Jared Remy Case: What Guardianship May Mean for Remy’s Daughter and the Martell and Remy Families

March 26, 2014 – Stevenson & Lynch attorneys James M. Lynch and Jason V. Owens recently provided commentary and analysis to the Boston Herald’s Laurel Sweet about the guardianship agreement reportedly reached by the grandparents of Arianna Nicole Remy at the Middlesex Probate and Family Court on March 25, 2014. Arianna Remy is the daughter of accused murderer Jared Remy, and the granddaughter of famed Red Sox announcer Jerry Remy. Jared Remy is accused of murdering the child’s mother, Jennifer Martell, on August 15, 2013 at the home the couple shared in Waltham, Massachusetts.

According to the Herald, details about the guardianship agreement remain limited, with attorneys for the families announcing that the Martells would serve as Arianna’s primary guardians, with the Remys and the victim’s brother, Brian Jr., to receive unspecified visitation with Arianna.

Speaking with the Herald, Attorneys Lynch and Owens discussed some of the unanswered questions surrounding the confidential guardianship agreement, including potential concerns over contact between the child and Jared Remy, as well as some of the considerations that may have led to the Martells’ appointment as primary guardians.

Read the full article here.

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Hardship Licenses and the First Offenders Program

If you ever find yourself is standing in front of a judge at an arraignment for Operating Under the Influence (OUI/DWI/DUI), it is because you have either failed the breathalyzer test or refused to take the breathalyzer test and were arrested based upon evidence other than the breathalyzer, usually the observations of the arresting officer. Under the Massachusetts implied consent law (Massachusetts General Laws 90, §24(1)(f)(1)), every licensed driver has already agreed to take the breathalyzer test (or a blood alcohol test) as a condition of receiving a valid license to operate a motor vehicle. Because a driver’s license is a privilege and not a right, a refusal to take the breathalyzer is grounds for automatic suspension. What happens after the test is taken or refused will vary with the offender’s circumstances but that court arraignment hearing can be a critical decision making time for first time offenders because of the license suspension factors that are already in play.

We are often asked by our clients who have been arrested for the first time about the availability of a “hardship license” after they have been arrested for operating under the influence OUI. A hardship license is often referred to as a “Cinderella license” or a “restricted license” and permits a driver to operate a motor vehicle during identical 12 hour periods 7 days a week and is available to OUI first offenders who meet the Registry of Motor Vehicles (RMV) requirements that they demonstrate that they have a real hardship. Those requirements include (but are not limited to) a showing that the case has been disposed of by the Court, that the offender has completed or is currently enrolled in the first offenders driver alcohol education program authorized by G.L. c. 90, §24D (also known as the “24D program”), that the offender needs a hardship license for his/her job or school and that no alternative public transportation exists to meet those needs. Also, if there are any unrelated active suspensions (for example, habitual traffic offender), those will prohibit the issuance of a 24D hardship license.

The statute gives the RMV discretion to issue the hardship license and its issuance is not guaranteed but, assuming that the applicant can meet all of the RMV criteria for hardship, the 24D offender’s hardship application should be approved whether the suspension is for failing or refusing to take the breathalyzer test. This much is certain, however, the hardship license cannot issue unless the offender is enrolled in the 24D program and that can’t happen while the case is still open.

It is important keep in mind that an OUI conviction of a first offender who elects not to take the 24D program results in a one-year loss of license. So the incentives to take a 24D disposition include the reduced period of license suspension along with the eligibility to apply for and be granted a hardship license. The 24D program is offered to virtually all first time offenders. That is why a first time offender needs to have a clear plan mapped out before entering the initial plea at the arraignment, which takes place on the first business day after the arrest. If the defendant is a first offender and is not ready to deal with his/her options at that arraignment, the case will be continued for a period of time until the next court event in the process, possibly even a month or two. And any delay can be a significant amount of time when the defendant has had his license suspended for failing/or refusing to take the breathalyzer.

