Health Insurance

Shine v. Shine (Lawyers Weekly No. 81-125-16) (4 pages) (Appeals Court – Unpublished) (No. 15-P-288) (Feb. 11, 2016).

Where a divorced woman, who remained on her former husband’s health insurance per their separation agreement, obtained a job but declined the option of obtaining health insurance through her employer, a judge should not have ordered her to obtain her own insurance given the lack of evidence that one of the many plans available to her was “comparable” to the plan provided under the husband’s insurance.

Accordingly, the judgment is vacated.

“ … [W]e find merit in the wife’s appeal. The judge did not actually find that the health insurance coverage available through the wife’s employment provided ‘comparable’ coverage and benefits to those provided through the husband’s plan. Nor was there any evidence before the judge on which she could have made such a finding. Although it may well be true that one of the many plans available to the wife through her employment is ‘comparable’ to the plan provided under the husband’s insurance, the evidence to substantiate that claim is absent. Because the husband’s efforts to enforce the judgment depend on a showing of comparability, the judge’s order cannot stand. We therefore vacate the judgment on the counterclaim dated June 4, 2014, and remand for further proceedings consistent with this memorandum and order.”

Lipovetsky v. Spivak (Appeals Court)

FACTS:
1.  Plaintiff Wife sought and was granted an ex parte temporary protective order from Defendant Husband on January 27, 2014.
2.  On February 7, 2014, the protective order was extended to April 4, 2014.  The judge who heard the case on February 7, 2014 did not preside over the case when it was before the court on January 27, 2014.
3.  On April 4, 2014, the Plaintiff and Defendant were before the court and the plaintiff was self-represented.  The defendant requested a brief continuance to allow his attorney to arrive, pointing out that it was 9:55 am and the hearing was scheduled for 10:0 am.  However, when the plaintiff indicated that she had to pick up her child at 10:30 am, the judge decided to proceed with the hearing.  No witnesses were sworn.  The plaintiff stated that she wanted the abuse prevention order extended.  Without questioning the plaintiff or or offering the defendant an opportunity to be heard, the judge stated that she would extend the prior abuse prevention order for one year on the same terms and conditions.

ISSUE:
Can a judge dispense with the administration of the oath to the witnesses and giving the parties an opportunity to cross-examine adverse witnesses in a 209A hearing?

HOLDING:
No.

RULE:
1.  Due Process Rights Under 209A:  A scheduled hearing to extend or modify an abuse prevention order issued under G.L. c. 209a is an adversarial proceeding in which the parties have constitutional due process rights that include the "right to testify and to present evidence," and to cross-examine adverse witnesses.  C.O. v. M.M., 442 Mass. 648, 656 (2004).  See S.T. v. E.M., 80 Mass. App. Ct. 423, 429-430 (2011).
2.  Plaintiff Has Burden of Proof:  The plaintiff has the burden of proving that it is more likely than not that she is "suffering from abuse."  Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting from G.L. c. 209A, section 3.
3.  Judges Can't Dispense with Due Process:  Due to the sensitive nature of many of abuse prevention cases and the frequency with which one or both parties is self-represented, judges are encouraged to conduct hearings pursuant to G.L. c. 209A, section 3, in an informal and relaxed atmosphere.  See generally Guidelines for Judicial Practice:  Abuse Prevention Proceedings section 5:01 (Conduct of Hearings After Notice When Both Parties Appear: General) (2011); Mass. G. Evid. Section 1106 (2015).  However, a judge is not permitted to dispense with the administration of the oath to the witnesses, and must ensure that the parties are given an opportunity to cross-examine the adverse witnesses."  See Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) at a G.L. c. 209A section 3 hearing the judge should "ascertain the current state of affairs [;]" a judge does not fulfill her obligation simply by asking the plaintiff if she wants an extension of a prior order.)

ANALYSIS:
1.  Based on the record before us, an evidentiary basis for the extension order entered on April 4, 2014 is lacking, and the manner in which the hearing was conducted was outside the bounds of a sound judicial discretion.
2.  IT is troubling that the judge did not briefly continue the hearing to give defendant's counsel an opportunity to be present.

