Massachusetts divorce lawyer Jason V. Owens reviews three divorce-related decisions entered by Massachusetts appellate courts in June 2016.
Heading into the July 4th holiday, we thought w’d celebrate with a quick “case law round-up” blog featuring three major divorce-related decisions entered by the Massachusetts Appeals Court and Massachusetts Supreme Judicial Court in June 2016:
1. MARCI ROSENWASSER vs. RONALD ROSENWASSER – First up is Rosenwasser v. Rosenwasser, which centers on the always difficult issue of removal/relocation of children outside of Massachusetts. As covered extensively in Attorney Levy’s blog on removal cases, Massachusetts uses a so-called “two-look” standard in which the Court must (1.) first determine if the move constitutes a “real advantage” to the parent requesting the move and (2.) if the move would provide a “real advantage” to the parent, whether the move is in the best interest of the child(ren). For many years, Massachusetts attorneys understood that a parent who demonstrated a “real advantage” was extremely likely to prevail in the second, “best interest of the children” prong of the test. However, recent removal decisions, such as Murray v. Super (2015), have suggested that demonstrating a “real advantage” may no longer be enough for a parent to obtain permission to relocate their children outside of Massachusetts. In Rosenwasser, the Appeals Court appears tries to swing the pendulum back, away from the Murray line of cases and towards a more removal-friendly standard.
In Rosenwasser, the lower court judge found that the father’s proposed move to Florida did constitute a real advantage to father, but nevertheless denied the father’s request to relocate because the mother’s “relationship with the child ‘would suffer the most’ if the father were permitted to remove the child to Florida.” The Appeals Court vacated the order preventing the father’s move after finding that the judge erred “by not adequately considering the best interests of the child and the interests of the father, while giving undue weight to the interests of the mother”. Although Rosenwasser seems to re-emphasize the importance of the “real advantage” test, the trend remains that relocating a child out of the commonwealth has become more difficult in recent years.
2. ELLEN DUFF-KAREORES vs. CHRISTOPHER KAREORES – Next up is Duff-Kareores v. Kareores, which is an alimony case with an unusual fact pattern. In Kareores, the Supreme Judicial Court (SJC) answered how the “length of the marriage” should be calculated for alimony purposes when a party marries, get divorced, remarries, and then gets divorced again. Under the Massachusetts Alimony Reform Act, the duration of an alimony order is based on the length of the marriage, with the “length” defined as the period from the date of the marriage to the date of service of the Complaint for Divorce. However, under G. L. c. 208, § 48, “the court may increase the length of the marriage if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.” In short, a court may increase the duration of alimony if the parties cohabitated for a lengthy period of time before getting married.
In Kareores, the parties were first married in 1995 and divorced in 2004. In 2007, the parties began living together again. In 2012, they remarried. In June 2013, the wife filed for divorce for a second time, and the husband was served the following month. The question before the probate court was whether the “length of the marriage” should be calculated for the period between 1995 to 2014 (from the date of the first marriage all the way to the second divorce), limited to just the combined years the parties were married (i.e. 1995 to 2004 plus 2013 to 2014), or the combined years of marriage (i.e. 1995 to 2004 and 2013 to 2014) plus the 5-year cohabitation period from 2007 to 2012. The Appeals Court held that the proper measure was the combined years of marriage (1995 to 2004 and 2013 to 2014), plus the period of cohabitation (2007 to 2012), where G. L. c. 208, § 48 permits a judge to add a period of premarital cohabitation to the length of the marriage. The Court tallied up the total number of months the parties were married and cohabitated, and used this figure to calculate the duration of alimony under the Act’s formula.
3. KATHERINE DeMARCO vs. MICHAEL DeMARCO – Finally, we have DeMarco v. DeMarco, a case that reflects the judicial confusion that followed the entry of the SJC’s three alimony-related decisions – Chin, Rodman and Doctor – in March 2015. The three decisions held that many of the provision of the Massachusetts Alimony Reform Act of 2011 only applied to divorce cases that entered after the Act’s effective date in 2012. The problem was that when the SCJ’s three decisions entered in March 2015, judges throughout Massachusetts had been applying the Act to all divorces for almost three years. In our original blog on the three decisions, we observed:
All three decisions rely on the Court’s technical analysis of statutory and legislative intent to determine that only narrow slivers of the Act apply to pre-2012 divorces. However, none of the three decisions appear to acknowledge the near-universal retroactive application of the Act to pre-2012 divorces in Probate and Family Courts across the state since 2012. Nor do the three decisions appear to grapple with what recourse (if any) that individuals who were improperly deprived of alimony over the last two years might have. Nor did the SJC address the strikingly differenttreatment that Massachusetts residents will receive moving forward based solely on the date of their divorce.
