Motion for Restitution of Fees Paid for Guardian ad Litem If Your State Was Supposed to Pay but You Were Ordered to Pay Instead A Sample to Use with Your Own Facts,  Of Course

COMMONWEALTH OF MASSACHUSETTS _______ (COUNTY), SS.                                       PROBATE & FAMILY COURT                                                                                     DOCKET NO.  __________ ------------------------------------ Jane Doe                       Plaintiff  v.  John Doe                       Defendant  ------------------------------------

MOTION FOR RELIEF FROM STIPULATION OR ORDER FOR PAYMENT TO G.A.L. Now comes John Doe ["Doe"] in the above-entitled matter and pursuant to Mass.R.Civ.P. Rule 60(b)(6) moves this court for relief from either the stipulation or order requiring him to share in payment of the costs of the guardian ad litem. He moves that that relief be in the form of reimbursement to him from the Commonwealth for the monies paid on his behalf to the guardian ad litem.  As grounds, Doe states (1) that G.L. c. 215, s. 56A, explicitly provides for the compensation to a guardian ad litem to be borne by the Commonwealth; (2) that 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; (3) that 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.   1. G.L. c. 215, s. 56A, explicitly provides for the compensation to a guardian ad litem to be borne by the Commonwealth, it was unlawful for the motion judge to order one or both of the parties to share in the cost of the fees. Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children and as to any matter involving domestic relations except those for the investigation of which provision is made by section sixteen of chapter two hundred and eight. Said guardian ad litem shall, before final judgment or decree in such proceeding, report in writing to the court the results of the investigation, and such report shall be open to inspection to all the parties in such proceeding or their attorneys. The compensation shall be fixed by the court and shall be paid by the commonwealth, together with any expense approved by the court, upon certificate by the judge to the state treasurer. The state police, local police and probation officers shall assist the guardian ad litem so appointed, upon his request. Massachusetts General Law, Chapter 215: Section 56A. Investigations. "A statute is to be interpreted according to the plain and ordinary meaning of its words." Com. v. Conaghan, 433 Mass. 105, 110 (2000). The language of a statute is the best indication of legislative intent. Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) A statute must not be interpreted so as to render it or any portion of it meaningless. Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985). Therefore, the court must "attempt to ascertain legislative intent first, as [it does] with all statutes, `from the words used.'" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942). To determine the intent of the legislature, the reviewing court looks to both language and purposes of an act. Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985).1  1 See also United States v. Ven-Fuel, 758 F.2d 741, 751-752 (1st Cir. 1985): "All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous."  It is clear from the last line of the statute [see note 2] that the legislature believed that the guardians ad litem were acting on behalf of the court and that therefore the Commonwealth should bear the cost. It is less clear that the legislature was thinking about the rates that the guardians ad litem were charging. If, however, the legislature were aware of the difference between the rates which retired Chief Justice of Administration and Management of the Trial Court Judge Irwin set out for the Commonwealth to pay and the rates which guardians ad litem are charging the parties -- $30 and $50 per hour if the Commonwealth is paying for the services10 and $175 per hour, as in Doe’s case, for private parties -- the likelihood is nil that the legislature would shift the cost burden onto the general population. Writing such a shift into an amendment would be politically unattractive.2 2 It was reported on 21 March 2000 in the Times, Boston Bureau, that in the year 2000, there were 6000 cases using guardians ad litem. Given that the story said the G.A.L.s were paid between $30 and $50 per hour for approximately 20  hours, the 6000 cases can be presumed to have been state-paid cases. The total the state paid was roughly $4 million. Were 6000 parties to pay, the cost for G.A.L.s for 20 hours' service would have been closer to $21 million. In  reality, when the parties are paying, the judges do not limit the number of hours or the hourly rate. The G.A.L. on the Doe case has charged $175 per hour and has received $10,886.70 to date. She has been reappointed, but on her own, she has updated her report although the reappointment was not renewed. The bills have continued. And she is incompetent as well as biased. Of 275 cases, she recommended visitation or custody for the males only 8 times.  The passing of the considerable cost on to the parties clearly and unequivocally a violation of the statute,    2. 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.   NOTE:  The courts are trying to get around the statute by saying you consented by either stipulating or not objecting to their ordering you to pay the fees.  My contention is that that is not good enough:::  the statute orders the Commonwealth to pay, NOT you.  Any agreement into which you entered or any failure of you or your counsel to object does not cut it...it would have yielded a result opposite to the intention of the statute and thus would have been an unlawful agreement or result. "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 Doe's counsel (or prior) counsel failed to object, failed to inform Doe of the statute, and failed to ask Doe 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 Doe 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.    3. 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, a so-called stipulation can never have existed. Doe’s counsel’s (or prior) counsel's failure to object may not be transformed into a stipulation, for Doe’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, his prior counsel’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.  WHEREFORE, John Doe prays his motion for relief from payment to GAL-NAME by reimbursement from the Commonwealth be allowed.

Respectfully submitted,.    John Doe, pro se     John Doe DATE: __________       Your name and address and phone     CERTIFICATE OF SERVICE