Rodman v. Rodman

FACTS:
1.  Husband brought a complaint for modification in the Probate and Family Court, seeking to terminate certain obligations to his Wife, arising under a separation agreement the parties had entered into in connection with their divorce.
2.  The divorce nisi, which entered in April 2008, incorporated and merged into that judgment the provision at issue here, obligating the Husband to pay alimony to Wife in the amount of $1,539 per week.
3.  During the pendency of the modification proceeding, the Husband filed a motion seeking immediate termination of the alimony payments on the grounds that he reached "full retirement age" as defined by the Alimony Reform Act.
4.  The motion asserted that the alimony reform act became effective March 1, 2012, and that the Husband therefore was entitled to termination of the alimony order pursuant to the retirement provision of the Alimony Reform Act, which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age."


PROCEDURAL HISTORY:
1.  A Probate and Family Court judge denied the motion and then reported the following question to the Appeals Court, "Whether or not [the Alimony Reform Act] is to be applied retroacively to judgments before March 1, 2012."
2.  The Husband appealed to the SJ for direct appellate review.

ISSUE:
1.  Whether a modification of an alimony agreement that merges with a judgment that entered prior to March 1, 2012, as compared to one that survives the judgment, is prospective in effect?

RULE:
1.  No.  Uncodified section 4(c) only applies if the durational limit exception applies.  In this case, the durational limit exception does not apply, so section 4(c) does not apply.

ANALYSIS:
1.  Husband's Argument:  The Husband presented an argument that differs somewhat from that in Chin v. Merriot.  He acknowledges that sections 4 through 6 of the uncodified transitional provisions of the alimony reform act (uncodified sections), govern the extent to which the act operates to apply prospectively or retroactively to existing alimony judgments.  He also agrees that express language in these provisions declares that the alimony reform act is, in the main, prospective.  He claims, however, that modification of an alimony agreement that merges with a judgment that entered prior to March 1, 2012, as compared to one that survives the judgment, is not retrospective but prospective in effect; he contends that this applies as well to modification based on the retirement provision.

A.  Uncodified Section 4(c):  Provides that "under no circumstances shall [the alimony reform act], provide a right to seek or receive modification of an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions SURVIVE the judgment and therefore are not modifiable."

B.  Chin Holding:  The second clause of uncodified section 4(c), would not permit the Husband to seek modification pursuant to the retirement provision IF his alimony agreement had SURVIVED the judgment, except in very limited circumstances (see Chin).

C. Legislative Intent:  He argues that the Legislature must therefore have intended the retirement provision to apply to MERGED alimony agreements, which are always subject to modification on a showing of a material change in circumstances.  See e.g. Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting Schuler v. Schuler, 382 Mass. 366. 368); C.P. Kindregan, M. McBrien, & P.A. Kindregan, Family Law and Practice section 90.4, at 433-434 (4th ed. 2013) ("when the alimony agreement does not survive the divorce judgment the ordinary test of material change of circumstances controls in modification actions).  Under this view, modification of pre-existing merged alimony agreements is not retroactive because parties that are always subject to modification will have anticipated potential modification based on retirement, and modification based solely on the retirement provision is thus prospective in effect.

2.  Court's Conclusion as to Husband's Argument:

A.  Interpret Statute As A Whole:  We do not accept the Husband's view of uncodified section 4(c), because it would require us to disregard the familiar principle of statutory construction under which we interpret the statute as a whole.

1.  Uncodified Section 4(a):  The first sentence of the first paragraph of uncodified section 4(a) states the Legislature's intent: "General Laws c. 208 section 49, "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided in this act."

2.  Uncodified Section 4(b):   The sole exception to what is in essence a bar to retroactive application of the substantive provisions of the alimony reform act is set forth in uncodified section 4(b).  That section provides that the durational limits of alimony awards under G.L. c. 208 section 49, are applicable to "existing alimony judgments that exceed the durational limits," and that payment of alimony for a period that extends beyond the statutory limits, "shall be deemed a material change of circumstances that warrant modification."  See
Chin.

3.  Uncodified Section 4(c):  The next paragraph, uncodified section 4(c), however, specifies when the exception to these durational limits does not apply.  "Under no circumstances" will the exception be available to modify "an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable, or in which the parties have expressed their intention that their agreed alimony provisions survive the judgment and therefore are not modifiable."

