Don’t Say That! Are Non-Disparagement Orders Lawful?

by Fern Frolin and Timothy D. Braughler

Heads Up

 

In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.

Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.

Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order.  Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.

At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth  birthday. Id. at 660.

Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.

“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).

The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . .  .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.

Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence.  However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).

Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.

 

Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.

Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.


Should it Stay or Should it Go?: Post-MUPC Probate Court Objections in the Wake of Leighton and Cusack

by Timothy F. Robertson, Esq. and Joseph N. Schneiderman, Esq.

Practice Tips

Introduction

Since Massachusetts adopted the Model Uniform Probate Code, G.L. c. 190B (MUPC) in 2012, few cases have addressed the topic of objections. This article will offer practical pointers for how to make objections stick in light of two recent (published) appellate decisions.

  1. Objections: History, Contents and Timeliness

Objections are an essential component of probate litigation. Objections provide notice to interested parties of a controversy within a probate or will action in the Probate and Family Courts. Upon the filing of an objection, the dispute becomes a lawsuit, where discovery may begin.

Objections may contest the merits of an action in probate court or air a more disconcerting lack of communication or trust involving a fiduciary. Affidavits in support of objections can range from the long-winded “let me tell my side of the story” affidavit to the more precise, but speculative affidavit. But neither of those extremes can or should suffice.

Before Massachusetts adopted the MUPC, Probate Court Rule 16 governed objections to wills. See e.g. O’Rourke v. Hunter, 446 Mass. 814, 816-817 (2006) (Marshall, C.J.) Rule 16 itself followed the abolition of jury issues in will contests and functioned to screen out frivolous attacks on wills. Id. at 817.

Rule 16 required an objection to articulate specific facts. An administrator could contest lack of specificity in an objection either by a motion to strike or motion for summary judgment-one did not need to exhaust objections before seeking summary judgment. O’Rourke, 446 Mass. at 818-821. But specificity remained the touchstone of an adequate objection. See e.g. Sher v. Desmond, 70 Mass. App. Ct. 270, 279, n.11 (2007).

Today, G.L. c.190B, §1-401(e)-(f) governs objections. Objections still require specific facts and must include supporting affidavits. The affidavit should stem from personal knowledge and should contain as much detail as the drafter knows. Compare Mass. R. Civ. Pro. 56(e) (governing affidavits in summary judgment.) Allegations of fraud should be stated with particularity. Compare Mass. R. Civ. Pro. 9(b).  A best practice is for the drafter (i.e., counsel) to reserve the right to supplement the affidavit as discovery proceeds.

Under the MUPC, it is the timeliness of an objection, however, that is of more critical importance. If an objector lacks sufficient information to develop an appropriate affidavit within the applicable time period (the return date set by the court or otherwise by statute), practitioners should: (1) act quickly to propound discovery on the petitioner (and any other person or entity with relevant information) under Supp. Prob. Ct. R. 27A and (2) concomitantly move to extend the deadline for filing the affidavit of objections.

  1. Leighton v. Hallstrom-Case Study of a Successful Objection

Despite the strict time requirements for filing an objection and the need for a detailed affidavit, a recent Appeals Court decision suggests that substance ultimately prevails over form when considering the adequacy of an objection.

In Leighton v. Hallstrom, 94 Mass. App. Ct. 439 (2018), a magistrate endorsed Leighton’s petition for a formal adjudication of intestacy, determination of heirs, and Leighton’s appointment as personal representative of the decedent’s estate. Prior to the entry of the decree, Hallstrom came forward and announced himself as an interested person and first cousin of the decedent. On a pre-printed Probate and Family Court form (MPC 505a), Hallstrom also filed a notice of appearance but did not check the box that his appearance was an objection. In the interim, the magistrate entered a decree on another pre-printed form but left blank the fields for specific individual heirs, instead referring back to the petition.

Hallstrom unsuccessfully tried to persuade Leighton of his lineage to the deceased, including with a genealogical chart. Leighton later petitioned for a complete settlement and Hallstrom objected. The Probate Court judge struck Hallstrom’s objection as tardy and because the magistrate’s initial decree resolved who the heirs were. Hallstrom appealed.

The Appeals Court reversed. The Appeals Court noted that although the MUPC imposed strict time constraints for objections, the true issue was not timeliness but the legal significance of the decree-which did not explicitly list any heirs. Instead, the decree referred back to the petition, which specifically listed Hallstrom as a purported heir. Moreover, the Personal Representative was aware of Hallstrom’s claims. Thus, since the decree did not resolve the issue of who the heirs were, there was no legal basis to preclude Hallstrom’s objection. 94 Mass. App. Ct. at 446, citing and quoting Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004) (“Issue preclusion is not available where there is ‘ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge.’”).

