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.


House Bill No. 3091: An Act to Expedite Care and Custody of Minor Children Modification Proceedings

Wednesday, July 05, 2017

Representative Markey of the 9th Bristol District has filed a bill to permit modification of a judgment on child care and custody matters only, without the need to file a new action. It contains provisions for a motion filing fee, preliminary hearing and discovery. The bill provides for evidentiary hearings, but only if requested by a party or set by the court as an exercise of discretion. Temporary orders may enter, mirroring the standards of M.G.L., ch. 208, §28.

We wonder why this bill and why now? It dispenses with the due process requirement of a modification complaint and encourages expedited proceedings, but is that a good idea? Current practice requires a new modification action, but it permits temporary orders and mandates a case management conference at which the court may enter expedient procedural orders that regulate discovery. So, what is new, really?

We presume that the drafters believe that child custody matters require a faster track than other matters involving child support and alimony. But the bill begs two questions: is this really an improvement; and it is good to make custody proceedings a little bit easier to pursue? The answers, in our view are “not really” and “not necessarily.”

There is no doubt that family law proceedings generally take too long and cost too much. But cherry-picking custody cases does not cure these manifest problems, and it may just encourage heedless litigation. Research shows that the most damaging part of post-divorce custody is parental failure to agree on a parenting plan, and continued fighting. Making custody modification even a little bit easier may just encourage more custody modification litigation, which, as a phenomenon, benefits only lawyers.

If permitting judgment modifications by motion, as some states do permit, on the theory that any custody or support matter is technically a continuing matter until terminus, then it should be part of a broader reform of all family law statutes. But, singling out custody matters strikes us as symbolic at best while encouraging litigious parenting.


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.


Lawyers Weekly Takes On Rule 1:28: We Agree

Wednesday, November 04, 2015

We have commented here, on a number of occasions, about the Appeals Court's use and misuse of Rule 1:28's so-called "unpublished" opinions.

They are informal, scant on facts and often reasoning, sometimes obscure and too-often just confusing to family law discourse. If the Appeals Court is not going to stand behind its cases as precedent, or if an opinion is truly for the sole benefit of the captioned parties, the public record would be better served by a simple "affirmed" or "reversed" notation. As public records, the "full" opinions would be available to the highly motivated, but the cases would not be citable from the current netherworld of "persuasive but not precedent", to which the Appeals Court has assigned them.

For that reason, we delighted in reading October 26th's Massachusetts Lawyers Weekly, wherein the Editorial Board opined, at p. 38, that newly minted Chief Justice Scott L. Kafker should pay "immediate attention" to the problem of Rule 1:28. Lawyers Weekly described the intent of the rule to address "straightforward cases" and that the Appeals Court overuses the rule to the public's detriment. While our critique goes further, the editorial's targeting of the issue is welcome; and we thank the board for its call to action.

Either way: elevate all opinions to the level of precedent, then analyze and write them accordingly; or reduce them to simple announcements of the action taken on appeal. We respect the burden that the Appeals Court's unchecked, non-discretionary caseload poses. But do something please, Chief Justice Kafker, about this unhelpful practice.


What is the point of Rule 1:28, really?

Wednesday, June 24, 2015

As we noted on our last entry, the recent Rule 1:28 decision Martin v. Martin is sparse on facts, a chronic condition of the Massachusetts Appeals Court’s “unreported” decisions, leaving us often thinking that “we must be missing something”. Martin was no exception. Today, we ask, as we have obliquely in the past, what is the point of Rule 1:28 anyway?

The Appeals Court hears and decides lots of cases, many more than the Supreme Judicial Court. Whether as a matter of caseload management, or otherwise, some cases are deemed worthy of “reported” status. These are cases that are heard by a 3-judge panel but vetted by the entire Appeals Court bench of 22-justices (plus one on “recall”), with opinion authorship identified. They are deemed “precedent” for lawyers to cite and argue, and for trial judges to observe and apply, trumped only by the Supreme Judicial Court (SJC). We believe that reported cases are selected because they offer what the court deems an opportunity to comment on a significant issue of law.