4.  Uncodified Section 5:  The succeeding provision, uncodified section 5, sets forth the dates after implementation of the alimony reform act on which a payor may file a complaint for modification based solely on a claim that an "existing alimony judgment exceeds the durational limits."  These dates are staggered, and based on the length of the marriage.

B.  Interpret Uncodified Section 4(c) In Particular:  Having considered the structure and textual refinements of the alimony reform act in the context of the Legislature's declared intent, we conclude that uncodified section 4(c) provides no basis for the argument that the act precludes retroactive application only as to surviving alimony agreements.  This provision creates a single general exception to prospective application for "existing alimony judgments that exceed the durational limits under" G.L. c. 208 section 49, but imposes a condition on the durational limits exception, limiting it to prospective application.  The act states clearly that under "no circumstances" will the durational limits exception be available where there is "an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable" or where the alimony agreement survives the judgment.  See Lalchandani v. Roddy, 86 Mass. App. Ct. 819 (2015).  The Legislature plainly intended that only a claim for modification based on durational limits may (but will not always) apply retroactively to existing alimony judgments.  (In other words, 4(c) is ONLY implicated if 4(b) applies. In this case, 4(b) does not apply, so 4(c) does not apply).

CONCLUSION:
1.  General Laws c. 208 section 4(f) does NOT apply retroactively to alimony orders in divorce judgments that entered before March 1, 2012.
2.  The matter is remanded to the Probate and Family Court for further proceedings consistent with this opinion.

Doktor v. Doktor

FACTS:
1.  Husband and Wife were divorced by a judgment nisi that entered in January 1992.
2.  The judgment incorporated a separation agreement that, among other things, obligated the Husband to pay alimony to Wife in the amount of $00 until "the death or remarriage of the Wife."  That provision merged with the judgment.
3.  Husband filed a complaint for modification in the Probate and Family court seeking termination of alimony obligation under the Alimony Reform Act (G.L. c. 208, section 49(f), which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age."  He asserted that he had retired, and was past the normal age of retirement as defined by the alimony reform act.
4. Thereafter, he filed an amended complaint for modification, asserting a further change in circumstances that his former wife was no longer in need of alimony.

PROCEDURAL HISTORY:
1.  Following a trial, a Probate and Family Court judge dismissed the Husband's complaint for modification, concluding that G.L. c. 208, section 49 (f) (retirement provision), applies prospectively, and therefore that the Husband was required to, but had not, established that there was a material change in circumstances warranting modification.
2.  Husband appealed, and the SJC granted his petition for direct appellate review.

ISSUE:
1.  This case raised a question relative to retroactive application of the retirement provision of the alimony reform act to alimony agreements that merged with judgments of divorce entered prior to March 1, 2012, the effective date of the act.

HOLDING/RULE:
1.  The Legislature intended that the retirement provision to have prospective application; consequently, it is not applicable to modification of the alimony judgment in this case.

ANALYSIS:
1.  Based the analysis on the conclusion of law from Chin v. Merriot.

CONCLUSION:
1.  Affirmed lower court decision.

Chin v. Merriot

FACTS:
1.  Chin and Meriott were divorced by a judgment of divorce nisi in August 2011.
2.  Pursuant to a merged provision of the parties' separation agreement, Chin was obligated to pay alimony to Merriot in the amount of $650 per month until "the death of either party or the wife's remarriage."
3.  In March 2013, Chin filed an amended complaint for modification in which he sought to terminate his alimony obligation.  To support his claim for relief, Chin asserted as "changed circumstances" that he had attained the age of sixty-eight, "full retirement age" as defined by G.L. c. 208, section 48.
4. He argued that, pursuant to G.L.c. 208, section 49 (f) (retirement provision), "general term alimony orders shall terminate upon the payor attaining the full retirement age."
5.  Chin thereafter filed an amended complaint asserting, as further change in circumstances, that Merriot had "been cohabiting with another person...and maintaining a common household" for more than three months; cohabitation alone is a basis for termination of alimony under G.L. c. 208, section 49 (d) (cohabitation provision).
6.  The retirement and cohabitation provisions on which Chin relies were enacted as part of the Alimony Reform Act of 2011, St. 2011, c. 124.  The act was made effective as of March 1, 2012, more than seven months after entry of the parties' judgment of divorce nisi.

