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The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 3

Wednesday, November 15, 2017

What did the court decide and why; and might it have decided differently?

Levine Dispute Resolution - Alimony

Here, we delve into the SJC’s analysis in Young v. Young.

Young was high income case, in which the husband’s executive compensation fueled a persistently rising lifestyle (“affluent, upper class”) for the parties during a 24-year marriage. Both parties sought fixed sum alimony in the wife’s favor, but at broadly disparate levels.

After trial, the Probate and Family Court judge concluded that the wife’s sworn representation of the costs required to maintain the marital station (i.e., her “need”) was unreliable; and that the husband’s compensation scheme (i.e., his capacity to pay) was complex, not clearly predictable, but implicitly at least, likely to maintain an upward trajectory.

Critically, the judge did not quantify the wife’s “need” in a finding. Instead, the opinion suggests, the trial court defined the marital living standard as an intangible expectation of rising station, supported presumably by family history, and with no apparent end in sight.

In light of her findings, the trial judge rejected both parties’ alimony proposals, and ordered the husband to pay the wife 1/3 of his gross income derived from his work compensation in its various forms, with neither a base guarantee for the wife (floor) nor an upper limit for the husband (ceiling). Recognizing that the judgment would leave the parties in a thicket of disclosure, verification, enforcement and potential conflict, the judge imposed a special master to address future conflicts, at the parties’ expense. Think, alimony coordinator. (More on that in a later blog entry.)

The husband appealed, and prevailed, when the SJC vacated the formulaic alimony award and remanded to the trial court to re-cast the alimony obligation as a fixed sum. The core rulings are neither complex nor novel on their face. They are:

  1. Variable or self-adjusting alimony orders are not per se prohibited, but they are to be limited to “special”, though not necessarily “extraordinary”, circumstances; and that
  2. Self-adjusting alimony orders that “intend” to elevate the recipient spouse’s standard of living above the marital station are prohibited.

Now, just what are “special circumstances”? We are tempted to emulate the late Supreme Court Justice Potter Stewart and say that we would know them when we see them, but to date, we only know of two examples, both noted by the Young court:

  1. An alimony recipient living in a foreign land during high inflationary times, with a self- adjusting cost-of-living increase that is intended to protect the value of an alimony order that is a sum, per Stanton-Abbott v. Stanton-Abbott, 372 Mass. 814 (1977); and
  2. An alimony payor who is ill at the time of divorce, with depressed earnings for a period of recovery, and the expectation of resumed earnings that are closer to the marital experience, when health returns, per Wooters v. Wooters, 42 Mass. App. Ct. 929 (1997).

The paucity of fact precedent has long made trial judges reluctant to even consider variable support awards, and we expect that the Young decision won’t likely change this institutional reticence. As we discuss below, we see this as unfortunate.

In the meantime, what of the marital station? The SJC’s emphasis on recipient “need” is both deeply entrenched in our law, and unsurprising. After all, need and ability to pay have long been the accepted pillars of spousal support. But we wonder several things:

  1. What if the trial court had made a traditional finding of “need”, expressed as a dollar amount required to meet it;
  2. What if she had made a finding that even at the rarefied level of Young finances, when following the 30-35% range of a “reasonable and lawful” alimony order (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014)), the wife could not live at the marital standard formerly funded when the parties lived as one household?
  3. What if the trial court had quantified “need”, and capped the amount that the Wife could have received by application of the percentage formula, at that level?

Would these counterfactuals have led the SJC to find that the orders were not “intended” to exceed to wife’s recovery beyond the marital standard? After all, the Young court stated, with credit to both Stanton-Abbott and Wooters, that:

    [We] reject the argument, as we have before in a different context, that a judge lacks statutory authority to order a supporting spouse to pay alimony in an amount that may vary according to variables or contingencies set forth in the order, such as the income of the supporting spouse…

    [and]

    [We] do not consider every change in the amount of payment under such an alimony order to be a modification of the judgment, which we recognize would require a showing "by the party favorably affected the conditions [have] changed justifying the modification” …

    [and]

    [T]here may also be special circumstances where an alimony award based on a percentage of the supporting spouse's income might not be an abuse of discretion, such as where the supporting spouse's income is highly variable from year to year, sometimes severely limiting his or her ability to pay, and where a percentage formula, averaged over time, is likely not to exceed the needs of the recipient spouse.

