Fields and Dennis LLP

The Appeals Court affirmed a Probate Court judgment attributing income to the husband in a divorce case.  The case reminds practitioners that courts may consider the earning capacity of a party in appropriate circumstances.  Where a party is voluntarily earning beneath his/her capacity, such attribution is “particularly appropriate,” according to the Appeals Court.  Similarly, such attribution may also be appropriate where a judge determines that a career change is voluntary.  Where a judge attributes income, however, the Appeals Court noted that a specific amount of income ought to be attributed.  C.D.L. v. M.M.L., 72 Mass.App.Ct. 146 (June 27, 2008).

Where paternity is not disputed, a Probate Court judge has the authority to enter an initial award of child support for a non-marital child after the death of the obligor-parent, the Supreme Judicial Court decided.  The Probate judge, however, must consider, by means of a credit to the obligor-parent’s estate, Social Security survivor benefits, life insurance proceeds and any other benefits the child will receive.  L.M. v. R.L.R. 451 Mass. 682 (June 19, 2008).

Parties entered into a separation agreement which provided that the husband was to pay $275.00 per week in alimony.  The agreement did not mention merger or survival.  The judgment nisi, however, stated that the agreement survived.  Years later, when the ex-husband sought a modification, the ex-wife moved to dismiss his complaint on the grounds that the agreement survived and that the ex-husband could not meet the “countervailing equities” standard necessary to modify a survived agreement.  The Probate Court judge allowed the motion to dismiss and the Appeals Court affirmed. The case reminds practitioners of the general rule regarding survival – that is, unless the parties expressly provide otherwise, an agreement will be held to survive.  Another reminder is that when the judgment nisi arrives in the mail, read it.  If you don’t agree with it, avail yourself of the applicable post-judgment remedies before it is too late.  Thomas v. Thomas, 71 Mass.App.Ct. 1126 (May 30, 2008).

The Appeals Court found that a woman violated a restraining order barring contact with her ex-lover by threatening, through his attorney, to release economically damaging information unless he agreed to certain demands related to the custody of their child.  The woman had argued that her contact with the attorney was covered by the “litigation exception” to no contact restraining orders.  The Appeals Court, however, explained that the “litigation exception” entitled the woman to enter into negotiations with her ex-lover’s counsel but not to use those negotiations as a guise to harass her ex-lover.  L.F. v. L.J., 71 Mass.App.Ct. 813 (May 30, 2008).