Kennedy v. Kennedy
Kennedy v. Kennedy
Opinion of the Court
This is the third appearance in this court of a litigation that has been on the books for some thirteen years.
On September 25, 1972, a decree entered in the Probate Court upon the husband George’s default, awarding the wife Lillian monthly support of $250 for herself and $600 for the five children of the marriage. George at the same time was professing the validity of an Arizona decree in lesser amounts that he had obtained on Lillian’s default. The conflict came to a head when Lillian sought to attach George’s military pay as security for her decree, and in Kennedy v. Kennedy, 10 Mass. App. Ct. 113 (1980) (Kennedy I), this court denounced the Arizona decree as void for lack of jurisdiction and upheld the domestic one.
On July 10, 1980, just after our decision of Kennedy I, Lillian filed a complaint in contempt for George’s failure to make payments under the 1972 decree;
The parties cross appealed. In Kennedy v. Kennedy, 17 Mass. App. Ct. 308 (1983) (Kennedy II), we reviewed the
Upon this second remand, the probate judge entered a judgment on April 30, 1984, which is the subject of our present review. The judgment established the amount of the arrearages at $47,930, a reduction of $9,120 from $57,050. This resulted from cutting off roughly a year (1981) of Lillian’s support, that is, $3,000, and adjusting amounts payable for children’s support (three of the children had become emancipated since 1972). George was to liquidate the balance of the arrearages — after the lump sum payment of $5,000 — at the rate of $400 per month. He was charged with Lillian’s attorneys’ fees and expenses in an amount of $7,500 (of which $5,300 presumably represented fees).
We take the effect of the notices of appeal to be that the parties mutually attack the judgment, and attack respectively the ancillary orders denying their motions for relief from judgment and to alter and amend the judgment. After entry of the judgment, Lillian applied for but was denied an attachment of George’s military pension. Her appeal from the order has been consolidated with the main appeals.
The correctness of the judgment appealed from is to be judged in the light of Kennedy II and any consistent considerations of equity.
As observed in Kennedy II, at 313, the burden was on George to demonstrate that circumstances had changed materially since 1972 so as to justify a reduction of the arrears. We think the judge was in error in eliminating Lillian’s support for the one year. It should be restored. It was suggested in our opinion that downward modification of arrears might be justified because of the emancipation in the interim of several of the children, against which should be considered George’s rising income and
Under G. L. c. 215, § 34A, fifth par., inserted by St. 1982, c. 282, effective October 6, 1982, a contempt judgment shall include interest from the date of filing the complaint.
We do not agree with the suggestion that as George pays each liquidating installment of, say, $1,045, he should be charged with interest on the unpaid balance of arrears. This was a matter for decision by the judge in discretion, it was not a matter of prescription. On the other hand, if George should default in payment of any instalment, he will be chargeable with interest thereon.
Having in mind the less than glittering record of George’s past performance, as well as the fact of his present residence in Europe, we reverse the order of the probate judge denying attachment of his military pension. We direct the judge to act under 42 U.S.C. § 659 (1976) with a view to effectuating such an attachment as security for George’s obligations of payment, the attachment to remain in force until dissolved for good cause after notice and hearing.
Counsel for Lillian submitted a bill for $31,897 for 588 hours of work by three lawyers over a period of five years. As noted, the probate judge allowed $5,300. Even if one assumes that some part of counsel’s efforts may have been superfluous or duplicative, and that such part as was not, may to some extent have been routine rather than novel, still, on a superficial view, the amount allowed seems inadequate. Not to be ignored is the unremitting opposition that Lillian’s counsel had to face. The matter should be reconsidered and a fresh award made upon findings.
With regret, we add a comment. While Lillian’s briefs display some rancor, it is exceeded by the adjectival invective of George’s briefs. Such advocacy does not help the client. It protracts and embitters litigation to the injury of the legal system.
The judgment appealed from will be modified by setting the amount of the arrearages as $50,930 (with interest as indicated), and by vacating the provisions (a) establishing a monthly rate of payment of the arrearages, and (b) awarding counsel fees and expenses. The probate judge will reconsider these provisions taking such further evidence as may be necessary or advisable. (The appeals from the orders denying motions for relief from judgment and to alter or amend the judgment need not be acted on.) The order of the single justice allowing an attachment is affirmed, and a continuing attachment will be ordered, as indicated. Rescript will go down forthwith. The probate judge will act thereunder with all feasible speed.
So ordered.
She had previously filed such a complaint. This was on January 14, 1977, before the validation by this court of the 1972 decree.
The parties were each granted a divorce for cruel and abusive treatment. George’s complaint for modification was denied. We pass over some details.
Other details are omitted.
During the pendency of the appeals, Lillian applied to a single justice of this court for an attachment of the pension and George appeals from the order allowing it. The order is affirmed, in line with our disposition of the appeal consolidated with the main appeals (see infra).
As to interest on the arrears, see infra.
“Any monetary contempt judgment shall carry with it interest, from the date of filing the complaint, at the rate determined under the provisions of section six C of chapter two hundred and thirty-one of the General Laws.”
We recognize that the amounts of interest reached on the bases described may be subject to deductions for payments actually made at various times, and to adjustments for other reasons. Approximations may have to be made and settled on a reasonable basis.
An alternative basis for solving the interest question might be to charge the interest on the full principal amount to appear in the judgment as entered on remand, but limited to the period from October 6, 1982 (effective date of the statute), to the date of the entry of that judgment. Cf. Porter v.
The 1982 amendment of § 6C, establishing the twelve percent rate, applies by its terms to “all actions in which damages are assessed on or after the effective date of this act.” St. 1982, c. 183, § 4. See Tosti v. Ayik, 394 Mass. 482, 499-500 (1985); Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 273 (1985); Frank D. Wayne Associates v. Lussier, 394 Mass. 619, 622 n.2 (1985).
In Kennedy II we said, at 315 n.12, that the question of counsel fees might be considered by reference to the policy favorable to such allowances
Concurring Opinion
(concurring). I concur fully with the reasoning and result of this court’s decision. I enthusiastically endorse its stem admonition of the deplorable advocacy on the part of George’s attorney.
The duty to represent a client zealously (see S.J.C. Rule 3:07, DR 7-101[A], as appearing in 382 Mass. 784 [1981]) is not unqualified. See S.J.C. Rule 3:07, DR 7-101(B) and DR 7-102(A), as appearing in 382 Mass. 784,785 (1981). Lawyers have an obligation to the public and the profession to decline engagement for obviously dilatory tactics. At least some of George’s positions on this most recent round of litigation have this character. There have been thirteen years of maneuver by George to avoid his obligations. It is a reproach to the system of justice.
The vituperative tone of George’s briefs is made the more objectionable because it is employed in aid of some transparent attempts to make the worse appear the better reason.
Reference
- Full Case Name
- Lillian F. Kennedy vs. George D. Kennedy (And Three Companion Cases)
- Cited By
- 12 cases
- Status
- Published