#70, Drano Series
Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court
* In Massachusetts, this is the only way to "appeal" a denial by a single justice in the Appeals Court (see Drano #65).
I have added facts and strengthened the legal argument, which is about the application of the Child Support Guidelines where the father has no visitation..
For those of you using these briefs as samples, compare this type of petition with that in Drano #65. Look at the headings of each section and study what types of facts or arguments are used in each section.
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURTSUFFOLK COUNTY, ss. CIVIL ACTION NO. ______
________________________________
James Linnehan
Plaintiff
v.Robyn L. (Gerry Sylvia
Bristol County Probate & Family Court
Defendants
________________________________
COMPLAINT IN THE NATURE OF A PETITION FOR A WRIT OF CERTIORARI
AND TO INVOKE THE GENERAL SUPERINTENDENCE OF THE COURT
JURISDICTION
1. Jurisdiction is conferred upon this Court by M.G.L. c. 211, sec. 3, which provides a party the right to seek review under the court's superintendency powers of interlocutory matters where no posttrial relief would put the appealing party "in statu quo." Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128, 132 (1982).
PARTIES
2. Plaintiff James Linnehan ["Linnehan"] is the defendant and plaintiff-in-counterclaim in Robyn Gerry Sylvia v. James Linnehan, entered as Docket Number Docket No. 88W0113-P1 in the Bristol County Probate & Family Court, and the father of the subject child.
3. Defendant Robyn Gerry Sylvia is the plaintiff and defendant-in-counterclaim in Robyn Gerry Sylvia v. James Linnehan, entered as Docket Number Docket No. 88W0113-P1 in the Bristol County Probate & Family Court, and the mother of the subject child.
4. Defendant Bristol County Division of the Probate & Family Department of the Trial Court is a division of a department of the trial court of the Commmonwealth of Massachusetts and includes Justice Elizabeth ONeill LaStaiti, who was at all relevant times accountable to Linnehan.1
1Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . . . provides that officers [including judges] of government `are at all times accountable to [the people].'"
FACTS5. Robyn L. Gerry Sylvia and James Linnehan are the biological parents of Brenden, born 9 February 1985.
6. A paternity action was filed in Maine, and a temporary custody order was entered and Linnehan was granted visitation.
7. In September 1986, the father brought an action to enforce visitation which the mother had unreasonably denied.
8. In January 1987, while the paternity action was still
pending in Maine, the mother fled with the child to Massachusetts.
9. Ten months later, the father found the mother and child in New Bedford, Massachusetts.
10. After the mother fled with the son, the father never saw his son again except for two supervised visits with therapists two years later, both of whom recommended continued visits but who were overruled by a lower-level worker who had never met the father but had the mother.
11. On 24 June 1988, having moved to the area to be close to his son, the father brought an action to establish paternity and custody in Bristol County Probate and Family Court.
12. Paternity was established, but Linnehan was given neither custody nor visitation.
13. Child support was set at $98.50 per week.
14. The mother conceived a second child out of wedlock and married its father, Michael Sylvia, prior to its birth.
15. In 1994, the mother, Robyn, instituted a divorce action and began receiving over $600 per week from her estranged husband as child support for her second child. During this time Robyn was also self-employed.
16. On 7 May 2001, the mother brought an action for modification of child support.
17. On 7 November 2001, Robyn's divorce from her husband became final.
18. According to the terms of the Settlement Agreement, Robyn continued receiving child support from husband (Sylvia), was allowed to keep the real property (a multifamily home) in her name, and received a $70,000 lump-sum settlement.
19. The judge who assessed additional child support on Linnehan was the judge who presided over the Sylvias' divorce and knew or should have known the terms of the Sylvias' divorce agreement.
20. Having unsuccessfully sought in the court system, visitation for more than the past decade, Linnehan answered and counterclaimed for custody or visitation with his son.
21. Both Linnehan and Robyn moved for temporary orders regarding child support and custody.
22. Robyn did not provide Linnehan with any mandatory financial affidavits, forms, or disclosure until within an hour before the hearing on the temporary orders.
