Petition for Writ of Certiorari — Klavan v. Klavan

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

AVRAM MACY KLAVAN, PETITIONER

v.

GARRIE JOAN KLAVAN, RESPONDENT

Petition For a Writ of Certiorari

To The Supreme Judicial Court

Of Massachusetts

ARTHUR R. MILLER KENNETH S. GELLER

1563 Massachusetts Ave. Counsel of Record

Cambndge, MA 02138 EVAN M. TAGER

Mayer, Brown & Platt

2000 Penn. Ave., N.W.

ALAN S. GEISMER, JR. Washington, D.C. 20006

MARK RODER (202) 778-0613

Kassler & Feuer

85 Devonshire Street

Boston, MA 02109

Counsel for Petitioner

QUESTION PRESENTED

Whether a state court, consistent

with due process, may assert personal

jurisdiction over a non-resident defen-

dant whose sole contact with the state

waS a Single visit during which he was

served with process.

(I)

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......... ecesece I

OCPTNIGONS BELOW. 20st ceventscaeeees 4 l

JURISDICTION. «accuse Terrerce seeees 2

STATEMENT . occ ceseas <eeeeeseeeeee ees 2

REASONS FOR GRANTING THE

“yee es) Pree e eee eee eeee 7

CONCLUSION. ccc ccccceeseecnecetasens ll

APPEMDIN Ac cc cccncsases éensseestans la

APPEMDIX Bic cccccecseecessseseseess 7a

APPERMOLA Ceccccecetessetcesisuseees 8A

APPERDIX Descccccccsseeesssesesesae 1OA

TABLE OF AUTHORITIES

Cases:

Burnham v. California

Superior Court,

No. 89-44, cert. granted,

110 8S. Ct. @F7 (19S) sccccces 9-1

Burger King Corp. v.

Rudzewicz, 471 U.S. 462

(1985) cc cccccccrecvcccecs

Hanson v. Denckla, 357 U.S.

235 (1958) .ccccccencccccee

International Shoe Co. v.

Washington, 326 U.S. 310

(1945)..... ee eo ccces

Table of Authorities --

Continued Page

Statutes:

Mass. Gen. L. ch. 223A,

oe 5

(IV)

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1989

No.

AVRAM MACY KLAVAN, PETITIONER

Vv.

GARRIE JOAN KLAVAN, RESPONDENT

Petition For A Writ Of Certiorari

To The Supreme Judicial Court

Of Massachusetts

Avram Macy Klavan petitions for a

writ of certiorari to review the judgment

of the Supreme Judicial Court of

Massachusetts in this case.

OPINIONS BELOW

The opinion of the Supreme Judicial

Court of Massachusetts (App., infra, la-

6a), the oral ruling of the Massachusetts

Probate and Family Court denying the

motion to dismiss for lack of personal

jurisdiction (id. at 8a-9a), and _ the

final decision of the Probate and Family

Court (id. at 10a-33a) are unreported.

JURISDICTION

The judgment of the Supreme Judicial

Court of Massachusetts was entered on

October 18, 1989 (App., infra, la), and

the order denying the petition for

rehearing was issued on November 30, 1989

(id. at 7a). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257.

STATEMENT

This is a divorce action brought in

the Commonwealth of Massachusetts, the

wife's state of residence, against peti-

tioner, her non-resident husband.

Petitioner's only contact with the state

waS a Single visit made at his wife's

request during which he was served with

process. Petitioner contends that the

Supreme Judicial Court of Massachusetts

erred in holding that the state court's

assertion of personal jurisdiction over

him comports with the Due Process Clause

of the Fourteenth Amendment.

l. Petitioner married respondent in

New York in 1966. The couple lived in

Vermont for most of the duration of their

marriage. They began experiencing mari-

tal problems in 1981. In 1983, peti-

tioner moved from Vermont to Alaska.

Respondent remained in Vermont until

1985, when she moved to Massachusetts.

App., infra, la-2a.

