We have often wondered about the wisdom of Rule 1:28, by which individual 3 judge panels of the Massachusetts Appeals Court issue case decisions that are not endorsed by the Appeals Court itself. The rule cautions that these cases are not to be used for precedential value but may be advanced for persuasiveness. Each decision bears a legend warning that it is primarily intended for the attention of the litigants themselves, and thus, may be include abbreviated facts. The latter point is particularly problematic in family law cases which are notoriously fact-specific and in which judges have broad discretion.
In the recent, and very brief opinion of Graham v. Graham, the panel upheld a contempt judgment and modification complaint dismissal of the Probate and Family Court. While the court addressed the modification gatekeeping provision of Section 5 to the Alimony Reform Act (eff. 3.1.2), we found the court’s explanation about why it upheld the trial judge’s financial findings about the husband’s income more interesting.
According to the Appeals Court:
In the first year of his newly founded [law] firm, the husband was responsible for eighty-nine percent of the firm’s earnings, yet he unilaterally decided to forego a salary. His new wife and law firm partner…however, received a salary.
The trial court called the husband’s representation of reduced income: “…nothing more than ‘creative bookkeeping’ ”; and the appellate panel called it “whimsy”.
The devil is always in the details, we have to wonder if something was missing from this summary account. Could Mr. Graham really have attempted to manipulate the facts so transparently, and with so little chance of success? If so, why would he have appealed and risked the public exposure of an appellate opinion? We are left thinking: there must be more to the story.