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Indigent Guardian's Right to Counsel

By Solen G. Moriarty

The Supreme Judicial Court, recently in Guardianship of K.N., 476 Mass. 762 (2017), held that while de facto-guardian parents do not have a liberty interest sufficient to warrant a procedural due process right to counsel, the equitable powers of the Probate and Family Court allow a judge to grant a motion requesting the appointment of counsel for an indigent guardian who is subject of a removal proceeding where the judge concludes that doing so would materially assist in determining the best interest of the child and parental fitness.

The facts in Guardianship of K.N. included a maternal grandmother being appointed permanent guardian to a child born to a fifteen-year-old in 2005 when the baby was a few weeks old. The biological mother filed a removal petition in 2015 and several months later filed an emergency motion to remove the child from the guardian's care, which was allowed by the court. The guardian filed a motion for appointment of counsel which was denied. A week later, the judge ordered that the child be returned to the guardian.

The child, through counsel, filed a motion to appoint counsel for her guardian, which was denied. The child asserted that guardians who are de facto parents have a procedural due process right to appointed counsel in contested guardianship removal proceedings. In Guardianship of K.N., the court acknowledges that the concept of de facto parenthood has been recognized by the court and defined as "one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent." E.N.O. v. L.M.M., 429 Mass. 824, citing Youmans v. Ramos, 429 Mass. 774, 776 (1999). The court further recognizes that because disruption of a child's preexisting relationship with a nonbiological parent can be potentially harmful for the child, the court has held in the past that de facto parents may be granted visitation rights over the objection of the legal parents. Guardianship of K.N. at 765. The SJC points out, however, that these visitation rights are not based on any liberty interest that de facto parents have in their relationship with the child in question, but rather derive from the Probate & Family Court's equitable powers under G.L. c. 215, §6, to protect the welfare of children. Id. The interests of parents in their relationship with their children has been deemed fundamental and is constitutionally protected. Care & Protection of Jamison, 467 Mass. 268, 283 (2014). Guardianships, by contrast, are solely creatures of statute and therefore do not rise to a protected liberty interest in the relationship with his or her ward. Id.

The SJC states that the Probate & Family Court has equity jurisdiction over "all matters relative to guardianship," G.L. c. 215, §6, and its equitable powers are "broad." Youmans, 429 at 782-783. The Court further recognizes that guardianship removal proceedings require judges to "make complex determinations that consider numerous factor regarding the child's best interest and the parent's fitness" and that appointment of counsel for the guardian may help reach the best possible result for the child. Guardianship of K.N. at 766. As such, the Court held that the equitable powers of the Probate and Family Court allow a judge to grant a motion for appointment of counsel for an indigent guardian who is the subject of a removal proceeding where the judge, based on the excersise of his or her sound discretion, concludes that doing so would materially assist in determining the best interest of the child and parental fitness. Id.

What's New

Unmarried Cohabitant's Right to Restitution

By Solen G. Moriarty

The Massachusetts Appeal's Court in Bonina v. Sheppard (No. 16-P-771) ( June 1, 2017) recently upheld a Superior Court judge's award of restitution to an unmarried cohabitant for his contribution of funds and labor to improve the home in which the parties lived during their relationship, but owned individually by the Defendant.

The parties in the Bonina case were involved in a long-term relationship, living together for sixteen years. The plaintiff, a contractor, expended significant funds and labor while living in the home, including various improvements and additions totaling approximately $156,913. The Superior Court judge found that the Plaintiff had received the benefit of these items and awarded him this amount in restitution, representing his costs to purchase the materials and the fixtures to improve the home.

Upholding the Superior Court's decision, the Appeals Court reasoned that while cohabitation does not create the relationship of husband and wife or the incidents afforded to such a relationship, unmarried cohabitants may lawfully contract concerning property, financial, and other matters relevant to their relationship. See Wilcox v. Trautz, 427 Mass. 326, 332 (1998). Equitable relief is also available, including restitution for unjust enrichment. See Santagate v. Tower, 64 Mass. App. Ct. 324, 329 (2005). Unjust enrichment occurs when a party retains the property of another's "against the fundamental principles of justice or equity and good conscience." Id. The court in Bonina found that a parties' romantic relationship does not prevent the Plaintiff from recovering from the Defendant under unjust enrichment theory. In Massachusetts there is no presumption that claimant's contributions during a romantic relationship are gratuitous. Id.

