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.
Monday, December 21, 2015
Thursday, December 10, 2015
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.
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.
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.
Wednesday, December 9, 2015
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
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
Sunday, December 6, 2015
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.
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.
Friday, December 4, 2015
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.
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.
Thursday, December 3, 2015
A.T. v. C.R.
FACTS:
1. At the time of the incidents, the defendant was 11 years old and in the 6th grade at a small private school. There were only 12 students in his class, and the plaintiff was one of them.
2. The parties had been friends for two years and had become "boyfriend and girlfriend" within the week preceding the events at issue.
3. On March 21, 2014, the defendant contacted the plaintiff through a telephone video chat program called "FaceTime." The tone of the conversation initially was friendly, but it changed when the defendant said to the plaintiff, "Sometimes in math when I act like I'm staring at nothing, I'm actually staring at your big jugs of milk." This made her "[s]ad and afraid," "angry" and "embarrassed," and she hung up the telephone. In addition, she later learned that one of the defendant's friends had been present with the defendant during the conversation and that the friend had made a video recording of it. The friend sent her the recording a short time afterwards; she showed it to her mother, who immediately deleted it.
4. The day after the conversation, when both parties were walking back from physical education class, the defendant told the plaintiff that, if she showed the video recording to anyone, he would "make her life a living hell." The plaintiff testified that she was then "very scared that [the defendant] was going to do something."
5. The plaintiff also testified that, soon afterwards, while the class was eating lunch in the school cafeteria, she heard the defendant "telling his sexual fantasy about [her]." On cross-examination, she clarified that the defendant's friend was relating the defendant's fantasy, with the defendant interrupting and correcting him about details, "to make sure it was correct because it was his fantasy." While she did not remember the details about the fantasy, she explicitly described it as a "sexual fantasy" and agreed with her lawyer that '[i]t had something to do with her body." "[A]lmost [their] whole class" was seated around the table, and the "other kids [were] overhearing and saying, 'Whoa.'"
6. Following these incidents, the parties parents communicated with each other, the school, and the local police department. Unhappy with the school's proposed plan for the situation, the defendant's parents voluntarily withdrew him from school and homeschooled him for the remainder of the school year. The defendant also sent, at his parents' request, a letter of apology to the plaintiff and her parents.
7. Afterwards, on May 21 ,2014, the defendant attended a school play with his mother; the plaintiff also attended, as did her mother and sisters. After the play was over, all of the students gathered outside and the defendant told one of the plaintiff's friends that "he wanted to punch [the plaintiff] in the titties." The friend repeated the statement to the plaintiff, and then the defendant said it again, directly to the plaintiff. She walked away and "ran to [her] mom, and [they] drove home." At the hearing, the defendant admitted that he had expected the plaintiff to hear what he said. The plaintiff also testified that, on more than one occasion, the defendant referred to her as "...bitch," a play on her name. This made her "angry and mad, upset and afraid."
8. Two days later, the plaintiff applied for and received an ex parte harassment order against the defendant under the civil statute, G.L. c. 258E, following an evidentiary hearing at which both parties testified, the judge extended teh order for one year. In response, the defendant moved for a new trial and alternative relief, supported by affidavits from his mother and rabbi. The motion was denied without a hearing. This appeal follows.
PROCEDURAL HISTORY:
1. After a hearing, a judge of the Juvenile Court extended a harassment prevention order against the juvenile defendant.
2. The defendant appeals, arguing, among other things, that the plaintiff did not present sufficient evidence of harassment under the statute and that the Legislature did not intend for the harassment prevention statute to apply in circumstances as these.
ISSUE 1:
1. Was there sufficient evidence for the judge to make a finding of harassment under the statute?
HOLDING 1:
1. Yes. Because the judge found three or more incidents of willful and malicious conduct aimed at the plaintiff committed with the intent to cause fear, intimidation, abuse or damage to property and that did in fact cause fear, intimidation, abuse or damage to property.
RULE 1:
1. In reviewing a civil harassment order under G.L. c. 258E, the Appeals Court considers whether the Lower Court Judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed, "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property that [did] in fact cause fear, intimidation, abuse or damage to property." G.L. c. 258E, section 1, definition of "Harassment," inserted by ST. 2010, section 23. See O'Brien v. Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass. 58, 60 (2014).
2. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G.L. c. 258, section 1, as being "characterized by cruelty, hostility or revenge," and that each act was intended by the defendant to place the plaintiff in "fear of physical harm or fear of physical damage to property." O'Brien, supra at 427.
3. In the determination of whether the three acts "did in fact cause fear, intimidation, abuse or damage to property," it is "the entire course of harassment, rather than each individual act, that must cause fear of intimidation." Id. at 426 n.8.
4. The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated.
5. "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991).