PROCEDURAL HISTORY:
1.  Following a trial on the complaint for modification, a Probate and Family Court judge concluded that neither provision applied retroactively to divorce judgments ordering general term alimony that were in existence prior to the effective date of the alimony reform act.  Applying the change of circumstance standard in effect before March 1, 2012, the judge determined that Chin had not shown a material change of circumstances warranting modification of the alimony order, and dismissed the complaint.
2.  Chin appealed the judgment of dismissal, and the SJC allowed his petition for direct appellate review.

ISSUE:
Whether modification of an obligation to pay periodic or general term alimony that is contained in a merged provision of a divorce judgment is governed by the alimony reform act, where the act became effective after the date of the entry of the judgment.

HOLDING:
No.  The Alimony Reform Act applies prospectively, not retroactively.

RULE:
1.  Retroactive Rule: The uncodified provisions of the Alimony Reform Act, contained in St. 2011, c. 124 sections 4-6, reflect the Legislature's intent that the act apply prospectively.
2.  Exception to Rule:  Only a claim for modification based on durational limits may, but will not always, apply retroactively to existing alimony judgments.

ANALYSIS:
 Prospective Application of Retirement and Cohabitation Provisions:  Of particular import here is uncodified section 4(a) which states that G.L. c. 208, section 49, "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, under a subsequent modification or as otherwise provided for in this act."  This sentence sets out three separate circumstances under which alimony included in a judgment that predated the effective date of the alimony act will be terminated:

A.  Termination "Under Such Judgments":  The first clause of uncodified section 4(a) provides that alimony judgments entered before March 1, 2012, may terminate "only under such judgments."  SJC interprets that to mean that alimony judgments entered into before the effective date of the alimony reform act may be terminated only in accordance with provisions governing termination that are contained in the existing judgment, either by a judge following a trial or by the parties through negotiated agreement incorporated in the judgment.

B.  Termination "Under A Subsequent Modification":  The second clause of uncodified section 4(a) provides that alimony judgments that entered prior to March 1, 2012, may be terminated "only...under a subsequent modification."  The SJC interpreted that to mean that alimony judgments entered prior to March 1, 2012, may terminate only under "subsequent modifications" of such judgments.  In other words, such alimony judgments, as well as subsequent modifications of such judgments, may be modified only under the terms and standards of modification existing at the time the judgment was entered.  The Legislature's intent is that alimony judgments entered prior to the alimony reform act may be modified only under the existing material change of circumstances standard, with the single exception that the new durational limits of the act will be considered a material change of circumstances for purposes of this standard.

C.  Termination "As Otherwise Provided For In This Act":  Chin focuses primarily on the third clause of uncodified section 4(a), which states that G.L. c. 208, section 49 "shall apply prospectively," except, "as otherwise provided in this act."  He argues in essence that the provision should be read as follows: General Laws c. 208, section 49, "shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate...as otherwise provided in section 49." This interpretation requires that the we read into the provision language that the Legislature did not include.  We will not "read into the statute a provision which the Legislature did not see fit to put there."  Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126 (2006).

CONCLUSION:
No basis for termination of the alimony order. Lower court decision affirmed

McManus v. McManus

FACTS:
1.  The Defendant, Husband, and Plaintiff, Wife entered into a separation agreement prior to their divorce.
2.  The separation agreement consisted of 15 sections and a series of 6 exhibits that were attached to and incorporated by reference into the agreement.
3. At the outset, the agreement's "Statement of Facts" provides that the parties were married in 1983, that they have three children (at the time, ages 20, 16, and 12), and that the parties had been living apart since October 13, 2003.
4.  The agreement's "Statement of Purpose" receives that it is to "settle and determine" four issues: "(a) What should be paid as alimony...; (b) What the equitable division of the marital assets should be...; (c) What provisions should be made for the support and maintenance of the parties' minor children...; and (d) All other matters, issues, rights, obligations and claims by and between the parties arising from the marital relationship and which should be settled in view of the existing Complaint for Divorce."
5.  Section VI of the agreement refers to six exhibits, which address (1) custody, (2) alimony and child support, (3) medical and dental expenses, (4) education expenses, (5) life insurance expenses, and (6) property division.
6.  The agreement contains no language concerning future alimony obligations, providing solely that each party "hereby waives any claim against the [other] for the receipt of past or present alimony."

