SIGNIFICANT CASES - ATWOOD & CHERNY, P.C. - ATWOOD

SIGNIFICANT CASES

Atwood & Cherny has been involved in a number of cases at the trial level which have gone on for further appellate review before the Massachusetts Appeal Courts and the Massachusetts Supreme Judicial Court. These cases have established precedent in many areas of family law including the enforceability of prenuptial agreements, alimony and parenting issues.

Young v. Young, 81 N.E. 3d 1165 (2017)
In a case of first impression, the Massachusetts Supreme Judicial Court addressed the issue of percentage based alimony awards under the new Alimony Reform Act. The wife, represented by Atwood & Cherny partners David E. Cherny and Erin M. Shapiro filed an action for divorce after a long term marriage. The case clarified and defined the interrelationship of “need” and “ability to pay” in alimony determinations, and the availability of variable and self-effectuating modifiable alimony awards, especially in high income cases.

Van Arsdale v. Van Arsdale, 477 Mass. 218 (2017)
In a case of first impression, the Massachusetts Supreme Judicial Court addressed the issue of the retroactive application of durational limitations in alimony awards under the new Alimony Reform Act to cases that pre-dated the law’s effective date. Atwood & Cherny partners David E. Cherny and Erin M. Shapiro represented the wife in a Modification proceeding brought by her former husband seeking to terminate alimony on the basis that it exceeded the new durational limitations of the Act. The case clarified and defined the constitutionality of applying the new durational limits to cases that pre-dated the effective date of the Act, as well as the parameters that would allow a court to deviate from application.

Rodman v. Rodman, 570 Mass. 539 (2015)
In a case of first impression, the Massachusetts Supreme Judicial Court held that G.L. c. 208, § 49(f) (a section of the Alimony Reform Statute that alimony “shall terminate upon the payor attaining the full retirement age”) does not apply retroactively to alimony orders in divorce judgments that entered before March 1, 2012. The Rodmans were divorced in April 2008 after a 39 year marriage. Their merged separation agreement provided for payment of alimony until the death of either party or the wife’s remarriage. The husband, represented by Atwood & Cherny (David E. Cherny, Esq. and Thomas D. Ritter, Esq.) filed a complaint for modification under the Alimony Reform Statute when he reached 66 years old. The trial court, uncertain of the applicability of the Alimony Reform Statute to judgments that entered before March 1, 2012, submitted this issue to the Appeals Court on a reservation and report. The Supreme Judicial Court granted an application for direct appellate review.

Zaleski v. Zaleski, 469 Mass. 230 (2014)
This case involved an action for divorce tried by Atwood & Cherny (David E. Cherny, Esq. and Catharine V. Blake, Esq.) just after the effective date of the Alimony Reform Statute. The lower court ordered the husband to pay rehabilitative alimony to the wife rather than general term alimony after a marriage of more than 16 years. The lower court also excluded the husband’s bonus from the calculation of alimony and required the wife to maintain a life insurance policy as security for her obligations under the judgment. The wife appealed the award of rehabilitative alimony; the exclusion of the husband’s bonus in the calculation of alimony; and the provision that she obtain life insurance. The Massachusetts Supreme Judicial Court took the case up on Direct Appellate Review sua sponte. Atwood & Cherny continued to represent the husband on appeal. The SJC held that it was not an abuse of discretion for the lower court to award rehabilitative alimony; that it was error not to use the husband’s entire income in the calculation of alimony; and that there was no basis for the judge’s findings to warrant the wife maintaining life insurance. This case is mostly cited for two propositions: (1) that a judge has discretion in deciding whether to award rehabilitative alimony rather than general term alimony so long as she has given appropriate consideration to the factors identified in G.L. c. 208, § 53(a); and (2) that if a party’s employability in the near future is a realistic prospect, rehabilitative alimony might, with other considerations, be appropriate. It also contains a review and analysis of the type of evidence a trial court may review to establish employability.