ANALYSIS 1:
1. Three Incidents of Harassment: In finding sufficient evidence for the extension of the order, the judge found that "there [were] clearly three distinct acts of harassment. Specifically, the judge noted the following three acts: (1) the sexual comment made during the FaceTime video chat; (2) the threat to "make your life a living hell" if she showed the video to anyone; and (3) the expressed desire to punch the plaintiff in her breasts. The Appeals Court agrees that each of these was an act of harassment, and they noted that the public recounting of the sexual fantasy could reasonably have been determined to be a fourth.
A. First Incident: If the first incident, the FaceTime video with the sexually explicit comment, had been an isolated one, and if it had occurred in a private conversation between the parties, it is unlikely that it would have been seen as an act of harassment. However, given that the comment was made in the presence of a classmate, who was videotaping the conversation, it becomes something very different -- a humiliating and intimidating moment, capable of repetition on social media indefinitely, and a part of a larger pattern of harassment that continued in the following days.
B. Second Incident/Intent to Intimidate: The threat to make the plaintiff's life a living hell clearly was intimidating. The word "intimidation" has not been addressed specifically in earlier harassment cases. However, it appears in the statute, and we note "the well-established rule of statutory construction that 'none of the words [of the statute...] should be regarded as superfluous.'" Lee v. Board of Appeals of Harwich, 11 Mass.App.Ct. 148, 154 (1981), quoting from Robin Hope Indus., Inc. v. J.A. Sullivan Corp., 6 Mass. App. Ct. 481, 486 (1978). It is clear, therefore, that "intimidation" has a meaning other than "fear" and should be separately addressed. In so doing, the definitions supplied by the courts in other contexts are useful. See Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235 (1988)("Webster's Third New International Dictionary 1184 [3d ed. 1993] defines intimidate as "to make timid or fearful: inspire or affect with fear'"). In Gordon, supra, quoting Planned Parenthood League, Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994), we explained that, '[w]ithin the context of G.L. c. 12, section 11H, the Massachusetts Supreme Judicial Court has similarly defined the concept of intimidation as 'putting in fear for the purpose of compelling or deterring conduct.'... Neither definition includes the requirement that to intimidate another, an individual must somehow place that person in fear or apprehension of actual harm."
C. Second Incident/True Threat: In this case, however, the defendant's threat to make the plaintiff's life a living hell also falls within the court's definition of a "true threat" as described in O'Brien, 461 Mass. at 424. Specifically, the court explained, "A true threat does not require an 'explicit statement of intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.' [Commonwealth v. Cho, 433 Mass.229], 234 ([2001]). See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997) ('use of ambiguous language does not preclude a statement from being a threat'). Nor need a true threat threaten imminent harm; sexually explicit or aggressive language 'directed at and received by an identified victim may be threatening, notwithstanding the lack of evidence that the threat will be immediately followed by actual violence or the use of physical force.' Chou, supra at 235. See Virginia v. Black, 538 U.S. 343, 359-360 (2003) (defining true threats without imminence requirement); Doe v. Pulaski County Special Sch. Dist., 360 F.3d 616, 622 (8th Cir. 2002)('serious expression of an intent to cause a present or future harm' is true threat)."
D. Third Incident: The third act of harassment, a threat to punch the plaintiff in the breasts, is clearly an act of harassment, and it is significant in evaluating the pattern of harassment as a whole that this third act took place after the defendant had sent the plaintiff some kind of letter of apology.
E. Fourth Incident: Finally, the cafeteria incident provides further evidence that the FaceTime incident was not just a dumb remark by a clueless 11 year old boy, but part of a pattern of conduct intended to isolate and intimidate this 11 year old girl.
2. Plaintiff's Subjective Fear: The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated. Her testimony, credited by the judge, was that she wanted the order extended "[b]ecause without it, [she] [felt] unsafe and afraid of him. The affidavit also received that the plaintiff's father had "fear for her safety from this boy."
3. Intent: "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991). In this case, the defendant's repeated and escalating harassment of the plaintiff, each time involving additional classmates, and then persisting after adult intervention, would reasonably support an inference that he intended to cause the plaintiff fear and intimidation. However, there is no need to draw inferences here, because the defendant said explicitly what his intent was -- to make the plaintiff's life a living hell. He also explained, on more than one occasion, his motive for doing so. The plaintiff's affidavit recited that the defendant had told the plaintiff's younger brother the night before the play that "he was 'fucking with [the plaintiff] because she ruined his life." The night of the play, he told the plaintiff that he wanted to punch her because "she ruined his life." Both of these statements support the conclusion that the defendant, in fact, intended to cause fear and intimidation and that he was motivated by hostility and revenge. See O'Brien, 461 Mass. at 426 ("To establish harassment, a [plaintiff] must prove that the defendant, motivated by cruelty, hostility, or revenge, willfully committed three or more acts aimed at a specific person, each with teh intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property. G.L.c. 258E, section 1.")
