#152, Drano Series


     
     
    Complaints for Contempt by
    Pocahontas Against Smith
    and
    Smith Against Pocahontas,
    Two Orders by Judge Smoot,
    and 9 Motions to Amend by Smith
    ~~~~~~~~~
    1. Motion to Reconsider Order in ¶1 of August 12th Order re Appointment of Special Master
    2. Motion to Amend Order in ¶2 of August 12th Order re Child Support 
    3. Motion to Amend Order in ¶3 of August 12th re Uninsured or Unreimbursed Medical Expenses
    4. Motion to Amend Order in ¶4 of August 12th Order in Pocahontas Smith v. John Smith and Order in ¶3 of August 12th Order in  John Smith v. Pocahontas Smith, both re Life Insurance
    5. Motion to Stay Order in ¶5 of August 12th Order re Financial Statement
    6. Motion to Amend Order in ¶6 of August 12th Order re Delivery of Children to Pocahontas’s Father
    7. Motion to Vacate Order in ¶7 of August 12th Order re Signing up for DOR/CSE Services
    8. Motion to Amend Order of August 12th to Include Order re Health Care Providers
    9. Motion to Adjudge Pocahontas Smith in Contempt of ¶¶4, 14, 23 of the Amended Judgment of Divorce of 22 April 2004 and to Sanction Her for Falsely Alleging that a Child Was Injured in Smith’s Care and Then Accusing Him of Not Reporting the False Injury to Her

    Judge Smoot denied all the motions and Barb has filed a

    • Notice of Appeal
    • a Motion to Stay Judgment and
    • a Motion for Findings of Fact in both Contempt Actions


    INVIDIOUS GENDER DISCRIMINATION is so clear and absolutely not rebuttable (something lawyers never say) that Barb is waiting for Smoot and the court itself to squirm. 

    Barb will take this all the way up and then, if necessary, jump to the U.S. Supreme Court  to break the back of the entrenched victimization of men in family court.

 
Pocahontas’s Complaint for Contempt Against John




 
 
John’s Answer to Pocahontas’s Complaint for Contempt
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                 Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Answer to Complaint for Contempt, Affirmative Defenses, and Counterclaims

Now comes John Smith ["Smith"] and answers the Complaint for Contempt filed by his former wife, Pocahontas C. Smith , a/k/a both Pocahontas Faith XXXXX and Pocahontas RRRRR.

Preliminary Remark: Because of the insufficiency of time due to the insufficiency of service of process, Smith’s counsel is shortcutting the answer by combining the answers to subparagraphs of ¶¶2 and 3. This document is in three parts: Answer, Affirmative Defenses, and Counterclaims.

PART ONE: ANSWER

  1. Admits.
  2. Denies as written.
2(a)/3(a).
Smith calls upon Pocahontas to prove the same. That order by the court (Roberts, J.) is transparently invalid and as such may be ignored by Smith. 
Furthermore, only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.1986), modified on reh'g, 820 F.2d 1354 (1st Cir.1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir.1991).   Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002).  
"Courts have the inherent power of contempt for violation of their orders. See Doe v. Commonwealth, 396 Mass. 421, 422 (1985). This inherent power, however, is recognized only if the underlying order is valid." Commonwealth v. Florence, F. a juvenile, 429 Mass. 523, 525 (1999). Moreover, the only time a party may be permitted to ignore a court order and attempt to "evade contempt sanctions by litigating the validity of the underlying order itself" is if the court "lacked jurisdiction to make the order, or where the order was ‘transparently invalid.’" Vaklis [sic] v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991) quoting Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986).
Quill v. Eresian, 2000 WL 782930 at 2, (Mass.Super. 2000) (emphasis supplied).

Judge Lisa A. Roberts misconducted herself in diverse ways: she acting in excess of the scope of her duties or criminally when she aided and abetted Pocahontas and Gerald Nissenbaum from evading liability for conversion of money from the escrow account. 

Pocahontas was the principal when E. Chouteau Merrill withdrew approximately $15,000 without permission of this court as required by the order of 27 December 1999 by Judge Nancy M. Gould. When Smith brought a Complaint for Contempt and had a December 5th, 2001, hearing date. Roberts dismissed the case sua sponte without a hearing and without explanation. 

After Merrill was sworn in to the bench, Nissenbaum replaced her as fiduciary on the escrow account. He then continued to pay Beardslee out of that account – without leave of court -- even though her appointment had expired many months earlier. Beardslee made an inexplicable and suspicious trip to Maine in June 2001, when she was no longer the GAL on this case. She met Pocahontas’s wealthy father there, but failed to come back with the twins’ school records, which confirmed that after their removal to Maine, both children developed unusual behaviors for which they required therapy.\FN1/ Beardslee should have come back to Boston with that information. Family Service Officer Timothy Daley brought the records back from Maine at no expense to Smith.
 

FN 1. These behaviors are extensively noted in the children’s Maine school records and by the school psychologist.   Subsequently Judge Roberts appointed still another individual, McCusker, to this case upon the recommendation of Nissenbaum and cooperation of John DiPiano.\FN2/ McCusker hired O’Mara and both also went to Maine and failed to return with information that FSO Daley brought back at the twelfth hour of trial.   
FN 2. There are circumstances surrounding that appointment beyond the scope of this pleading.  
Nissenbaum paid McCusker and O’Mara out of the escrow account. McCusker testified that O’Mara gave him a 60 percent referral fee, which is not customary in the business.

When Smith’s counsel continued to be irate and outspoken about negligence of these people to consider the best interests of the children and to be interested only in how they could decimate the escrow account, Nissenbaum moved for special dispensation from Roberts to put the court’s stamp of approval on his conversion of the res provided by Smith for the escrow account. Judge Roberts egregiously allowed his motion. 

All of these people – Merrill, Pocahontas, DiPiano, Nissenbaum, McCusker, O’Mara, Beardslee – were allowed to benefit from the money Smith was ordered to pass over to Merrill on December 27th in 1999 in Gould’s court in order for him to see the children. None of the money was meritoriously earned by any of those individuals. It was, in a nutshell, stolen from Smith. And worst of all, not one of them came back with the school and psychological records of the children which showed that serious harm had come to the children and that the damage was not yet calculable. See Divorce Trial Exhibit 259, and ¶2(j)/3(j), infra, in which more details are supplied.

In her decision, for spite against Smith’s counsel for her outspokenness, Judge Roberts ordered part of Smith’s interest in the condominium and the parking space to DiPiano and Nissenbaum. There was no legal or factual justification for that action. Smith was entitled to question them fully about the relevant issues. He was not allowed to do so. Those are the very issues underlying her ruling in ¶27. Judge Roberts’ judgment and order are transparently invalid and Smith may ignore them.

Where Smith’s liberty is threatened, he is entitled to a jury of his peers. Therefore, a trial in a court other than the Probate & Family Court is required.

2(b)/3(b). Denies as written for it is untrue. The court wrote in ¶27, in relevant part: "She shall be solely entitled to, collect the rent from any tenant occupying the Marital Home."

Without waiving his denial that he owes Pocahontas any rents, Smith states that after he received a copy of the judgment of divorce nisi, with which he was never served by the court, he gave Pocahontas the keys forthwith to the condominium. Pocahontas then immediately "evicted" the existing tenant. Any rents that she is not receiving is because she did not want to receive rents. The condominium has been left vacant since sometime in 2004, and as such has wasted the assets of the now-divorced couple.

2(c)/3(c). See item 2(a), supra. 2(d)/3(d). Denies that he owes Pocahontas child support.

Smith informed Pocahontas to keep certain items that she was ordered to return to him and that those items would give her child support in advance for many years. See Exhibits A and B attached hereto this pleading. Exhibit A covered Smith’s child-support payments for 84 weeks. Exhibit B allowed Pocahontas to keep items she had been ordered by the court to hand over to him. Their value was $4173.21, which is equivalent to 59.62 weeks of child support. 

Smith’s counsel has received nothing from Pocahontas. Given also that a year has passed since Smith offered these proposals and Pocahontas only now brings this contempt, and other "things" have come to pass in Pocahontas’s personal life, there is good reason to believe that she has other ulterior motives to abuse the process and bring this contempt action at this time.

2(e))/3(e).  Denies as written, for Pocahontas is attempting to perpetrate a fraud upon this court. The decision of the divorce does not contain such a provision. The relevant portion of the decision as to medical care and insurance reads as follows:
  16. Wife shall provide and maintain health insurance for the unemancipated children, and shall be solely responsible for their ordinary and reasonable uninsured medical, dental, orthodontic, ophthalmic, eyeglass, prescription drug, counseling or therapy, and hospital expenses. In the event an unemancipated child requires or incurs such an uninsured expense in excess of $250, Wife shall pay sixty six percent (66%), and Husband shall pay thirty four percent (34%). Except in an emergency, wife shall notify Husband, in writing, thirty (30) days before such an expense is incurred, and provide him with an estimate of the amount of the uninsured expense. Wife shall pay the uninsured expense in the first instance, and Husband shall reimburse her for his share of the amount she has paid within thirty (30) days of her payment of it.   At no time has Pocahontas informed Smith that "an unemancipated child require[d] or incur[red] such an uninsured expense in excess of $250."
2(f))/3(f). Denies as written, for Pocahontas is attempting again to perpetrate a fraud upon this court. The decision of the divorce does not contain such a provision. The relevant portion of the decision as to medical care and insurance reads as set out in ¶16, supra. 2(g))/3(g).  The allegation in 3(g) is a TOTAL lie. It is irrelevant what Pocahontas claims the judgment says. It simply does not apply to anything that has happened while the children have been in Smith’s care. Smith calls upon Pocahontas to produce the dental records of the children.

Upon receiving this Complaint for Contempt on Friday April 22nd, 2005, Smith asked the twins, who were with him for the school vacation week, about a broken tooth. Twin #1 replied, "It happened 1 to 2 years ago while playing football at school." Twin #2 replied, "I wasn’t really playing football." Up to that point, Smith did not know there was a broken tooth, never mind which twin had broken one. Smith asked the child (Twin #2) to point to the tooth that had been broken. Smith looked at Twin #2’s teeth and could not detect a broken tooth. So what Pocahontas is talking about now, Smith has no clue.

The question raised here is of far more importance than Pocahontas’s lie about a tooth. The question here is, How far will Pocahontas go to cover up abuse of the children? At trial, Pocahontas admitted punching the children [Day 23, p.4680; Tr.Exh.135]: "You do not love us. Twin #1 asking last night why mom punched them and threw away our toys -- throw away our toys." [Id.] 

Here we have one child saying his brother’s tooth was broken during a football game. His brother, the one with the alleged broken tooth, said, "I wasn’t really playing football." Well, then, did Pocahontas have anything to do with the tooth?

Pocahontas cannot handle the children: When Pocahontas gets frustrated and angry with the children, she often rides around on her bicycle in circles on the driveway [D23:4863]. When she is frustrated and/or angry with the children, she often calls baby-sitters and leaves [D23:4863]. 


 
Beardslee’s notes  Trial Exhibit Description Transcript page
4 January 2001  Tr. Exh. 135 Pocahontas saying, "You do not love us. [Twin #1] asking last night why mom punched them and threw away our toys – throw away our toys." [D23:4680]
7 November 2001  Tr. Exh. 136 Twin #1 looked wistful to Beardslee  [D23:4691]
7 November 2001  Tr. Exh. 136  "Twin #1 says he wishes he could see his dad" [D23:4691-4692]
7 November 2001 Tr. Exh. 136 Beardslee said she responded, There is no supervisor and that someone is working on it"

Twin #1 saying, "It’s taking a lot of time" 

A child saying, "Dad went to jail for breaking and entering when he couldn't go there to condo." 

[D23:4692]
 

[D23:4692]

[D23:4692]

7 November 2001  Tr. Exh. 136  "The boys would like to see their dad as soon as possible." [D23:4693]
7 November 2001  Tr. Exh. 136 Twin #1 was asking if he can call his dad  [D23:4694]
7 November 2001  Tr. Exh. 136 "Twin #2 blames himself"  [D23:4694]
7 November 2001  Tr. Exh. 136 "Twin #2 is feeling unworthy"  [D23:4695]
7 November 2001  Tr. Exh. 136  "Has had a significant negative impact on Smith’s sons"  [D23:4695]
7 November 2001 Tr. Exh. 136   "they are still reeling from Smith’s sudden departure" in a conversation with Pocahontas  [D23:4695]
  1. None of the November 7th entries were entered into a report by Beardslee. Beardslee believed that she was still the guardian ad litem on this case on 7 November 2001 [D23:4697]. Smith has always maintained that she was not a GAL on the case after 19 March 2001, when she filed her updated report [Tr.Exh. 124]. Given however, that she believed she was still the GAL on the case, and had not put the children’s wishes into the two prior reports she filed, she was obligated to file a report with the children’s clear wishes in it. The dialogue, repeated here because of its importance, was [D23:4693-4694]:
      Q You did not write a report regarding the boys' wishes, did you, after November 7, 2001? 

      A That's correct. 

      Q Is there a reason why not? 

      A I did not think that this represented any change in the boys' wishes. 

      Q So they had always wanted to see their dad? 

      A Yes. 

      Q And they always wished to see him as soon as possible? 

      A I believe so. 

      Q And they always in fact have loved their dad; isn't that fair to say, Mrs. Beardslee?

      A I would say that that is fair to say. 


 
2(h))/3(h).  Denies. Smith has a financial vehicle – Fidelity Investments, Retirement Savings -- which was set up years ago with Pocahontas as the primary beneficiary (100 percent) and if Pocahontas is not alive, 50 percent for Twin #1 and 50 percent for Twin #2. The current value is $130, 391.96. On the other hand, Pocahontas has never notified Smith that she has "obtain[ed] and/or maintain[s] insurance on his/her respective life with a death benefit of no less than $100,000 naming the other party as trustee in trust for the benefit of the children as the sole primary beneficiary." 2(i))/3(i).  Denies. Smith calls upon Pocahontas to prove the same. See ¶2(a), supra. Smith filed the requisite certification in the court as ordered 10 weeks after obtaining the court order. He had fulfilled the course referred to in the Standing Order years ago. 2(j)/3(j).  Denies. Smith has always dropped the children off at the designated visitation exchange location after his visits. It is Pocahontas who has not dropped off or picked up the children at the designated visitation exchange location after his visits. After one visit, Pocahontas sent her father, who had been accused by one of the children of sodomizing him. Subsequently, on 19 March 2001, Judge Ordonez issued an order that Pocahontas’s father shall not be left alone with the children. 