    [but]

    Here, the percentage-based award ran afoul of the act and therefore was an abuse of discretion not because of its variable nature but because it was intended to award the wife an amount of alimony that exceeds her need to maintain the lifestyle she enjoyed during the marriage. (Italics ours)

If those findings had been made, we think they could, and should have, held differently.

Interestingly, the SJC did not comment upon the fact that the Young percentage-based support award also protected the husband from the very danger noted above: that his income might dip (it generally does at some point), and “severely limit his ability to pay” support commensurate with the marital standard. Had this been noted by the judge, might the SJC been more sparing in its critique? Maybe.

The primary purpose of an SJC case is to determine if there was error in the case before it, and secondly, but not necessarily secondarily, to create precedent for future cases. For every Young case, the trial court will encounter thousands of cases in which the marital station is in no way attainable on a 30-35% alimony award, and in which the court could carefully craft orders that meet all of the SJC’s concerns discussed above, without consigning the courts and the parties to serial modification actions.

In this respect, the Young decision represents a missed opportunity, in our view.

Finally, the SJC noted that variable support orders can lead to contention because of poorly worded criteria and complex compensation schemes. Correctly, the Young court pointed to the trial court’s appointment of an alimony coordinator (our term) to police the judgment; an unauthorized and unaffordable solution for most couples (though, ironically, affordable for thee parties). The court also lamented that formulaic orders could encourage fraud, and collusion between employers and employee alimony payors.

These are real concerns, but ones that exist in every case, regardless of the support structure, and based on this rationale, the trial courts should not accept settlements with self-adjusting formulae, which they properly do every day. It is equally lamentable, that the SJC does not apparently deem the bench and bar capable of proposing and adopting high quality judgments. We fear that this aspect of the case is rejecting the good because it is not perfect.

In our next entry, we will discuss the Young case treatment of determining how to determine “need” and the trial court’s particular challenge in this case to do what the SJC has ordered with respect thereto.

 

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 2

Tuesday, November 07, 2017

“What are they, anyway?”

We introduce the subject that the Supreme Judicial Court (SJC) addressed in Young v. Young by examining the kinds of orders from which the case arose: variable or self-adjusting support orders. Here, we address the basics.

What are self-adjusting support orders? They are alimony orders expressed by a formula rather than a sum. The payor computes alimony periodically by applying a percentage to his or her defined income. Sometimes, different (usually declining) percentages apply to different tiers of income, and increasingly, thanks to M.G.L., ch, 208, § 53(b) (of the Alimony Reform Act (ARA) of 2011, eff. 3.1.12) the percentage(s) may apply to the parties’ income differential.

Think: Client A pays Client B 32.5% of the difference between the two parties’ gross pre-tax employment income each year, as received, and subject to a periodic true up after sharing of agreed income verification.

Who makes self-adjusting orders? Most often, self-adjusting alimony orders are a creature of agreement. A judge then approves and incorporates the agreement in its judgment, making the self-adjusting features court orders. For reasons discussed in previous and subsequent blog entries, judges rarely initiate such orders, being limited to doing so only in “special circumstances”, which Massachusetts caselaw has thus far identified only two: where an alimony recipient lives on another continent during high inflation times, which may justify an automatic cost-of-living provision; and one in which the payor was ill at the time of divorce, with resulting depressed earnings, but the court expected return of his historic income when his health recovered. We will discuss this standard more fully in a later blog entry.

Who uses self-adjusting orders? Most parties adopt this approach because the alimony payor’s income is subject to significant fluctuation, sometimes on the upside (think: bonuses or commissions) and sometimes up or down (think: profits). It protects the payor from having to pay alimony on income that he or she does not actually receive (downside risk protection), and the recipient is compensated by sharing when income is higher (upside benefit sharing). It echoes the way an intact couple live, economically.

Why don’t courts initiate many self-adjusting orders? The general answer is that self-adjusting orders “feel” like a violation of “due process” rights because they change the amount of support without the right to a court hearing for the purpose of showing current facts and circumstances that might mitigate against the change. The more precise reason is that case law discourages it. Young v. Young will likely reinforce the reticence of cautious judges; but we will suggest later that this ought not necessarily be the case.

