Posts Categorized: Family Law

BBA Meets with the Chief Justices

We do it every fall.  Because of the primary importance to the BBA of the judicial system in Massachusetts, the incoming BBA President meets each year with the chief judges at every level—the heads of the SJC and the Appeals Court, the US District Court, Bankruptcy Court, and Circuit of Appeals, the Chief Justice and Administrator of the Trial Court (together), and the leaders of each of the Trial Court’s seven departments: Superior Court, District Court, Boston Municipal Court, Housing Court, Juvenile Court, Land Court, and Probate & Family Court.

As you can imagine, these thirteen meetings take up a great deal of the President’s time.  But the effort is always worthwhile, for the opportunity it provides to discuss our mutual plans priorities for the coming year and where they overlap, to reaffirm our commitment to adequate funding and other support necessary to enable the Massachusetts courts to maintain their preeminent position in the nation, and to promote a free-flowing back-and-forth throughout the year.

BBA President Carol Starkey recently wrapped up her chief-judge meetings, and, as usual, some common themes emerged:

Budget funding

Funding for the Trial Court is always one of the BBA’s top priorities and a focus of our advocacy at the State House.  The Court has recovered well from the budget setbacks that were necessitated by the Great Recession, becoming leaner and more efficient.  But recent years have found budget-writers in the Governor’s Office and the Legislature tightening their belts once again, and the courts have not been entirely spared.

For the current fiscal year (FY17), the Trial Court’s final budget of $639 million represents $15.4 million less than what they would have required to maintain level services.  As a result, they are making do by putting off some hiring, launching an early-retirement program, and accelerating efforts to do more with less, such as by shifting staff among courthouses, sessions, and responsibilities.

This budget crunch is taking its toll throughout the system, and we heard from several chief judges about its impact in their courts.  Chief Justice Paul Dawley, who oversees 62 courthouses in the District Court system—many of them aging badly—knows as well as anyone how urgent the need is for adequate court funding.

Online access to court records

This past year, the Trial Court issued a new rule on public access to court records on-line.  The process was challenging, as these debates are always fraught with tension over the competing interests of transparency and privacy.  The rules seek to strike the proper balance by creating limited exceptions to the general rule providing for accessibility.  Criminal cases, for instance, come with their own set of concerns, and the Court took steps to ensure that access to information on those cases did not undermine either the letter or the spirit of recent changes to laws on criminal offender record information (CORI)—changes designed to promote successful re-entry of ex-offenders.

Beyond that, the Court recognized that on-line access rules are a work in progress and that a one-size-fits-all approach will not succeed: The new rules provide for both a working group to oversee and study their implementation and for standing orders within each department that address their unique concerns.  (In fact, just this week, the Probate & Family Court followed up with a standing order rendering both docket entries and parties’ addresses in a broad range of cases unavailable through the on-line portal.)  Both the opportunity and the challenge presented to the judiciary, and court users, as records move on-line are clearly on the minds of many of the chiefs we met with.

Vacancies on the bench

We’ve written here before about how critical it is that qualified candidates apply for judgeships—and that lawyers who work with such people encourage them to do so.  Right now, several court departments are facing significant shortfalls on their benches, and getting more applicants is one piece of the puzzle in filling those seats.

With 7 vacancies (out of 49) expected by the end of this year, Chief Justice Angela Ordoñez of the Probate & Family often has to place herself on special committees, rather than ask one of her overburdened judges to take on such work as well.  At the Superior Court, Chief Justice Judith Fabricant has 13 openings and sees 7 more coming by the end of 2017.

In all, the Trial Court has more than 50 judicial vacancies at the moment.  And while nearly half of that gap is being filled, for now, by recall judges, the need is still great.  The Governor’s office, the Judicial Nominating Commission, and the Governor’s Council are all hard at work, playing their respective roles in nominating, vetting, and confirming qualified candidates, but we will need to keep an eye on the situation.