This was before it was learned – as a result of Family Service Office Timothy Daley’s visit to the elementary school where the children were in attendance – that the other twin was suffering from daily encopresis, which is also a common symptom of sodomy. 

When the children saw Pocahontas’s father in the car, they cried and did not want to enter the car with him. Smith called his counsel on his cell phone. At that time, the grandfather’s third wife appeared on the scene, extremely agitated and yelling. The grandfather then blocked Smith’s car, an act tantamount to kidnapping. See photo, Figure 2, next page. Smith managed to calm the children sufficiently so that they went into the grandfather’s car. Pocahontas caused that scene by being negligent about the twins.


 
185. Husband wanted to call the children as witnesses at trial. He argued that the Court needed to hear from the children themselves what they said to him on March 11, 2001 that he recorded on the Tape, and to hear from them about the circumstances under which the tape was made, to prove that their statements on March 11th were credible, and to prove that he did not coach them before they made the statements. The Court reserved ruling on Husband's Motion to call the. children as witnesses until the conclusion of all other evidence, which included:
  1. Husband's testimony about what the children said to him on March 11, 2001, that he recorded on the Tape. There is no doubt that the children made the statements on March 11, 2001 that Husband testified they made. Their testimony at trial about what they said would have been cumulative, and was unnecessary.
Figure 1. Excerpt from Judge Roberts Findng of Fact After the 59-Day Divorce Trial

 
    Given that Pocahontas did not give birth to her daughter until a month after she sent her father to pick up the children, Smith calls upon Pocahontas to prove that she was, as she claims, in labor at that time.
 
 

Figure 2. Smith’s car on left, Russ VVVVVV’s car (driven by Ted XXXXX) on right blocking Smith’s car in the Merrimac, MA, police station parking lot on Saturday, 17 April 2004

Pocahontas’s complaint brings us, however, to another subject. Pocahontas committed adultery during the marriage, but denied it in court. The three GALs assigned to the case over Smith’s objection literally robbed Smith of $$$$tens of thousands of dollars. They all allegedly went up to Maine at one time or another and none of them came back with the information that Pocahontas was co-habiting adulterously with a male. FSO Daley learned the truth from the children. More importantly, FSO Daley produced school medical and psychological records [Divorce Trial Exhibit 259], at no cost to Smith, which not only circumstantially confirmed that Smith’s report to the court that one of boys was being sodomized by Pocahontas’s father, but also circumstantially confirmed that the other twin was also being sodomized by Pocahontas’s father. And above all, those school records circumstantially confirmed that Smith was not coaching the children as Pocahontas claimed.   As a result of the adultery, Pocahontas conceived. She gave birth to the child out of wedlock on or around May 15th, 2004, before the divorce judgment became final. She then married the man who sired her child on the weekend of July 4th, 2004, before the divorce became final. She is an adulteress and a bigamist. 

Biologically, Pocahontas’s new husband is the father of the infant, but legally, the child is Smith’s . . . and Smith would gladly take all three of them (his two sons and the infant) into his custody and teach them the morals, values, and honesty that they should learn but are sure not to learn in the custody of Pocahontas, who is teaching the children "versions" of stories . . . in other words, how to lie and manipulate.

But Smith does not want Russ and Pocahontas’s child. Smith wants only to remove his twin sons, whom he firmly believes were abused in Pocahontas’s care by her father. His fear is that if the abuse continues, even periodically, his sons will become abusers. He, therefore, wants to remove them immediately from the XXXXX’s contaminated family atmosphere. 

Judge Gould was not convinced in April 2001, when XXXXX testified in her court, that XXXXX presented a "clear and present danger." Instead, she concluded that XXXXX was "a pillar of the community."

Ironically, exactly a year later, in April 2002, XXXXX, trying to switch blame for the alleged molestation of his second daughter (the one he said, in Gould’s court, had the "false memory syndrome"), invented the story of a priest, an anonymous priest, who had access to his daughters at a time XXXXX was separated from his first wife, their mother. The question then became, Was the priest a priest who enjoyed the intimate company of adult women, like Mrs. XXXXX, or was the priest a priest who was a pedophile? The answer does not matter. 

The significance of Mr. XXXXX’s differing testimony from one year to the other is that both times he never denied daughter #2 being sexually abused.

XXXXX’s testimony was given during a deposition taken in Maine and audio-videographed and played and transcribed at the divorce trial.  2(k))/3(k).

    Why in the world is Pocahontas talking about transcripts?
   4.  Denies. All these issues are discussed supra.

   5.  Denies. Smith calls upon Pocahontas to prove the same.

   6.  Pocahontas has made an error. There is no ¶6. Paragraph 5 
        is at the bottom of page 3 of her Complaint and ¶9 is at the 
        top of page 4.

   7. Pocahontas has made an error. There is no ¶7.

   8. Pocahontas has made an error. There is no ¶8.

   9. Smith calls upon Pocahontas to prove the same.

 10. Smith calls upon Pocahontas to prove the same.

WHEREFORE, Defendant requests that the Court dismiss the Complaint for Contempt.

PART TWO: AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

  1. Pocahontas C. Smith's complaint in contempt must fail because they who seek equity must come with clean hands, as under the doctrine of unclean hands.
SECOND AFFIRMATIVE DEFENSE
  1. Pocahontas C. Smith's complaint in contempt must fail for failure to state a claim upon which relief may be granted. Mass.R.Civ.P. 12(b)(6).
THIRD AFFIRMATIVE DEFENSE
  1. Pocahontas C. Smith is barred by estoppel from recovering on any theory of law.
FOURTH AFFIRMATIVE DEFENSE

    4. Because of the fraudulent acts of Pocahontas C. Smith, she is 
        barred from recovery.

FIFTH AFFIRMATIVE DEFENSE

  1. John Smith, Pocahontas was justified in his acts and conduct, and is therefore not liable to Pocahontas C. Smith as alleged in her complaint.
SIXTH AFFIRMATIVE DEFENSE
  1. Pocahontas C. Smith's claims against Smith are wholly insubstantial, frivolous, and not advanced in good faith, and are therefore in violation of G.L. c. 231, sec. 6F.
SEVENTH AFFIRMATIVE DEFENSE
  1. John Smith, hereby gives notice that he intends to rely upon such other and further defenses as may become available or apparent during trial in this action, and hereby reserves the right to amend his Answer and to assert any such defense by appropriate motion.
PART III: COUNTERCLAIMS

John Smith, Jr. ["Smith"], in the above-entitled action hereby asserts the following claims as counterclaims against Pocahontas C. Smith in the above-entitled action.

  1. John Smith, is the plaintiff in counterclaim. He resides on 27 ________ Road, ________, MA. He is the former husband of Pocahontas C. Smith.
  2. Pocahontas C. Smith, a/k/a Pocahontas XXXXX, is the defendant in counterclaim. She resides at 8 ________ Drive, Cumberland Center, ME. She is the former wife of John Smith, Jr.
  3. They have twin sons, born 3 December 1994, William XXXXX Smith and John XXXXX Smith.
  4. Their divorce became final on 19 July 2004.
FIRST COUNTERCLAIM: SOLE PHYSICAL CUSTODY OF THE CHILDREN
  1. Plaintiff-in-Counterclaim Smith incorporates herein by reference paragraphs 1 through 4 with the same force and effect as if herein set forth.
  2. Formerly primary caregiver of the children, Smith seeks sole custody of the couple’s twin sons.
  3. Under the care of their mother, Pocahontas, the children have suffered continuously by the lack of care and attention. Mother works full-time and for the 4-1/2 years that she has had the boys in her custody, has sent them out to the care of strangers. As she testified in the couple’s divorce trial, when she is emotionally burdened by the children, she leaves.
  4. The children crave attention from their parents and the only parent who is prepared to give the requisite care and attention is the father.
  5. The children have been sexually abused and the father fears they will become abusers were they to continue living in their present family environment. See attached videotape. Circumstances similar to those on the videotape exist amongst the XXXXXs. 
  6. The children have not made fast friends in Maine. 
  7. They dislike school and their mother has done nothing to teach them about the joy of learning. Twin #2 cannot even spell his first name. 
  8. The children’s primary activities consist of watching videos and cartoons. Their father finds them totally unacceptable. 
  9. Their father has found creative ways to stimulate their minds and make them enthusiastic and self-motivated about such things, for example, as learning how to spell.
WHEREFORE, Smith prays that this Court remove the children from the potential dangers and award him sole physical custody of them.

SECOND COUNTERCLAIM: EXCLUSIVE USE AND POSSESSION OF THE CONDO

  1. Plaintiff-in-Counterclaim Smith incorporates herein by reference paragraphs 1 through 13 with the same force and effect as if herein set forth.
  2. Smith seeks exclusive use and possession of the couple’s condominium, Unit #2, on 58 Temple Street, Boston, MA, until the children are emancipated.
  3. The condominium is where the children were raised for the first five years of their life, and they were schooled in Boston. Boston is midway between ________, where Smith is currently residing, and Cumberland Center, Maine, where Pocahontas is currently living with her second husband and one-year-old daughter. 
  4. Visitation will be made considerably less onerous on the children were they living in Boston. Currently they are having to travel four hours each way for visitation. 
  5. The choice of schools is better in the Boston and environs area. 
  6. The cultural events are more plentiful and varied in the Boston and environs area.
WHEREFORE, Smith prays that this Court award him the exclusive use and possession of the condominium in Boston until the children emancipated.
 
Respectfully submitted,
John Smith,
By his attorney,
25 April 2005         Barbara C. Johnson_
                                Barbara C. Johnson, Esq.
                                6 Appletree Lane
                                Andover, MA 01810-4102
                                978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 25 April 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

25 April 2005        _______________________
                               Barbara C. Johnson, Esq.


 
EXHIBIT A (1 of 3)


Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 
email: barbaracjohnson@worldnet.att.net

26 May 2004

John DiPiano, Esq. 
180 Canal Street, Suite 400                                      BY FAX & EMAIL
Boston, MA 02114-1804 

Re: Proposal regarding child support and uninsured medical costs

Pocahontas C. Smith v. John Smith, Jr., Docket No. 99D-0000-DV1  Dear John:

On 28 February 2004, Smith moved the court to amend certain parts of the judgment. The judge did not make the requested changes. Notwithstanding her failure to make them, they were very good ideas, ideas by which not only Smith but also Pocahontas would benefit. Therefore, I am including those related to child support here. Smith and Pocahontas can come to an agreement, even though the court overlooked the fairness and practicality of those ideas.

I discuss those here which have to do with child support and uninsured medical costs.

Uninsured Medical Costs

16. . . . In the event an unemancipated child requires or incurs such an uninsured expense in excess of $250, Wife shall pay sixty six percent (66%), and Husband shall pay thirty four percent (34%). Except in an emergency, wife shall notify Husband, in writing, thirty (30) days before such an expense is incurred, and provide him with an estimate of the amount of the uninsured expense. Wife shall pay the uninsured expense in the first instance, and Husband shall reimburse her for his share of the amount she has paid within thirty (30) days of her payment of it.

29. Simultaneously with the transfer of title to the Marital Home as aforesaid, Wife shall pay Husband $10,000 as a division of assets and not as alimony.

Smith proposes that Pocahontas not pay him the $10,000 but keep it to cover all uninsured medicals in excess of $250 per year. Pocahontas is, however, to provide him the original medical bills and copies of both sides of the cancelled checks by which she paid the uninsured medicals. This will lessen the contact between the parties and minimize rancor. 

Child Support Payments

19. Beginning in and for the week following the date of this Judgment, and each week thereafter until both children are emancipated pursuant to the provisions of G.L. c. 208 § 28 or other applicable statute, Husband shall pay child support to Wife for the two children in the amount of $70 by implemented wage assignment through the Department of Revenue ("DOR"). The condo rent as child support: Because both Pocahontas and Smith moved to amend the judgment, it was unclear as to whether the order in ¶19 was to take place when we finally received, if ever, the judgment or whether they were to take place after the court’s decision on the motions to amend. Because of the ambiguity, it was best to be safe rather than sorry, so Smith turned over the keys to the condo to Pocahontas within a week of picking up the judgment in court

Given that Smith did not have to turn the condo over so quickly, the rental money Pocahontas has received since then is to be divided by $70 so as to determine the number of weeks for which he paid child support ahead of the date on which the child support was due. For example,

    • $1800 for the month from March 1 through March 3. He reduced that amount by deducting money he had put out to cover the taxes for the 2 or 3 overlapping months’ worth of taxes, 2 months’ condo fees, and a brand new hot water heater. That left $480, which he sent to Pocahontas. $480 divided by $70 = 6.86 weeks of child support.
    • $1800 for the month from April 1 through April 30 divided by $70 = 25.7 weeks of child support.
    • $1800 for the month from May 1 through May 31 divided by $70 = 25.7 weeks of child support.
So the $4080 ($480 + $1800 + $1800) rent that Pocahontas has collected is equivalent to 58.28 weeks of child support paid in advance by Smith. This is rent that he has been entitled to keep, given that Pocahontas has not complied with any part of the court order except delivering and picking up the children for "visitation." (I prefer calling that time "parenting time." Parents do not visit with their children, they parent them.)

From the $1800 rent for June 1 through June 30, which Pocahontas will be receiving within the coming week, Smith has credit due for another 25.7 weeks of child support, yielding a new total of 83.99 weeks. The $4080 rent for March through May added to the $1800 for the June rent totals $5880, which yields advance payments for 84 weeks of child support.

My client would like a receipt from Pocahontas showing that she has received 84 weeks of child support in advance.

My client would also like an agreement that she will not apply for DoR assistance at any time, for (1) it is not necessary, (2) the DoR receives bonus incentives from the federal government and (3) those incentives then get shared with the judicial branch. Smith’s intention is that the children should benefit from any funds he puts out for their support, not the government.

Sincerely,

/s/ Barbara C. Johnson

cc: John Smith, Jr.