CONCLUSION 1:
1. The appeals court affirms the lower court decision to extend the harassment prevention order against the juvenile defendant.
ISSUE 2:
1. Did the Legislature intend for the harassment prevention statute to apply to juveniles under the age of 18?
HOLDING 2:
1. Yes, the harassment prevention statute intended to apply to juveniles under the age of 18.
RULE 2:
1. The defendant's age certainly is a factor in determining his intent, but the Legislature provided specifically for such a determination to be an informed one by awarding to the Juvenile Court exclusive jurisdiction over G.L. c. 258E orders directed at juveniles. G.L. c. 258, section 2. As a result, it is fair to conclude that, when the Legislature deliberately entrusted to the trial court department most experienced with juveniles exclusive authority to issue harassment orders against them, it had young people's limitations and abilities particularly in mind.
2. It is also a fair inference that, had the members of the Legislature intended to put minors beyond the reach of G.L. c. 258E, they would have done so.
1. At the time of the incidents, the defendant was 11 years old and in the 6th grade at a small private school. There were only 12 students in his class, and the plaintiff was one of them.
2. The parties had been friends for two years and had become "boyfriend and girlfriend" within the week preceding the events at issue.
3. On March 21, 2014, the defendant contacted the plaintiff through a telephone video chat program called "FaceTime." The tone of the conversation initially was friendly, but it changed when the defendant said to the plaintiff, "Sometimes in math when I act like I'm staring at nothing, I'm actually staring at your big jugs of milk." This made her "[s]ad and afraid," "angry" and "embarrassed," and she hung up the telephone. In addition, she later learned that one of the defendant's friends had been present with the defendant during the conversation and that the friend had made a video recording of it. The friend sent her the recording a short time afterwards; she showed it to her mother, who immediately deleted it.
4. The day after the conversation, when both parties were walking back from physical education class, the defendant told the plaintiff that, if she showed the video recording to anyone, he would "make her life a living hell." The plaintiff testified that she was then "very scared that [the defendant] was going to do something."
5. The plaintiff also testified that, soon afterwards, while the class was eating lunch in the school cafeteria, she heard the defendant "telling his sexual fantasy about [her]." On cross-examination, she clarified that the defendant's friend was relating the defendant's fantasy, with the defendant interrupting and correcting him about details, "to make sure it was correct because it was his fantasy." While she did not remember the details about the fantasy, she explicitly described it as a "sexual fantasy" and agreed with her lawyer that '[i]t had something to do with her body." "[A]lmost [their] whole class" was seated around the table, and the "other kids [were] overhearing and saying, 'Whoa.'"
6. Following these incidents, the parties parents communicated with each other, the school, and the local police department. Unhappy with the school's proposed plan for the situation, the defendant's parents voluntarily withdrew him from school and homeschooled him for the remainder of the school year. The defendant also sent, at his parents' request, a letter of apology to the plaintiff and her parents.
7. Afterwards, on May 21 ,2014, the defendant attended a school play with his mother; the plaintiff also attended, as did her mother and sisters. After the play was over, all of the students gathered outside and the defendant told one of the plaintiff's friends that "he wanted to punch [the plaintiff] in the titties." The friend repeated the statement to the plaintiff, and then the defendant said it again, directly to the plaintiff. She walked away and "ran to [her] mom, and [they] drove home." At the hearing, the defendant admitted that he had expected the plaintiff to hear what he said. The plaintiff also testified that, on more than one occasion, the defendant referred to her as "...bitch," a play on her name. This made her "angry and mad, upset and afraid."
8. Two days later, the plaintiff applied for and received an ex parte harassment order against the defendant under the civil statute, G.L. c. 258E, following an evidentiary hearing at which both parties testified, the judge extended teh order for one year. In response, the defendant moved for a new trial and alternative relief, supported by affidavits from his mother and rabbi. The motion was denied without a hearing. This appeal follows.
PROCEDURAL HISTORY:
1. After a hearing, a judge of the Juvenile Court extended a harassment prevention order against the juvenile defendant.
2. The defendant appeals, arguing, among other things, that the plaintiff did not present sufficient evidence of harassment under the statute and that the Legislature did not intend for the harassment prevention statute to apply in circumstances as these.
ISSUE 1:
1. Was there sufficient evidence for the judge to make a finding of harassment under the statute?
HOLDING 1:
1. Yes. Because the judge found three or more incidents of willful and malicious conduct aimed at the plaintiff committed with the intent to cause fear, intimidation, abuse or damage to property and that did in fact cause fear, intimidation, abuse or damage to property.