Vedensky v. Vedensky, 86 Mass. App. Ct. 768 (2014)
In a case of first impression, Atwood & Cherny (Mary Beth L. Sweeney, Esq. and Catharine V. Blake, Esq.) represented the wife in defense of a complaint for modification in which the husband was seeking an award of alimony more than four years after the parties were divorce. The wife was a doctor who had a primary full-time job and also worked per diem moonlighting at a hospital post-divorce. In evaluating her ability to pay alimony, the trial court included the income from her second job in her total income available for alimony purposes, despite the presumption of G.L. c. 208, § 54(b) that provides that income from a second job not be considered when a payor also works a full-time job. The trial court also found that the wife could earn more income with additional moonlighting and awarded the husband two years of rehabilitative alimony. Atwood & Cherny were successful on appeal in having the Appeals Court vacate the alimony award on the basis that the trial court did not find any facts that amounted to a rebuttable presumption against include the wife’s income from her second job. The wife was working a second job while being the primary caretaker of the parties’ children and receiving no financial contribution from the husband (other than Social Security payments on his behalf). The Appeals Court concluded that “a party who works at a full-time or full-time equivalent job may not be found to be ‘unemployed’ or ‘underemployed’ based on the level of compensation received from a second job obtained ‘after entry of the initial order’…’”

Pierce v. Pierce, 455 Mass. 286 (2009)
In a case followed closely by lawyers, legislators and litigants, the Massachusetts Supreme Judicial Court ruled that there should not be a rebuttable presumption that alimony should automatically terminate when a former spouse reaches a customary age of retirement, but rather, voluntary retirement at a customary age is one important factor that a court should take into account when deciding whether to terminate or reduce alimony at that time.

Previously, Carneice and Rudolph were divorced in 1999 after 32 years of marriage and two children. At the time, Rudolph was earning in excess of $450,000 as a partner at his law firm. In a separation agreement entered into by the parties, Rudolph agreed to pay Carneice $110,000 per year until his death, her death, or her remarriage.

Atwood & Cherny (Mark T. Smith and David E. Cherny) represented Carneice Pierce in an action brought by Rudolph F. Pierce, seeking to terminate his alimony obligation to Carneice on the basis of his voluntary “retirement” as a partner at his Washington, D.C. law firm. Rudolph, a former Massachusetts Superior Court Judge and U.S. Magistrate, became “Of Counsel” to his law firm, entitling him to certain ongoing benefits and compensation in the amount of $250 per hour for any work that he performed, although he had no plans to do so.

The trial court reduced Rudolph’s alimony obligation to $42,000 per year, rejecting his argument that his obligation should end. In particular, the judge found, at the time of trial, that Carneice had recently left her job due to her age (she was 64 at the time of trial) and the increased demands of travel and responsibilities without an increase in salary, that Rudolph continued to have an ability to work at the rate of $250 per hour in his “Of Counsel” position at his law firm and that the facts of the matter demonstrated an ongoing need for support on behalf of Carniece.

In upholding the trial court’s decision, the Supreme Judical Court stated that “…[E]ven in the context of a good faith retirement, a judge must reach a fair balance of sacrifice between the parties, based on all the factors set forth in G.L.c.208, sec. 34. This may mean that overriding or counterbalancing needs of the recipient spouse require the judge to consider the retiring party’s continued earning capacity (assuming the party remains in good health) in deciding the motion for modification, even if the practical consequence of considering continued earning capacity is to delay the support provider’s retirement or to require the provider to find part-time employment.” The SJC further held, “[t]he multiple factors set forth in G.L. c. 208, § 34, and the obligation of a judge deciding an alimony judgment to consider all the factors, including ‘the opportunity of each [party] for future acquisition of ... income,’ reflect the complexity of the alimony decision, the unique set of circumstances posed by every case, and the need to fashion an alimony judgment that imposes a fair balance of sacrifice in each case. Section 34 does not place any one of its mandatory considerations above any other; constrained by its directives, we have declined to do so on our own.”

Austin v. Austin, 445 Mass. 601 (2005)
The Massachusetts Supreme Judicial Court reversed both the trial court and Appeals Court decisions in this case and affirmed the ability of parties to permanently waive alimony in a prenuptial agreement. Atwood & Cherny (Jacob M. Atwood) represented Craig Austin who entered into a prenuptial agreement prior to marrying Donna Austin which provided, amongst other things a waiver of any claims to alimony by Donna. Under the terms of the divorce judgment, enforcing those provisions of the parties’ prenuptial agreement pertaining to property division, Mrs. Austin received, among other things, the marital home valued at $1,275,000, $525,000 in cash, her Lexus automobile, $500 per week in child support and $1,000 per week in alimony. The Supreme Judicial Court found the prenuptial agreement to be enforceable, upholding the waiver of alimony and reversing the alimony award. In doing so, the Supreme Judicial Court followed its earlier decision in DeMatteo v. DeMatteo (2002) and dismissed Mrs. Austin’s contention that the prenuptial agreement that she signed (which included a permanent waiver of alimony) somehow "…stripped her of all marital interests…" and further affirmed that the fact that a prenuptial agreement may "…leave one spouse in an essentially different lifestyle is not a valid basis for determining that the agreement was valid…." The SJC reaffirmed that such agreements made in the contemplation of marriage, waiving rights to property division and alimony, will be enforced absent the "…mental or physical deterioration of the contesting party…" or "…erosion of promised support by inflation…" that would lead a court to determine the agreement to be unconscionable.

