| AMANOLLAH HOMAYOUN VAKIL vs. GUITI | | | | trial transcript, we disagree that the questioning |
| ADJAMI VAKIL. | | | | by wife's counsel regarding the events of May 10 |
| SUPREME JUDICIAL COURT OF | | | | or 11, 2002 (see notes 2 and 3, supra), |
| MASSACHUSETTS | | | | constituted an opposition to the granting of |
| January 11, 2008 | | | | a divorce. In questioning the husband's assertion |
| Factual Background: | | | | that the wife had made a "false claim" against |
| Appellant husband filed a complaint for divorce | | | | him, counsel sought not to undermine the |
| from appellee wife pursuant to Mass. Gen. Laws | | | | evidence of an irretrievable breakdown but rather |
| ch. 208, § 1B, alleging an irretrievable breakdown. | | | | to establish that the husband had physically |
| Before their second marriage to each other, the | | | | abused the wife. Seen in this light, the line of |
| parties executed an ante nuptial agreement which | | | | questioning is consistent with a strategy seeking |
| provided that the wife could not claim alimony if | | | | divorce and an award of alimony, because it |
| she contested the granting of a divorce. The | | | | bears on "the conduct of the parties during the |
| wife's answer requested that the husband's | | | | marriage," one of the factors a judge must |
| complaint for divorce be dismissed. On the second | | | | consider in fixing the amount of alimony under G. |
| day of trial, the wife moved to amend her | | | | L. c. 208, § 34. We find nothing in the record to |
| answer in order to clarify that she did not contest | | | | suggest that the wife's strategy during trial was |
| the granting of divorce. The wife's motion to | | | | to contest "the granting of a divorce" to the |
| amend her answer was denied. A judgment of | | | | husband." This leaves only the wife's original |
| divorce nisi was issued, which awarded no alimony | | | | pleading, denying the alleged irretrievable |
| to the wife. The Appeals Court (Massachusetts) | | | | breakdown and requesting that the complaint for |
| affirmed the judgment insofar as it granted the | | | | divorce be dismissed, as a bar to her eligibility for |
| parties' divorce, but otherwise reversed and | | | | alimony. It is true that nine months had passed |
| remanded the matter. The husband appealed. | | | | since the wife filed her answer, and four months |
| Issues: | | | | had passed since the pretrial conference at which |
| - Whether antenuptial agreement was void as | | | | the judge accepted the wife's withdrawal of her |
| against public policy? | | | | challenge to the antenuptial agreement and |
| - Whether the judge had erred in denying her | | | | suggested that her original answer constituted a |
| motion to amend her answer and her request to | | | | contest to the divorce. However, delay alone is |
| be relieved of her April 2, 2003, stipulation | | | | generally not sufficient reason to deny a motion |
| concerning the enforceability of the agreement | | | | to amend. Moreover, as the judge's memorandum |
| and in thus concluding that she had waived her | | | | of decision demonstrates, there was sufficient |
| right to seek alimony? | | | | evidence to enable him to make findings on all of |
| - Whether the judge had erred in failing to award | | | | the factors that G. L. c. 208, § 34, requires a |
| her $ 25,000 when she vacated the marital | | | | judge to consider in awarding alimony. Because |
| residence? | | | | the judge thus had enough information to |
| Discussion and Holding: | | | | establish an alimony award, and because this was |
| Mass. R. Dom. Rel. P. 15 (a) provides that, after | | | | not a jury trial, the judge's assertion that allowing |
| the expiration of the period during which a | | | | the wife's amendment would have necessitated a |
| pleading may be amended as of right, "a party | | | | mistrial seems dubious. Finally, as the Appeals |
| may amend his pleading only by leave of court or | | | | Court pointed out, "[t]here is nothing in the record |
| by written consent of the adverse party; and | | | | before us to suggest that in seeking to amend |
| leave shall be freely given when justice so | | | | her answer the wife was acting in bad faith, with |
| requires." We have stated that "leave should be | | | | a dilatory motive, or to the surprise and prejudice |
| granted unless there appears some good reason | | | | of the husband," and, because the disparity in the |
| for denying the motion." The Court held that "we | | | | parties' economic situations could well have led to |
| note that the alimony waiver provision of the | | | | an award of alimony under the statutory factors |
| antenuptial agreement is triggered only by a | | | | if she were eligible, "the wife's claims were far |
| contest to the granting of a divorce, not by a | | | | from futile." Because the record reveals no |
| challenge to the terms of the divorce, the | | | | justification for the denial of the wife's motion for |
| enforcement of the agreement, or even the | | | | leave to amend, the judge should have allowed |
| factual circumstances creating grounds for | | | | the motion and considered the wife's application |
| divorce. The judge found that the alimony waiver | | | | for alimony under the terms of the antenuptial |
| provision had been triggered because the wife | | | | agreement. |
| had contested the granting of a divorce both in | | | | Disclaimer: |
| her answer and in her cross-examination of the | | | | These summaries are provided by the SRIS Law |
| husband regarding the irretrievable breakdown of | | | | Group. They represent the firm's unofficial views |
| the marriage. On the latter point, having read the | | | | of the Justices' opinions. |