In the next blog entry, we will begin to discuss the analysis that the SJC used in Young, and the standards suggested by it and earlier law.

 

Bargaining in the Light of The Law: The Case of Divorce

Sunday, October 15, 2017

Levine Dispute Resolution Center - Guest Writer John Fiske

by: John A. Fiske

In “Bargaining in the Shadow of the Law: The Case of Divorce,” Robert H. Mnookin and Lewis Kornhauser. discussed many ways in which the law provides a framework for divorcing couples to define their own rights and responsibilities after divorce. 88 Yale Law Journal 950, April 1979. We have come a long way since that journal devoted its entire issue to conflict resolution, featuring their far reaching examination of private ordering in divorce. The concept could not have been more fitting, nor better timed.

The article helped to set the stage for the robust growth of alternative dispute resolution in many forms that we now enjoy, including our Supreme Judicial Court Uniform Rules of Dispute Resolution and the flowering of family mediation through organizations, training, literature and even an occasional Hollywood movie. But at the time they wrote, much of divorce law was in the dark. Probate and family court judges had wide discretion and little guidance, and unpredictable court results could depend on who your judge was and other seemingly capricious factors.

Light Dawns

So where are we now? By 2017 divorce law has become far more clear and often even predictable. The single most vital contribution to this framework for helping couples discuss and define their own divorce terms are the federally required Child Support Guidelines (CSG). One can only imagine the thousands of couples whose divorces have been simplified by the CSG. In my early days of mediation about 6 months after the article appeared, I was constantly asked, “What will my child support be?” and Mr. Hem met Ms. Haw: “Well, it depends. It depends on what county you are in, or who the judge is,” etcetc. The law shed little light on the subject, and any shadows shifted or conflicted.

A glimmer of light appeared in October, 1978 when Probate and Family Court Judge Edward Ginsburg wrote an article, “Predictability and Consistency in Alimony and Child Support Orders,” in the Boston Bar Journal. He proposed a simple formula based on the income of the payor; that light helped to settle many cases. In one mediation the husband said, “I think 33% of my income is too much for me to pay my wife but I am willing as long as I know I am not the only guy in Middlesex County doing it.”

As more lights appeared, the shadows diminished.

The CSG worksheet now allows couples to consult their computer and find the answer to their question in minutes.

The parents may not agree, but they have a framework for their negotiation. For example, mediating couples can ask, “Does the CSG amount make sense for us?” and they can compare the suggested amount to their actual living expenses to make an informed decision in the light of what a court would do.

The Alimony Reform Act of 2011 sheds more light on various alimony questions, making it clear that the law allows short term alimony, proposing a simple formula for calculating the amount and even provides time limits. For example, the shadow of cohabitation is specifically illuminated: couples can choose from a menu of alternatives from revision or termination of alimony to suspension during the cohabitation period. The appellate courts have been conscientious in taking appeals to clarify various provisions in the Act. For example, in Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) the Appeals Court held that a judge cannot enter an alimony order for a fixed percentage of the payor’s income in the future because this “self-modifying” order is not supported by findings, etc. But nothing prevents couples from entering separation agreements providing for such flexible arrangements and courts from approving these agreements. In George v. George, 476 Mass. 65 (2016) the Supreme Judicial Court said temporary alimony does not affect the length of general term alimony obligations. Similarly, questions about when it is appropriate to attribute income to either party have been clarified in Emery v. Sturtevant, 88 Mass. App. Ct. 1118 (2017), thereby limiting one of the few remaining alimony and child support issues for lawyers to argue about.

Pesky question of property division have been similarly clarified by case law, such as the role of property inherited before, during or after the marriage and whether family trusts are marital property to be divided or mere expectancies which may or may not occur. Lauricella v. Lauricella, 409 Mass. 211 (1991) and Pfaffenstiehl v. Pfaffenstiehl, 475 Mass. 105 (2016).

Effects of Light

One effect of this evolving clarity is to change the question. Instead of arguing over what a court would do if the case were tried, the question is whether the court will approve the agreement the clients have reached. For clients interested in private ordering, that is the real concern. How long alimony or child support should last is already defined, and parties can agree to something different now that they can make an informed decision. In a mediation this July the husband with $80,000 of income said he thought they should make their incomes equal though his wife had no income, and she agreed. They knew that the law would only require him to pay one third of the difference in their incomes: they each knew what they were getting and they each knew what they were giving up. They felt this agreement to be fair and right, and their only question was whether the court would approve it.

