#99, Drano Series
John Smith's Opposition to His Wife's Attorney's Fees
A recent case in Massachusetts stated
that an evidentiary hearing need be allowed only if the attorney's fees are incommensurate with the services rendered and
that the court may base his or her decision on whether to make one spouse pay for the other spouse's attorney's fees on briefs filed by the parties.I wanted an evidentiary hearing to show why the wife and her team caused this divorce trial to take 59 days, a record in Massachusetts for the longest divorce trial in . . .
There was evidence of
- misrepresentations (I think sufficient to prove perjury),
- attempted fraud of at least $160,000,
- conversion (tens of thousands of dollars),
- outright violations of "mandatory" statutes, such as the guardian ad litem and removal statutes,
- a secret order not allowing the parties to be at an evidentiary hearing of the guardian ad litem who recommended to allow the removal of the children to another State,
- severe sexual abuse of the children by the wife's father, with whom the children had been allowed to go live,
- possible bribery of the GAL,
- possibly unlawful splitting of GAL fees between court-appointed and NON-court-appointed lawyer/GALs,
- a $70,000 charge for fees by a so-called Discovery Mster who did nothing but create chaos and succumb and/or encourage lying by the wife and her team of lawyers,
- attempted deep-sixing of material evidence of an appraisal of real property,
- real-estate experts who were not experts at all,
- the nondisclosure of the wife of her adultery (so ordinary in today's world that the courts generally ignore it) and the discovery of it on the 57th day of trial (the kids gave her up),
- bogus restraining orders,
- wife's intentional and concerted effort to get the husband arrested for something, anything . . . in order to gain advantage in the custody fight,
- wife intentionally leaving a $170,000 position as a trial attorney for one paying only $60,0000, and then leaving that one for intentional unemployment, so as to avoid paying rehabilitative alimony (the father had been the primary caregiver prior to the wife filing for divorce),
- outrageous waste of marital assets by the wife
- the alteration of multiple tapes of a pretrial hearing,
- even perhaps an attempt at changing the tapes of the first five days of trial,
- collateral actions [malicious prosecution, 42 U.S.C. §§1983 and 1985 (conspiracy; prima facie case was pled), rescission] and
- on and on and on . . .
That but for their lies and despicable conduct,
the divorce trial would not have had to to last 59 days,
a record in Massachusetts for the longest divorce trial in . . .So now YOU can read why Smith's divorce trial took 59 days!
And how YOU can avoid paying your spouse's attorney's fees!
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. PROBATE & FAMILY COURT
NO. XXXXXXXXX
Pocahontas Smith
Plaintiff/Defendant-in-Counterclaimv.
John Smith
Defendant/Plaintiff-in-Counterclaim
__________________________________________________
SMITH’S OPPOSITION TO
WIFE’S MOTION FOR ATTORNEY’S [sic] FEES AND COSTS
PURSUANT TO G.L. c. 208, §38Now comes John Smith, Jr. ["Smith"] and opposes the motion of Pocahontas C. Smith ["Pocahontas"], pursuant to G.L. c. 208, §38, for attorneys’ fees and costs. As grounds for his opposition, Smith states that Pocahontas and her counsels’ conduct was of the sort for which the opposing party is awarded attorney’s fees, not the type of conduct for which attorney’s fees are awarded. Where Pocahontas and her counsel litigated in bad-faith1 and proceeded in a dilatory and vexatious manner. Kendall v. Kendall, 426 Mass. 252 (1997). Pocahontas must be made to pay Smith his counsel fees, expenses, and the costs he incurred as a result of that bad-faith litigation. "Conduct has been held to justify an award of attorney's fees where a party has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons,’" Police Com'r of Boston v. Gows, 429 Mass. 14, 18 (1999), quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402 n. 4 (1968); 5 Moore's Federal Practice par. 54.77(27), at 1709 (2d ed. 1974); [and] where the litigant's conduct is unreasonably obdurate or obstinate [foreign cites omitted].
FN1 “Although a showing of bad faith is not required for an award of attorney's fees under our holding in this case, evidence of a bad faith abandonment may provide the basis for other forms of relief under G.L. c. 93A or other law.” Hanover Ins. Co. v. Golden, 436 Mass. 584, 588 (2002).
Specifically, the conduct of which Smith complains follows:(A) Pocahontas employed obstructionist tactics, which unnecessarily caused the prolonged proceedings.\2/ She and her counsel chose as a strategy to be in total noncompliance with her obligations under the discovery rules. Nondisclosure was their goal. Her noncompliance and nondisclosure were, without doubt, one of the primary reasons for the prolongation of each stage of the proceedings in this action.
FN2See Vural v. Vural, 57 Mass.App.Ct. 1105, n. 9 (2003) (unpublished), citing Earle v. Earle, 13 Mass.App.Ct. 1062, 1064 (1982) (obstructionist tactics); Kennedy v. Kennedy, 20 Mass.App.Ct. 559, 563 (1985), S.C., 400 Mass. 272 (1987).
IN CONTRAST, on 7 June 2001, Smith’s counsel wrote both Pocahontas’s prior counsel, E. Chouteau Merrill ["Merrill"], and the so-called Discovery Master, Gerald L. Nissenbaum ["Nissenbaum"], to sit down in a 4-way conference and calculate the contributions of the parties to diverse assets. See Tr. Exh. 250, where Smith’s counsel wrote: "In the interest of the parties saving attorneys' fees and reducing court time, let's find a mutually agreeable date for the four of us to sit down and discuss the contributions. All can be proven by documentation."Neither Merrill nor Nissenbaum responded.
Smith’s counsel, Johnson, tried again in July 2001 and convinced Nissenbaum to set up a three-way teleconference with herself and Merrill, but Merrill refused to participate because she was, as she said, "no longer on the case."3
FN3 Merrill knew she had been nominated for a judgeship. The public announcement occurred the morning of the proposed date of the conference.
No fewer than twenty-five (25) trial days and maybe more,4,5 excluding the days spent on the section 34 factor of waste of marital assets, were ultimately spent on financial contributions to the marriage. Had Pocahontas and Merrill and Pocahontas’s successor counsel not been recalcitrant, those days spent on financials would have been unnecessary and would have saved not only court resources but also many tens of thousands of dollars in attorneys’ fees and transcripts.6FN4 In 2002: In 2003
6/10, 6/11, 6/12, 8/14, 8/15, 8/16 9/3, 9/4 1/6, 1/7, 1/8, 1/9, 1/10
6/13, 6/14 8/26, 8/27, 8/28 9/6 1/17
9/9, 9/10, 9/11, 9/12
9/27
FN5 Because not all the transcripts have yet been received, Smith cannot give a final count of the days spent on financial issues. FN6 A party’s ‘“intransigence in revealing her assets’” supports an award of attorney’s fees to the opposing party. Grubert, at 820, quoting Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 15 (1980).
(B) Pocahontas unremittingly opposed Smith’s good-faith efforts in trying to narrow the issues during the discovery stage and prior to trial,IN CONTRAST, Smith filed highly focused motions on an effort to confine testimony and other evidence strictly to specific issues. to save money and time.7
FN7 Grubert v. Grubert, 20 Mass.App.Ct. 811, 819 (1985), quoting Kennedy v. Kennedy, 20 Mass.App. 559, 563 (1985).
