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Barry R. Lewis    

Eastern & Central Massachusetts

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US Supreme Court Case by Citation

Obergefell v. Hodges – The U.S. Supreme Court concluded that, under the Fourteenth Amendment of the U.S. Constitution, states must license a marriage between two people of the same sex, and must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

Massachusetts SJC and Appeals Court Cases by Citation

Divorce Action

Pierce v. Pierce – Review of the evolution of the law of alimony, which is wholly statutory, and discussion of the factors that a judge must take into consideration in making an award of alimony (or a modification of an award) and the balance that a judge must strike when financial resources are inadequate to maintain the marital standard of living.

Greenberg v. Greenberg – In an action to modify a judgment for alimony, the petitioner failed to demonstrate that his impending retirement constituted a sufficient change in circumstances to warrant modifying his alimony payments to his former wife, where unchallenged evidence established that the petitioner had the ability to meet his alimony obligations .

Casey v. Casey – This court vacated the financial award in a divorce action, where, viewed as a whole, the award to the wife was inequitable, given that the probate judge treated the husband's military pension as a stream of income rather than a marital asset subject to division, awarded no alimony, and inappropriately attributed income to the wife based on a finding that she was able to work full time, in that her part-time employment was not voluntary and there was no evidence that she would be able to work more hours at her job or that other jobs were available in the same geographic area .

Whelan v. Whelan – In an action in Probate and Family Court to modify child support, the judge erred in calculating the amount of the father's income from self-employment, and therefore, this court vacated the reduction in child support and remanded the matter for further proceedings.

Modification

Doktor v. Doktor – Divorced in 1992, in 2013 Joe filed a Complaint for Modification of his alimony obligation since he was now beyond full retirement age, arguing that the new Massachusetts alimony code applied to him; however, the trial court dismissed Joe's complaint, finding that the alimony law did not apply to cases settled prior to the new law.

Chin v. Merriot – The question is whether modification of an obligation to pay alimony in a merged provision of a divorce judgment is governed by the alimony reform act, where the act became effective after the date of entry of the judgment. The determination is that both the retirement provision and the cohabitation provision apply prospectively, and therefore afford no basis upon which to terminate the alimony order.

Rodman v. Rodman – The SJC held that in framing the Alimony Reform Act, the Legislature intended that only a claim for divorce modification based on durational limits may (but will not always) apply retroactively to prior judgements, whereas the retirement provision does not apply retroactively to alimony judgements prior to March 1, 2012.

Cabot v. Cabot – In an action for modification of a divorce judgment, the judge correctly concluded that an earlier agreement between the parties was not an integrated agreement and did not address the issue of the college costs of their children; therefore, the judge properly could consider whether there had been a material change in the parties' circumstances since the divorce justifying modification of the divorce judgment to require contribution from the former husband to the children's college costs....

Ardizoni v. Raymond – In a proceeding to modify a judgment of divorce with respect to physical custody of the minor children, identical eleven year old female twins, the judge's finding that a material and substantial change in circumstances had occurred was supported by the record and was not clearly erroneous....

Morales v. Morales – A complaint requesting modification of a child support order included in a divorce judgment required remand where the probate judge erred in applying a material and substantial change standard rather than an inconsistency standard.

Katz v. Katz – In a proceeding on a former husband's complaint for modification of alimony, where the evidence established the existence of valuable and potentially income-generating assets that were available to the husband to pay some level of support without impoverishing him, and where the record established that the wife, in the absence of any alimony, would be reduced to poverty, the Probate Court judge abused her discretion in effectively terminating the husband's alimony obligation without appropriate consideration of all the relevant circumstances.

Croak v. Bergeron – The Appellate Court found that a Probate and Family Court judge did not err in dismissing the plaintiff's complaint for modification of his child support obligations, where, notwithstanding her determination that certain settlement proceeds and inheritance sums of the plaintiff were includable in their entirety as income under the Massachusetts Child Support Guidelines.

Adlakha v. Adlakha – The Appellate Court found that the judge in a divorce action did not abuse his discretion in dividing the marital property, and properly took into consideration the factors, where the award to the wife of the family home and her medical practice reflected her far greater contributions to the building of those two assets, and where the award to the husband of a greater amount of investment and retirement accounts reflected his contribution as investor of the family funds.