RULE 1:
1. In reviewing a civil harassment order under G.L. c. 258E, the Appeals Court considers whether the Lower Court Judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed, "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property that [did] in fact cause fear, intimidation, abuse or damage to property." G.L. c. 258E, section 1, definition of "Harassment," inserted by ST. 2010, section 23. See O'Brien v. Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass. 58, 60 (2014).
2. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G.L. c. 258, section 1, as being "characterized by cruelty, hostility or revenge," and that each act was intended by the defendant to place the plaintiff in "fear of physical harm or fear of physical damage to property." O'Brien, supra at 427.
3. In the determination of whether the three acts "did in fact cause fear, intimidation, abuse or damage to property," it is "the entire course of harassment, rather than each individual act, that must cause fear of intimidation." Id. at 426 n.8.
4. The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated.
5. "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991).
ANALYSIS 1:
1. Three Incidents of Harassment: In finding sufficient evidence for the extension of the order, the judge found that "there [were] clearly three distinct acts of harassment. Specifically, the judge noted the following three acts: (1) the sexual comment made during the FaceTime video chat; (2) the threat to "make your life a living hell" if she showed the video to anyone; and (3) the expressed desire to punch the plaintiff in her breasts. The Appeals Court agrees that each of these was an act of harassment, and they noted that the public recounting of the sexual fantasy could reasonably have been determined to be a fourth.
A. First Incident: If the first incident, the FaceTime video with the sexually explicit comment, had been an isolated one, and if it had occurred in a private conversation between the parties, it is unlikely that it would have been seen as an act of harassment. However, given that the comment was made in the presence of a classmate, who was videotaping the conversation, it becomes something very different -- a humiliating and intimidating moment, capable of repetition on social media indefinitely, and a part of a larger pattern of harassment that continued in the following days.
B. Second Incident/Intent to Intimidate: The threat to make the plaintiff's life a living hell clearly was intimidating. The word "intimidation" has not been addressed specifically in earlier harassment cases. However, it appears in the statute, and we note "the well-established rule of statutory construction that 'none of the words [of the statute...] should be regarded as superfluous.'" Lee v. Board of Appeals of Harwich, 11 Mass.App.Ct. 148, 154 (1981), quoting from Robin Hope Indus., Inc. v. J.A. Sullivan Corp., 6 Mass. App. Ct. 481, 486 (1978). It is clear, therefore, that "intimidation" has a meaning other than "fear" and should be separately addressed. In so doing, the definitions supplied by the courts in other contexts are useful. See Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235 (1988)("Webster's Third New International Dictionary 1184 [3d ed. 1993] defines intimidate as "to make timid or fearful: inspire or affect with fear'"). In Gordon, supra, quoting Planned Parenthood League, Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994), we explained that, '[w]ithin the context of G.L. c. 12, section 11H, the Massachusetts Supreme Judicial Court has similarly defined the concept of intimidation as 'putting in fear for the purpose of compelling or deterring conduct.'... Neither definition includes the requirement that to intimidate another, an individual must somehow place that person in fear or apprehension of actual harm."
C. Second Incident/True Threat: In this case, however, the defendant's threat to make the plaintiff's life a living hell also falls within the court's definition of a "true threat" as described in O'Brien, 461 Mass. at 424. Specifically, the court explained, "A true threat does not require an 'explicit statement of intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.' [Commonwealth v. Cho, 433 Mass.229], 234 ([2001]). See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997) ('use of ambiguous language does not preclude a statement from being a threat'). Nor need a true threat threaten imminent harm; sexually explicit or aggressive language 'directed at and received by an identified victim may be threatening, notwithstanding the lack of evidence that the threat will be immediately followed by actual violence or the use of physical force.' Chou, supra at 235. See Virginia v. Black, 538 U.S. 343, 359-360 (2003) (defining true threats without imminence requirement); Doe v. Pulaski County Special Sch. Dist., 360 F.3d 616, 622 (8th Cir. 2002)('serious expression of an intent to cause a present or future harm' is true threat)."
D. Third Incident: The third act of harassment, a threat to punch the plaintiff in the breasts, is clearly an act of harassment, and it is significant in evaluating the pattern of harassment as a whole that this third act took place after the defendant had sent the plaintiff some kind of letter of apology.
E. Fourth Incident: Finally, the cafeteria incident provides further evidence that the FaceTime incident was not just a dumb remark by a clueless 11 year old boy, but part of a pattern of conduct intended to isolate and intimidate this 11 year old girl.
2. Plaintiff's Subjective Fear: The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated. Her testimony, credited by the judge, was that she wanted the order extended "[b]ecause without it, [she] [felt] unsafe and afraid of him. The affidavit also received that the plaintiff's father had "fear for her safety from this boy."