For example, motion to include the will of Pocahontas’s father as marital asset,
- motion to exclude the Pelham real estate from the marital property,
- motion to reconsider order allowing the appraisal of the Boston properties and the re-appraisal of the Pelham property
- motion for restitution of the guardian ad litem’s fees, for which the statute, G.L. c. 215, §56A, mandated that the Commonwealth pay,
- motion for an accounting from wife's counsel of the escrow account held for the parties
- motion for order commanding guardian ad litem ["GAL"] to produce documents
- Smith's motion for court to act on discovery master's recommendations of 26 April 2001 (before Nissenbaum learned Merrill was to become a judge)
- motion both to vacate preliminary injunction forbidding Smith to complete the renovation of the real property at 58 Temple Street, and to order wife to return the tools she removed from property
- motion for wife to re-instruct the U.S. Post Office re forwarding mail so as husband's mail is not forwarded to wife in Maine and to pay whatever bills she receives until she changes the forwarding instructions
- motion to order Pocahontas Smith to produce copies of her bills from Brown Rudnick Gesmer & Freed
- Smith’s opposition to the appointment of a Discovery Master
- Smith’s opposition to the appointment of James J. McCusker
(C) Pocahontas in bad faith successfully opposed Smith conducting any discovery in Maine at all times and opposed the reopening of discovery between trial dates.IN CONTRAST, Johnson argued unsuccessfully that discovery in Maine "would shorten the trial considerably" and DiPiano argued that it would "lengthen the trial" [Tr. Day 5 (6/14/02), pp, 685-686].
(D) Pocahontas’s intent was to hide details regarding the environment in which she and the children lived in Maine and the details regarding the children’s physical and mental health and their academic performance.
(1) For instance, Pocahontas had told Judge Nancy M. Gould, this court, Barbara O’Brien Beardslee ["Beardslee"], and James McCusker ["McCusker"] that she and the children lived alone in an apartment over the garage in her father’s home. She neglected to testify that her boyfriend Russ lived with her and the children. The children told Daley the truth [Trial Day 57].
The effect of Pocahontas’s dishonesty added days of hearings and days of trial that would have been unnecessary had she not covered up that a boyfriend of hers was living with her and the children. Had we known that information,
- GAL Beardslee’s question to Smith, "How do you know the children have seen their mother have sex with a man?" would have made sense8 AND
FN8 Gouin did NOT know that. He and his counsel reasonably concluded, however, that the children must have told Beardslee that they had seen Dori at an intimate moment. That concerned Gouin, and was the reason he taped the children. Although Beardslee never did admit that the children told her that, it is difficult to believe that they did not tell her . . . but she did admit asking Gouin the question. Curious, indeed. Her failure to admit it evidences, Gouin contends, Beardslee’s bias for Dori, to the detriment of both Gouin and the children.
- the children’s revelation that they had seen their mother being intimate with a man other than their father would have been believed AND
- Smith would likely have been believed when he said he had NOT coached the children AND
- Smith and the children would NOT have been separated AND
- Smith and the children would NOT have had to see each other under the supervision of an utter stranger AND
- Johnny’s accusation against his maternal grandfather would have had an aura of credibility
At that time, in mid-March 2001, it was not known by this court or by Smith that Pocahontas was living with a man . . . which is why he asked them a question very similar to what Beardslee asked him. . . . And because Beardslee had called him a liar when he first met with her, Smith taped his questioning of the children whether they had seen their mother making love. When the children told Smith that they had seen their mother making love, and then when Smith reported it to the court, the children and Smith were denied seeing or speaking to each other. In several courts, Pocahontas pretended that there was no man with whom she had been intimate and that there was no man named "Steve." "Steve" was the name the children had called Pocahontas’s friend at an earlier time. It is believed now that Pocahontas had told the children not to tell anyone about ‘Russ," but they wanted to tell their Dad that they were angry that "Steve" had kicked them out of their mother’s bed, where they, until Russ moved in, had slept on a nightly basis since their birth. So they changed Russ’s name to "Steve," in order not to break a promise to their mother not to mention Russ to anyone. If that is not true, maybe there was also a "Steve."
(2) even on the 52d day of trial, after this court ordered the Family Service Office to inspect the residence where the children lived with their mother,9 to retrieve the medical and school records, to interview the children, Pocahontas redacted both the release for medical records from the school files on the children and the language that would allow getting the records of the children’s alleged therapist and the school nurse. [Trial Day 59, Daley].
FN9 In our society and our current courts, adultery is not frowned upon, but certainly dishonesty SHOULD be. Pocahontas was dishonest about Russ. Assistant Chief Family Service Officer Timothy Daley brought that information back to the court from the children in Maine.
(3) Further, during her direct testimony, Pocahontas impliedly testified that the children were in good health, physically fit, emotionally stable, progressing academically [Tr. 8/14/02, pp. 1024-1025], and were taking karate lessons [Tr. 8/14/02, p,1046]. She testified that she had volunteered at the children’s school [Tr. 8/14/02, pp. 1043, 1046]. She also testified -- as expected, in order to back up Beardslee’s primary reason for recommending the children’s removal to Maine -- to the number of relatives they had in Maine. [Tr. 8/14/02, pp. 1050-1052].IN CONTRAST, Smith, on the last day of trial, the 59th day, brought out (1) that Pocahontas had to have known of Jimmy’s encopresis and emotional problems [Tr. transcript not-yet delivered], (2) that Pocahontas knew that both twins had serious eye-contact problems, (3) that she had participated in the Pupil/Team Evaluations, (4) that she had copies of the reports obtained by FSO Daley [Tr. Exh. 259],10and (5) that she knew she had been testifying untruthfully, or committing perjury. (E)We also learned from Daley on the 57th and 59th days of trial that the children knew or saw no relatives in their life in Maine except for an aunt who happens to live in Pelham, Massachusetts. (Having relatives in Maine was the GAL’s primary reason for recommending that Pocahontas be allowed to remove the children to Maine.)
FN10 At the bottom of those reports, it is noted that the reports were sent to the “parents.” That is not true. The elementary school sent nothing to Smith.
Because Smith was not allowed to access this information prior to or during trial, it was impossible for Smith to know that he would need an expert to address the emotional and psychological problems of the children. Once the court ruled that he was not allowed to call experts who were not on his witness list,11 he was deprived of his constitutional rights.
FN11 The court had already declared that Daley would be the last witness. Consequently, by that declaration Smith was deprived of the opportunity to call an expert witness to address the emotional and psychological problems of the children. In fact, Smith was not given the opportunity even to ask for that permission. Thus the preclusion of the opportunity to present an expert witness to address the children’s questionable, notable behavior and the nexus between that behavior, their emotional problems, and abuse is sufficient to constitute, Smith contends, reversible error. Of significance is that Smith had already been denied the ability to call a herpes expert as a witness, a witness of whom he did not and could nor have known he had a need.
