I love a short day in court

Often when I attend hearings at the probate and family court, on a divorce, custody, modification, or child support matter, I am there for many hours.  In fact, it is not unusual to be at the courthouse for the better part of the day.  Sometimes this is due to the courts being overloaded with work and backlogged with cases.  This is not always the case.  Recently, the party on the other side of my case was four hours late.  Though she was supposed to be there at 8:30 a.m., she showed up at 1:00 p.m.  When she did not show up at 8:30, rather than swiftly defaulting her at the first or second call of the list,  the Judge ask that the court call her at home to see what the matter was.  The court personnel called her at 10:00 a.m., to find out where she was.  The person answered that she didn’t know about the hearing.  Absolutely no penalty was imposed on her  though I pleaded for a penalty.  I argued it was not a mistake on her part, but a manipulation to cause my client to pay more money as we had documentation that she knew about the hearing as she answered the notice of the hearing and filed it at the courthouse prior to the hearing date.    Because she was “pro se” had no attorney and was representing herself, this waiting did not cost her anything.

Aside from the mediation and negotiation that goes on while in the family court, the attorney spends a lot of the time waiting for his or her case to be called.  Since most attorneys bill by the hour, this has the unhappy effect on the client of costing a lot more money than it should; and gives the attorney the feeling of not being able to provide an economical product, which is legal services at a reasonable rate.

Some people have the opinion that attorneys like this end result because they can make more money if they sit there longer.  Not the case for me or anyone at my office or any of my colleagues.    I pride myself when I can provide an excellent work product at a reasonable rate.  In fact, that is my firm mission.

Today, was a good day. I  was at the West Roxbury Court District Court, which is a court that does not waste any time, moves the cases along and gets the job done. If a person doesn’t show up, they are quickly defaulted on the second call.   I arrived at court at 8:40 a.m. The other side arrived and Court began at 9:00 a.m.   I was done at 9:30 a.m. for my client.    I am now back in the office working on some other legal matters.  I love when this happens!

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Alimony and Recent Judgments in the Probate Court limiting post-retirement enforceability of awards only to judgments finalized after the 2011 law when into effect.

For those getting close to retirement, expecting a modification or discontinuance of their duty to continue with alimony payments to a former spouse pursuant to the new alimony reform act, beware:  As with the decisions coming down by the Supreme Judicial Court in Massachusetts, such as Chin V. Merriot, Rodman V. Rodman and Doktor v. Doktor, which limit post-retirement awards of enforceability to judgments finalized after the enactment of the 2011 law, we now have Cole. V. Cole, which held in a similar vein that the provisions of the alimony reform act do not apply retroactively to modifications filed before the Acts effective date.









By the Court (Vuono, Milkey & Blake, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran71 Mass. App. Ct. 258, 260 n.4 (2008).MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Carolyn A. Cole, appeals from a modification judgment entered by a judge of the Probate and Family Court both reducing the amount of alimony she currently receives, and terminating alimony upon the plaintiff, Lawrence S. Cole’s, sixty-fifth birthday.We vacate the judgment and remand to the Probate and Family Court.


Because they share a last name, we refer to the parties by their first names.

  1. Background. The parties were married in 1969 and divorced in 2003. The judgment of divorce incorporates a separation agreement, which, among other things, obligates Lawrence to pay alimony to Carolyn in the weekly amount of $450, reviewable upon certain triggering events. Specifically, alimony was to be reviewed upon Carolyn’s receipt of Social Security Disability Income (SSDI); the remarriage of either*22party; or payoff of the first mortgage by means other than refinance, but no later than August 31, 2008.The agreement does not include an automatic alimony termination date or an event that would trigger alimony termination. The alimony provisions merged with the judgment.


The separation agreement further provides that the parties are to take “affirmative steps” with respect to the triggering events set forth, supra. The agreement defines “affirmative steps” as “notice to the other party within thirty (30) days of any of the above events.”

In November, 2010, Lawrence filed a complaint for modification seeking termination of his alimony obligation and his obligation to maintain life insurance. As a ground for modification, Lawrence asserted that Carolyn is receiving SSDI benefits and that she did not take affirmative steps to provide notice to him within thirty days of receipt of those benefits. Carolyn filed an answer denying that a material change in circumstance had occurred and requesting dismissal of Lawrence’s complaint.

Following a trial, as is relevant here, the judge reduced Lawrence’s alimony obligation to $220 per week payable until February 24, 2015. In his detailed findings of fact and rationale, the judge relied on a multitude of facts supporting his ultimate conclusion that there has been a material and substantial change in circumstances. Specifically, the judge*33cited: Carolyn’s receipt of SSDI;her long-term cohabitation;the refinancing of the mortgage on the former marital home; the prohibitive cost of Lawrence’s health insurance; Lawrence’s ill health; Carolyn’s inability to earn future assets or income; contributions Carolyn receives from her live-in partner; the differential between the parties’ respective incomes; Carolyn’s needs; and Lawrence’s ability to pay the reduced order. This appeal followed.


At the time of the divorce, Carolyn had applied for SSDI benefits. The judge did not resolve conflicting testimony as to whether she provided notice to Lawrence of her receipt of these benefits, as set forth in the separation agreement.


Neither party contests that Carolyn has been in a long-term relationship and that she lives with her partner.

  1. Discussion. After Lawrence filed his complaint for modification, but before the trial in this matter, the Alimony Reform Act of 2011, St. 2011, c. 124 (act), was enacted. See G. L. c. 208, § 34, §§ 48-55. In reducing and then terminating Lawrence’s alimony obligation, the judge applied his understanding of the act as well as the long-standing principles governing modification. See G. L. c. 208, § 37; Schulerv. Schuler382 Mass. 366, 370-371 (1981). In particular, the judge cited both the cohabitation and retirement provisions of the act in reaching his decision.See G. L. c. 208, § 49.


