Divorce Mediation Blog

Wanted: An SJC Case to Challenge the “Real Advantage” Standard: Chief Justice Gants’ Compelling Concurrence in Miller v. Miller

Wednesday, March 07, 2018

Levine Dispute Resolution - Divorce Mediation

Concurrences are rare in family law cases, but when the Chief Justice writes a clear-eyed one with firm conviction, people take notice. C.J. Gants, with Associate Justice Gaziano joining him, did not take issue with majority’s decision, but rather the “analytical gymnastics” necessary to find it. They were right.

The source of the problem is less 1985’s Yannas v. Frondistou-Yannis, though that case alone has doomed the efforts of countless “non-custodial” parents to resist the removal of their children to other jurisdictions than the more problematic case of Mason v. Coleman (2006), or as the concurrence points out, the toxic intersection of the two cases.

It is Mason that undermined decades of effort in the Probate and Family Courts, and among its practitioners, to tone down the fight over custodial labels by fractious parties, by awarding access to the lower-bar “real advantage” removal test to parents with “sole physical custody”, setting up a two-stage fight in every potential removal case: first, does someone have sole physical custody (later modified to be a “functional” test rather than a legal label); and if so, are the childrens’ best interests driven by that individual parent’s personal needs?

It took the Miller case to put this problem into stark relief, presenting a matter where no labels, or functional findings, could have attached previously, since it was the time of divorce. Thus the court had to conclude, based on the messy life of an intact family, who would have been hypothetically denominated the physical custodian. A fiction on top of a fiction – and one that Judge Gants persuasively argues ought to end.

Whether the Mason problem is a product of a fundamental mis-perception of Yannis may be beside the point that both the Miller majority and concurring justice make: that the best interests of the child is meant to be the overarching inquiry for every removal case. For too long practitioners have accurately read the trial court’s predominant “read” of Yannis, namely, that the primary caregiver’s personal needs pretty much trump further inquiry, absent spousal spite, or a child who is too young to yet be bonded to the parent who would be left behind in Massachusetts.

Justice Gants’ point: artificial jousting over the label, or even the “functional” reality of primary caregiving, is too often confounded by informal parenting histories, by self-serving constructs and by too little historical precedent (as in Miller); and it does not serve the ultimate policy of finding and enhancing children’s outcomes via a straight up best interests inquiry. Rather, the exercise can range from pointless to damaging, by obscuring the true issues.

Justice Gants is also right that a primary care parent’s individual needs and interests cannot, and should not, be ignored. The certainly can be critical to a child’s interest; just not always so, and as often, not conclusively. We hope that the opportunity arises for the SJC majority to follow its Chief, as they may have signaled in Miller already, acknowledging but deferring the issue to another day and case, wherein one of the parties directly challenges, briefs and argues the issue on appeal.

We hope that that opportunity comes soon.


GOP Plan to End Alimony Deductibility: Time to reform the Alimony Reform Act?

Monday, November 20, 2017

Levine Dispute Resolution - Alimony

The House GOP seems to think that repealing §215 of the Internal Revenue Code is a good idea. We have long believed that there are probably too many alimony-paying lawyers in Congress to let this day ever come. It probably won’t, but if it does, it will plunge the Alimony Reform Act (ARA) (eff. 3.1.12) into crisis. Either way, the legislature needs to respond.

M.G.L., ch. 208, §48 defines “alimony” as: “the payment of support from a spouse, who has the ability to pay, to a spouse in need of support for a reasonable length of time, under a court order”. Nothing about tax impact. The drafters, like us, clearly took deductibility under federal and state law for granted.

Moreover, M.G.L., ch. 208, §53(b) defines a “reasonable and lawful” presumptive formulation for general term alimony, stating the general term alimony should generally not exceed the recipient needs, or 30-35% of the difference between the parties’ applicable gross incomes.

This statutory range makes the same once-safe assumption: that IRC §215 allows parties to leverage dollars to the family’s benefit, by shifting income tax from a higher progressive tax rate of the payor, to the payee’s lower rate.

