Complaints for Contempt by Pocahontas Against Smith and Smith Against Pocahontas, Two Orders by Judge Smoot, and 9 Motions to Amend by Smith ~~~~~~~~~ Motion to Reconsider Order in ¶1 of August 12th Order re Appointment of Special Master Motion to Amend Order in ¶2 of August 12th Order re Child Support  Motion to Amend Order in ¶3 of August 12th re Uninsured or Unreimbursed Medical Expenses 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 Motion to Stay Order in ¶5 of August 12th Order re Financial Statement Motion to Amend Order in ¶6 of August 12th Order re Delivery of Children to Pocahontas’s Father Motion to Vacate Order in ¶7 of August 12th Order re Signing up for DOR/CSE Services Motion to Amend Order of August 12th to Include Order re Health Care Providers 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 Admits. 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]
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: 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 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 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 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 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 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 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. John Smith, is the plaintiff in counterclaim. He resides on 27 ________ Road, ________, MA. He is the former husband of Pocahontas C. Smith. 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. They have twin sons, born 3 December 1994, William XXXXX Smith and John XXXXX Smith. Their divorce became final on 19 July 2004. FIRST COUNTERCLAIM: SOLE PHYSICAL CUSTODY OF THE CHILDREN Plaintiff-in-Counterclaim Smith incorporates herein by reference paragraphs 1 through 4 with the same force and effect as if herein set forth. Formerly primary caregiver of the children, Smith seeks sole custody of the couple’s twin sons. 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. The children crave attention from their parents and the only parent who is prepared to give the requisite care and attention is the father. 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.  The children have not made fast friends in Maine.  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.  The children’s primary activities consist of watching videos and cartoons. Their father finds them totally unacceptable.  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 Plaintiff-in-Counterclaim Smith incorporates herein by reference paragraphs 1 through 13 with the same force and effect as if herein set forth. Smith seeks exclusive use and possession of the couple’s condominium, Unit #2, on 58 Temple Street, Boston, MA, until the children are emancipated. 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.  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.  The choice of schools is better in the Boston and environs area.  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) Plaintiff John Smith, Jr. ["Smith"], resides at _____________, and is the former spouse of Defendant Pocahontas XXXXX Smith , a/k/a Pocahontas F. XXXXX. Defendant Pocahontas XXXXX Smith , a/k/a Pocahontas F. XXXXX, resides at __________________________, is the former spouse of Smith and the current spouse of ____________. 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 Pocahontas has failed to provide Smith with copies of the children’s report cards at any time.  Pocahontas has failed to provide Smith with the children’s school calendars. 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. Pocahontas did provide him information regarding the children’s soccer activities.  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:  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. 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.  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.     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.  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.).   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

Motion to Reconsider Order in ¶1 of August 12th Order re Appointment of Special Master Motion to Amend Order in ¶2 of August 12th Order re Child Support  Motion to Amend Order in ¶3 of August 12th re Uninsured or Unreimbursed Medical Expenses 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 Motion to Stay Order in ¶5 of August 12th Order re Financial Statement Motion to Amend Order in ¶6 of August 12th Order re Delivery of Children to Pocahontas’s Father Motion to Vacate Order in ¶7 of August 12th Order re Signing up for DOR/CSE Services Motion to Amend Order of August 12th to Include Order re Health Care Providers 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: 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,    "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. 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); 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/   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

 

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; 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; that S