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Sunday, February 19, 2006
Supreme Judicial Court Slip Opinions

ISSUE: Is there an absolute right to an evidentiary hearing for contempt of court?  Yes.

Discussion. Shirley contends that the judge should have held an evidentiary hearing before ruling on the merits of the contempt complaint. She urges that where, as here, the offers of proof of counsel reveal that the parties disagreed vigorously as to all pertinent facts concerning whether one party had satisfied the requirements of the separation agreement and divorce judgment, and the parties did not waive an evidentiary hearing, the court's failure to hold such a hearing was reversible error.

We begin with basic principles. "To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." . . .A complaint for civil contempt is "'intended to achieve compliance with the court's orders for the benefit of the complainant. . . Contempt proceedings must satisfy the strictures of due process. . . . [D]ue process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.' . . .A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial." Milano, supra. "Such a waiver may result, in effect, from a failure to assert rights in the trial court in a manner which permits effective appellate review."

Christopher contends that Shirley waived an evidentiary hearing. To be sure, under certain circumstances a judge may properly rule on a complaint for contempt without an evidentiary hearing, or without receiving live testimony.  . . . Typically, in such cases, material facts are not in dispute.  . . . In some cases, an evidentiary hearing is deemed waived and a judgment of contempt may be founded upon oral representations by counsel (at least in the absence of objection to such a procedure). Applying these principles to this case, we conclude that Shirley did not waive her right to an evidentiary hearing. This is not a case where a party waived its right to an evidentiary hearing because it knowingly failed to assert that right when presented with the opportunity to exercise it.


Feb. 14th SJC

THE CASE OF NOBODY LIVING IN MASSACHUSETTS ANYMORE Does Massachusetts still have jurisidiction?


  • The parties, formerly husband and wife, were divorced in Massachusetts in 1990.
  • HUSBAND MOVE OUT OF MA: In 1991, the husband moved to Tennessee and, thereafter, to Utah, where he presently resides.
  • WIFE MOVES OUT OF MA: The wife and children remained in Massachusetts for some time, but, as of 2002, were residing in New York.
  • WIFE FILES FOR CONTEMPT BUT NO JURISIDICTION: On April 10, 2002, the wife filed a pro se complaint for contempt in the Probate and Family Court seeking to recover arrearages in child support and medical payments.
  • The husband filed a motion to dismiss on the ground that none of the parties resided in Massachusetts. That motion was allowed, and the complaint was dismissed without prejudice.
  • WIFE MOVES BACK TO MA AND SUES AGAIN: In March, 2003, the wife returned to Massachusetts with the children and resumed residence here. Represented by counsel, the wife filed a new complaint for contempt on July 8, 2003, and an amended complaint on August 22, 2003.(1)
  • The husband again moved to dismiss the contempt complaint, arguing that, despite the wife's return and resumption of residence in Massachusetts, none of the parties had "remain[ed]" continuously in Massachusetts. G. L. c. 209D, § 2-205 (a) (1).(2)
  • The motion to dismiss was denied. The husband was found in contempt for failure to pay child support and medical payments over a period of two years, resulting in total arrearages of $38,400, and was ordered to make monthly payments to reduce those arrearages.

2. Discussion. The husband argues that Massachusetts courts lost jurisdiction over the child support order in question when all parties (husband, wife, and children) left Massachusetts and resided elsewhere, and that the return of the wife and children to Massachusetts did not operate to confer jurisdiction on Massachusetts courts. His argument is based on G. L. c. 209D, § 2-205 (a) (1), which provides: "A tribunal of the commonwealth issuing a support order consistent with the law of the  commonwealth has continuing, exclusive jurisdiction over a child support order: (1) as long as the commonwealth remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued . . . ." The husband contends that the term "remains the residence" implicitly requires that, in order for Massachusetts courts to have jurisdiction, there must be no interruption in the Massachusetts residence of at least one of the parties, i.e., that residence in the Commonwealth must be continuous from the time the support order is issued up until the time one of the parties brings the action based on that order.   

