|Richard D. Packenham is with Packenham Schmidt & Federico in Boston, where his practice focuses on domestic relations and appeals work.
|Mary M. Ferriter is with Packenham Schmidt & Federico in Boston, where her practice focuses on domestic relations.
|Alexander Jones is an associate with Beveridge & Diamond, P.C., in Wellesley. His practice is divided between family law and real estate.
The following represents summaries of recent cases for the “Latest in the Law” for domestic relations cases.
College education and child support
Clothilde Lang v. John Douglas Koon, 61 Mass. App. Ct. 22 (April 27, 2004). Child support, college education.
The parties were divorced in 1994 when the children were ages 2 and 6. The parties entered into an agreement setting the issues of child support and division of property. The child support increased automatically four years later in 1998, when the elder child turned 10. The wife later brought a complaint for modification seeking to increase child support. At the time of the modification, the elder child was 15 years old. Both children were attending parochial schools and annual tuition costs alone were $7,000 for the two children. The husband’s income had increased from $70,000 in 1994 to $170,000 in 2002. The wife’s 2002 income was found to be $20,000. The trial court entered a modification judgment that increased the husband’s weekly child support to $890.
The modification judgment was based upon the child support guidelines for the first $100,000 of support and 20 percent of the husband’s annual earnings over $100,000 (or 20 percent of $70,000). The trial court found there was a lack of agreement between the parties on sharing the educational expenses for the children. The trial court further reasoned that saving for the children’s future college educational expenses was a “need” for the wife. On appeal, the husband contested only the amount in excess of the child support guidelines computed on $100,000. The husband claimed the trial court inappropriately exceeded his discretion by providing for future college expenses. The Appeals Court vacated the judgment and remanded the case to the trial court for a determination as to what part, if any, of the excess child support awarded was necessary to pay for current expenses (including parochial school) and what was allocated to future college expenses.
The Appeals Court reiterated that the award of child support must be based on the child’s current needs, not future needs. Support orders based on future costs, such as college, are premature unless there are fact specific reasons for an exception. The court acknowledged two limited circumstances when the future educational expenses are appropriately awarded: children with special needs and profligate parents. The Appeals Court held that there were no particular facts alleged or proven in the present case.
Author’s comment. If the trial court had not been so straightforward as to identify specifically that part of the increase was to permit savings for future college expenses, is there any doubt that the amount (20 percent of the excess $70,000) would have been upheld as reasonable?
Carolyn E. Brooks v. Robert A. Piela, 61 Mass. App. Ct. 731 (Aug. 30, 2004). Child support; Modification, education.
The mother filed a complaint for modification alleging the father’s income had increased and that the children’s needs had increased (including the son’s enrollment in private boarding school). The father’s salary had increased from the time of the trial by some 114 percent (from $130,000 to $278,900). He was spending 188 percent (from $5,200 per year to $15,000 per year) more money per year on vacations since the trial and his general standard of living had significantly increased. The mother had increased her salary by 32 percent (from $145,000 to $192,000), but her lifestyle had not changed.
The parties agreed to share the son’s private school expenses and the agreement was incorporated into the modification judgment. The remaining issues were presented to the court by means of agreed exhibits, stipulations of the parties and representations of counsel. The trial court found that the differences in the parties’ salaries constituted a material change in circumstances and that the disparity in the standards of living between the mother’s and father’s households was not in the children’s best interests. The husband argued that the basis for the modification must show that the children’s reasonable expenses had increased, regardless of the increase in earnings by the non-custodial parent.
The Appeals Court held that the father’s increased standard of living, which resulted in a disparity between the households, was an appropriate factor for the trial court to consider. The court noted that the $150 increase in weekly support was within the judge’s discretion where the children’s expenses had increased for music lessons and summer camps and where no adjustment had been made for the oldest child who had already turned 13.
In footnotes 4 and 8, the Appeals Court recognized that not all custodial parents would be able to afford the increased expenses for their child’s camps and other activities until the non-custodial parent was ordered to increase his or her contribution to the children. The expenses reported by the custodial parent were not conclusively determinative of the children’s needs.
Although not raised as an issue by the father on appeal, the Appeals Court found it interesting that the parties had agreed to the share the costs of the son’s private school expenses and that the mother was claiming as a part of her increased expenses for the children the same cost of the son’s private school. In essence, the Appeals Court might have been persuaded that the support issue was addressed by the increased amount the father had agreed to pay for school expenses. The Appeals Court found that, in this case, there was no abuse of discretion in awarding an additional $150 per week.
Gabriele Ketterle v. Wolfgang Ketterle, 61 Mass. App. Ct. 758 (Sept. 3, 2004). Division of property, gifts, child support, college education.