One aspect of the process that all players are focused on is diversity among judges—racial and ethnic diversity, as well as geographic diversity, gender balance, and a mix of backgrounds in terms of practice area and setting.  Several chiefs told us they, too, are keeping a close eye on the diversity of their judges.  Chief Ordoñez is taking on the problem by addressing the early end of the pipeline—pairing small groups of lawyers as mentors with minority students at not only local law schools but also colleges and even high schools, to help them see the law as a potential career path.

Judicial evaluations

Each year we hear the same appeal from multiple chief judges: Please urge practitioners in their courts to fill out and submit judicial-evaluation forms!  The information they produce can be invaluable in helping judges improve and making the chiefs aware of topics for continued trainings.

We know that some lawyers have concerns about the forms—that they aren’t used by the courts, that responses that could be read as criticism will make their way back to the judge in question with enough particulars to reveal the respondent’s identity.  But the chiefs take pains to stress to us, time and again, that they do indeed rely on the forms, and that they make every effort to maintain confidentiality by scrubbing details before sharing them.

We have pledged to the chief judges that we will continue to help them with the evaluation process.  At the same time, we are always interested in any questions or hesitations you may have about it, so please let us know!  The chiefs are eager as well to hear informally, through the BBA, of any problems that have come to our attention, whether with individuals or more generally.

LAR

Another topic that came up time and again was limited-assistance representation (LAR), through which an attorney can take on a client for discrete parts of a case, without being tied to the client for the entirety of the case.  The BBA is a strong supporter of LAR as a way to bridge the justice gap that leaves too many litigants without the means to pay for counsel yet unable to qualify for assistance from legal-services providers.  It can also help new lawyers establish and grow a practice.

We are always seeking ways to help educate attorneys on LAR; we’ve conducted many trainings on it, and we are planning more.  (We also recently submitted comments on new rules bringing LAR to Superior Court for the first time.)  Our meetings with chief judges are a chance to assess how well LAR is working in their courts, to learn which types of cases are best suited for LAR in each court, and to ask how the BBA can further promote the program.  We have also relayed fears shared by some would-be LAR practitioners that they will be unable to extricate themselves from a case after they’ve finished the limited work they signed on to handle.

According to Chief Justice Roberto Ronquillo, the Boston Municipal Court sees many cases (e.g., collections matters) that can be settled in one day with the assistance of counsel—yet often at least party is unrepresented.  He also offered insight into LAR from a trial judge’s perspective, giving us useful advice on how to increase their awareness of LAR as an option to suggest to parties.

At the Land Court, where Chief Justice Judith Cutler presides, judges frequently recommend LAR.  Yet they’ve encountered some problems in how it’s worked in practice—problems they were keen to get our help with.  Specifically, they’d like to see LAR attorneys help with a case earlier in the process.  A simple consultation with an LAR attorney at the outset can help prevent further problems down the line.  Too often, pro-se litigants fail to even respond to motions, only to seek counsel late in the game.  There is simply too much at stake in cases before the Land Court for that be a beneficial approach, and Chief Cutler is eager to see such problems averted.

Beyond these broad themes, the judges raised issues that are affecting their courts individually.  For example, Chief Justice Amy Nechtem of the Juvenile Court spoke with pride about the work they’re doing to address racial disparities.  Chief Justice Timothy Sullivan thanked us for our advocacy on behalf of expansion of his Housing Court to statewide jurisdiction—a battle that will continue in the new year.

From Chief Justice Scott Kafker, we learned of his initiatives to help Appeals Court justices work through their caseloads more efficiently and to get cases ready more quickly.

When we sat down with SJC Chief Justice Ralph Gants, it was clear that the state’s on-going effort to study our criminal-justice system, in conjunction with the Council of State Governments (CSG), was occupying much of his thinking.  Chief Gants, along with Governor Charlie Baker and the Legislature’s two leaders, was a signatory to the letter inviting CSG to assist in this broad review of policies and practices, and, like the others, he is a member of the steering committee that is guiding their work.