 
EXHIBIT B (1 of 2)
Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 
barbaracjohnson@worldnet.att.net

29 May 2004

John DiPiano, Esq. 
180 Canal Street, Suite 400                                          BY FAX & EMAIL
Boston, MA 02114-1804 
 

Re: Proposal regarding Smith’s tools
       Pocahontas C. Smith v. John Smith, Jr., Docket No. 99D-0000-DV1 
Dear John:

The Judgment and Amended Judgment of Divorce Nisi granted Smith 
the return of his tools. Because Smith needed the tools long before the 
judgment was issued, he replaced all but the orange stepladder.
Smith requested the return of his tools in a letter dated 7 June 2001 and 
sent to E. Chouteau Merrill. I never received a response to that letter. 
Subsequently on behalf of Smith, I filed a motion for the tools Subsequently 
I requested Nissenbaum’s assistance to get the tools. Everything I did on 
behalf of Smith to get those tools was to no avail. Therefore, I now seek the 
money in lieu of the tools.

Cordless drill – DeWalt 18V, ½" hammer drill                                       $ 269.00
Stepladder, 8' orange                                                                                  149.00
Belt sander (this was Smith's dad's) (a/k/a floor sander, EZ-8)                2054.61
Excelite screwdriver (yellow handle)                                                (est.)  25.00
Snap-on Phillips driver (black handle)                                                         35.00
Chisel (Stanley)                                                                                              9.00
Long-nose pliers (red handle) (manufacturer, Channel Lock)                       15.96
Electrician's pliers                                                                                        17.98
Cut-off pliers (wiring)                                                                                  17.37
Wire strippers                                                                                               12.00 
Hammer (Estwing)                                                                                        24.83
Pry bars (two Stanley Steel)                                                                         12.00
Small nailer, air-powered (BN, brad nailer, porter cable)                         119.00
Floor nailer, air-powered                                                                           469.00
Paint brushes and rollers                                                          (approx.)      60.00 
Cut-off saw (DeWalt, bought in 1999, 12" sliding compound saw)            599.00
DeWalt stand for the cut-off saw, Part No. 235-294                                   199.00
DeWalt crown-molding adaptors                                                  (approx.) 30.00
Box flooring nails                                                                                         51.97
18 gauge x 2                                                                                                    3.49
Total Value ............................................................................................ 4173.21

In my letter of 26 May 2004, I included a proposal that covered Smith’s 
child-support payments for 84 weeks. I propose now that the $4173.21 
also be converted to advance payments of child support. Divided by $70 
per week, the sum of $4173.21 is equivalent to 59.62 weeks. Adding 
59.62 weeks to 84 weeks gives a total of 143.62 weeks of prepaid 
child support.

Sincerely,

/s/ Barbara C. Johnson

cc: John Smith, Jr.


 
 
John’s Complaint for Contempt Against Pocahontas
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                         Docket No.  99D-0000 

John Smith, Jr.
Plaintiff

v.

Pocahontas C. Smith 
Defendant

 
  SMITH’S COMPLAINT FOR CONTEMPT (22 MAY 2005)
(filed at the suggestion of this Court)
  1. Plaintiff John Smith, Jr. ["Smith"], resides at _____________, and is the former spouse of Defendant Pocahontas XXXXX Smith , a/k/a Pocahontas F. XXXXX.
  2. Defendant Pocahontas XXXXX Smith , a/k/a Pocahontas F. XXXXX, resides at __________________________, is the former spouse of Smith and the current spouse of ____________.
  3. In ¶4 of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, Pocahontas was ordered to perform as follows: 
Figure 1. Amended Judgment of Divorce Nisi, ¶4
    1. Pocahontas has failed to provide Smith with copies of the children’s report cards at any time. 
    2. Pocahontas has failed to provide Smith with the children’s school calendars.
    3. Pocahontas left for Smith one message on his answering machine regarding a parent-teacher meeting to take place the next morning at 7:30 a.m. Smith has saved the tape of her message, and shall offer it as evidence to the court. The notice was unreasonably untimely.
    4. Pocahontas did provide him information regarding the children’s soccer activities. 
  1. In ¶5 of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, the court granted Smith certain rights. Pocahontas interfered with those rights granted him in ¶5: 

  2. Figure 2. Amended Judgment of Divorce Nisi, ¶5

    On Wednesday, 8 September 2004, Pocahontas notified Smith by emails to his counsel of the boys’ soccer activity. On 9 September 2004, Johnson received the following email 
     

        Hi Barbara

        Yes, I will be at the boys’ soccer games (unless Smith were to bring them up for a game on one of his weekends, in which case I would stay away so as not to intrude upon their time together), but that is no reason why Smith should not attend. First, the restraining order is clearly limited to Smith going to my house, office, or Keoka property. He is perfectly welcome to, and has every right to, attend the boys’ school and sporting events. Also, as a practical matter, with two sons who play on two different teams at the same time, Smith can avoid me completely if he wishes, by watching one boy while I watch the other. (They both play at Twin Brooks, but on different fields.) There is only one game each year when their teams play each other, and that may well fall on one of the visitation weekends when the boys are with their father instead of playing. If it does not fall on one of Smith’s weekends and he wants to come up to watch the game, we can always just stay on opposite sides of the field. 

        Pocahontas


    Figure 3. Copy of email from Pocahontas to Smith’s counsel, 9/9/04 10:42 AM

    Because Smith feared Pocahontas inventing some untoward conduct by Smith – she had written she would also be in attendance -- he requested his attorney accompany him to the games in case Pocahontas summoned the police as she has done after inviting him to Maine in the past [Exhibit A, Cumberland Center police report of 27 October 2000].\FN1/

    Figure 4. Thumbprint of Exhibit A

      FN1 Counsel intentionally stayed as an observer in the background, i.e., not standing next to Smith at any time.


    At one point, Pocahontas was walking towards him and as she approached him, she began talking in an agitated manner to him. He immediately became scared that he was being set up and would end up getting arrested. Thereafter, he feared going to the rest of the games.

    In ¶14 of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, Pocahontas was ordered to perform as follows: 

Figure 5. Amended Judgment of Divorce Nisi, ¶14
Pocahontas has failed to perform her obligations under ¶14 of the Amended Judgment of Divorce Nisi.
    6. In ¶16 of the Amended Judgment of Divorce Nisi issued by this Court on 22 
       April 2004, Pocahontas was ordered to perform as follows: 

Figure 6. Amended Judgment of Divorce Nisi, ¶16

Pocahontas has failed to perform her obligations under ¶16 of the Amended Judgment of Divorce Nisi.
    7. In ¶17 of the Amended Judgment of Divorce Nisi issued by this Court on
        22 April 2004, Pocahontas was ordered to perform as follows: 


Figure 7. Amended Judgment of Divorce Nisi, ¶17

  8.   Pocahontas has failed to perform her obligation under ¶17 of the Amended
        Judgment of Divorce Nisi to notify Smith as instructed regarding uninsured 
        expenses in excess of $250. That she so failed did not, ironically, stop her
        from accusing him of being in contempt of ¶17. 

Although not explicitly mentioned in ¶17, where it would have been logical to put the order, the order requiring Pocahontas to inform Smith of the type of health insurance she is maintaining, if any, for the children appears in ¶20, beginning on line 8 of that paragraph:

Figure 8. Amended Judgment of Divorce Nisi, ¶20

    In ¶20 of the Amended Judgment of Divorce Nisi, Pocahontas was ordered to provide documentation from the insurer confirming the amount she pays weekly for the children’s health insurance coverage only. See arrow supra. Pocahontas has failed to perform as required under ¶20.
    9. In ¶23 of the Amended Judgment of Divorce Nisi issued by this Court on 22
       April 2004, Pocahontas was ordered to perform as follows: 

Figure 9. Amended Judgment of Divorce Nisi, ¶23

Pocahontas has failed to provide to Smith documentation that would confirm or prove that she has performed her obligations under ¶23 of the Amended Judgment of Divorce Nisi. 

Notwithstanding her failure to prove that she has obtained and/or maintains insurance on her life with a death benefit of no less than $100,000 naming Smith as trustee in trust for the benefit of the children as the sole primary beneficiaries, she, again in bad faith, accused Smith of failing to maintain such insurance, although she has been well aware for years that Smith maintained such a financial vehicle for the benefit of the children.

  1. In ¶26(A) of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, Pocahontas was ordered to cooperate with selecting a broker. 

  2. Figure 10. Amended Judgment of Divorce Nisi, ¶26(A)

    Pocahontas has failed to cooperate in selecting a broker, although Smith reminded her a year ago of the name of he broker whom they used when purchasing the easement and informed her of the then-approximate value of the easement.
     
     

  3. In ¶27 of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, Judge Roberts listed the personal assets each party was being allowed to retain. Smith was being allowed to retain his tools. 

  4. Figure 11. Amended Judgment of Divorce Nisi, ¶27

    Many of those tools were in the possession of Pocahontas, and Smith testified to them at time of trial. Smith had also written Pocahontas’s diverse divorce counsel about those tools on several occasions, the last being on 29 May 2004 [Exhibit B]:

    Smith requested the return of his tools in a letter dated 7 June 2001 and sent to E. Chouteau Merrill. I never received a response to that letter. Subsequently on behalf of Smith, I filed a motion for the tools. Subsequently I requested Nissenbaum’s assistance to get the tools. Everything I did on behalf of Smith to get those tools was to no avail. Therefore, I now seek the money in lieu of the tools.

    Smith received no response from any of Pocahontas’s counsel. Nor has he heard from Pocahontas since she asserted that she was representing herself, pro se.

    In the Amended Judgment, Judge Roberts set a value of $10,000 on those tools [Findings of Fact, p. 99], which was based on Smith’s Financial Statement of 6/10/2002 [Findings of Fact, ¶90(BB)], which, in turn, was based on Smith’s valuation of all his tools.\FN2/
     

      FN2That Judge Roberts added the value of Smith’s tools to what he was awarded of the so-called marital property was yet another one of the countless acts of gender discrimination. She should have added the value of Pocahontas’s Harvard Law School education to her list (on page 99 of the Findings of Fact) of what Pocahontas was retaining. That education was as much a tool for Pocahontas’s work as Smith’s tools were for his work.


    In his letter of 29 May 2004, Smith set $4173.21 as the value of those tools which were still in Pocahontas’s possession and many of which he had to replace because he needed them. 

    No response forthcame from Pocahontas or her counsel to the letter of 29 May 2004, in which Smith proposed applying the value of the tools Pocahontas kept toward his child-support obligations, and Pocahontas has still failed to return those tools. 

    Given her silence and her failure to act, Smith has assumed the proposal he made was acceptable. An adverse inference may be drawn when a case adverse to the interests of the party affected is presented. See Quintal v. Commissioner of Dept. of Employment and Training, 418 Mass. 855, 861 (1994), citing Custody of Two Minors, 396 Mass. 610, 616 (1986), citing Mitchell v. Silverstein, 323 Mass. 239, 240 (1948). See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557 (1976). 
     

      Hennessy's silence is further indication that the plaintiffs' version of events is essentially correct and I have drawn an inference adverse to Hennessy from his failure to testify. See McGinnis v. Aetna Life & Casualty, 398 Mass. 37, 39 (1986). I have considered this adverse inference as a credibility factor in addition to the normal criteria (demeanor, logic and consistency of plaintiffs' testimony, etc.) for assessing the plaintiffs' credibility. That is, the credibility of the plaintiffs' testimony has been enhanced by the adverse inference I have drawn against the defendant for his failure to testify.


    Giorgio v. Hennessy, 1995 WL 808665 at 10, No. CA9303171E (Mass.Super. Feb. 8, 1995) (Cowin, J.).
     

  5. In ¶30 of the Amended Judgment of Divorce Nisi issued by this Court on 22 April 2004, Pocahontas was ordered to pay $10,000 to Smith upon the transfer of the title to 58 Temple Street, Boston, MA. 

Figure 12. Amended Judgment of Divorce Nisi, ¶30

Pocahontas failed to transfer the $10,000 to Smith. Neither, so it appears, given her Complaint for Contempt against Smith, did she accept his proposal in his letter of 26 May 2004. WHEREFORE, Smith requests that his former wife, Defendant Pocahontas C. Smith, a/k/a Pocahontas F. XXXXX, be required to appear before this Court to show cause why Pocahontas C. Smith, a/k/a Pocahontas F. XXXXX, should not be adjudged in contempt of Court and for such other relief as to this Court may seem just and fair.
                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

24 May 2005                               Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 24 May 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

24 May 2005                                     _______________________
                                                          Barbara C. Johnson, Esq.

                                             EXHIBIT A

Successor counsel requested the report on or around 29 January 2001

 
EXHIBIT B (1 of 2)


Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 
barbaracjohnson@worldnet.att.net

29 May 2004

John DiPiano, Esq. 
180 Canal Street, Suite 400                                          BY FAX & EMAIL
Boston, MA 02114-1804 
 

Re: Proposal regarding Smith’s tools
       Pocahontas C. Smith v. John Smith, Jr., Docket No. 99D-0000-DV1 
Dear John:

The Judgment and Amended Judgment of Divorce Nisi granted Smith 
the return of his tools. Because Smith needed the tools long before the 
judgment was issued, he replaced all but the orange stepladder.
Smith requested the return of his tools in a letter dated 7 June 2001 and 
sent to E. Chouteau Merrill. I never received a response to that letter. 
Subsequently on behalf of Smith, I filed a motion for the tools Subsequently 
I requested Nissenbaum’s assistance to get the tools. Everything I did on 
behalf of Smith to get those tools was to no avail. Therefore, I now seek the 
money in lieu of the tools.

Cordless drill – DeWalt 18V, ½" hammer drill                                       $ 269.00
Stepladder, 8' orange                                                                                  149.00
Belt sander (this was Smith's dad's) (a/k/a floor sander, EZ-8)                2054.61
Excelite screwdriver (yellow handle)                                                (est.)  25.00
Snap-on Phillips driver (black handle)                                                         35.00
Chisel (Stanley)                                                                                              9.00
Long-nose pliers (red handle) (manufacturer, Channel Lock)                       15.96
Electrician's pliers                                                                                        17.98
Cut-off pliers (wiring)                                                                                  17.37
Wire strippers                                                                                               12.00 
Hammer (Estwing)                                                                                        24.83
Pry bars (two Stanley Steel)                                                                         12.00
Small nailer, air-powered (BN, brad nailer, porter cable)                         119.00
Floor nailer, air-powered                                                                           469.00
Paint brushes and rollers                                                          (approx.)      60.00 
Cut-off saw (DeWalt, bought in 1999, 12" sliding compound saw)            599.00
DeWalt stand for the cut-off saw, Part No. 235-294                                   199.00
DeWalt crown-molding adaptors                                                  (approx.) 30.00
Box flooring nails                                                                                         51.97
18 gauge x 2                                                                                                    3.49
Total Value ............................................................................................ 4173.21

In my letter of 26 May 2004, I included a proposal that covered Smith’s 
child-support payments for 84 weeks. I propose now that the $4173.21 
also be converted to advance payments of child support. Divided by $70 
per week, the sum of $4173.21 is equivalent to 59.62 weeks. Adding 
59.62 weeks to 84 weeks gives a total of 143.62 weeks of prepaid 
child support.