The husband was the 2001 Nobel prizewinner for physics and the wife was a part-time teacher who suffered from some mental health issues. The parties were married for more than 17 years and had three children. At the time of the divorce, the children were 16, 13 and 10 years old. The trial court disproportionately divided the marital assets in favor of the wife and assigned the husband the cost of the children’s college educational expenses. The husband appealed.
The Appeals Court held that the overall division of the assets (62 percent to the wife and 38 percent to the husband) was within the “equitable division” of property, provided it was supported by the facts. The Appeals Court found that the trial judge considered all of the appropriate factors and found that she had the discretion to give more weight to the husband’s ability to acquire future income and assets under the facts presented in the case. There was no error. The husband unsuccessfully argued that $83,000 from his prize money should have been excluded from the marital estate because he has made a commitment to give his mentor the money for his support and assistance with the project. The court found that the husband’s gift to his mentor was a “moral obligation,” not a legal debt. Although he could be permitted to transfer the money to the mentor, the amount would remain on his side of the ledger for the ultimate division of assets. The Appeals Court noted that the wife’s “devotion to their family life had also contributed to [the husband’s] professional triumph.”
On the issue of college education, the Appeals Court reiterated that the allocation of future support issues for children was only appropriate when the children have special needs or the parents were spendthrifts. The assignment of college education costs to the husband for the oldest child who at the time of the appeal was an incoming freshman at Stanford University were sufficiently imminent college costs and therefore was proper. The Appeals Court held that the assignment of college expenses for the two younger children was premature.
A separate concurring opinion addressing the college education issue suggested that the court might consider requiring as part of the division of assets that a parent or both parents to set up a trust or other mechanism for possible future college expenses. The unexpended portion would revert back to the parents if the money were not needed.
Kathleen Purdy v. Leonard Colangelo, 61 Mass. App. Ct. 362 (June 23, 2004); (modification, child support, college education)
The mother filed a complaint for modification after the parties’ minor child had graduated from college seeking to recoup payments she had made for the child’s college education. The trial court relied on Massachusetts General Laws chapter 119A, section 13(a), which denies retroactive modification with respect to any period during which there is no pending complaint for modification and dismissed the modification action. The Appeals Court affirmed but did not reach the issue as to whether chapter 119A, section 13(a) constituted an absolute bar to preclude the trial court from entering such orders retroactively. The Appeals Court instead held that the trial judge did not abuse his discretion by deciding not to enter such orders. The Appeals Court did note that when an agreement is silent as to college expenses and modification was not sought while the child was in college, exceptional circumstances would be required to issue a discretionary court order imposing liability.
Although not central to the Appeals Court’s ruling, the decision raised the issue as to whether college education should be considered child support. The decision noted that the cases often refer to education as a part of support but there is also a conflicting line of cases that treat education separately from support.
D.L. v. G.L., 61 Mass. App. Ct. 488 (2004)/ Division of assets, trusts, contingent remainder interests, valuation, alimony, duration of alimony, tax issues, relief from judgment.
In a lengthy and well-written examination of several current “hot” issues, the trial court correctly excluded from the division of marital assets the husband’s interests in seven family trusts where such interests were contingent or purely discretionary or remote and the wife’s interests in two family generation-skipping trusts and an estate-planning device in her parents’ summer home where such interests also were contingent or remote or purely discretionary. The trial court properly considered all such interests as well as expectancies of inheritances under the General Laws chapter 208, section 34 factor of opportunity to acquire future income and assets. The husband’s receipt of discretionary trust income was properly considered as income in determining support. The trial court properly included the corpus of the husband’s revocable trust as a marital asset. Whether a party’s interest in a trust is part of the marital estate under chapter 208, section 34 is a matter of law.
An interest in a discretionary trust (distribution of income and principal left to the sole, uncontrolled discretion of the trustees) does not create a present, enforceable right to use the principal of the trust, is too remote and speculative and does not constitute an interest sufficient to be included in the marital assets to be divided. The interest to receive discretionary trust income was properly treated as an income stream, not an asset to be valued. The husband’s remainder interest was subject to conditions precedent and to an express condition of survivorship and was properly treated as a contingent remainder interest too remote or speculative and properly excluded from the marital assets but considered under the chapter 208, section 34 factor of future opportunity.
The trial court permitted but properly rejected as too speculative, expert testimony based on the statistical life expectancy charts that the husband would survive his father who would die before termination of certain trusts. A remainder interest subject to complete divestment by exercise of a power of appointment is too speculative to be included as an asset. Footnote 22 interestingly notes that the marriage (10 years at separation) was mid-term rather than long-term. There was no error in the valuation of a restaurant business and several business/entertainment entities adopted by the trial court, particularly where the wife offered no valuation testimony. There was no abuse of discretion by the trial court in fashioning the division of assets. The trial court did not err in the award of alimony except by setting a 10-year limit on the duration of the alimony. The trial court’s reliance on future earnings and inheritances was too uncertain to pinpoint a time when alimony would become unnecessary. In the event of a change of circumstances rendering alimony unnecessary, the husband could seek a modification. The trial court did not fail to consider the tax impact issues, particularly in light of the lack of sufficient evidence offered by the husband. There was no error in granting Mass. R. Dom. Rel. 60(a) relief to clarify the trial court’s intent in its judgment.