The suspension penalty for refusing to take the breathalyzer in Massachusetts is a 180-day loss of license, whereas the loss of license for a first offender who actually takes the test and fails is only a 30-day loss of license. Irrespective of which category first offenders fall under, by the time those offenders step to the bar for their arraignment, they should have decided whether they want to fight the case by way of trial or whether they want to plead out that very day to a disposition that includes assignment to the 24D program. Even though such a disposition will carry with it an additional loss of license for 45 to 90 days on top of the breathalyzer penalty, the 24D disposition makes the offender eligible for a hardship license which will be valid during the suspension periods. So if that offender knows that he/she is going to take the 24D program no matter what, then it makes eminent good sense to tender the plea at the arraignment. Moreover, the penalty for failing the breathalyzer (30 days) goes away with the tender of a plea to a 24D disposition if it occurs while that suspension is still in effect.

None of the above is meant to suggest that a first offender who was wrongly arrested should not fight and establish his/her innocence at trial. After all, a 24D disposition will be treated in the future as a prior offense even if the ultimate finding in the first offense was a continuance without a finding, so there is that trade-off. Rather, the above is only meant to convey the reality that there cannot be a hardship license so long as the case the case is pending in Court and while the case is pending the breathalyzer license suspensions will be enforced.

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Does My Motorcycle Insurance Really Cover My Injuries?

Over the years at Stevenson & Lynch, P.C., we have handled many motorcycle accident cases and it has been our experience that the overwhelming majority of motorcyclists are the most careful and courteous motorists out there on the roadways today.  Despite their caution, however, even the most careful motorcyclists sometimes cannot guard against the negligence of a random inattentive automobile driver.   It is a constant theme during all of our initial consultations with our motorcycle accident clients that, when we review their own personal insurance coverage selections pages, just how unaware of how underinsured they actually are.  Up to that point, motorcyclists generally only understand that the annual insurance premium that they pay is cheap in many instances but they don’t understand why.  When we tell them they don’t have Personal Injury Protection benefits (PIP) available to them or their passenger, it is a revelation to them – partly because most people don’t fully understand what PIP is.   PIP is found in Part 2 of the Massachusetts Automobile Policy (incidentally, motorcycle policies are written on a standard Massachusetts automobile policy) and it is compulsory coverage that must be maintained by all motorists, even motorcyclists; however, the extent of the PIP coverage available on a motorcycle differs greatly from that available on a passenger vehicle policy.

In automobile policies, PIP is intended to provide coverage to the driver, to passengers and to pedestrians who are injured in auto accidents.  In addition to being compulsory in Massachusetts, PIP coverage is also “No-Fault” coverage – in other words, if the driver caused the accident, he/she is still covered by PIP.  The coverage provided is a hybrid type of coverage: it can be used to pay for medical bills, for lost wages or a mixture of medical bills and lost wages.   If it is used for medical bill payment, PIP is the primary coverage until the first $2,000.00 has been paid out for medical payments, following which private health insurance becomes primary.  If there is no private health coverage, then up to $8,000.00 in PIP coverage is available.      

 Motorcycle PIP coverage, on the other hand, is so limited that it has almost no application in a typical motorcycle accident.  Neither the operator nor the passenger is covered and only a pedestrian injured by a motorcycle accident is entitled to PIP coverage, and that happens very rarely.  This coverage gap is a big part of the reason why motorcycle insurance rates are cheaper than auto insurance rates.  It’s also a bit misleading because the motorcycle policy coverage selections page just looks like its automobile counterpart.  Both show a premium paid for the PIP coverage but the premium for a motorcycle is about one-tenth than that for an automobile, so it is easy for a motorcyclist to mistakenly conclude that he/she has full PIP coverage when that isn’t the case.

Unfortunately, it takes an accident to discover that there won’t be any PIP coverage to help get the motorcyclist through the recovery period.  What can a motorcyclist do to proactively address this?  Nothing under PIP, so it has to be addressed through other more expensive insurance coverages, some of which have to be obtained outside the motorcycle policy.  Medical Payments coverage (MedPay) is available under the motorcycle policy, but it is much more expensive than MedPay in passenger vehicle policies.  Private health insurance, on the other hand, can completely address medical payment feature available under PIP.   But neither MedPay nor private health coverage address the lost wage replacement feature of PIP, however.  For that coverage, a motorcyclist has to buy a policy of personal disability insurance.   Note, however, that a motorcyclist has to be careful to answer all questions truthfully on the application for a long or short term disability policy.   Not surprisingly, there usually is a section on the disability insurance application designed to identify risky pastimes like skydiving, rock climbing and, yes, motorcycling.  So it is important that a purely recreational motorcyclist discloses that activity with the understanding that motorcycle track racing will be excluded from disability coverage.