3. Intent: "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991). In this case, the defendant's repeated and escalating harassment of the plaintiff, each time involving additional classmates, and then persisting after adult intervention, would reasonably support an inference that he intended to cause the plaintiff fear and intimidation. However, there is no need to draw inferences here, because the defendant said explicitly what his intent was -- to make the plaintiff's life a living hell. He also explained, on more than one occasion, his motive for doing so. The plaintiff's affidavit recited that the defendant had told the plaintiff's younger brother the night before the play that "he was 'fucking with [the plaintiff] because she ruined his life." The night of the play, he told the plaintiff that he wanted to punch her because "she ruined his life." Both of these statements support the conclusion that the defendant, in fact, intended to cause fear and intimidation and that he was motivated by hostility and revenge. See O'Brien, 461 Mass. at 426 ("To establish harassment, a [plaintiff] must prove that the defendant, motivated by cruelty, hostility, or revenge, willfully committed three or more acts aimed at a specific person, each with teh intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property. G.L.c. 258E, section 1.")
CONCLUSION 1:
1. The appeals court affirms the lower court decision to extend the harassment prevention order against the juvenile defendant.
ISSUE 2:
1. Did the Legislature intend for the harassment prevention statute to apply to juveniles under the age of 18?
HOLDING 2:
1. Yes, the harassment prevention statute intended to apply to juveniles under the age of 18.
RULE 2:
1. The defendant's age certainly is a factor in determining his intent, but the Legislature provided specifically for such a determination to be an informed one by awarding to the Juvenile Court exclusive jurisdiction over G.L. c. 258E orders directed at juveniles. G.L. c. 258, section 2. As a result, it is fair to conclude that, when the Legislature deliberately entrusted to the trial court department most experienced with juveniles exclusive authority to issue harassment orders against them, it had young people's limitations and abilities particularly in mind.
2. It is also a fair inference that, had the members of the Legislature intended to put minors beyond the reach of G.L. c. 258E, they would have done so.
DeMayo v. Quinn
FACTS:
1. The plaintiff owns a horse boarding facility. She also resides at the same property with her husband.
2. In late August of 2013, the plaintiff discovered that particular items in the horse barn were either missing or had been rearranged.
3. When the episodes continued, and a horse's allergy medication and needles disappeared, the plaintiff set up a video camera and contacted the police.
4. The police then set up their own surveillance camera, which captured an unauthorized individual, eventually identified as the defendant, engaging in various activities inside the barn on five different occasions.
5. The videotape recording of those incidents showed the defendant taking items from the barn's refrigerator, rearranging hay bales, and throwing items into a horse's stall.
PROCEDURAL HISTORY:
1. On December 17, 2013, following an ex parte hearing, a harassment prevention order was issued against the defendant pursuant to G.L. c. 258E.
2. A further evidentiary hearing was held, at which the plaintiff testified, and the order was extended for one year.
3. The defendant appeals from the extension of the order, claiming that his conduct was neither "willful or malicious," nor "aimed at a specific person," as required by the statute.
ISSUE 1:
1. Under G.L. c. 258E, is a person's conduct "willful or malicious" when he takes items from a barn's refrigerator, rearranges hay bales, throws items into a horse's stall, and takes away allergy medication and needles from a horse?
HOLDING 1:
1. Yes, these actions constitute conduct that is "willful or malicious."
RULE 1:
1. Under the statute, an act is "willful and malicious" if it is "characterized by cruelty, hostility or revenge." G.L. c. 258, Section 1.
2. "A plaintiff seeking protection through a civil harassment order must show that the defendant engaged in at least three willful and malicious acts, and that for each act the defendant intended to cause fear, intimidation, abuse, or damage to property." O'Brien v. Borowski, 461 Mass. 415, 426 n.8 (2012).
ANALYSIS 1:
1. In the present case, the uncontested evidence, as captured on video surveillance, shows that the defendant, on at least three occasions, caused damage to property either owned or in the care of the plaintiff.
2. It is implicit in the judge's oral findings, particularly in relation to the horse, that the judge considered the acts to be either cruel, hostile or both. Specifically, the judge found that destroying the horse's medication "put [the] animal at risk," and that the defendant's behavior caused harm to the horse. He further stated, "[t]he degree of maliciousness, well, if you break and enter into people's property and throw their stuff around."
3. The Appeals court will not disturb the trial judge's findings unless clearly erroneous. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010).
CONCLUSION 1:
1. The defendant's actions did satisfy the "willful or malicious" element of the G.L.c. 258E statute.
ISSUE 2:
1. Under G.L. c. 258E, did a defendant specifically aim his actions at the plaintiff if he destroyed property at a barn that the plaintiff owned and lived in?
HOLDING 2:
1. No, because there was insufficient evidence to conclude that the defendant undertook his actions with an intent to cause fear on the part of the plaintiff or anyone at the property.