(Rinaldo’s Notes: the husband was using the commonsense approach.)  Thus, according to the husband, Massachusetts lost jurisdiction over the support order when the wife and children moved to New York and, despite their return to Massachusetts, any action to enforce that order must now be brought in Utah, where the husband resides.

WHEN ALL ELSE FAILS, DEPART FROM THE PLAIN WORDS OF THE STATUTE, AND THEN CITE A PROPOSED “UNIFORM CODE,” WHICH MASSACHUSETTS HAS NOT ADOPTED: “General Laws c. 209D was enacted in 1995, St. 1995, c. 5, § 87, adopting the 1992 version of the Uniform Interstate Family Support Act (UIFSA).”

Bottom line: She was given jurisdiction.

RINALDO’S NOTES: “Remains the residence” seems to be pretty clear.  I fail to see how the husband lost this one. NOTE THE LOCKSTEP OF THE COURT—NOT ONE DISSENT.

LOGICAL MELTDOWN: “The husband tries to support his theory that the term "remains the residence" requires continuous residence by pointing to the fact that the Legislature has not adopted more recent revisions to § 205 of the UIFSA that would explicitly confer jurisdiction in the circumstances presented by this case. In 2001, § 205(a)(1) of the UIFSA was revised to provide that the issuing tribunal has continuing, exclusive jurisdiction to modify a child support order if, "at the time of the filing of a request for modification this State is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued" (emphasis added).(5) UIFSA (2001) § 205(a)(1), 9 (Part IB) U.L.A. 192 (Master ed. 2005). The husband thus argues that we should not interpret "remains the residence" to be satisfied merely because Massachusetts "is the residence," as the Legislature has not adopted this new language. However, "[l]egislative inaction gives no instructive signal concerning the construction of a statute enacted by a prior Legislature . . . ."


·         SJC says statute is based on UIFSA.

·         The folks who drafted UIFSA said that in a move-out, move-back situation, there is no jurisdiction, and propose change in language.

·         Massachusetts does not use new language that would apply to residency at time of filing, but somehow, UIFSA includes the new language?

·         Apparently, you can use any logic you want.  The Mass SJC uses UIFSA to justify its own reading of fairly clear language, AND THEN IGNORES THE UIFSA’S OWN INTERPRETATION OF ITS OWN STATUTE.

·         Mass SJC states, “Moreover, the comment to § 205(a)(1) of the 2001 UIFSA explains that the purpose of the new language was "to clarify the original intent" of the drafters, not to make any "substantive change." So they are relying on an interpretation that the UIFSA committee admitted itself was not clear?

·         There’s a lot of statement about “legislative intent,” that apparently the SJC has appointed itself to divine.  I see no apparent intent of the legislature to allow a mother to seek child support in a state that both parties have abandoned. 


Restraining Order Violation Case

ISSUE: We consider here whether a probation condition that the defendant have "no contact" with minors under sixteen years of age gave him sufficient notice that he was prohibited from displaying his antique automobile at a car show attended by minors.

HELD: “A "no contact" order also obligates a person to leave the area if a protected party appears. Happening on a protected person whom one did not, and could not reasonably, know to be present is not a violation, but the party subject to the order must end the encounter by leaving. . . .Therefore, a defendant could have violated a "no contact" order by remaining near a protected party at a band concert on the town common. Although it was a public event, and although there was no evidence that the defendant was present because the protected party was there, he remained in proximity to the protected party after becoming aware of her presence. . . . .By contrast, a defendant could be found not in violation of a "no contact" order if he entered a house where he did not and should not reasonably have known a protected party was present, and then attempted to leave promptly, but was restrained from doing so.

The use of the words "no contact" in the defendant's probation condition, then, is reasonably understood to impose an obligation on the defendant to avoid encountering or engaging children in any way; to refrain from attendance at places where proximity to, and thus an encounter with, children is likely; and promptly to remove himself from such proximity if an encounter arises unexpectedly. The condition is not, as the defendant suggests, simply a requirement not to touch or speak to a child. "No contact" obviously includes such conduct, but also requires the defendant to avoid even the opportunity for such touching or direct communication.

