#63, Drano Series
  
   
    John Smith's Surreply to 
    Pocahontas's Reply to
    John Smith's Opposition to 
    Pocahontas's Motion to Dismiss
    Complaint for Rescission*
    (1) The Complaint is Drano #40.
    (2) John Smith's Opposition to Pocahontas's Motion to Dismiss is Drano #50.
    (3) John Smith's Supplement to Surreply to Pocahontas's Reply to 
    John Smith's Opposition to 
    Pocahontas's Motion to Dismiss Complaint for Rescission
    is Drano #64.

     


    COMMONWEALTH OF MASSACHUSETTS

    HAMPSHIRE, SS.                                             SUPERIOR COURT AT xxxxxxxxxx
                                                                                 DOCKET NO. 01-000
    -------------------------------------
    King Harry Smith and 
    John Smith, 
                                Plaintiffs 
    v. 

    Pocahontas Smith 
                                Defendant 
    -------------------------------------

    PLAINTIFFS' SURREPLY TO POCAHONTAS SMITH'S REPLY TO
    PLAINTIFFS' OPPOSITION and MEMORANDUM IN SUPPORT OF 
    OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

    F. Smith, Jr.'s second affidavit accompanies this memorandum.

    Now come King Harry Smith and John Smith to correct factual and legal inaccuracies in the Reply by Defendant Pocahontas Smith ["Pocahontas"] to Plaintiffs' opposition and memorandum in support of their opposition to Pocahontas's Motion to Dismiss. 

    As grounds therefor, Plaintiffs state that said Surreply is necessary to correct those factual and legal inaccuracies, which form the basis of Pocahontas's Reply to their Opposition to her Motion to Dismiss.

    ERRORS OF FACT AND LAW

    Error #1: Page 1 of Reply re a reverter or remainder clause, an issue which was not raised by Pocahontas in her motion.

    Pocahontas contends that there is no precedent for rescinding or reforming a real estate deed "where the deed does not include a reverter or remainder clause" which would be "triggered" by the grantees divorcing. This is patently untrue. For examples of, at the very least, two dozen cases, see references to McNeill, infra; Biesecker, infra; Mattera, infra; Marsh, infra; Ball, infra

    Clearly, Pocahontas, who has access to Westlaw at her job with a prestigious law firm, must never have even done the research to support her conclusion. In fact, shamefully and frivolously, except for one citation for the wrong proposition, Pocahontas, who graduated cum laude from Harvard Law School and gained experience in litigating complex cases [Exh. A] when employed for 5 years in the largest law firm in Boston [Exh. B, Pocahontas's resume], cites to no legal authority supporting any of the issues raised in her rambling dissertation.

    While there are also many rescission cases based on the failure of the consideration for a deed, there does not seem to exist across the country in either state or federal courts a rescission case where the consideration was, as here, the solemn marital vows themselves. 

    Nevertheless, regardless of the "trigger," deeds should be "construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant." Bass River Sav. Bank v. Nickerson, 303 Mass. 332, 334 (1939). And nothing contended by the Smiths is inconsistent with any law or repugnant to the terms of the subject deed. 

    "[I]t has been held that no precise form of words is required to create a conveyance to use, and that `a conveyance of land may always be construed to be that kind and species of conveyance which may be necessary to vest the title according to the intention of the parties if such interpretation is not repugnant to the terms of the grant.'" Leonard v. Southworth, 164 Mass. 52, 53 (1895), quoting Chenery v. Stevens, 97 Mass. 77, 85. See also Chenery, at 86.

    Reversion v. Remainder: There is a difference between a "reversion" and a "remainder."1 Pocahontas fails to distinguish between the two. The difference is set out in the margin.2

            1

    [A reversion is] [t]he residue of an estate left by operation of law in the grantor or his heirs . . ., commencing in possession on determination of a particular estate granted or devised.  Any future interest left in a transferor or his successor.
    Black's Law Dictionary, p. 1186 (5th ed.) (cite omitted). 