RULE 2:
1. The phrase "aimed at a specific person" tracks the language of the criminal harassment statute, G.L. c. 265, section 42A, as amended by St. 2010, c. 92, section 10, which provides, in relevant part, that "whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harrassment". See O'Brien v. Borowski, 461 Mass. at 420 ("Both civil and criminal harassment require proof of three or more acts of willful and malicious conduct aimed at a specific person"); Commonwealth v. Johnson, 470 Mass. 300, 312 (2014) ("Section 43A requires that the Commonwealth prove three or more predicate acts of harassment that were 'directed at a specific person'").
2. In the criminal context, the "'specific person' referred to is the victim-- the person who is 'seriously alarm[ed]' by the harassment." Commonwealth v. Welch, 444 Mass. 80, 90 (2005) quoting from G.L. c. 265, section 43A(a). More precisely, "this provision, by its plain terms, requires the Commonwealth to establish, at the very least, that the defendant intended to target the victim with the harassing conduct on at least three occasions." Ibid. Although not defined in G.L. c. 258E, section 1, we see no reason for this shared term ("at a specific person") to have a different meaning in the context of civil harassment."
ANALYSIS 2:
1. In the present case, there is nothing about the actions of the defendant to suggest that he undertook them with an intent to cause fear on the part of the plaintiff, or anyone at the property.
2. The plaintiff acknowledged that she lived on the property with her husband, that customers of the barn came to and from the property at all times of the day and night, and that an unrelated family of four also lived on the property.
3. Moreover, the parties did not know one another. The plaintiff also acknowledged that while she did not know the defendant, she knew of his family and that he had a brother. In fact, it was the police who identified this defendant as the individual depicted on the video surveillance. There was no apparent or inferential animus between the plaintiff and the defendant.
4. While a relationship between the parties is not a requirement to secure a c. 258E order, given the number of residents on, and visitors to, the plaintiff's property, in combination with a defendant and plaintiff unknown to one another, there is insufficient evidence in this case to conclude that the defendant's acts were directed specifically at the plaintiff, or at a specific person at all.
CONCLUSION:
1. The trial judge made no findings as to whether the defendant's actions were directed at the plaintiff.
2. While the defendant's actions are understandably disturbing or unsettling to the plaintiff, the evidence does not support a finding that he intended to target her specifically. Cf. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012) (reversal of criminal harassment conviction where conduct did not have sufficient connection to plaintiff).
3. Accordingly, the court remanded the case to the District Court for entry of an order vacating the harassment prevention order against the defendant.
1. The plaintiff owns a horse boarding facility. She also resides at the same property with her husband.
2. In late August of 2013, the plaintiff discovered that particular items in the horse barn were either missing or had been rearranged.
3. When the episodes continued, and a horse's allergy medication and needles disappeared, the plaintiff set up a video camera and contacted the police.
4. The police then set up their own surveillance camera, which captured an unauthorized individual, eventually identified as the defendant, engaging in various activities inside the barn on five different occasions.
5. The videotape recording of those incidents showed the defendant taking items from the barn's refrigerator, rearranging hay bales, and throwing items into a horse's stall.
PROCEDURAL HISTORY:
1. On December 17, 2013, following an ex parte hearing, a harassment prevention order was issued against the defendant pursuant to G.L. c. 258E.
2. A further evidentiary hearing was held, at which the plaintiff testified, and the order was extended for one year.
3. The defendant appeals from the extension of the order, claiming that his conduct was neither "willful or malicious," nor "aimed at a specific person," as required by the statute.
ISSUE 1:
1. Under G.L. c. 258E, is a person's conduct "willful or malicious" when he takes items from a barn's refrigerator, rearranges hay bales, throws items into a horse's stall, and takes away allergy medication and needles from a horse?
HOLDING 1:
1. Yes, these actions constitute conduct that is "willful or malicious."
RULE 1:
1. Under the statute, an act is "willful and malicious" if it is "characterized by cruelty, hostility or revenge." G.L. c. 258, Section 1.
2. "A plaintiff seeking protection through a civil harassment order must show that the defendant engaged in at least three willful and malicious acts, and that for each act the defendant intended to cause fear, intimidation, abuse, or damage to property." O'Brien v. Borowski, 461 Mass. 415, 426 n.8 (2012).
ANALYSIS 1:
1. In the present case, the uncontested evidence, as captured on video surveillance, shows that the defendant, on at least three occasions, caused damage to property either owned or in the care of the plaintiff.
2. It is implicit in the judge's oral findings, particularly in relation to the horse, that the judge considered the acts to be either cruel, hostile or both. Specifically, the judge found that destroying the horse's medication "put [the] animal at risk," and that the defendant's behavior caused harm to the horse. He further stated, "[t]he degree of maliciousness, well, if you break and enter into people's property and throw their stuff around."