RINALDO’S NOTES: True, the guy is a certifiable reprobate, but the order seems poorly written.  The order should clearly state that the defendant is to avoid encountering children in any way.


ADOPTION OF ELENA (and two companion cases(1)).

January 31, 2006. SJC.

ISSUE: Before forcibly giving a child away for adoption, how much weight must be given to the fact that the problems may be temporary?

FACTS:  The Appeals Court vacated the orders of a judge in the Juvenile Court terminating the mother's parental rights to three of her five children.(2) The Appeals Court affirmed so much of the orders as determined that the mother was unfit to assume parental responsibilities as of the time of trial, but it concluded that the trial judge failed to consider properly whether the mother's unfitness at the time of trial was temporary, based on recent progress she had made at a drug rehabilitation program.

HELD: We granted the application of the Department of Social Services (department), joined by the children, for further appellate review. We conclude that the judge did consider whether the mother's unfitness was temporary, and that his decision to terminate the mother's parental rights was based on an appropriate assessment of the evidence and was not an abuse of discretion. We therefore affirm the judgments.

STANDARDS FOR TERMINATION: When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law. . . . .Subsidiary findings must be established by a fair preponderance of the evidence, Care & Protection of Laura, 414 Mass. 788, 793 (1993), and will not be disturbed unless clearly erroneous. (Rinaldo’s notes: Surprising, because Santowsky case of US Supreme Court suggest clear and convincing is needed, but I don’t’ have time to do a research project on this.)  "[I]n this field it is neither possible nor desirable to make decisions with precision, and [] 'much must be left to the trial judge's experience and judgment,'" (Rinaldo’s Notes: Is may not be “possible,” but why isn’t it “desirable”?); therefore, the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference. Where, as here, the judge determines that the mother currently is unfit to parent her children, and where termination of parental rights is sought, the judge then "must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child."

In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent . . . the court shall consider the ability, capacity, and readiness of the child's parents . . . to assume parental responsibility" Where there is "credible evidence [] [that] there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary[,] [a] judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests." "[A] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction . . . [that] makes the parent . . . unlikely to provide minimally acceptable care of the child" is not a temporary condition

WHERE ARE THE DADS?: Why are the fathers of the children being contacted?  Why are they being given a hearing to determine if they are fit?

 Appeals Court Slip Opinions

OMAR KHAN vs. LORAINE TOORIE SAMINNI (and a companion case).

JURISDICTION CASE.The case of the mom who slipped away from Trinidad and decided to keep the child in Boston against the Trinidad order.

FACTS: The parties in this custody dispute are the mother and father of a minor child who was born in Trinidad, West Indies, but who currently resides in the Allston section of Boston with his mother. The father, who lives in Trinidad, filed a petition in the Suffolk Division of the Probate and Family Court Department (Probate and Family Court), pursuant to G. L. c. 209B, §§ 12 and 14, seeking enforcement of the terms of a consent decree, and related orders, entered in the Republic of Trinidad and Tobago Family Court, Supreme Court of Judicature (Trinidad Family Court), which awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. PROCEDURAL HISTORY: A judge in the Probate and Family Court granted the father's petition for enforcement of the Trinidad consent decree and ordered the mother to return the child to Trinidad no later than July 27, 2005. The judge denied the mother's motion for a stay pending determination of a motion for reconsideration and an evidentiary hearing. The mother obtained an emergency stay of the order from a single justice of the Appeals Court and appealed to that court. We transferred the case here on our own motion and now affirm the order for enforcement of the Trinidad consent decree.

