781.708.4445

info@levinedisputeresolution.com

Divorce Mediation Blog

O Pfannenstiehl! Part 3: No Wonder We’re All Confused (Be Careful What You Wish For)

Wednesday, October 28, 2015

In our last Pfannenstiehl entry, we looked at the internal inconsistency of the Massachusetts Appeals Court decision, in which it found that the husband’s trust interest was a divisible marital asset, and that he can access its fruits, freely. But, when the trustees called the trial court’s bluff by refusing to give the husband money to pay the wife under the divorce judgment mandate, the appellate court blinked, concluding that trial judge was wrong under the law in enforcing her judgment with the coercive powers of contempt.

Putting aside the impact on the public in future estate planning, family law negotiations, divorce mediations and litigations, what about Mrs. Pfannenstiehl?

We have to assume that the trial judge adopted the wife’s theory the case, or some proximate version of it. The extremity of the result left the husband with little option but to appeal, which he did. But, in a strange irony, while he lost again on the substantive questions, he may have won a larger battle, when the Appeals Court vacated the contempt judgment. There was no remand. There is no re-trial. There is no ready way for the trial judge to make her judgment more enforceable.

So, what does the wife have to show for her efforts, time and cost?

She is a judgment creditor, which gives her 20 years to collect, under Massachusetts law. She is denied the normal enforcement remedies for divorced persons: either a Probate and Family Court contempt, with its coercive powers and streamlined procedures; or, for people with surviving agreements, breach of contract actions in the District or Superior Courts (she has no contract).

Might she sue on the judgment in a supplementary process action in the Superior Court? If so, she would have to bide her time and determine when the husband might have the provable resources against which to proceed. But how will she know? There is no known divorce order to the husband to disclose future circumstances, as there might have been with an “if and when” assignment order. And, she would have to fund the action.

Could the wife obtain some form of equity relief through an action under M.G.L., 215 ch. §6, asking the Probate and Family Court to create a supplemental judgment that obliges the husband to disclose and/or pay over any sums that he ultimately receives from the trust? If so, his failure to disclose may give rise to contempt exposure.

We doubt that she could bring a complaint for modification, because nothing has changed! The trustees stopped distributing on the eve of divorce, and post-divorce, they are just doing more of the same.

Might she negotiate, or even mediate a solution with the husband? Maybe. To avoid the threat of the wife laying in wait to enforce the judgment, and to avoid paralyzing the trustees, the husband might drive down the price to an acceptable level, and then pay off the judgment agreeably (with the trustees’ acquiescence, of course).

Or maybe the SJC will take the case, with who knows what result.

We will take a guess on that, in later blog entry.



Get e-mail notifications of new blog posts! Enter email address below.:



Delivered by FeedBurner