    2

    A reversion] differs from a remainder in that it arises by act of the law, whereas a remainder is by an act of the parties.  A reversion, moreover, is the remnant left in the grantor, while a remainder is the remnant of the whole estate disposed of, after a preceding part of the same has been given way.
    Black's Law Dictionary, p. 1186 (5th ed.). 
    "[A reversion] arises when the owner of real estate devises or conveys an interest in it less than his own." Black's Law Dictionary, p. 1186 (5th ed.) (cite omitted). And this is what King Harry did, by always maintaining his residence in the locus, his home on OOOOOOOO Road.3

           3 The elder Mrs. Smith also did this until her recent demise.

    That is, he reserved his grantor's interest in the property by having continued to reside in the property after the granting of the property in 1991 to Smith and Pocahontas [Complaint, pars. 1, 10]. Smith did similarly, by having continued to reside in the property every weekend with his children even after Pocahontas stopped going to the property. For instance, during and after 1997, Smith and the children (who were born on 3 December 1994) continued to visit Pelickingham almost every weekend. During and after 1997, Pocahontas returned to Pelickingham less frequently: for instance, in 1997, she perhaps went 40 weekends; in 1998, perhaps 20 weekends; and by 1999, no weekends.

    In fact, Pocahontas never lived at OOOOOOOO Road -- except for weekends -- after July 1990. It was then that Smith and Pocahontas moved to Cambridge, Massachusetts, almost a year prior to their marriage. The OOOOOOOO Road property was deeded to the couple on 28 September 1991, approximately three-and-a-half months after their marriage [Exh. C, deed]. Given that King Harry has remained in the property at all times since 1949, the delivery of the deed was incomplete, despite the deed having been physically delivered and recorded. 

    In fact, the Smiths believe that the deed was void not only because of their mistaken belief that Pocahontas intended to honor the marital vows but also because of Pocahontas's fraud and deceit. Being void, the deed has no effect. See discussion below regarding his alternative theory.

    Moreover, a reverter clause is not necessary for rescission. For instance: "An estate which may last forever is a `fee,' but if it may end on the happening of a merely possible event, it is a `determinable,' or `qualified fee.'" Black's Law Dictionary, p. 553 (5th ed.). Where a fee simple is determinable, there is a possibility of reverter. Dyer v. Siano, 298 Mass. 537, 539-540 (1937). The Plaintiffs Smith contend that the fee in this action is a determinable fee and that conclusion is evident from the two unspecific, ambiguous phrases describing the consideration for the deed: "for consideration paid, and for no monetary consideration." 

    Although none of the common indicia are in the deed, the phrases indicate that something other than money was paid and it raises the question, What was that nonmonetary consideration? So it is those words which metamorphose what might appear as a fee simple absolute into a fee simple determinable. 

    "[T]echnical words are not essential to a condition." Dyer, at 540, and parol evidence is admissible to show that condition by showing the consideration on which the deed was made. McRae v. Pope, 311 Mass. 500, 504-505 (1942). "It was long since declared by this court to be well settled that both the statement of consideration in a deed and the recital of its payment may be varied and controlled by parol evidence." Cardinal v. Hadley, 158 Mass. 352, 354 (1893), and cases gathered. 

    As written above, deeds should be "construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant." Bass River Sav. Bank v. Nickerson, 303 Mass. 332, 334 (1939). 

    Were this court not to grant rescission but were to find unjust enrichment, other alternatives for relief are available: for example, the court could (a) give King Harry a life estate in the property, (b) give King Harry an equitable lien on the property for the expenses he bore since he conveyed his interest to Pocahontas as well as to his son, (c) give Smith an equitable lien for his sweat equity which enriched Pocahontas's share of the property. Biesecker v. Biesecker, 62 N.C.App, 282, 286, 302 S.E.2d 826, 829 (1983) (husband sought divorce; wife unsuccessfully counterclaimed for rescission on grounds of no consideration, her husband's "`natural love and affection' [having] constitute[d] good consideration for the conveyance of land"). 