Sampson v. Sampson – This court vacated the award of alimony in a divorce action, where the judge's financial disposition left the wife presently in economically straitened circumstances while the husband was virtually guaranteed continued enjoyment of the secure, comfortable marital lifestyle.

Paternity / Child Custody

Same Sex Custody Status – Gabriella Della Corte appeals from a modification judgment entered by a judge of the Suffolk Division of the Probate and Family Court Department, maintaining joint legal custody of the child with Angelica Ramirez.

Guardianship of a Minor – Petition by a four year old child's natural parents to remove the maternal grandmother as the child's guardian.

Smith v. McDonald – Discussion of the general legal framework, in child custody, visitation, and relocation cases, and discussion of state law which establishes a comprehensive scheme for determining paternity and for establishing child support, visitation, and custody rights for children born outside a marriage.

Sayre v. Aisner – The Probate and Family Court has the authority to exercise its equity jurisdiction and order visitation.

A.H. v. M.P. – Addresses the question of whether an adult who is neither the biological nor adoptive parent of a minor child can pursue and attain "de facto" parental rights.

Alimony

Green v. Green – The wife appeals from a judgment of divorce nisi, arguing essentially that the financial division is inequitable. We conclude that the judge acted within her discretion in dividing the assets evenly and awarding the wife alimony of $875 per week until the husband retires from teaching.

Barron v. Puzo – A complaint for modification seeking a new order for payment of alimony, filed approximately fourteen and one-half years after a former husband's final payment of alimony under a decree of divorce, did not survive the husband's death and should have been dismissed on the motion of the administrator of his estate.

Bercume v. Bercume – Wife filed for modification of alimony after divorce parties had signed a separation agreement waiving their rights to alimony; the court ruled that regardless of the agreement, the court maintains jurisdiction to modify an alimony decree.

Adlakha v. Adlakha – The award to the wife of the family home and her medical practice reflected her far greater contributions to the building of those two assets, and the award to the husband of a greater amount of investment and retirement accounts reflected his contribution as investor of the family funds.

Property Division

Ansin v. Craven-Ansin – Post-Nuptial Agreements may be enforced: In a divorce action, a judge in the Probate and Family Court properly entered judgment enforcing a marital agreement against the wife, where the agreement was not the product of fraud, the husband met the rigorous standard for disclosure of his assets, the wife's waiver in the agreement of her rights in the event of divorce was meaningful, and the terms of the agreement were fair and reasonable both at the time of execution and at the time of divorce.

Child v. Child – The appellate court found that the judge in a divorce action did not err with regard to his valuation of the marital home, but took into consideration the contributions of each spouse as well as other factors in existence at the time of the dissolution of the partnership.

Adams v. Adams – The court found that the husbandís partnership interest can rightfully be included in the marital estate for the purpose of property division.

Denninger v. Denninger – On appeal from a judgment of divorce awarding the husband fifteen percent of the marital assets of the parties, this court concluded that, in the circumstances, the judge gave excessive weight to the original source of the assets of the parties' twenty-seven year long marriage and failed to allocate assets in such fashion as would enable each party to sustain an approximation of the living standard each enjoyed while married to the other.

Wilcox v. Trautz – This court concluded that unmarried cohabitants may, subject to the rules of contract law, lawfully contract concerning property, financial, and other matters relevant to their relationship, and that such an agreement is valid even if expressly made in contemplation of a common living arrangement.

Child Support

Draper v. Burke – In an action by a wife for modification of a child support order issued by an Oregon court, the probate judge did not err in denying the motion of the husband, who now resided in Idaho, to dismiss for lack of subject matter jurisdiction.

Boulter-Hedley v. Boulter – This court concluded that whether an order modifying a child support obligation has retroactive effect to the filing of the complaint is up to the discretion of the judge, as nothing in the statutory scheme mandates retroactivity.

Ames v. Perry – In a modification proceeding after a judgment of divorce, the judge properly applied the standard of Knox v. Remick and correctly determined that the plaintiff (mother) had not demonstrated that the level of child support was inadequate to warrant a modification of the separation agreement so as to increase child support.

Knox v. Remick – Where a trust agreement for child support was incorporated in a divorce decree, a Probate Court had the power to modify the decree with respect to child support.

