MEMORANDUM TO LITIGATION PARTNER

The basic conclusions of this memorandum dealing with the case of Harry v. Sally are as follows: (1) although there is considerable case authority for the enforcement of the existing support order, the equities of Harry's case against DOR and Sally in particular are quite strong and the trend of the law is against us; (2) we have solid procedural arguments, based on statutory law and recent cases, to support our position that Harry's defense against the Department of Revenue (DOR) is time-barred; and a close question is presented as to whether Harry's case against Sally and Joe is barred by the statute of limitations on fraud claims. Joe's case that he did not commit any fraud against Harry is strong, assuming his involvement is as stated, but Sally's is weak. In all likelihood, the Court will rule against us at least with respect to future support payments which Sally and Joe will be required to make.

1. Harry and Sally were married in 1989 and divorced in 1992. Sally was pregnant with little Harry at the time they were married and did not tell Harry that Joe was the father. (Harry assumed that the child was his). Harry was ordered at the time of the divorce to pay $75 per week in child support. At some time in 1993, the fact that Joe was the natural father was established through blood and genetic marker tests. Harry stopped paying child support after he learned that little Harry was not his son.

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not any action of Harry's which prevented the couple from claiming support from Joe. In any action to modify a child support decree, the moving party must show that there has been a material change in circumstances since the original order was issued and that a modification thereof is in the child's best interests. However, "defendant's fraud at the time of the prior judgment" is one such circumstance. Glazer v. Silverman, 354 Mass. 177, 236 N.E.2d 199 (1968). The Probate and Family Court has broad jurisdiction in equity to modify support orders for child support under ch. 208, sec. 28, if "the court finds that a material and substantial change in the circumstances has occurred and the judgment of modification is necessary in the best interests of the children." Buchanan v. Buchanan, 15 Mass.App. 61, 443 N.E.2d 432 (1982). This power can be exercised not only in a proceeding for modification but also in a proceeding for contempt. Bloxberg v. Bloxberg, 7 Mass.App. 233, 387 N.E.2d 156 (1980). Freedman says that in an action for modification, the Court cannot reverse arrearages on orders for support of minor children, but it can do so in a civil contempt proceeding. The Court can always depart from child support guidelines when i
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Some common words found in the essay are:
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Approximate Word count = 2899
Approximate Pages = 12 (250 words per page)

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