On or about August 6, 1986, pe-

titioner travelled to New York to visit

his ailing mother. Shortly after arriv-

ing in New York, he spoke to respondent

by telephone. Petitioner proposed that

they meet in Vermont in an effort to

reach a divorce settlement. Respondent

asked petitioner to come to Massachusetts

instead. He declined. After respondent

“became hysterical and screamed that [pe-

titioner] had to come to Boston so that

[they] could talk," petitioner acquiesced

and thereafter advised respondent of his

flight plans. When petitioner stepped

off the plane at Logan Airport in Boston

on August 14, he was served with a sum-

mons and complaint for divorce. App.,

infra, 2a-3a.

2. Petitioner filed a special ap-

pearance and a motion to dismiss in the

Massachusetts Probate and Family Court.

The motion, accompanied by petitioner's

uncontroverted affidavit, asserted that

Massachusetts lacked personal jurisdic-

tion over him. Petitioner contended, and

respondent did not contest, that the

Massachusetts long-arm statute did not

confer jurisdiction over petitioner, be-

cause Massachusetts did not serve as "the

marital domicile of both parties * * *

for at least one year within the two

years immediately preceding the commence-

ment of the action." Mass. Gen. L. ch.

223A, § 3(g). Petitioner further argued

that in light of respondent's hidden

motive in imploring petitioner to come to

Boston, service of process on petitioner

when he arrived in the Commonwealth was

not an adequate basis for. personal

jurisdiction either.

The Probate and Family Court denied

the motion to dismiss from the bench

without stating its reasons. It pro-

ceeded to try the divorce action and

entered a judgment of divorce nisi on

February 10, 1988, dividing the marital

assets and awarding alimony. App.,

infra, 10a-33a.

Petitioner then appealed the denial

of the motion to dismiss to the Appeals

Court of the Commonwealth of Massachu-

setts. In his opening brief, petitioner

again pointed out -- and respondent again

did not dispute -- that he lacked suffi-

cient minimum contacts with Massachusetts

to justify the Commonwealth's exercise of

personal jurisdiction under the long-arm

statute. Appellant's Br. 6-7 & n.2.

Petitioner also again argued that juris-

diction could not be predicated on

service of process during a single trip

to Massachusetts taken as a result of

respondent's deceptive request. Id. at

12, 15-16. Respondent responded by as-

serting that the Massachusetts courts had

personal jurisdiction over petitioner

simply “as a result of (his! being served

while in the Commonwealth." Appellee's

Br. 4.

After briefing, the Supreme Judicial

Court transferred the case to itS own

docket and heard argument. Expressly

finding that respondent had not tricked

petitioner into coming to Massachusetts,

and implicitly holding that service of

process is enough to justify assertion of

personal jurisdiction, the Supreme Ju-

dicial Court affirmed the denial of the

motion to dismiss. App., infra, la-6a.

REASONS FOR GRANTING THE PETITION

This Court has repeatedly held that

"(t]he Due Process Clause protects an

individual's liberty interest in not be-

ing subject to the binding judgments of a

forum with which he has established no

meaningful ‘contacts, ties, or _ rela-~

tions.'" Burger King Corp. v. Rudzewicz,

471 U.S. 462, 471-472 (1985), quoting

International Shoe Co. v. Washington, 326

U.S. 310, 319 (1945). Accordingly, to be

Subject to the jurisdiction of a state's

courts, a person must have "purposefully

availfed himself] of the privilege of

conducting activities within" that

state. Hanson v. Denckla, 357 U.S. 235,

253 (1958). "This ‘purposeful availment'

requirement ensures that a defendant will

not be haled into a jurisdiction solely

aS a result of ‘'random,' 'fortuitous,' or

'attenuated' contacts, or of the ‘uni-

lateral activity of another party or a

third person.'" Burger King, 471 U.S. at

475 (citations omitted).

In this case, the Massachusetts

courts asserted personal - jurisdiction

over petitioner based solely upon the

fact that he was served with process

during a single visit to the Common-

wealth. It is undisputed that petitioner

had never transacted any business in

Massachusetts, had never lived in the

Commonwealth, and, other than a single

vacation with respondent in the early

years of their marriage, had never "pur-

posefully availed himself" of the privi-

lege of conducting any activities in the

Commonwealth. The case thus) starkly

raises the issue of whether service of

process by itself is sufficient to satis-

fy the constitutional requirement that

States refrain from exercising jurisdic-

tion over persons that have not estab-

lished meaningful "contacts, ties, or

relations" there.

