Tammaro v. O'Brien

Feb 19, 2010 14:24

The Appeals Court just came out with their decision on Tammaro v. O'Brien, 2010 WL 445665 (February 11, 2010).  The decision is notable not so much for the primary issue addressed (can a complaint for modification of a divorce judgment (G.L. c.208, s20) address a removal issue (G.L. c.208, s30)?)  but for the unblinking manner in which it addressed a complaint for modification filed right after the judgment for divorce and when the facts which supported the modification largely existed before the divorce judgment was reached.

Some background on legal definitions:
A judgment of divorce is supposed to resolve all issues between the spouses, including child-related issues.
A complaint for modification requires a significant and material change of facts since the date of divorce, or else it can be dismissed.
A complaint for removal is filed when the custodial parent asks to move with the children out of the state.

Here are the facts, which you have to take as a given (no hypotheticals here, folks):
     These folks had four children between them.  A judgment of divorce nisi entered on 6/15/05 (remember that date). The parties had reached an agreement, which included a "comprehensive physical parenting plan" and the appointment of a neutral third party 'parenting coordinator' to mediate parenting issues.  The agreement was also signed on 6/15/05.

The mother knew in early April 2005 that she might want to move with the kids from Mass. to New Hampshire.  She had signed a purchase & sale agreement on 4/7/05; a binding contract to purchase the house.  She told father she was considering moving; father said he would not consent, requiring her to seek removal.
      On or about 6/15/05, the parties reached an agreement.  The agreement would have (the decision did not say, but this is how it works) resolved all issues, financial and child-related, and apparently had a fairly thought-out section concerning custody of the children.  At the time of the signing of the agreement, mother knew about the move to NH and that she was committed to buying a house in NH.  She had not filed anything asking to move.
      On 6/21/05, only 6 days later,  mother filed a complaint for modification seeking removal.  Ouch.  To a lawyer, this is shocking.  Most spouses settle cases to avoid further litigation, and here's another case popping up only six days later.

The weird thing is that the Court says nothing about the change of circumstances necessary to support the complaint for modification.  What happened in the intervening six days?

If I had represented Father, I might well have advised him to sign the agreement and reassure him that she could not move to NH without new facts, arising after the date of divorce.  Why?  Because if the mother's request to remove the children to NH was based on facts which existed prior to the date of the divorce agreement, she would have no legitimate legal claim.    Her complaint should have been dismissed.
     The burden should have been on mother to either (a) reserve rights in the agreement to seek a removal or (b) not settle the case until the removal issue was addressed.  Divorce agreements are supposed to mark the end of litigation.   One spouse negotiated in good faith and, I would not be surprised, had made concessions based on the principle that litigation was over.   The other one runs into court six days later and files a new case.

Now, the father should have filed a motion to dismiss the complaint for modification on the basis that there were no changes of circumstances in that six day period.   Maybe he did, and lost, and for some reason did not appeal the loss.  I can't imagine why; according to the decision, he appealed a clear loser of a procedural issue.

It is also possible that there was some reservation of mother's rights to seek removal, and that father had some incentive to settle the property division and alimony separately from the removal issue. There's no way to know this, of course.  But this is the only explanation I can think of for why the father did not move for dismissal and may have permitted mother to preserve her rights to seek removal.

The practice lesson here is that it is apparently necessary to advise clients that a divorce agreement may not be as final as previously thought.  If a removal is in the wind at the time of an agreement, the burden may be on the spouse withholding consent (instead of the spouse seeking removal) to put in the agreement that rights concerning the removal are being addressed in the divorce agreement.  Otherwise, the divorcing client may be in for a shock just a few days later.

family law, lawyering

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