Pocahontas had had access, of course, to the school records [Tr. Exh. 259] and the school nurse’s records. The latter were not provided to Daley because Pocahontas had refused to release them: she crossed out the word "medical" and wrote above it the word "school." The school nurse’s records were critical in that the child Jimmy had a problem with encopresis as well as emotional problems caused repeatedly, according to his school teacher, when his mother was volunteering in the school. [Tr. Exh. 259].12
FN12 Because the pages of the school records were not numbered, we must await the transcript before being able to identify the pages this information was on. The descriptions of the pages were put into the transcript. (F) IN CONTRAST, Smith, either himself or his counsel, informed, at the very least, the GAL, several judges (Judges Nancy Gould, Angela Ordonez, and Lisa Roberts), Nissenbaum, McCusker,13 of his concerns regarding the children’s safety and welfare in Maine. Discovery in Maine was important. Smith’s important interests regarding the health, safety, and custody of his children were at stake and the opposition interposed by Pocahontas was considerable.14
FN13 Smith did not know that McCusker had been appointed as a Special GAL.
FN14 In considering an award of counsel fees, the court should appropriately take into account the important interests at stake and the amount of opposition interposed by the opposing party. Kennedy v. Kennedy, 400 Mass. 272, 274 (1987).
(G) As we learned at trial, after the court declared that it did not have sufficient evidence to determine the issue of custody [Day 52], the children have had considerable difficulty in Maine [Day 59]:
- Pocahontas and her attorneys successfully blocked Smith from obtaining any evidence of the children’s physical and mental or emotional health during their stay in Maine since 2000. After (a) Smith’s counsel’s called the court’s attention to the lack of current information about the children and (b) Smith testified to his observations of the children during his parenting time with them, the proceedings took a surprising turn.
The court at the end of the 52d day of trial declared that there was insufficient evidence to decide the issue of child custody and that the court would be issuing momentarily a referral of appointment to the Family Service Office to bring back from Maine to Massachusetts records that Smith had been attempting to get since 2001, when his current counsel was retained. Thus the necessity of the many motions and memoranda on this issue on which Smith and his counsel expended considerable time and effort – including a writ of mandamus to have Judge Gould hear the motions – came clear. Smith and his counsel felt vindicated, and hope the court feels similarly. Ultimately, Pocahontas and her counsel’s blocking added an extra week of trial. Of course, that same blocking caused the prolongation of the considerable pain the children were suffering;
- Pocahontas and her counsel did not disclose that one of the twins had encopresis and that it was noted in the elementary school records (Pocahontas knew this because she was a participant at the Pupil Team meetings);
- Pocahontas and her counsel did not disclose that the twins’ academic performance in Maine was regressive, that is, that it had fallen precipitously after she removed the children from the [previous private school] in Boston and enrolled them in school in Maine [Tr.Exh. 91(A-F)];
- Their speech, which Pocahontas testified had improved after therapy, had regressed to the point where an estimated 30 percent of their speech is unintelligible (McCusker and Daley’s testimony);
- Pocahontas did not testify specifically to the children’s health. All the problems noted in the school records were never mentioned by Pocahontas, and, of course, Smith had no way of knowing, not having been allowed to conduct discovery in Maine. In fact, all the problems noted in the school records were never mentioned by Beardslee, McCusker, O’Mara (McCusker’s private hired gun), DHS in Maine, Spurwink, and Nissenbaum. But for FSO Daley, who brought the abridged set of school records down from Maine, we would never have had proof of the sad emotional and psychological condition of the twins caused by their mother and their environment in Maine.
(a) The elementary school reported that Jimmy had recurring emotional, physical, and academic problems:15
FN15 Without copies of the school records, it is impossible to note the date of each of the items from (i) through (vii).
- he had a lack of bowel control (encopresis) in class and he was not even aware of his problem: "Has accidents daily in pants. Recently needs adult to change. Will just ignore it."16 he felt he was getting no attention
FN16 April 8, 2001, when not seeing father for any visits.
- he felt unloved
- he got upset, angry, frustrated, depressed, etc., when his mother volunteered at school: "He can be emotional some days. Has tough time when mom volunteers."17"Can seem down. [Unintelligible writing.] Can get upset easily in certain days."18
FN17 See note 16, supra, when not seeing father for any visits.
FN18 November (year not clear).
- he missed his father
- he would not make direct eye contact with anyone
- he was learning disabled (Title I student)19
FN19 September 2002, when not seeing father for any visits(H) Pocahontas, her three counsel, and Nissenbaum attempted to cover up attempted fraud, first, by concealing the existence of the FSI appraisal, and second, by attacking Johnson and Smith because Johnson managed to uncover it. Smith incorporates by reference as if set forth herein all her arguments regarding the FSI appraisal [Tr. Exh. 72; Tr. Id. "QQ"].22 (b) The elementary school reported that Johnny was also learning disabled, but Johnny’s teacher did not put handwritten comments on his records, as did Jimmy’s teacher, and that Johnny, too, would not make direct eye contact with anyone. Johnny’s problem with eye contact sounded more pronounced than Jimmy’s eye contact problem. Smith suspects that after Johnny confided in his father (who is believed to be the only adult Johnny really does trust) about being sodomized by Pocahontas’s father, he was interrogated so much (by Pocahontas, Beardslee, Spurwink, DHS, and perhaps others) that he became fearful of confiding in anyone, including his school teachers. AND he was no longer able to see his father for around two months and then when he was finally allowed, it was only with a supervisor for two hours every other week and then with instructions not to tell his father anything in private.20Pocahontas’s response to the children’s unhappy circumstances was to send them for karate lessons to address the eye-contact problem and, of course, to keep secret Jimmy’s encopresis, often a symptom or result of sodomy. Beck v. State, 250 Ga.App. 654, 551 S.E.2d 68 (2001)21 (attached hereto as Exh. A).
FN20 Smith stopped seeing the children (1) when the supevisor became hostile
(later learned that he was taking specific instructions from Pocahontas) and insisted on telling Smith where Pocahontas was (Smith feared Pocahontas would then accuse him of stalking, something she did in October 2000), (2) when Smith could not find another supervisor to supervise on the weekends, (3) when Gouin could not find a supervisor who would supervise anywhere but in a small confining room.
FN21 In Beck, “relatives told the investigator that another family member, C.B., Beck's nephew, had also been sexually abused.” 250 Ga.App. at 664, 551 S.E.2d at 70. In Smith, Smith was precluded from testifying that he learned from [the] husband of Pocahontas’s sister T and brother-in-law of Pocahontas and Smith, that Pocahontas’s father sexually abused T. [Tr.1/8/03, pp. 114-119; 122-123; 133-134]. Smith had been precluded from deposing his T’s husband. In Beck, “[t]he family learned that C.B. had been abused when they caught him engaging in inappropriate behavior with his younger cousin.” Id. In Smith, Smith testified that he saw during a “visitation” in November 2000, soon after Pocahontas brought the children to Maine, one of the twins attempting to sodomize the other twin.” Smith had never seen that behavior before the children were removed to Maine. [Tr.Day 1/13/03, p: 129-130].
In Beck, “C.B.[ ] was a happy child until about the time he started kindergarten. At that time, he began getting into fights and misbehaving. His disposition changed, and he appeared sad much of the time. He was no longer able to control his bowels.” Id. In Smith, the twins were happy, progressing [Tr.Exh. 91(A-F)], and in tact [Tr. Exh. 123, Beardslee report, quoting Dr. Brush]. After he was removed to Maine, the elementary school teacher wrote that Jimmy was depressed, frustrated, feeling unloved, having a “tough time” when his mother volunteers, and was suffering from lack of bowel control and ignored “it” and needed adult assistance. [Tr. Exh. 259].