Sincerely,

/s/ Barbara C. Johnson

cc: John Smith, Jr.


 
Pocahontas’s Answer to John’s Complaint for Contempt
None.

 
Judge Smoot’s Decision and Order in Pocahontas’s Contempt Action Against John
as
 
Judge Smoot’s Decision and Order in John’s Contempt Action Against Pocahontas
COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT

PROBATE & FAMILY COURT

SUFFOLK DIVISION                                                                             DOCKET NO.  99D 0000
_____________________

John Smith, Jr.
Plaintiff

v.

Pocahontas C. Smith 
Defendant

___________________


 
John’s Nine Motions Seeking Relief from Judge Smoot’s Decisions and Orders 
  1. Motion to Reconsider Order in ¶1 of August 12th Order re Appointment of Special Master
  2. Motion to Amend Order in ¶2 of August 12th Order re Child Support 
  3. Motion to Amend Order in ¶3 of August 12th re Uninsured or Unreimbursed Medical Expenses
  4. Motion to Amend Order in ¶4 of August 12th Order in Pocahontas Smith v. John Smith and Order in ¶3 of August 12th Order in  John Smith v. Pocahontas Smith, both re Life Insurance
  5. Motion to Stay Order in ¶5 of August 12th Order re Financial Statement
  6. Motion to Amend Order in ¶6 of August 12th Order re Delivery of Children to Pocahontas’s Father
  7. Motion to Vacate Order in ¶7 of August 12th Order re Signing up for DOR/CSE Services
  8. Motion to Amend Order of August 12th to Include Order re Health Care Providers
  9. Motion to Adjudge Pocahontas Smith in Contempt of ¶¶4, 14, 23 of the Amended Judgment of Divorce of 22 April 2004 and to Sanction Her for Falsely Alleging that a Child Was Injured in Smith’s Care and Then Accusing Him of Not Reporting the False Injury to Her

 
John’s Motion Seeking Judge Smoot to Reconsider His Order in Paragraph 1
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                  Docket No.  99D-0000

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant


Motion to Reconsider Order in ¶1 of August 12th Order re Appointment of Special Master

Now comes John Smith, Jr. ["Smith"], and moves the Court to reconsider all aspects of Order in ¶1 re the appointment of a Special Master to sell the parking space at 151 Tremont on the Common. The order reads:

As grounds, Smith states the following:

    1. that the Order of this Court is tantamount to a Fifth Amendment taking. There is no public purpose or public use of the property; that is, 
      1.  
        "the taking of their properties would violate the "public use" restriction in the Fifth Amendment's Takings Clause" : See Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896).[FN5]\FN1/
           
          FN1 Excerpt from Footnote 5 of Kelo
           
            See also Calder v. Bull, 3 Dall. 386, 388 (1798) ("An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority... . A few instances will suffice to explain what I mean... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; . . .


          Kelo et al. v. City of New London et al., 545 U.S. ___ (2005), slip op. at 7, certiorari to the supreme court of Connecticut, No. 04-108, argued February 22, 2005, decided June 23, 2005, affirming 268 Conn. 1, 843 A. 2d 500.

    2. that the Order of this Court is tantamount to an unlawful imposition of a tax. Article X Massachusetts Declaration of Rights. See also art. XXIII, id.
[The Nollan rule\FN2/] has also been held to apply to government extraction of money as much as to the imposition of restrictions on the use of real property. . . . Accord Eastern Enters. v. Apfel, 524 U.S. 498 (1998) (Fifth Amendment applies to government-required payments into benefits fund).  Durand v. IDC Bellingham, LLC, 440 Mass. 45, 55 n. 18 (2003);\FN3/
  FN2  Nollan v. California Coastal Comm'n, 483 U.S. 825, 836-837 (1987).

FN3 "It is an established principle of law that a governmental regulation which unduly burdens private property interests can amount to a taking." Grenier v. Zoning Bd. of Appeals of Chatham, 62 Mass.App.Ct. 62, 67 (2004).
 
 

that it is tantamount to a Fourth Amendment divestiture, a forfeiture of money and a forced, court-ordered sale of the property. Counselman v. Hitchcock, 142 U.S. 547 (1892); Edward Soldal v. Cook County, 113 S. Ct. 538 (1992) (seizure without a search); Fourth Amendment applies also to civil actions); Oliver v. United States, 466 U.S. 170, 178-179, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984);
    1. that the original Order by Judge Roberts was unlawful in that she gave Smith’s interest to another Special Master, namely Gerald L. Nissenbaum, who (a) performed nothing – not one document from Wife was produced as a result of GLN’s appointment as "Discovery Master" and (b) unlawfully converted tens of thousands of dollars from an escrow account containing Smith’s money;\FN4/

    2.  
        FN4 Nissenbaum did not help Smith obtain any discovery, but sent bills to the parties for approximately $70,000 (approximately $20,000 from the Wife and $50,000 from the Husband) and requested the court put Smith and his counsel in jail for nonpayment. The amount kept on rising magically and Smith and his counsel reacted to Nissenbaum’s bills in amazement. And (a) over Smith’s objection, (b) in violation of Judge Gould’s Order of 27 December 1999, and (c) in violation of M.G.L. c. 215 §56A, which requires the Commonwealth to pay a G.A.L.’s fees, Nissenbaum paid Barbara Beardslee and/or the entities employing her either as an employee or as an independent contractor and to do so, has used, without court permission funds that were in the escrow account. Nissenbaum even had the gaul on 4 MAY 2003 to move the Roberts court "TO APPROVE EXPENDITURES FROM ESCROW ACCOUNTS AND FOR INSTRUCTIONS ON WHAT TO DO WITH THE REMAINING FUNDS." Over Smith’s written opposition, Judge Roberts gave Nissenbaum special dispensation to be noncompliant with Judge Gould’s Order. Nissenbaum was already in criminal contempt – although not yet adjudicated -- of Gould’s Order and then, aided and abetted by Roberts’ ill-intended act, became further in criminal contempt.


      Fees of Court-appointed Persons

      GAL Barbara O’Brien Beardslee $35,141.63 
       

        By BRFG/Merrill Acknowledged by MGH 16,245.78 
        By BRFG/Merrill Unacknowledged by MGH 7,783.34 
        By Nissenbaum 11,112.51 + 5752.50 (see below)


      Discovery Master Gerald L. Nissenbaum $48.595.78

      Special GAL: James McCusker $12,777.21
       

        including Martha Rush O’Mara, not court appointed but paid from the escrow account $96,514.12 


      Costs: Trial Transcripts as a result of Robert’s Order re transcripts: $206,055.15

      See tables below.


 
 
Barbara O'Brien Beardslee - paid through escrow account by Merrill and Nissenbaum
MGH acknowledged receiving only those amounts boldfaced and shaded

MGH-acknowledged BRCheck #102150 4/11/00 3500.00 Children & the Law 
MGH-acknowledged BRCheck #29 5/15/00 3000.00 BRFG for Psych testing
Check # 5/25/00 3000.00 Merrill accounting 
MGH-acknowledged BRCheck #248 9/08/00 2570.75 Barbara Beardslee
MGH-acknowledged BRCheck #245210 4/10/01 1815.62 Law & Psychiatry Service 
MGH-acknowledged Check #1012 7/19/01 2967.72 Law & Psychiatry Service 
MGH-acknowledged Check ??? 2391.66 
Check #1002, 4/4/02 4/12/02 904.18 by Nissenbaum Dupl.USA
Check #1001 4/18/02 109.38 by Nissenbaum REF #452
Check #1003 5/1/01 109.37 by Nissenbaum REF #452
Check #1001 10/24/02 4987.50 by Nissenbaum REF #452
Check #xxx ??? 5002.08 by Nissenbaum
TOTAL BEARDSLEE/Children & the LAW/MGH                              $35,141.63
Brown Rudnick Freed Gesmer paid from escrow account
BRCheck #137 7/13/00 105.29 BRFG
BRCheck #892 5/25/01 1815.62 BRFG
BRCheck #715 3/08/01 1089.95 BRFG
REPLACED BRCheck #715 3/08/01 -1089.95 BRFG
Check #29 5/14/02 3000.00 BRFG
TOTAL                                                                                                              4920.91
James McCusker, Esq. - paid through escrow account by Nissenbaum
Check #1004 5/21/01 5/24/01 7750.51
Check #1006 8/6/02 6/6/02 2514.10 
Check #1001 [??] 11/4/02 unknown if paid 
Invoice 5/8/03 5/17/03 2512.60
TOTAL                                                                                                          12,777.21
Nissenbaum paid by Smith
Check #4604 5/10/01 3007.50
Check #4538 1/3/02 120.00
Check #4544 1/14/02 5915.00
                                                                                                                         9042.50 
allegedly outstanding 33,800.78 
SUBTOTAL                                                                                                   42,843.28 
Nissenbaum now seeking $39,553.28 + 5752.50 = $48.595.78
GRAND TOTAL                                                                                        $96,514.12

 
  1. that due process was absent from both the proceedings used by Judge Roberts and by this Court, in that Smith was not allowed to examine or cross-examine Nissenbaum on his bills or on his performance;
  2. that Smith alleged that Judge Roberts’ order was transparently invalid and this Court both failed to address that issue and failed to give Smith an opportunity to litigate the issue;
  3. that Smith gave a lien on his share of the parking easement to his counsel and this Court has no authority to interfere with the contract between him and his counsel;
  4. that where Judge Gould’s order that the parties should pay the G.A.L.’s fees was an intentional order in defiance of a duly enacted statute, M.G.L. c. 215, §56A, her behavior constitutes "bad behavior," for which she can be removed from office. Mass. Const. c. III, art. 1;
  5. that where Judge Roberts further acted in defiance of a duly enacted statute, M.G.L. c. 215, §56A, her behavior, too, constitutes "bad behavior," for which she can be removed from office; Mass. Const. c. III, art. 1;
  6. that this Court is remiss in conjoining its judgment to the deliberate suspension of proper judgment by the two judges preceding this Court on this case.
In support, Smith further states that he had a right to ignore a transparently invalid order, namely, the Order re the parking easement in the Amended Judgment of 22 April 2005. Based on the caselaw for that proposition, there was no need to appeal it.  Furthermore, only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.1986), modified on reh'g, 820 F.2d 1354 (1st Cir.1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir.1991).  Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87, 763 N.E.2d 529, 536 (2002), cert. denied 437 Mass. 1109, 774 N.E.2d 1099 (2002). "Courts have the inherent power of contempt for violation of their orders. See Doe v. Commonwealth, 396 Mass. 421, 422 (1985). This inherent power, however, is recognized only if the underlying order is valid." Commonwealth v. Florence, F. a juvenile, 429 Mass. 523, 525 (1999). Moreover, the only time a party may be permitted to ignore a court order and attempt to "evade contempt sanctions by litigating the validity of the underlying order itself" is if the court "lacked jurisdiction to make the order, or where the order was ‘transparently invalid.’" Vaklis [sic] v. Shawmut C., 925 F.2d 34, 37 (1st Cir.1991) quoting Matter of Providence Journal Co. 820 F.2d 1342, 1347 (1st Cir.1986). Quill v. Eresian, 2000 WL 782930 at 2, (Mass.Super. 2000) (emphasis supplied).

Judge Lisa A. Roberts misconducted herself in diverse ways: by acting in excess of the scope of her duties or criminally when she aided and abetted Pocahontas\FN5/ and Gerald Nissenbaum in evading liability for the unlawful conversion of money from the escrow account. 

FN5 Smith had brought a Complaint for Contempt. The court set a hearing date in December 2001. When Judge Roberts replaced Judge Gould on the case, she immediately dismissed Smith’s Complaint sua sponte. Roberts had no legal basis for dismissing Smith’s Complaint for Contempt. At that moment, Smith was denied due process and equal protection of the laws. WHEREFORE, Defendant prays that the Order in ¶1 of the Order dated 12 August 2005 be reconsidered and vacated in entirety.

                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 22 August 2005 I served by first-class mail a copy of 
the within pleading on Pocahontas F. XXXXX, Esq., ________________ Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.


 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 2
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                         Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Motion to Amend Order in ¶2 of August 12th Order re Child Support

Now comes John Smith, Jr. ["Smith"], and moves the Court to amend the Order in ¶2 re the child support:

    • by identifying the dates between which the $5,320.00 (for an alleged 76 weeks) applies,
    • by stating how the $245.53 interest was computed, for there appears to have been significant arithmetic errors made in the computation,
    • by stating whether the Court offset the money Pocahontas XXXXX Smith should have been ordered to pay to Smith while he has the children (approximately 30 percent of the time), where he, like Pocahontas, must supply room for them to sleep and board for them to eat, as well as other necessities of today’s modern life, 
    • by reducing the amount of $5,320.00 by 30 percent, to reflect the reduction of the $70 per week ordered by Judge Roberts on the basis of imputed income, which is greater than the amount Smith has been able to earn.
As grounds, Smith states that if the finding of $5,565.53 as the amount Smith owes was not found by mistake or inadvertency, then the finding is evidence of and constitutes a discriminatory act based on gender, an act that is constitutionally unlawful, and must be changed into a gender-free order by reducing the $70 to $49 per week, if not as the law requires, that child support be proportional to the income of the parties. "[I]ncome is defined as gross income from whatever source ... [including]: ... (7) income derived from business/partnerships ... (17) spousal support received from a person not a party to the [child support] order ... (19) perquisites or in kind compensation to the extent that they represent a regular source of income").  Trachik v. Trachik, 52 Mass.App.Ct. 1110, 1110 n. 8 (2001) (unpublished), quoting Massachusetts Child Support Guidelines I-A. Crowe, 45 Mass.App.Ct. at 677, citing Rosenberg v. Merida, 428 Mass. 182, 187 (1998) (describing definition of income contained in Guideline I-A as "broad"). According to their preamble, the guidelines are intended to "encourage joint parental responsibility for child support in proportion to, or as a percentage of, income ... [and, among other things] [t]o protect a subsistence level of income of parents at the low end of the income range...." Crowe v. Fong, 45 Mass.App.Ct. at 677 (emphasis supplied). Where Pocahontas has a gross income of approximately $200,000, ordering payment by Smith, whose annual income is approximately $20,000, the court order leaves Smith barely at subsistence level. This result is an anathema to the purpose of the guidelines. And lastly, ironically, where Smith has the children living with him about 30 percent of the year, the court has failed to order Pocahontas to pay child support payments to him for one-third of the year, although she is far more able financially than he to make child-support payments. This appears to be an issue of first impression. 

