#48, Drano Series
      
    UPDATE 8/17/2001

    I filed the interlocutory appeal below in the Massachusetts Appeals Court on Wednesday, July 25th.   

    On, Friday, July 27th, Governor, Jane Swift nominated opposing counsel (the wife's attorney), E. Chouteau Merrill, to be a Probate & Family Court judge.

    A hearing on this matter was held on Tuesday, August 7th, before the Single Justice, The Honorable James F. McHugh, III.   We are awaiting his decision.

    This is monstrous.  My appeal on behalf of my client is based not only on constitutional grounds but also on facts which I believe are sufficient for our high court to find that Chouteau (pronounced  "Shoo-toe") Merrill committed a fraud upon the court.

    I have been in contact with the Governor's Councillors. 

    Please note that at all times, I have disguised or omitted Merrill's name from any files uploaded to this website, but upon receiving the news, I re-inserted her name into the file uploaded here.   She has become a PUBLIC FIGURE.

    Note:  It is known from an interview she gave to Lawyers Weekly that she has children born prior to her embarking on her trip to become a lawyer. She is from New York and appears to have lived there prior to coming to Boston for Harvard Law School. 

    At a recent awards dinner sponsored by the Mass. chapter of the Academy of Matrimonial Lawyers, she was unescorted.

    In 2000, Chouteau was getting a divorce from Mark L. Salwasser.  She continued to live in Dedham, he, on Mission Hill in Roxbury.   UPDATE:   Chouteau Merrill remarried: to a family-law attorney.   Salwasser moved to California (near his parents, who were aging) and remarried.  His wife, a divorcee lliving in Massachusetts with her son, sought court permission to move with her son to be with Salwasser.  Permission was denied.  This was UNusual.  Usually men lose their children to another state, but here the 2d wife's husband won.  Why?  Because Salwasser, Chouteau's ex-husband, was not to be able to have his new wife' by his side.  Chouteau using her power as a judge to retaliate against her former husband????? 
     


     
     
    COMMONWEALTH OF MASSACHUSETTS 
    APPEALS COURT 

    SUFFOLK, SS.                                                                                      A.C. NO. 01-J-425

    POCAHONTAS SMITH, Plaintiff/Appellee

    v. 

    JOHN SMITH, Defendant/Appellant
    ___________________________________________________________
     

    APPELLANT'S SUPPLEMENTAL PETITION FOR INTERLOCUTORY RELIEF

    Now comes Defendant/Appellant John Smith ["Smith"] and submits this brief as a supplement to his Petition for Interlocutory Relief. 

    SUPPLEMENTAL FACTS1

    1 On 27 December 1999, the court [Gould, J.] ordered Smith to "deliver $43,500 to Attorney E. Chouteau Merrill, Brown, Rudnick, Freed & Gesmer, One Financial Center, Boston, MA, before 12 noon on 12/28/99. Said money shall be placed in client's escrow account and not removed without court approval" [letter dated 25 July 2001 from Merrill to Johnson].


    1. During the early evening of the day that Smith filed his interlocutory appeal in this court, Wednesday, 25 July 2001, his counsel received by FAX opposing counsel's written admission that she did not have a copy of the alleged stipulation upon which the judge relied in her decision now under appeal in the singlejustice session: to wit, her decision not to provide Smith relief from the the order commanding him to share in the payment to the guardian ad litem.

    2. Two days later, on 27 July 2001 Smith's counsel received that written admission by first-class mail.

    3. On Tuesday, 31 July 2001, Smith and his counsel were allowed and did listen to the tape of the hearing held on 29 March 2000 in Suffolk Probate & Family Court.

    4. The following items summarize the contents of the argument heard on the tape:
     

    a. Wife's counsel, E. Chouteau Merrill, argued the wife's motion both for the appointment of a guardian ad litem and for an order allowing the payments of the G.A.L.'s fees from the couple's escrow account, which was being administered by Merrill.2
    2 A copy of the tape for 29 March 2000 in Suffolk Probate & Family Court has been ordered.
    b. Kevin Connelly, of White, Inker & Aronson, failed to object to the motion;

    c. the court appeared to allow the money be taken from the escrow account -- but as previously noted by Smith, the court failed to reduce that allowance to writing;

    d. neither the court nor Connelly asked Smith anything including whether he gave his consent to waive his right under G.L. c. 215, sec. 56A, to have the Commonwealth pay the guardian ad litem fees;

    e. neither the court nor Connelly informed Smith of G.L. c. 215, sec. 56A, or its provisions.