In Beck,
C.B. testified at trial and described several instances in which Beck had anally sodomized him. The pediatrician who treated C.B. testified that the boy had a red scar in his anus that was the result of trauma.
250 Ga.App. at 665, 551 S.E.2d at 70. In Smith, Smith testified that during a supervised “visit” on Sunday, 27 May 2001, he saw “C” with scabs above the child’s anus; specifically Smith testified:[Tr. 1/17/03, pp. 48-49]. On 31 May 2001, the Maine doctor, Dr. Pezzullo, wrote that he found a “small area of reddened, mildly infected skin between crease of buttocks superior to anus” [Tr.Exh. 255]. Smith contends that in the four days between the time he saw the child and Dr. Pezzullo saw the child, the scabs had fallen off and only the reddened area remained. On 4 June 2001, the doctor referred the child for a sexual abuse evaluation [Tr.Exh. 255]. That evaluation did not take place until a month later.
They were cuts that had healed over with scabs on them. They were straight lines. They weren't pimples. They weren't abrasions on the cheeks. This was right above the anus, right between his cheeks.
Also, the pediatrician said that C.B. suffered from attention deficit disorder, encopresis (which is a loss of sensation in the anus resulting in accidentally passing stools), and chronic constipation which was consistent with abused children in cases of anal sodomy.
250 Ga.App. at 665, 551 S.E.2d at 70 (emphasis supplied). Smith, of course, contends the same. He was not allowed to bring in an expert, given that the evidence of encopresis came as a result of the court action after Smith’s case had ended. Had an expert been called, the same conclusion, Smith contends, would have been reached, to wit, that “C” had been sodomized.In Beck, the psychologist, who was still treating C.B. for his emotional and behavioral problems at the time of trial, testified that C.B. had described to him several instances when Beck had anally sodomized him. . In Smith, Smith testified that he heard “C” say he had been anally sodomized by Pocahontas’s father [Tr. transcript not yet received],
In Beck, the mother noticed another of her children, “A.A. had begun acting very angry and upset. She asked A.A. at one point if anyone had ever touched him, and A.A. said he did not want to talk about it "because he said he would whip me." 250 Ga.App. at 665, 551 S.E.2d at 70. In Smith, when the child “C” was interviewed by a social worker at Spurwink, he answered 14 times either “I forget,” “I forgot,” “I don’t remember,” “I can’t remember,” “I really can’t remember,” “I forget, too long ago,” “Well, I forget. I get confused,”or “I don’t want to talk about it. . . . just because I don’t want to.” [Tr.Exh. 256].
In Beck, the doctor stated, “that in 80 percent of child molestation cases, there were no physical signs of abuse.” 250 Ga.App. at 666, 551 S.E.2d at 71.
(I) Pocahontas, like Diver in Diver v. Diver, purposely left a well-paying job to avoid alimony and child support, and was secretive as to where and when she was working and for whom; specifically,
FN22 On 5 April 2000, Pocahontas signed a Financial Statement under the pains and penalties of perjury, and Merrill vouched by countersigning that that which Pocahontas declared in the Financial Statement was true and correct. In that Financial Statement, Pocahontas swore falsely (a) that she purchased the Pelham property in 1992, (b) that the then-current assessed value of the property, last assessed in 1999, was $300.000, and (c) that the fair market value was $500,000 [Tr. Exh. 43]. Pocahontas never purchased the Pelham property, the Pelham property was never assessed at $300,000, and the fair market value was never half-a-million dollars.On 7 August 2000, FSI reported that the estimated fair market value was $188,000. On 8 August 2000, but a day after the FSI appraiser found the value to be $188,000, Merrill, in Pocahontas's Pretrial Memorandum, wrote in paragraph A (on page 3) that Pocahontas believed that the Pelham property had a fair market value of $500,000 and that an appraisal was pending [Exh. G of Tr. Exh. 72]. On 8 August 2000, Pocahontas once again respectively signed under pains and penalties of perjury and Merrill once again vouched for Pocahontas's truthfulness and accuracy in the Financial Statement of that date and in which Pocahontas again swore falsely (a) that she purchased the property in 1992, (b) that the then-current assessed value of the property, last assessed in 1999, was $300.000, and (c) that the fair market value was $500,000 [Tr. Exh.51].
The Fiscal Year 2001 value of 27 Harkness Road, Pelham, MA, was $193,400 [Tax-payment checks Tr. Exh. 39].
- her base pay was $150,000 annually when she filed for divorce in December 1999 [Tr. Day 9, p. 2281 (pay as of January 2000), pp. 2274-75; Tr. Exh. 71], and received a $40,000 bonus (see infra),
- shortly before she left Goodwin Proctor Hoar, Pocahontas was to receive at least $170,000 as base pay annually [Tr. Day 9, p. 2278], as noted on or around 30 March 2000 [Tr. Exh. 43],
- Pocahontas received $40,000 bonuses for at least two years [Tr. Day 9, p. 2279],
- Pocahontas did not work between June 2000 and January 2001,
- Pocahontas worked at Pierce Atwood, Portland, Maine, for $60,000 a year, between January 2001 and January 2002,
- at time of trial, Pocahontas was self-employed earning $180,000 annually [Tr. Day 6, p. 1048 (30 hours per week and more when children are back in school and "this divorce is over"), and Tr. Day 7, p.1268 ($125 per hour)], and
- as soon as she was no longer on the witness stand, she opened her own lawfirm in a prestigious location on xxxxx Street in Portland, Maine, and is now earning at least $200,000, if not more, annually.23
FN23 During the trial, Pocahontas concealed that she had opened a new luxurious office in a prestigious office location in Portland, Maine, in the Fall of 2002, after she finished testifying in September. After September, she failed on numerous occasions to appear at trial -- having repeatedly given the transparently bogus excuse of having flu-like symptoms, from which she recovered in a day. Because Pocahontas is representing herself in the malicious prosecution case brought by Smith in federal court, Smith’s counsel had occasion to call her at her new office. Smith’s counsel thus learned that Pocahontas is practicing but not as a solo practitioner. An associate at Pocahontas’s office is . . . and can be reached at . . .. . It is as yet unknown whether there are other lawyers she has working for her in her [] office.
Pocahontas’s untruthfulness and nondisclosure has prolonged each stage of this case that this court has the authority to award attorney fees to Smith. "[T]he basic factors of need and relative economic positions of the spouses" may also be considered in awarding fees in a divorce action. Goldman v. Roderiques, 370 Mass. 435, 437 (1976). IN CONTRAST, Smith
- was the primary caregiver by desire and agreement with Pocahontas,
- had and still has far less opportunity to earn future income than Pocahontas has,
- had and has far less opportunity to earn as great an income as Pocahontas has,
- has been unable to obtain employment (for the reasons set forth at trial), and
- needs rehabilitative alimony before he can achieve that goal, in addition to resolving the criminal action Pocahontas brought when Smith was obeying this court’s order of 2 May 2003 to make available the condominium for inspection by Pocahontas’s appraiser,
but most of all, Smith’s most important goal at present is to regain custody of the twins and nurture them back to physical and emotional health.
Clearly the children are in need of the love and attention he is willing to bestow upon them. Their mother has clearly been more devoted to her career and her boyfriend Russ. Why else would the children feel they are not loved? Pocahontas has farmed out the care of those children to third parties, none of whom can give them or even want to give them the nurturing and protection Smith thirsts to give those children.