PROCEDURAL HISTORY:
1.  The wife filed a complaint for modification, which states in relevant part, that the plaintiff is "in need of support in the form of alimony now that the defendant intends to terminate the payment of child support."  
2.  By motion, the defendant sought summary judgment on the plaintiff's complaint.
3.  The judge allowed the defendant's motion, reasoning that "[w]here parties have expressly set forth that the 'Agreement is made to settle and determine...what should be paid as alimony...' the Court is entitled to infer that the agreement addressed future alimony [quoting from Cappello v. Cappello, 23 Mass. App. Ct. 941 (1986)]."

ISSUE:
1.  Whether a separation agreement that merged in part and survived in part a judgment of divorce nisi, and that contains a waiver of any claim for "past or present alimony," constitutes an agreement to waive a party's claim for alimony in the future.

HOLDING:
1.  No.   When read in its entirety, the separation agreement contains an omission with regard to either party's right to file a complaint for modification seeking future alimony that precludes a determination, at this stage, of the parties intent.

RULES:
1.  Future Alimony:   Massachusetts case law indicates that parties express their mutual agreement to waive any and all claims for alimony in separation agreements by using the phrase "past, present, and future."  See, e.g. Fabrizio v. Fabrizio, 316 Mass. 343, 345 (1944); Taylor v. Gowetz, 339 Mass. 294, 296 (1959); O'Brien v. O'Brien, 416 Mass. 477, 480 (1993); Mills v. Mills, 4 Mass. App. Ct. 273, 274 n.2 (1976); Becker v. Phelps, 86 Mass. App. Ct. 169, 170 n.2 (2014).  Compare Buckley v. Buckley, 42 Mass. App. Ct. 716, 720 (1997) (parties' separation agreement expressly reserved whether alimony would be paid in future); Vedensky v. Vedensky, 86 Mass. App. Ct. 768 (2014) (separation agreement contained reservation of rights as to future alimony).

2.  Standard of Review for Summary Judgment:  "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law."  Augat, Inc., v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  See Mass.R.Dom.Rel.P. 56(h).

3.  Ambiguous Contract Terms:  Where terms of a contract "are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial.  See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002).  Therefore a question of material fact cannot be resolved on a motion for summary judgment.  See Pierce v. Pierce, 455 Mass. 286, 305 (2009) (where language of separation agreement is "not so clear and unequivocal as to permit the judge" to determine intent of parties, parol evidence is admissible to explain parties' intent).  See also, Freeman v. Sieve, 323 Mass. 652, 655-656 (1949) (where separation agreement that survived as independent contract was unclear regarding obligations of parties court must read "the entire agreement" to ascertain intent of the parties); Feakes v. Bozyczko, 373 Mass. 633, 634 n.2, 635 (1977) (where separation agreement that survived an independent contract was ambiguous regarding obligations of parties, court must look to the intent of parties to determine "objective sought to be accomplished by the parties").

4.  Parties' Intent:  In interpreting a surviving or partially surviving separation agreement, the rule is that "a judge should respect 'the desire of the parties to determine their own destinies.'"  Bercume v. Bercume, 428 Mass. 635, 644 (1999), quoting from Moore v. Moore, 389 Mass. 21, 24 (1983).  In particular, "[w]e must construe the [separation] agreement in a manner that 'appears to be in accord with justice and common sense and the probable intention of the parties...[in order to] accomplish an honest and straightforward end [and to avoid], if possible, any construction of a contract that is unreasonable or inequitable.'" Krapf v. Krapf, 439 Mass. 97, 105 (2003), quoting from Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930).


