Q. My ex and I were never able to reach an agreement in our divorce and we had a trial last year. He filed a notice of appeal. The appeal process seems to take a while and the lawyers have not even filed their briefs.
Since the divorce, my ex has refused to cooperate with the recommendations of our child’s doctors and will not agree to put her on anti-anxiety medication. Her anxiety is really bad and I am very concerned about her transition to middle school in two weeks. Our divorce judgment says we have joint legal custody so I cannot agree to the treatment unless he also agrees. Further, I was working a lot of overtime during the divorce trial on a long-term project. Now that overtime is gone my income is significantly lower than it was at the time of trial. I have had to take unpaid time off to care for our daughter when she has panic attacks.
My lawyer said I can’t modify my divorce until the appeal is done. This just doesn’t seem right. Is there any way to get around this because I am very worried about our daughter’s health?
A. There is a simple way around this so long as there is a true change in circumstances since the divorce which it sounds like you have.
As a matter of law, a modification action in a domestic relations case is considered a collateral proceeding, and a trial court is not prevented from considering a modification action, even during the pendency of an appeal of the underlying judgment. The case on point is Braun v. Braun, 68 Mass. App. Ct. 846, 852-53 (2007). You should ask your lawyer to read it. The court in Braun stated the best practice is for the party seeking to modify a judgment during the pendency of an appeal to ask the Appeals Court to allow the trial court to enter a modification order.
If the Appeals Court grants permission, there is no reason both actions cannot proceed at the same time.
If the notice of appeal has been filed, but you’re still in record assembly at the trial court and the case has not been “entered” in the Appeals Court, you do not even have to ask the Appeals Court for permission to proceed on the modification action.
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