If the alimony deduction dies, it will take the viability of §53(b) along with it. Yet, the zombie statute will persist, entitling litigants to rely on it, despite its infirmity; unless and until the state legislature takes corrective action. This will not happen overnight – these things never do – and in the meantime… Sophisticated divorce agreements have “savings” clauses, which help people adjust alimony sums in the unlikely event of a deductibility repeal, and the GOP plan grandparents existing judgments, at least until modification. But modification cases and new divorces won’t get off so easy.

Maybe, the legislature should take the GOP proposal as a warning shot, at least. The legislature could act pre-emptively. Sections 48 and 53(b) at least need reformulation, regardless of Congress’ ultimate action. We should convert the assumption of the tax-shifting leverage of continued deductibility for alimony into a clear predicate for the ARA, with provisions to address the alternative.

And, if the unthinkable happens, it’s better get started now.


Woulda, Coulda, Shoulda? Not So Much (The SJC weighs in with “interests of justice” alimony guidance) George v. George

Wednesday, December 21, 2016

[Note: This blog is corrected to eliminate what we conclude was mistaken in our previous observation that the Supreme Judicial Court had incorrectly stated that the standard of proof for extending alimony beyond its durational limit is the “preponderance of the evidence”. Since this is only a blog, we can correct our errors with the stroke of the keyboard, so we do! We apologize to you, and thank our friend David Lee for pointing this out to us.]

The Massachusetts Supreme Judicial Court (SJC) recently waded into the murky waters of durational alimony limits under the Alimony Reform Act (eff. 3.1.12) in George v. George, upholding the trial court’s denial of relief to an alimony payor on technical grounds, but:

    …utiliz[ing] this opportunity to set forth guidance for how the “interests of justice” standard of [M.G.L., ch. 208] §49(b) should be applied when determining whether deviating beyond the durational limits of the act is warranted.

Which they did – sorta.

First, the SJC rejected the inevitable argument in modification of pre-ARA judgments – that alimony recipients who negotiated equal property divisions at a time when case law generally precluded courts from restricting the length of alimony, when faced with newly enacted durational limits, would equitably argue that had they known that alimony would not continue indefinitely, they would have asked for more property.

The SJC understandably reasoned that the trial judge's acceptance of that argument was not only based on speculation, but if allowed to stand, it would negate the retrospective effect of durational limits for pre-ARA judgments, inconsistently with the statute, and its own precedents. Hence, our title.

The SJC then stated that:

    Further, a judge should evaluate the circumstances of the parties in the here and now; that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce. As a logical example, the justices posited that if the recipient were disabled at the time of the initial alimony award, the trial court may consider the current level of disability, as that may impact on present needs.

Then, the murky got just a little bit murkier. The SJC noted the trial court's broad discretion in setting alimony, but also set out the specific text of M.G.L., ch. 208, §53(e), with 8 specific criteria that a court may consider when initially ordering, or modifying alimony, plus the 9th innominate “anything else relevant" factor.

Unfortunately, the SJC deviated from statutory text, again, by replacing the legislature’s suggestion that the trial court "may" consider the §53(e) factors, with "here, the appropriate statutory factors to be considered are…” (italics ours), curiously passive, but a mandate nonetheless. In turn, this creates a bizarre anomaly, in relation to factor # 6, which requires, by the SJC’s lights, that the court weigh:

    … significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining length of the marriage; …

Mischievous minds wonder if the trial court's initial determination of the length of the marriage, and hence the durational limit itself, is up for redetermination at the time of potential extension? At a different time, in a different place by a different judge? Does this mean that a party who did not raise significant premarital cohabitation as an issue at the time of divorce is not precluded from raising it at the time of requested extension? Is the issue ever precluded?

All the result a not-too-careful, and unfortunate, shift of statutory language.


Making A Bad Situation Worse: Rosenwassser v. Rosenwasser

Wednesday, August 10, 2016

In Rosenwasser v. Rosenwasser Massachusetts Appeals Court recently faulted a trial judge for denying a father’s request to “remove” his daughter to the State of Florida, dissecting her application of the facts to the two-pronged “real advantage” test that governs such requests by primary custodial parents, with painstaking care and convincing detail. Piling one critical point on another, the opinion yielded two inevitable conclusions: that the trial court ineffectively weighed and explained the advantages for the father in his requested move; and she over-weighted the hope that the mother’s recent efforts to kindle a relationship with the child would result in a benefit for the child. All signs pointed plainly to reversal.