    In Biesecker, while denying rescission and the imposition of a constructive trust, the court did find that the defendant wife's "answer [did] set forth a claim for unjust enrichment," which if found, "could then impose an equitable lien" in favor of the creditor, in that case, her husband. Id., at 286, 302 S.E.2d at 829. Under Biesecker, Pocahontas would have the opportunity to show how much she invested in the property -- something she is unable to do.4

    In the dissolution action, Pocahontas has assiduously avoided producing her financial records for that period.  Smith contends that Pocahontas has maintained all financial records since they first met.  It appears that she has hoped that the Probate & Family Court will not look at the evidence and simply will give her credit for half of the property.  "The failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor. . . ." Wigmore, EVIDENCE IN TRIALS AT COMMON LAW, S_s 291, at 228 (James H. Chadburn, rev., 1979).  "The wilful destruction, suppression, alteration, or fabrication of documentary evidence properly gives rise to a presumption that the documents if produced would be injurious to that party who thus hindered the investigation of the facts."  Gard, Spencer A., JONES ON EVIDENCE, S_s 3:90, at 320 (6th ed. 1972).  See Capitol Bank & Trust Co. v. Richman, 19 Mass.App.Ct. 515, 521 n. 7 (1985).
    Alternative theory to rescission, reverter, and remainder.

    An alternative theory is that the deed was invalid because Pocahontas had not completed the condition memorialized, albeit inartfully, in the two consideration phrases -- "for consideration paid, and for no monetary consideration" -- which consideration, the grantors contend, was the marriage vows. 

    It is well settled that the manifest intention of the parties, to be gathered from all their acts and the circumstances, must be taken into consideration in determining what that intention was. No particular act governs, nor is there any one act essential or necessary to constitute a delivery. It is the intention of the parties at the time that controls. . . . 
    Daggett v. Daggett, 143 Mass. 516, 519 (1887) (deed held in escrow).

    . . . The consideration mentioned in the deed was $300, but the grantee named therein paid nothing; and, upon all the evidence, the jury might think that the deed was not to be delivered to the grantee until he should marry Eliza, or make a bargain with somebody for the sale of the land, and pay to her the $300 mentioned as the consideration. . . .

    When a deed is delivered [ ] [and is] to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. 

    Daggett, 143 Mass. at 519-520. Similarly in the instant case, although Pocahontas was in possession of the deed, she had not completed her condition of the deed, to wit, the continuing obligation to stay married to Smith until death did them part.

    It is not the grantor's deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed.... The grantee cannot acquire the title by gaining possession of the deed by theft, by fraud,... but only by performance of the condition. 
    Daggett, 143 Mass. at 519-520, and cases gathered. 

    The general rule is that . . . a delivery by the holder of the deed, without the performance of the [stated] condition, is not a valid delivery. 
    Daggett, 143 Mass. at 521, and cases gathered. Under Daggett, Pocahontas, not having performed the stated condition, might be in possession of a deed but it is not a valid one.

    Although "[t]he date [ ] on the deed [ ] is prima facie evidence of the date of delivery, . . . that presumption may be overcome [ ] by evidence of extrinsic facts or circumstances." Graves v. Hutchinson, 39 Mass.App.Ct. 634, 640 (1996), citing Ashkenazy v. R. M. Bradley & Company., 328 Mass. 242, 247 (1952). "When a deed regularly executed is found in the hands of a grantee the presumption is that it has been duly delivered, Word v. Lewis, 4 Pick. 518, but delivery with intent to pass title is a question of fact. Butrick v. Tilton, 141 Mass. 93. Cf. Harriman v. Woburn Elec. Light Co., 163 Mass. 85, 87-88 (1895) ("the title does not pass nor the mortgage take effect upon the after-acquired property, either at law or in equity, unless possession is taken under it"). Although the deed came, in fact, into the possession of Pocahontas and Smith, the transfer of possession of the property never occurred, making the deed void and of no effect. See Artemis v. Malvers, 322 Mass. 136, 138 (1947). 

    Error #2: Pages 1-2 of Reply re jurisdiction over real property of divorcing couple..