23. At the proceeding before Judge LaStaiti, Linnehan was not allowed to cross-examine Robyn as to the veracity of her financial disclosure: e.g., as to the correctness of incorrectness of (a) her statements of her current and last-year's income, (b) her alleged expenses -- whether they applied to one or both children, one of which was not Linnehan's -- and (c) her statement of liabilities.
24. On 14 November 2001, the court ordered no change of custody, and ordered the father to pay $228.27 per week in child support [Exh. A].
25. Linnehan seeks this court to use its power of general superintendence and vacate the 14 November 2001 order of the trial court as to child support.
ISSUES
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO DEVIATE FROM THE CHILD SUPPORT GUIDELINES TO ACCOUNT FOR THE FATHER'S LACK OF VISITATION AND CUSTODY RIGHTS, AND BY SO DOING, THE COURT ALLOWED THE COURT-MADE GUIDELINES TO UNCONSTITUTIONALLY USURP THE JUDICIAL FUNCTION. ARGUMENTSII. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ALLOW THE FATHER TO INQUIRE INTO THE MOTHER'S INCOME AND EXPENSES.
1. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO DEVIATE FROM THE CHILD SUPPORT GUIDELINES TO ACCOUNT FOR THE FATHER'S LACK OF VISITATION AND CUSTODY RIGHTS, AND BY SO DOING, THE COURT ALLOWED THE COURT-MADE GUIDELINES TO UNCONSTITUTIONALLY USURP THE JUDICIAL FUNCTION.
The law of child support went through no less than a revolution in 1988, when Congress enacted the Family Support Act, Pub. L. 100-485, 102 Stat. 2343.2
2 Codified primarily at 42 U.S.C. secs. 666, 667.
This Act required each state, as a condition of receipt of federal funds for child support enforcement services, to enact mandatory presumptive child support guidelines:
There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
42 U.S.C. sec. 667(b)(2). Accord 45 C.F.R. sec. 302.56. Thus, although in any judicial proceeding for support, whether an initial determination of child support or a modification of support, the state must apply its child support guidelines as the presumptively correct amount of support to be awarded, the state must also provide the alleged obligor the opportunity to rebut that presumption.Under the federal mandate, a deviation from the state's guidelines can only be supported by a written finding or a finding on the record that the presumptively correct amount of support, as determined by the guidelines, is unjust or inappropriate in the particular case. No longer may child support be predicated on the amorphous and ever-changing "best interests of the child" standard. Rather, the best interests of the child are presumed in the child support guidelines. See generally Laura W. Morgan, Child Support Guidelines: Interpretation and Application sec. 1.02 (Supp. 2001) [hereafter Child Support Guidelines].
In accordance with the federal mandate, Massachusetts enacted its Child Support Guidelines ["Guidelines"] by court rule.3 The Guidelines repeat, in toto, the federal mandate:
3 The version now in effect was made effective 1 January 1998.
There shall be a presumption that these guidelines apply, absent agreement of the parties, in all cases seeking the establishment or modification of a child support order.
Guidelines, N.B. See generally Quinn v. Quinn, 49 Mass.App.Ct. 144, 727 N.E.2d 92 (2000) (there is a rebuttable presumption that the amount of the order which would result from the application of the child support guidelines is the appropriate amount of child support to be ordered).
A specific, written finding that the guidelines would be unjust or inappropriate and that the best interests of the child have been considered in a particular case shall be sufficient to rebut the presumption in that case.
Guidelines, N.B. In the court below, the judge's written findings were not only sparse they were naked of any findings implying that the guidelines would be unjust or inappropriate.Without the requisite findings, the mandatory aspect of the child support guidelines fades and the presumptive aspect looms critical. At such a juncture, when an application of the guidelines would be unjust or inappropriate in the case before it, the trial court has the power to deviate from the presumptive award. Cf.Leonardo v. Leonardo, 40 Mass. App. Ct. 572, 665 N.E.2d 1034 (1996) (specific, written findings that child support guidelines would be unjust or inappropriate and that best interests of children have been considered in particular case is sufficient to rebut presumption that guidelines apply); Department of Revenue v. G.W.A., 412 Mass. 435, 590 N.E.2d 176 (1992); Canning v. Juskalian, 33 Mass.App. Ct. 202, 597 N.E.2d 1074 (1992).