The bottom line to all of the above is that, when putting your motorcycle on the road, a motorcycle owner has to do a careful review of his/her coverage with the insurance agent and to give careful thought to making sure he truly is fully covered before getting out on the roadways.

The representations on this page have been prepared by Stevenson & Lynch, P.C. for informational purposes only and do not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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Legislature Scrambles to Close Melanie’s Law Loophole

As predicted here on May 18, 2012, the Massachusetts Legislature is moving quickly to close the loophole identified in 2005 omnibus statute known as “Melanie’s Law” by the state Supreme Judicial Court’s recent, which narrowed the definition of repeat offenders currently applied by the Registry of Motor Vehicles (RMV) in breathalyzer test refusals.  On May 17, 2012, the SJC ruled that offenders who, in prior cases, had admitted sufficient facts, or had been received alcohol program assignment, or a continuance without a finding (CWOF) could not be considered as having been “previously convicted” of drunk driving as that term is applied by the RMV in determining offender status because the statute didn’t include such offenders.  Now the Legislature is moving quickly to include such offenders in its definition of “convicted”.  On Wednesday, May 23, 2011, the State Senate voted unanimously to adopt an amendment designed to close the suspension loophole to expand the suspension statute to include prior admissions, CWOF’s and alcohol program assignees as de facto prior convictions.  

Look for the House of Representatives to quickly follow suit.

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SJC Narrows Application of Drunk Driving License Suspensions Under Melanie’s Law

On May 17, 2012, the Massachusetts Supreme Judicial Court narrowed the power of the Registry of Motor Vehicles to administratively suspend the driver’s licenses of repeat offenders under the 2005 omnibus statute known as “Melanie’s Law”. In an opinion written by Judge Margot Botsford, the SJC addressed the interpretation of the word “convicted” as it relates to previously convicted drunk driving offenders in the case of Paul Souza vs. Registrar of Motor Vehicles (SJC Case No. 11123). Specifically, since the adoption of “Melanie’s Law” in 2005, the RMV has been treating as prior convictions cases where offenders had previously admitted to sufficient facts in dispositions resulting in continuances without a finding (CWOF’s) in assessing license suspensions for failure to submit to breathalyzer tests in subsequent cases. For example, a first time offender under the statute (which was amended in 2010) would receive a 180-day suspension for breathalyzer refusals where as an offender who had been previously “convicted” under the statute would receive a 3-year suspension for the same refusal. Offenders who have been “convicted” two or more times receive far more lengthy suspensions under the law (5 years for offenders with 2 prior convictions and lifetime suspensions for offenders with 3 or more convictions).

The section of the OUI statute dealing with offender breathalyzer/blood/chemical testing refusals (G.L.c.90, §24(1)(f)(1), however, does not define the word “convicted” as it is used in that statute (“previously convicted of”) but it is defined in G.L.c.90, §24(1)(d)(1) which states: “[a] person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty…” The SJC noted that “[t]he definition makes no mention of an admission to sufficient facts; an assignment to an alcohol education, treatment, or rehabilitation program (program assignment); or a continuance without a finding (CWOF).” The Court was not persuaded by the RMV Board of Appeals argument that the plaintiff’s 1997 CWOF should be treated as a prior conviction “in light of the remedial purpose of Melanie’s Law, namely, ‘to increase penalties for drunk drivers in the Commonwealth’ ”. The Court countered that if the Legislature wanted to include admissions to sufficient facts and CWOF’s within the ambit of its definition of “conviction”, it could have done so but did not.

What makes the SJC’s ruling a narrow one is that it deals only with suspensions for breathalyzer, blood and chemical test refusals. It does not deal with the sentencing penalties for OUI convictions themselves after a finding of guilty. Those parts of the statute dealing with second and subsequent offenses also don’t define “[previously] convicted of” but they do include offenders who have been previously “assigned to an alcohol or controlled substance education, treatment or rehabilitation program” and include such offenders in how a sentencing judge must determine who is to be considered a second and subsequent offender.

The SJC’s Souza ruling may also have a broad impact on those repeat offenders who had previously appealed their suspensions but whose appeals were denied because they were deemed to have had “prior convictions” as a result of admissions to sufficient facts or CWOF’s.