Then, there are the more numerous “summary decisions” that are always styled: “Memorandum and Order Pursuant to Rule 1:28”. According to the legend on every 1:28 decision, “summary decisions… are primarily directed to the parties”; they are “not circulated to the entire court”; and “…may not fully address the facts of the case or the panel’s decisional rationale.” Finally, the legend concludes that unreported cases: “…may be cited by lawyers for “…persuasive value but…not as binding precedent.”

First, if the decision is directly primarily to the parties, the people most directly interested in the outcome, why do they not merit the panel’s full decisional rationale?

Second, what exactly does it mean that an opinion may be persuasive but not precedent? Judges’ legal conclusions are meant to provide insight into their analysis, both so the parties can understand, but more formally, so that an appellate court can examine the trial court’s reasoning on appeal. A judge is obliged to cite to precedent upon which she relies, but not to what she finds merely persuasive. Doesn’t that obscure the judge’s full thinking; and, thus, in turn, undermine the reviewing process?

Third, rather than focus lawyers only on fully vetted decisions that the Appeals Court endorses as a whole, lawyers feel compelled to scurry for the latest 1:28 decision that may present sketchy facts that they can graft onto their arguments as a factual mesh with their own cases, but that by definition, have no precedent value. The result: attenuated arguments, bloated memoranda and a welter of inconsistent non-precedents that are deemed to be persuasive of something. Rather than cherry-pick comments (“dicta”) from cases that lack substantial factual context, shouldn’t legal argument be grounded in fully explained precedent, or a clear challenge to same?

We have a court system where the public has a general right to know about decisions. But, if the unreported cases are truly for the benefit of the litigants, why is it not sufficient for the Appeals Court to simply report “affirmed” or “reversed” in the public record. Or, why not report all reversals as “full” opinions that the public may easily access, and affirmances only where a significant evolution of law is taught. In most family law cases, an affirmance is simply defers to the broad exercise of discretion due to the trial court, which may have little or no true analytical value to anyone outside the case at hand; while every reversal is arguably a teaching moment.

Family law is complex enough on its own merits. There is no need to muddy the waters with non- precedent, when there is plenty of the real thing to go around.


In the Way Back Machine, or Where Are Our Priorities?

Wednesday, April 29, 2015

Monday morning’s email included a notice from Massachusetts Bar Association Chief Legal Counsel, Martin W. Healy (via the Norfolk Bar Association), that next week, the Massachusetts House of Representatives will take up MBA’s proposed legislation to increase the hourly rate paid to court appointed counsel in Child In Need of Services cases to $55 per hour, and for Family Law and Care and Protection cases to $60 per hour. The long-standing and present rate is $50.

Looking at the situation on the glass-half-full side, those are 10% and 20% increases, respectively. Not bad in a virtual no-inflation economy.

On the other hand, what kind of a society are we?

This news caused us to reflect on the fact that when one of us entered private practice of family law, his hourly associate billing rate was also $55 per hour. So where’s the beef? That was 1981. And, it was roughly half of the rate charged for seasoned practitioners in the practice.

Can it be that in 2015, the representation of children and indigents in the most profound child delinquency, abuse and neglect and custody cases, is not yet valued as highly as the lowest lawyer in a private family law firm of 34 years ago, a period over which the cost of living has increased nearly 2 ½ times?

We know that there is a difference between privately contracted legal relationships and taxpayer paid appointments. But the constitutional ramifications in state intervention cases are far greater than in family law matters generally; and for the children involved, these cases cast a lifetime shadow, good or bad.

Please support this bill. It is the least we all can do.


Rule 1:28 Decisions: Something Has Got to Be Missing Graham v. Graham

Wednesday, December 03, 2014

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.


Where Helter Skelter Meets Family Law: Wedding Planner Wanted

Monday, November 24, 2014

READER WARNING: This not a bit from The Onion. Unfortunately, it is real.