Author’s Comment: D.L. v. G.L. goes a long way toward reconciling the previously existing rift between long-standing trust law and treatment of trust issues in divorce cases.
Hala Yousif v. Samir George Yousif, 61 Mass. App. Ct. 686 (Aug. 25, 2004). Dismissal of appeal, trust, fiduciary obligation.
The husband was 32 years older than the wife when he brought her at age 18 from her native Lebanon to the United States. The wife was promised a lavish lifestyle and a beautiful home. When she got to the United States, the husband ordered her to stay in the apartment and threatened that there was someone waiting to cut her throat if she tried to leave. She did not know how to speak in English. She was rarely permitted to call her family in Lebanon and was not allowed to return to Lebanon.
The husband brought home the food the wife was to cook for him. In addition to these abusive acts, the husband physically and verbally abused the wife throughout the marriage. The husband purchased land and constructed a house on the property. On the same day the husband signed the purchase and sale agreement on the property, he took the wife to an attorney’s office and forced her to sign a document that he told her was to put the property in her name. Unbeknownst to the wife (until the divorce), the document was a trust, which intended to put the property beyond her control by naming the husband’s sister and the children as beneficiaries. The trial court found that the husband had violated the fiduciary relationship between the husband and wife by placing the marital home in trust and eliminating the wife’s interest in the home. In the divorce judgment, the trial judge found that the trust was void ab initio and awarded the wife (in addition to a sum of money) all of the proceeds from the marital residence.
The husband appealed the decision and sought a stay of the judgment. The stay was not granted but the husband did not pay child support or any other payments as ordered by the court. The wife challenged the husband’s right to appeal and sought to dismiss the appeal due to the husband’s flagrant flouting of the court’s order.
The Appeals Court first addressed the issue of dismissing the appeal based upon the husband’s lack of compliance with the court order and provided three factors to consider in cases where an appellant is in contempt of a court’s order that he had appealed: (1) whether the party is a fugitive and whether that fugitive status is connected to the judgment appealed; (2) whether that status as a fugitive is impairing the enforceability of the judgment; (3) whether lesser sanctions are available. The Appeals Court found that the husband was a fugitive, that his status as a resident of Lebanon put him beyond the personal sanctions of the court and that his voluntary absence from Massachusetts was related to the proceedings.
The Appeals Court then bifurcated the issues on appeal (lump sum payment and voiding the family trust) and held that the appeal of the lump sum payment to the wife would be not be permitted to proceed and would be dismissed unless the husband posted bond to satisfy the full lump sum amount within 60 days of the rescript opinion. The court found that the house, which was the only asset of the Yousif family trust, was within the jurisdiction of the court and proceeded to review the trial court’s determination that the trust was void. The Appeals Court found that on the facts of this case a fiduciary relationship could exist between husband and wife and that there was no error in the conclusion that the “husband owed the wife a duty of honest advice and full disclosure in connection with transactions.” The court noted that because a fiduciary relationship existed between these parties, the husband owed the wife a duty greater than that which generally existed between spouses regarding acquisition and disposition of marital assets. The wife’s request for counsel fees was allowed (noting the new recently-announced court procedures).
Boston Safe Deposit and Trust Company, Trustee v. Charlotte Ober Goodwin & others, 59 Mass. App. Ct. 270 (Sept. 11, 2003). Issue, per stirpes, trust.
A trust instrument established under the will of the testator provided for the termination of the trust 20 years after the death of the settlor’s last surviving child. The trust was to be distributed among the then living issue of the children, such issue taking by right of representation. The trustees of the trust sought instructions from the court to determine the stocks or stirpes against which the distributions should be made.
The Appeals Court upheld the trial court’s determination that the only way that the language of the trust could be satisfied so that the “then living issue of the settlor’s children could take by right of representation” was to go back a generation and use the children of the settlor as the stirpes.
In the Matter of the Trusts Under the Will of Lotta M. Crabtree (and a consolidated case), 440 Mass. 177 (Sept. 16, 2003). Charitable trusts, trustee’s compensation.
The naming of a successor trustee who is prayed for by name by the remaining trustees is not within the scope of SJC Rule 1:07 (fee generating appointments). Once a petitioner names a person that person does not need to meet the qualifications pursuant to SJC Rule 1:07. The court retains the discretion to reject a named person due to unsuitability.
