Cape Cod Barrister

When Does Alimony End? Pierce v. Pierce

Although many are wailing about the SJC decision this week in Pierce v. Pierce, in my opinion, it really doesn't change much about Massachusetts law as relates to alimony.

Rudolph Pierce, 67, is a retired judge. He had been paying his wife $110k per year in alimony, and when he retired on lower income, a probate court allowed him to reduce the payment to $42k per year. At the time of the divorce, the couple had split 1.4mill in assets. Pierce, at that time, was earning about $450,000 per year. His wife had been earning 95k as a professional fundraiser.

Pierce argued that even the lower amount prevented him from retiring, while his wife asserted that she needed the alimony payments and didn't want to apply for social security until she was entitled to full benefits.

The SJC ruled that the judge had the discretion to consider "diminished financial ability to pay" as one factor in assessing the respective needs and abilities of the parties. However, the court said that retirement will not automatically provide the court with a reason to terminate alimony. 

Obviously, no feels sorry for either of the Pierces', nor should they. However, as I always advise clients, probate court judges possess an enormous amount of discretion in divorce proceedings in deciding issues related to child support, distribution of property and alimony. There are many factors the court takes into consideration when deciding cases, including health of the parties, education, respective abilities to earn, length of the marriage and others.

Actually, I'm not surprised by the ruling and really don't believe it changes much about Massachusetts divorce law. I tell divorce clients that if they and their spouse can't come to an agreement, a probate court judge will be happy to do it for them. Until the legislature makes a statutory change, many probate court  judges will still view alimony as a lifetime commitment, assuming the facts warrant such a decision.

Bruce A. Bierhans

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Cape Cod Landlords/ Landlords Can Now Be Liable for Pit Bull Attacks

The court is saying that if a pit bull is involved , you don't necessarily have to show that the dog attacked in the past.

It has long been the law in Massachusetts, and in many other states, that if your dog causes injury, you are liable regardless of whether or not you were negligent. This is called "strict liability" and imposes automatic liability on the dog "owner".

However, if you were suing a landlord that was not the dog owner, you had to show that the dog had "vicious propensities" prior to the attack and that the landlord knew or had reason to know of those propensities.

In the case of Nutt v. Florio, the Massachusetts Appeals Court has ruled that where the dog at issue was a pit bull, the issue of the landlords negligence may go to the jury for a determination of whether or not "the dog had dangerous propensities, whether the defendants knew or should have known about them, and, if so, what actions would have been reasonable, in light of their duty as landlords to protect tenants from reasonably foreseeable risk of harm."

In effect, the court is saying that if a pit bull is involved , you don't necessarily have to show that the dog attacked in the past. The landlords  knowledge that a dog is or may be aggressive may impose a burden on a landlord to be alert for their tenants safety, particularly where there are complaints from other tenants, or other evidence of "potential" aggression.  As stated by Lawyers Weekly, a landlord may now be liable for injuries even though the landlord was not the animals owner and there was no evidence that the animal had ever attacked anyone before.

Bruce A. Bierhans

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Beware: FINRA Issues "Auction Rate Securities" Phishing Alert

Speaking of FINRA...FINRA has issued an alert to warn the public about an auction rate securites "phishing" scam. The scam attempts to take advantage of individuals who, unfortunately, have already been victimized by the purchase of these securities.

The email looks like it comes from FINRA and promises compensation from ARS settlements in exchange for personal information. It actually says the recipient is due $1.5million regardless of the amount of their ARS investment or loss. The email then "phishes"  for personal information, including occupation, address and phone number.

The FINRA website is at www.FINRA.org.

Bruce A. Bierhans

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Are Your Financial Advisers' Investment Recommendations "Suitable"

Recently, I concluded a case in which I represented a financial adviser for one of the largest brokerage firms in the country against the firm itself. The firm was attempting to enforce a Non Compete clause in the advisers' employment contract. In fact, the adviser had left the firm because she felt she was being forced to sell products that benefitted the firm that were not necessarily "suitable" for the client/investor, and we defended the case on that basis. I have had many similar cases in which I have represented advisers. 

It appears as if the "suitabilty" argument, as well as issues relating to the fiduciary obligations of advisers to their clients is finally being recognized by the industry, including FINRA (Financial Industry Regulatory Authority). FINRA reports that this year, investors won 45% of the decided arbitration cases, up from 37% in 2007. They further reported that "suitability" claims "predominated" in the years filings. Simply, suitability means that the fiduciary is required to make recommendations based upon the objectives and risk tolerance of the investor. As we argued in the above case, if the fiduciary is selling or recommending a product because it might impact his or her compensation, suitability is taking a back seat to the priorities of the brokerage house and the adviser. A recent example of these types of cases include the "auction rate securites debacle" (about which I have written  in the past).

There are currently many debates taking place within the industry regarding application of the suitability standard and what agency within the industry should enforce the standard. As stated by the Texas securities commissioner. "We have to make sure that from a policy perspective that we don't allow capitalism to destroy itself."

As an indivudual investor, be your own watchdog! Ask your adviser questions. If you don't know why an investment is being recommended, inquire. Ask your lawyer or accountant for advice , but don't be quiet or passive. If you believe you were placed in an investment that was not suitable for you, take action.  You are ultimately, your own best advocate!

Bruce A. Bierhans

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Friday Thoughts; OCHS and Vinnies Hope

It's been a rather busy week, beginning with Wellfleet Town Meeting on Monday night. It started well, because we received near unanimous support from the floor authorizing the Selectmen to begin negotiations with OCHS regarding the potential lease or purchase of land for construction of a new health center. This has been talked about for a long time, but this is the first positive step towards realization of the goal.

Dr. Barbara Prazak gave a passionate speech in support of the Article and I thank her for her effort. Also, the full Board of Selectmen, Town Administrator , Suzanne Grout, our CEO Dr. Berrien  and citizen volunteers have been very supportive of this effort. We can now move forward with the process.

On another note as we approach the holidays. About a month ago, I read a column in the CC Times written by Saralee Perel regarding a woman, Vanessa Santiago, that had formed a small organization known as "Vinnies Hope". The website is at www. vinnies-hope.com. This tireless woman raises funds herself to provide food, clothing and other necessaries to those in need. Please look at her site. Her story is compelling. Anyway, Saralee appealed to attorneys to help Vinnie because she was not incorporated as a non profit and needed some help taking "Vinnies Hope" to the next level. Seemed to me to be a no-brainer, and I will be helping Vanessa going forward.

These days, there are plenty of folks in need and lots of places where our available money can do good. However, I think Vanessas' story is unique and her cause is one place you may want to look when making donation decisions  at the holidays. Thanks.

Bruce A. Bierhans

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