Leighton illustrates that practitioners should not avoid nor courts discourage limited objections. Indeed, the Probate and Family Court’s pre-printed forms like MPC 505a can lend themselves to ambiguity. So long as the substance of the objection is there, the objection suffices. Indeed, if there is a need to amend the objection, practitioners can and should amend fairly and freely, as they could under former Rule 16. See e.g. Hobbs v. Carroll, 34 Mass. App. Ct. 951 (1993), citing Mass. R. Civ. Pro. 15.

  1. Cusack v. Clasby: Are Objections or Contempt Actions Your Recourse for Bad Administration?

The manner of probating the estate may raise concerns. Is filing an objection to an account the best mechanism to address concerns? Depending on the information known to the interested person and the status of a matter, a petition to remove the personal representative might be the appropriate course. However, if a first and final account has been filed, and the deadline for objections has been set, a potential objector has a limited time period to act.

Cusack v. Clasby, 94 Mass. App. Ct. 756 (2019), illustrates this point. Catherine Cusack died in June 2014, survived by eight children, all equal heirs. Clasby, one of her daughters, and the administrator of her estate, petitioned to probate the estate in October and filed a petition for an order of complete settlement in December 2015. Three of Clasby’s siblings objected, asserting that the final accounting reflected disbursements that had not in fact occurred. A judge in the Probate Court struck the objections, approved the final accounting, and settled the estate. The siblings appealed, asserting that settling the estate was premature.

The Appeals Court affirmed the settlement and rejected this contention. The Appeals Court noted that before Massachusetts adopted the MUPC, settlement was indeed incomplete until all payments were made by the estate. 94 Mass. App. Ct. at 758, citing former G.L. c.206, §22. However, the MUPC expressly repealed and displaced this principle. Id.  at 759, citing G.L. c.190B, §3-1001. Similarly, the MUPC also permitted Clasby, as an administrator, to approve accounting and distribution of the estate.  Id.. at 758.

Thus, the Probate Court judge had authority to jointly approve the accounting and settle the estate. Indeed, the joint order furthered the purpose of the MUPC to spur a “speedy and efficient system for liquidating [an] estate of [a] decedent and making [distributions.]” 94 Mass. App. Ct. at 759, quoting G.L. c.190B, §1-102(b)(3). Finally, the siblings were not without recourse-they could petition for contempt for violations of a court order. Id. at 759.

Cusack raises an important practical question about how to redress problems during distribution. On the one hand, procedurally, a contempt action does have benefits. A decree settling an estate certainly constitutes a court order for purposes of contempt. The Probate and Family Court also deals with contempt every day. Contempt actions also proceed under the same docket without a separate filing fee, and a successful litigant may recover their attorney’s fees.

Substantively however, a contempt action after distribution may not provide an ideal solution. Contempt has to be proven by clear and convincing evidence and not every violation of a court order constitutes a contempt. Indeed, ambiguous court orders do not lend themselves to contempts. See e.g. Hoort v. Hoort, 85 Mass. App. Ct. 363, 365 (2014). A contempt action may deleteriously prolong and reopen a seemingly settled estate, and thwart the spirit of speedy settlement under the MUPC-or the purpose of former Rule 16 to screen out frivolous contests.

Conclusion

Leighton and Cusack illustrate how will objection practice has developed since Massachusetts adopted the MUPC. While an affidavit in support of an objection should contain specific facts, merely putting the proponent on notice of a problem may suffice if the proponent is relying on a pre-printed probate court form to preclude an issue.

On the other hand, objections no longer function to redress poor or incomplete administration because administration closes comparatively quickly. Whether or not contempt actions against administrators will actually serve the purposes of objections for bad administration will be interesting to see in light of the severe backlogs in certain probate courts.

 

Timothy F. Robertson is the Principal Attorney of T FRANK LAW, PLLC, a Trusts and Estates law practice in Charlestown, MA. https://www.tfranklaw.com. Tim is grateful to Joe for the opportunity to collaborate and for staying abreast of recent SJC and Appeals Court Decisions.

Joseph N. Schneiderman has an appellate-exclusive practice in Massachusetts and Connecticut and has argued four times in the SJC since 2015. Joe can be contacted at connlawjoe@gmail.com. Joe gratefully thanks Tim for the opportunity to write and collaborate about important appellate developments in probate law. Joe further dedicates the article to the memory of his grandfather, Natalé “Nat” Memoli.