It remains important for couples to know what the light of the law is, not to tell them what to do but to give them some objective criteria by which to judge their own solution. In Getting to Yes, Fisher and Ury recommend four principles of negotiation ending with consideration of some objective criteria. Houghton Mifflin Company (1981) p. 84. Here the illuminating law can be of great help, not to dictate but to inform their own solution.

“’I am half sick of shadows,’ said the Lady of Shalott” in the poem by Tennyson, but her facing reality had unhappy consequences. While I am glad to see the law moving us out of the shadows, we can hope for better informed settlements of divorces and other family disputes. Parties can know the norms and make their own choices when and how to adapt to them. Lawyers can have more confidence in predicting whether negotiated and mediated agreements will be approved by the courts, and can inform clients what they are gaining and what they are giving up in reaching their own solutions. As Superior Court Justice Douglas H. Wilkins pointed out in his letter to Lawyers Weekly on July 17, 2017, new court rules provide further support for early mediation: the path to a desired result is not only illuminated but can be significantly shortened by helping lawyers, mediators and clients to discuss appropriate settlements from the very beginning of a case. Children benefit from their parents reducing conflict. We can spare the courts unnecessary litigation, and sleep better nights.

John A. Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a Cambridge firm concentrating in family law and mediation since 1979.

 

The SJC Weighs in on Self-Adjusting Alimony Orders and Recipient “Need”: Young v. Young, Part 1

Sunday, October 15, 2017

Levine Dispute Resolution - Alimony

With the long-awaited case Young v. Young, the Massachusetts Supreme Judicial Court (SJC) has revisited the important question of when may a trial court originate self-adjusting support orders, a subject that we have addressed here twice before. See, http://levinedisputeresolution.com/docs/Variable-Support-orders-3-28-16.pdf and http://levinedisputeresolution.com/divorce-mediation-blog/need-and-variable-support-orders-they-are-not-mutually-exclusive.

While the case does not address the situation where there is insufficient income to keep both parties living at the former marital standard of living, it does review and elaborate on existing precedent.

In a high income case of great executive compensation complexity, the trial court ordered the husband to pay to the wife a 1/3 share of all gross income that the husband receives going forward, rather than the fixed sum alimony that both parties sought, albeit in vastly different suggested amounts.

The core rulings of Young are neither complex nor novel on their face:

  1. Self-adjusting alimony orders are not per se prohibited, but they are to be limited to “special” though not necessarily “extraordinary” circumstances; and that
  2. Self-adjusting alimony orders that “intend” to elevate the recipient spouse’s standard of living above the marital station are prohibited

But, what does it all mean, really?

We will use Young as a jumping off point to address both its particular analysis and holdings, and to re-examine the curious case of variable support orders a/k/a self-adjusting support orders at large. We begin with just what is a variable support order and who uses them, then explore the analysis and implications of Young, and close (we think) with special problems in the area.

 

Civility Guidelines for Family Lawyers

Wednesday, August 16, 2017

The Massachusetts Bar Association recently endorsed a set of “Civility Guidelines for Family Law Attorneys”. It is amazing to us that in 2017 this project should have been necessary, but we have no doubt of it; and the ten points are both simple and profound.

Moreover, these tenets don’t just apply to the courtroom. They are equally applicable to the arbitration or mediation room, the four-way meeting, attorney correspondence, and the ongoing processing of every case, including negotiation. In truncated form the ten commandments of civility are:

  • Dress appropriately.
  • Be on time and prepared.
  • Treat people with courtesy and respect.
  • Wait your turn – don’t interrupt or shout.
  • Be honest – in verbal and written word.
  • Follow the rules (about notice and service)
  • Respond timely.
  • Focus on the facts in issue.
  • Negotiate in good faith after full disclosure.
  • Do not use court in a revengeful manner.

Sometimes the truest things shouldn’t have to be said – be bear reminder nonetheless.

 

“Corporate Mortality” and Valuation

Wednesday, August 02, 2017

We have often puzzled over business valuation methodologies that assume a company’s perpetual life. We recently read for the first time about the expert questioning of this assumption within the context of a discounted cash flow analysis. Business immortality is unrealistic and maturing companies also tend to experience slowing growth.