DeMatteo v. DeMatteo, 436 Mass. 18 (2002)
Twenty years after the leading case on prenuptial agreements was decided by the Massachusetts Supreme Judicial Court in Osborne ( Jacob Atwood represented the wife in that case - see Osborne v. Osborne, 384 Mass. 591 (1981) ), the SJC took another opportunity to clarify and expand the standard by which prenuptial agreements would be judged. Atwood & Cherny represented Mr. DeMatteo, who had entered into a prenuptial agreement with his wife just prior to their marriage and sought to have it enforced at the time the marriage ended. The trial judge found the agreement at trial to be unenforceable, and the firm filed an application for direct appellate review with the Supreme Judicial Court. In a unanimous decision written by the Chief Justice of the Supreme Judicial Court, the court adopted Atwood & Cherny's argument that the trial court had applied the wrong legal standard to the enforceability of the prenuptial agreement and reaffirmed and expanded upon the purpose of prenuptial agreements, their difference from separation agreements and how courts and lawyers should approach them in their application for the future.

Krock v. Krock, 46 Mass. App. Ct. 528 (1999)
The wife filed a complaint for contempt, alleging that Atwood & Cherny's client violated the divorce judgment. The court found that Atwood & Cherny's client did not violate the judgment. The court also found that there were several unsubstantiated claims by the wife and awarded Atwood & Cherny's client counsel fees incurred in defending the contempt action. On appeal, the Massachusetts Appeals Court affirmed the court's award of counsel fees to Atwood & Cherny's client for successfully defending a frivolous contempt action.

Cricenti v. Weiland, 44 Mass. App. Ct. 785 (1998)
The wife was a resident of Massachusetts and the husband was a resident of New Hampshire. The parties entered into an agreement modifying a divorce judgment, allowing the wife to move with the parties' minor children from Massachusetts to Nebraska. As part of the agreement, the parties agreed that Massachusetts would retain exclusive jurisdiction over the custody and visitation issues of the children. Approximately 1-1/2 years later, the Wife filed a petition in Nebraska to modify the terms of visitation. The Massachusetts court enjoined the wife from proceeding in Nebraska. The court also denied the wife's motion to dismiss based on the court's lack of jurisdiction under the Massachusetts Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act. On appeal, the Massachusetts Appeals Court reversed the lower court, holding that in interstate custody disputes under the Uniform Child Custody Jurisdiction Act and the Parental Kidnaping Prevention Act, Massachusetts does not reserve jurisdiction under a continuing exclusive jurisdiction provision.

Kendall v. Kendall, 426 Mass. 238 (1997), cert. denied, 118 U.S. 2369 (1998)
Atwood & Cherny represented the wife. She and the parties' three minor children were Orthodox Jews. The Husband was a member of a Christian-Bible based religion, whose exposure to the children of his religious beliefs was found by a Guardian Ad Litem and the trial court to cause them harm. As a result, the trial court restricted the husband from exposing the children to his religion. The Massachusetts Supreme Judicial Court unanimously affirmed the lower court's prohibitions, declaring that the husband's constitutional rights were not violated and that protecting the children's best interests was a compelling interest sufficient to curtail the husband's individual liberties. Atwood & Cherny also successfully defeated the husband’s Petition for Certiorari to the United States Supreme Court.

Rosenberg v. Rosenberg, 33 Mass. App. Ct. 903 (1992)
The parties were married for 29 years. The trial court found that the marriage was a partnership with each party contributing and the marital estate totaled approximately 22 million dollars. The trial court awarded the wife substantive cash in capital assets and noncash assets. The trial court also awarded the wife alimony of $2,000 per week. The husband appealed the alimony provision of the divorce judgment, claiming that Atwood & Cherny's client's needs could be met from the annual interest generated from the capital assets awarded to her. The Massachusetts Appeals Court affirmed the trial court's award of alimony to the wife, emphasizing that need is the primary consideration in establishing alimony to allow a dependent spouse to maintain a similar standard of living accustomed to during the marriage.