MOM DECIDES NOT TO RETURN SON: During the son's visit with the mother in the summer of 2003, the mother (who, by this time, was married and living with her husband in Allston) informed the father that the son would not be returning to Trinidad as planned. She enrolled the son in public school, and he resided that year in Allston with the mother and her husband. He spent the summer of 2004 with the father in Trinidad and was due to return to the mother in Massachusetts on August 29. On August 24, the father advised the mother by telephone that the son would not be returning to Massachusetts but would remain with him in Trinidad. Beyond these facts, the affidavits and complaints of the mother and father present widely differing accounts of the dispute, which we need not set forth.  . . . . On October 1, 2004, the mother and the son departed for the United States without the permission of the father (who was in London at the time) and without notifying the Trinidad Family Court. After an ex parte hearing on October 18, 2004, the Trinidad judge once again made the son a ward of the court and ordered the mother to return the son to Trinidad forthwith for a hearing and determination of custody. The son has remained with the mother in Allston and has not returned to Trinidad. 

HOLDING: We conclude that the judge in the Probate and Family Court properly declined to exercise jurisdiction over the custody dispute. The judge recognized that G. L. c. 209B, § 2 (d),(7) bars the exercise of jurisdiction while a custody proceeding is pending in another jurisdiction, and that § 7 (a)(8) provides a judge with discretion to decline to exercise jurisdiction at any time prior to making a custody determination on concluding that jurisdiction would be based on the "wrongful conduct" of the party seeking jurisdiction. The judge further reasoned that, under the clear language of § 14, she had no authority to disregard the custody determination of the Trinidad Family Court. The provisions of §§ 2 and 7 are generally phrased in reference to custody proceedings that are pending in other States, not proceedings in which a final custody determination has been made. See Custody of Brandon, supra at 8-9. The judge was correct, however, to recognize their applicability to circumstances in which a determination of custody had been entered in a court of another country. See Custody of a Minor (No. 3), 392 Mass. 728, 733 (1984).(9) It is § 14, however, the third statutory provision on which the judge relied, on which we base our conclusion that the judge properly deferred to the Trinidad Family Court in this matter.



Feb 2, 2006. Mass. Appeals Court.

All I will say about this case, is that I was in a similar situation concerning QDROs.  The issue occurred when the QDRO that was assented to (Qualified Domestic Relations Order) didn’t reconcile with the original order.  Often, courts use QDROs to get at 401Ks and IRA’s under federal law.  I refused to sign the QDRO without a release form my client when I determined the QDRO didn’t accurately reflect the underlying order.


ANSWER: NONE. Rule 60(a) "seeks to ensure that the record of judgment reflects what actually took place," Rule 60(a) does not apply unless the mistake springs from some oversight or omission; it does not cover mistakes which result from deliberate action." The DRO contains exactly the terms to which the parties had stipulated and approval of the DRO was consistent with the parties' request, as set forth in their joint motion. There was thus no mistake in the judgment.

(RINALDO’S NOTES: “DRO” is equivalent to QDRO’s for government workers.  Obviously, the mistake being asserted was that the DRO didn’t reflect original agreement—not that it reflected the contract both parties looked at.)

FURTHER HELD: Moreover, although Robert claims he did not become aware of the "mistake" in the judgment until he began receiving benefits three years later, any mistake was apparent on the face of the DRO. To the extent that Robert had a viable claim for relief from the judgment based on mistake, that claim could have been raised by a motion for postjudgment relief pursuant to Mass.R.Dom.Rel.P. 60(b)(1), but under that rule, the claim must have been made not more than one year after the DRO entered. Because the claim for relief is based on an asserted mistake in the DRO, Robert may not bring his claim under rule 60(b)(6), which by its terms is available only when the relief sought is "based upon some other reason than those stated in Rule 60(b)(1)- (5)."  

AS TO MISTAKE:  "Mistake" in drafting the stipulated terms. We next consider Robert's claim that the parties' proposed DRO, as prepared and submitted to the court in March, 2000, reflects a mistake that is apparent by comparing that document to the provisions of the earlier separation agreement, which he describes as the "central contract."(9)  

Robert asserts, and we agree, that it is within the Probate Court's authority to declare the parties' rights under their separation agreement, pursuant to G. L. c. 231A, see Krapf v. Krapf, 439 Mass. 97, 107 (2003), and to modify a divorce judgment so that it conforms to the judge's determination regarding the parties' respective rights under that agreement. See id. at 104, quoting from Bell v. Bell, 393 Mass. 20, 26 (1984), cert. denied, 470 U.S. 1027 (1985) (Abrams, J., dissenting) ("a separation agreement is a 'judicially sanctioned contract' that is valid and enforceable only if and as approved by the judge").(10) Here, however, the parties are receiving benefits pursuant to a DRO that is consistent with their written stipulations and is not unconscionable on its face.