(J) Pocahontas and her three attorneys -- Merrill, Raymond Sayeg ["Sayeg"], and John DiPiano ["DiPiano"] -- caused the trial to be protracted far beyond that which would have been required in a divorce action; for instance,
- Pocahontas and her attorneys created unnecessary controversy over discovery [Tr. 1/8/03, p. 26-30];
- Pocahontas and Merrill refused to accept her husband’s proposal to resolve the couple’s financial contributions to the marriage by sitting down and working out the figures voluntarily. [See Trial Exhibit 250, where Smith’s counsel wrote: "In the interest of the parties saving attorneys' fees and reducing court time, let's find a mutually agreeable date for the four of us to sit down and discuss the contributions. All can be proven by documentation."];
- by Pocahontas and Merrill’s refusal to meet – and Nissenbaum doing nothing whatsoever (not even a letter or a phone call) to encourage them -- the trial was prolonged by 25 or more days, which increased Smith’s attorney’s fees, expenses, and costs, including transcripts for those two or so weeks;
- Pocahontas and her three counsel failed to comply with their discovery obligations or court orders. Such conduct justifies an award of attorneys fees, expenses, and costs that Smith incurred as a result of their noncompliance. The production for the first time of over 90 percent of Pocahontas’s documents on the first day of trial delayed and/or interrupted the start of testimony by, at least, five days (June 10th to 14th) and constant interruptions for legal argument regarding the attempted introduction of some and more of previously nonproduced documents throughout the 59 days of trial;
- Pocahontas with the help of her attorneys repeatedly set forth unsubstantiated allegations of abuse against Smith, causing Smith to have to testify at some length in order to controvert Pocahontas’s false testimony;
- Pocahontas’s frequent – if not continual – prevarication’s increased the time necessary for cross-examination;
- DiPiano’s lie – and Pocahontas’s silent consent when he lied at her depo – that the appraisal of the Temple Street condominium did not go forward, caused not only increased trial time but created a muddy background against which this court originally saw Smith, much to his prejudice;
- Pocahontas with the help of her attorneys repeatedly set forth unsubstantiated allegations in written motions and her counsel’s oral argument, causing Smith to have to testify at some length in order to controvert the false bases for numerous motions;
- Pocahontas and her counsel’s bad choice of so-called appraisers, who testified regarding the value of the couple’s real properties without walking or even inspecting the entire land (Pelham) or without inspecting the mechanicals or the foundation of the basement of the Temple Street condominium; such negligence and the unwillingness to testify truthfully added days of otherwise unnecessary cross-examination of Louisignau about Pelham and hours of otherwise unnecessary cross-examination of Goulet about the condo;
- Pocahontas and her counsel opposed Smith’s requests to conduct discovery in Maine, resulting in the denial of Smith’s rights to prove definitively the dysfunctionality of Pocahontas’s biological family and the dangerousness of the environment to which she had been allowed to take the couple’s children;
- Pocahontas and her counsel did not provide medical or health-care provider releases in a timely manner;
- Pocahontas and her counsel did not provide the names of all the medical or health-care providers for either Pocahontas or the children;
- Pocahontas and her counsel did not disclose that she had given a release for her psychotherapist, Ralph Zieff, to the guardian ad litem, Beardslee;
- Pocahontas failed to inform her husband prior to trial – according to her testimony -- that she had herpes genitalis, making necessary the prolonged examination of the one medical witness allowed by the court to testify;
- Pocahontas’s failure to inform her husband prior to trial – according to her testimony -- that she had herpes genitalis, thereby not giving him the opportunity to select an expert witness and put that person on the list of potential witnesses (the court then demonstrated invidious gender discrimination by denying Smith the opportunity to present an expert witness on the disingenuous, if not pretextual, grounds that the witness should have been identified prior to trial);
- Pocahontas and her counsel conspired to have Smith falsely arrested on 5 January 2001 and 13 May 2002, which conspiracy added several days to the trial which might otherwise have been unnecessary; those resolved and pending charges also added to the length of the trial;
- Pocahontas and her counsel lied about many and diverse matters, including but not limited to (a) abuse of herself and the children, (b) the existence of the FSI appraisal, (c) whether Pocahontas had seen the FSI appraisal, (d) the estimated fair market value on three of her Financial Statements of the Pelham property, (e) whether she was employed and if not, the reason for her unemployment (the facts reminiscent of the Diver v. Diver case, in that Pocahontas intentionally chose to lower her income from $170,000 to $zero annually in order to avoid orders of pre- and post-trial alimony). The false written and oral testimony added weeks to the examination on each of those issues at trial;
- Pocahontas and her counsel wasted marital assets by moving for this court to appoint unqualified individuals to perform and fulfill diverse functions, e.g., Beardslee, Nissenbaum, McCusker, the appointments of which required Smith to question to a greater extent than would have been necessary had Beardslee, Nissenbaum, and McCusker not testified. The payments of fees to those individuals were not only a waste of marital assets, those individuals also wasted other marital assets and caused the prolongation of cross-examination by their dishonest testimony and attempts to cover up both their negligence, their bad-faith performance, and near criminal or quasicriminal, if not criminal, activities during the execution of their so-called court-appointed tasks;
- Pocahontas and her counsel encouraged these unqualified individuals, e.g., Beardslee, Nissenbaum, McCusker, Martha Rush O’Mara ["O’Mara"], and Fortier, to continue their negligent performance and fulfill diverse functions outside the scope of their referenced appointments; O’Mara, about whom Smith knew nothing, was, of course, never appointed;
- Pocahontas and her counsel covered up the existence of the FSI appraisal, and misrepresented same to the court, which misrepresentations added several days to the trial;
- Pocahontas and Merrill and Nissenbaum withdrew, without the required court permission, monies from the escrow account.
When, without giving the hearing requested by Smith, this court dismissed Smith’s Complaint for Contempt for the withdrawal of monies from the escrow account , Smith had been deprived of a remedy for relief of Pocahontas and Merrill’s intentional violation of a clear and unequivocal order of Judge Gould’s court.
Given that this court was not powerless to respond to the recalcitrance of Pocahontas and Merrill, who wilfully did not comply with the lawful 27 December 1999 court order, and that Smith was forced to resort to litigation that should have been unnecessary to obtain victory, Smith is entitled to an award of attorney's fees. Cf. Police Com'r of Boston v. Gows, 429 Mass. 14, 17 (1999).
In fact, where after Smith brought his Complaint for Contempt, BRFG restored moneys to the escrow account; i.e., Smith is entitled to an award of expenses even though this court dismissed his contempt action. Id. at 18, citing Service Employees Int'l Union v. Children's Hosp. Nat'l Medical Ctr., 640 F.Supp. 272, 278 (D.D.C.1984) (not holding party in contempt but awarding expenses incurred in proceedings to secure compliance with court order); Andrews v. District of Columbia, 443 A.2d 566, 569 (D.C.), cert. denied, 459 U.S. 909 (1982) (attorney's fees may be awarded "where an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention").
