Fields and Dennis » Quarterly Reviews

“Mean” Provision Means Something

Attorney Jonathan Fields — Wed, 21 Jul 2010 00:55:19 +0000

According to the Appeals Court, it is unequivocally mean for an ex-husband to tell an ex-wife that her son wished she would die. A judgment (incorporating an agreement) prohibited interparty communications that were “negative or mean.” The Probate and Family Court found the ex-husband in contempt for sending a letter alleging that his ex-wife suffered from a “mental illness” and claiming that her son “wished [her] to die.” The ex-husband appealed, presumably on the grounds that his action did not rise to a “clear and undoubted disobedience” of the judgment. After all, what does “mean” mean anyway? Distinguishing the “mean” prohibition here from the “customary nondisparagement provision,” the Appeals Court affirmed, concluding that the ex-husband’s language was so clearly “mean” and “well outside the range of possible ambiguity,” that a contempt finding was appropriate. The lesson for mediators may be that the nondisparagement provisions the Appeals Court sought to distinguish here may not be as unenforceable as we might think. Fawzi v. Elaskalani, 2010 Mass. App. Unpub. LEXIS 602 (June 4, 2010) (Unpublished).

Merger / Survival

Attorney Jonathan Fields — Tue, 16 Mar 2010 12:48:54 +0000

The basis of the malpractice claim in DiPietro is also instructive for mediators. The client alleged that the attorney negligently failed to advise him on the difference between “merger” and “survival” as they relate to the subsequent modification of the agreement. Note, too, the client’s statements during the judge’s colloquy that he understood the agreement and was satisfied with the advice of counsel do not preclude a malpractice action. If there’s a lesson in here — perhaps it is that mediators should ask clients to sign a document confirming their understanding of these terms. DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Limits of Attorney-Client Privilege

Attorney Jonathan Fields — Tue, 16 Mar 2010 12:45:20 +0000

A recent Superior Court case held that a divorce lawyer who was sued for malpractice by a client could depose the successor counsel who represented that client in a modification action. That the client waives attorney-client privilege when malpractice is asserted is black-letter law. Here, the court extended that waiver to the successor counsel hired to fix the problems that the original lawyer had allegedly failed to address. The case should, at the very least, remind mediators that our confidentiality statute isn’t bulletproof — in the event of a malpractice claim, the statute will not protect mediation communications from disclosure. See, e.g. Bobick v. United States Fid. & Guar. Co., 439 Mass. 625, 658 n.11 (2003). DiPietro v. Erickson, 2010 WL 1178410 (Mass.Super.) (March 16, 2010).

Automatic Restraining Order

Attorney Jonathan Fields — Mon, 15 Feb 2010 12:51:44 +0000

During the pendency of a divorce action, the Barnstable Probate and Family Court found that the wife’s restatement of her revocable living trust so as to longer provide the husband with a life estate in the marital home was not a violation of the automatic restraining order, Rule 411. Central to the holding was that title to the home was not conveyed or transferred – and that the asset was not placed outside of the Court’s reach for purposes of equitable distribution. The restatement only affected Husband’s expectancy of a future interest which does not implicate Rule 411. To those who had wondered whether changing a will violated Rule 411, this case provides good ammunition that it does not. Darden v. Darden (Lawyers Weekly No. 15-001-09) (October 15, 2009) (published in Lawyers Weekly February 15, 2010).

The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Retained Earnings in a Sub-S Corporation

Attorney Jonathan Fields — Sun, 01 Nov 2009 22:32:12 +0000

The treatment of Sub-S retained earnings that pass-through to the parent-shareholder’s tax return has long vexed mediators and lawyers in support cases. When calculating support, do we include the income which is taxable to the recipient but undistributed to him ? In a case of first impression, the Supreme Judicial Court has weighed in with some useful guidance. Courts must now determine, on a case-by-case basis, “what portion (if any) of that pass-through income realistically and fairly is or should be deemed available to the shareholder for purposes of paying child support.” Courts must (1) consider “a shareholder’s level of corporate distributions;” (2) “evaluate the legitimate business interests justifying retaining corporate earnings;” (3) “weigh affirmative evidence of attempts to shield income by means of retained earnings . . . In that regard, the corporation’s history of retained earnings and distributions may be relevant.” J.S. v. C.C., 454 Mass. 652 (9/10/09).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Contempt for Anticipatory Breach

Attorney Jonathan Fields — Sun, 01 Nov 2009 19:27:56 +0000

Timing is everything. Mother could not be held in contempt for threatening not to allow the children to visit father for Christmas, according to the Appeals Court. Rejecting the father’s claim of “anticipatory breach,” the Appeals Court made clear that a contempt judgment cannot enter until “after the time for the mother’s performance had come and gone.” Pederson v. Klare, 74 Mass.App.Ct. 692 (July 23, 2009).