CSG anticipates filing a report with recommendations by the end of this year, in time for legislation to be filed at the start of the 2017-18 legislative session, and Chief Gants foresees a role—as do we—for the BBA to play in analyzing and commenting on the report and resulting bills.

Our meetings with the chief judges in the federal system tend to highlight different issues.  The Bankruptcy judges (whom we met with as a group, led by Chief Judge Melvin Hoffman) were proud of their new local bankruptcy rules and asked us to spread the word.  Chief Judge Patti Saris told us the US District Court is looking into developing its own local rules of civil procedure.  At both of these meetings, we heard laments about the difficulties new lawyers face in first passing the bar and then establishing themselves in their careers.  And Chief Judge Jeffrey Howard of the First Circuit Court of Appeals shared with us that while his court has made advances in technology, it’s difficult to keep up.  As a result, some attorneys bring their own equipment, which can put pro-se litigants at a disadvantage.

Finally, we had a bittersweet meeting with Trial Court Chief Justice Paula Carey and Court Administrator Harry Spence, because the latter will be retiring this April.  He will clearly be racing through the finishing line, however, and he and Chief Carey updated us on a variety of projects they have before them, including training for staff on implicit bias, a restructuring of personnel to upgrade security, and the Court’s 20-year plan for capital spending to set priorities for new construction.

These annual meetings provide a window into the thinking of the leadership at the judiciary, and we will continue to share with you what we learn.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

  • Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
    • Social Security number
    • Driver’s license number
    • State issued ID card number
    • Passport number
    • Defendant’s parent’s birth name identified as such
  • Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
    • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
    • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Appeals Court Case Review: Re-Opening Settlement Agreements and Alimony Law

On June 24, the Appeals Court released its decision in Demarco v. Demarco (Appeals Court: 2016-P-0190), a case with fascinating implications for the bar.  As with the cases explained last week – Commonwealth v. Moore on postverdict juror contact and Bryan Corp v. Bryan Abrano on the “hot potato” doctrine, the BBA’s Amicus Committee considered taking part in the amicus process in this case, but ultimately declined.  In case you weren’t aware, the BBA has an extremely active Amicus Committee which reviews requests for amici and can sign onto or write and submit its own briefs at all jurisdictional levels in cases related to BBA’s mission, such as on the practice of law and access to justice.  Here are samples of some of our biggest cases.  If you have a case you think is appropriate for our consideration, please reach out!

The Demarco case revolves around a settlement agreement on alimony issues that was made when interpretation of the recently revised alimony law was still in flux, and whether the Probate and Family Court had the authority to allow the wife’s Rule 60(b) motion to effectively reopen the pre-settlement complaints for contempt and modification.

Case Facts

On May 5, 2010, Katherine and Michael Demarco were divorced after more than thirty years of marriage.  Under their Separation Agreement, signed May 4, 2010, the alimony provision obligated husband to pay wife a base alimony amount and, in addition, 33% annually of his total gross earned income over a fixed amount.  The Separation Agreement provided that the husband’s alimony obligation to the wife would terminate upon the earliest to occur – (a) the husband’s death, (b) the wife’s death, (c) the wife’s remarriage, or (d) at such time as husband has no gross income, after turning age 68.  Further, the Agreement provides that after turning age 68, husband shall continue to pay alimony to wife at the same rate, and if gross income earned after turning 68 is less than the fixed 33% threshold amount, husband shall continue to pay wife 33% of his gross earned income.

On March 1, 2012, the Alimony Reform Act took effect.  The retirement provision codified at G.L. c.208 § 49(f) created uncertainty in family law practice, as to whether it had retroactive effect to Settlement Agreements prior to enactment – in particular, the new provisions on a payor reaching retirement age and a payee co-habitating with a new partner.  On the same date, husband filed a Complaint for Modification, requesting a modification of his alimony obligation.  On February 18, 2013, wife filed a Complaint for Contempt, alleging that husband owed her unpaid alimony and other money and assets.  On February 25, 2013, husband filed an Amended Complaint for Modification seeking to terminate his alimony obligation due to his reaching full retirement age.

