Recent family law decisions

Commonwealth v. Washington W (2012)

The Commonwealth appeals from orders of a judge In the Juvenile Court dismissing two youthful offender indictments charging the juvenile with statutory rape. The judge ordered the dismissal after finding that the juvenile had suffered presumptive and actual prejudice from the “Commonwealth’s willful and repeated failure to comply with discovery orders.” We affirm the judge’s dismissal of the two indictments.

Minor child complained of rape by another minor child with Asperger’s. The defendant was charged with 2 counts of statutory rape and 2 counts of indecent assault and battery, both of which occurred about a year apart. The defendant had filed for Norfolk statistical reports, but the prosecution responded that it’s overly burdensome .The court citing a recent decision ordering Norfolk to comply with the discovery request. In that decision, which had similar facts, the court held “‘valid statistical evidence’ demonstrating disparate treatment of a protected group ‘may be relevant and material to demonstrate’ selective enforcement (emphasis added).” Ultimately, the discovery dateline was extended and the commonwealth filed for a motion for an interlocutory appeal. Two of the 4 charges were ultimately dropped because a lower court judge had said there was insufficient evidence and the grand jury was “tainted”. The court also affirmed the discovery order, making a few minor changes.

The discovery issues went up on appeal based on the fact that the Commonwealth did not feel that they had to produce the discovery because they were not going to prosecute the matter anymore. The lower court ordered the discovery and the Commonwealth appealed. On appeal, the court walks through the elements of indictment of a youthful offender, which are (1) the juvenile was between 14 and 17 at the time of the offense; (2) the offense, if committed by an adult, is punishable by imprisonment in State prison; and (3) the juvenile has either previously been committed to the Department of Youth Services, or “the offense involves the infliction or threat of serious bodily harm,” 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 in dismissing the complaint.

However, when they examined the sufficiency of the grand jury proceedings, they found that the lower court judge was proper in dismissing the complaint due to a tainted grand jury proceeding because the prosecutor did not present exculpatory evidence. The court concluded that the prosecution engaged in willful, deliberate and repeated failure to comply with the discovery orders. They further stated that the lower court judges did not abuse their discretions in dismissing the complaints without prejudice because it was the proper remedy in this case.

Marina W. CESAR vs. Richard R. SUNDELIN.

The question before the appeals court was whether “—in dividing a marital estate that includes a family business-a judge of the Probate and Family Court has the authority to enjoin the party that no longer will have any ownership in the business from operating a competing business. We hold that a probate judge does have such authority and therefore remand this matter for further proceedings.”

In the context of a divorce proceeding, the husband and the wife both sought sole ownership of a family business, a feed and grain store. The probate judge awarded the business to the husband. With the business and certain other property distributed to the husband, the judge declined to give the husband credit for a gift of equity worth approximately $200,000 that the husband’s parents had given the couple. In an effort to shore up the value of the existing good will in the business, the husband requested that the judge order the wife, a veterinarian, not to operate a competing business. The judge denied the request on the sole ground that he lacked authority to grant such relief.

On appeal, the appellate court cited the wide discretion of probate and Family Court Judges. “We begin by noting that the Legislature has given probate judges broad authority with respect to the division of marital property.” The court went on to cite cases from other jurisdictions upholding valid non-compete agreements. The case was remanded for further proceedings as to whether the non-compete agreement was the appropriate remedy for protecting the husband’s goodwill in this business. “We state no position as to whether the husband is entitled to a non-compete order and, if so, how broad such an order should be.” Further, the quote went on to say that they would not examine whether the non-compete issue was raised in a timely manner by the husband, as the wife argued that it was not and should be waived.

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