That very issue is currently before

the Court in Burnham v. California Supe-

rior Court, No. 89-44, which is scheduled

for argument on February 28, 1990. In

Burnham, this Court will determine

whether the California courts may exer-

cise personal jurisdiction over a husband

who was served with process during one of

his occasional trips to California to

visit his children (who were living with

his wife there). A holding that service

of process is not by itself sufficient to

justify the exercise of personal juris-

diction would be dispositive of the in-

stant petition. */ For that reason, the

al Indeed, this iS an even stronger

case than Burnham for holding that due

process is not satisfied by the mere

service of process. In Burnham, the non-

resident defendant was physically present

in the forum state on several occasions,

for business and personal reasons, both

before and after the service of process.

Furthermore, Mr. Burnham allegedly helped

to relocate his wife and children in

California, knowing that divorce proceed-

ings were contemplated. Here, by con-

trast, petitioner visited Massachusetts

only once in the last two decades, when

respondent demanded that he come _ to

Boston rather than Vermont to discuss

their marital problems, and respondent

and her children moved to Massachusetts

without the consent or assistance of

petitioner.

petition in this case should be held for

disposition in light of the Court's deci-

sion in Burnham.

CONCLUSION

The petition for a writ of certio-

rari should be held and disposed of as

appropriate in light of the Court's deci-

Sion in Burnham v. California Superior

Court, No. 89-44.

Respectfully submitted.

ARTHUR R. MILLER KENNETH S. GELLER

1563 Massachusetts Ave. Counsel of Record

Cambridge, MA 02138 EVAN M. TAGER

Mayer, Brown & Platt

2000 Penn. Ave., N.W.

ALAN S. GEISMER, JR. Washington, D.C. 20006

MARK RODER (202) 778-0613

Kassler & Feuer

85 Devonshire Street

Boston, MA 02109

FEBRUARY 1990

APPENDIX A

N-5067 S.J.C.

GARRIE JOAN KLAVAN

vs. AVRAM MACY KLAVAN,

October 18, 1989.

Practice, Civil, Service of process.

Avram Macy Klavan (husband) appeals

from a judgment of divorce from Garrie

Joan Klavan (wife) on the ground that the

Probate and Family Court for Norfolk

County lacked personal jurisdiction over

him. He claims that service on him was

invalid because it was obtained through

the fraud and deceit of the wife. We

transferred the case to this court on our

own motion. We affirm.

The parties were married in New York

in 1966. They resided in Vermont for

most of the duration of the marriage.

After marital difficulties surfaced in

1983, the husband moved from Vermont to

- la -

Alaska. The wife moved to Massachusetts

in 1985. The parties saw each other from

time to time and made various unsuccess-

ful efforts at reconciliation. fThe par-

ties also discussed divorce. According

to the husband's affidavit, he travelled

to New York on or about August 6, 1986,

and spoke by telephone to the wife at

some time after his arrival. The husband

wanted to meet the wife in Vermont; she

wanted him to come to Boston. When he

refused, according to his affidavit, "She

became hysterical and screamed that I had

to come to Boston so that we could

talk." The husband then agreed to come

to Boston.

On August 13, 1986, the wife filed a

complaint for divorce, dated August 8.

On August 14, when the husband arrived at

Logan International Airport, he was

served with the complaint for divorce and

- 2a-

a summons. The husband filed a special

appearance and a motion to dismiss the

complaint for lack of personal jurisdic-

tion. The trial judge denied the motion.

A judgment of divorce nisi entered on

February 10, 1988. The sole issue on

appeal is whether the judge erred in

denying the husband's motion to dismiss

for lack of personal jurisdiction.

Although we have not yet’ ruled

whether service of process should be set

aside if a person has been induced by

fraud or trickery to come within the

jurisdiction of a Massachusetts court for

the purpose of procuring service on him,

other courts have set aside such service

of process. See, e.g., Commercial Mut.

Accident Co. v. Davis, 213 U.S. 245, 256

(1909); Coyne v. Grupo Indus. Trieme,

S.A. de C.V., 105 F.D.R. 627, 629 (D.D.C.