Then, without explanation, but inexplicably calling it a “close call”, the Appeals Court remanded the case for more trial court hearings, more written findings, very probably another appeal; deferring any final decision and prolonging the agony for another family in limbo. A really fine decision turned bad: a victim of appellate irresoluteness.

Too often, as we learn again, litigation is a futile exercise in matters involving children.

Here’s why. The child was in utero when the parties separated in 2010. Shortly after the divorce, the mother became unavailable for mental health reasons. By 2012 a partial modification judgment formalized the father’s assumption of exclusive care for the child, a fact on the ground since shortly after her birth. For two of the child’s first three years, her mother was an infrequent presence in her life.

In August 2012, the father sought permission to move, for very strong reasons under the law. Trial did not begin until a year later and concluded five months after that. The trial court’s new judgment entered in July 2014. The husband’s appeal absorbed another 24 months, resulting in the Appeals Court opinion on June 17, 2016.

Just since the father filed his request to move child has aged from two to six years, fully two-thirds of her young life. With the Appeals Court’s tepid remedy, the clock continues to run, and it is fair to predict that this case will continue into 2017 and perhaps well beyond. The facts on the ground change daily, as the system grinds on, blind to the stress that this process imposes on a young child, whose road is difficult enough.

One bedrock principle that appellate law imposes on the trial court is that a judgment must logically flow from the facts found in the case. We wish that the Appeals Court applied this standard to itself.


Beware Facts v. Law: Goddard v. Goucher, a Cautionary Tale

Wednesday, April 27, 2016

The Massachusetts Appeals Court recently upheld a judgment of the Superior Court, in which the trial judge adopted the parties’ statement of uncontested facts, but rejected their agreed subsidiary conclusion drawn therefrom. In Goddard v. Boucher, 89 Mass. App. Ct. 41 (2016), the trial judge applied the stipulated events surrounding a draft purchase and sales agreement, but ruled that no enforceable contract had arisen, despite the parties’ contrary agreement.

A piece in the April 18, 2016 issue of Massachusetts Lawyers Weekly (p.38) highlighted the case, catching our eye. We are grateful to the authors, Vincent J. Pisegna and Anthony J. Cichello, because we might not otherwise have noticed this important case, since the context falls outside our usual family law bailiwick. Yet, the Goddard holding applies, no doubt, to all trial proceedings, including family law matters in the Probate and Family Court; and it provides a bright caution light for all litigating counsel. In our service as special master and arbitrator, it is pertinent to our practice, too.

As the Goucher court pointed out, fact stipulations are both “common” and “useful”, Id., at 45, and they will be honored by the trial judge unless “improvident or not conducive to justice.” Id. However, “…the court cannot be controlled by agreement of counsel on a subsidiary question of law.” Id. (Our italics.) In other words, the parties can agree to facts but should not expect the court to be bound by the legal conclusions of that they may draw therefrom.

In divorce, modification, contempt and other Probate and Family Court matters, the court encourages stipulations of uncontested fact. Pre-trial and trial orders generally require them. But how many times have we all entered into, or seen, stipulations that mix facts and law this way.

Some common examples of fact-based legal conclusions:

    -- The parties agree that an equal division of the marital estate is equitable.
    -- Neither party engaged in conduct that is relevant to the distribution of property.
    -- The parties have lived a [upper] [lower] [middle] class lifestyle.
    -- The parties have equal opportunities for future [assets] [income].

Woe to the trial counsel who so stipulates and then watches the opposing party put in facts that belie one of those subsidiary conclusions. Under Goucher, the court may conclude otherwise – prompted or not by the opposing party – to the detriment of the party who made strategic trial decisions in reliance on the stipulation as a whole.

Similarly, the parties may choose to put mixed fact and law statements into separation agreements. Under Goucher, some unhappy litigant in an enforcement or modification dispute may find that the court is not bound by agreed legal conclusions, such as:

    -- The termination of [alimony] [child support] [allocated support] shall be deemed a substantial and material change of circumstances permitting modification of[child support] [alimony] [expense sharing provisions].
    -- A delay in performance shall be deemed a material breach that entitles the other party to statutory interest and counsel fees.

