FIRM OBTAINS DISMISSAL AT THE CLOSE OF MULTI-DAY TRIAL AGAINST PETITIONER/FATHER’S ATTEMPT TO TERMINATE UNRELATED THIRD PARTY’S GUARDIANSHIP OVER HIS MINOR CHILD
Todd D. Beauregard and his Associate, Shauna Finnegan, were retained on the eve of trial conference to protect and defend Respondent’s guardianship over an unrelated three year old child whose biological Father was seeking to dissolve the Guardianship and take custody of the child back.
The child, who was three and a half at the time of trial, had been placed in his Guardian’s care when he was ten months old and a permanent guardianship was obtained, without objection, ninety days later. Just months after the Guardianship was made permanent, biological Father filed a Motion to Terminate the Guardianship and retain custody of his son.
This action came before the Honorable First Justice Peter C. DiGangi for trial conference at the Cambridge session of the Middlesex Probate and Family Court in October and December of 2013. The Petitioner/Father, represented by Counsel, supported his contention that the child should be returned to him by noting that the same Court, by way of judgment after a trial on the merits, had recently returned care and custody of the minor child’s four biological siblings to the same Father.
Nevertheless, Todd D. Beauregard, through cross examination of the petitioning Father, verified that the Father had failed to establish that it was in this particular child’s best interest to be returned to his care notwithstanding the fact that Father was deemed legally ‘fit’ to take custody of the four young brothers and sisters.
When the Petitioner rested his case, The Law Office of Todd D. Beauregard, successfully obtained a dismissal of the Father’s action and all of his claims for relief were denied.
The results further promote the importance of considering the best interest of the child in conjunction with parental fitness, and further emphasizes the notion that what may be best for one child in a family, is not necessarily what is best for another. Needless to say, the Guardian of the minor child was ecstatic with the results and continues to enjoy being parent and caregiver to the child involved.
From The Law Office of Todd D. Beauregard, PC
RECENT POST-DIVORCE DECISIONS
What do we learn in family law during the summer of 2012?
Many clients ask: How can I avoid post-divorce litigation? Answer: Construct a clear and enduring agreement at the time of divorce that promotes long-term compliance. Presented are four recent post-divorce decisions in Massachusetts involving: Clean Hands, Quality Time With Your Kids, Word Choice, and Child Support Deviation.
CLEAN HANDS Case: Freidus v. Hartwell, decided 9/28/11
Issue: Whether attorney fees can be paid to one who successfully defends a frivolous action.
Holding: Yes, but, proof of wrongdoing is borne by the person requesting fees.
Discussion: Mass. Gen. Laws Ch. 208 § 38 provides statutory guidance on this issue, granting to a judge broad discretion in awarding attorney fees and equally broad discretion to deny attorney fees when one party defends a frivolous act brought by the other party. Although that may sound open ended, judges look at the specific nature of the legal action, the credibility of the evidence presented and they focus on whether a misrepresentation, and/or fraudulent conduct is present. In this particular case, where the Husband accused the Wife of not cooperating, the Court found no credible evidence of fraudulent conduct, and no evidence of a misrepresentation. Here, although the ex-wife was not found in contempt of court, her request for attorney fees was denied.
Bottom line: It would appear neither party had clean hands, thus, no fees.
QUALITY TIME WITH YOUR KIDS Case: Woodside v. Woodside, decided 6/24/11
Issue 1: Do the words “live primarily with the Mother” mean Mother has sole physical custody, and if it does, why is that important?
Issue 2: When it comes to removal of minor children of a marriage from Massachusetts out of state, which of the two standards will the Courts apply; 1) the real advantage test, (aka Yannas, best interest of the child) or 2) a test that examines more of the overall impact of a move upon all the parties, (aka Mason).
1: Here, the primary caretaker was seen as having sole physical custody.
2: As to which standard applies: If the party seeking to move the child has sole physical custody, then the (Yannas – focused more on the child) real advantage test applies. However, if the parents have joint physical custody, then the (Mason – more focused on the impact to all the parties as well as the child) factors apply.