Probate and Family Court

by Hon. John D. Casey

Voice of the Judiciary

I have always considered it an honor to be a part of the Probate and Family Court, first as a practicing attorney, and then as a judge. Now as Chief Justice, I more fully realize and appreciate the special nature of this Court and its judges and staff. I have met with people from every division to discuss my vision for the Court, and, in the process, have learned about their hopes for and commitment to the Court. On a daily basis, the judges and staff rise to the challenges of working in a court that interacts with people during some of the most difficult times in a person’s life.

The Probate and Family Court is different than the other Trial Court departments. Domestic relations litigation and probate litigation are unique in that each case involves a family situation or dynamic and has the potential to span years. In most cases, the parties must continue to interact with each other during and after difficult litigation. Because of this, litigants require compassion and must be treated with dignity and sensitivity. Many need to be educated on court processes because they do not have attorneys to explain what they will encounter and what is expected of them.

The mission of the Probate and Family Court is to “deliver timely justice to the public by providing equal access to a fair, equitable and efficient forum to resolve family and probate legal matters and to assist and protect all individuals, families and children in an impartial and respectful manner.”  Since the economic downturn of 2008-2009, the ability of the Court to accomplish this mission has been severely strained. In the ensuing years, the Court relied on judges and staff to go above and beyond, and so many did. In addition, the bar volunteered to help in various ways, such as the Lawyer of the Day program, bar association conciliation programs, and Attorneys Representing Children (ARC) programs, to name a few. The challenges for the Probate and Family Court were noted by Chief Justice Ralph Gants in his State of the Judiciary address in October 2017 when he stated, “The burdens we place on our Probate and Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate and Family Court.” To that end, different groups worked toward creative solutions for case management and staffing, while Chief Justice Gants and Chief Justice of the Trial Court Paula Carey advocated for additional funding for the Probate and Family Court at the State House. In the fiscal year 2019 budget, the Court received additional funds to address the specific needs of the Court – the need to hire sessions clerks and legal research and writing staff, the need for case management triage, and the need for alternative dispute resolution resources. I am proud to report that as a result of these additional funds, the Probate and Family Court has taken steps to start the reimagination of the Court, as Chief Justice Gants envisioned.

As part of this process, the Court set a goal of having one sessions clerk for each judge, so that judicial case managers and assistant judicial case managers could then spend their time outside of the courtroom working on case management. With the additional funds, the Court met that goal, hiring sessions clerks throughout the Commonwealth. In addition, three law clerks and two research attorneys have been hired. The Court now has eleven law clerk positions and seven research attorney positions dedicated to assisting the judges with their legal research and writing.

With regard to case management, I plan to solidify and build on ideas that have been discussed for many years. First, I want to emphasize to all staff, judges, and attorneys that every case is not the same, and should not be treated the same. By engaging in the early screening of cases, staff will put each case on its own path, taking into consideration various issues, including whether the case is uncontested or contested, straightforward or complex, whether the parties are self-represented or have counsel, and whether the case is ripe for alternative dispute resolution such as conciliation, mediation, or dispute intervention. Second, litigants will be educated on court processes and referred to services like alternative dispute resolution. This model has proven successful in the Middlesex Division and Essex Division on so-called “block days” with cases that involve child support with the Department of Revenue and also parenting issues. Litigants are referred to on-site mediators who assist the parties in resolving both child support and parenting issues at the same time, and with only one court appearance. We are not the first or only Trial Court department to use differentiated case management. We are, however, the Trial Court department that faces the challenge of implementing a new case management process with a population that is overwhelmingly unrepresented by counsel and that has recurring issues. Training is required to successfully implement these changes to case management. We have begun this process by conducting trainings for sessions clerks and assistant judicial case managers. We will continue to train all members of the Probate and Family Court so that we can rise to the challenges we face and meet our mission.

As I start my second year as Chief Justice, I am aware that nothing we do to improve the Probate and Family Court is done without the help of many different people and organizations – legislators, attorneys, bar associations, staff, judges, Chief Justice Gants, Chief Justice Carey, Court Administrator Jon Williams, and Deputy Court Administrator Linda Medonis. To all of you, I say thank you. Thank you for sharing your ideas about how the Probate and Family Court can be better. Thank you for your patience, as we all know that successful change takes time. But most of all, thank you for supporting me and the staff and judges of the Probate and Family Court as we make changes to enhance everyone’s experience with the Court.