This rule "does not require an express finding of contempt." Indian Head Nat'l Bank [v. Corey, 129 N.H. 83, 86, 523 A.2d 70 (1986)]. See Harrison Baking Co. v. Bakery & Confectionery Workers, Local 3, 777 F.Supp. 306, 311-312 (S.D.N.Y.1991) (even where contempt is not appropriate, courts have awarded the expense incurred by a party in proceedings before this court to secure compliance by the other party); Littlejohn v. Bic Corp., 697 F.Supp. 192, 194 (E.D.Pa. 1988) ("Even where no finding of contempt is made, the Court may award complainant in a civil contempt proceeding attorneys' fees and expenses incurred in the attempt to ensure the enforcement of the Court's Order"). The justification for such an award is the "gratuitous burden placed on the successful party who is forced to incur further legal expenses simply to obtain what a court has previously awarded or to enforce a right that a court has previously declared." Indian Head Nat'l Bank, supra.
Police Com'r, 429 Mass. at 18-19.
- with Pocahontas’s consent, Merrill misrepresented to the court that there was a stipulation signed by the parties and their respective counsel to pay the guardian ad litem Beardslee from the escrow account;
- with Pocahontas’s consent, DiPiano misrepresented to Nissenbaum while allegedly acting as Discovery Master, that the appraisal of the Boston condo did not go forward as court-ordered, and that lie was then repeated by Nissenbaum (see, for example, his May 19th email, marked at trial for identification as "XXX");
- Pocahontas and her attorneys Sayeg and DiPiano and Nissenbaum successfully conspired to interfere with the one-day deposition of Pocahontas on 13 May 2002 as allowed by the court in its order of 17 December 2001;24
FN24 Nissenbaum, at the behest of Sayeg and DiPiano, recommended and this court allowed Pocahontas’s counsel to schedule the appraisal of the Temple Street condominium AND the parking space in the Tremont on the Common garage to be appraised on May 13th. As Goulet, Pocahontas’s appraiser, testified, he did not have to view the parking space because he had been in that garage many times. All counsel knew that, yet they convinced this court to take another two hours out of the time allotted to continue Pocahontas’s deposition. Pocahontas’s counsel further convinced this court, via Nissenbaum, to take out of the time allotted for Pocahontas’s depo time to depose Joseph Harkins, whom they knew was unlikely to be called at trial.
(K)Pocahontas’s attorney fees are also "not [ ]commensurate with an objective evaluation of the services performed." Ross v. Ross, 385 Mass. 30, 38-39 (1982). See the sections below, each dealing with the bills attached to Pocahontas’s motion at Tabs 3 through 5, for DiPiano, Sayeg, and Merrill, respectively.(L)The alleged services of Nissenbaum, Beardslee, and McCusker (with O’Mara) were services Pocahontas sought and Smith opposed. The services were not only incompetently performed, they were performed with pre-existing bias for Pocahontas and prejudicial to Smith. ). See the sections below, each dealing with the assortment of bills attached to Pocahontas’s motion at Tabs 6 through 8, for Nissenbaum, Beardslee, and McCusker (with O’Mara) respectively.
(M) Pocahontas’s affidavit at Tab 8 is questionable.
John G. DiPiano, Esq. (Mauser & Mauser invoices) (Tab 3) DiPiano’s bills are inadequate to identify the tasks DiPiano allegedly performed. He specified when he spoke by phone to Merrill, Sayeg, Nissenbaum, Beardslee, and McCusker. But for a few entries, DiPiano did not claim that he wrote a motion or an opposition or a memorandum. Most of his almost $220,000 bill is for phonecalls, reviewing his file, and allegedly strategizing with the above-named people. In March 2002 he ordered Nissenbaum to pay a bill for Beardslee’s services. Beardslee’s appointment as GAL had expired and she was not entitled to payment. DiPiano knew that there was no agreement to pay her from the escrow account. The payment was, in effect, a bribe for her anticipated trial testimony.
DiPiano charged an unknown rate for FAXes and never stated (1) to whom he FAXed anything or (2) when or (3) what he allegedly FAXed. Curiously, when he did give a date on which the FAXing allegedly did occur, DiPiano put no entry at all for any tasks performed on those dates; for example, on 2/26/02, he charged $16.00 for FAXing and on 3/29/02, $27.00, but there was no work done on the corresponding dates He cannot pass FAXing costs on either to Smith (or for that matter, to his client). For FAXes, DiPiano charged a total of $386.00.25 McMillan v. Massachusetts Society for the Prevention of Cruelty to Animals, (Lawyers Weekly No. 02-266-96) (Civil Action No. 92-11178-RGS) (party cannot recover costs for what should be included in overhead, such as in-house photocopying,26 postage, telephone charges, faxes).
FN25DiPiano charged $389.55 on 5/30/02 for in-house copying. Under McMillan, in-house copying is to be absorbed in the overhead costs.
10/01 bill, $12.00 11/01 bill. $5.00 2/02 bill $135.00 3/02 bill $16.00
4/02 bill $27.00 6/02 bill $138.00 10/02 bill $2.00 11/02 bill $4.00
1/03 bill $19.00 2/02 bill. $9.00 3/03 bill $6.00 5/03 bill $13.00FN26 DiPiano charged $389.55 for copying on 5/14/02, but does not supply the name of a copy shop, so Smith assumes that any copying which might have been done was done at his law office.
DiPiano also charged a $27.85 "Service Expenses" fee for a task on 9/11/01 (see October 2001 invoice), but no other notation explains for what that fee was: there is no entry for 9/11/01.
DiPiano also repeatedly used the words "Review," "Follow-up," "Related Tasks" in his invoices, but never stated "of what" or "to what." Throughout his entire bill, the tasks he was allegedly doing remain a mystery. He also used the word "emails" throughout the invoices, but, similarly, DiPiano almost never said from whom it was or to whom it was written.
For an analysis of the contents of DiPiano’s invoices, see Table 1. Analysis of "How Time Spent and Charged For" in John DiPiano’s Invoices on pages 20-22. The analysis shows that DiPiano charged essentially for busy work – allegedly – prior to trial and merely for his physical presence at trial. He made lots of phone calls to Raymond Sayeg (many of which Sayeg did not acknowledge), to Pocahontas, sometimes read a lot of emails, wrote maybe half-a-dozen motions, all but one or two of which contained NO legal authorities for the propositions he was setting out. They were "pie-in-the-sky" motions, motions that he believed were to be allowed simply because he wrote them.
He did not control his client, he bought into her deceptions and her manipulations. He let her lead him down a path that he knew had no support. It was a path full of sinkholes. Any attorney who spends the majority of his time preventing the opponent from gathering information – information that would let the truth come out, information that would present a different picture than the one his client was presenting – must suspect that his client is being less than honest, less than straightforward, less than above-board.
Such was the case of John DiPiano. He squandered his reputation on an unsustainable position, one that was not supported by the facts. He participated in a scheme developed by Pocahontas to restrict her husband’s ability to defend not only himself but also to defend the children.
Pocahontas is a little rich girl. She had unlimited financial resources from her father to buy the best and as many attorneys as she thought she needed to prevail in this action. Merrill from BRFG. Then two more attorneys – DiPiano and Sayeg – to replace Merrill. Had she not fired Sayeg, she would have been charged $400,000, not $200,000 to present her case. Pocahontas claims, in her affidavit attached to her motion, she needed both of them to oppose the many motions Smith allegedly brought. Smith claims that every pleading he brought was necessary. He had to make a record. He had to write motions and memoranda and bring collateral cases to do that. His obstacles were major: he had to overcome, first, the prior court’s allowance of any motions Merrill brought and, second, the prior court’s refusal to even hear Smith’s motions. Even the successor court refused, for some reason as-yet unknown to Smith, to hear those motions brought by Johnson between January and April 2001.