On February 19, 2014, the parties appeared for trial on wife’s February 18, 2013, “Complaint for Contempt” and husband’s February 25, 2013, “Amended Complaint for Modification.”  The Court (Judge Casey) encouraged the parties to consider a settlement and expressed its opinion to the parties that Section 49(f) of the Alimony Reform Act applied retroactively, now that the husband had reached retirement age.  The parties came to an agreement on February 19, 2014, whereby the husband was to pay wife $90,000 and thereafter end his alimony obligation to the wife. The Court entered a Modification Judgment on that date ordering the parties to comply with their Agreement.

On January 30, 2015, the Supreme Judicial Court (“SJC”) concluded, in three published opinions, that the retirement termination provision of G.L. c. 208 §49(f) did not apply retroactively.

On August 7, 2015, wife filed a Motion for Equitable Relief and a Motion for Relief from Judgments Dated 2-19-14 under Rule 60(b)(5) and (6).  She argued that the parties’ agreement was based on their and the Court’s incorrect interpretation of the Alimony Reform Act.  On August 13, 2015, husband filed his Opposition to the Motion.

On November 24, 2015, the Probate and Family Court issued a Memorandum of Decision and Order allowing the Motion under Rule 60(b)(6) and reopening both the Complaint for Contempt and Amended Complaint for Modification.  Rule 60(b)(6) states in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:… (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

The Court reasoned that the wife merited relief under Rule 60(b)(6) and its broad equitable powers.  The Memorandum of Decision explained that it was not equitable to hold wife to an agreement she entered into while relying on the Court’s incorrect interpretation of the law.  Furthermore, it stated that relief was merited under Rule 60(b)(6) both because of the SJC’s clarification of the Act subsequent to the parties’ agreement and because of the Court’s incorrect interpretation of the Alimony Reform Act.  The Court found that the wife’s reliance on the incorrect interpretation was the type of “extraordinary circumstance,” warranting relief under Rule 60(b)(6) because it caused her “serious financial detriment.”

On February 16, 2016, the Appeals Court requested amicus briefs on the following issue by March 18, 2016:

Where a divorce judgment predated the alimony reform act but was later modified by agreement of the parties after the effective date of the act — in order to resolve the former husband’s claim that his alimony obligation terminated under the act’s retirement provision, G. L. c. 208, § 49 (f) — and where their agreement survived the modification judgment, whether a judge could properly relieve the former wife of the agreed modification pursuant to Mass. R. Dom. Rel. P. 60 (b) (6), G. L. c. 215, § 6, or otherwise, based on a “clarification of the law” that occurred when this court subsequently held that the retirement provision does not apply retroactively.

On February 19, 2016, husband/appellant filed his appeal brief.  Oral argument was held April 5, 2016.

The Decision

On June 24, the Appeals Court released its holding in this case, reversing the lower court for incorrectly applying Rule 60(b)(6) to reopen the couple’s settlement.  The Court agreed with the husband’s argument that “subsequent clarification of the law” was not the type of extraordinary circumstance intended to be relieved by the application of Rule 60(b)(6) and noted that it had policy concerns about reopening a settlement without more extreme circumstances:

While Probate and Family Court judges enjoy considerable discretion, that discretion does not extend to vitiating a contract that was negotiated at arm’s length and entered into freely and voluntarily. In the absence of fraud, coercion, or countervailing equities, a signatory to an agreement is bound by its terms.  Knox v. Remick, 371 Mass. 433, 436-437 (1976). Grindlinger v. Grindlinger, 10 Mass. App. Ct. 823, 824 (1980). To hold otherwise would negate the integrity and inviolability of the innumerable surviving agreements relied upon by parties across the Commonwealth. We can never know all of the considerations of parties who elect to resolve their cases in this manner, nor does the record reflect such considerations here. However, to allow an agreement such as the one here to be unwound based on one party’s subsequent determination that she would have fared better if she had tried the case to completion, would deprive the other party of the certainty and finality for which he bargained.