    Pocahontas also asserts that Probate & Family Court has exclusive jurisdiction over marital property. The error of her assertion is that the subject property in this action is not totally marital property, for King Harry is not and never has been married to Pocahontas and the Probate & Family Court would not have jurisdiction over King Harry's real property rights. The subject property became totally marital property by fraud or deceit, and rescission of the deed is sought on those grounds as well as on the alternative ground of mistake of fact or failure of consideration. See Fogg v. Fogg, 409 Mass. 531, 531-532 (1991) (postnuptial agreement, which was made while the parties were married and not in anticipation of divorce, was signed as a result of the wife's implied fraudulent promise that she would attempt to preserve the marriage was invalid where it was the product of wife's deception). Lest those three counts should fail, the Smiths have alternatively sought reformation of the deed. 

    Further, should the jury find that Pocahontas did commit fraud or deceive the Smiths when she married Smith, it is highly unlikely that the divorce court would or even could put the property back into the marital-asset pool. 

    In any event, the Probate & Family Court has general equity jurisdiction. It does not have jurisdiction over actions at law. Here, a jury can make findings of damage and fraud and deceit. McNeill v. McNeill, 160 Cal.App.3d 548, 558, 206 Cal.Rptr. 641, 646 (4th Dist., Div. 3, 1984) (husband granted rescission while divorcing). Even punitive damages have been awarded by a trial court available in a rescission action. Id., at 558, 561, 206 Cal.Rptr. at 646, 648. Consolidation of a civil action for intentional torts and a dissolution petition should not be allowed. Id., at 569, 206 Cal.Rptr. a6 654. 

    Further, neither King Harry's nor Smith's action for fraud and deceit in connection with title to the residence, which had been their separate residence, could not have been joined with Pocahontas's dissolution action, nor could his causes of action have been pleaded as part of the dissolution action. Id., at 557-558, 206 Cal.Rptr. at 645.

    King Harry has also paid all the expenses, including almost all taxes since the 1991 conveyance. In the dissolution action, Pocahontas has not produced records showing otherwise, although they have been repeatedly sought by Smith, believing that Pocahontas saved every piece of paper having to do with her financial dealings since 1987, when she met Smith and moved into the home of his biological family, the locus property. 

    Further, Smith bettered the subject property by his sweat equity. Such consequential damages would not be available in the action for the dissolution of the marriage, but would be available only in a separate civil action such as the one at bar. See Id. at 565, 206 Cal.Rptr. at 651.

    Moreover, should the rescission of the property be granted, the furniture and furnishings which had been taken from that property could be characterized as the Plaintiff Smiths' separate property. Id., at 566, 206 Cal.Rptr. at 651-652 (court had "jurisdiction to determine whether a particular asset is community or separate property"). 

    Error #3: Page 2 of Reply re forum shopping.

    Clearly, King Harry is not forum shopping. He has no standing in the Smiths' divorce action. He has brought his case to the one and only court having subject-matter jurisdiction. 

    Further, neither King Harry's nor Smith's action for fraud and deceit in connection with title to the residence, which had been their separate residence, could have been joined with Pocahontas's dissolution action, nor could their causes of action have been pleaded as part of the dissolution action. See McNeill, 160 Cal.App.3d at 556, 206 Cal.Rptr. at 644-645.

    Error #4: Page 2 of Reply re Statute of Frauds.

    Not only has Pocahontas failed to cite a case in support of her position that the Statute of Frauds bars "evidence that the gift was conditional," it is not the plaintiffs who are trying to introduce evidence of a gift -- conditional or not conditional: it is Pocahontas who would like to prove that the conveyance was a gift. The Plaintiff Smiths have consistently pled what they know the deed memorializes, to wit, that Pocahontas's marital vows were consideration for the deed. 

    Pocahontas has also not denied in either of her two pleadings that her marital vows were the consideration she gave for the deed.  Her silence can be construed as an admission that her vows were, indeed, the consideration. See Quintal v. Commissioner of Dept. of Employment and Training, 418 Mass. 855, 861 (1994). LePage v. Bumila, 407 Mass. 163, 165 (1990), citing Com. v. Boris, 317 Mass. 309, 317 (1944) (in certain circumstances, evidence of silence in face of oral statements of another is an admission). United Food Corp. v. Alcoholic Beverages Control Commission, 375 Mass. 238, 244 (1978) (silence served as an admission). See also Liacos, Brodin & Avery, Massachusetts Evidence, sec. 8.8.5 at 470-471 (6th ed. 1994).