Indeed, if the trial court did not have the power to deviate from the guidelines when the circumstances so required, and instead the guidelines were mandatory and irrebutable, then the guidelines would be an unconstitutional usurpation of the judicial function. Dalton v. Clanton, 559 A.2d 1197, 1212 (Del. 1989) (child support formula creates a rebuttable presumption and and inequitable result rebuts the presumption). See also, e.g., Schenek v. Schenek, 161 Ariz. 580, 780 P.2d 413 (App. 1989) (constitutional challenge to Arizona guidelines, that they usurp judicial function, overruled); Mistretta v. United States, 488 U.S. 361 (1989) (federal sentencing guidelines do not violation constitutional separation of powers).
As a general matter, deviation from child support guidelines is appropriate when the assumptions embedded in the guidelines are not true in the particular case. As stated by one authority:
All states' child support guidelines are based on assumptions about economic expenditures in the average family. These assumptions are derived from statistical data gathered by numerous federal and state agencies concerning the average cost of raising children. The guidelines are thus stating, in essence, "When the average set of circumstances underlying the guidelines is true, then support shall be X amount for dollars." . . . Thus, when the circumstances render application of the guidelines "unjust or inappropriate," the presumption of the guidelines is rebutted, and the court may deviate from the presumptive guidelines award. These "unjust or inappropriate" circumstances arise when the circumstances in the case are at variance with the economic assumptions that form the basis of the guidelines.
Morgan, Child Support Guidlines sec. 4.01 at 4-5 to 4-6 (Supp. 2000). Crowley v. Crowley, 708 N.E.2d 42 (Ind. 1999), citing In re A.J.R., 702 N.E.2d 355, 361 (Ind.App. 1998) (cite omitted) (deviation appropriate when application of guidelines would be unjust or inappropriate). See Miltier v. Miltier, No. E1999-00887-COA-r3-CV (Tenn.App. 5/31/2000) (examples where downward deviation is appropriate).One presumption that all child support guidelines embody is that the noncustodial parent will exercise at least "ordinary" visitation of 20% (every other weekend, two weeks in summer, another week or two for miscellaneous holidays, for a total of 73-80 days). See generally Karen Czapankiy, "Child Support, Visitation, Shared Custody and Split Custody," in Child Support Guidelines: The Next Generation (U.S. Dep't of Health and Human Services, Office of Child Support Enforcement, 1994). Thus it is appropriate to deviate when that assumption underlying the guidelines does not hold true:
The guidelines themselves make clear the interrelatedness of visitation and support in many ways. First, the guidelines based the presumptive award on an assumption that the child will spend 20% of the time with the noncustodial parent. Second, the guidelines make an adjustment when parents share physical custody of the child. Third, the guidelines make an adjustment when the noncustodial parent has extended visitation. Because the guidelines make an adjustment for more visitation, there is no reason the guidelines should not make an adjustment for less visitation where the failure of the noncustodial parent to exercise visitation is directly related to the fault of the custodial parent.
Thus, when a noncustodial parent is unable to exercise visitation because the custodial parent has denied the noncustodial parent visitation, the court should deviate down from the guidelines.This principle was first applied in In re Marriage of Damico, 7 Cal. 4th 673, 29 Cal. Rptr. 2d 787 (1994). This case held that when the custodial parent wrongfully conceals the child from the noncustodial parent, the noncustodial parent will not be liable for child support. AccordSchaffer v. Haynes, 847 S.W.2d 814 (Mo. Ct. App. 1992) (court did not err in abating father's support obligation where mother had alienated children's affections from father by denying visitation without good cause); Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994) (court may suspend child support where custodial parent deprives noncustodial parent of visitation and there is no showing that children are in need); Hiross v. Hiross, 224 A.D.2d 662, 639 N.Y.S.2d 70 (1996) (custodial parent's deliberate frustration of visitation rights can warrant suspension of child support); Doyle v. Doyle, 198 A.D.2d 256, 603 N.Y.S.2d 525 (1993) (while interference with visitation does not excuse arrearages, such interference may provide basis for prospective suspension of support).
