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The Law offices of Miriam G. Altman, P.C. regularly reviews developments in Massachusetts family law reported cases. Below are summaries of noteworthy recently reported cases.

Nystrom v. Nystrom, Appeals Court of Massachusetts, Unpublished Disposition No. 13-P-54, May 22, 2014

In Nystrom v. Nystrom, the Massachusetts Appeals Court vacated a rehabilitative alimony order and remanded the case for additional findings regarding the wife’s earning capacity and for an appropriate alimony award based on those updated findings. The Court also vacated a portion of the judgment which required the wife to reimburse the husband for health insurance.

The parties married in 1989 and divorced in 2012. The husband earned between $58,000 and $74,000 annually. The wife, who was 58 years old, had a bachelor's degree in business administration and a master's degree in education. During the marriage, the wife worked in pharmaceutical sales earning $80,000 annually but was laid off in 2009 and collected unemployment compensation for some time thereafter. The wife also worked as a teacher earning approximately $23,000. At the time of trial, the wife was unemployed and occasionally worked as a substitute teacher. The wife testified that she applied for hundreds of jobs which resulted in few interviews. She was offered but turned down one commission-based pharmaceutical sales position which had no base salary and required her to relocate to Eastern Massachusetts. Following trial, the judge ordered $300 per week in rehabilitative alimony for six months finding that the wife refused a job offer, earned $49,365.80 on average for a five-year period from 2007 to 2011 and had the ability and education to become employed. The judge further found that the wife had not used best efforts to find employment. The judge further ordered the wife to reimburse the husband for her share of health insurance costs or maintain her own coverage. The wife appealed. Following trial the wife found new employment as a teacher earning less than the court’s averaged $49,356 and filed a complaint for modification in the Probate and Family Court. The judge dismissed the wife’s complaint, finding that the wife could not seek a modification of the judgment after she had filed a notice of appeal. The wife appealed the dismissal.

Read more: Nystrom v. Nystrom

Mansfield v. Neff, 31 Mass.L.Rptr 616 (Mass. Super. 2014)

In Mansfield v. Neff, Plaintiff (“Father”) filed an action against Defendant (“Mother”) and her parents (“Maternal Grandparents”) alleging, inter alia, fraud, misrepresentation, fraudulent inducement, intentional and negligent infliction of emotional distress, and negligent misrepresentation based upon misrepresentations which induced Father to sign the child’s birth certificate 10 years prior. The Massachusetts Superior Court denied the Defendants’ motion to dismiss for failure to state a claim under Mass. R. Civ. P. 12 (b)(6) and violation of the Massachusetts Anti-SLAPP statute, M.G.L. c. 231, §59H.

In 2001, Mother became pregnant and told Father he was the biological father. Father then signed the child’s birth certificate. Due to Mother’s representations, which were repeated by Maternal Grandparents, Father held himself out as the father in various court proceedings and when he entered the Marines. At the urging of Maternal Grandparents, Mother and Father married in 2005, but the marriage did not last, and custody of the child was granted to Maternal Grandparents. Over the years, Father had intermittent contact with the child, paid child support and sought to have the support modified. In 2012, Father took the position with the Probate and Family Court that he was not the biological father, which was then confirmed by a paternity test. Father then filed the pending civil action, alleging that he incurred monetary damages and experienced physical manifestations of stress such as sleep loss and depressive symptoms after learning that the Defendants “concealed the truth” regarding paternity. All three Defendants moved to dismiss on res judicata or collateral estoppel principals.

Read more: Mansfield v. Neff

Ruddy v. Ruddy, Appeals Court of Massachusetts, Unpublished Disposition No. 10-P-1951, September 13, 2013

In Ruddy v. Ruddy, the Massachusetts Appeals Court vacated an order which dismissed a husband’s request for the appointment of a new parent coordinator, finding that the parties’ separation agreement was unambiguous in providing that the parties were to utilize a parent coordinator for a period of longer than one year.

The parties were divorced pursuant to a separation agreement, which named a specific parent coordinator who "will serve a term of one (1) year, which shall be renewable for successive periods by agreement of the parties, or, if the parties are unable to reach agreement, the Parent Coordinator will be determined by the Probate & Family Court." The parties utilized the coordinator for over a year until the wife disagreed with one of her recommendations and, thereafter, she refused to acknowledge or work with the Parent Coordinator. The husband filed a complaint seeking a new parenting coordinator, which the judge dismissed on the apparent basis that the judge did not subscribe to the notion of appointing parenting coordinators. The husband appealed.

Read more: Ruddy v. Ruddy

Oliveira v. Oliveira, Appeals Court of Massachusetts, Unpublished Disposition No. 12-P-620, January 29, 2013

In Oliveira v. Oliveira, the parties were divorced in 2006 pursuant to a hand written separation agreement. The agreement provided, in part, that the "[w]ife shall receive 50% of the coverture value of the [h]usband’s military pension for the length of the marriage." The wife brought a declaratory judgment action to obtain a judicial interpretation of the meaning of the provision. The wife argued that the provision entitled her to the benefit of post divorce increases in the husband’s rank and pay grade, or, at a minimum, the ambiguity in the provision necessitated an evidentiary hearing to determine the parties’ intentions. The trial court found that the provision was clear and unambiguous, and declined to look outside the "four corners" of the agreement, concluding that the wife should receive one half the value of the pension based upon rank and time of service at the time of the divorce. The wife appealed.

Noting that the interpretation of a separation agreement is a matter of law, the Massachusetts Appeals Court conducted a review de novo. The Appeals Court further noted that if the words of a contract are plain and free from ambiguity it must be construed in accordance with their ordinary and usual sense. However, where the language is unclear the court may consider parol evidence as to the parties’ purpose and intent. The Appeals Court concluded that the language was ambiguous, particularly with regard to post divorce enhancements in the husband’s position. The Appeals Court further held that the parties’ intent was not readily ascertainable from the language of the provision. The Appeals Court vacated and remanded the case for an evidentiary hearing.

Mahoney v. Mahoney, Appeals Court of Massachusetts, Unpublished Disposition No. 11-P-524, June 12, 2012

In Mahoney v. Mahoney, the Massachusetts Appeals Court reversed a finding of contempt where the defendant had made payment the evening before the contempt hearing. The Massachusetts Appeals Court upheld a second finding of contempt since the defendant made no diligent and energetic attempt to obtain funds needed to comply with the Court Order.

The parties were married for 23 years and had two children. The husband was a minority shareholder in several family corporate entities which own Mahoney’s Garden Centers, a retail gardening store. Following motions for temporary orders, the husband was ordered to pay the wife $3,400 per month in unallocated support and $75,000 as a pre-distribution of assets against her equitable share of the marital estate for attorneys fees. The wife filed her first complaint for contempt for the husband’s failure to make the unallocated support payments. Although the husband paid the arrears the night before the hearing, he was found guilty of contempt. The wife later filed a second complaint for contempt for the husband’s failure to pay the $75,000 advance distribution. The husband was again found to be in contempt of the temporary order. The husband appealed both findings.

Read more: Mahoney v. Mahoney