Lastly, it is likely that the Legislature will amend the statute to include a broader definition of the “[previously] convicted of” at some point in the near future.

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Massachusetts SJC Declines to Extend Social Host Liquor Liability

On February 21, 2012, the Massachusetts Supreme Judicial Court reaffirmed its long-held position that civil liquor liability attaches to a social host only where the host either serves alcohol or exercises effective control over the supply of alcohol.

In Juliano v. Simpson, decided on February 21, 2012, the Court reviewed a liquor liability case where the parent was out of the house and the social host was his 19 year old daughter who was in sole control of the premises. The daughter invited several friends over and one of them brought alcohol to the house. During the course of the evening, the guest who provided the alcohol drank to excess and left the party to drive another underage guest home. A short while later, their automobile struck a utility pole. The underage guest and her parents sued the absent parent and his 19 year-old daughter for her personal injuries.

The Court first recognized that common-law tort liability may be imposed on social hosts in 1986. In the decisions since then, the Court has only found liability where a host either serves alcohol to guests or effectively controls the supply of alcohol, and has declined to extend liability even to cases where parents knew or reasonably should have known that alcoholic beverages would be available to their underage guests.

The Juliano Court rejected the argument that social hosts, “who neither provided alcoholic beverages nor made them available, owed a duty to travelers on the highways to supervise their premises when they knew or reasonably should have known that drinking was taking place on the premises.” In citing as pivotal the fact that the underage guests brought their own alcohol, the Court concluded that any “proposed expansion of social host liability under our common law continues to be inadvisable”. Currently, only nine States impose social host liability for injury to third parties where a host merely provides a location for underage drinking.

For any parent who thinks that it is okay to hold BYOB parties for underage guests, it should be remembered that the Juliano Court only dealt with the subject of civil liability. The Massachusetts Legislature, however, has made that same conduct a punishable crime. M.G.L. c. 138, § 34 prohibits the “ furnish[ing]” of alcohol to a person under the age of twenty-one, and defines furnishing as “knowingly or intentionally supply[ing], giv[ing], or provid[ing] to or allow[ing] a person … to possess alcoholic beverages on premises or property owned or controlled by the person charged.” What is the penalty? A fine of not more than $2,000 or imprisonment for not more than one year.

- For more information on this topic, see http://www.patriotledger.com/topstories/x1353884657/High-court-Party-hosts-not-liable-for-underage-BYOB-drinking

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UPDATE: Alimonyformula.com and Massalimonyformula.com now Calculate Alimony Under New Mass Statute

Stevenson & Lynch, P.C. and Kelsey & Trask, P.C. invite you to visit the redesigned alimonyformula.com, which includes a simplified interface and calculates maximum weekly alimony under the recently enacted Massachusetts Alimony Reform Act of 2011.

In addition, Kelsey & Trask, P.C., our long-time collaborators at alimonyformula.com, have rolled out a fantastic new website providing stand-alone web-tools for calculating alimony under the new Massachusetts alimony statute at massalimonyformula.com.  Visit massalimonyformula.com to determine duration and the maximum “range” of alimony available under the new statute’s framework.

Both alimonyformula.com and massalimonyformula.com provide printable worksheet forms that can be filled out online and submitted directly to the Court in your alimony case, as well as a range of reference materials.  In addition, check out K&T’s masschildsupportformula.com for superior Massachusetts Child Support Guidelines calculator, which includes a shared/joint physical custody child support calculation tool.

The representations on this page have been prepared by Stevenson & Lynch, P.C. for informational purposes only and do not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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Child Support Obligations Never Go Away in Massachusetts

Recently, we have been getting calls from across the World Wide Web from people with grown children who are now being sued for child support by their state departments of revenue (“DOR”) – a decade or more after the emancipation of their children – and in some instances, for hundreds of thousands of dollars. Worse yet, they claim they to have fully paid their child support obligations long ago. Whether or not these cases are defensible depends upon the individual circumstances and the statutes of limitation in each state. It is worth noting, however, that a good number of states – like Massachusetts – have no statute of limitations. In other words, the Massachusetts DOR can come after the parent obligated to pay child support at any time in the future, regardless of the date of emancipation of the child. Other states have 20 year (and shorter) statutes of limitations for the collection of child support after the date of the child’s emancipation. If you get one of these delinquency notices out of the blue from the DOR of your state or some other state alleging that you owe the custodial parent child support for your grown children, you need to speak with a lawyer immediately because your window to take steps to defend yourself is short. The notices generally state that if the noncustodial parent does not pay the debt within thirty days or file a request for an administrative review, the DOR can use a range of remedies to collect the debt, including but not limited to bank account levies, interception of your tax refund or even suspension of your driver’s license. The non-custodial parent has to exhaust the administrative review process in order to get the matter reviewed judicially, so that notice of delinquency triggers the only remedy that the non-custodial parent will get. Ignore it at your peril.