-- A [particular parental decision] shall be deemed to be [consistent with] [contrary to] the best interests of the child.

-- A parent’s move to a location of greater than [20 miles] [20 minutes] from the [other parent’s home] [child’s school] shall entitle the other parent to a modification of the agreed parenting plan.

Best practice urges that we all re-examine our drafting practices, whether in litigation or in agreement drafting, in light of this challenging ruling.


O Pfannenstiehl! Part 2: No Wonder We’re All Confused (The Appeals Court Doesn’t Even Agree With Itself)

Wednesday, October 14, 2015

At least they aren't throwing food at each other, or publicly calling each other names, as the current U.S. Supreme Court is wont to do. In our last blog entry, we discussed the interesting turn in this appeal, from a minority of 1, to a majority of 3 justices, in search of consensus of all Massachusetts Appeals Court, taking this important case away from the judges who heard it, in favor of a majority of the overall bench.

But, the reconstituted majority opinion doesn’t even agree with itself. Here’s why.

Almost casually, the prevailing opinion concluded that:

  1. the husband’s beneficial trust interest is a marital asset;
  2. the husband’s interest is worth 1/11 of the [presumably gross] corpus;
  3. that the wife’s share of the husband’s interest is 60% thereof; and
  4. the husband (in addition to yielding 60% of the non-trust assets) should pay out the wife’s share of his trust interest, in cash, over a 2-year period.

This, despite the fact that the husband is part of a beneficiary class that is open to expansion, and that the trust (no matter how indifferently administered in the past) provides no apparent means by which the husband could compel distributions to pay out the required sums to the wife.

But having concluded and implicitly ruled that the husband could make the required payments…

The court then proceeded to vacate the trial court’s judgment of contempt, in which she found the husband guilty, after he stopped paying the monthly sum to the wife. The reason: that he did not have the ability to pay because the trustees had declined to distribute the funds.
Thus, in the same decision, the Appeals Court ruled that:

  1. The husband as an enforceable right to receive distributions, which gives him the ability to pay out the required sum; and
  2. Because the trustees refused to make distributions that the court concluded he can compel, the wife cannot enforce judgment.

At least, the trial court had the courage of its conviction.

So, what does this opinion do for Mrs. Pfannenstiehl, as a practical matter? We’ll tackle that in our next entry.


O Pfannenstiehl! No Wonder We're All Confused Part 1: The Appeals Court's Fuzzy Math

Thursday, October 01, 2015

Lawyers will be talking about the recent Massachusetts Appeals Court case, Pfannenstiehl v. Pfannenstiehl, for years to come.  Decided on the question of what happens when trusts and divorce collide, it is rocking the family law and estate planning bar, alike.  We have read it, read it and read it again; and like pollen in allergy season, and the winter snows of 2015, the head-scratchers just keep coming. 

Over subsequent blog entries, we will address the substance of the case (there’s lots to talk about), but for today, we are most curious about the fact that this controversial decision was decided by one panelist (Justice Berry) of the three who heard the case, while the majority disagreed strongly enough to write (Justice Fecteau) and join in (Justice Kantrowitz) a, exceedingly rare family law dissent, a compelling one at that.

From footnote 2 of the decision, we learn that the panel was “expanded” to include two justices who did not participate in the argument of the case, but jumped in only after the circulation of the opinion.  Admittedly unfamiliar with this process, which struck us a bit like expanding the World Series to nine games because the wrong team won, we read the authority cited, and found that it is grounded in Mass. R.A.P. 24 (a); and that:

    The procedure that was followed reflects a long-standing practice of the Appeals Court, designed to ensure that published opinions reflect the view of a majority of the Justices. See Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562 , 566 n.7 (1985), indicating that published opinions are considered by the entire court prior to release. In the case of a dissent, if a majority of all the Justices agrees with the majority of the panel, the decision is published as a two to one decision of the original panel. If a majority of all the Justices agrees with the dissent, the panel is enlarged to reflect the view of the majority of the court, generally by adding to the panel the two senior Justices who are part of the full court majority.

Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993) (our underlining).