3. The Appeals court will not disturb the trial judge's findings unless clearly erroneous. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010).
CONCLUSION 1:
1. The defendant's actions did satisfy the "willful or malicious" element of the G.L.c. 258E statute.
ISSUE 2:
1. Under G.L. c. 258E, did a defendant specifically aim his actions at the plaintiff if he destroyed property at a barn that the plaintiff owned and lived in?
HOLDING 2:
1. No, because there was insufficient evidence to conclude that the defendant undertook his actions with an intent to cause fear on the part of the plaintiff or anyone at the property.
RULE 2:
1. The phrase "aimed at a specific person" tracks the language of the criminal harassment statute, G.L. c. 265, section 42A, as amended by St. 2010, c. 92, section 10, which provides, in relevant part, that "whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harrassment". See O'Brien v. Borowski, 461 Mass. at 420 ("Both civil and criminal harassment require proof of three or more acts of willful and malicious conduct aimed at a specific person"); Commonwealth v. Johnson, 470 Mass. 300, 312 (2014) ("Section 43A requires that the Commonwealth prove three or more predicate acts of harassment that were 'directed at a specific person'").
2. In the criminal context, the "'specific person' referred to is the victim-- the person who is 'seriously alarm[ed]' by the harassment." Commonwealth v. Welch, 444 Mass. 80, 90 (2005) quoting from G.L. c. 265, section 43A(a). More precisely, "this provision, by its plain terms, requires the Commonwealth to establish, at the very least, that the defendant intended to target the victim with the harassing conduct on at least three occasions." Ibid. Although not defined in G.L. c. 258E, section 1, we see no reason for this shared term ("at a specific person") to have a different meaning in the context of civil harassment."
ANALYSIS 2:
1. In the present case, there is nothing about the actions of the defendant to suggest that he undertook them with an intent to cause fear on the part of the plaintiff, or anyone at the property.
2. The plaintiff acknowledged that she lived on the property with her husband, that customers of the barn came to and from the property at all times of the day and night, and that an unrelated family of four also lived on the property.
3. Moreover, the parties did not know one another. The plaintiff also acknowledged that while she did not know the defendant, she knew of his family and that he had a brother. In fact, it was the police who identified this defendant as the individual depicted on the video surveillance. There was no apparent or inferential animus between the plaintiff and the defendant.
4. While a relationship between the parties is not a requirement to secure a c. 258E order, given the number of residents on, and visitors to, the plaintiff's property, in combination with a defendant and plaintiff unknown to one another, there is insufficient evidence in this case to conclude that the defendant's acts were directed specifically at the plaintiff, or at a specific person at all.
CONCLUSION:
1. The trial judge made no findings as to whether the defendant's actions were directed at the plaintiff.
2. While the defendant's actions are understandably disturbing or unsettling to the plaintiff, the evidence does not support a finding that he intended to target her specifically. Cf. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012) (reversal of criminal harassment conviction where conduct did not have sufficient connection to plaintiff).
3. Accordingly, the court remanded the case to the District Court for entry of an order vacating the harassment prevention order against the defendant.
Jankovich v. Jankovich
FACTS:
1. The Parties separated on or about December 8, 2012. The Father left the house and did not return.
2. The Father had an ongoing relation with a live-in au pair the parties had hired in December 2010. The au pair left the parties' employment in August of 2012.
3. The children do not know that their father and the au pair are involved in a relationship, and do not know that the relationship was the cause of their parents separation.
4. The children have had certain adverse reactions to the separation of their parents, most notably that the three children insist on sleeping in their mother's bed.
5. The mother contends that if the children are permitted to interact with the au pair they will realize the cause of the breakup of the parties' marriage. Therefore, she seeks to have an order that the father not allow the children to have any contact with the au pair, with whom he has a long-term relationship.
PROCEDURAL HISTORY:
1. The Mother appealed from a judgment of divorce nisi dated July 8, 2014. The sole issue on appeal is the judge's failure to order that, in the event a judgment of divorce enters, the plaintiff (Father), would be prohibited from permitting the children to be in the company of a former au pair who is involved in a relationship with the father.
ISSUE:
1. Can the court prohibit a parent from permitting the children access to a third party?
HOLDING:
1. Yes, but only if the children's access to the third party would affect the well-being of the child or children whose custody is under consideration.
RULE:
The judge's responsibility is to evaluate the "interpersonal relationships of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort v. Fort, 12 Mass.App.Ct. 411 (1981). The court will only impose a limitation on the award of physical custody if there is evidence of a "direct and articulable adverse impact on the children." B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 2006).
ANALYSIS:
1. The mother did not offer any evidence that if the children were in the presence of the au pair it would exacerbate the adverse behaviors which began following the separation.