The Massachusetts Guidelines likewise embody certain assumptions about visitation. Guidelines II(D)(1) states that the guidelines are based "upon traditional custody and visitation arrangements." Guidelines II(D)(2) further provides,
These guidelines recognize that children must be allowed to enjoy the society and companionship of both parents to the greatest extent possible. The court may adjust the amount of child support beyond the 2 percent range after taking into consideration the parties' actual time sharing with the children and the relative resources, expenses, and living standards of the two households.
Clearly, then, when the "traditional custody and visitation arrangement" are not in place, and then a child is not allowed to enjoy the society and companionship of one parent due the fault of another parent, the court should deviate from the guidelines to account for that fact.4
4 Although two Appellate Division cases hold that a father has a duty to support his minor child even though the child has been wrongfully taken by its mother to a foreign state where the father could not visit or enjoy the company of the child, these cases, apart from being of no precedential value to this Honorable Court, are preguidelines cases and are thus not relevant. Parson v. Parsons, 29 Mass.App.Dec. 155 (1964); Parmelee v. Parmelee, 20 Mass.App.Dec. 26 (1960).
In the present case, the trial court specifically found that the father had not seen his son in 13 years. The trial court thus specifically found that the assumptions that underlie the guidelines did not obtain to the facts. It was therefore error for the court to fail to deviate from the Guidelines' presumptive award to take into account the mother's repeated and continuous failure to allow the father any kind of parental rights.II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ALLOW THE FATHER TO INQUIRE INTO THE MOTHER'S INCOME AND EXPENSES.
Because a determination of child support is income driven, each party in a child support proceeding has the obligation to provide complete and accurate financial data to the court and to the other party. Otherwise, there is no evidence on which the court can base its decison as to the appropriate amount of child support. Crowe v. Fong, 45 Mass.App.Ct. 673 (1998). Hence, the failure to present records substantiating claimed expenses is cause to disregard those claimed expenses. Id. at 679, citing Smith-Clarke v. Clark, 44 Mass.App.Ct. 404, 406 (1998).
Further, each party has the right to present evidence and be heard on his or her request for relief. This right is no less than due process demands. Broome v. Broome, 40 Mass.App.Ct. 148 (1996).
In the present case, Robyn provided to Linnehan her financial information literally on the court house steps, minutes before the hearing on temporary orders. Linnehan had no opportunity to independently discover Robyn's income and expenses. Further, the trial court refused to allow Linnehan to cross-examine Robyn regarding her income and expenses, but instead just adopted the her counsel's statements without inquiry. These actions deprived Linnehan of his due process rights to have the court determine an appropriate amount of child support.
CONCLUSION
Linnehan has demonstrated that the trial court erred by refusing to deviate from the Guidelines, and by denying him the right to cross-examine the mother regarding her income and expenses, thus denying him his due process rights. "A substantive right must prevail over a guideline." Cummings v. Cummings, 182 Ariz. 383, 897 P.2d 685 (1994), citing Schenek, supra. 161 Ariz. at 581, 780 P.2d at 414. The father will suffer irreparably injury if this Honorable Court does not reverse the trial court's determination of temporary support.
PRAYER
Plaintiff James Linnehan does not seek extraordinary relief. Linnehan's goal is to have his first evidentiary hearing on the issue of child support, something he has not been allowed in over the 13 years working within our court system.
Respectfully submitted,
PLAINTIFF,
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833CERTIFICATE OF SERVICE