    Further, even though the consideration or the marriage vows required continuing performance until death did them part, where either party to the marriage could have died within a year, the Statute of Frauds would not apply.  See Meng v. Trustees of Boston University, 44 Mass.App.Ct. 650, 651-652 (1998), and cases gathered. G.L. c. 259, sec. 1. "The Statute of Frauds 'applies only to contracts which by their terms cannot be performed within the year. It does not apply to contracts which may be performed within, although they may also extend beyond, that period.'" Boothby v. Texon, 414 Mass. 468, 479 (1993), quoting Doherty v. Doherty Ins. Agency, Inc., 88 F.2d 546, 551 (1st Cir. 1989), quoting Rowland v. Hackel, 243 Mass. 160, 162 (1922). 

    Clearly, there is a genuine issue of material fact as to whether the language of the deed is ambiguous.   Where there is a genuine issue of material fact, the disputed question must be given to the jury to decide. Com. v. Drumgold, 423 Mass. 230, 258 (1996). Riley v. Presnell, 409 Mass. 239, 250-251 (1991); Corsetti v. Stone Co., 396 Mass. 1, 12 n. 9 (1985); Precourt v. Frederick, 395 Mass. 689, 701 (1985).  "In cases where motive, intent, or other state of mind questions are at issue, . . . `the jury should be given the opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue.'" Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) and quoting Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971).

    Error #5: Page 2 of Reply re consideration.

    Under Dyer, supra, McRae, supra, and Cardinal, supra, parol evidence is admissible to amplify the consideration for the deed. 

    Moreover, although "[a]s a general rule, the signer of a written agreement is deemed to be conclusively bound by its terms, this rule has no application where there is a showing of fraud, duress, or some other wrongful act on the part of any party to the contract." Mattera v. Mattera, 125 A.D.2d 555, 599 N.Y.S. 831, 834 (1986) (court refused to dismiss father/husband's claim for rescission). Fogg v. Fogg, 409 Mass. 531, 531-532 (1991) (postnuptial agreement, which was made while the parties were married and not in anticipation of divorce, was signed as a result of the wife's implied fraudulent promise that she would attempt to preserve the marriage was invalid where it was the product of wife's deception). Knox v. Remick, 371 Mass. 433, 436 (1976) (separation agreement invalid if not free of fraud and coercion).

    Plaintiffs incorporate herein by reference their arguments in their Opposition to Pocahontas's Motion to Dismiss on the issue of whether the conveyance was a gift. 

    Error #6: Page 2 of Reply re gift.

    Pocahontas re-asserts her contention that the conveyance was a gift.  In Marsh v. Marsh, 399 So.2d 433 (DCA Fla., 5th Dist. 1981), the appeals court held that the wife had a special equity in the marital domicile, as there was no credible evidence to support the husband's contention that she intended a gift to him when she put her home into both his name and hers two months after they married.  In addition to the the husband's lack of credible evidence, the court found that the wife's special equity arose out of the fact that she, like the Plaintiff Smiths here, had acquired the home prior to marriage and from sources entirely independent of the marriage. Id., at 434. 

    Significant to the instant case, the court in Marsh wrote that since Ball v. Ball, 335 So.2d 5 (Fla. 1976), there is no longer the presumption that a conveyance from one spouse to the other was a gift.  Now there is "the presumption that a special equity is created by an unrebutted showing that all the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship." Marsh, at 434. The burden then shifts to the grantee to establish by contradictory evidence that the grantor spouse intended a gift. Id

    Pocahontas has no likelihood of meeting her burden here.  She has filed no affidavit in support of her bald assertions in her motion and her reply that the conveyance to her was a gift.  She has made no attempt to explain the two "consideration" phrases.  She has only said that the grantors' reliance on her intent to keep her marital vows was "`not reasonable reliance' in light of the high rate of divorce.Such an attitude, we might conclude, offers some insight into not only the dissolution of the Smiths' marriage, but also some evidence of Pocahontas's secret state of mind when she married: that she had no intention of staying married.

    Also interesting as well as significant in Ball is the dissent.  There, the one dissenting justice suggested that perhaps there should be a rule that dictates that such gifts be subject to rescission on dissolution of the marriage:  "[T]hen the rule ought to forthrightly state that all such gifts are impliedly in contemplation of, and conditional upon, a continuation of the marital relationship." Marsh, 399 So.2d at 436-437. 