Let’s break it down:

  1. In the case of a dissent, if a majority of all the Justices agrees with the majority of the panel, the decision is published as a two to one decision of the original panel.

    The opposite occurred, here. An apparent majority of the court agreed with Justice Berry, who was the minority on the panel.

  2. If a majority of all the Justices agrees with the dissent, the panel is enlarged to reflect the view of the majority of the court, generally by adding to the panel the two senior Justices who are part of the full court majority. 

    The implication is that Justice Berry began as the lone dissenter. She then succeeded in gaining a majority, off-panel, consigning the panel majority to the dissent; and, reversing the will of the panel.

Apparently, the events of this case are not unique, but we presume them to be uncommon. One result of this action is that the Appeals Court negated the majority opinion of the justices whom the litigants assumed, incorrectly, would determine their fate.

Is this good policy? As long as Rule 1:28 exists, might it not have been better to simply allow the panel majority to stand, and if the rest of the justices felt it just, limit its impact beyond the parties themselves, with a non-precedent, unpublished opinion?

Were this case a simple one or if it were unassailable in its analysis and result, this curious procedure might matter a whole lot less. But as we will discuss in subsequent entries, this case is anything but. In our view, it is highly problematic.

We hear that a request for further appellate review before the Supreme Judicial Court is likely (if not already pending); and we hope that the SJC takes it. If so, we also hope that the SJC reviews the “longstanding practice” of re-constituting the panel in these circumstances.

Before Yankees fans were cut down to size in 2004, some used to joke that 1975 was the only World Series ever won, 3-4. Maybe the Series actually did revert to nine games that year, and we all just didn’t know it!


Who Says that Mediation Needs Reclaiming?

Wednesday, April 01, 2015

Maybe we are the victims of poor training, but we don't think so. In fact our training was pretty good. At core, we learned that divorce mediation is:

A confidential...form of structured negotiation designed to help the clients reach an informed agreement with the assistance of one impartial mediator...the goal of mediation is to reach a fair and lasting agreement, one which will be approved by the appropriate court and allow the clients to divorce. Read more



Wednesday, February 11, 2015

In our last entry, we reviewed the common central holding of this trio of cases; namely, that with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years, alimony payors under judgments that preceded the Alimony Reform Act (eff. 3.1.12) (ARA) cannot benefit from the presumptive retirement age termination provisions of the statute. Today, we look at what seems a particularly unfair precedent on cohabitation that Chin v. Merriot sets.

While many believe that these cases were decided wrongly on the retirement age question, as a matter of statutory construction, there was an unspoken principle that may have understandably influenced the Supreme Judicial Court’s (SJC) rulings. Specifically, countless pre-ARA alimony recipients negotiated property and support deals in a legal environment where alimony payors had no expectation of any pre-ordained termination of alimony short of death or, presumptively, the ex-spouse’s remarriage. Most payors could not afford to pay a premium great enough to achieve an automatic retirement, or retirement age, termination; therefore, payees lacked the “opportunity” to demand one, such as a higher alimony sum, or more property. The prospect of having have these alimony recipients made vulnerable to a presumptive retirement age cut-off that did not exist at the time of their divorces created the aura of potential, and in many cases, substantial inequity. Had they known, one might have worried, the payees might have negotiated differently; and they may have lived and planned differently in the period between divorce and the legislature’s alimony overhaul.

In Chin v. Merriot, though, the SJC went a step further in response to the Husband’s claim of relief due to the Wife’s cohabitation. The same huge class of alimony recipients, who rightfully did not anticipate a presumptive retirement age termination, also did not expect that the status of cohabitation with another person would require a court to reduce, suspend or stop alimony, when they made their deals. Since all of that changed with the ARA, one might be tempted to say that the same putative inequities existed that would justify pulling cohabitation within the sweep of the SJC’s retirement age rulings; but one would be wrong.

There is a huge difference.