We applaud the courts for taking on these issues.  We also note that we have been keeping an eye on an alimony reform bill that has already passed the House.  The bill proposes to further clarify some of the confusion from these cases and to overturn the SJC’s January 2015 interpretation  by giving retroactive effect to the provisions terminating alimony on the payor reaching retirement age (G.L. c. 208 §49(f)), and suspending, reducing or terminating alimony upon cohabitation of the recipient spouse for a period of at least three months (G.L. c. 208 §49(d)).  The BBA’s Family Law Section has reviewed the bill and we will let you know how it ends up.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Year in Review: BBA Comments

As you have likely gathered if you’re a regular reader of this blog, the BBA had a remarkably productive year on the policy front.  We’ve recently been touting the work of our Amicus Committee, and look forward to following up with you about a couple of cases with oral argument either recently heard (Fisher v. University of Texas at Austin II in the US Supreme Court on December 9) or fast approaching  (Commonwealth v. Wade in the SJC on January 11).  However, this post is devoted to our Sections and all the comments they submitted to various court working groups and committees in 2015.

For those of you unfamiliar with this process, the courts at any time have various working groups and standing committees considering changes to various rules of practice and procedure.  When these groups compose a draft rule, they generally post the proposed revisions online and invite comment from interested parties.  We know from experience that they appreciate our efforts to gather practitioners’ opinions and take them very seriously, so the BBA works with all its Sections to solicit and facilitate their comments and sends them to the courts on behalf of the Sections.

It is important to note that the BBA itself often does not take a position in these instances.  The comment process is an opportunity for members of the bar to be heard and we want to make sure that the court can benefit from all the differing points of view on an issue.  Therefore, although each submission is approved by the BBA Council, informal Section comments do not receive as thorough a vetting as full BBA policy positions, because they do not require a general consensus of the bar or continued BBA advocacy.

Here are some of this year’s highlights:

  1. That an amended jury instruction is appropriate and the provisional instruction generally assists jurors in considering eyewitness identification issues
  2. That the proposed instruction is appropriately based on five generally accepted principles regarding eyewitness identification

Their comments also included a number of items on which there was no consensus, ranging from broad policy issues to specific language suggestions.

In November, the SJC released its new jury instruction on eyewitness evidence, which will be given “upon request of a party, before opening statement or immediately before or after the testimony of an identifying witness.”  The Justices noted that the instruction will need to evolve with new developments in the science of identification and requested that the Standing Committee on Eyewitness Identification continue to review the issue and recommend further changes as needed.  Here is the full statement from the court.

  • The BBA’s Ethics Committee, Delivery of Legal Services, and Litigation Sections also provided extensive comments on the proposed revised Code of Judicial Conduct.  The BBA itself provided comments as well, noting its support of Rule 3.7, encouraging judges to participate in legal, educational, religious, charitable, fraternal, or civic organizations, and Rule 2.6(A), giving judges guidance on their role in assisting self-represented litigants.  The Delivery of Legal Services Section also voiced support for Rule 2.6(A).  The Ethics Committee provided extensive comments on many of the rules — which the Litigation Section generally agreed with, adding a note that they hoped the expansion of judges’ ability to accept free or discounted legal services would result in a corresponding expansion of the public reporting requirement.

In September, the BBA also voiced its support for proposed amendments to SJC Rule 3:11, which provides a new role for the SJC in reviewing these judicial ethics issues.  The rule would give the SJC the new power to both issue Ethics Advisory opinions to clarify the meaning and application of and provision of the CJC and to expound upon provisions of the Code that are of broad interest and application.  It gives the SJC power to essentially serve as an appellate body for decisions by the Committee on Judicial Ethics (CJE), and extends the ability to request Ethics Advisories to any judge or lawyer, whereas only judges can request CJE opinions.