The ultimate worthiness of Smith’s motions became known to this court by the 52d day of trial, when this court issued an Order of Referral to the Family Service Office to go up to Maine and bring back current information of the children, information that Smith had been forbidden to gather. Assistant Chief Family Service Officer Timothy Daley testified to that information to the court on the 57th day of trial and later on the 59th day of trial, when cross-examined by both Pocahontas’s and Smith’s counsel.
Highly unusual but highly reliable was Mr. Daley’s testimony. Even he reported that Pocahontas had redacted portions of the release sought by the court. By so manipulating the system, Pocahontas did not give a release for the children’s psychotherapeutic records or for the school nurse records. According to Daley, Pocahontas even called the school after she learned he would go there to gather information, and before he arrived there. What was her purpose of calling the school? The subpoena was clear as to that which the court sought. One may presume that Pocahontas’s phonecall had a nefarious purpose. For example, What did she tell the school not to produce?
Daley further alerted the court to Pocahontas’s adultery. Pocahontas did not tell him. The children did. Although adultery is given little weight in today’s society and courts, Pocahontas’s dishonesty and lack of forthrightness, her failure to tell anyone in the system – other than perhaps her counsel --that a boyfriend was living with her and the children, must be looked upon negatively. It certainly must muddy the information previously presented by Pocahontas to the court.
Why is Smith going into this topic in an opposition to Pocahontas’s motion for attorneys’ fees? Because it raises the question, What did DiPiano know and when did he know it? How much did he participate in the tale of deception? Smith believes DiPiano was a willing and knowing participant. The event on May 13th, 2002, is a revealing example. DiPiano knew or should have known the Maine order had not been filed in Massachusetts. DiPiano knew that he had not given notice that Pocahontas had chosen to be present at the appraisal. DiPiano knew there was no effective restraining order against Smith in Massachusetts, yet he, with Pocahontas at his side, called 911 with hopes that Smith be arrested. And two hours later, again with Pocahontas at his side, DiPiano lied to Nissenbaum that the appraisal had not gone forward. These are only TWO of numerous examples showing DiPiano’s complicity. He was a willing participant with Pocahontas in a plan to deceive and manipulate the system to Smith’s detriment. Pocahontas must pay DiPiano herself. Smith needs not pay a dishonorable man.
Table 1. Analysis of "How Time Spent and Charged For" in John DiPiano’s Invoices
(numbers IN PURPLE represent the number of times Sayeg (Tab 4) acknowledges phone calls or meetings with DiPiano)
Invoice by year & month Number of
entries per
invoiceNumber of entries
for phonecalls
to individuals
per month# of motions, oppositions or letters written # of memos
written# of entries re emails Research Subject of
Task or
PerformanceTotal # of
Hours
per
InvoiceTotal $
Charged
per Invoice
E
C
MR
SG
L
NB
O
BJ
J
MD
C
G
9/1/01
1
"Domestic Relations Matter;" "Strategy; " "Related Issues"
10/1/01
0
"Review," "Follow-up." Unclear what JdP means by
"follow up."11/1/01 3
1 Draft M,
1 M/DContempt.
1 letter in
response to admin
transferMemo
support Dis ContemptYes for contempt Reviewed FG’s 211 petition. Reviewed Complaint for Contempt.
Reviewed Spurwink Eval.
Reviewed Pocahontas’s deposition.
12/1/01
1
Preparation for motions hearing. Court hearing. Review order. Reviewed opposition to FG’s
list of motions.JdP to "follow up."
1/1/02
1
Court appearance 12/3. Revisions to Confidentiality
Agreement. "Related Issues"
2/1/02
Draft response to Confidentiality Agreement
Review emails,. Review Confident. Agrm.
Review BRFG accounting.
Letter to GLN.
Teleconf w/RS re appraisals and discovery-related issues.
Sayeg’s bill claims for 1/24
"meeting with DiPiano and client"JdP to "follow up."
3/1/02
2
Forwarded GAL’s bill to Nissenbaum for payment; GAL’s appointment had expired.
Respond to email. Review documents from Pocahontas
Meeting with Sayeg.
Sayeg’s bill does not show meeting with DiPiano
JdP to "follow up."
4/1/02
0
Letter to Johnson, Subpoenas (Johnson got only one: for Harkins.
These were not trial subpoenas.)Draft letter
to BRFG.Letter to appraiser
JdP to "follow up," to "follow up," and to "follow up." Reviews unidentified motions.
Reviews settlement proposal.
Reviews court order and pretrial order.
Reviews GLN’s proposed order.
2 phone conversations with a Maine attorney and one with appraiser
5/1/02
4
Letter to GLN. Draft Motion to Compel & Quash.
Draft unidentified motion
3 calls to atty re depo of Jos. Harkins from Chambers Motors. Phone to court clerks/regs.
Phone to Maine atty.
JdP to "follow up," to "follow up," and to "follow up" re appraisals & doc production.
Follow up with BRFG for doc production.
Review FG’s motions, Johnson corresp., and GLN’s report
Trial preparation & "related tasks."
Court appearance 4/29 (Br)
6/1/02
2
1) Motion in Limine: unidentified subject. 2) Drafting subpoenas.
3) M/Quash depo and
4) Sanctions,
5) motions for 6/3/02 hearing
6) drafting correspond-ence with unidentified persons,
7) Draft Opp to Motion to Disqualify
"Attention to emails"
Research for motion in limine. Subject unidenti-fied JdP to "follow up," to "follow up," and to "follow up" on discovery and appraisals. Trial preparation and "related tasks."
Phone calls to appraiser.
Appraisal in Pelham and "meeting thereafter."
Review of FG’s depo.
Prep for depo (of Pocahontas?)
"Review emails and related tasks."
Review docs and trial exhibits
Designation and organization of exhs.
30675.00 7/1/02
0
"Follow-up" Meeting with Sayeg.
Pretrial hearing (6/3/02).
Review depo transcripts/video
Three days trial preparation.
Five days trial.
Posttrial phonecalls re strategy.
Attention to "Exhibits and related tasks."
25550.00 8/1/02
Prepared summons. Begin writing
F/F & C/Law
Research re F/Fact Rul/Law Follow-up Begin drafting Findings of Fact and Conclusions of Law:
9/1/02
Continue
writing
FF&CL.7 subpoenas Service of process
Research
custody, removal, division of assets & "related issues"Review trial exhs., transcripts
and "related tasks".Trial exhibits.
Preparation of direct exam outline and revisions thereto.
Review of Fortier deposition.
3 days of trial preparation and contacting witnesses.
3 days trial.
10/1/02
Subpoena Dr. Duffly (did not call him)
Days 12-27 "Attention to Opposition …to M/Admit Prior Testimony"
11/1/02
Letter tp BCJ
re Rule 4.2
12/1/02
1/1/03
Office meeting w/Pocahontas Reviewed materials
2/1/03
Final Trial Preparation Trial Days 29-38
3/1/03
Ex parte hearing on JdP’s motion to continue hearing on visitation (This is John’s personal cost) 4/1/03
Letter to BCJ
Court hearing (New Bedford)
on visitation (This is John’s personal cost).Reviewing court order and FG’s proposed agreement.