In further support of this motion, Smith incorporates herein by reference the facts and the law cited in his motion to amend the Order in ¶5 of the August 12th Order. 

Conclusion

The child-support order must be modified, for the basis of that order does not apply to the current circumstances of the parties. By changing the child-support order at this time, before his MOTION AND SUPPORTING MEMORANDUM FOR RELIEF FROM AMENDED JUDGMENT OF DIVORCE NISI OF 22 APRIL 2004 ON THE ISSUES OF CHILD SUPPORT AND REHABILITATIVE ALIMONY ON GROUNDS OF (1) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES AND(2) NEW EVIDENCE (PURSUANT TO M. R. CIV. P. 60(b) is heard, the Court will at least give Smith some temporary relief.

WHEREFORE, Defendant prays that the Order in ¶2 of the Order dated 12 August 2005 be amended as requested.


                                                        Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 23 August 2005 I served by first-class mail a copy of 
the within pleading on Pocahontas F. XXXXX, Esq., ________________ Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.
 
 

CERTIFICATE OF SERVICE

I hereby certify that on 23 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ________________ Maine.

23 August 2005                              _______________________
                                                       Barbara C. Johnson, Esq.


 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 3
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                         Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.

Defendant

 
Motion to Amend Order in ¶3 of August 12th
re Uninsured or Unreimbursed Medical Expenses

Now comes John Smith, Jr. ["Smith"], and moves the Court to amend the Order in ¶3 re uninsured or unreimbursed medical expenses for the children in excess of $250.00 per year by adding one more provision than it contains.

The Order in ¶3 reads:

To avert the all-too common situation of a custodial parent seeking payment for uninsured or unreimbursed medical expenses for herself, Smith seeks this Court to reword the second sentence as follows, which adds the provision in boldface and underlined:

The plaintiff shall provide the defendant with a copy of all those medical bills (for the children) which were not either insured or reimbursed in whole or in part and all cancelled checks (front and back) or copies of receipts proving payment of such bills, including the bills that establish that the $250.00 threshold has been met.

WHEREFORE, Defendant prays that the Order in ¶3 of the Order dated 12 August 2005 be amended as requested.

                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

21 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833
 
 

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.
 


 
 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 4
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                                            Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Motion to Amend Order in ¶4 of August 12th Order 
in Pocahontas Smith v. John Smith and
Order in ¶3 of August 12th Order
in John Smith v. Pocahontas Smith,
both re Life Insurance

Now comes John Smith, Jr. ["Smith"], and moves the Court to amend the Order in ¶4 re life insurance so that it reads the same as the Order in ¶3 for Pocahontas C. Smith or amend hers so that it reads the same as his. Smith further seeks this Court make the findings of contempt or no contempt the same for each. 

Smith, Plaintiff v. Pocahontas, Defendant
Pocahontas Not in Contempt
ORDER TO POCAHONTAS
Pocahontas, Plaintiff v. Smith, Defendant
Smith in Contempt
ORDER TO SMITH
As grounds, Smith states that the Court’s finding of Smith in contempt and Pocahontas not in contempt for the same alleged wrongdoing is an unconstitutional act of gender discrimination. That the findings are discriminatory in nature is re-inforced by the Court having taken evidence that Smith has in place a financial vehicle with a current value of $130, 391.96, that Pocahontas, as trustee, is the primary beneficiary (100 percent) of that vehicle, and if Pocahontas is not alive, then the twins share in it 50-50, and that Pocahontas has not had any vehicle in place to protect the children in case of her death. 

With these circumstances, in which Smith clearly believed that his financial vehicle protected the children to a greater extent than that which even Judge Roberts ordered, and Pocahontas has not thought to protect the children at all, the Court has revealed an invidious gender bias resident in the Court by its inappropriate findings and orders given the great discrepancies in the parties’ positions. If anything, the Court should have found Pocahontas in contempt and Smith not in contempt.

An additional discrepancy in the orders is also offensive and discriminatory. To require Smith, on one hand, who has considerably less financial ability than Pocahontas, to provide documentation within 30 days and to give Pocahontas, on the other, until next July, 11 months from now, to provide documentation is horrifying: The gender discrimination is so blatant! It appears as if a radical feminist, rather than a fair Court, made the findings and crafted the orders.

Further, given the number of proven falsities that Pocahontas averred as truths in her Complaint for Contempt against Smith, it is inappropriate that the Court came down harder on Smith than on Pocahontas. Given the totality of the circumstances, the Court has made more than a mere harmless error.

WHEREFORE, Defendant prays that the August 12th Orders (a) in ¶4 in Pocahontas Smith v. John Smith, and (b) in ¶3 in John Smith v. Pocahontas Smith be amended as requested.

                                                        Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.


 
 John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 5
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                           Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Motion to Stay Order in ¶5 of August 12th Order re Financial Statement

Now comes John Smith, Jr. ["Smith"], and moves the Court to stay Order #5 re filing a Financial Statement.

As grounds, Smith states that until the Court orders Pocahontas Smith to produce the Financial Statement from her lawfirm and a truthful one from her in her individual capacity, he may not be ordered to produce one.

In support, Smith states that the Court has not acted on his motion to compel Pocahontas to produce to Smith the Financial Statement for her lawfirm, as requested in Smith’s Supplemental Rule 401 Requests for Financial Statements. The motion to compel has been on file since around 21 July 2005, and it sought a Financial Statement from Pocahontas individually and a Financial Statement from her lawfirm, given that the firm is her alter ego and she is the only officer of that firm.\FN1/

FN1 The Court failed to act on Smith’s very timely filed motion to compel, so Pocahontas delayed complying until the very last moment. Unfortunately, the Court did not sanction her for the delay. Her delay and the Court’s lack of attention to his motion to compel her to respond is one of the several reasons Smith’s counsel did not advise him to prepare a Financial Statement. His counsel will not tolerate a double standard: a draconian one for men and a toothless one for women. Pocahontas delayed filing and serving on Smith her individual Financial Statement until 8 August 2005, the day of the hearing.\FN2/ FN2 Where Smith served his request on 27 June 2005 so that he would have had time to prepare for the hearing, and Pocahontas did not comply with half of the request unto 42 days late, she was in contempt of Supplemental Rule 401. In her personal Financial Statement of August 8th, Pocahontas alleged that her annual gross income was $40,179 and her net weekly income was $898.76. Those amounts are insufficient to support an expense of $723.48 a week for child care and $112.56 for motor vehicle expense (with no MV loan payments). Significantly, her alleged weekly expense of $1500 after taxes, or $75,000 after-tax income, requires her gross income to be upwards of $150,000. 

Not declared on her Financial Statement are the proceeds of the sale of the mortgage-free condo, after paying the attorneys’ liens on her interest in the property. The surplusage was approximately $150,000.00, which was the windfall that this Court allowed her to keep – over Smith’s objection – without sharing any with Smith. The Court overruled Smith’s objection on the grounds that Judge Roberts had not written in any provision awarding Smith a share of a windfall should there have been one.\FN3/

FN3 Yet the Court altered Judge Roberts’ child support order on 10 August 2005 in this Court’s Order for Support & Health Care Coverage by adding the provision that the "child support ends on the 23d birthday of the youngest child." The Court may not decide to comply strictly with Judge Roberts’ Order when it is against Smith but decide to not comply strictly with Judge Roberts’ Order when it is in Smith’s favor. So again Smith is the victim of invidious gender discrimination. Smith’s counsel is saying that this Court may "undo" the Order of Roberts. That is well-settled in our caselaw. But Smith’s counsel is also saying that when this Court "undos" the Order, it cannot be done to achieve a result that constitutesinvidious gender-discrimination.
  All the judges of the Superior Court have equal powers, and in most matters each is vested with all the powers of the court. . . . [U]ntil final judgment or decree there is no lack of power, and occasionally the power may properly be exercised. The judge whose action is vacated may be dead, or retired, or ill, or engrossed in work at a remote place. . . . 

. . . Later cases in the Second Federal Circuit tend towards what we consider the sound rule, that another judge has all the powers that the judge who originally acted would have. . . .

That rule is supported by the weight of authority generally, and in our opinion is the law of this Commonwealth. . . . The action taken by the judge upon the demurrer after the amendment was within his power, and its correctness comes before us properly on his report. 
 

Peterson v. Hopson, 306 Mass. 597, 603-604 (1940)(internal cites omitted), and cases gathered. Clearly, where the Commonwealth retains jurisdiction over child support, there has not been a final judgment that would bar the power to undo the work of another judge.
Although title to her marital home is in her husband’s name, Pocahontas has declared the entire mortgage and more than half of the second mortgage on that property as her responsibility on her Financial Statement.\FN4/ Is her husband just a straw? Is her declaration of debt false?  FN4 On 14 May 2004, prior to the Smith divorce judgment becoming final, (a) VVVVVV gave a Mortgage on Pocahontas and VVVVVV’s home in ABCDEF, Maine, to Gorham Savings Bank, 10 Wentworth Drive, Gorham, ME 04038, to secure a Note held by the Bank and signed by both Pocahontas and VVVVVV for $258,000.00 plus interest and promise to pay the debt; (b) VVVVVV signed an Adjustable Rate Rider incorporated into and deemed to amend and supplement the Mortgage; (c) VVVVVV gave a second Mortgage on the ABCDEF property to Gorham Savings Bank, 65 Gray Road, West Falmouth, ME 04105 to secure a Note signed by both Pocahontas and VVVVVV for $16,500.00 plus interest and promise to pay the debt; and (d) the Sellers of the ABCDEF property granted to VVVVVV the residential property.  Pocahontas testified at the August 8th hearing that she does not have life insurance, yet on her Financial Statement, she declared under the pains and penalties of perjury that she expends $59.42 a week for life insurance having an estimated value of $3000. 

At the divorce trial, Smith proffered proof that on every one of her Financial Statements, Pocahontas prevaricated. For example, Smith declared on two Financial Statements the expense of a charitable gift of approximately $2000; that amount was merely what she had pledged and not what she gave to her alma mater.

Pocahontas testified that at her deposition she had claimed to have contributed $48.46 a week to charity [Day12:2247], but she had not done so. Instead, she had included on two Financial Statements [Tr.Exh. 43 and 51] a pledge to "Mount Holyoke of a thousand dollars a year, plus annual church-giving, plus various contributions, like Child Reach, which takes out $22 a month out of something" [D12:2247; applied also to Tr.Exh. 51 at D13:2335-2336]. Around 5 April 2000, Pocahontas had only pledged that amount and had not made any contribution that year [D12:2247].  See Exhibit A, attached hereto, for the evidence produced at the divorce trial. 

In the Maine action, Smith subpoenaed the mortgage application her husband and she submitted to Gorham Savings and Pocahontas opposed, so the records were not produced. She therefore must be precluded from relying on that debt to support her need for support. 

Further she failed to include on her August 8th Financial Statement the perquisite income she receives from her husband, RRRRR G. VVVVVV ["VVVVVV"]. Crowe v. Fong, 45 Mass.App.Ct. 673, 676-677 (1998) (Fong's rent-free occupancy of his parents' home was "perquisite income" and attributed an additional $350 per week, the fair market rental value of the home, to him as income). Thus the monetary value of the benefits Pocahontas receives from VVVVVV attributes additional dollars of income to Pocahontas.

"[I]ncome is defined as gross income from whatever source ... [including]: ... (7) income derived from business/partnerships ... (17) spousal support received from a person not a party to the [child support] order ... (19) perquisites or in kind compensation to the extent that they represent a regular source of income").  Trachik v. Trachik, 52 Mass.App.Ct. 1110, 1110 n. 8 (2001) (unpublished), quoting Massachusetts Child Support Guidelines I-A. Crowe, 45 Mass.App.Ct. at 677, citing Rosenberg v. Merida, 428 Mass. 182, 187 (1998) (describing definition of income contained in Guideline I-A as "broad"). According to their preamble, the guidelines are intended to "encourage joint parental responsibility for child support in proportion to, or as a percentage of, income ... [and, among other things] [t]o protect a subsistence level of income of parents at the low end of the income range...."  Crowe v. Fong, 45 Mass.App.Ct. at 677 (emphasis supplied). Where Pocahontas has an annual gross income of approximately $200,000, ordering payment by Smith, whose annual income is approximately $20,000, the court order leaves Smith barely at subsistence level. This result is an anathema to the purpose of the guidelines. And lastly, ironically, where Smith has the children living with him about 30 percent of the year, the court has failed to order Pocahontas to pay child support payments to him for one-third of the year, although she is far more able financially than he to make child-support payments. This appears to be an issue of first impression. 

Conclusion

The child-support order must be modified, for the basis of that order does not apply to the current circumstances of the parties. By changing the child-support order at this time, the Court will at least give Smith some temporary relief.

WHEREFORE, Defendant prays that the Order in ¶2 of the Order dated 12 August 2005 be amended as requested.

                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

22 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833
 
 

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

22 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.

EXHIBIT A
¶146 of Smith’s Proposed Findings of Fact and the table below, which follows ¶146, are incorporated herein by reference.
Pocahontas’s Financial Statement of 6/10/02 [Tr.Exh. 37]
  1. Twin #2and Twin #1’s Fidelity Dividend Growth Stock account (UGMA) was valued at $12,402.50 [D9:1534]. 
  2. Pocahontas failed to include $15,000 worth of Twin #2’s and Twin #1’s Northeast Bancorp shares of stock transferred to each of the children prior to this divorce proceeding on a pretrial financial statement\FN5/ [D9:1534, Tr.Exhs. 51 and 45], valued as of June 10 of 2002 at $22,011.00. This is an UGMA account.
    1.  
      FN5 The instructions of financial statement requires the party to list assets held in the name of another person for the party’s benefit or held by the party for the benefit of the minor children [D9:1534-1535]. After being deposed about this error, she did include those shares on the financial statement filed at trial.
       
