F.A.P. v. J.E.S. (Lawyers Weekly No. 11-072-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-758 Appeals Court F.A.P. vs. J.E.S. No. 14-P-758. Middlesex. February 5, 2015. – June 30, 2015. Present: Vuono, Milkey, & Blake, JJ. Civil Harassment. Harassment Prevention. Protective Order. Rape. Minor. Child Abuse. Witness, Cross-examination. Evidence, Hearsay. Practice, Civil, Hearsay. Complaint for protection from harassment filed in the Middlesex County Division of the Juvenile Court Department on March 21, 2013. The case was heard by Gwendolyn R. Tyre, J. Dennis R. Brown for the defendant. Kimberly Ann Parr for the plaintiff. MILKEY, J. At an ex parte hearing, a Juvenile Court judge issued a temporary harassment prevention order against the defendant, an eleven year old boy. See G. L. c. 258E, § 5. The order was issued based on allegations that the defendant had digitally raped the plaintiff, the seven year old girl on whose behalf the harassment complaint was filed. Following an evidentiary hearing, the judge extended the order for one year.[1] On appeal of the order issued after hearing,[2] the defendant argues that the evidence of “harassment” was legally insufficient, and that the judge erred in multiple additional respects: by applying an erroneous interpretation of the statute, by improperly admitting hearsay testimony, and by unduly constraining his ability to cross-examine the plaintiff’s witnesses. Although we are unpersuaded by most of the defendant’s arguments, we agree that the judge applied an incorrect view of the law. We therefore remand this matter for further consideration. 1. Background.[3] The parents of the two children were close family friends, and their families spent a considerable amount of time together. During the afternoon of January 25, 2013, a Friday, the defendant and his mother arrived at the plaintiff’s home where they spent the next several hours. At one point, the defendant and girl were unsupervised together on the second floor.[4] This caused the plaintiff’s mother some concern because the children had, on one occasion in the past, engaged in some inappropriate touching.[5] A few minutes after the plaintiff’s mother called for the children to come downstairs, the plaintiff reported that she was bleeding from her vaginal area. Both mothers examined her in a bathroom and confirmed that she was in fact bleeding. The plaintiff’s mother called a doctor to discuss the matter, and eventually brought the plaintiff in for an appointment the following Monday. The remainder of […]
L.J.S. v. J.E.S. (Lawyers Weekly No. 10-024-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11093 L.J.S. vs. J.E.S. Norfolk. October 2, 2012. ‑ February 8, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Divorce and Separation, Alimony, Child support, Amendment of judgment. Taxation. Parent and Child, Child support. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on December 10, 2007. The case was heard by Eliot K. Cohen, J., and a motion to alter and amend judgment was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. W. Sanford Durland, III, for the defendant. Adam S. Avratin (Karen J. Wayne with him) for the plaintiff. IRELAND, C.J. We granted the defendant husband’s application for further appellate review limited to the issue whether the Probate and Family Court judge erred by not considering the husband’s potential Federal tax consequences pursuant to I.R.C. § 71(c)(2) (2006) when he denied the husband’s motion to alter or amend the alimony provisions of the divorce judgment. In an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court affirmed. J.E.S. v. L.J.S., 79 Mass. App. Ct. 1117 (2011). Because we conclude that, if presented with evidence of potential tax consequences, a judge should consider those consequences when creating or modifying alimony provisions in a divorce instrument, we vacate the order on the husband’s motion to alter or amend the divorce judgment to the extent that the judge did not consider the uncertainty of potentially unfair tax consequences, and remand the case for further proceedings consistent with this opinion. Statutory scheme. Under I.R.C. § 71(c)(2) of the Internal Revenue Code, alimony payments may be recharacterized as child support for Federal tax purposes: “[I]f any amount specified in the [divorce] instrument will be reduced – “(A) on the happening of a contingency specified in the instrument relating to a child (such as attaining a specified age, marrying, dying, leaving school, or a similar contingency), or “(B) at a time which can clearly be associated with a contingency of a kind specified in subparagraph (A), an amount equal to the amount of such reduction will be treated as an amount fixed as payable for the support of children of the […]