In late October, the SJC released the revised Code of Judicial Conduct and reported the adoption of the revised SJC Rule 3:11.  The code and rule will take effect January 1, 2016.  We were pleased to see that many of the Ethics Committee’s comments incorporated into the Code and the sections we supported were included without substantive changes.

The BBA’s Real Estate and Bankruptcy Law Sections both provided comments to the Trial Court.  The Real Estate Law Section was satisfied with the standing order as an appropriate measure to address unnecessary confusion in the litigation process.  The Bankruptcy Law Section was concerned that the proposed standing order did not provide a good-faith exception.  They discussed possible situations when it would be more beneficial to bypass the address verification process in order to expedite the matter and provided the Trial Court with a couple of possible language edits to achieve this goal, one for a show of cause and the other based on time.

The Trial Court approved the standing order in late June 2015, and it became effective October 1st.  The final version does not incorporate the changes proposed by the Bankruptcy Law Section.

  • In July, the Litigation and Real Estate Sections commented on the proposed BMC and District Court procedural amount change. The shift would increase the minimum qualifying amount for Superior Court cases from $25,000 to $50,000, an increase that roughly corresponds with inflation since the qualifying amount was last changed in 1986.  Both Sections were concerned about the implications of the change, especially with how the District Court and BMC could handle the attendant influx of additional civil cases.  They also considered alternative types of jurisdictional splits, based possibly on case complexity or subject matter.

Perhaps in response to these comments, the Court has put this issue on hold as it works out how best to implement this change.  As the Chief Justice explained in his State of the Judiciary address, “We have heard loud and clear the comments furnished by the MBA and BBA when we aired the proposal to increase the procedural limit in civil cases in the District Court and BMC from $25,000 to $50,000 … [O]nce [dedicated civil] sessions are up and running, and have demonstrated that they can efficiently handle these civil cases, then we will reopen the idea of increasing the procedural limit to $50,000.”

The BBA noted its support for the change, and expressed its hope that all involved personnel would be adequately trained and that the rules would be uniformly enforced by all DOC facilities.  The BBA also encouraged EOPSS to consider extending application of the rule to county correctional facilities as well to assure uniform proper treatment of attorneys at all correctional institutions.  The Criminal Law Section was also largely supportive, individual members shared some concerns, such as with the revised rules’ record-keeping requirements and the potential limits it would place on correction officers.

Shortly after sending our comments, we attended a hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives.  Like the BBA’s comments, most groups were generally supportive, but also raised concerns.  Read more about the hearing here.

  • In September, our Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on the proposed revised SJC Rule 1:24, which addresses personal identifying information in certain court filings and documents. The SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure drafted the new rule based on the nonbinding Supreme Judicial Court Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents that took effect in 2009.  The proposed new rule would apply in the trial and appellate courts and would govern documents filed in civil and criminal cases as well as documents issued by the courts.  It differed from the Interim Guidelines most significantly by authorizing a judge to impose sanctions for non-compliance.

The Comments are generally supportive of the revisions, though they express some concerns about the addition of sanctions and their potential impacts on criminal law.  In addition, consideration of these proposed amendments prompted a second round of discussions on the larger issue of online access to court records.  We anticipate the opportunity to comment on a forthcoming rule on this issue, and are eager to take part in the debate.

While the Ethics Committee was generally supportive of the change, their comments expressed some concern about the removal of the local-counsel piece.  Though the Massachusetts rule and notice to comment explanation seem concerned only with protection of the company using foreign counsel, the Ethics Committee noted that other parties to litigation as well as the courts could benefit from the requirement for consultation with local counsel.

  • This month, we are working on finalizing comments on proposed revisions to the Massachusetts Rules of Civil Procedure (MRCP), Rules 26(b) and 1. The revisions largely track those recently adopted in the federal rules of civil procedure to include reference to proportionality in discovery.  The goal appears to be streamlining discovery and assuring that costs are kept in proportion to the overall case.  Though our comments are not quite finalized, a sneak peak at their content reveals that though many practitioners feel that the changes are minor in nature and a number were supportive, others had concerns that they could result in increased discovery motions, thus having the opposite of their intended effect.