    That statement goes, of course, to the essence of the instant case.

    The dissenting justice continued: "The appropriate rule of law should fit together human nature, common sense, and policy for the greatest public good so as to, if possible, use objective facts as proof to achieve a just result in the vast majority of the cases to which it applies." Id. at 437. 

    So should this court make the appropriate rule of law.  Here the deed clearly states that there was consideration and therefore that there was no gift.  And that the consideration was nonmonetary supports the Plaintiff Smiths' claims that they would not have conveyed the property so that the title included Pocahontas's name had they known she had not made a commitment to stay married to Smith for life.  And the reasons Pocahontas has voiced in the dissolution of marriage case are so trivial and immature that they not only fall into the de minimus category,5 they give credence to the Plaintiff Smiths' claim that she never intended to stay married much beyond after giving birth.  Had the Plaintiff Smiths known before the marriage what they know now, they would never have conveyed the property in such a manner to include Pocahontas's name in the title.  In fact, the marriage would never have taken place.

    5  "`The sacredness of the marriage relation should be kept in view, divorces should not be granted in trivial matters or disagreements.'"  Ails v. Ails, 306 S.W.2d 919, 921 (1957).
    Error #7: Page 3 of Reply re the proposition for which P.L.A.Y., Inc. v. Nike, Inc., stands.

    The one case Pocahontas cites, P.L.A.Y., Inc. v. Nike, Inc., 1 F.Supp.2d 60 (D.Mass. 1998), does not stand for the proposition for which she cites it. The court in P.L.A.Y. dismissed the rescission claim because the parties had already executed a settlement agreement, in which the parties agreed to do certain acts and pay certain monies.  The case was, in fact, not a rescission case but a breach of contract case.  The logical question presented to the federal court was, Why bother hear about the facts supporting rescission where the parties had already settled that issue amongst themselves?  The problem was how to get the parties' performance under the settlement agreement back on track.

    The Plaintiff Smiths do not disagree that they must show "fraud, accident, mistake, or some type of grossly inequitable conduct which renders the contract void ab initio." Id. at 65.

    Error #8: Page 3 of Reply re 8-1/2 years of marriage precluding a claim for rescission.

    "[The] possibility of reverter is not invalid for remoteness." First Universalist Soc. of North Adams v. Boland, 155 Mass. 171, 175 (1892); Brown v. Independent Baptist Church of Woburn, 325 Mass. 645, 646 (1950).

    Error #9: Page 3 of Reply re having two children.

    Pocahontas infers from her statement that because they had two children, this court should conclude that she did not break the  marriage vows.  That is not the only inference which can be drawn by this court. It was Smith who wanted offspring and was willing to stay home and take care of them while Pocahontas pursued her much-sought-after career.  Upon their birth, he did leave his work and become the primary caregiver of the children and house-husband who fulfilled Pocahontas's every need.

    Error #10: Page 3 of Reply re a 209A order.

    Pocahontas has opened a can of worms by bringing to this court's attention a December 1999 c. 209A order.  There is a dispute as to whether that order was lawful.  There is a dispute as to Pocahontas's truthfulness in that affidavit. Pocahontas was never fully cross-examined by Smith's prior counsel on that affidavit.  While the lawfulness of that 209A order is beyond the jurisdiction of this court, Pocahontas is evidently trying to use the alleged facts of her affidavit as an excuse to justify her breaking her marriage vows.  Given that Pocahontas has implicitly introduced facts outside the Complaint, she was required to submit an affidavit supporting those facts.  Given her failure to file and serve an affidavit signed under the pains and penalties of perjury, her statements regarding the 209A must be stricken. 

    During the first week in December 2000, Pocahontas began devising a scheme when she learned that her husband wanted to move back into his Boston home. By January, she again sought a bogus 209A and caused Smith to be arrested.  All charges were dismissed a few months later by the prosecutor. Pocahontas's motive was to gain a collateral advantage in the couple's divorce.  If Smith were to be arrested and convicted, Pocahontas could resolve the issues of custody of the children and potential child-support obligations, be free of alimony (from her to him: Smith was the primary caregiver, the "house-husband"), and property distribution (the Boston and Pelickingham homes) resolved outside of the Probate & Family Court.

