two children. “The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary’s long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, serious parental neglect, abuse and misconduct, made her an unfit parent,” the Court noted. “The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she ‘had made no progress in ways that would assist her in getting her children back.’”

If you have any questions about issues of divorce, custody, or support, 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] Mass. Gen. Laws, ch. 210, s. 2.

[2] Mass. Gen. Laws, ch. 210, s. 3.

[3] Adoption of Georgia, 433 Mass. 62 (2000).

[4] Id., at 66.

Desertion as Grounds for Divorce

Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

If you have any questions about issues of divorce, custody, or support, 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.

Future Income and Property Acquisition in Dividing Marital Property

Zelda and Zack have been married for ten years and are undergoing a divorce. Zack recently found out two things: first, that Zelda has won a professional award which will likely allow her to increase her income substantially in the future; and second, that Zelda is likely to come into a large inheritance from her mother, of which Zack had no idea. Zack wants to know if the Massachusetts Family Law Court is likely to take these two things into consideration when dividing the marital property and ordering alimony.

The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how to best divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process. Massachusetts General Laws, chapter 208, section 34 defines the factors the Court will use in determining how marital property should be divided. Under the statute, the Court may include in its analysis the opportunity for the parties to acquire future income and property.

The opportunity to acquire future income and property is a comprehensive factor: it includes the likelihood of earning future salaries, bonuses, royalties, and other sources of income. It also includes family trusts, inheritances, and other property which may befall one of the parties in the future.

In one Massachusetts case, the Court considered the effect of the husband’s Nobel prize on his future acquisition of assets. As the Appeals Court explained upon appeal:

In explaining her division of assets, the judge relied “heavily” upon the statutory factor of the “ability of the parties to acquire future income and assets.” The judge concluded that the husband’s ability is excellent, as he retains a retirement asset in which his employer “matches his future contributions dollar for dollar,” and his “receipt of the Nobel prize opens wide new horizons for his income potential.” The wife’s future prospects were found to be “paltry and stagnant by comparison.” The judge found that the wife had “no likelihood of acquiring significant future assets or increasing her earned income.”

The Appeals Court affirmed, holding that the trial court properly considered the above factors in computing the parties’ opportunity to acquire future income. “The husband’s and wife’s ability to acquire future income and assets are therefore strikingly different and justify the judge’s heavy reliance on this factor,” the Court noted.

In the case of future property acquisition, however, the Court will carefully consider whether there is a realistic prospect of receiving the future income or property, or whether future acquisition is merely expected. If it’s the latter, the Court may not include it in its consideration of assets. In one case, the courts considered a husband’s future interests in many different family trusts and other property. In some trusts, the husband was deemed to have a present, enforceable right, and those trusts were ordered by the court to be considered as opportunity for future acquisition of capital assets and income in determining alimony and child support. In some other trusts, however, the husband’s interest was deemed too remote or speculative, and those trusts were not considered to be part of the marital estate.

If you have any questions about issues of divorce, custody, or support, 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.