This conclusion was similar to the implications shared at our recent program on the changes to the federal rules.  The presentation materials from this program provide some more insight on the origins and development of this proportionality language.

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The presenters, BBA Council member Chris Morrison, Jones Day, Gregory Bombard, Duane Morris, James Berriman, Evidox, and Paula Bagger, Cooke Clancy & Gruenthal, LLP, seemed in agreement that while the changes to federal discovery Rule 26 could have some implications for practice, revisions to other sections would likely have larger implications.

Thanks to all the Sections and Committees for your work on these comments.  We will continue wrapping up the comments on MRCP Rules 26(b) and 1 and will keep you informed on how these and other feedback are incorporated by the Courts into their rules.  We look forward to continuing to be part of these sorts of discussions in the future and thank the courts and agencies for making this a thorough and inclusive process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Will This Be the Year? Hearing on Longstanding BBA Probate and Family Law Bills

The BBA’s Trusts and Estates and Family Law Sections have long been amongst the most involved with policy and thus it was fitting that representatives from both were in the State House to testify on long-time BBA bills of interest on Wednesday.  The Judiciary Committee held the first of two hearings on probate and family issues and we provided testimony on three of the fifty-one bills on the agenda.

H1291 – An Act making Corrections to the adopted children’s act

The BBA been worked on this issue both through litigation and legislation.  Bear with us, as the full explanation is a bit technical, but in simplest terms, the bill changes the law to align with the SJC ruling in Bird v. BNY Mellon, a case that restored a 1958 law regarding trusts.  Got it so far?  Here is the detailed explanation prepared with the invaluable help of Brad Bedingfield of Choate and Marc Bloostein of Ropes and Gray.

In 1958, the Legislature modernized the law to presume that adopted persons are included in terms like “child, “grandchild” and “issue” unless the instrument plainly states otherwise. But it made the new law applicable only to instruments executed after its effective date.  The old law, which presumed adopted persons to be excluded unless they were adopted by the testator or settlor himself or herself, continued to apply to pre-1958 instruments. For the next 50 years, families adapted to this presumption for older trusts, making compensating and often irrevocable arrangements for adopted descendants who were not beneficiaries of these old trusts.

However, in 2008, that all changed.  Chapter 524 of the Acts of 2008 (which became effective in 2010) reached back to pre-1958 trusts and reversed the legal presumption, providing simply that the 1958 rule of construction (presuming inclusion of adopted people) would now apply to all instruments whenever executed.  This shift came as a complete surprise to the trusts and estates bar, banks, and other professional trustees, who knew nothing about the law until after its enactment and likely would have strongly opposed this sudden and disruptive change.

The problem was that from 1958 to 2008, lawyers had counseled numerous clients about how to provide for adopted children who were not benefited by pre-1958 family trusts. In many cases where such trusts benefitted only biological descendants, parents and grandparents with both biological and adopted descendants adjusted their estate plans to compensate the adopted descendants who were not thought to be beneficiaries under the pre-1958 trusts.  These plans could not always be changed to account for the 2008 change, which undermined the reasonable expectations of those who had created estate plans in the preceding decades.  It also removed existing interests in trusts by bringing in adopted beneficiaries to share in the trust benefits, unexpectedly diluting the interests of the long-standing beneficiaries and resulting in a windfall for adopted beneficiaries, who effectively got double shares where families had made corrective estate plans.

In the 2012 Bird case, in which the BBA filed an amicus brief, after one aggrieved beneficiary of a pre-1958 trust filed suit, the SJC found the 2008 reversal of the old, pre-1958 presumption to be “not reasonable” in that case.  The SJC felt that the 2008 bill violated due process by taking away vested trust interests or other property rights without serving a sufficient public interest to outweigh that loss by trust beneficiaries.  However, while the Court indicated generally that its ruling presumably would apply to other situations, it did not rule on the constitutionality of the 2008 bill in all cases.  Consequently, the 2008 law is still on the books.  Our bill, H1291 would remove it, clarifying the law and assuring that estate plans are executed as designed.  To see our full written testimony, click here.