    5. March 29th, 2000, was only the second time Smith was in a courtroom for a case in which he was involved. The first time was on 27 December 1999 for a chapter 209A hearing. He had no knowledge of court procedures or of the significance of his counsel's failure to object or oppose the wife's motion.

    6. Since the appointment of the guardian ad litem, Merrill has removed from that account $10,886.70 in order to pay the guardian ad litem, whose fees Smith is disputing and about which he has not signed any stipulation [accounting of CTF, Merrill's letter dated 12 April 2001, and Check No. 245210 with the check stub].

    7. The accounting of the CTF is inaccurate, as the omission of the 12 April 2001 demonstrates [accounting of CFT, Merrill's letter dated 12 April 2001, and Check No. 245210 with the check stub].

    8. Further, as the letter of 19 July 2001 [item #9 at A-11a in the original addendum/appendix] demonstrates, until Smith's counsel phoned her about possible 'fraud upon the court," Merrill had not paid from the escrow account Smith's "mandatory" 50 percent share of the guardian ad litem's fees.

    9. Assuming arguendo that Merrill had the requisite court approval for paying the G.A.L. fees from the escrow account, it is curious why Merrill paid only her client's 50 percent share from the account since March 2000 but not Smith's share, letting him be dunned repeatedly by the G.A.L. for the balance.

    10. On 9 March 2001, the parties executed and filed a written stipulation to the appointment of a Discovery Master after the matter had been argued in court. Merrill requested that payment be taken out of the escrow CTF account. Smith and his counsel were in agreement.

    11. As with the G.A.L. payment issue, the judge never wrote in her orders dated that date, or thereafter, that the Master could be paid out of the escrow. Merrill has used this point to refuse to pay Smith's 50 percent share for the Discovery Master's fees.

    12. As her letter dated 19 July 2001 [A-11a, in the original appendix] evidences, Merrill only 16 months after the judge allegedly orally allowed the G.A.L. to be paid out of the escrow account decided to pay Smith's 50 percent share out of that account.

    13. Summary: There is no written order allowing the removal of funds from the escrow account for payment to the G.A.L. or for the Discovery Master. The 27 December 1999 order requires court approval before funds are removed [see note 1 supra].  Merrill has withdrawn funds from the escrow "CTF" account when it supported her agenda, but has not withdrawn funds from the CTF act when it has not supported her agenda. For instance, Merrill has removed funds to pay the G.A.L., who is four-square in line with the wife's position. Merrill has not removed funds to pay the Discovery Master, who is four-square in line with Smith's position.

    ISSUES

    1. The failure of counsel to object and/or inform and/or inquire of the client as to whether he agreed to waive his rights under the statute does not constitute an oral stipulation.

    2. Where the parties stipulate to facts that are contrary to a statute or that lead to a result contrary to that which would be reached if the statute were followed, the stipulation must be vacated.
     

    ARGUMENTS

    1. The failure of counsel to object and/or inform and/or inquire of the client as to whether he agreed to waive his rights under the statute does not constitute an oral stipulation.

    The motion judge erred by impliedly ruling that she had no need to consider whether "fairness and a proper sense of justice" applied to this issue in the underlying case. "Both appellate and trial courts have the power to `vacate a stipulation made by the parties if it is deemed improvident or not conducive to justice.'" Atlantic Pipe Corp. v. R.J. Longo Const. Co., 35 Mass.App.Ct. 459, 465-466 (1993), quoting Crittenton Hastings House of the Florence Crittenton League v. Board of Appeal of Boston, 25 Mass.App.Ct. 704, 712 (1988), quoting Loring v. Mercier, 318 Mass. 599, 601 (1945).

    Where at the motion hearing on 29 March 2000, Smith's prior counsel failed to object, failed to inform Smith of the statute, and failed to ask Smith whether he consented to the motion and the waiving of the statute, the multiple failures by prior counsel make his legal representation equivalent to having no counsel at all Cf.Crittenton, 25 Mass.App.Ct. at 712, citing Houghton v. Rizzo, 361 Mass. 635, 637 n. 1 (1972), for the proposition that "where counsel for the defendants made an admission during a pretrial conference which was dispositive of the case against them and which was inconsistent with the stipulation entered into by all the parties, the admission was discharged as it was `obviously not intended.'"

