# Petition for Writ of Certiorari — Klavan v. Klavan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 925

## Text

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

- 23a -

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.

- 24a -

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

- 25a -

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

- 26a -

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

- 28a -

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.

- 29a -

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

- 30a -

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

- 3la -

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.

- 32a -

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

- 33a -

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1156%3A1. Public record. Not legal advice.