The Bonina court cites to the Restatement (Third) of Restitution and Unjust Enrichment § 28(1) (2011) in support of their holding: "[I]f two persons have formerly lived together in a relationship resembling marriage, and if one of them owns a specific asset to which the other has made substantial, uncompensated contributions in the form of property or services, the person making such contributions has a claim in restitution against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship." Id. Recovery is allowed because the claimant would not have conferred the benefit, "except in the expectation that the parties' subsequent relationship would be something other than it proved to be." Ibid. The court in the present case found that the Plaintiff's contributions were substantial and uncompensated as the Defendant did not reimburse him. Therefore, the Bonina court concluded that the Plaintiff could seek restitution for his contributions to the Defendant's home under an unjust enrichment theory. (No. 16-P-771).


Federal Consumer Credit Protection Act and Child Support Arrearage

By Solen G. Moriarty

The Massachusetts Appeals Court recently found in Lizardo v. Ortega (No. 16-P-1070) (June 12, 2017) that the trial court erred in ordering Father to make a payment from his lump-sum SSDI benefits that exceeded the limit imposed by the Federal Consumer Credit Protection Act (CCPA), 15 U.S.C. § 1673(b) (2012).

In Lizardo v. Ortega, the Father was ordered to pay the Mother child support for their unemancipated daughter. Due to alleged disability, Father was unable to work for a period of years and his child support arrearage grew to approximately $58,000. The Department of Revenue held approximately $10,296 that the Social Security Administration had withheld from the Father's retroactive lump-sum SSDI payment, and the Father's attorney held the remaining $6,864 of such payments in escrow. The Probate and Family Court trial judge ordered the Father's attorney to distribute $3,000 from the escrow account to the Mother, representing more than seventy-seven percent of his lump sum SSDI payment.

The Appeals Court in Lizardo noted that under the CCPA, where an individual is not supporting a spouse of dependent child who is not the subject of a support order, and where support has been owed for more than twelve weeks, garnishment shall not exceed sixty-five percent. 15 U.S.C. § 1673(b)(2). The Lizardo Court found that the Father's retroactive lump-sum, distribution of SSDI benefits constituted earnings and was equivalent to wages because it represented compensation for personal services that was lost as a consequence of Father's inability to work due to disability. Id. The Court found the judge erred in ordering the release of the $3,000 to the Mother because such a payment resulted in a garnishment that exceeded the permissible limit under the CPAA. Id. The Court reasoned that the purpose of the CCPA - to protect a basic level of income - is defeated if a noncustodial parent is required to make payments towards arrearages in excess of statutory limits. Id.


Retroactivity of Alimony Reform Act Found Constitutional

By Solen G. Moriarty, Esq.

The Supreme Judicial Court has determined that applying the durational limits of the Alimony Reform Act of 2011 to alimony agreements predating the statute's effective date is not unconstitutional. Van Arsdale v. Van Arsdale, (SJC - 12223) (May 31, 2017). The SJC held that such application is not unconstitutionally retroactive because the statute does not "attach new legal consequences to events completed before it's enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).

The parties' divorce took place in 1997 and then the parties subsequently modified their separation agreement in 2006, ordering Husband to pay alimony to the Wife. Van Ardsdale, (SJC - 12223). In 2015 the Husband filed a Complaint for Modification seeking to terminate his obligation to pay Wife alimony based on the Alimony Reform Act's durational limits and because he had retired from full time employment. Id. The Probate and Family Court trial judge noted that the Wife should not have had an expectation that the alimony payments would continue into perpetuity because of the agreement's allowing for review of the alimony obligation upon Husband's retirement.

The SJC reasoned that the durational limits merely create a presumption of termination that a recipient spouse such as the Wife in Van Arsdale can rebut by showing that deviation from the limits is "required in the interest of justice." See M.L. c. 208, § 49(b). The Court found that the Wife had an opportunity to show that the durational limits should not apply to her and therefore the durational limits of the act are not impermissibly retroactive.


Interested Party in a Massachusetts Guardianship

By Solen G. Moriarty, Esq.

In a recent Supreme Judicial Court decision, Guardianship of B.V.G., the Court clarified the law concerning who is an "interested party" for purposes of intervening in guardianship proceedings, reminding us that the Massachusetts Uniform Probate Code favors "limited guardianships in order to maximize the liberty and autonomy of persons subject to guardianship." S.J.C.-11925 (2016).

In B.V.G., the maternal grandfather sought to intervene in the permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.'s father, who was appointed B.V.G.'s temporary guardian when she was eighteen years old. Guardianship of B.V.G., 87 Mass. App. Ct. 250 (2015). The father, who had full legal and physical custody, precluded contact between B.V.G., a young woman with intellectual disabilities, and her maternal relatives. Id. The maternal grandfather argued and presented facts in the trial and appeals court that B.V.G. reached out to him on several occasions expressing a desire to have a relationship with him and that their relationship would be in B.V.G.'s best interest. Id.