If you are a non-custodial parent paying a child support order now, there is a lesson in these cases for you: Keep evidence of your child support payments, whether or not you pay your child support obligation to the DOR or directly to the custodial parent. And because many banks will only keep check images for seven years (not to mention that banks have come and gone over the years) you have to rely upon yourself and keep cancelled child support checks forever – a task made easier today with digitized scanning technology. And lastly, NEVER pay your child support obligation in cash.

The representations on this page have been prepared by Stevenson & Lynch, P.C. for informational purposes only and do not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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Determining Self-Employment Income for Child Support Purposes in Mass

I am pleased to link to an Article I published in the June 2011 edition of the Suffolk Journal of Trial & Appellate Advocacy entitled Determining Self-Employment Income for Child Support Purposes: the Massachusetts View Compared with the National View.  The article focuses on the thorny problem of calculating “income” for child support purposes in cases involving self-employed parents who operate a business over which the parent exerts financial control.

Much of the article explores the differences and similarities between “business income”, as defined by federal tax law, and “self-employment income”, as defined by child support guidelines in Massachusetts and other states.  Much of the impetus behind this “compare and contrast” approach is practical. Determining a business owner’s “income” for child support purposes almost always begins with an examination of the business’s state and federal tax returns. The challenge for attorneys, parties, and judges often lies in determining which sections of the business’s tax returns can be applied to the child support analysis – and which sections must be carefully scrutinized or rejected altogether when analyzing the return from the child support perspective.

How does “business income” on a tax return differ from “self-employment income” on a financial statement filed in a child support case?  Which tax deductible business expenses are most likely to be abused and manipulated by a self-employed parent?  When can a business expense be legitimately deductible under the tax code but countable as “income” under child support law?  The Article explores the legal underpinnings of these and related questions, identifies and pinpoints the prevailing law and national trends, and acknowledges the ambiguities and approaches taken among the states.

Feedback and comments are welcome.

Jason V. Owens

The representations on this page have been prepared by Stevenson & Lynch, P.C. for informational purposes only and do not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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HEY, THAT’S MY TREE!

I’m not a big fan of raking leaves, but I do like trees. One large tree in my back yard provided me with a great place to hang my kids’ favorite swing. I know a few people who have commemorated special occasions like the birth of a child by planting a tree in their yard. What happens, though, when someone cuts down a tree on your property without your permission? Surprisingly, this happens quite a bit. Sometimes the tree blocks your neighbor’s view of the ocean, as occurred in one well known Massachusetts court case, or maybe a contractor doesn’t bother to look at the property line before it starts clearing out an area. Whatever the reason, the owner of the tree that was wrongfully cut down has a cause of action for compensatory damages under Massachusetts law against those who cut it down.

Compensatory damages are monetary damages intended to compensate a victim for his/her loss, but how do you compensate for a tree? Fortunately, the law helps us figure that out. If, for example, a ten year old twenty foot high oak tree was wrongfully cut down on your property, then the measure of your damages can be the cost to restore a ten year old twenty foot high oak tree back on your property. Ten year old twenty foot high oak trees are not regularly sold, but there are experts we utilize who can calculate this figure. The bad news for the person or company who wrongfully cut down your tree is that this restoration cost tends to be very expensive. The worse news for the person or company who wrongfully cut down your tree is the law calls for a trebling of the restoration cost damages for situations when the tree cutting was willful and knowing. Thus, a property owner may be entitled to receive up to three times the cost of restoring the lost tree, a hefty sum.

Did someone cut down a tree on your property? Come in to Stevenson & Lynch, P.C. for a free one hour consultation to go over your rights so you can decide whether you want to pursue your claim.

The representations on this page have been prepared by Stevenson & Lynch, P.C. for informational purposes only and do not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

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