CONSIDER WHOLE: “When construing the separation agreement and stipulated terms of the DRO, we adhere to the established principle that all parts "are to be construed together as constituting a single and consistent arrangement. The intent of the parties must be gathered from a fair construction of the contract as a whole and not by special emphasis upon any one part."

RINALDO’S NOTES:  I have omitted the interpretation of the original contract, and the reasoning why the DRO was held to be reconcilable with it. The contractual interpretation law is brought forward, nonetheless, because it is generally applicable.



January 31, 2006. Appeals Court.


ISSUE: In this appeal, we consider the constraints on a judge's power to award relief under G. L. c. 209A. We conclude that when, at a contested hearing, a plaintiff fails to prove that "abuse" has occurred, a judge may not continue an ex parte order that directs the defendant to vacate and remain away from the household because of subjective concerns that violence may occur if both remain in the same household.(2)

RINALDO’S PRAYER: Please don’t tell me a judge was actually considering otherwise.

BUT THERE WAS ANOTHER SIDE TO THE STORY: Randy also testified that Corrado had a volatile temper. She would yell, scream, stomp around, slam doors, and throw things, including liquids in his face. He stated that the incident involving the refrigerator, referenced in Corrado's affidavit, had actually occurred a year prior. According to his testimony, in the course of an argument Corrado threw a beer bottle at him. He laughed at her, causing her to become even more irritated. As he went to get a towel to clean up the beer, Corrado hit him in the testicles with the beer bottle. When he "instinctively impulsively" pushed her away from him, she "stumbled and fell into the refrigerator." After considering the testimony, the judge told Corrado that he found Randy's version of events more credible than hers, and that "[l]egally I don't feel that you have proven your case."

EVEN WHEN YOU WIN, YOU LOSE: Before continuing the hearing, the judge reiterated to Corrado that she had not proved that Randy had physically abused her or threatened her with imminent serious physical harm. He told her that he believed that she had come to court solely to gain leverage in their ongoing property dispute. Nevertheless, the judge stated that he would extend the order that Randy and Hunt III (boyfriend and son) remain away from the property for a week because of his concerns that a vacuum regarding the right to use and occupy the premises could lead to an explosive situation should both sides sit in the house and refuse to leave.

RINALDO’S NOTE: Judge was more honest than most—most judges would just lie and say that there was abuse, when they were really trying to prevent abuse.

HELD: The judge expressed unambiguously his disbelief of Corrado's allegations that Randy had caused her physical harm or placed her in fear of imminent serious physical harm. The judge specifically concluded that Randy's version was more credible than Corrado's and that she had come to court seeking c. 209A protection as a wedge in her property dispute with Randy.(8) See Jones v. Gallagher, 54 Mass. App. Ct. at 887 n.4, and cases cited therein (recognizing that litigants may abuse the c. 209A process for purposes of harassment); Szymkowski v. Szymkowski, 57 Mass. App. Ct. at 287. Once the judge concluded that Corrado had failed in her burden of proof, he erred in extending the order that directed Randy to vacate and remain away from 12 DiCarlo Road. Before the available remedies for dealing with domestic abuse may be invoked, "abuse" must be proved. Indeed, to remedy the problems of domestic abuse, the Legislature has seen fit to permit the District Court, and other courts that are not courts of general equity jurisdiction, the power to issue equitable orders in instances where abuse is found. See Zullo v. Goguen, 423 Mass. 679, 682 (1996) ("orders made under c. 209A are equitable in nature"). Absent proof of abuse, the judge lacked authority to impose the equitable remedies available under the statute.

RINALDO’S NOTES: Only probate and superior courts have equity jurisdiction.

HELD: To his credit, the judge did not rubber stamp Corrado's complaint.

If this only happened more often.

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