Bacon v. Bacon, 26 Mass. App. Ct. 117 (1988)
The Massachusetts Appeals Court affirmed the trial court's divorce judgment which awarded approximately $3.6 million of the marital estate to the wife and $200,000 to the husband with no alimony. The Appeals Court affirmed the divorce judgment based on the fact that during the twelve year marriage, the majority of the marital estate was largely acquired from the wife's inheritance. In addition, she used her inheritance to support the family and her inheritance appreciated in value due to her father's investment advice. Also, the husband played little role in the appreciation of the assets, used his income for his own purposes and relied on the wife to support him.

Wansong v. Wansong, 395 Mass. 154 (1985)
During a divorce action, where both parties filed complaints for divorce, the husband of Atwood & Cherny's client refused to answer questions at his deposition regarding his relationship and financial arrangements with a woman and instead, invoked his privilege not to incriminate himself under the Fifth Amendment of the United States Constitution and Article 12 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts. The lower court ordered the husband to respond to questions but the husband asserted that he would continue to not answer the questions if asked at his deposition. Thereafter, the trial court imposed discovery sanctions against the husband. On appeal, the Massachusetts Supreme Judicial Court affirmed the lower court's sanctions, which prohibited the husband, personally, from introducing evidence relating to an award of support, division of marital assets or custody of the parties' minor child; dismissed the husband's complaint for divorce; struck the husband's financial statement; and, prohibited him from testifying regarding his financial circumstances and the conduct of the parties during the marriage. Atwood & Cherny also succesfully defended the husband's petition to the United States Supreme Court.

Dominick v. Dominick, 18 Mass. App. Ct. 85 (1984)
The Massachusetts Appeals Court was confronted for the first time with the issue of whether an oral separation agreement read into the court record, with the express intention of the parties that the agreement is to be reduced in writing and signed, is binding, absent a formal signed agreement; and, whether if such oral agreement is binding, a party may recant it before the entry of a judgment of divorce, incorporating the terms of that agreement. The parties suspended a trial on their complaints for divorce to conduct settlement negotiations. After the parties had agreed to a settlement, counsel read into the court record a detailed recitation of their agreement, where the parties each testified that they understood the agreement, there was full disclosure of each other's financial information and entered into the agreement freely and voluntarily. The wife of Atwood & Cherny's client subsequently repudiated the agreement and requested a new trial. The Massachusetts Appeals Court affirmed the trial court's denial of the wife's request and sustained Atwood & Cherny's contention that a court has the ability to enforce the terms of an oral settlement agreement.

Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981)
The husband and the wife, married for 11 years, had three children, who were ages 10, 7 and 3 at the time of the trial. The trial court awarded Atwood & Cherny's client sole custody of the parties' three minor children after the court found that the parties had basic fundamental differences on the major areas of child rearing and day-to-day decision making as well as finding that the wife was the primary caretaker. On appeal, the Massachusetts Appeals Court affirmed the trial court's custody award to the wife, declaring that a joint custody award is appropriate only when parents are able to mutually agree on the basic issues in child rearing and willing to cooperate in making decisions for their children.

Osborne v. Osborne, 384 Mass. 591 (1981)
The parties executed a premarital agreement a few hours before the marriage, which provided that neither party may be entitled to the other's property and that they each waive alimony in the event of divorce. At the time of the signing of the prenuptial agreement, the wife was represented by counsel while the husband did not have representation. In addition, Atwood & Cherny's client was an heiress to a family fortune of approximately 17 million dollars and the husband did not have assets of significant value. The trial court upheld the prenuptial agreement. On appeal, the Massachusetts Supreme Judicial Court declared that a prenuptial agreement that regulates the rights of the parties in the event of a divorce is valid. The Supreme Judicial Court also announced that in determining the validity of a prenuptial agreement, there must be (1) full disclosure of the parties' net worth at the time of executing the agreement and free from, duress or undue coercion; (2) the agreement must be fair and reasonable at the time of the execution of the agreement; and (3) the agreement must be fair and reasonable at the time of enforcing the agreement and that it may be modified in certain circumstances, such as if a spouse would become a public charge or where a provision affecting the rights of a minor child is not in the child's best interests. Consequently, the Court enforced the prenuptial agreement and also determined that the husband did not enter into the agreement under duress even though he executed it only a few hours before the wedding and was not represented by counsel.

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