    The children’s Unique College Investing Accounts (UGMA) was valued at $14,308.34. These two accounts were set up during the divorce, in the year 2000 [D9:1537]. 
Pocahontas’s Financial Statement of 22 March 2000 Exh. 45
  1. On her March 22, 2000, financial statement, Pocahontas did not include $15,000 worth of stocks she put into the children's names after she filed for divorce [D9:1490-1491]. 
  2. Pocahontas failed to include $15,000 worth of Twin #2’s and Twin #1’s Northeast Bancorp shares of stock transferred to each of the children prior to this divorce proceeding on a pretrial financial statement\FN6/ [D9:1534, Tr.Exhs. 37 and 45].

  3.  
      FN6 See previous footnote.
         
    The back bedroom had the new oak floor polyurethaned [D12:2208] and the carpeting was already in place in the little bedroom [D12:2208]. Ultimately, Pocahontas admitted that it was fair to say that she was doing nothing to the floors on a weekly basis in that apartment other than cleaning [D12:2208]. But she had put $8.74 a week for cleaning compounds under the house supply section [D12:2208]. "That's not food, not laundry, not dry cleaning, just house supplies" [D12:2209]. "Toilet paper, toothpaste are the types of things I would have thought of as house supplies. But that may also include some cleaning type things, certainly like dishwashing detergent, stuff like that . . . paper towels, . . . , scrub brushes" [D12:2209]. On average, she "replaced a scrub brush probably about every four months" [D12:2209-2210]. When asked, "So it didn't cost you $8.74 a week?," she responded, "No" [D12:2210]. Starch, bleach, laundry detergent was itemized under "laundry" [D12:2210]. 
  4. Pocahontas again combined charities, more vacations, and sports and then added more into that item, like a catchall [D12:2252]. Pocahontas said that Item S was a catchall [D12:2252]. 
  5. Pocahontas expensed her gym membership in Boston Fitness for Women [D12:2260], but put it neither on the long form nor on the short form [Tr. Exhs. 44 and 45] Note: She took this Boston expense even after she had long-since moved to Maine!
  6. Pocahontas claimed to have paid her father interest $5.81 a week on a $5000 loan from [her] dad [D12:2261-2262]. 
  7. She also added the unpaid pledge to her expenses under charitable contributions [D12:2249]. Pocahontas claimed to have paid that pledge but failed to produce or present any evidence to corroborate her assertion [D13:2338].
Pocahontas’s Financial Statement of 5 April 2000 Tr. Exh. 43
  1. She did not include $30,000 of her stock that she put in the children's names. 
  2. She swore that she purchased the property at 27 Harkness Road in Pelham in 1992, but had not [D10:1620-1621] 
  3. She refused to admit that had asserted on her Financial Statement that he purchased the property [D11:1974], and thus, in effect, admitted that she had not purchased the property [D11:1974].
  4. Pocahontas swore that in April 2000, she had a weekly expense of $192.31 for maintenance and repairs. Pocahontas admitted that she had no such weekly expense [D12:2205]. The figure was derived from an estimate for work that allegedly needed to be done, but she was evasive about the work she allegedly had estimated: "I'm not certain. I got an estimate for the work that needed to be done. I don't know" [D12:2205]. "I don't remember. My best memory of what that is the estimate I had just gotten, I hired someone to do work, but I don't think he actually ended up coming" [D12:2206]. Ultimately, she agreed that her weekly maintenance expenses were "de minimus" and somewhere between $zero and $5 a week [D12:2206-2207]. See D13:2305: her answers she said would be the same for Exh. 51 as they had been for Exh 43.
  5. After the removal of Smitty from the condo, Pocahontas, who lived and worked downtown Boston, did not walk directly from her house to work. Instead, she took the children to the Kingsley Montessori school by riding the "T" from Park Street to Copley Square, and then took the "T" back to work [D12:2213]. About once a month she drove from the Tremont Street garage to Montessori, "[c]ertainly no more than that" [D12:2217-2218]. She never drove from her house on Temple Street to her work at [a prestigious lawfirm] [D12:2215]. She took the children to Montessori School in the car when it was rainy or cold probably about from four to six days in the semester [D12:2215, 2217], about six times in the six months before moving to Maine [id.]. She could not answer, 
  6. "So where did you use the $40 worth of gas a week" [D12:2218]. Her answer: "We were frequently going up to Maine on weekends at that point while they were participating in Saturday soccer, for example" [D12:2218] . . . every other week [D12:2221]. But to go by her Subaru station wagon [D12:2219] to Maine requires only 8+ gallons round trip -- 115 miles [D12:2219] -- or $15 in today’s market. 
  7. The truth of the matter is that Pocahontas was driving her pick-up truck at 15 miles to the gallon [D12:2219], or 16 gallons of diesel fuel roundtrip, which is significantly more expensive than gasoline. The reason she did not admit this is because she wanted to deprive Smitty of the use of the parking space, in which her truck would not fit [see D12:2219-2220]. It was too tall for the height of the floor of the garage [see D12:2220]. 
  8. For instance, in 2000, Pocahontas moved for exclusive use of the parking space, but she did not need it for the truck [D12:2415]. She said she needed it for the children and herself to be able to use to have transportation here in the city [D12:2415], but at that time the only vehicle she owned was the truck and it did not fit into the parking space because it was too tall [D12:2415-2416]. 
  9. And she was also not renting a vehicle which would fit in that parking space [D13:2416]. Her oldest sister's significant other had offered her the use of a vehicle that he was not using but he never did loan it to her [D13:2417].
  10. She listed the 1999 Ford F-350 as an asset [D34:77, Tr. Exh. 45, p. 4]. 
  11. Pocahontas swore that she needed $33.46 per week, or $1739.92 a year, for uninsured medical and dental expenses [D12:2222-2223, Tr. Exh. 43]. She claimed to need dental work, but did not produce any written estimate or bills or checks in payment thereof. Given that she testified that she had real teeth that did not need straightening or root canals or crowns or a plate or wiring or gingivitis treatments and did not have lots of cavities and had not used whitener that she should not have used [D12:2223] and did not lose teeth due to an accident, only the name of her dentist [D12:2224] was insufficient proof of the $1729.92 a year for uninsured dental work. And although she had some dental insurance from [prestigious lawfirm] in the spring of 2000 when she wrote this financial statement, she did not remember what the maximum was [D12:2224].
  12. On the following day, 4 September 2002, in court, Pocahontas claimed, "Every filling in my mouth ended up needing to be replaced because the old amalgam fillings were cracking the teeth. And there was some other dental work that had to be done to correct the bite and do things there" [D13:2306]. Smitty contends that if that were the case, Pocahontas should have sued the dentist who performed those fillings, not seek contribution for the expense of the corrective procedures.
  13. Pocahontas swore that she was spending $322 a week for the children’s education. But of the cash, Smitty withdrew from the bank, he used $10,000 of it to pay for the next semester’s tuition of the children [D12:2236-2237]. But Pocahontas said, "There was additional charge, because they started going fuller days. So I did have to, out of pocket, pay additional expenses; plus, as I explained, at that point in time, I'm looking at what are my costs and giving . . . giving weekly figures based on annual expenses" [D12:2238]. She reached the $322 figure by annualizing the education expenses at Kingsley Montessori School, plus added in additional -- any additional cost that I had in connection with their education -- I'm trying to think of what those are right now. There's something, but I don't remember what it was" [D12:2238-2239]. 

  14.  

     

    Pocahontas did not produce a bill from Kingsley Montessori which would show what additional charges they charged over and above the $10,000 that John Smith gave them [D12:2239]. At some point earlier she testified that part of the $10,000 got returned [D12:2239]. And that was because the Montessori school was going to advance the children to the (private) kindergarten starting 1 November 1999 [D12:2239]. 

    And it was Smitty who paid the $10,000 for: kindergarten in December of 1999 [D12:2239-2240]. In Kingsley Montessori, the children, Smitty believed, would then go to school five mornings week [D12:2240-2241]. Once Pocahontas took the children, their schedule was less consistent [id.] They went to school in the morning and on certain days in the "after-school program" to accommodate Pocahontas’s schedule [D12:2242]. Pocahontas could not remember the amount of money Kingsley Montessori rebated from the $10,000 to Pocahontas [D12:2244]. She said she no longer had the bills [D12:2244]. She also said that the amount of the check but not the check itself was shown on the statement, but she never produced that statement or, if she did, never identified the payment on a statement.

  15. Pocahontas could not explain how it cost her still another $13 a week to travel from Temple Street down to Exchange Place, where her lawfirm was located: "I'm having trouble with the question as asked" [D12:2245]. 
  16. She claimed also to have had unreimbursed travel-related expenses -- employment-related travel expenses that were not unreimbursed and employment-related travel expenses [D12:2246]. "The cost of taking the children with me for employment-related things, plus taxis to and from work, sometimes from the Kingsley Montessori School, when either because of needing to get into work quickly, I had to take a taxi from there, or taking a taxi out to the Montessori School because I couldn't get out of work quickly enough to take -- be able to make it on time taking the ‘T.’" [D12:2246]. Smitty contends those are not really employment-related travel expenses [D12:2246]. Pocahontas disagreed [D12:2246]. 
  17. Pocahontas testified that at her deposition she had claimed to have contributed $48.46 a week to charity [D12:2247], but she had not done so. Instead, she had included on two Financial Statements [Tr.Exh. 43 and 51] a pledge to "Mount Holyoke of a thousand dollars a year, plus annual church-giving, plus various contributions, like Child Reach, which takes out $22 a month out of something" [D12:2247; applied also to Tr.Exh. 51 at D13:2335-2336]. Around 5 April 2000, Pocahontas had only pledged that amount and had not made any contribution that year [D12:2247]. 
  18. At an annual pay of $150,000, her gross weekly income would have been $2,884.62 [D13:2283] not the $1976.74 she wrote on this Financial Statement [D13:2774, Tr.Exh.43].
  19. Many of the items on the two Financial Statements marked as Tr. Exh. 43 and 51 are identical, despite the six-month separation of time and difference of States of residence: for instance, the item ($5.81) to her father on a loan [D13:2339] and the item ($19.23) for toys and software [D13:2340].
  20. On April 12, 2000, a week after she filed Exhibit 43 in this court, that financial statement marked as Exhibit 43, she had $11,309.43 in her money market account 605000117-8 [D17:3133]. Pocahontas never put any $11,000 sum on any financial statement in this court [D17:3134], That account was Pocahontas’s D17:3138].
  21. Pocahontas claimed the cost of insuring one truck and one car cost $59.52 a week, about $3100 roughly in insurance a year [D12:2225].
  22. Pocahontas swore, "Under vehicle maintenance, I would have included the costs of the regular scheduled maintenance type things, you know, you get your oil changed, where you get your tires rotated or whatever, plus I had to replace the battery in the Subaru, and you know, any other work of that nature, engine-related or, you know, wear and tear type maintenance costs" [D12:2227, Tr.Exh. 43] . . . at a cost of $11.54 a week, or $600 a year [D12:2227]. Pocahontas produced no receipts, no checks, no invoices, no bills to support the expense she declared. Smitty suggests that she estimated $600 a year and divided by 52 to get $11.54. And she did similarly with her $3000 vacation expenditures.
  23. Pocahontas could not answer the question of where she spent $30.76 a week on parking fees [D12:2258] "The parking fee would be the amount paid to Tremont on the Common associated with space 530 at that parking garage, which includes both a monthly parking fee plus a special assessment that was on at that time" [D12:2258-2259]. "Every third month would be significantly higher than the two preceding months. I believe it was 90-something for the not high months, and then maybe 210 and some cents for the months where the special assessment was. That's just my best memory. I'm not quite confident of those figures, but it was something like that" [D12:2259]. 
  24. "There was a point in time when I'd been ordered to pay Smitty I guess 20 -- I thought it was 25 -- some figure in the range of 20 or $25 per week for parking on Wednesdays when he visited the children, prior to the court then ordering -- you know, pending the alimony order, the court said, for now, you have to pay him some figure per week. It was either 20 or 25 to cover his parking expenses. [D12:2259-2260]. 
  25. On this and her later Financial Statement [Tr.Exh. 51], Pocahontas took $192 per week to repair the condo, but made no repairs [page 3 of Tr.Exh. 43]. She swore under the pains and penalties of perjury that in April 2000, she had a weekly expense of $192.31 for maintenance and repairs. Pocahontas admitted that she had no such weekly expense [D12:2205]. The figure was derived from an estimate for work that allegedly needed to be done, but she was evasive about the work she allegedly had estimated: "I'm not certain. I got an estimate for the work that needed to be done. I don't know" [D12:2205]. "I don't remember. My best memory of what that is the estimate I had just gotten, I hired someone to do work, but I don't think he actually ended up coming" [D12:2206]. Ultimately, she agreed that her weekly maintenance expenses were "de minimus" and somewhere between $zero and $5 a week [D12:2206-2207]. See D13:2305: her answers she said would be the same for Exh. 51 as they had been for Exh. 43.
Pocahontas’s Financial Statement of 8 August 2000, Tr. Exh. 51
  1. On two of Pocahontas’s Financial Statement – Trial Exhibits 43 and 51 – Pocahontas swore under the pains and penalties of perjury that in April 2000, she had a weekly expense of $192.31 for maintenance and repairs. Pocahontas admitted that she had no such weekly expense [D12:2205]. The figure was derived from an estimate for work that allegedly needed to be done, but she was evasive about the work she allegedly had estimated: "I'm not certain. I got an estimate for the work that needed to be done. I don't know" [D12:2205]. "I don't remember. My best memory of what that is the estimate I had just gotten, I hired someone to do work, but I don't think he actually ended up coming" [D12:2206]. Ultimately, she agreed that her weekly maintenance expenses were "de minimus" and somewhere between $zero and $5 a week [D12:2206-2207]. See D13:2305: her answers she said would be the same for Exh. 51 as they had been for Exh 43.
  2. Pocahontas testified that at her deposition she had claimed to have contributed $48.46 a week to charity [D12:2247], but she had not done so. Instead, she had included on two Financial Statements [Tr.Exh. 43 and 51] a pledge to "Mount Holyoke of a thousand dollars a year, plus annual church-giving, plus various contributions, like Child Reach, which takes out $22 a month out of something" [D12:2247; applied also to Tr.Exh. 51 at D13:2335-2336]. 
  3. Pocahontas claimed to be paying $203.49 a week or $875 a month, or $10,500 a year for rent to her father, XXXXX [D13:2283-2284, Tr.Exh. 51]. Pocahontas identified three rental checks for the year 2000 [D13:2284], but never produced them to Smith and never attempted to offer them at trial.
  4. Despite her admissions of nonpayment and failure to produce checks, dunning notices, et cetera, Pocahontas persisted in maintaining that her assertion on page 3 of this statement that it was costing her $203.49 was true [D13:2300, Tr. Exh. 51]. 
  5. Pocahontas swore that it cost her $58 a week for the children’s camp [D13:2306]. Annualized that would be $3,023, but it did not cost her $3,023.28 to send the children to camp in the summer of 2000 [D13:2307], therefore $58 is a gross misrepresentation of her weekly costs for children’s camp. She could not recall for how many weeks the children attended camp [D13:2306-2308] 
  6. Pocahontas swore that it cost her $160 a week for the child care [D13:2308]. Annualized that would be $8320 [D13:2308]. Barbara Moody was the alleged day-caretaker of the children and allegedly received $160 a week [D13:2309].\FN7/
FN7She also testified, "while I don't remember exactly when my job search started, that at some point, I was seeking employment and –" [D13:2316]. But Pocahontas admitted at trial that at Kevin Connelly’s deposition of her on 3 February 2000, she deposed that she did not look for jobs during the summer 2000 [D13:2317]. She produced no letters related to a job search. Nevertheless, she claimed that applied to _________   (the firm that employed her) in September or October 2000; Verrill & Dana; Curtis Thaxter [D13:2318-2319]. "I'm not even sure if I got a response" [D13:2319]. In all, Pocahontas might have spent a few hours or, at most, five or six days, on job-searching, but apparently none in 2000 [D13:2319-2326]. (She had looked in Boston before moving to Maine for employment with Weinstein, Sullivan & McQuay [D13:2326] and had "feelers" out to Todd & Weld by speaking to a former employee of GPH who had gone to work for T&W [D13:2327-2329] .)  
Filing for her father meant going through "[y]ears and years' worth of piled-up papers, statements, mail, including documents that had simply been, you know, boxed up and moved without being sorted and filed, from one residence to another" [D13:2299]. Pocahontas did not read the transcript of her father’s deposition, but she did see most of the videotape [D13:2330]. Nor did she find the letters from the priest [D13:2330]. The remainder of her testimony about the priest detracts more and more from her father’s story about the priest who was the would-be-fallguy for the molester of Pocahontas’s sister "Olive" . . . although it sounded actually that the priest was more of a wayward priest who liked adult women rather than children. After all, he was allegedly having an affair with Pocahontas’s mother. Supplement by Diver v. Diver.