Child Who Becomes Parent Not Emancipated

Attorney Jonathan Fields — Sun, 01 Nov 2009 19:25:56 +0000

An unmarried child does not become emancipated as a matter of law by giving birth, the Appeals Court held in a case of first impression. The trial court had granted summary judgment for the father, holding that the child was emancipated because “she has a child, receives child support [for him], and has a family of her own.” The Appeals Court pointed out that there were disputed facts that made such a judgment inappropriate – chief among them, whether the child was a full-time student and whether the child was still principally dependent on her mother for support. In other words: for questions about emancipation, look to the statute, G.L. c.208 §28. LaBrecque v. Parsons, 74 Mass.App.Ct. 766 (August 4, 2009).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Self-Employment Income for Child Support Purposes

Attorney Jonathan Fields — Mon, 06 Jul 2009 19:52:21 +0000

A self-employed father brought a modification action seeking a reduction in child support. In calculating support, the Probate Court deducted from his gross income amounts for pension, profit sharing, and taxes. The Appeals Court vacated the support award. Gross income for child-support purposes, the Court noted, is not necessarily equivalent to a parent’s taxable income. In determining self-employment income, “a judge must determine whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions” are appropriate for income-tax purposes. Although the current Guidelines did not apply in this case, the Court observed that these Guidelines now explicitly address self-employment, where the prior Guidelines did not. Specifically, the current Guidelines urge self-employment income to be “carefully reviewed [in order] to determine the appropriate level of gross income . . . [which] in many cases . . . will differ from a determination of business income for tax purposes.” Guidelines I-C (2009). Whelan v. Whelan, 74 Mass.App.Ct. 616 (July 6, 2009).

College Expenses Must be “Reasonable”

Attorney Jonathan Fields — Wed, 03 Jun 2009 19:49:42 +0000

A merged provision in a separation agreement purportedly required each parent to pay one-half of college education expenses. Under the agreement, mother had physical custody and the parties had shared legal custody of their daughter. Years later, the daughter, without input from the father, enrolled at a private university where the cost of her first year, after grants, was $34,000. Mother looked to father for $17,000, father refused to pay, and mother brought a contempt action. The Probate Court held the father responsible for $7,800 — finding that the school was financially “out of reach” for the father. On mother’s appeal, the appellate court construed the agreement to require each party to pay half of the “reasonable” college expenses, implying a limiting condition not explicit in the agreement. Further, in remanding the case to the Probate Court for a determination of “reasonable college expenses,” the Appeals Court set forth several factors for the court to consider; among them, financial resources, cost, programs at the school, and the child’s scholastic aptitude. Also relevant, according to the Court, is “the extent to which [a party] . . . may have been excluded from the college decision-making process.” The court would also consider the extent to which a parent has “sat on his or her right to intervene . . . until the college selection process has been completed.” Perhaps most interesting in this case was the road not taken. The Appeals Court could have held college expenses at the level of a public university to be presumptively reasonable. The court, however, did not. Mandel v. Mandel, 74 Mass.App.Ct. 348 (June 3, 2009).The Greater Boston metro family law lawyers and estate planning attorneys at the Wellesley, MA law firm of Fields and Dennis serve the Greater Boston region including Allston, Arlington, Boston, Brighton, Brookline, Chestnut Hill, Concord, Dedham, Dover, Lexington, Natick, Needham, Newton, Waltham, Watertown, Wayland, Wellesley, Weston, Westwood, and all Massachusetts.

Imputing Capital Gains and Broker Fees

Attorney Jonathan Fields — Mon, 01 Jun 2009 16:48:34 +0000

Imputing Capital Gains and Broker Fees - A former husband appealed from a divorce judgment relative to a particular property division. Among his claims, he disagreed with the judge’s rejection of his request to have capital gains tax and real estate broker’s fees taken into account in valuing a particular property. The Appeals Court upheld the judgment, noting that “without evidence that the husband intended to sell the property or would be compelled to sell the property as a result of the division of assets, it was not clearly erroneous for the judge to decline to consider adverse capital gains tax consequences or broker’s fees.” If Bernier v. Bernier, 449 Mass. 774 (2007) had not already done so, this is yet another “nail in the coffin” for imputing broker’s fees and capital gains where no sale of the at-issue property is imminent. Gentilella v. Fillion, 73 Mass.App.Ct. 1121 (February 13, 2009) (Unpublished)

Attorney Jonathan Fields of Fields and Dennis, Wellesley, Massachusetts is a family law and divorce lawyer serving the Greater Boston region.