1985); E/M Lubricants, Inc. v. Microfral,

- 3a -

S.A.R.L., 91 F.R.D. 2358, 236-238 (N.D.

Ill. 1981); Willametz v. Susi, 54 F.R.D.

463, 464-465 (D. Mass. 1972). See gen-

erally Annot., Attack on Personal Service

As Having Been Obtained By Fraud or

Trickery, 98 A.L.R.2d 551 (1964).

If we were to recognize the doctrine

of fraudulent enticement, it would not

aid the husband. The husband's affidavit

does not set forth any fraudulent action,

representation, or statement by the wife

that was relied on by the husband. See,

e.g., Willametz, supra at 464-465; E/M

Lubricants, Inc., supra at 237-238. The

husband's affidavit asserts that the wife

"became hysterical and screamed." Those

facts do not constitute a representation

of any kind, let alone fraud, trickery,

or fraudulent representation.

The husband argues that the "deceit

lies in the Wife's failure to disclose

- 4a -

that she would serve [him] with process

upon his arrival in Massachusetts." We

disagree. Silence is deceitful only

where circumstances give rise to a duty

to speak, and such duty is imposed only

"where the defrauding party has made

Statements which are subsequently found

to be inaccurate and where he knows or

should know that the other party is rely-

ing on the inaccurate statements." E/M

Lubricants, Inc., supra at 237, and cases

cited. Hysteria and screaming does not

describe an inaccurate statement. Thus,

the wife was under no duty to disclose

any service that may have been impend-

ing. 1/

1/ Alternately, the husband relies on a

number of cases holding that fraudulent

enticement exists where the defrauding

party induced the other party to enter

the jurisdiction by agreeing to discuss a

settlement. See, e.g., E/M Lubricants,

Inc., supra at 237 (finding the defen-

dant's president offered to enter the ju-

risdiction for the sole purpose of nego-

tiating a settlement); Coyne, supra at

(Cont'd)

On appeal, the wife asks for attor-

ney's fees. That motion is remanded to

the Probate and Family Court where such

fees may be allowed in the judge's dis-

cretion. The judgment of divorce is

affirmed.

So ordered.

Alan S. Geismer, Jr., for Avram Macy

Klavan. Jay S. Gregory for Garrie Joan

Klavan.

628 (during the weeks preceding the fil-

ing of his suit, the plaintiff repeatedly

urged the defendant's representative to

enter the jurisdiction to settle their

dispute). Here, the wife merely asked

the husband to come to Boston to talk --

the husband's affidavit does not disclose

whether they were to discuss a "settle-

ment," a divorce, or a reconciliation.

The record clearly shows that in the

months prior to service, the couple met

twice, in Alaska and Vermont, in an ef-

fort to reconcile. No divorce proceed-

ings were pending in any jurisdiction and

"{n]o mention was made of divorce" during

the telephone conversation. Therefore,

there is no evidence that the wife agreed

to settlement negotiations, and the hus-

band's reliance on those cases is mis-

placed.

- 6a -

APPENDIX B

SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH

ROOM 1412 COURT HOUSE

BOSTON, MASSACHUSETTS 02108

(617) 725-8086

JEAN M. KENNETI FREDERICK J. QUINLAN

Clerk Assistant Clerk

November 30, 1989

Alan S. Geismer, Jr., Esq.

KASSLER AND FEUER

85 Devonshire Street

Boston, MA 02109

Dear Attorney Geismer:

Re: SJC-5067

GARRIE JOAN KLAVAN vs.

AVRAM MACY KLAVAN

Your Petition for Rehearing of the

above-captioned appeal has been con-

sidered by the Court and was denied.

Very truly yours,

/s/

Jean M. Kennett,

Clerk

cc: Jay S. Gregory, Esquire

POSTERNAK, BLANKSTEIN & LUND

100 Charles River Plaza

Boston, MA 02114

- Ja -

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS Probate Court

Dedham Division

No. 86D1093-Dl

Klavan

vs

Klavan

eee eee ee

Atty. for

Garrie Klavan: Peter Zupcofska, Esq.