2. In effect, the mother seeks the court's moral condemnation of the father's lifestyle.
3. In Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981), the court states "Our courts must serve a society comprised of groups that are widely disparate in cultural background and moral and religious outlook. The judges who must ultimately determine disputes over custody have the same disparities of outlook as the society they serve. Obviously the individual judge cannot hold up his own moral and religious views as the standard against which he determines the moral fitness of the proposed custodian, for different judges would make conflicting determinations, and 'the judicial branch of the government, with respect to [custody disputes], would become a government of men and not of laws.'" Ibid., quoting from Reddington v. Reddington, 317 Mass. 760, 765 (1945).
4. Instead, the judge's responsibility is to evaluate the "interpersonal relations of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort, supra at 418.
COMPARISON TO OTHER CASES:
1. In Doe v. Doe, 16 Mass.App.Ct. 499 (1983), the court affirmed an award of joint custody, concluding that no evidence had been presented to show that what was described as the wife's homosexual lifestyle would adversely affect the child. Id. at 504. In the present case, there was a similar lack of evidence to support the mother's contention.
2. In B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 (2006), the court imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between the mother and grandfather, and we acknowledged that such exposure "would be a direct and articulable adverse impact on the children." Id. at 20. In this case, comparable evidence of a "direct and articulable adverse impact on the children" as a result of the father's relationship with the former au pair is noticeably lacking.
CONCLUSION:
1. Appellate court affirmed the Trial Court's decision to allow the Father to have his children in the company of the former au pair who he is involved with in a long-term relationship.
1. The Parties separated on or about December 8, 2012. The Father left the house and did not return.
2. The Father had an ongoing relation with a live-in au pair the parties had hired in December 2010. The au pair left the parties' employment in August of 2012.
3. The children do not know that their father and the au pair are involved in a relationship, and do not know that the relationship was the cause of their parents separation.
4. The children have had certain adverse reactions to the separation of their parents, most notably that the three children insist on sleeping in their mother's bed.
5. The mother contends that if the children are permitted to interact with the au pair they will realize the cause of the breakup of the parties' marriage. Therefore, she seeks to have an order that the father not allow the children to have any contact with the au pair, with whom he has a long-term relationship.
PROCEDURAL HISTORY:
1. The Mother appealed from a judgment of divorce nisi dated July 8, 2014. The sole issue on appeal is the judge's failure to order that, in the event a judgment of divorce enters, the plaintiff (Father), would be prohibited from permitting the children to be in the company of a former au pair who is involved in a relationship with the father.
ISSUE:
1. Can the court prohibit a parent from permitting the children access to a third party?
HOLDING:
1. Yes, but only if the children's access to the third party would affect the well-being of the child or children whose custody is under consideration.
RULE:
The judge's responsibility is to evaluate the "interpersonal relationships of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort v. Fort, 12 Mass.App.Ct. 411 (1981). The court will only impose a limitation on the award of physical custody if there is evidence of a "direct and articulable adverse impact on the children." B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 2006).
ANALYSIS:
1. The mother did not offer any evidence that if the children were in the presence of the au pair it would exacerbate the adverse behaviors which began following the separation.
2. In effect, the mother seeks the court's moral condemnation of the father's lifestyle.
3. In Fort v. Fort, 12 Mass.App.Ct. 411, 415 (1981), the court states "Our courts must serve a society comprised of groups that are widely disparate in cultural background and moral and religious outlook. The judges who must ultimately determine disputes over custody have the same disparities of outlook as the society they serve. Obviously the individual judge cannot hold up his own moral and religious views as the standard against which he determines the moral fitness of the proposed custodian, for different judges would make conflicting determinations, and 'the judicial branch of the government, with respect to [custody disputes], would become a government of men and not of laws.'" Ibid., quoting from Reddington v. Reddington, 317 Mass. 760, 765 (1945).
4. Instead, the judge's responsibility is to evaluate the "interpersonal relations of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort, supra at 418.
COMPARISON TO OTHER CASES:
1. In Doe v. Doe, 16 Mass.App.Ct. 499 (1983), the court affirmed an award of joint custody, concluding that no evidence had been presented to show that what was described as the wife's homosexual lifestyle would adversely affect the child. Id. at 504. In the present case, there was a similar lack of evidence to support the mother's contention.
2. In B.B.V. v. B.S.V., 68 Mass.App.Ct. 12 (2006), the court imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between the mother and grandfather, and we acknowledged that such exposure "would be a direct and articulable adverse impact on the children." Id. at 20. In this case, comparable evidence of a "direct and articulable adverse impact on the children" as a result of the father's relationship with the former au pair is noticeably lacking.
CONCLUSION:
1. Appellate court affirmed the Trial Court's decision to allow the Father to have his children in the company of the former au pair who he is involved with in a long-term relationship.
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