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"Actively
Pursing College Education" Includes
NOT Going |
As
Per Mass. Court of Appeals |
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When it Comes to More Child Support
Payments For the Massachusetts Bureaucracy
to Get Kickbacks From The Federal Government
on there really is no stopping judges
from defining words any way they see
fit. This includes even judgments already
handed down by other countries. |
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CASE 1. THE
CASE OF THE UNENROLLED STUDENT “ACTIVELY
PURSUING A COLLEGE EDUCATION.”
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You’re the judge.
There’s an agreement that has been
incorporated into a judgment (so it
becomes a judgment itself).
The agreement reads:
“Father agrees to pay $100.00
per week for the support of the child
until emancipation of the child. Emancipation
of the child shall occur or be deemed
to have occurred upon . . . a. attaining
the age of 18 years, except that if
the child is actively pursuing a college
education, emancipation will not occur
until the child has completed her
college course in the normal course
or attains the age of 21 years, whichever
comes last" (emphasis supplied).”
Turns out the child
was not enrolled in school, the mother
did not tell the father, and the father
states the mother committed contempt
by failing to notifying him that child
was not enrolled in school, and that
he wanted his money back. (Remember,
normally, you can retro-actively modify
a support order.) If you
think the mother was in contempt,
you would not be in agreement with
the Court of Appeals. If you think
the expression, “except that if the
child is actively pursuing a college
education” is unambiguous, the Massachusetts
Court of Appeals begs to differ.
The court basically
ruled that since the child could re-enter
school, she might be “actively pursuing
a college education,” even though
she wasn’t, well, actively pursuing
a college education (to use an expression
that I would call, well, plain, unambiguous,
and unequivocal). Oh, and for moms
that want child support when the child
is not really in college—my advice
is to just keep some college brochures
around the house and say the child
is really thinking about going.
The reader may not know but Massachusetts
is one of very few states that provide
for child support payments beyond
the age of 18. |
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JOHN
STEEVES vs. ANTONIA BERIT. |
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CASE 2: JUST
TWEAKING THAT FOREIGN DIVORCE JUDGMENT
A BIT DOES NOT VIOLATE PRINCIPLES OF
COMITY |
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OK, guy gets
a divorce in another country.
Foreign country does not give wife
property in property division. Normally,
if the foreign country had a valid
claim to jurisdiction, the foreign
decree is honored. As the court actually
noted, “In light of those foreign
judgments of divorce, and on consideration
of the parties' affidavits, the judge
terminated the wife's proceeding in
Massachusetts, concluding that the
doctrine of comity required that the
foreign judgments receive recognition;
that the wife's action was barred
by principles of res judicata; and
that the court could not exert jurisdiction
over the person of the husband in
any event.” Hey, foreign court had
jurisdiction, wife’s complaint for
divorce was dismissed, so the wife
can’t come to an American court to
get property not given to her by the
foreign court, right? WRONG. |
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The appeals court
stated, “We conclude that the Massachusetts
courts may permissibly exercise jurisdiction
over the person of the husband. With
respect to the husband's defense based
on principles of res judicata, specifically
claim preclusion, we hold that the
wife's post-divorce complaint under
G. L. c. 208, § 34, is not barred
because there has been no previous
determination with respect to her
economic claims. That being the case,
the doctrine of comity is inapplicable.
Accordingly, we reverse and remand
for further proceedings in the trial
court.”
So,
apparently when a foreign court does
not award property in a divorce, a
subject that is so intertwined with
the divorce that nobody but the Massachusetts
Court of Appeals could possibly consider
a truly “different subject,” U.S.
courts are free to add additional
terms to the foreign judgment.
If you are looking for some coherent
rule of law that this case teaches,
I can only say that if foreign courts
aren’t specific about the usual appurtenances
of a divorce, (property division,
child support) beware, the Massachusetts
Court might fill the void. Principles
of comity or res judicata will not
stop you.
Oh, and one other point, though the
couple left Massachusetts for another
country for two years, the court ruled
that there is still jurisdiction under
Massachusetts Long Arm Statute (Long
Arm Statutes give jurisdiction over
people that are not within the state.):
“Nor
are we persuaded that a jurisdictional
defense emerges because the wife lived
with the husband for periods of time
in Bahrain between 1994 and 1996.
Since the revision of G. L. c. 223A,
§ 3(g), in 1993, there has been no
requirement under this part of the
long-arm statute that the parties'
marital residence in Massachusetts
be recent.(7) The Commonwealth's power
to adjudicate with respect to the
husband's obligations arose as the
result of a marriage with a duration
principally in Massachusetts. The
wife did not surrender her rights
under Massachusetts law, nor did our
courts lose their authority with respect
to the husband, merely because the
parties attempted to preserve the
marriage in Bahrain, then separated
permanently when the marriage disintegrated.
We are satisfied that both the long-
arm statute and due process considerations
permit the exercise by the Massachusetts
court of jurisdiction over the person
of the husband, and we accordingly
turn to the other defenses. |
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RINALDO’S
NOTES: The argument by the Mass Court
of Appeals that Mass had jurisdiction
might have some
validity. The problem is that
the court had to really show that
the marriage was “irretrievably broken”
WHEN THE COUPLE WAS STILL IN MASSACHUSETTS.
The court glosses over this issue—apparently
they lived on as a couple for another
two years after living in MA. So did
the marriage really irretrievably
breakdown in MA? I don't think so.
The case for issue preclusion is stronger,
since Turkey did state, "the
Respondent's further right of claim
for compensation of pecuniary loss
and mental anguish is duly reserved."
However, the principles of comity--respect
for proper foreign tribunals--is weak
in this case. When a court takes
a divorce case, it usually takes the
whole thing. (The issue of modification
is an entirely different matter. There,
weird division can and do occur.) |
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The Massachusetts
Court of Appeals ruled, “While each
judgment contemplates the possible
assertion of future claims by the
wife, neither specifies whether such
claims are to be pressed in the forum
that rendered the judgment or instead
can be asserted elsewhere.”
This notion is totally
foreign to me, no pun intended. I
have never heard of Massachusetts
adjudicating the child support part
of a case, while New York does the
property division part, while Florida
does the child custody part, while
Arizona does the underlying cause
for divorce, while Texas does alimony.
Clearly Turkey is being treated differently
than other sister states. The court
is probably right that the doctrine
of res judicata does not apply, but
what is troubling is their ruling
on jurisdiction and principles of
comity. This “let us fix your
divorce judgment for you” mentality
is a bit odd—it does not sound like
comity to me.
The court finally concluded: “Because
the foreign tribunals did not adjudicate
any economic entitlements that the
wife might have,(9) we are not concerned
with the possibility of issue preclusion,
where an issue of fact "actually
was litigated and determined in a
prior action between the parties or
their privies, and . . . the determination
was essential to the decision in the
prior action."
Here’s the case:
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FERIDE
ELA AKINCI-UNAL vs. GOKHAN UNAL. |
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