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Divorce Mediation Blog

“[T]he Parties Proceed at Their Own Risk” in the Probate and Family Court: Smith v. Smith

Wednesday, June 27, 2018

Levine Dispute Resolution - Alimony

For decades, Massachusetts divorce lawyers have advised their clients that if they depart from their divorce judgment obligations informally, and don’t incorporate their new deal in a modification order or judgment, they cannot rely on their consensus alone if one of the party decides to enforce the divorce orders that still exist, in court. The Appeals Court now says that we have all been wrong, with the blazingly ironic “... the parties proceed at their own risk.”

In a court system and body of law with judicial discretion that sometimes takes the breath away, life just became even less predictable. As did advising clients.

In Smith v. Smith, the husband accumulated $87,400.00 of alimony arrearages but claimed that he did so with the wife’s advance agreement, sometimes in return for his taking on voluntary financial burdens for emancipated children. The wife eventually thought better of her purported compromises, and she sued. The Probate and Family Court judge bought the husband’s claim that he relied on the wife’s prior agreements to his detriment, rejecting the wife’s claim of coercion, and wiping out the husband’s arrearages.

For reasons not addressed in this entry, the Appeals Court reversed the Probate Court’s retroactive reduction of the husband’s alimony, but it upheld that trial judge’s ruling of non-contempt, because the wife’s consent precluded a finding that the husband’s violation of the alimony orders was “undoubted”. So much for the previously given truth that only the court can modify its own orders.

In support, the Appeals Court cited its own Wooters v.Wooters, a case in which the husband was relieved of a contempt finding, while the established an alimony arrearage nonetheless, because of a bona fide dispute about the meaning of the alimony order: did a divorce judgment that ordered a lawyer to pay his wife a third of his compensation apply to a stock option income, that didn’t exist at the time of divorce, but arose later, when the husband left law practice for a corporate job.

Readers can reasonably debate the Appeals Court’s conclusion in Wooters, but what does a legal dispute over the meaning of the previous order have to do with the Smith judgment, with orders of unquestioned meaning? In fairness, the Appeals Court’s citation was limited to the principle that an arrearage (they even called it a “violation”) need not compel a finding of contempt. Wooters to Smith is, at best, a non sequitor.

An important principle was at stake, here. Either parties can or cannot supplant the court’s authority by their own behavior. If they do, the violation cannot be doubted. The question, really should be “can it be excused?

The answer to the real question now appears to be a resounding “maybe”, as in “maybe they can”. In a field where lawyers struggle to give clear and assured advice, life just became more, rather than less, uncertain.

 

… Bad Boys, Whatcha Gonna Do? The punishment exceeded the crime for divorce property division in D.R. v. D.A

Wednesday, June 13, 2018

Levine Dispute Resolution - Divorce Property Division

We will not bore you with our complaints about Appellate Rule 1:28 again, but …

In the case of D.R. v. D.A, the Massachusetts Appeals Court found that the Probate Court judge “gave undue weight to the husband’s ‘bad’ conduct such that the grossly unequal asset allocation ‘falls outside the range of reasonable alternatives’”, vacating the 4 to 9 per cent asset allocation to the offending spouse (the parties gave different computations), a difference that the appellate panel deemed “immaterial”.

The bill of particulars against the husband: voluntary unemployment, controlling and abusive behavior, no contribution to household tasks and unexplained negative impact on the habitability of the martial residence. The trial judge concluded that the husband contributed “little to the marital enterprise…economically or otherwise [and negatively impacted] the wife’s wellbeing.”

Elaborating on prior case law in which the Massachusetts courts had established that “conduct” that “harmed the marriage or the marital estate” could lead to diminished recovery under equitable property distribution principles, the Appeals Court resorted to a graphic treatise treatment:

    Negative conduct, to be more than a featherweight factor, must either be economically detrimental to the welfare of the partnership, such as by undermining the family’s economic stability such as through disposal or waste of martial assets, such as through unlawful or fraudulent acts, or be so egregious as to impair the ability of one spouse to function in the future

A pretty specific set of limiting criteria: the kind that a court that intends to assert clarifying precedent would use. The again, D.R. may not be cited as precedent.

 



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