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Healey, Deshaies, Gagliardi & Woelfel, PC
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Happy Halloween from the Witchy Women of Healey, Deshaies, Gagliardi & Woelfel, PC
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Solen is an incredible attorney. She helped me through an extremely nasty year and a half battle between myself and my rather insane ex-spouse, who had an equally insane attorney representing him. She is very intelligent and knowledgeable in what seems like all areas of family law. She gave 100% personal attention, making certain I understood exactly what was happening from beginning to end. She really knew how to brighten the situation by easing my concerns and anxiety throughout the entire ordeal with her prompt, professional and compassionate demeanor. I can’t say enough of how wonderful she is.

https://www.avvo.com/attorneys/01913-ma-solen-moriarty-4571282.html

Interested Party in a Massachusetts Guardianship
By Solen G. Moriarty, Esq.

In a recent Supreme Judicial Court decision, Guardianship of B.V.G., the Court clarified the law concerning who is an “interested party” for purposes of intervening in guardianship proceedings, reminding us that the Massachusetts Uniform Probate Code favors “limited guardianships in order to maximize the liberty and autonomy of persons subject to guardianship.” S.J.C.-11925 (2016).

In B.V.G., the maternal grandfather sought to intervene in the permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.’s father, who was appointed B.V.G.’s temporary guardian when she was eighteen years old. Guardianship of B.V.G., 87 Mass. App. Ct. 250 (2015). The father, who had full legal and physical custody, precluded contact between B.V.G., a young woman with intellectual disabilities, and her maternal relatives. Id. The maternal grandfather argued and presented facts in the trial and appeals court that B.V.G. reached out to him on several occasions expressing a desire to have a relationship with him and that their relationship would be in B.V.G.’s best interest. Id.

The father did not suggest any reason that B.V.G. should not be allowed to maintain a relationship with her grandfather. Id. Rather, the father maintained, and the lower courts agreed, that as B.V.G.’s legal guardian, he has the right to determine those with whom she associates. Id. The trial court and the appeals court concluded that the grandfather was not an “interested person” within the meaning of G.L. c. 190B § 5-306(c), denying the grandfather’s motion to intervene as a matter of right. The motion judge suggested that the definition of “interested person” applicable to all guardianships “hints of a financial, but not visceral, stake in the underlying proceedings.”

The S.J.C. reversed the lower court rulings, finding that an “interested person” as defined by G.L. c. 190B §1-201, within the meaning of G.L. c. 190B § 5-306(c), is a person “interested in the welfare of the incapacitated person.” B.V.G..” S.J.C.-11925 (2016). The S.J.C. explained that the “interest” required to qualify as an “interested person” might be viewed both as a potential intervener’s own interests in protecting the incapacitated person’s estate and as an interest in the well-being of the incapacitated person. Id.

As a guardianship proceeding is designed to effectuate the best interests of the incapacitated person, one may show that a continued relationship with an incapacitated individual, against the guardian’s wishes, is possible if it would be in the incapacitated person’s best interest. The court reasons that an “interested person” eligible to intervene in such matters must include those individuals who demonstrate a sufficient interest in the incapacitated individual’s welfare. Id.

The S.J.C. moreover references the comments in the Uniform Probate Code, which indicate a “legislative preference for encouraging an incapacitated person and other “interested person[s]” to advocate to the court to safeguard the liberty interests of the incapacitated person.” Id.

Probate and Family Court Practitioners,

Please make note of this invitation to comment:

As many of you know, the Administrative Office of the Probate and Family Court, along with the Hon. Randy J. Kaplan, have taken steps to revamp the process for the appointment of guardians ad litem under Category E and F. These steps included having list members submit reapplications with writing samples and in-person interviews with new applicants, along with new training requirements. As we conclude this process, we are inviting members of the legal community to comment about their experiences with guardians ad litem who have been appointed by the court.

Our expectation is that this process will result in a more professional and experienced list of eligible GALs in which all can feel confident.
Please provide any comments by May 31, 2016. Please forward your comments to GALcomments@jud.state.ma.us. We appreciate your assistance with this process.

All comments will remain confidential.

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A CELEBRATION OF THE PROFESSION

The BBA Law Day Dinner is the largest annual bench bar event in Massachusetts, celebrating significant contributions to our profession, our justice system and our city.

"On this Law Day, then, we honor not only the principle of the rule of law, but also those judges, legislators, lawyers and law-abiding citizens who actively work to preserve our liberties under law."

--President Dwight D. Eisenhower, 1958
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MASSACHUSETTS FAMILY LAW UPDATE: 
Stock Option Income and Child Support
By Solen G. Moriarty, Esq.

