“Agreed upon Educational Expenses” and the Price of Silence.
Because “agreed upon expenses” recurs so frequently in our agreements, this recent case from the Appeals Court should be of great interest. The separation agreement, incorporated into a California divorce judgment and registered in Massachusetts, provided that each party would pay one-half of all agreed-upon educational expenses. At the evidentiary hearing on the mother’s complaint for contempt, the father admitted that no one prevented him from participating in the child’s college application process. He also never objected to the child’s decision to apply to, accept, or attend the college. In addition, he had ample resources (over $5 million) to pay for the child’s private college education. Consequently, the Probate and Family Court found that the father’s awareness, acquiescence, and ability to pay, along with his current wife’s active assistance in the college application process, was sufficient to constitute his agreement to the child’s college choice and its associated expenses which finding the appellate court affirmed. Two additional matters, secondary to our purpose here, merit some attention. The Probate and Family Court found father in contempt and awarded the wife counsel fees. However, the Appeals Court found that the expense provision was not sufficiently “clear and unequivocal” to warrant a contempt finding. Further, although the counsel fees award was premised on the contempt, the Appeals Court upheld it, pointing out both that the agreement authorized such an award and that the judge has discretion under G.L. c.208 s.38 to award such fees. Cooper v. Keto, 83 Mass. App. Ct. 798, (June 26, 2013).
Probate Court has Authority to Allocate Federal Dependency Exemptions.
After a divorce trial, a Probate and Family Court judge ordered that the non-custodial parent father is “entitled to claim both the unemancipated children as dependents on his state and federal tax returns…” The mother who was the custodial parent, appealed, arguing that a state court judge has no authority to allocate federal tax exemptions. The Appeals Court disagreed, citing in support two cases: Bailey v. Bailey, 27 Mass.App.Ct. 502 (1989) and Department. of Rev v. Foss, 45 Mass.App.Ct. 460 (1998). Notwithstanding mother’s arguments, subsequent amendments to the tax code have not changed the “vitality” of those cases, the Appeals Court noted. The appellate court did note a technicality that drafters should keep in mind – the Probate and Family Court should have placed an affirmative obligation on the mother, i.e. by directing her to execute and deliver to the father Form 8332 releasing her claim to the exemption. Iv v. Hang, 83 Mass.App.Ct. 598 (May 14, 2013)
New Child Support Guidelines.
The biggest change in Massachusetts family law in the last quarter is the new child support guidelines which were introduced a few weeks ago and become effective August 1, 2013. An in-depth analysis is not possible in the quarterly digest – Justin Kelsey, Esq., MCFM Board member, has written a detailed article in this very issue that you should read. In short: the biggest difference between the current and new Guidelines is how the formula is applied depending on how much time each parent spends with the children.