Atty. for

Avram Klavan: Paul M. Kane, Esq.

McGrath & Kane

4 Longfellow Place

Boston, MA 02114

(617) 523-5600

- 8a -

Judge

On the Motion to Dismiss, I have in fact

read the Motion and both submissions....

Atty

Then I will rest on the Motions and the

affidavit.

Judge

I will be happy to hear your argument if

you wish to, if you want to say anything

further on it.

Atty

No, I think that's all set out there and

the Court has indicated that it has read

the appropriate pleadings.

Judge

Well, I am going to deny the Motion to

Dismiss. Now, there's a Motion for'a fi-

nancial statement. Is your client with

you today?

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. PROBATE & FAMILY COURT

NO. 86D 1093-Dl

GARRIDO JOAN KLAVAN,

Plaintiff

VS.

AVRAM MACY KLAVAN,

Defendant

MEMORANDUM, FINDINGS AND ORDER

This is a Complaint for Divorce

Filed by Garrie Joan Klavan (Garrie)

against Avram Macy Klavan (Avram) on the

grounds of cruel and abusive treatment

and irretrievable breakdown of the mar-

riage. Plaintiff at the time of the

divorce sought custody of two minor

children, Arnie and Michael. The plain-

tiff is also seeking a division of the

assets under Massachusetts General Laws,

Chapter 208, Section 34. The case was

Originally heard on June 4, 1987.

- 10a -

However, a mistrial was declared and the

case recommenced on September 14, 1987.

It was also heard on September 15th, 16th

and 17th, 1987 followed by a hearing ona

contempt on November 10, 1987. All mat-

ters were transcribed, however, the

stenographer did not make the transcript

available to the Court after repeated

requests. The Court has proceeded on the

basis of one transcript and its notes.

MEMORANDUM

The parties were married in New York

on May 29, 1966. It was the first mar-

riage for each. Two children were born

of the marriage: Arnie, who is now 20

years old and in excellent health, and

Michael, who is 18 years old and also in

excellent health. At the time of the

nearing Arnie was living with her mother

in Brookline, Massachusetts, and Michael

- lla -

was living with his father in Anchorage,

Alaska, where he was a freshman at the

University of Alaska. At the time of the

marriage the wife was a student at a com-

munity college in New York majoring in

liberal arts. Avram was an airman third

class in the Air Force. The parties

moved to Biloxi, Mississippi, where Avram

was stationed. Shortly thereafter, they

moved to an Air Force base in Platts-

burgh, New York, where Avram had been

transferred. While at Plattsburgh,

Garrie worked until she was seven (7)

months pregnant and her funds were used

for family purposes. Avram was dis-

charged from the Air Force in February of

1968. The family now consisting of

Garrie, Avram and Arnie, moved to Pots-

dam, New York, where they lived in a

mobile home and where Avram completed a

semester at Potsdam College and where,

- 72. *

after Arnie was born, Garrie continued to

work. Shortly thereafter, Avram went to

work for IBM in Vermont and the parties

moved to Burlington, Vermont. Avram,

while working as an Associate Engineer,

continued his education and received an

Associates Degree in business and

economics. (Michael was born in November

of 1968 while Avram was at Clarkson

University in Potsdam). Sometime in 1969

the parties purchased the- home in

Burlington. As the family grew, Garrie

became a housekeeper; cleaning, sewing,

making curtains, bedspreads, painting and

taking care of the children. She also

worked for a year when Michael became of

school age. She returned to school for a

short time and commenced work again in

November 1975 as a Court reporter. She

was heavily involved in the mid 1970's in

activities involving her children and in

- l3a -

community activities. She was principal

of the local Hebrew school for a period

and had administrative duties.

During the early years the parties

lived in Vermont they had a normal social

life, entertained, had family and friends

over for dinner and took vacations to-

gether visiting Sturbridge, Massachu-

setts, and Montreal, cruising in Maine,

trips to New York City and “Florida.

Their house waS a meeting place for

friends and family.