ANALYSIS:
1.  The Plaintiff, Wife, argues that because the agreement contains an explicit waiver of either party's right to a claim for "past and present" alimony, and is silent with regard to any future alimony obligations, the issue of whether the parties intended to address the potential for future alimony is a question of material fact that precludes the allowance of summary judgment.  See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (where terms of a contract "are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial.")
2.  Here, the agreement is silent regarding the payment of alimony in the future.
3.  A reading of the agreement in its entirety does not resolve the ambiguity.  "[W]here a contract is so expressed as to leave its meaning obscure, uncertain or doubtful, evidence of the circumstances and conditions under which it was entered into are admissible, not to contradict, enlarge or vary its terms by parol, but for the purpose of ascertaining the true meaning of its language as used by the parties."  Waldstein v. Dooskin, 220 Mass. 232, 235 (1915).  See Robert Indus., Inc. v. Spence, 362 Mass. 751-753-754 (1973) ("When the written agreement, as applied to the subject matter, is in any respect uncertain or equivocal in meaning all the circumstances leading to its execution may be shown for the purpose of elucidating, but not of contradicting or changing its terms.")
4.  We conclude that the separation agreement is "ambiguous, uncertain, [and] equivocal" with regard to whether a party is free to request future alimony, and therefore "the intent of the parties is a question of fact to be determined [by the fact finder]."  Seaco Ins. Co. v. Barbosa, 435 Mass. at 779.  See 11 Lord, Williston on Contracts section 30:7 (4th ed. 2012).

CONCLUSION:
1. The Plaintiff, Wife, should have an opportunity to offer parol evidence to enable the judge to determine the intent of the parties concerning future alimony.
2.  We vacate the judgment and remand the matter for future proceedings.

German v. Lopez

FACTS:
1.  The Petitioner, Victor German (hereinafter "Victor") lives in Santiago, Dominican Republic, and is a citizen of the Dominican Republic.
2.  The Respondent, Yalesri Gomez Lopez (hereinafter "Yalersi") lives in Methuen, Massachusetts.
3.  Victor and Yalesri were married on May 9, 2009, in the Dominican Republic.
4.  Victor and Yalesri are the parents of two children:  D, born in 2011, age 4, and K, born in 2012, age 3.
5.  Yalesri gave birth to their first child D in Lawrence, Massachusetts in 2011 and gave birth to their second child K in Lawrence, Massachusetts in 2012.
7.  On October 15, 2014, Yalesri traveled with both children from the Dominican Republic to Massachusetts, without Victor's permission, and refuses to bring the children back to the Dominican Republic because she claimed that the children would face a grave harm should they be returned to the Dominican Republic because of the physical and verbal abuse that Victor inflicted on her.
8.  Victor and Yalesri were divorced in the Domincan Republic on April 22, 2015.
9. Victor brought this petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter "Hague Convention") and the International Child Abduction Remedies Act (ICARA), 22 U.S.C. section 9003.

PROCEDURAL HISTORY:
1. Victor brought this petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter "Hague Convention") and the International Child Abduction Remedies Act (ICARA), 22 U.S.C. section 9003.

ISSUE:
1.  Under the Hague Convention on the Civil Aspects of International Abduction,  is it considered a "grave risk of harm" if the children return to their habitual place of residence if there is evidence that the "absconding parent" was physically and verbally abused by the other parent?

HOLDING:
1.  No.

RULE:
1.  Evidence that one spouse physical and verbal abused the absconding parent is insufficient evidence that the children face the potential of a grave risk of harm should they be returned to their habitual residence.
2.  If risk of psychological trauma for children who are exposed to their parents verbal and physical abuse of one another is obviated by the fact that the parents are permanently divorced with no prospect of living together again, then the court cannot find that the return of the children to their habitual residence would cause a grave risk of harm to the children.