It appears that the data is not yet clear on these phenomena, which may explain why the valuation community has not yet embraced this consciousness. But, pursuit and application of this knowledge seems material to not overstating business values, while reflecting reality more closely.

We look forward to reading further about positive developments on the important issue.

 

Treasury Department trumps Proposed IRC §2704 Regulations?

Friday, July 28, 2017

We have been following the saga of the Obama-era proposed regulations to tighten practices in valuing family-controlled businesses, which spent much of last year plus in public scrutiny and commentary. The proposed rules have been a lightning rod for valuation experts and family business representatives alike, since they would pretty much eradicate discounts, establish minimum valuations and increase federal tax receipts upon sales of these closely held-entities during lifetime, and upon death, for those fortunate few who qualify for estate tax liability.

Now, courtesy of presidential Executive Order 13789 (April 21, 2017), the United States Treasury Department has put the proposed §2704 in its crosshairs, in the name of de-regulating business. In its 60-day interim report, Treasury identified including §2704 among eight “Regulations identified for burden reduction”.

We can’t help but wonder how much the president, his cabinet, West Wing advisors – and all of their heirs -- stand to gain personally, by “unburdening” the American people in this way.

Think we’ll ever know?

 

Online Dispute Resolution: Ready or Not, Its Already Here

Wednesday, July 19, 2017

Recently, we attended the Massachusetts Bar Association’s inaugural Dispute Resolution Section symposium, and the annual AFCC meeting, each in Boston. Both programs featured extended discussions of mediation involving a “fourth party”, as in, the two parties, the mediator and technology.

We expected the focus to be running divorce mediations with an absent party or two, attending virtually by Skype or FaceTime, or even the good old-fashioned speaker phone. Most of us have done a bit of this and addressed the limitations imposed by the lack of eye-to-eye contact and the sense that the person on the screen or behind the phone is actually checking his email, or her text chain.

More profound was an AFCC speaker’s demonstration of a Dutch program wherein parties log on to a website that guides divorcing parties through a progression of multiple choice questions that range from the prosaic (biographical) to the attitudinal (“you image your child living…”) to the transactional (“you propose to…”). The notion is that mediation does not even have to be synchronous. As one speaker put it, in essence: “the client can sit in bed with a glass of cabernet and ponder a response…and we don’t often have a chance to mediate with cab.”

The upshot of the Dutch notion of online mediation for family law is that the mediator may just be reduced to the “chat” person you get when you go on a retailer’s website: “may we help you select a model?”. The Dutch model will even assign a mediator to “run” the process, taking our theoretical descriptor of “facilitative” to a new low, or new high, depending on your perspective.

We get how for many divorcing couples, whose issues are fairly rote and shaped by state-mandated formulas, much resolution can emerge from hi-tech questionnaires. But we, who spend our days doing the intensely personal work of educating, observing, empathizing, encouraging and reasoning with emotionally fraught parents and spouses, have a hard time seeing how the application of this kind of dispute resolution will translate to the population whom we generally serve.

Another AFCC speaker pointed out that we who pride ourselves on the personal attention we devote, are already engaged in Online Dispute Resolution when we email, text, spreadsheet and utilize cloud based services to communicate with and assist our clients. So, maybe we have the best of both worlds already.

 

The Goose, the Gander and the Alimony Reform Act

Wednesday, July 19, 2017

Five years and many appellate cases later, the Alimony Reform Act (eff. March 1, 2012) (“ARA”) now has some meat on its bones. The more we work with it, however, more scenarios emerge that we had not previously considered; and we wonder if the drafters did either. One aspect we have been pondering is how critical elements of the statute address the scenario where former spouses “trade places” after divorce. In other words, the parties’ earnings change inversely, sufficiently to make the initial alimony payor a putative payee.

In an era of predominantly two earner (former) households, changes of relative fortunes are not only possible, but they are, in fact, easy to imagine. Consider, for example, any pair of business people or professionals: their levels of success will vary over time, under any circumstances. With the ARA’s income comparison model - the presumed metric for general term alimony under M. G. L., ch. 208, §53(b) generally not exceeding 30-35% of the difference in the spouses’ respective earnings - the parties’ income capacities may not only fluctuate, but at some point, converge and intersect.