In upholding the trial court’s appointment of a guardian ad litem to oversee charitable trusts, the Supreme Judicial Court announced a new procedure to provide notice to the Attorney General who has supervisory powers over public trusts. When the trial court intends to appoint a guardian ad litem (fees to be paid by the estate) to review the activities of the trustees of a charitable trust, the trial court should provide notice of the court’s intent along with the reason for the appointment. The Attorney General should be given a date certain by which an objection to the appointment is to be registered. If no objection is filed, then the trial court may conclude that the Attorney General has no objection to the expenditure of the trust resources for the services of the guardian ad litem.
Parenthood by contract
T.F. v. B.L., 442 Mass. 522 (Aug. 25, 2004). Parenthood by contract; child support; public policy; unmarried couple.
The parties were two unmarried women, one of whom was the biological mother of the child conceived through artificial insemination. The trial court reserved and reported to the Supreme Judicial Court. While there was an implied agreement to create a child, “parenthood by contract” is not the law of this commonwealth and the agreement was unenforceable as against public policy. No child support order could be entered against the non-biological party who had no child-support obligation. No child-support obligation could be created by the Probate Court by exercise of its broad general powers of equity.
Author’s comment. Presumably no child-support obligation, no rights of visitation.
Subject matter jurisdiction
Leslie A. Caffyn v. Brian E. Caffyn, 441 Mass. 487 (April 20, 2004). Subject matter jurisdiction, domicile.
The husband and wife were married in Massachusetts and lived in Massachusetts for approximately a year and a half during their 15-year marriage. They resided sequentially in Connecticut, Massachusetts, Illinois, California and Italy for varying periods of time. They always maintained their doctors, pediatricians and a joint bank account in Massachusetts and returned for Christmas holidays and summer vacations. The parties last resided together in Italy. The wife moved with the children back to Massachusetts (where she had family) and proceeded to purchase a residence with the husband (title in joint names), jointly purchase and register a car in the wife’s name and jointly investigate and select schools for the children in Massachusetts. Without waiting for the one year to lapse to establish residence and subject matter jurisdiction pursuant to chapter 208, section 5, the wife filed a complaint for divorce asserting subject matter jurisdiction under the alternative jurisdictional requirements of chapter 208, section 5, namely that the wife was domiciled in the commonwealth and the cause for the divorce — irretrievable breakdown of the marriage — occurred in Massachusetts. The husband filed a motion to dismiss the complaint for divorce based on lack of subject matter jurisdiction. The trial court denied the motion after hearing. The husband sought and was granted leave by a single justice to file an interlocutory appeal on the issue of subject matter jurisdiction. The Supreme Judicial Court sua sponte transferred the matter for hearing and affirmed the trial court.
The Supreme Judicial Court held that an irretrievable breakdown of the marriage is a “cause” of divorce that will be sufficient to confer subject matter jurisdiction on the court. Rejecting the husband’s argument that an irretrievable breakdown is a subjective standard, the Supreme Judicial Court held that there was no requirement that there be an identifiable objective fact that determines that a marriage is over and that there is no hope of reconciliation. In this case, the husband admitted that the parties attempted to reconcile in Massachusetts in the summer before the wife filed her second complaint for divorce. The trial court found that the reconciliation failed, which led to the irretrievable breakdown. There was no evidence that the wife was forum shopping. There was no reason to believe that the wife had come to Massachusetts to file for divorce.
Author’s comment. This decision includes an excellent and exhaustive review of the important domicile cases.
Allen Dearborn v. Amy Deausault, 61 Mass. App. Ct. 234 (May 26, 2004). Grandparent visitation, standing.
The Appeals Court held that under the standard set forth in the Blixt case, a grandparent must prove that harm would result to the child if visitation between the grandparent and the child were terminated. The Appeals Court set forth in great specificity the details of the child’s relationship with the grandparents. The decision characterized the relationship as not uncommon between grandparents and children. However, while nurturing and meaningful, it was not the kind of relationship in which significant harm to the children may be inferred from disruption alone.
A grandparent must show that harm would result in the termination of visitation. If the trial court is going to find that there is a “significant preexisting relationship” between the grandparent and the grandchild, the court must find a relationship akin to the kind of relationship described in de facto parent relationships or other relationships of close bonding. If such a finding could be made, then the inference could be drawn that significant harm would result from the disruption of the relationship. Absent such a close relationship, there must be proof that visitation would be necessary to protect the child from significant harm. Expert testimony could be used to sustain the grandparent’s burden of proof. The Appeals Court further noted that a guardian ad litem might be appropriate in grandparent visitation cases.
The Appeals Court noted that both the grandparent’s motivation and the parent’s motivation would most likely not be relevant in most cases to override the parent’s decision concerning visitation.