The father did not suggest any reason that B.V.G. should not be allowed to maintain a relationship with her grandfather. Id. Rather, the father maintained, and the lower courts agreed, that as B.V.G.'s legal guardian, he has the right to determine those with whom she associates. Id. The trial court and the appeals court concluded that the grandfather was not an "interested person" within the meaning of G.L. c. 190B § 5-306(c), denying the grandfather's motion to intervene as a matter of right. The motion judge suggested that the definition of "interested person" applicable to all guardianships "hints of a financial, but not visceral, stake in the underlying proceedings."

The S.J.C. reversed the lower court rulings, finding that an "interested person" as defined by G.L. c. 190B §1-201, within the meaning of G.L. c. 190B § 5-306(c), is a person "interested in the welfare of the incapacitated person." B.V.G.." S.J.C.-11925 (2016). The S.J.C. explained that the "interest" required to qualify as an "interested person" might be viewed both as a potential intervener's own interests in protecting the incapacitated person's estate and as an interest in the well-being of the incapacitated person. Id.

As a guardianship proceeding is designed to effectuate the best interests of the incapacitated person, one may show that a continued relationship with an incapacitated individual, against the guardian's wishes, is possible if it would be in the incapacitated person's best interest. The court reasons that an "interested person" eligible to intervene in such matters must include those individuals who demonstrate a sufficient interest in the incapacitated individual's welfare. Id.

The S.J.C. moreover references the comments in the Uniform Probate Code, which indicate a "legislative preference for encouraging an incapacitated person and other "interested person[s]" to advocate to the court to safeguard the liberty interests of the incapacitated person." Id.


Stock Option Income and Child Support

By Solen G. Moriarty, Esq.

The Appeals Court, in Hoegen v. Hoegen, 43 N.E.3d718 (2016), recently held that income received from employer-issued vested restricted stock units (RSU) is considered gross annual income subject to inclusion when calculating child support. In this case, the Mother appealed from a Trial Court decision holding that a separation agreement in which the Mother acknowledges that Father participates in a stock plan through his employment and waives all rights, title and interest in those accounts, precludes the inclusion of income derived from the RSUs for child support purposes. The parties were divorced by a judgment of divorce nisi, incorporating by reference a separation agreement, which survived as an independent contract, except as to matters relating to the children.

Child support is controlled by G.L. c. 208 § 28 and the Massachusetts Child Support Guidelines. Section I-A of the Guidelines defines income as "gross income from whatever source" and lists twenty-seven sources of income. The Appeals Court in Hoegen notes that while income derived from stock or RSUs is not specifically included in this list, the guidelines state that "any other form of income or compensation not specifically itemized" may be included. Massachusetts Child Support Guidelines I-A(28).

The Appeals Court asserts that the Courts have held that income derived from stock options is considered "gross annual employment income" for the purpose of calculating child support orders. Wooters v. Wooters, 74 Mass. App. Ct. 839, 843, 91 N.E.2nd 234 (2009). The Wooters Court rationalized the expectation that income realized from the exercise of stock options should be treated as gross employment income, stating "it is commonly defined as part of one's compensation package, and it is listed on W-2 forms and is taxable along with the other income." The Appeals Court in the Hoegen case maintained this position finding that the Father received, as part of the compensation package with his employer, a certain number of RSUs and that Father regularly earned income from his employer-issued RSUs. Therefore, as a result, RSU income should have been included as gross income along with his base salary and bonus compensation in calculating his child support obligation.

The Father in this case contends that the Mother waived all interest in his RSU income at the time of their original divorce agreement. The Court disagrees, stating that Mother's waiver in the RSU income cannot operate to waive her children's rights to appropriate child support pursuant to the guidelines. The Hoegen Court asserts the precedent that "parents may not bargain away the rights of their children to support from either one of them." Okoli v. Okoli, 81 Mass. App. Ct. 371, 377 (2012), quoting from Knox v. Remick, 371 Mass. 433, 437, 358 N.E.2d432 (1976). Therefore, even if Mother did waive her right to the interest in the RSUs, that waiver cannot operate to waive her children's right to child support from that income.

WHAT'S NEW: Comparable Health Insurance: The True Test

By Solen G. Moriarty, Esq.

The parties in Shine v. Shine (No. 15-P-288) (Appeals Court- Unpublished, February 11, 2016) were divorced pursuant to a separation agreement incorporated into a judgment requiring the husband to continue to provide health insurance that covered the wife, subject to two conditions. First, if there was an additional cost to cover the wife, the wife was required to pay the additional fee. Secondly, if the wife has the opportunity through her current or future employer to obtain comparable health insurance, she shall do so and the husband shall no longer be obligated to provide her with health insurance.