Martin v. Martin – The Appellate Court determined that a probate judge erred in deviating from Massachusetts child support guidelines (guidelines) in calculating a child support order by affording a mother credit toward her support obligation for one of her children based on Supplemental Security Income benefits received by her other child, where such benefit had no relationship to the mother's earning history.

Educational Expenses

Mandel v. Mandel – The appellate court concluded that a provision in a separation agreement regarding the college expenses of the parties' child was intended to provide each party with a payment obligation of fifty percent of reasonable college expenses, as determined by certain equitable factors.

McCarthy v. McCarthy – A judge of the Probate Court exceeded her powers when she incorrectly modified a marital separation agreement that had independent legal significance to increase the child support payment by the husband and entered an order that the husband be responsible for the expenses of college education for the children, where the separation agreement made no provision for such expenses and where there was no significant change in the parties' relative circumstances.

Removal of Children from the Commonwealth

Cartledge v. Evans – A probate judge erred in denying a mother's petition to remove her child to Connecticut, where the mother, whose marriage to a Massachusetts resident had dissolved, had a "good reason" for the move, in that she had lost her job but had located a new position in Connecticut near family who would provide child-care assistance.

Wakefield v. Hegarty – In a proceeding in Probate and Family Court on a petition by the mother, seeking to relocate herself and her minor child to St. Croix, the record fully supported the judge's findings of fact.

Visitation

Blixt v. Blixt – Discussion of the principles governing a facial constitutional challenge to a statute as well as considerations stated by the United States Supreme Court in Troxel v. Granville, as to due process implications of grandparent visitation statutes.

R.S. v. M.P. – In summary judgment proceedings arising from a father's complaint for modification, in which the father sought an increase in visitation with his two minor children, the probate judge erred in dismissing the father's complaint based on the conclusion that the father could not demonstrate a material and substantial change in circumstances so as to require a modification of visitation, where the judge failed to consider the father's allegation that the mother had less time for the parties' two children due to her obligations to her younger children from her subsequent marriage, a reasonable inference from the evidence that required further exploration on remand.

Adoption

Adoption of Cecily – Mother appealed a Juvenile Court decree finding her daughter in need of care and protection and dispensing with her consent to adoption. The court held that the trial court did not err in: admitting maternal grandmother's grand jury testimony that was inconsistent with her testimony at trial....

Adoption of Gabe – On appeal, the court addressed whether father was entitled to representation during the adoption trial terminating his parental rights. The Probate and Family Court approved the adoption of his two sons and terminated his parental rights.

Adoption of Zander – The court remands to provide a schedule for post-termination and post-adoption sibling visitation rather than leave it to the adoptive parents' discretion. When siblings are separated by adoption, the judge shall ensure that siblings have visitation if reasonable, practical, and in the best interest of the children.

Business Valuation

Maillet v. Maillet – In this case, a year after the divorce, the ex-wife claimed that her ex-husband had made fraudulent representations of his income as reported on his Rule 401 financial statement for his S-corporation. The Rule 401 financial statements had been incorporated into the divorce judgment and were the basis of the child support payments to the wife, and a year after the divorce settlement, the husband asked the wife to sign off on the federal income tax return for the S-corporation which listed his income as far greater than what he listed in his financial statements.

Sahin v. Sahin – In the divorce settlement, the ex-wife received 30% of the cash value of the ex-husband's computer company at the time of the divorce. Three years later the company soared in value from a few million dollars to nearly one and a half billion, so the ex-wife claimed this increase could only have come about by fraud. However, the Supreme Judicial Court granted a motion for summary judgment in favor of the husband, holding that the ex-wife had full access to the ex-husband's company and simply chose not to depose those in charge of his business strategies.

Prenuptial & Antenuptial Agreements

Austin v. Austin – The court found that because alimony waiver in an antenuptial agreement was valid because at the time it was executed, it was fair and reasonable at the time of divorce.

Dematteo v. Dematteo – Despite the wife's claims that she did not know about a large part of the husband's estate, the court held the antenuptial agreement as enforceable because it found no evidence that the wife did not have time to make a fully informed decision.

Korf v. Korf – A trial judge cannot alter the provisions of an antenuptial agreement after he has found the agreement to be valid.

Osborne v. Osborne – First case holding that prenuptial agreements may be enforced, provided that there is a full disclosure and that they are fair and reasonable at the time that enforcement is sought, and there has been no fraudulent conduct by either party.



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