From the November 19, 2014 issue of The Boston Globe (page A2), reported by the AP, without the slightest hint of irony:

Manson, 80, to marry 26-year-old woman who is working for his release

Mass murderer Charles Manson plans to marry a 26-year-old woman who left her Midwestern home and spent the last nine years trying to help exonerate him.

After Elaine Burton said she loves the man convicted in the notorious murders of seven people, including pregnant actress Sharon Tate.

No date has been set, but a wedding coordinator has been assigned by the prison to handle the ceremony…

Sometimes, we just have to shake our heads and wonder about the state of our enlightened society. We can only imagine the interchange between Justices Scalia and Ginsburg the next time the Supreme Court addresses the sober issues of cruel and unusual punishment. Do you think that Charles and his bride will have to settle for DJ and buffet rather than a band and plated meal?

You couldn't make this stuff up.


What's In a Retainer? A Cautionary Tale

Wednesday, March 05, 2014

We were recently surprised by a client's statement she thought that a retainer is non-refundable. Our response was easy. The Massachusetts rules that govern the practice of law make clear that non-refundable retainer is an oxymoron. Retainers are advance payments that may be used to fund future services, with any unused portion refunded to the client. Isn't this something that lawyers have known for decades? Maybe not.

Lawyers Weekly recently reported that an attorney represented a criminal defendant and lost big when the client sued for what he alleged was an over charging: $120,000.00 for a case that resulted in a continuance without a finding. While the lawyer tried to characterize his initial $40,000.00 fee as part of the larger "flat fee", the judge whose jury found in favor of the client, re-branded the payment as a non-refundable retainer. The result: a $90,000.00 finding of unreasonable fee, tripled for consumer protection violation, and inflated to nearly a half million dollars, with accrued interest.

What was he thinking? The fundamentals of a retainer are long-known. While this already suspended lawyer may not be a reasonable measure of normal, we have to wonder how many lawyers engage in unethical billing practices because they do not know better? Even worse, are there some who do it purposefully because of the long odds of being caught?

There is nothing wrong with a retainer. If properly explained, it provides client commitment, a certain level of security and cash flow reliability in a field where "what have you done for me lately?" is a common lament. We use small retainers to fund work that occurs outside of our divorce mediation sessions, such as session summaries and agreement drafting. We explain how they work to clients up-front, and no one has yet declined.

The recent case tells us that all we need to be even better at explaining our retainer practices. For firms in which large retainers are the norm, this need is magnified. In divorce and family law, all new clients share some level of vulnerability, and many are prone to re-interpret their relationship with counsel when the need for services abates, especially if the results have been disappointing (as they often are). Ethics and fairness aside, our reputations and ability to earn a living depend on it.


Divorce Arbitration: Three Reasons Why It is Not Just for the Wealthy

Wednesday, March 13, 2013

Divorce Arbitration, or the presentation of family law disputes to an agreed impartial third party, for decision outside of court, is not a remedy that is either intended for or beneficial only to the wealthy. In fact, it may be of greater use to the “99 percent” because of its ability to be tailored by cost-sensitivity. Here are three examples:

  1. The costs of delays in court and court proceedings hit lower economic clients harder as a proportion of their resources than wealthier people, as for example, non-progressive taxes do (think cigarette, gasoline and MA state income taxes).
  2. The ability to define procedural rules by contract permits lower economic clients to have a trial that they
    1. time limit overall (i.e., “no more than 3 hours for hearing”;
    2. limit time of direct or cross examination of witnesses (i.e., direct examination of 1 hour with, or cross-examination limited to ½ hour);
    3. use written direct testimony (already in use in the federal courts);
    4. relax rules regarding hearsay and other forms of objections;
    5. eliminate written findings of fact and/or limit scope of the arbitator’s written rationale; or
    6. create a mutual trial “budget” (ie, agree that the marital estate will pay no more than $2,500 for the arbitration hearing and to accomplish that...).
  3. As arbitration becomes more prevalent, there will inevitably be more arbitrators who cater to different segments of the market by use of lower or higher hourly rates, or even lump sum fee arrangements.


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