    To accomplish her goals, she elicited her stepbrother's help.  Telling him that Smith had no right of access to the residence, and that she had an order giving her the exclusive use and possession of it, she got him to move into Smith's residence.  She reiterated the falsehood on the phone to him on, at the very least, the morning of January 5th, prior to the police arriving at the residence and arresting Smith.  Then she reiterated it again when she spoke on the phone to one of the officers. 

    Pocahontas should not have misinformed the officers that Smith had no right to be at the Boston property and/or that there was an order giving her exclusive use and possession of it.  Were there an order giving her exclusive use and possession of that property, she would not have needed a 209A to restrain Smith from going there. 

    To this day, Pocahontas continues to contend that Smith had no right to access the property and it is likely that this is what she told the officers.

    On 24 April 2001, Pocahontas testified in Probate & Family Court that she told Smith that the court gave her exclusive use and possession of the Temple Street property [Exh. D].6  On 26 April 2001, the court itself acknowledged that there was no such order [Exh. E].7  The only order which restrained Smith from going to the property except to get the children for visitation was the 209A order which had expired on 13 December 2000 [Exh. F].  Clearly, Pocahontas was attempting to deceive her husband once again, to gain an advantage in the divorce.

    6 Exhibit D (p. 129 of the transcript for 24 April 2001) is Pocahontas's testimony on 24 April 2001. 

    7 Exhibit E (pp. 201-202 of the transcript for 26 April 2001) contain the court's acknowledgement that Pocahontas's statement to Smith was untrue. 

    It is only since the incipience of the dissolution action that Smith has recognized that Pocahontas is an inveterate liar.  Adoring her earlier, he had failed to see it. Since then the pieces have come together.  Like the wife in Fogg v. Fogg, supra, Pocahontas, at home in the art of deception and with perfected persuasion skills, has lied to better her financial position in anticipation of extricating herself from the marriage to which she never made a commitment. 

    She has lied to police officers (not only in Boston on January 5th) 8 but also on the stand about assorted matters in the divorce action: for instance, about Smith being in contempt if he did not bring the children to Maine on New Year's Eve [Exh. G].9.   Pocahontas, as a lawyer knew that it was she who was in contempt by not being at the court-ordered location for pickup of the chldren [Exh. H]10, about finances on her court-ordered financial statement [Exh. I],11 and on and on and on. 

    8 One, Officer Sayers, took the stand and exposed her.

    9 Exhibit G (pp. 21-22 of transcript of 9 March 2001 hearing) is the tes-timony of Merrimack Police Office Sayer, whose testimony contradicted Pocahontas's.

    10Exhibit H is the order of the court specifying where Pocahontas was to deliver and pick up the children.

    11  In Exhibit I (p. 41-42, transcript of 24 April 2001), Pocahontas failed to in-clude $30,000 and other stocks on her financial statement, items which she put into the children's names, so as to exclude them from her assets.

    Her deception has been boundless. Smith and his parents were completely taken in by her.  Smith was her principal benefactor: he funded her law-school education and made possible the acquisition of real property.  And like Mrs. Fogg, Pocahontas has wanted to take it all with her on leaving the marriage. As she said in her own words, "Finally, plaintiffs' alleged reliance on the wedding vows as a promise that my husband and I would always be married is not `reasonable reliance' in light of the high rate of divorce."  These are the words of a woman who connives and deceives with relative ease.

    * * * * *

    WHEREFORE, Plaintiffs pray that this motion be allowed and that attorney's fees and costs for having to oppose Pocahontas's frivolous motion be granted pursuant to G.L. 231, sec. 6F.

          Respectfully submitted,.
          PLAINTIFFS
          KING HARRY SMITH
          JOHN SMITH
          By their  attorney, 

         Barbara C. Johnson
     

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

    CERTIFICATE OF SERVICE

    I hereby certify that on 19 September 2001 I served by first-class mail a true and accurate copy of the within pleading on . . . .