According to three of Pocahontas’s Financial Statements [Tr.Exhs. 43, 51 and 45, during 2000, 2001, and 2002, the assessed value property of 58 Temple Street was $235,100 [D13:2366-2369]. Pocahontas did not know where she got the value [id.]. Clearly, Pocahontas took very lightly the requirement that the information put on the Financial Statements be true and accurate [see D13:2372].

  1. Many of the items on the two Financial Statements marked as Tr. Exh. 43 and 51 are identical, despite the six-month separation of time and difference of States of residence: for instance, the item ($5.81) to her father on a loan [D13:2339] and the item ($19.23) for toys and software [D13:2340].
  2. After Pocahontas went to Maine, she still took employment-related travel expenses [D13:2434, Tr.Exh. 51, p. 3]: the $13 unreimbursed employment-related travel expense, which she also listed on Tr. Exh. 43 [D13:2435-2436]. Ultimately, Pocahontas admitted that this was a fictional amount, another falsity on her Financial Statement:
Q So that is a fictional amount that you did not spend on employment-related travel expenses; isn't that true? [D13:2436]

A I believe that's correct. At the very least, it wasn't employment-related, correct. [D13:2436].
 

t. On this and the previous Financial Statement [Tr. Exh. 43], Pocahontas swore under the pains and penalties of perjury that in April 2000, she had a weekly expense of $192.31 for maintenance and repairs, but then admitted that she had no such weekly expense [D12:2205]. Ultimately, she agreed that her weekly maintenance expenses were "de minimus" and somewhere between $zero and $5 a week [D12:2206-2207]. See D13:2305: her answers she said would be the same for Exh. 51 as they had been for Exh. 43.
Pocahontas’s Financial Statement of 15 March 2001, Tr. Exh. 44
  1. Her incorrect assessment on her Financial Statement of $300,000, rather than $192,000, of the ________ property, she evasively put it off to a bad memory [D10:1626-1632]. As a complex-litigation attorney, she knew memory was insufficient for filling out a good-faith Financial Statement.
  2. The 1999 Ford F-350 that she currently drives s not specifically listed [id.]. It shows two motor vehicles, but the type of vehicles are not identified; it only shows the fair market value [D34:78, Tr. Exh. 44, Section F of the short form]. 
  3. She again combined charities, more vacations, and sports and then added more into that item, like a catchall [D12:2252]. Pocahontas said that Item S was a catchall [D12:2252]. 
  4. Pocahontas expensed her gym membership in Boston Fitness for Women [D12:2260], but put it neither on the long form nor on the short form [Tr. Exhs. 44 and 45]. Note: She took this Boston expense even though she had long-since moved to Maine!
  5. Pocahontas claimed to have paid her father interest $5.81 a week on a $5000 loan from her dad [D12:2261-2262]. 
  1. When she owed money to Smith for the Chrysler,\FN8/she did not pay him interest on that loan [D12:2262]. She said, "I paid the bank directly both the principal and the interest on that. . . . It was the bank's money, and it was the bank that was paid" [D12:2262]. This was in conflict with that to which she had testified earlier. She said, "What I believe I testified earlier is, I don't have a recollection specifically about the loan -- about him getting the loan. I do know that I paid, and the bank statements will bear out that I made the payments [D12:2262]. 
    1.  
      FN8 See Credibility section of Smith’s Proposed Findings of Fact.
    Pocahontas might have replicated the costs of traveling on the "T" ($6.26 a week) and taxis ($12 a week) in several categories. She answered that she did not believe she had and that "was certainly my goal not to do that" [D12:2265].
Pocahontas’s Financial Statement of 10 June 2002, Tr. Exh. 37
  1. Pocahontas failed to include 
    • $15,000 worth of Twin #2’s and Twin #1’s Northeast Bancorp shares of stock transferred to each of the children prior to this divorce proceeding on a pretrial financial statement\FN9/[D9:1534, Tr.Exhs. 37 and 45].
FN9 The instructions of financial statement requires the party to list assets held in the name of another person for the party’s benefit or held by the party for the benefit of the minor children [D9:1534-1535]. After being deposed about this error, she did include those shares on the financial statement filed at trial.
    • $22,011 put into Unique College Investing Accounts (UGMA ), which were set up during the divorce, in the year 2000, and which had, as of 10 June 2002 a value of $14,308.34 [D9:1537] 
    • $12,402.50 for Twin #2 and Twin #1’s Fidelity Dividend Growth Stock, the UGMA account, valued as of 10 June 2002. 
  1. She entered $110.20 a week as an expense, rather than $48 a week. Pocahontas denies, but Smith contends that she added charities, more vacations, and sports to come up with $110 [D12:2249-2250, Tr. Exh. 37, ¶3]. 
  2. When Pocahontas explained her $150 entry on her Financial Statement for food, she never mentioned she was also including the cost of food for her live-boyfriend Russ [D16:2933-2938].

 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 6
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                         Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Motion to Amend Order in ¶6 of August 12th Order re Delivery of Children to Pocahontas’s Father

Now comes John Smith, Jr. ["Smith"], and moves the Court to amend the Order in ¶6 re delivery of the children to Pocahontas’s father.

As grounds, the Court is placing the Smith twins at risk by allowing Pocahontas’s father to accept delivery of the children after they spend time with their father. Upon first meeting with the guardian ad litem, Smith told his concern to the GAL.\FN1/ The GAL did not pass that information on to the court in her report in which she recommended that Pocahontas be allowed to move to Maine and live with the twins in her father’s home. Judge Gould allowed the children to be moved to Maine, without Smith’s consent and without an evidentiary hearing, and both Judge Gould and her successor on the case, Judge Roberts, continued to ignore the evidence before them and allowed the children to remain there. 

FN1While still married, Smith learned from the husband, HHHHHH, of one of Pocahontas’s older sisters, Olive, that Pocahontas’s father, XXXXX, had molested Olive when she was a child. After the children went to Maine, their behavior changed. In March of 2001, one of the children complained of sodomy by Pocahontas’s father. Smith had taped the conversation with the children\FN2/ and the next day brought the tape to court. A woman, Medusa, who wanted him to commit to her phoned Pocahontas, her then-attorney, E. Chouteau Merrill, and the GAL and alleged that Smith had coached the child.\FN3/   The woman was not with Smith when he was with his children that day. She simply concluded it on her own without any basis. FN2 The Why and How are part of the evidence taken at the divorce trial. The transcripts are on file.

FN3 On Thursday, 12 June 2002, the court disallowed Smith’s world-renown expert on child language development, an expert who has written a book on the subject for the American Bar Association and who has taught judges. She had analyzed the tape on which the children made fresh complaints of sexual abuse. The court’s rationale appeared to be that she had not made a determination as to whether she would allow Smith to use the audiotape of the children. Smith argued that Judge Ordonez had used the tape as an excuse to terminate his visitation. He had at least the right to produce the tape with an expert to prove that the children had not been coached, and should be believed.

The allegation that Pocahontas’s father had molested the child provoked Pocahontas and Merrill to call Pocahontas's father, XXXXX, to the witness stand on 2 April 2001. A year later, in April 2002, Smith’s counsel deposed XXXXX in Maine. The audiovideo tape was played at trial on Days 26 and 27 of trial. Excerpts from his testimony in Boston and Portland appear below.
    • XXXXX recalled driving with Smith to meet the logger and then cutting his eyeball on a branch [D27:5924-5925]. "As in your Boston record, I shared with him my concern about Olive [D27:5925]. XXXXX did not know what or who brought up the subject of Olive up on that drive [D27:5926], but he "thought [he and Smith] had a quite open and sharing relationship. And [Smith] would share with [XXXXX] things that were of concern to him also" [D27:5926]. "I told him my belief that I feared that he might -- she might have seen a psychiatrist or psychologist or whatever, and that if -- and that if so, that I had this fear it may be, that I had only recently seen that television show" [D27:5927, see also ¶104, referencing Smith’s version at D31:134-136]. 
    • At the deposition, Smith’s counsel read aloud XXXXX’s testimony that he gave on 2 April 2001 in court [D26:5696], It appeared at page 167 of the deposition transcript. After Smith’s counsel read XXXXX court testimony, he deposed that he did recall that testimony [D26:5699]:
I shared with Smith\FN4/ . . that I had a concern that since for years she had not seemed close to me, that she just seemed distant, and then I had had the fear, I guess I was interrupted from expressing before, which related to financial balance between how the daughters were treated, but I shared with Smith that I had come to fear the possibility that she might have gone to one of those therapists which are -- well, you know the -- you know the realm, called false memory, and the idea might have been implanted in her head that she had been molested and that she would have been -- and that that would have been a terrible burden for her, and for me, if she had come into that area of false memory [D26:5698-5699]. 
  FN4 "Smith" is Smith’s nickname. If she had come into that area of false memory. And I shared with Smith that that was probably my biggest fear in this case is that she might have any such thought, which apparently might have only been incurred 10 years after any possible exposure that she might have, and I'm not aware that she did have with anyone. So I shared that fear with him [D26:5699].
    • Asked about when he was sharing with Smith this fear of his, from where did he, XXXXX, learn enough to conclude to fear that his daughter Olive had a false memory of being molested by him [D26:5699], XXXXX responded,
For years I was very troubled with the distance of one of my daughters, that she just didn't seem warm, pleasant, friendly. And I over time kept trying to think, as anyone would, you know, what could be at the root of this, because she declined my specific invitations, like by letter or e-mail or something, or maybe by phone, that, you know, please tell me what is the cause of this distance. And she never did. She never gave me a clue [D26:5700]. 

I thought for many years that there could have been a feeling that the three daughters -- I mean, they knew that I always made real efforts to treat them equally, but that they might not have been -- they might -- she might feel she wasn't treated equally. And I had a more specific example in mind of that [D26:5700-5701]. 

But it is true that I eventually had this -- maybe I saw a television show or something that prompted my concern. I guess apparently certain therapists have a very, very high proportion of their clients that come away deciding that they must have been sexually molested as a child. And I was afraid that she might have gone to a counselor who might have implanted such a suggestion [D26:5701].

There was never any confirmation from her or anyone else that it was that subject or financial inequity [D26:5701].

At any rate, for whatever reason, it all seems well behind us [D26:5701].

    • When confronted with the question, "But what would have brought you to the point where you thought she [Olive] had a false memory that she had been molested? [D26:5766], XXXXX replied cryptically:
    • I described it as a concern, because if she had that thought -- and the two words I thought were omitted were by anyone --if she had that concern, that would be more strenuous on her than feeling, if she did, financially not equally treated with her sisters [D26:5766].
  • Smith’s counsel followed up. "What, then, would have been the connection between unequal financial treatment of sisters and false memory of sexual molestation?" and XXXXX answered monosyllabically, "None" [D26:5766]. Smith’s counsel next question was interrupted, but the dialogue continued:
Q. How did you get from one point – [D26:5766]

A. None, so far as I know. [D26:5766]

Q. -- from point A to point B? [D26:5767]
A It's like I hear a noise in my car. I first wonder if I've got loose wheel bolts. And then I wonder if the transmission is going. And then I wonder what else it could be that was the matter.

