Rosen v. Rosen (Lawyers Weekly No. 11-166-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-848 Appeals Court REGINA ROSEN vs. SCOTT ROSEN. No. 15-P-848. Essex. April 8, 2016. – November 22, 2016. Present: Kafker, C.J., Wolohojian, & Maldonado, JJ. Divorce and Separation, Child support, Modification of judgment, Child custody. Parent and Child, Child support, Custody. Contempt. Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on January 17, 2001. Complaints for modification and contempt, filed on August 2, 2011, and October 12, 2012, respectively, were heard by Susan D. Ricci, J.; a motion for reconsideration, filed on July 7, 2014 was heard by her, and judgment was entered by her. Mary-Ellen Manning for the mother. Mark A. Perkins for the father. WOLOHOJIAN, J. Today we reach the question left open in T.M. v. L.H., 50 Mass. App. Ct. 856, 861 (2001), namely, whether “a judge, in compelling circumstances of an equitable nature, and without contravening G. L. c. 119A, § 13(a), may apply a credit in calculating child support arrearages to reflect payments made in a manner other than as directed by the original [child support] order.”[1] We conclude that, despite the statutory prohibition against retroactive modification of child support judgments “except with respect to any period during which there is pending a complaint for modification,” G. L. c. 119A, § 13(a), inserted by St. 1987, c. 714, § 1, a judge may — in certain very limited circumstances — grant and apply such an equitable credit to offset a child support arrearage accrued during a period when there was no pending complaint for modification. Background. After fourteen years of marriage, the parties divorced on July 14, 2003, pursuant to a judgment of divorce which incorporated the parties’ separation agreement. The separation agreement provided, in pertinent part, that the mother would have primary physical custody of the parties’ three children, Elliot, Ari, and Hannah, and that the father would pay monthly child support in the amount of $ 4,500. The separation agreement also contained several provisions relating to the children’s college education. In one of those provisions, the parties “agree[d] that the choice of college or other institutions shall be made jointly, with due regard to the children’s wishes, welfare, needs and aptitudes, and the parties’ respective financial circumstances. Neither party shall make commitments to a . . . college . . . without first notifying […]
In the Matter of the Estate of Rosen (and a companion case) (Lawyers Weekly No. 11-165-14)
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 13-P-221 Appeals Court IN THE MATTER OF THE ESTATE OF FRED S. ROSEN (and a companion case[1]). No. 13-P-221. Suffolk. December 10, 2013. – December 30, 2014. Present: Berry, Meade, & Agnes, JJ. Will, Testamentary capacity, Power of appointment, Construction. Devise and Legacy, Power of appointment. Probate Court, Attorney’s fees. Practice, Civil, Attorney’s fees, Summary judgment. Power of Appointment. Petition for probate of a will filed in the Suffolk Division of the Probate and Family Court Department on June 8, 2005. Complaint in equity filed in the Suffolk Division of the Probate and Family Court Department on October 14, 2005. After consolidation, the cases were heard by Elaine J. Moriarty, J., on motions for summary judgment; the cases were heard by her; and a motion for attorney’s fees was considered by her. Susan E. Stenger for William P. Girard. Michael H. Riley for Rachelle A. Rosenbaum & others. BERRY, J. William P. Girard,[2] will contestant and plaintiff in an equity action consolidated in the Probate and Family Court, appeals from (1) a decree allowing the will of Fred S. Rosen (decedent or testator), (2) a judgment dismissing Girard’s complaint in equity against Mayya Geha, Mirna Geha Andrews, and Tanya Geha (Geha sisters), which challenged the decedent’s beneficiary designation for his Teachers Insurance and Annuity Association of America – College Retirement Equities Fund (TIAA-CREF) account, (3) a judgment on a counterclaim brought in the equity action by the Geha sisters that held the TIAA-CREF beneficiary designation valid. Girard first argues that the testator lacked testamentary capacity when, on May 12, 2005, the testator executed his will and changed the beneficiary designation on his TIAA-CREF account. He also argues that regardless of the allowance of the will, article II (tangibles remainder provision) is invalid for lack of sufficiently identifiable beneficiaries. He further contends that the award of attorney’s fees should be vacated because it is excessive and was entered before he was allowed an opportunity to respond to the petition. We affirm. Background. The testator, who had been a physician, never married, he had no children or siblings, and his parents were both deceased. However, during his seventy-four years he formed many close friendships with various colleagues and their families,[3] as well as Girard and his brother (John Girard), long-time patients he had […]