IMPORTANT STANDARDS UNDER HAGUE CONVENTION:
1.  Habitually Reside
A.   Rule:  The Hague Convention requires the prompt return of children who have been wrongfully taken from the State in which they habitually reside.  Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013).  The resolution of a Hague Convention petition "begin[s] and end[s] with the question of [a child's] habitual residence at the time of removal."  Mendez v. May, 778 F. 3d 337, 344 (1st. Cir. 2015). If the state from which a child is taken is not his or her habitual residence, there is no remedy under the Hague Convention. The determination of a child's place of "habitual residence" also decides the State whose courts have jurisdiction to make custody decisions regarding the child.  See Jeff Atkinson, The Meaning of Habitual Residence" under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children, 63 Okla. L. Rev. 647, 648 (2011).
B.  How to Determine Where Children "Habitually Reside":  In the First Circuit, a district court presented with a Hague Convention petition is to look (1) first "to the shared intent or settled purpose of the persons entitled to determine the child's permanent home; and (2) as a secondary factor, [the court] may consider the child's acclimatization to his or her current place of residence."  Mendez v. May, 778 F. 3d 337, 334 (1st Cir. 2015).
F.  Shared Intent/Settled Purpose: In parsing the parents' settled purpose, a court is to "look specifically at the last moment of the parents' shared intent." Id., quoting Mauvais, 772 F.3d at 12.
G.  Acclimatization:  Acclimatization is "rarely, if ever, a significant factor when children are very young."  Neergard-Colon v. Neergard, 752 F. 3d 526, 533 (1st Cir. 2014).  Inquiry into acclimatization occurs only if the respondent produces evidence that the children's lives are so embedded in the new country as to overcome the parties' past shared intent as to place of residence.  Mauvais v. Herisse, 772 F.3d 6, 14 (1st Cir. 2014).  Notwithstanding, "evidence of acclimatization is generally insufficient 'to establish a child's habitual residence in a new country when contrary parental intent exists.'" Id., quoting Darin v. Olivero-Huffman, 746 F.3d 1, 12 (1st Cir. 2014).

2.  Petitioner's Burden of Proof:    A petitioner seeking the return of a child under the Hague Convention must establish by a preponderance of the evidence "that he or she (1) seeks to return the child to the child's country of habitual residence, (2) has custody rights immediately prior to the child's removal, and (3) was exercising those rights."  Mendez v. May, 778 F. 3d 337, 343.

3.  Exception to "Return Child to Place of Habitual Residence" Rule:  Article 13(b) of the Hague Convention states: "[A] court is not bound to order the return of the child if there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
A.  The respondent must show a grave risk of potential harm by clear and convincing evidence. 22 U.S. C. section 9003 (e)(2)(A).
B. In weighing the risk of harm, district courts "are not to engage in a custody determination, so '[i]t is not relevant...who is the better parent in the long run, or whether [the absconding parent] had a good reason to leave her home...and terminate the marriage.'" Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000), quoting Nunez-Escudero v. Tice-Menley, 58 F. 3d 374, 377 (8th Cir. 1995).

ANALYSIS:

1. Habitually Resided/ Shared Intent/Settled Purpose:  In fixing the "last moment of parents' shared intent," the court looked to the period immediately preceding Yalersi's unilateral decision to relocate the children to Methuen.  It is abundantly clear that at the time, the parents considered themselves and the children as domiciled in the Dominican Republic.   In making the determination, the court did not given weight to the secondary factor of the children's acclimatization to their current place of residence in Methuen, given their ages, and the absence of any evidence that "unequivocally points to the conclusion that the [children have] acclimatized to the new location [in the United States] and thus [have] acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent."  Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005).

2. Petitioner's Burden of Proof:  Victor has established by a preponderance of the evidence that he had shared custodial rights over the children and was exercising them at the time they were removed from the Dominican Republic.  Victor also acted within his custodial rights by seeking a prompt return of the children under the Hague Convention.
 
3.  "Grave Risk" Exception:  Yalersi has not shown by clear and convincing evidence that the children face the potential of a grave risk of harm should they be returned to the Dominican Republic.  Whatever physical and verbal abuse Victor has inflicted on Yalersi, there is no convincing evidence that he has ever harmed the children or has been anything other than an affectionate father to them.  While the court agrees that there is a genuine risk of psychological trauma for children who are exposed to their parents verbal and physical abuse of one another, this risk is obviated by the fact that Victor and Yalrsi are permanently divorced with no prospect of living together again.  Thus, the alarm that Yalersi's attorney raises, that sending D and K to the Dominican Republic will "once again [expose them] to physical and psychological harm because of [Victor's] violence towards their mother," is highly improbable.

CONCLUSION:
1.  D and K will be returned expeditiously to the Dominican Republic.