The Appeals Court, in Hoegen v. Hoegen, 43 N.E.3d718 (2016), recently held that income received from employer-issued vested restricted stock units (RSU) is considered gross annual income subject to inclusion when calculating child support. In this case, the Mother appealed from a Trial Court decision holding that a separation agreement in which the Mother acknowledges that Father participates in a stock plan through his employment and waives all rights, title and interest in those accounts, precludes the inclusion of income derived from the RSUs for child support purposes.  The parties were divorced by a judgment of divorce nisi, incorporating by reference a separation agreement, which survived as an independent contract, except as to matters relating to the children.

Child support is controlled by G.L. c. 208 § 28 and the Massachusetts Child Support Guidelines.  Section I-A of the Guidelines defines income as “gross income from whatever source” and lists twenty-seven sources of income.  The Appeals Court in Hoegen notes that while income derived from stock or RSUs is not specifically included in this list, the guidelines state that “any other form of income or compensation not specifically itemized” may be included. Massachusetts Child Support Guidelines I-A(28).

The Appeals Court asserts that the Courts have held that income derived from stock options is considered “gross annual employment income” for the purpose of calculating child support orders. Wooters v. Wooters, 74 Mass. App. Ct. 839, 843, 91 N.E.2nd 234 (2009).  The Wooters Court rationalized the expectation that income realized from the exercise of stock options should be treated as gross employment income, stating “it is commonly defined as part of one’s compensation package, and it is listed on W-2 forms and is taxable along with the other income.”  The Appeals Court in the Hoegen case maintained this position finding that the Father received, as part of the compensation package with his employer, a certain number of RSUs and that Father regularly earned income from his employer-issued RSUs.  Therefore, as a result, RSU income should have been included as gross income along with his base salary and bonus compensation in calculating his child support obligation.

The Father in this case contends that the Mother waived all interest in his RSU income at the time of their original divorce agreement.  The Court disagrees, stating that Mother's waiver in the RSU income cannot operate to waive her children's rights to appropriate child support pursuant to the guidelines.  The Hoegen Court asserts the precedent that "parents may not bargain away the rights of their children to support from either one of them."  Okoli v. Okoli, 81 Mass. App. Ct. 371, 377 (2012), quoting from Knox v. Remick, 371 Mass. 433, 437, 358 N.E.2d432 (1976).  Therefore, even if Mother did waive her right to the interest in the RSUs, that waiver cannot operate to waive her children's right to child support from that income.

Comparable Health Insurance: The True Test
By Solen G. Moriarty, Esq.
The parties in Shine v. Shine (No. 15-P-288) (Appeals Court- Unpublished, February 11, 2016) were divorced pursuant to a separation agreement incorporated into a judgment requiring the husband to continue to provide health insurance that covered the wife, subject to two conditions.  First, if there was an additional cost to cover the wife, the wife was required to pay the additional fee.  Secondly, if the wife has the opportunity through her current or future employer to obtain comparable health insurance, she shall do so and the husband shall no longer be obligated to provide her with health insurance.

The wife in Shine obtained new employment and declined the option of obtaining health insurance through her new employer.  The husband filed a contempt action, claiming that by refusing the employer-offered health insurance, the wife failed to act in accordance with their separation agreement.  The lower court agreed with the husband’s argument and ordered the wife to obtain health insurance for herself through her new employer.  The wife appealed.

The appeals court reversed the lower court’s ruling, stating that “the judge did not actually find that the health insurance coverage available through the wife’s employment provided “comparable” coverage and benefits to those provided through the husband’s plan.”  The appeals court went on to say that “although it may well be true that one of the many plans available to the wife through her employment is ‘comparable’ to the plan provided under the husband’s insurance, the evidence to substantiate that claim is absent.”  Therefore, in Shine v. Shine, the appeals court postulates that under the terms of such an agreement, it is not enough to argue that there is a potential plan available to your former spouse, but rather, evidence must be submitted so that a comparable analysis can be done to determine whether or not a former spouse is required to obtain replacement health insurance through their employer.

We are pleased to announce that Solen G. Moriarty, Esq., of Newburyport, Massachusetts, has joined the firm. Attorney Moriarty graduated with honors from William Smith College and obtained her Juris Doctor, cum laude, at Suffolk University Law School located in Boston, Massachusetts. Her practice focuses on a wide variety of family law matters including divorce, pre- and post-marital agreements, same-sex issues, paternity, guardianships, modifications, child custody and support, contempt, and alimony. Attorney Moriarty is committed to zealously advocating for her clients and protecting their families and finances during times of significant life change. In keeping with that commitment she has represented survivors of domestic violence both for the Women’s Bar Foundation’s Family Law Project as well as the Volunteer Lawyers Project. Contributing  as a member of the local community, she is the Vice President of the Pre-K/K Parent Teacher Organization at the Bresnahan School in Newburyport, Massachusetts.
Contact Attorney Moriarty via http://www.hdgpc.com/Attorneys/Solen-G-Moriarty.shtml, or by calling the office at 978-388-1787.
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