And I really wanted to understand, if I possibly could -- and she was kind of declining to tell me -- what is it that may cause you to be upset with me. And she never has said. She's never even said that she was upset with me. And we seem to have a fine relationship now. She's over at our house a lot, typically at least once a week. Uh.. [D26:5767]

    • XXXXX said, there was no basis for considering a false memory of sexual molestation as a possible differential diagnosis of why he and Olive had a strained relationship "other than that [he] was desperately trying to understand the cause, to help repair the relationship" [D26:5769]. 
I told you that the idea may have come to me in watching one of these false memory theorizing counselors, or whatever you call them. I can't say whether -- into what type of counselor Olive might have gone. I mean -- [D26:5770].
    • When he shared that intimate comment with Smith, XXXXX did not know for a fact that Olive had, indeed, gone to some therapist: "I -- no. And I still don't know for a fact. That's part of my speculation, trying to fill voids" [D26:5770]. 
    • XXXXX never discussed with Olive the subject of whether she had gone to a therapist, or discussed with her the subject of false memory, or discussed with her the subject of their strained relationship? [D26:5770]. He said, "Not a discussion" [D26:5770]. . . . "I believe I wrote her on at least one occasion, pleading, sort of, for her to tell me what was the basis of any misunderstanding -- I mean, what the -- in what area and on what -- you know, in effect, why are you barely talking to me. And she was nonresponsive. . . . And now that she has returned to the fold, I don't want to press my luck and get back into potentially sensitive things from the past, whatever it might be" [D26:5771].
    • XXXXX said he "may [sic] have told Pocahontas that she was his favorite child, but "[o]n another occasion, I told another daughter that" [D26:5716]. "I wrote it in a note to Olive during her period of estrangement, that she had been a favorite of mine" [D26:5716]. He did not think he received a response from her, and he did not recall keeping a copy of that note. He did recall that he wrote the note several years ago [D26:5716]. 
NOTE: Had an expert on incest been called, as planned by Smith, the expert would have said that perpetrators of incest often tell the target children that he or she is the perpetrator’s "favorite." Because Smith had been precluded by the court to depose other family members, and XXXXX’s lawyer was not going to make XXXXX available for a second day of deposition without a legal battle in Maine, Smith did not go further down this road of inquiry.
    • XXXXX identified HHHHHH (albeit by his first name only) as another son-in-law [D26:5701]. HHHHHH is the husband of XXXXX’s daughter Olive. "He's my son-in-law. It's a -- he's loyal to his wife. He was distant when she was distant and is friendly now that she's friendly" [D26:5706]. "[He is] a rather a quiet fellow. We spent some time talking about his new job when he was with us this weekend. . . . HHHHHH now works for what we call the ______________ in _________________, Maine [D27:5928]. XXXXX did not think that there was any bad feeling between him and HHHHHH, "except as I mentioned earlier, that when Olive acted distant, so did her husband" [D27:5928]. 
    • XXXXX was not aware that Pocahontas testified that Olive believed she had been sexually molested as a youngster [D27:5842].
POCAHONTAS'S FATHER'S SEXUALLY-CIRCUMSCRIBED BACKGROUND:
THE "FALSE MEMORY" OF POCAHONTAS'S SISTER "OLIVE" & THE PRIEST – WAYWARD OR PEDOPHILE?
During his deposition, XXXXX described another man who had access to Olive when she was a child. The question then became, Was there a priest or was the priest a smokescreen? Here is XXXXX’s story about the priest.
    • XXXXX deposed that he did not come to learn that Medusa\FN5/ said that it was not he who sexually abused his daughter Olive but that it was a priest [D26:5680]. Pocahontas testified that the priest’s name was "Peter" [D13-2334-2335], but she first learned of the priest when she watched her father’s video-deposition [id.]. The priest is as fictional as the "fictional amount" that she alleged spending on employment-related travel expenses [D13:2436].
FN5 The woman who wanted Smith to commit to her and who, when rejected, told the "coaching" story to Chouteau Merrill, to Pocahontas, and to the GAL. Medusa told Judge Ordonez during the emergency hearing on 19 March 2001 that she was "scorned and rejected." That day at court, Medusa met the elder XXXXXs and learned that the XXXXXs said (1) that J..H. had his own agenda, (2) that XXXXX did "did not do it," and (3) that someone else did. Out of that whole cloth, the priest was incarnated in XXXXX’s fertile imagination. Remarkably the female judges bought the amazing packing in toto and rejected in disbelief the child’s fresh complaint of molestation to the only person he could trust, his father, John Smith, Dad.
    • The Priest Did It If It Was Done:XXXXX recalled a priest who was a friend of his wife Jane in the late sixties or early seventies [D26:5684].   XXXXX did not know his name [D26:5684].  "The way that he came to my attention is that when my wife and I were separated –" [D26:5685].   He was living 20 or 30 miles away, in Waterford, Maine, in a mobile home that was at a family-owned property at Keoka Lake and owned by his parents [D26:5685] "One evening I had occasion -- I don't recall if it was a planning board meeting -- I had been on the planning boards of two towns, incidentally -- but I had occasion, after a late meeting, to pick up something in the garage of the house that I had built in Bethel where my wife was still living with my daughters" [D26:5686]. "Well, I had occasion to pick up something in the garage of the house . . . I entered the garage and found that my wife's car was there and another car was there. And there were no lights on in the house. . . . I took the liberty of looking inside the car to try to identify whose car it was. . . . At that time, I had a name. . . . I don't know the name. I absolutely don't know the name. Sometimes I wish I did. But I -- [D26:5687].
    • XXXXX did not remember what kind of car it was or its color [D26:5687]. "It was a very ordinary car. I mean, it was not distinctive in color, size, shape. . . ." [D26:5687]. "It wasn't notably big nor small nor expensive nor cheap nor rusty. Ordinary, plain vanilla car. . . . I found that that car belonged to a man whose name included a title, such as monsignor, or I forget just what it was" [D26:5688]. His understanding was that the man was of Catholic denomination. [D26:5688]  [His wife, "Jane"] was not Catholic [D26:5688]. 
    • After XXXXX was in the garage, he learned that this monsignor X was Jane's boyfriend [D26:5688]. "In the ensuing weeks, at least, or few months, I looked in my wife's handbag after she was asleep and found correspondence between these two people, which I kept in my possession for perhaps a few years. But thinking better of it, after we were all divorced, I took that maybe nine-by-12 manila envelope that I had at some point sealed, and it might have said something on it, like in the event of my death, deliver this to Jane XXXXX, but I decided to just, without opening it again, just deliver those letters, deliver that sealed package to Jane, which was all of the evidence of her friendship with that man" [D26:5689, D42:86]. At this time, XXXXX and Jane were separated. Their divorce had not yet been filed. [D26:5689-5690].
    • XXXXX had no reason to believe that his wife Jane had this relationship with the monsignor while they were still living as man and wife [D26:5690]. "I'm not aware that she did, while we were living in the same house as man and wife. It may be that it was only during the period of separation" [D26:5690]. 
    • XXXXX has not ever seen the priest, and did not speak after their divorce to Jane about him, "unless it was to say, here's this package of letters that you two exchanged" [D27:5868]. He thinks one of his daughters told him that she no longer has them [D27:5869]. 
    • XXXXX said he was aware that somehow Medusa learned about the monsignor and that it was "very likely" that she only could have learned about the monsignor on that day, April 2, either from himself or [his third wife] Kate in the courthouse [D26:5693]. He had discussed the monsignor with Kate, his current wife [D26:5693]. He had told Kate about as much about the monsignor as he told Smith’s counsel during the deposition [D26:5693]. 
ACCESS TO THE TWINS AND OPPORTUNITY TO MOLEST
    • When Smith’s counsel asked, "When Pocahontas was at [lawfirm], who took care of her children when she wasn't home?," XXXXX replied, ". . . I was able to help some until that court order.\FN6/ She uses quite a bit a day-care facility, I guess you'd call it. What she does is she delivers them there, or my wife does on occasion, and I used to on occasion, to that school. They're picked up by the bus there and returned by the bus there. And then they get picked up from this day-care center between five and 5:30" [D26:5713]. 
FN6 The court order of which XXXXX spoke issued on 19 March 2001. It forbade the children to be left alone with Ted XXXXX. When Family Service Officer Timothy Daley returned from Maine with the twins’ school nurse’s records, and testified on the last few days of trial, Smith and Judge Roberts learned that the second twin’s kindergarten teacher, Wendy Friend, had written on the child’s student profile form about the child’s lack of bowel control and his upsetness with Pocahontas, his feeling of being unloved, his chronic depression, his regressive academic performance, and the loss of his psychological ability to have eye contact with others [Tr. Exh. 259]. Encopresis is often a symptom of sodomy, and the child’s emotional problems were caused repeatedly, according to Wendy Friend, when his mother was volunteering in the school. The child then, Ms. Friend wrote, had "tough times" [Tr.Exh. 259].\FN7/ FN7 Because the pages of the school records were not numbered, the descriptions of the pages were put into the trial transcript. The first twin, the one who had complained to his Dad about XXXXX, developed the same characteristic of not being able to look at people and was having developmental and academic problems. The twins were then put into therapy. These were the same two children who had been physically and psychologically examined in Boston before they were taken to Maine and were deemed by the Harvard Community Health doctor, Dr. Brush, to be fine in every way and developing normally [Tr. Exh. 142].

WHEREFORE, Defendant prays that the Order in ¶6 of the Order dated 12 August 2005 be amended by writing that an alternate pick-up person may be Pocahontas’s husband or another relative other than her father. To do otherwise, this Court would be putting the children in possible harm’s way.


                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833
 
 

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

22 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.


 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 7
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                          Docket No.  99D-0000 

Pocahontas C. Smith 
Plaintiff

v.

John Smith, Jr.
Defendant

 
Motion to Vacate Order in ¶7 of August 12th Order re Signing up for DOR/CSE Services

Now comes John Smith, Jr. ["Smith"], and moves the Court to vacate the Order in ¶7 commanding Smith to sign up for DOR/CSE services.

As grounds, Smith’s counsel states that the Department or Revenue is notorious for keeping inadequate records and for not updating information such as modifications, job loss, and so on. Further, the judicial branch has a profit interest in DoR’s services as a result of thecontract between DoR and the Trial Court.

To not vacate the order to sign up, this Court would be putting Smith again into the position of potential victim. It would be a punitive act, one with which Smith should not be burdened, for he has done nothing to make punishment appropriate. The judicial branch has already made significant federal money off of Smith’s divorce at his expense: by issuing restraining orders and by imposing the child-support guidelines, two lucrative profit centers for the court.

WHEREFORE, Defendant prays that the Order in ¶7 of the Order dated 12 August 2005 be vacated for the reasons set forth above. Thank you.


                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833
 
 

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.


 
John’s Motion Seeking Judge Smoot to Amend His Order in Paragraph 14
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                          Docket No.  99D-0000 

John Smith, Jr.
Plaintiff

v.

Pocahontas C. Smith
Defendant

 
Motion to Amend Order of August 12th to Include Order re Health Care Providers

Now comes John Smith, Jr. ["Smith"], and moves the Court (1) to find Pocahontas in contempt for failing to provide Smith with the names of the children’s health care providers as ordered in ¶14 of the Amended Judgment of Divorce of 22 April 2004 and (2) to order Pocahontas to provide the names of and contact information for the children’s health care providers. 

As grounds, Smith states that it appears that the Court’s omission was inadvertent.

WHEREFORE, Defendant prays that this motion be ALLOWED. 


                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.


 
John’s Motion Seeking Judge Smoot to Amend His Orders in Paragraphs 4, 14, and 23
 
COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss.                                                                        Docket No.  99D-0000 

John Smith, Jr.
Plaintiff

v.

Pocahontas C. Smith
Defendant

 
Motion to Adjudge Pocahontas C. Smith in Contempt of ¶¶4, 14, 23 of the Amended Judgment of Divorce of 22 April 2004 and to Sanction Her for Falsely Alleging that a Child Was Injured in Smith’s Care and Then Accusing Him of Not Reporting the False Injury to Her

Now comes John Smith, Jr. ["Smith"], and moves the Court (1) to find Pocahontas in contempt for failing to comply with 

    • ¶4 re school reports, calendars, notices
    • ¶14 re health-care providers, and 
    • ¶23 re life insurance
of the Amended Judgment of Divorce of 22 April 2004 and (2) to order Pocahontas to provide the names of and contact information for the children’s health care providers. 

Smith also moves for this Court to sanction Pocahontas for falsely alleging that a child had been injured in Smith’s care and accusing Smith of not notifying her of the falsely alleged injury. Such serious false allegations must not be overlooked or metamorphosed into ones so trivial that the Court need not make mention of them or not sanction Pocahontas for making the false allegations. The anxiety and other very appropriate emotions Smith suffered from Pocahontas’s tortious, if not criminal, behavior must not be belittled. While this Court does not have the authority to award tort damages, it does have authority to sanction Pocahontas in proportion to the wrongs she committed.

As grounds, Smith states that the adjudication of Pocahontas in contempt must be made in order to avoid invidious gender discrimination. Where the court found Smith had not complied with certain paragraphs of the Amended Judgment of Divorce Nisi, this Court found Smith in contempt. This Court is duty bound to treat Pocahontas similarly. Therefore, where this Court has found that Pocahontas did not comply with ¶¶ 4, 14, and 23, this Court must find Pocahontas, too, in contempt.

In the alternative, if this Court does not find it appropriate to find Pocahontas in contempt, then this Court must vacate the findings of contempt against Smith. What is good for the goose is good for the gander and vice versa. To do otherwise would be an act constituting invidious gender discrimination.

In this case, the most serious of the falsities was the one cited above, to wit, Pocahontas’s false allegation that the child had broken his tooth while in Smith’s care and that Smith failed to report the injury to her. This Court has Pocahontas’s quasi-admission in evidence. Where Pocahontas did, indeed, when confronted with the dental records, withdraw the accusation, this Court must ask, Why did she intentionally bring a false accusation? Of course, this is not the first false accusation made by Pocahontas of Smith, and given the history of this case, it likely shall not be the last . . . unless this Court lets her know with certainty that it is time to stop. That certainty can only be achieved by sanctioning her in an unforgettable way.

WHEREFORE, Plaintiff John Smith, prays that this motion be ALLOWED.


                                                         Respectfully submitted,
                                                         John Smith,
                                                         By his attorney,

23 August 2005                                 _______________________
                                                         Barbara C. Johnson, Esq.
                                                         6 Appletree Lane
                                                         Andover, MA 01810-4102
                                                         978-474-0833

CERTIFICATE OF SERVICE

I hereby certify that on 24 August 2005 I emailed and on 24/25 August 2005 I served by first-class mail a copy of the within pleading on Pocahontas F. XXXXX, Esq., ___________________Maine.

23 August 2005                            Barbara C. Johnson_
                                                         Barbara C. Johnson, Esq.


 
Judge Smoot’s Decisions on John’s Motions
Denied them all by striking out Allowed: Allowed/Denied

 
There will be an appeal, particularly to prove
that there is invidious gender discrimination
in Probate & Family Court