    If a party was not represented by counsel and entered into an "improvident" stipulation, "the stipulation could be discharged as `not conducive to justice.'" Crittenton, 25 Mass.App.Ct. at 712, quoting Woods v. State Bd. of Parole, 351 Mass. 556, 560 (1967).

    The absence of any evidence that Smith intended to pay or share in the costs of the guardian ad litem is a material fact making the discharge or vacation of the so-called stipulation appropriate. Cf. Dominick v. Dominick, 18 Mass.App.Ct. 85, 89 (1984), cert. denied 392 Mass. 1103 (1984), and cases gathered, where the appellate court held that where a detailed oral marital separation agreement was read into the record, with the express intention of the parties that the agreement be reduced to writing and signed, the agreement, absent a formal signed agreement, was binding upon resumption of divorce trial following suspension for negotiations. 

    2. Where the parties stipulate to facts that are contrary to a statute or that lead to a result contrary to that which would be reached if the statute were followed, the stipulation must be vacated.

    A stipulation to a fact which is untrue must be vacated on the grounds that it is "not conducive to the interest of justice." Vittands v. Sudduth, 41 Mass.App.Ct. 515, 516 n. 4 (1996), cert. denied 424 Mass. 1103 (1996), where the parties stipulated to a statute being effective upon the date the act was passed, the stipulation, even "[g]iving the parties' arguments [ ] their maximum effect," was discharged as not being conducive to justice." Id., citing to Shearer v. Jewett 31 Mass. (14 Pick.) 232, 236 (1833), Symmes Arlington Hosp., Inc. v. Arlington, 292 Mass. 162, 165 (1935), Lincoln Elec. Co. v. Sovrensky, 305 Mass. 476, 479 (1940).

    In Symmes, the hospital had agreed to assume the entire cost of the hospitalization of three boys if judgment were to enter for the defendant.  Where the stipulation would have yielded a result contrary to the provisions of a statute, the Supreme Judicial Court had its "undoubted power to vacate"3 on the grounds that the stipulation led to a result contrary to that which would have been achieved had the statute been followed. Symmes, supra at 165 (other cites omitted), quoting Shearer v. Jewett, 14 Pick. 232, 236.

    3 In Symmes, the appellate court also set aside the assessment of damages, and ordered a new trial limited to the question of damages.
    In City of Waltham v. City of Newton, 306 Mass. 59, 63-64 (1940), the Court held that the obligation of a municipality to provide for relief of indigent persons residing therein was mandatory under G.L. c. 115, sec. 17.  Where the provisions of the subject statute were mandatory -- as is the provision in G.L. c. 215, sec. 56A requiring the Commonwealth to bear the costs of a court-appointed guardian ad litem -- the defendant could not waive the provisions (section 14) of the statutory scheme, and the stipulations were vacated. City of Waltham, supra at 64, citing Shearer, supra, Delano v. Smith, 206 Mass. 365, 372, Lincoln Electric, supra and cases cited.

    CONCLUSION

    In conclusion, the so-called stipulation never existed. Even giving Merrill's argument maximum effect, Smith's prior counsel's failure to object may not be transformed into a stipulation, for Smith's intent to waive his right under section 56A of chapter 215 is not on the record. Neither has his prior counsel's position been reduced to a writing on the record.

    Further, Merrill's position is one contrary to the statute. There are no Ifs, Ands, or Buts in the statute: it expressly provides for the Commonwealth to bear the costs of the guardian ad litem's fees. 

     
    Respectfully submitted,
    DEFENDANT JOHN SMITH, 
    By his attorney, 

    Barbara C. Johnson

    1 August 2001                    Barbara C. Johnson, Esq. 
                                             6 Appletree Lane 
                                             Andover, MA 01810-4102 
                                             978-474-0833
     
     

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, counsel for JOHN SMITH, hereby certify that on a 2 August  2001 I served by first-class mail a true and accurate copy of the within pleading on , E.Chouteau Merrill, Esq., _____ ; Clerk of Suffolk County Probate & Family Court, 24 New Chardon Street, P.O. Box 9667, Boston, MA 02108; and Attorney General, Administrative Law Division, One Ashburton Place, Room 2019, Boston, MA 02108.

    2 August 2001                  Barbara C. Johnson