Discussion: In this case, the Court applied the real advantage test, that is, whether removal of child from Massachusetts to Maine was in the child’s best interest. The mother, ultimately found to have sole physical custody, was able to show how her move to Maine would benefit the child. The Father appealed saying that the custody arrangement was ambiguous, citing the separation agreement, “the child is to live primarily with the Mother”. Father argued these words did not mean the Mother had sole physical custody. He cited all the time he continued to spend with the child, claiming the arrangement was actually joint physical custody, thus, the Father argued, the Court applied the wrong standard.
Bottom line: Parental involvement with your children is always a key factor.
WORD CHOICE: Case: Cummings v. Lamoureux, decided 3/29/12
Issue 1: Whether “additional income” above one’s salary and yearly bonus from the same employer is enforceable as part of the marital property division.
Issue 2: If “additional income” is not counted as part of the marital property division, then may it count as added income for purposes of child support?
Holding 1: Not in the circumstances of this case.
Holding 2: Yes, it counts as part of one’s gross income for child support purposes.
Discussion: In the parties’ separation agreement here, the Wife was awarded child support per the Massachusetts Child Support Guidelines and 25% of the husband’s salary and yearly bonus. Above and beyond the husband’s salary and bonus, he earned “additional” income from his job tied to a specific incentive plan. The wife argued it was mere semantics, that all of the husband’s income should be considered as his “salary and bonus.” Court said no, his “additional income” was not synonymous with salary and bonus. However, for purposes of establishing the husband’s total income for child support, the Court did count the husband’s “additional income” as part of his gross earnings. The wife thus obtained an increased child support order.
Bottom line: Here, a distinction was made in determining what counts as “income” between child support and in the division of marital assets.
PAY LESS THAN THE GUIDELINES? Case: Wasson v. Wasson, decided 4/11/12
Issue: Whether deviation from the child support guidelines based on an argument of double dipping requires written findings by the presiding justice.
Holding: Written findings are required regardless of the argument to deviate.
Deviation from Child Support Guidelines: A deviation is warranted when a party can show all the following: (i) the guideline amount is unjust or inappropriate under the
circumstances, (ii) the facts of the case justify a departure and (iii) such a departure is in the best interests of the children. It also requires the judge to provide written findings. “Double-dipping”: Ex-husband argued that his capital gain income was “double-dipping” because he was forced to sell assets and incur a corresponding gain in order to pay a child support order that was burdensome. In other words, he was forced to continuously sell assets that continuously boosted his income, as the only way he could continuously afford to pay the Court ordered continuous child support amount. Court said there is a presumption that capital gains, when it is a regular source of income, should be included as income for child support purposes; a presumption that can be argued. The judge first included the husband’s capital gain income, then on a modification, the judge excluded it – both times, without providing written findings, as required by statute.
Bottom line: Provide the judge the basis for his or her written findings, and you are then more likely to succeed in deviating from the child support guidelines.
CASE STUDY: TO SERVE, OR NOT TO SERVE, THAT IS THE QUESTION!
SOCIAL HOST LIABILITY: ARE ABSENT HOMEOWNERS LIABLE?
ISSUE: WHETHER A HOMEOWNER/PARENT, OUT OF STATE AT A TIME WHEN HER DAUGHTER HOSTS A BYOB PARTY, CAN BE HELD LIABLE UNDER A SOCIAL HOST OR NEGLIGENCE THEORY.
HOLDING: NO. However, the adult daughter social host may be held liable.
Attorney Todd D. Beauregard represented a plaintiff whose injuries required eye surgery after being invited to a bring-your-own-beer party hosted by a 26 year-old daughter in her mother’s Massachusetts home. The mother/homeowner was in Maine at the time of the party. An intoxicated partygoer struck attorney Beauregard’s client in the left eye with a beer bottle. Attempting to leave the party, he was assaulted again in the mouth.