For example, at divorce, Leslie earns $90,000 per year while Morgan earns $60,000, it is predictable that Leslie would pay about $10,000 of alimony. (Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014) would deem it “reasonable and legal”). Yet, some years later, Morgan could easily be earning $120,000 while Leslie treads water at $90,000. Thus, the alimony shoe shifts feet, the law then presuming that Morgan should pay the same $10,000.

Assume now that Morgan and Leslie were married for 15 years. Under M.G.L., ch, 208, §49(b)(3), the presumed duration of alimony is 10 1/2 years. Assume further that the parties traded places 5 years after divorce. In a modification action, would Morgan’s durational limit be the “remaining” 5 1/2 years? Or, would Morgan begin her own 10 ½ year run? If they switched fortunes again (always presuming that someone has “need”), would Leslie resume her 10 ½ track at the point of first modification, or the second?

Alternatively, suppose that Leslie has paid alimony for 9.5 years, only to find herself laid off, and no longer employable at a comparable level. Or, worse yet, disabled. Morgan continues to be both healthy and happily employed. Is the newly vulnerable Leslie now limited to a year and half of alimony despite her straightened circumstances? Is she left to the vagaries of the court’s discretionary extension of the initial durational limit under M.G.L., ch. 208, § 53(e)(9)? Or, conversely, will that spouse now be eligible for period of up to 10 1/2 years as an alimony recipient himself?

Now, imagine that the parties never traded places organically. Leslie paid alimony shy of the 10 ½ year duration limit because she attained full social security retirement age after 10 years only, under M.G.L., ch. 208, §49(f). In fact, she retired. Meanwhile, the younger Morgan continues to work. Since the court cannot impute income to Leslie despite her voluntary retirement, is Morgan now on the hook for alimony? And, then, for how long? Is the duration limit 6 months, or is it re-set to reflect Morgan’s new status as payor? And since §49(f) precludes attributing income beyond full social security retirement age as a “reason to extend alimony”, does that prohibition hold if the retiree is now a recipient rather than the alimony source?

While we’re at it, what of M.G.L., ch. 53, §53(9)(g), which regulates alimony orders that commence subsequent to, or simultaneous with, child support? Where the statute limits alimony to the combined duration of alimony or child support available at the time of divorce, does that apply to one party as a payor, or to both?

As we write, we are unaware of any appellate precedent or any pending cases that will provide the answers to these questions. But rest assured, that even if they do, there are plenty of other questions in the pipeline.

 

House Bill No. 3091: An Act to Expedite Care and Custody of Minor Children Modification Proceedings

Wednesday, July 05, 2017

Representative Markey of the 9th Bristol District has filed a bill to permit modification of a judgment on child care and custody matters only, without the need to file a new action. It contains provisions for a motion filing fee, preliminary hearing and discovery. The bill provides for evidentiary hearings, but only if requested by a party or set by the court as an exercise of discretion. Temporary orders may enter, mirroring the standards of M.G.L., ch. 208, §28.

We wonder why this bill and why now? It dispenses with the due process requirement of a modification complaint and encourages expedited proceedings, but is that a good idea? Current practice requires a new modification action, but it permits temporary orders and mandates a case management conference at which the court may enter expedient procedural orders that regulate discovery. So, what is new, really?

We presume that the drafters believe that child custody matters require a faster track than other matters involving child support and alimony. But the bill begs two questions: is this really an improvement; and it is good to make custody proceedings a little bit easier to pursue? The answers, in our view are “not really” and “not necessarily.”

There is no doubt that family law proceedings generally take too long and cost too much. But cherry-picking custody cases does not cure these manifest problems, and it may just encourage heedless litigation. Research shows that the most damaging part of post-divorce custody is parental failure to agree on a parenting plan, and continued fighting. Making custody modification even a little bit easier may just encourage more custody modification litigation, which, as a phenomenon, benefits only lawyers.

If permitting judgment modifications by motion, as some states do permit, on the theory that any custody or support matter is technically a continuing matter until terminus, then it should be part of a broader reform of all family law statutes. But, singling out custody matters strikes us as symbolic at best while encouraging litigious parenting.

 



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