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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.

 

“Reconstituted” Majority Nixes Panel Consensus, Again

Wednesday, October 21, 2015

Well, maybe we were wrong about this happening infrequently, and we just woke up to it. Or maybe it is a new trend.

On the heels of Pfannenstiehl, in which a “reconstituted majority” vetoed the 2-judge majority who heard the case, AT v. CR is a new decision in which Justices Meade and Blake’s consensus failed, when other non-panel justices rallied with Justice Hanlon to nullify the panel majority. It is not a family law case, but, rather, a juvenile harassment case.

Again, the majority became dissenters, with Justice Blake (a veteran divorce lawyer and former Probate and Family Court Judge) writing a crisp dissent, joined by Justice Meade. Perhaps coincidentally, Justice Berry, whose minority panel view ultimately prevailed in Pfannenstiehl, voted in the rump majority that carried the day, here.

What’s going on up there at the Appeals Court?

 

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.

 

Twinkies’ Mediation Reported

Wednesday, November 21, 2012

The Boston Globe greeted pre-Thanksgiving readers with the news that Twinkies are not yet dead. After Hostess Brands concluded that it could not survive negotiations with it bakers’ union, it asked the U.S. Bankruptcy Court for permission to convert its reorganization to a liquidation. Panic-buying consumed pre-fiscal cliff America, as Twinkies sales of $4 and $5 a pair were reported from online buying services.

But, the Bankruptcy judge pulled Ding Dongs from the brink. He ordered the ailing Hostess into mediation with the recalcitrant union, on strike since October, over threatened retirement and health insurance cutbacks. It is a time-limited reprieve: 24 hours to mediate. But the loss of Ho Ho’s, 300 reported jobs in Massachusetts alone and presumably the interests of creditors demanded one last effort, with the help of a skilled facilitator. So, the last firewall between a public starved for nostalgia (despite its presidential election decision – or maybe because of it) and its prized junk food is mediation.

Well, maybe not. The Globe also reported that the pending bankruptcy has drawn companies who are circling to pick the Twinkies brand from the bones of the dying Hostess, should she not survive the last-ditch mediation effort. Naturally, we are rooting for the mediator.

 

Mutually Acceptable Solutions can be Reached through Family Mediation

Wednesday, April 04, 2012

Family decision-making can be very difficult, and sometimes situations get out of hand. When perspective becomes scarce and it is hard to see the forest for the trees, whether it be an elder care matter, a dispute over a will, a divorce, attempting to prevent a divorce or difficult parenting situation, it can be the right decision to bring in mediators or arbitrators.

Family mediation means that a neutral, trained professional will work with the parties involved in the family conflict to discuss all of the issues and to explore the possible options for settlement, and to identify solutions that best meet the needs of all persons involved. Facilitated negotiation is the path to resolution.

Mediation is a voluntary, confidential process in which we help both or all parties to identify and discuss issues of mutual concern. Together we will explore various solutions and develop a settlement that is acceptable to all or both of the parties.

Sometimes parties need mediation followed by arbitration, because resolution by agreement proves elusive. We call that Med/Arb. This is a confidential process in which we help both or all parties to identify and discuss issues that of concern. It is our job to help all parties explore various solutions and decide on a settlement with which all concerned can live. If the mediation does not succeed, we “switch hats” and make a decision for the parties, out-of-court an in a timely and cost-effective way.

 

What is Arb-Med?

Wednesday, March 28, 2012

We have discussed arbitration, mediation and the variant, “med/arb”, in previous blog posts. Med/arb is a process in which an impartial party attempts to facilitate negotiations that will hopefully lead to a resolution of disputes between or among them. If the negotiation fails, then the mediator switches “hats” and makes a decision for the parties as an arbitrator, to which the parties are generally bound. Recall that one of the perceived problems with med/arb, is that people worry that information that comes to a mediator in a confidential process that encourages candor and positional risk-taking, may result in an arbitrated result based on information that may not otherwise have come before the arbitrator, had not he/she been privy to the mediation first.

Arb/med solves this problem. First, the disputing parties offer evidence (information) to the neutral acting as arbitrator at whatever level of formality that the parties themselves have agreed to use. The arbitrator makes a decision, but does not disclose it to the parties at this point, and hopefully never will, because the arbitrator puts that arbitration “award” into his/her “pocket” and then changes hats, this time to that of a mediator. He/she then works with the parties in an effort to facilitate agreement between them. The mediator has not been at all influenced by relaxed disclosures before the decision is written, and the award will not change by what occurs in the later mediation.

If the parties then settle their matter, the arbitration decision has no legal significance, and the parties will never know the result, unless they agree for reasons other than legal impact, they agree to have the arbitrator-turned-mediator disclose it. At Levine Dispute Resolution Center LLC, we see this hybrid process having great merit in those cases where the parties either want or need to know that their dispute will end expeditiously, privately and cost-efficiently, even if they cannot settle it themselves; but they are unwilling to do that until that have a good faith and sincere effort to maintain control over their own controversy by making the full effort of negotiated settlement, first.

 



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