In Superior Court, Attorney Beauregard argued that the mother’s act of leaving behind alcohol in the home that may have been consumed prior to the incident, should, under a social host theory, subject the homeowner to civil liability. The Honorable Judge Gary V. Inge ruled that the homeowner must be shown to have either supplied the alcohol, or made the alcohol accessible to guests. Here, that the mother knew her daughter would have guests, and alcohol would be involved was not enough for mother to be liable.
The daughter then moved the Court to dismiss the suit on grounds that no genuine issues of material fact were in dispute. Judge Inge denied the daughter’s motion, finding that genuine issues exist, as must be resolved by fact-finder.
Attorney Beauregard commented to the Massachusetts Lawyers Weekly (Vol. 40 Issue No. 15, November 28, 2011), saying, “The judge allowed the suit to move forward against the daughter even though the evidence demonstrated that some guests brought their own alcohol to the party.” Noting the legal significance, Attorney Beauregard explained, “Until now, the majority of cases out there indicated that the host actually had to purchase the alcohol and then make it available to guests. What the judge held here is that the buying of the booze is not the critical question.”
Noting that this decision clearly pushes the envelope on social host liability, Attorney Beauregard said that under these circumstances, the judge focused instead on how the alcohol was actually controlled inside the house once the party began. As to the Mother, a key issue in the ruling was what kind of control she had over the alcohol. Said Judge Inge, “For a social host to be held liable for harm caused by a third party, there must be some type of control over the alcohol giving rise to a duty on the host’s behalf.”
As to the daughter’s liability, the Judge said, “The daughter was the host and, it could be found, the supplier of at least some amount of the alcohol that was being consumed. Accordingly, a genuine issue of material fact exists for trial.”
WHAT IS ALL THE FUSS ABOUT IN ALIMONY/SPOUSAL SUPPORT?
OVERVIEW: NEW MASSACHUSETTS ALIMONY REFORM ACT OF 2012
PURPOSE: This new law taking effect in March 2012 attempts to simplify how spousal support is appropriately calculated to the wide variety of circumstances in a given divorce proceeding. In the past, alimony was one the most contentious of divorce issues involving protracted litigation between divorcing or already divorced spouses, with unpredictable results.
THE LABELS: The new statute uses terms that describe the justification for continuing support for one spouse, post-divorce. For example, in cases where one spouse has been the traditional breadwinner, the other spouse might receive support for “rehabilitative” purposes. Such a purpose would provide the other spouse with a finite period to learn new skills, get an education, or otherwise enter the work force.
THE CIRCUMSTANCES: These are also known as the “factors” a Court will consider. In cases where one spouse has earned the disproportionate majority of income over a long period, the other spouse would be most likely to receive alimony. Where the marriage is considered long term, over 15 years for example, the lesser earning spouse is most likely to receive spousal support. Generally, the shorter the marriage or where income is similar, the lesser the prospect of alimony.
PREDICTABILITY: The new law attempts to decrease a judge’s former unbridled discretion as it intends to align the amount of support into a more formulaic equation. A new alimony award could typically order that $ X be paid to the other spouse for a definite period of time, and then be decreased or terminated. In some cases, the new law could eliminate the prospect of alimony for life. In this way, the new law discourages parties from bringing ongoing, post-divorce modification actions that have clogged the Court’s already overburdened calendars. At the same time, it provides divorcing parties some idea as to what one might pay, or receive, in the future and for how long.
CASE LAW INTERPRETATION: It is important to note that new statutory law is always subject to judicial interpretation. As this new law is no exception, it is ripe for scrutiny by the bench, so when (not if) this happens, it would take on new meaning.
HOW THE LAW OFFICES OF TODD D. BEAUREGARD CAN HELP YOU: All the Attorneys at our offices are keenly aware of the new alimony law. Every situation is unique. This description is only a general overview. Give us a call for a free consultation so we can explain how this law might affect you. (978) 275-1919.