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Divorce Mediation Blog

Hoisted on Her Own a Fraudulent Petard, or There’s Just No Damn Honor Among Frauds Anymore: Shea v. Cameron – Part 1

Wednesday, March 21, 2018

Levine Dispute Resolution - Alimony

It isn’t often that we get to see the phrase “joint stipulation of fraud”.

But, in the Massachusetts Appeals Court’s recent Shea v. Cameron, it is the perfect appetizer to a meal of mutual marital chicanery that resulted in the court’s decision to distance the itself from the:

    … “ingratitude, avarice, broken faith, brutal words, and heartless disregard of feelings of others,” which although blameworthy, are not legally compensable.

He lied about loving her. They married. He cheated. She filed for divorce. She withdrew her complaint. She filed a new complaint, this time for annulment. He snapped up that opportunity, only too happy to admit his faux amour.

Not so fast. After the parties presented their cooked-up annulment petition to the court, Ms. Shea served Mr. Cameron – on his way out of the courtroom, no less - with an complaint demanding a cookbook of damage remedies based on his “fraudulent inducement to marry”.

First, the Probate and Family Court, and then the Superior Court, kicked out Shea’s claims on summary judgment. But, the second judge “reported” the question to the Appeals Court, which took the matter up despite its procedural reservations. After a scholarly review of the history of various “heart balm” actions, the court wisely ended the matter for good, with unassailable logic:

  1. the law provides remedies for married persons when they break up, for equitable property division and support; and
  2. when the wife chose annulment instead of divorce, she gave up those remedies, since no marriage ever existed, a fiction of her own design.

Thus did Ms. Shea hoist herself, luring Mr. Cameron into admitting fraud, while plotting to then show him, but accidentally giving him a free pass, in the process.

There is just no honor in fraud anymore.

 

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.

 



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