 

The Honorable John D. Casey was appointed to the Probate and Family Court in 2006 and became the Chief Justice in July 2018.  He previously served as the First Justice of the Norfolk Division of the Probate and Family Court.  Chief Justice Casey graduated from Bates College and Suffolk University School of Law.


The Fiduciary Litigation Session

Bob ORegan_102x126by Robert J. O’Regan

Heads Up

There is good news that a second courtroom will shortly expand the Fiduciary Litigation Session of the Probate and Family Court.  This is a pilot program under Standing Order 3-17 (as amended) for complex probate and trust cases.  The FLS gives lawyers and judges a solution to the problem that these complex cases seem to not receive the time or attention that they require in the regular sessions of the overwhelmed Probate and Family Court.

Modeled after the successful Business Litigation Session of the Superior Court, the FLS allows for the transfer of complex contested cases and a narrow band of uncontested cases from courts in Essex, Middlesex, Norfolk, Plymouth, and Suffolk Counties.  It provides capacity, improved case management, and specialized expertise for the most difficult portions of the caseload within the court’s historical jurisdiction.  Cases that qualify for transfer must be non-routine and include will contests, determination of heirs, interpretation of instruments, removals and appointments of fiduciaries, contested fiduciary accounts; and equity actions alleging breaches of fiduciary duty, seeking instructions, and to determine title.

For some time, the probate bar in particular has expressed a sense of frustration that these cases often languish on the crowded dockets of the Probate and Family Court.  As the court’s jurisdiction and responsibilities expanded, particularly after enactment of the equitable division statute and expansion of protective proceedings, the resources in the Probate and Family Court did not keep pace.  Probate and Family Court judges now take the bench with more experience in areas other than probate and trust law.  These have combined to create an impression that matters involving will contests, trust interpretation, and fiduciary accounts are dry academic exercises to be taken up as a last resort.  More than just helping to clear the caseload, the FLS demonstrates the court’s understanding that ongoing trust and estate disputes prevent closure after the death of family members, and that beneficiaries are harmed by delayed (or blocked) distributions or fiduciary misconduct.

These are reasons why transfer into the FLS is intended to be simple and quick. Only cases in which all parties have counsel are eligible.  Transfers can be initiated by the session judge or an attorney, and virtually all requests have been granted.  A key pivot point in the process is that the session judge must recommend the transfer.  Transfers are completely administrative, require no hearing, and are not appealable.

A simple on-line form on the court’s website starts the process. The instructions are clear and easy to follow.  Joint applications are encouraged.  Argument and attachments of court filings are prohibited.  Applications should point out why the expertise and case management advantages of the FSL will move the case to settlement or disposition more effectively.  Objections are due ten days from service of an application.  They should point out why the case is not complex and raise potential conflicts with a transfer.   Both applications and objections must be sent to the session judge and office of the Chief Justice of the Probate and Family Court.  If the session judge recommends transfer, it is then screened by the FLS judge.  To date, only three transfer requests have been screened out at this stage.

Pending motions or assigned trial dates in a case will likely not affect whether a transfer request is allowed, but rather how it is managed in the FLS.  If the issues straddle probate and equity dockets, discovery is mired down, multiple experts or medical evidence will be required, or several days of trial time are unavailable in the session within a reasonable time, the case should be considered for a transfer request.

Because the FLS is intended to promote best case management practices, the standing order requires a case management conference to be held within thirty days after the transfer.  The conference will develop a plan to resolve the case efficiently using any tools available such as ADR, pre-trial procedures, and trial schedules.  If the case arrives in the FLS with pending motions, hearing dates will likely be set then for quick disposition.  Litigants can expect a clear, firm scheduling order to result from the initial conference.

Improved file and time management steps are emphasized by the FLS.  Inter-county assignments cause headaches with file maintenance and docketing, but not with the FLS.  Under the Standing Order, all filings are to be made directly to the FLS session, and manages docketing with the originating court electronically.  To the extent feasible, the FLS uses conference calls and videoconferencing when an in-court appearance is unnecessary.  E-mail for notifications, service, and filings also speeds up the process.

Reception for the FLS has been very positive.  Lawyers need not be concerned that a session judge may take offense at a request to transfer a case to the FLS.  To the contrary, an unscientific survey of judges and court staff shows that session judges generally welcome these applications.  A goal is to make it available state wide within the foreseeable future.

Robert J. O’Regan is a partner with Burns & Levinson, LLP.  He is past co-chair of the BBA Fiduciary Litigation Committee and past president of the Massachusetts Probate and Family Inn of Court.