In DeMarco, the judicial confusion created by the decisions was on full display. The case arose out of a Rule 60 motion filed by a wife who had voluntarily agreed to terminate her alimony payments in early 2014, on the mistaken belief that the Alimony Reform Act presumptively required that alimony terminate when her husband reached federal retirement age. A Rule 60(b)(6) motion permits a party to “re-open” a final judgement when a party presents evidence of “extraordinary circumstances” to the court. The probate and family court allowed the wife’s motion – and reinstated the husband’s alimony payments – on the following grounds:
[T]he “Wife’s reliance on the Court’s incorrect interpretation of the Alimony Reform Act[] to her serious detriment,” constituted an “extraordinary circumstance” warranting relief under rule 60(b)(6).
To be clear, it was not just the parties and their attorneys who thought the Act required termination when the husband retired. It was also the probate and family court judge, who advised the wife during settlement negotiations that the husband’s age would likely require termination. The Appeals Court described the scene like this:
On January 30, 2015, the Supreme Judicial Court issued a trilogy of cases holding, in direct contradiction to the presumption of the parties and the judge here, that the retirement provision of the act applies prospectively, and does not apply to cases where alimony judgments entered prior to March 1, 2012, the effective date of the act.
The wife argued that she felt she had to settle, given the judge’s clear belief that the Act required termination. There is little question that the wife was telling the truth. Prior to the SJC decisions, nearly all Massachusetts probate and family court judges, attorneys and parties believed that the Act applied to all Massachusetts alimony orders, not just those entered after 2012. A party in the wife’s position, back in 2014, would feel tremendous pressure to agree to terminate alimony. It wasn’t until March of 2015 – a year after the wife in DeMarco had agreed to waive alimony – that the SJC turned the law on its head with its three decisions.
History lesson aside, the Appeals Court reversed the probate and family court judge’s order in DeMarco. The Court referred to its decision in Smith v. Arbella Mut. Ins. Co. (2000), noting that in that case:
[T]his court affirmed the well-settled principle that”[c]hanges in decisional law alone are held not to be extraordinary circumstances and do not justify the reopening of a final judgment.”
In short, a party who enters a binding agreement cannot escape from the agreement just because the SJC changes the law after the agreement is entered. The DeMarco opinion also emphasized the finality of so-called “surviving agreements“. A survival clause acts a permanent waiver of each party’s right to return to court to seek a modification following a agreement. In DeMarco, the parties’ agreement included a survival clause, which added difficulty to the wife’s attempt to modify the agreement following the SJC decisions. The decision included a lengthy comment on surviving agreements that reaffirmed the permanence of such agreements:
Our decisional law has long permitted and encouraged divorcing parties to enter into written separation agreements that they may elect to have survive the divorce judgment as independent contracts. Such surviving separation agreements may secure with finality the parties’ respective rights and obligations concerning the division of marital assets, among other things, according to established contract principles. This policy, and the common law supporting it, remain unchanged under the act. While Probate and Family Court judges enjoy considerable discretion, that discretion does not extend to vitiating a contract that was negotiated at arm’s length and entered into freely and voluntarily. In the absence of fraud, coercion, or countervailing equities, a signatory to an agreement is bound by its terms. To hold otherwise would negate the integrity and inviolability of the innumerable surviving agreements relied upon by parties across the Commonwealth. We can never know all of the considerations of parties who elect to resolve their cases in this manner, nor does the record reflect such considerations here. However, to allow an agreement such as the one here to be unwound based on one party’s subsequent determination that she would have fared better if she had tried the case to completion, would deprive the other party of the certainty and finality for which he bargained. (Citations omitted.)
Have a great 4th of July holiday, everyone.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.