First, every alimony recipient has been on notice since 1990’s Freedman v. Freedman that at least to the extent that a cohabiting relationship was found to reduce need for alimony, relief was available to the alimony payor. M.G.L., ch. 208, §49(d) codified the remedy, made it more explicit and did not stress the requirement of showing need reduction. But, the mere fact that the statutory relief can range from a $1 reduction to outright termination shows the needs question to be a live one under ARA, just as it was before. Every alimony recipient for the last quarter century has been fairly chargeable with the knowledge that cohabiting can jeopardize alimony – very unlike mere retirement age. Second, and more compellingly, since the legislature passed the ARA in 2011, and certainly since its effective date on March 1, 2012, everyone who has paid attention to alimony matters at all, has been on notice that the court must now do something, if a common household is properly pleaded and proved. No one cohabiting in 2015 could justifiably plead unfair surprise.

So, it follows that the prejudice to alimony recipients on the cohabitation question is not remotely the same as to those of those for whom retirement age termination was really an abstraction. Certainly, those who commence cohabitation after March 1, 2012, are fully on notice of their vulnerability should they choose to pursue a common household.

We wonder if the SJC considered these differences in deciding Chin v. Merriot, but felt no alternative to sweeping cohabitation in with retirement age so as to justify their reading of uncodified §4 of the ARA as trumping M.G.L., ch. § 49(f). Whatever the court’s reasoning, pre-ARA payors take the hits uniformly. On retirement age, we can see it; but on cohabitation – at least post-ARA cohabitation – clearly not.

It is very – very – hard to believe that this furthers the legislature’s intent.

We will conclude our discussion of these cases the next time, with another aspect of the Rodman v. Rodman decision that should really keep alimony payors – and their lawyers --- up at night.



Wednesday, February 04, 2015

O.K., let’s get the sexist title out of the way. Alimony law is gender blind on paper, but in the pre-Alimony Reform Act (ARA) (eff. 3.1.12) era, most alimony payors were (and are) men. To be fair and accurate, the Chin, Rodman and Doktor cases are equally bad news for pre-ARA alimony payors who are women. It’s only a blog title.

Now, for the cases.

In one remarkable morning last year, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments on three cases that all turned on a single question: do alimony payors whose divorce judgments entered before ARA’s effective date have the benefit of substantive termination and modification rights changes that the new law has wrought? The answers, delivered three times over, also on the same day, is “no”, with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years.

Put more positively, an alimony payor whose divorce judgment preceded March 1, 2012 can seek a termination of alimony by reason of the ARA durational limit having been reached (50% of up to 5 year marriages, 60% of 5+ to 10 year marriages, 70% of 10+ to 15 year marriages and 80% of 15+ to 20 year marriages), without proving any other change of circumstances. But, we already knew that. Everyone else is left to the pre-ARA uncertainties and heavy burdens of prior decisional law, most notably including Pierce v. Pierce.

The three cases were variations on a theme: a payor asking to stop general term alimony payments because M.G.L., c. 208, § 49(f) says that such payments shall terminate at the payor’s attainment of social security retirement age. In Chin, the husband had reached that age before his divorce, while the Rodman and Doktor payors attained retirement age after divorce. Mr. Chin argued that M.G.L., chapter 208, section 49(f) trumps the “uncodified” section 4 of ARA (which provides that, excepting durational limits for >20-year marriages, ARA is not itself a material change of circumstances). Mr. Chin also argued that cohabitation modification rights (another “shall” in the statute) should apply retroactively. Mr. Rodman asserted that a merged alimony agreement merits different treatment than those cases with surviving agreements. Mr. Doktor claimed that his former wife no longer had the financial need for alimony.

All three of the plaintiffs failed. The SJC concluded that a comprehensive view of the ARA statute yields a clear legislative determination that uncodified sections 4-6 override the more payor-friendly substantive sections of M.G.L., c. 208, § 49-55 with the sole exception of general term durational limits. Agree or disagree, it is a clear rule. It is most certainly bad news for pre-ARA payors; and it protects their former spouses from having the rug pulled out from under support deals made when automatic retirement age termination was not obtainable in court, and rarely even negotiable, under then prevailing law. The SJC had a binary decision to make; and its reading of legislative intent promotes the payees’ interests over the payors’.

In our next entry, we will look at what seems a particularly unfair precedent on cohabitation that Chin v. Merriot sets, that is quite different than the retirement age question; and an aspect of Rodman v. Rodman that should really cost alimony payors some sleep.


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