Garrie is approximately 41 years old

and Avram is approximately 42 years

old. Although Avram's health is excel-

lent, Garrie's health is a cause for some

concern. In 1972 she had a gallbladder

operation with a difficult recovery,

during which she experienced pain in her

Spine and down her right side which made

housework difficult. She ended up doing

- l4a -

some shopping and Avram did help some

with the housework. She depended on the

children for assistance. About three

years later she experienced a change in

her voice -- it became deeper -- and the

development of excessive body and facial

hair. She did not receive treatment

until early in 1982 at which time she had

an adrenal tumor- removed. She was

hospitalized for this treatment for about

ten (10) days in March of 1982. After

the removal of the adrenal tumor. she

experienced mood swings, crying jags,

depression, and an inability to sleep.

She continues to suffer from insomnia,

depression and pain, which adversely

affects her ability to work efficient-

ly. She also suffers from back pain

which has a high probability of continu-

ing. I do not find that she currently

has any carcinoma or is suffering from

Cushing syndrome, nor do I find that

there is a reasonable probability of the

Carcinoma metastasizing. Garrie has also

suffered a deterioration of the jaw bone

with subsequent tooth loss.

Avram started his employment with

IBM in 1970 and had received consistent

advances from a technician to a position

of senior designer. By 1981, however, he

was desirous of leaving IBM and going

into business for himself. At that time

the marriage had been strained for a

couple of years and Garrie was receiving

Marriage counselling. However, repeated

fights and arguments’ continued. Some

joint counselling was entered into

sometime prior to 1981. This was done on

Garrie's initiative in order to preserve

the marriage. In 1981, prior to Avram

leaving IBM, which he did on his own

accord, the parties entered into a joint

- l6a -

business operation -- the opening of a

delicatessen in a shopping center. They

entered into this jointly with the under-

Standing that this was a way for Avram to

leave IBM and become independent. The

business operation was not successful.

The bulk of the work -- food preparation,

personnel management, meeting the

public -- was done by Garrie. Avram

handled the financial matters. In late

1982, shortly after Garrie's surgery,

Avram left IBM to be at the restaurant

full time. At that time the only medical

insurance the parties had was what IBM

provided. While Garrie was concerned

because of lack of medical insurance --

if Avram left IBM -- she did not object

thereto. Avram's leaving IBM~ was

irresponsible. The delicatessen business

continued to deteriorate and in the

Spring of 1983, Avram took a job selling

~ 278. *

hearing aids, a job to which he was not

Suited. Garrie, because of her illness,

was unable to be active in the business

between March and June 1982. She was

also restricted in physical activities.

Avram assisted by trying to keep the

business going, all to no avail. During

her post-operative period, Avram was not

reasonably Supportive of her. In

addition, money was borrowed from

Garrie's mother for a total amount of

$30,000.00. Other monies were borrowed

from friends. In the Spring of 1983 they

decided to sell the business, but the

attempt to sell was unsuccessful. In

August of 1983, Avram, although he had no

employment proposals, left for Alaska for

the purpose of securing employment and

immediately thereafter the business was

Shut down as a result of Garrie being

served eviction notice. When Garrie

- 18a -

informed Avram a violent disagreement

between the parties ensued in which

Avram, via a telephone conversation from

Alaska, threatened to kill Garrie. I

find that Avram deserted his family when

the business was failing. After Avram

left for Alaska, Garrie again sought

counselling because she needed help

coping.

Following the collapse of the

business, the children worked, Garrie

received unemployment insurance and also

did some catering services and worked as

a part-time cook and on other part-time

jobs. The children continued to help by

working at odd jobs and turning what

money they earned into the household.

Michael began to have trouble in school

and the family situation was deteriorat-

ing. By January 1985 Garrie was seeking

fuel assistance allowance, food stamps

- 19a -

and other aid programs. Garrie was still

desirous of seeing whether or not the

marriage could work and in January 1985

she went to Alaska where Avram had been

working since February 1984 there she

found that Avram had been living with

another woman. That ended all prospects

of a reconciliation.

Garrie left Vermont in July of 1985

and started work as an operator-manager

of a student kosher kitchen in Hillel

House at Harvard University. The

children assisted her. She also did some

individual catering. Her work at Hillel

House was unsatisfactory to Hillel House,

and she left in January of 1987. Her

Salary, including work outside Hillel

House and at Hillel House averaged

approximately $22,000.00 per year. She

was unemployed from January 1987 until

July of 1987 and she is now employed as a

- 20a -

transcriber for a Court reporter at 20

hours a week. She now earns approximate-

ly $120.00 a week. She is capable of

doing some catering work and some secre-

tarial work. However, I find that she is

not capable of self-support.

