Recent family law decisions

To contact us Click HERE

Commonwealth v. Washington W (2012) The Commonwealth appeals from orders of a judge In theJuvenile Court dismissing two youthful offender indictments charging thejuvenile with statutory rape. The judge ordered the dismissal after findingthat the juvenile had suffered presumptive and actual prejudice from the"Commonwealth's willful and repeated failure to comply with discoveryorders." We affirm the judge’s dismissal of the two indictments.Minor child complained of rape by another minor child withAsperger’s. The defendant was charged with 2 counts of statutory rape and 2counts of indecent assault and battery, both of which occurred about a yearapart. The defendant had filed for Norfolk statistical reports, but theprosecution responded that it’s overly burdensome .The court citing a recentdecision ordering Norfolk to comply with the discovery request. In thatdecision, which had similar facts, the court held “‘valid statistical evidence’demonstrating disparate treatment of a protected group ‘may be relevant and material todemonstrate’ selective enforcement (emphasis added).” Ultimately, the discoverydateline was extended and the commonwealth filed for a motion for aninterlocutory appeal. Two of the 4 charges were ultimately dropped because alower court judge had said there was insufficient evidence and the grand jurywas “tainted”. The court also affirmed the discovery order, making a few minorchanges. The discovery issues went up on appeal based on the factthat the Commonwealth did not feel that they had to produce the discoverybecause they were not going to prosecute the matter anymore. The lower courtordered the discovery and the Commonwealth appealed. On appeal, the court walksthrough the elements of indictment of a youthful offender, which are (1) thejuvenile was between 14 and 17 at the time of the offense; (2) the offense, ifcommitted by an adult, is punishable by imprisonment in State prison; and (3)the juvenile has either previously been committed to the Department of YouthServices, or “the offense involves the infliction or threat of serious bodilyharm,” or the person committed a violation of G.L. c. 269, s. 10(a), (c), or(d), or s. 10E. GL.c. 119, S. 54. They concluded that the judge erred indismissing the complaint. However, when they examined the sufficiency of the grandjury proceedings, they found that the lower court judge was proper indismissing the complaint due to a tainted grand jury proceeding because theprosecutor did not present exculpatory evidence. The court concluded that theprosecution engaged in willful, deliberate and repeated failure to comply withthe discovery orders. They further stated that the lower court judges did notabuse their discretions in dismissing the complaints without prejudice becauseit was the proper remedy in this case.


 Marina W. CESAR vs. Richard R. SUNDELIN.The question before the appeals court was whether “—individing a marital estate that includes a family business-a judge of theProbate and Family Court has the authority to enjoin the party that no longerwill have any ownership in the business from operating a competing business.  We hold that a probate judge does have suchauthority and therefore remand this matter for further proceedings."In the context of a divorceproceeding, the husband and the wife both sought sole ownership of a familybusiness, a feed and grain store. The probate judge awarded the business to thehusband. With the business and certain other property distributed to thehusband, the judge declined to give the husband credit for a gift of equityworth approximately $200,000 that the husband's parents had given the couple.  In an effort to shore up the value of theexisting good will in the business, the husband requested that the judge orderthe wife, a veterinarian, not to operate a competing business. The judge deniedthe request on the sole ground that he lacked authority to grant such relief.On appeal, the appellate courtcited the wide discretion of probate and Family Court Judges.  “We begin by noting that the Legislature hasgiven probate judges broad authority with respect to the division of maritalproperty.”  The court went on to citecases from other jurisdictions upholding valid non-compete agreements.  The case was remanded for further proceedingsas to whether the non-compete agreement was the appropriate remedy forprotecting the husband's goodwill in this business.  “We state no position as to whether thehusband is entitled to a non-compete order and, if so, how broad such an ordershould be.”  Further, the quote went onto say that they would not examine whether the non-compete issue was raised ina timely manner by the husband, as the wife argued that it was not and shouldbe waived.