S746 – An Act relative to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A BBA panel comprised of retired Probate and Family Court Judge Edward Ginsburg, Senior Partners for Justice, Family Law Section Co-Chair Theresa Ramos, Tracey & Associates, P.C., and Family Law Section Public Policy Committee Co-Chair, Gayle Stone-Turesky, Stone, Stone & Creem, gave riveting testimony on the need for this bill.

family law panel

Judge Ginsburg shared his illustrative experience in the 1998 case of Cricenti v. Weiland, which set the precedent for this bill.  The Judge presided over the custody claims of a Massachusetts divorce.  The mother had remarried and wanted to move to Nebraska with her children.  This was concerning to the children’s father, who asked Judge Ginsburg what would happen if the wife ignored a potential parenting agreement – would he have to go to Nebraska to litigate the case?  Judge Ginsburg assured him that was ludicrous, that Massachusetts would have continuing jurisdiction over the case, and that he would personally see to it that the mother and children would have to come to Massachusetts should there be any issues.  With this assurance, the father signed the agreement, permitting the mother to bring the children with her to Nebraska.

Seven months later, the mother went to a court in Nebraska and changed the terms of their parenting agreement.  The husband took action.  She was served in Nebraska and Judge Ginsburg was ready to find her in contempt.  However, the Court of Appeals had other ideas, holding that Massachusetts does not have exclusive continuing jurisdiction.  After a party leaves for six months, she is free to start over in another state and there is nothing Massachusetts can do about it.

Since then, the Judge has spent nearly twenty years trying to change the law.  Massachusetts is the only state left that has not adopted the UCCJEA, and thus is the only state that cedes jurisdiction to the home state of the custodial parents after six months of residency in the new state. This arrangement is extremely unfair to the “left behind” parent who is then forced to travel and litigate the issue in another state.  It also promotes forum shopping.

The purpose of the bill is to remedy these interstate conflicts.  Under the bill, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order, so long as the parent, the child, or someone acting as a parent remains in the original state.  This construction is very similar to the current laws regarding child support in all fifty states (including Massachusetts), which have an “exclusive jurisdiction” design.

The bill will lift a burden on litigants, who are more mobile in the modern world, and on the courts.  Although, under the bill, Massachusetts courts will maintain jurisdiction over some custody cases, they will avoid the contentious battles that currently arise in removal cases, where parents are fighting both to keep their children and to keep any future custody litigation close to home.

To read more about this bill, click here.

S748 – An Act relative to the elective share of surviving spouses

Some of you may remember this issue, as it too has been on the BBA’s agenda for some time.  It is another issue that doesn’t skimp on complexity.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is generally entitled to claim at least one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s relevant assets, multiplied by a percentage based on the length of the marriage – ranging from three up to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is now applied when a marriage ends in divorce.

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has since been replaced by a new bill which is similar, though not identical, to the Uniform Probate Code’s spousal elective share provision.  The ad hoc Elective Share Committee explained their proposed amendments in a 2012 report, which was submitted to the Committee at Wednesday’s hearing.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill and testified along with us on Wednesday.

spousal elective share panel

The panel consisted of:

They gave a great presentation, explaining not only the need for the bill and its complicated history, but also the technical aspects.

We also have another State House update: another BBA bill H3611 (formerly H1284), passed the House this week, following testimony by Real Estate Section Co-Chair Michael Fee, Pierce & Mandell P.C. at a May hearing.  The bill helps to protect consumers and other owners of improved real estate that violates zoning rules where a municipality has taken no enforcement action.  To learn more, read our testimony.  We will continue to track this bill as it moves through on the Senate side, and all the above discussed bills as they continue through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association