Avram secured employment in Alaska

in late October or early November of

1983. He sent no money back to Garrie

until January 1984. He had several jobs

until March 1984 when he finally received

Steady employment. He is. presently

employed as a camp utilities operator at

Arco-Alaska. He has made a hobby out of

computers and has since being in Alaska

spent approximately $5,000.00 for com-

puter and other electronic and communi-

cations equipment. This was money spent

solely to satisfy his hobby of working

with such equipment. The money could

have been used to support his family.

- 2la -

Arnie is now 20 years old. Her

relationship with Avram was strained in

1982 when Avram lost his temper and

screamed at her, bruised her and called

her trash. She was of great support to

Garrie but became frustrated because of

inability to participate in social

activities. She turned in her earnings

to the family household. Avram did not

attend her high school graduation in

1985. She attended Stern College in New

York as a freshman with approximately 20%

of her tuition, board and room paid by

Avram's mother. She worked the first

Summer after Stern College and then went

to Bar-Ilan University in Israel on full

scholarship. She returned in June 1987

and is now living with Garrie. While

Arnie was at Stern and the University

Avram contributed minimally to her

needs. Arnie is desirous of continuing

- 22a -

her college education. She is capable of

self-support.

Michael now lives with his father in

Alaska where he is attending the

University of Alaska. Until the parties

separated his relationship with Garrie

was normal. Garrie prepared him for his

confirmation (Bar Mitzvah) at age 13 in

accordance with Jewish ritual. She did

the bulk of the preparatory work for the

parties in connection with the Bar

Mitzvah. Thereafter, it became severely

strained. Sometime in 1986 he was sent

to Garrie's mother's house in Florida.

He completed high school while he was in

Florida.

The marital home was purchased in

1970. A family room was constructed as

an addition in 1974. This was done with

money borrowed from the FHA and IBM,

Avram's employer. Garrie continued to

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live in the marital house with the

children (until Michael went to Florida

and Arnie went to Stern College) at which

time she moved to Massachusetts. She

leased the home for 10$ months and used

the rentals for expenses for herself and

the family. The home has since been

sold.

Avram is now living in Alaska in a

rented apartment, one-half of the costs

of which are shared Dy a female

companion. Avram has a gross weekly

income of $1,051.83. He claims only

nimself as a deduction from his gross

income. In addition, he has a savings

plan deduction from his salary of $48.53

per week. His weekly living expenses,

excluding alimony and child support, but

including support of Michael ($123.85),

are $457.68. Avram is fully capable of

meeting the support of Garrie's needs.

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lll

Garrie's income, exclusive of

Support being received from Avram, is

$127.00 per week. I find her weekly

expense needs to be excessive, both as to

rent (she has the ability to share with

another person), telephone and automobile

-

costs. I find her weekly expenses to be

no greater than $500.000.

Avram's assets consist of the fol-

lowing:

1980 Honda Accord $2,200.00

IBM pension 6,000.00

Housenold furnishings 1,000.00

Computer equipment 1,200.00

Hunting rifles 575.00

Bank account 1,330.00

Savings Account 300.00

For a total of $13,105.00

Garrie's assets are as follows:

Household furnishings 1,000.00

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She also has available to her a 1985

Honda Civic, which is in her mother's

name, on which she is making the loar

payments. The Civic is valued at

$4,600.00.