The judge also relied on the act in setting alimony at thirty percent of the differential between the parties’ incomes.


The Supreme Judicial Court resolved the question of retroactive application of the act in Chin v. Merriot, 470 Mass. 527 (2015), and two related cases, concluding that the act applies prospectively, with one exception, not relevant here. See id. at 529; Rodman v. Rodman, 470 Mass. 539, 545-546 (2015); Doktor v. Doktor, 470 Mass. 547, 551 (2015).6Neither the parties nor the judge had the benefit of these decisions at the time of the trial. Nor did the judge have the benefit of Chin when he entered his judgment, findings of fact, and rationale. The cohabitation and retirement provisions of the act, upon which the judge relied, in significant part, in reducing and then terminating alimony, were made effective as of March 1, 2012, approximately nine months before entry of the modification judgment. As Chin resolved, it was error to apply those provisions of the act retrospectively.


The sole exception to the prospective application of the act concerns the durational limits of alimony as set forth in G. L. c. 208, § 49. Rodman v. Rodmansupra at 545. The durational limits are not at issue here as the parties were married in excess of twenty years.

Accordingly, the question remains as to whether the findings of fact and rational were so interwoven with the judge’s application of the act that the judgment must be vacated and remanded. Carolyn argues this is the only logical result. She contends that the underpinnings of the judgment were so interwoven with the application of the act that there is no*55basis upon which to affirm the judgment. By contrast, Lawrence argues that the judgment is supported by the finding that Carolyn’s receipt of SSDI constitutes a material change of circumstance and therefore is a sufficient basis upon which to affirm the judgment.

The judge’s findings of fact and rationale represent an integrated determination that a reduction in alimony is warranted. We are unable to parse out those aspects of his reasoning which were not affected or influenced by his application of the act.

Conclusion. For the foregoing reasons, the modification judgment is vacated and the matter is remanded to the Probate and Family Court for a redetermination as to whether there is a material or substantial change of circumstance without consideration of the act. The judge may, in his discretion, take additional evidence as he deems appropriate. Lawrence’s request for appellate attorney’s fees and costs is denied.

So ordered.

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Probate Court awards shared legal custody in a same sex marriage to the “defacto Parent”

We continue to break new ground in Massachusetts.  In a same-sex marriage, a woman was entitled to share custody of two children she jointly raised with their biological mother.  This is the case out of the Massachusetts Probate and Family Court of Partanen v. Gallagher.

The parties agreed that the plaintiff qualified as a “de facto parent” to the children under Massachusetts case law, the defendant biological mother argued that it was not within the power of the court to award shared legal custody to a de facto parent.

“Both parties have been equal parents to the children throughout their lives and should be afforded equal parental rights upon their separation,” he wrote. “The Court finds the authority to make such an award in the Court’s equity jurisdiction.”

As defined in the 1999 Appeals Court case E.N.O. v. L.M.M., a de facto parent is “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”


In Partanen v. Gallagher, the plaintiff was deeply involved in the decision to have children, personally performed one of the artificial inseminations of the defendant, was present at both births, lived with the children and biological mother, shared child-rearing duties, and was held out as a parent to the public, health care providers, school officials and others.

From the time they decided to have children while living in Florida, plaintiff Karen Partanen and defendant Julie Gallagher had mutual responsibility and involvement in major decisions regarding the welfare of their children, Jordan and James. That continued after the couple moved to Massachusetts and eventually split up.

Even after parenting conflicts arose, the couple agreed that Partanen, the non-biological parent, was a de facto parent to the children. They disputed whether a de facto parent could seek custodial rights.

“The [Supreme Judicial Court] has not yet specifically reached the issue of whether a de facto parent may be awarded shared legal and physical custody,” the judge wrote. “In a footnote of a recent unpublished decision of the Appeals Court of Massachusetts, the Court suggested that the issue of whether a de facto parent may be awarded custody is still an undecided question.”

The SJC has ruled, however, in a custody battle between a biological parent and a de facto parent. In its 2009 decision in R.D. v. A.H., the SJC determined that a judge “correctly ruled that the de facto parent, in seeking appointment as permanent guardian with custody, has the burden of proving by clear and convincing evidence that the legal parent was legally unfit.”

In that case, the SJC looked to the statute governing custody awards for children born out of wedlock, G.L.c. 209C, §10, and construed the word “parent” to mean “biological parent.”

The probate judge on  Partanen v. Gallagher, Judge Casey did not feel bound by that determination, however.

“The Court finds that the present case is distinguishable from R.D. v. A.H.,” Casey wrote. “Unlike R.D., Karen did not enter the children’s lives after they were several years old. Karen was part of the decision to create a family. Karen and Julie presented themselves to medical providers as partners who were starting a family. Although at various points prior to this litigation, marriage and adoption were options for the parties, both these options require assent.”

Casey noted that while R.D. brought her petition for custody under the guardianship statute, Partanen brought a complaint to establish de facto parentage pursuant to the court’s equity jurisdiction. The judge also pointed out that other jurisdictions “have held that de facto parents have the same rights and responsibilities as a biological or adoptive parent, including the right of shared legal custody if it is in the children’s best interests.”

“Both parties have been equal parents to the children throughout their lives and should be afforded equal parental rights upon their separation,” Casey wrote. “The Court finds the authority to make such an award in the Court’s equity jurisdiction.”

In addition to the court’s equity jurisdiction, Casey relied on a gender-neutral reading of G.L.c. 209C, §6, which states: “In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if … while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child.”

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