Stevenson & Lynch, P.C.

Legislature Scrambles to Close Melanie’s Law Loophole

James Lynch — Sat, 26 May 2012 18:16:38 +0000

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.

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

James Lynch — Fri, 18 May 2012 16:37:33 +0000

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.

Massachusetts SJC Declines to Extend Social Host Liquor Liability

James Lynch — Tue, 21 Feb 2012 21:46:11 +0000

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

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

Jason Owens — Thu, 01 Dec 2011 19:42:35 +0000

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.

Child Support Obligations Never Go Away in Massachusetts

James Lynch — Sat, 19 Nov 2011 19:07:27 +0000

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.

New Article: Determining Self-Employment Income for Child Support Purposes in Massachusetts

Jason Owens — Thu, 03 Nov 2011 13:58:28 +0000

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

HEY, THAT’S MY TREE!

James Lynch — Tue, 06 Sep 2011 20:36:45 +0000

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.

More on www.AlimonyFormula.com and the Proposed Massachusetts Alimony Reform Bill

Jason Owens — Tue, 24 May 2011 15:40:41 +0000

For those interested, here is a little additional background on Jim Lynch’s post on the connection between the alimony reform bill now pending in Massachusetts and our affiliate website, www.alimonyformula.com.

In 2009, the Joint Mass/Boston Bar Association Alimony Task Force issued a report that recommended Massachusetts adopt a structured, statutory approach to alimony based on measurable criteria such as the length of the marriage and the respective gross incomes of the divorcing parties. Following the release of the Joint Task Force’s recommendations, the mad scientists at Stevenson & Lynch’s affiliate website, www.alimonyformula.com, generated a mathematical formula using the factors articulated in the Task Force’s approach. This formula, which has been featured on alimonyformula.com since 2008 under the heading “MBA-BBA Joint Task Force“, permits visitors to calculate estimated weekly alimony using the Task Force recommendations.

A comparison of the 2009 Task Force Report, the “MBA-BBA Joint Task Force” formula featured on alimonyformula.com, and the language of the proposed bill before the legislature reveals that the majority of the Task Force recommendations used in the “MBA-BBA Joint Task Force” calculation on alimonyformula.com are likewise featured in the proposed bill. While it is important to note that the wizards at alimonyformula.com will not update the calculation until and unless a final bill is approved, in the meantime, this should not stop visitors from getting a sneak preview of how the new law is likely to work by checking out the “MBA-BBA Joint Task Force” calculation on alimonyformula.com.

Massachusetts Legislature Close to Adopting Alimony Structure Featured on www.AlimonyFormula.com

James Lynch — Mon, 23 May 2011 11:00:15 +0000

The Massachusetts Legislature is now considering legislation that would significantly change the way that divorce courts approach the process of awarding alimony. This new approach to alimony proposed by its sponsors is among those already featured on www.alimonyformula.com.

In their present form, the Massachusetts alimony laws give judges limited discretion to set a termination date on alimony payments without a significant change in the circumstances of the parties. Ambiguities in the present laws often lead to inconsistencies in how alimony orders are crafted from judge to judge.

The Massachusetts Alimony Reform Act of 2011, if adopted, would:

Create separate and clearly defined alimony categories;
Set limits on duration of alimony orders;
Allow for the termination of alimony at retirement;
Allow judges to change alimony orders when ex-spouses cohabitate with new partners;
Create new factors for judges to consider in creating alimony orders; and
Allow judges to exercise more discretion in alimony cases based upon individual circumstances.

The legislation pending before the Massachusetts legislature is largely based on the Report issued by the Joint MBA/BBA Alimony Task Force, which included the MBA-BBA Alimony Formula now featured on our affiliate website, www.alimonyformula.com. While a final bill may include some adjustments from the Task Force Report, visit www.alimonyformula.com to get a sneak peak at how the new bill could affect your alimony case by inputting the gross annual income of you and your spouse.

Stevenson & Lynch: South Shore Attorneys Across the World Wide Web

Jason Owens — Wed, 18 May 2011 14:44:33 +0000

While our revamped and redesigned website at www.stevensonlynch.com may be the flagship of S&L’s presence on the world wide web, it is far from the only place to find S&L online these days. For instant updates on new posts to S&L’s News and Articles page, be sure to add our company page on Facebook. And don’t forget to follow the popular new SouthShoreLaw feed on Twitter, where S&L’s Walter Galas provides real-time links to news, stories and blog posts on S&L.com, along with his unique observations and musings on the world of law.

Want more details on the background and experience of S&L’s attorneys? Visit our LinkedIn.com profiles for Walter, James and Jason, along with our Avvo.com profiles for Walter, James and Jason.

Have an idea for Stevenson & Lynch’s internet presence? Want to share comments, compliments or criticisms of the website or S&L’s online presence? Shoot us an email at info (at) stevensonlynch.com (replace “at” with “@”).