The parties have joint assets as

Follows:

Cash settlement from

Marital home $14,856.88

Anticipated income

tax refund 1980 to

1984 14,000.00

Anticipated income

tax refund 1985 8,446.00

Anticipated income tax

refund 1986 7,000.00

Antique Samovar 700.00

Antique Oak table 675.00

Restaurant equipment 4,500.00

Total of joint assets $49,175.88

Avram's liabilities are as follows:

Loan against the 401K $3,000.00

Loan from Harvey Blitz 3,000.00

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Estimated attorney's

fees 15,000.00

Total liabilities of $21,000.00

Garrie's liabilities are as follows:

Automobile loan $ 4,500.00

Visa loan 950.00

Personal loan 800.00

Telephone obligation 435.00

Mass. Eye and Ear 85.00

A reserved credit

account 1,500.00

Total liabilities of $ 6,770.00

Plus, attorney's fees

and disbursements 25,314.51

Making a total of $32,084.51

The parties joint liabilities are:

Brand $30,000.00

FHA 3,600.00

The Stone 1,600.00

The accountants 4,855.00

IBM Credit Union 650.00

Internal Revenue Service 7,500.00

“a

Saddie Klavan 5,000.00

Making a total of $53,205.00

The Court does not regard monies

that were to be set aside for the

children's education to be a legal

obligation of the Darties to the

children. The parties' joint liabilities

exceed their joint assets.

Garrie's Opportunity to acquire

additional assets is minimal due to the

poor prospects for any meaningful

employment.

Avram is capable of acquiring

further assets because of his technical

skills and his increased employment

Opportunities.

ANALYSIS

Avram's abandonment of Garrie in

times of crisis and his insensitivity to

her problems led to an irretrievable

breakdown of the marriage. He was unable

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to cope with financial difficulties and

this lead to an insurmountable burden

placed upon Garrie even while she was

Supportive of his attempts to become

financially independent. His failure to

Support her also contributed to the

family breakup despite her trying to keep

the family going. While the children

were growing up she had been the primary

Support of the family. Both parties are

of working age and Avram's opportunities

for future acquisition of assets. and

improving his employment status will

continue. He has no health problems. On

the other hand, Garrie's opportunities

are minimal, as she had physical

problems, her administrative abilities

are questionable and her abilit to

acquire future assets, and indeed, to

earn a reasonable income, is doubtful.

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Garrie will need support and maintenance

for the rest of her life.

The delicatessen venture on the

whole was ill-conceived and foolishly

entered into but was a joint venture and

I find both parties should remain jointly

liable for the debts of this venture.

In order for Garrie to meet her

needs she must be maintained on Avram's

medical plan and in addition must receive

no less than $400.00 per week.

Insofar as the Motion for Counsel

Fees incurred the Court is of the opinion

that many of the problems involved in

this case are due to intransitiveness on

the part of Avram. The Court, taking

into consideration the experience of both

counsel and co-counsel of Garrie, will

award Garrie for counsel fees the sum of

$5,000.00 to be paid by Avram in or

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within six (6) months from the date

hereof.

ORDER

Es Judgment is to enter in Garrie

Joan Klavan on the grounds of cruel and

abusive treatment.

II. Avram is to pay Garrie $400.00

forthwith and $400.00 each and every week

hereafter beginning on Friday, February

12th, 1988, by way of wage assignment.

III. The money in their escrow

account of approximately $14,000.00 is to

be forthwith assigned and turned over to

Garrie.

IV. Each party shall retain the

personal property (including automobiles)

Vv. Each party will retain whatever

cash, stock, pension accounts, bank

accounts now standing in their respective

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VI. The parties shall retain their

joint interest on business assets and in

all monies due to the Internal Revenue

Service.

VII. Avram shall pay Garrie in or

within six (6) months from the date

hereof the sum of $5,000.00 as attorney's

fees.

VIII. Avram shall maintain Garrie

and the children on his medical health

insurance coverage program so long as

they are eligible without additional cost

to them. He shall at all times keep

Garrie covered to no less extent than she

is presently covered and = shall_ be

responsible for payment of one-half of

her reasonable uninsured medical, dental

and hospital expenses upon receipt of

validated invoices which shall be

promptly rendered.

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IX. Garrie shall remain or be

reinstated as primary beneficiary of

Avram's present life insurance

policies. No encumbrances shall be put

upon said insurance policies and Garrie

shall be given such evidence, as may be

reasonably required by her, of the policy

remaining in full force and effect. The

said Avram will advise the insurer to

notify Garrie of any prior notice of

cancellation.

DATED: February 10, 1988

[s/

Sumner Z. Kaplan, Justice

Probate & Family Court

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