The wife in Shine obtained new employment and declined the option of obtaining health insurance through her new employer. The husband filed a contempt action, claiming that by refusing the employer-offered health insurance, the wife failed to act in accordance with their separation agreement. The lower court agreed with the husband's argument and ordered the wife to obtain health insurance for herself through her new employer. The wife appealed.

Health Insurance PolicyThe appeals court reversed the lower court's ruling, stating that "the judge did not actually find that the health insurance coverage available through the wife's employment provided "comparable" coverage and benefits to those provided through the husband's plan." The appeals court went on to say that "although it may well be true that one of the many plans available to the wife through her employment is 'comparable' to the plan provided under the husband's insurance, the evidence to substantiate that claim is absent." Therefore, in Shine v. Shine, the appeals court postulates that under the terms of such an agreement, it is not enough to argue that there is a potential plan available to your former spouse, but rather, evidence must be submitted so that a comparable analysis can be done to determine whether or not a former spouse is required to obtain replacement health insurance through their employer.


MA Court Cannot Modify Out-Of-State Child Support Order

On February 23, 2015, the Supreme Judicial Court held that the Massachusetts Probate and Family Court could not modify a California child support order, even when the parents stipulated to the modification. In Cohen v. Cohen, after securing a support order in California, the mother and child continued to reside in California while the father moved to Massachusetts. An enforcement action was brought in Massachusetts and the parties subsequently stipulated that, in addition to the support provisions contained in the California order, the father would also share college expenses and uninsured medical expenses with the mother. The father was eventually found to be in contempt for failure to make such payments and then sought relief from enforcement.

In finding that Massachusetts lacked jurisdiction to modify the out of state order, the Court noted that under the Uniform Interstate Family Support Act, "[o]nce one court enters a support order, no other court may modify that order for as long as the obligee, obligor, or child for whose benefit the order is entered continues to reside within the jurisdiction of that court unless each party consents in writing to another jurisdiction." Critically, the written consent must be filed in the issuing tribunal and cannot be implied. See G. L. c. 209D, § 6-611 (a) (1)-(2).

Therefore, because the parents failed to file with the California court their written consent to grant a Massachusetts court authority to modify the order issued by the California court, California retained exclusive jurisdiction to modify the judgment. And because lack of jurisdiction can be argued at any time, the father could raise his lack of jurisdiction argument even after his initial stipulation to the terms.*

Source: Massachusetts Lawyers Weekly


Settlements Terminating Alimony Based on Retroactive Application of the Alimony Reform Act In Question

In three recent cases, Chin v. Merriot, Rodman v. Rodman and Doktor v. Doktor, the Supreme Judicial Court ruled that the provisions of the Alimony Reform Act which terminate alimony upon the payee's cohabitating or when the payor reaches full retirement age do not apply retroactively. Prior to the Court's decision, many payors attempted to modify judgments that predated the Act by arguing the retirement and cohabitation provisions applied retroactively. If you were subject to such an attempt and subsequently agreed to terminate alimony, consider contacting an attorney to review your options for reinstatement.*

Court Clarifies When Alimony May Terminate

On January 20, 2015, the Supreme Judicial Court of Massachusetts ended confusion about when an alimony payor could use the alimony reform laws of 2012 to terminate spousal support. The Court consolidated and heard three cases, Chin v. Merriot, Rodman v. Rodman and Doktor v. Doktor, to address this issue. The Court held that "[a]limony judgments entered prior to the alimony reform act may be modified only under the existing material change of circumstances standard, with the single exception that the new duration limits of the act will be considered a material change of circumstances for the purposes of this standard." See Chin v. Merriot, SJC -11715 at p. 16-17 (Jan. 30, 2015). The Court definitively stated that the fact that the payee is cohabitating or that the payor has reached retirement age does not, one its own, qualify as a material change in circumstances.*

Source: Massachusetts Lawyers Weekly


Divorcing With Dignity

In today's age of social media it is dangerously easy to engage in messy public fighting via Facebook, Twitter and the like. Likewise, today's technology allows you to send an angry email or text message in seconds. It is important to remember that these cyberspace antics can hurt your family law case. Anything you text, email, or post, including status updates, online photographs, and comments, may be used as evidence against you. While your family law case is pending, it is best to avoid social media and to limit electronic communication with your ex. Remember that the nasty text message you just typed could hurt you more than your ex. Taking the proverbial high road will serve you much better when all is said and done.*

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*DISCLAIMER: The following blog posts are provided for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. You should consult an attorney for advice regarding your individual situation. We invite you to contact Attorney Solen G. Moriarty for a consultation today. Please note that contacting us does not create an attorney-client relationship.