Phonecall to Ariane.
Phonecall to other supervisors JdP was proposing.
5/1/03
Letter to Fleet Bank Answered FG’s counterclaim.
Wrote memo on admissibility
Research
admissibility of
Occupational Outlook HandbookRegistry of Vital Statistics; Trial Prep.
Trial Days 39-59
(JdP charged one day twice. See entry for 4/9, an extra $2337.50.
error
-8.50
169.50
error
-2337.50
46613.50
E. Chouteau Merrill (Brown Rudnick Freed & Gesmer) (Tab 5) The Brown Rudnick Freed & Gesmer ["BRFG"] bills are incomplete. Pocahontas’s counsel had the benefit of receiving unredacted BRFG bills. Smith did not. Bills are not confidential. By not supplying unredacted BRFG bills to Smith, he has been deprived both of his constitutional right to equal protection of the laws and of his ability to challenge the bills.
Notwithstanding the incomplete/complete argument, there are numerous reasons for the sum sought by BRFG for Merrill’s services being incommensurate with the value of the services Merrill rendered.When the services are incommensurate with the charges, an evidentiary hearing of the billing counsel is required. Silverman v. Spiro, 438 Mass. 725 (2003).
The question then becomes, the value to whom of the services? But that question, which on first glance appears a reasonable one, raises a conundrum as to whether Pocahontas should benefit, to Smith’s detriment, by unlawful services. Are unlawful services commensurate or incommensurate with the charges billed? Smith contends that unlawful services must always be incommensurate with the bill, regardless of their value to the beneficiary, Pocahontas, of those services.
The next step is to scrutinize Merrill’s services to determine whether they were unlawful.
Smith, of course, contends that Merrill’s services are highly suspect. Where Pocahontas benefited from those unethical services, any contract for services she might have had with either Merrill or BRFG27 was void ab initio. "[F]raud, accident, mistake, or some type of grossly inequitable conduct [ ] renders the contract void ab initio." P.L.A.Y., Inc. v. Nike, Inc., 1 F.Supp.2d 60, 65 (D.Mass. 1998).28 "The legal fiction of voiding ab initio [ ] is applied only with the view of accomplishing justice or effectuating public policy." Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers, 411 Mass. 39, 55 (1991). "When a court determines that a contract is . . . violative of public policy . . . it has discretion to determine the rights and liabilities of the parties as a matter of law. Id. "The court may decline to enforce the contract, or, in some cases, may determine that any obligations that could have arisen under it, at any time and in any manner, should not be enforced. In the latter case, the court may declare the contract void ab initio, dealing with it as if it had never been made." Id.29
FN27 There is no evidence of a contract between Pocahontas and either Merrill or BRFG. Nor is there any evidence of a contract with DiPiano or Sayeg.Merrill’s services that are suspect, as Smith contends, began prior to Smith’s present counsel making an appearance in the case. For instance: Merrill knew that the 209A order Pocahontas had had against Smith had expired and that Smith had a right to return home to the Temple Street condominium. Yet she failed to pass over the keys to Smith per his request. [Tr. Exhs. 164-169].FN28
A contract which is void ab initio, or void from the beginning, may not be enforced. No contractual duty exists, no breach of contract is possible, and no judgment for money damages can be obtained under the contract. See 5 A. Corbin, Contracts § 993 (1960); Bernhardt v. Atlantic Fin. Corp., 311 Mass. 183, 191, 40 N.E.2d 713 (1942). Judicial or equitable doctrines cannot breathe life into such a contract. [Foreign cite omitted]. When adjudicating rights between parties to a contract that is void ab initio, courts treat the contract as if it had never been made.Massachusetts Mun. Wholesale Elec. Co. v. Town of Danvers, 411 Mass. 39, 54-55 (1991).Such treatment is, of course, a legal fiction. In reality, an agreement, under which the parties performed, did exist prior to the court's decision that it is void. See 1 Corbin, supra § 7; 1 Williston, supra § 15. The legal fiction of voiding ab initio, therefore, is applied only with the view of accomplishing justice or effectuating public policy. [Foreign cites omitted.]
FN29 Where the Pocahontas/BRFG contract – if, indeed, one exists -- may be deemed void ab initio, Pocahontas would have no need to pay BRFG under it. BRFG could, of course, sue Pocahontas under a theory of quantum meruit, but it is unlikely. The amount is not great to BRFG and the problems are considerable in number. If Pocahontas need not pay BRFG, then Smith must not be ordered to pay the alleged fees that Pocahontas allegedly owes BRFG. Pocahontas could even assign her award against Smith – should she get one from this court – to BRFG. Would BRFG pursue a claim against Smith? Unlikely. It would cost more than they could collect. They would also have to explain how their partner Merrill knowingly, voluntarily, and not-so-intelligently, intentionally advocated the violation of so many statutes, both civil and criminal: the GAL statute, the removal statute, the perjury statute, the conversion statute. They would even have to explain away André Jasse’s role in managing the escrow account. In front of a jury, Merrill’s weak excuse that she misrepresented because she was “busy” or made a “mistake,” and BRFG’s weak excuses that they simply negligently or poorly managed the $43,000 escrow account, will not fly.
Ultimately, of course, she failed to serve on Johnson a motion to withdraw like the one she wanted Connolly to file before she would allegedly give Smith the keys to his condo and the pass to the parking space.
And, in fact, after Johnson made her appearance after the New Year, Merrill yelled to Johnson, on 3 January 2001, that Smith would "NEVER" get into the condo again. A few days later, Merrill showed her unethical character in an unusual and dramatic way.
(1) The disqualification issue. Within one week of Johnson filing her appearance as successor counsel for Smith, and before Merrill had even met Johnson, Merrill filed a motion to disqualify Johnson. The motion was frivolous, groundless, and egregious.But Merrill had begun her egregious conduct prior to Johnson becoming Smith’s successor counsel. Much of it continued into the period after Johnson became Smith’s counsel. For example,Tthe basis of the motion was a phonecall Pocahontas Smith made to Johnson before Johnson had been retained as counsel. Pocahontas was looking for her husband on New Years Eve 2000.
Merrill claimed Johnson had violated the ethical rules by not identifying herself upon answering Pocahontas’s call. That Johnson did not know the caller was Pocahontas until almost the end of the rather brief (a few minutes) phonecall did not matter to Merrill. Johnson countered by filing a motion to disqualify Merrill. It was clear from the outset that Merrill and Pocahontas were prevaricators.
(2) The GAL issue. Pocahontas/Merrill moved for the appointment of a GAL. This motion was unethical.
(A) That motion included the request that the judge order the parties to share the cost of the GAL’s fees. This was contrary to G.L. c. 215, §56A, which requires the Commonwealth to pay the GAL fees. Even according to retired-judge John Irwin’s Memo #14, which was designed to circumvent 215:56A, there should have been a means test. There was never a means test done in this case. The prior court accepted without question Merrill’s mantra that the parties had a million dollar marital estate. [Tr. Exh. 214, p. 33]. Merrill unlawfully removed many thousands of dollars from the escrow account, which Smith had been ordered to fund with $43,500 that he understood were his by agreement with Pocahontas, not marital assets [Tr. Day, 1/09/03, pp. 142, 145], to pay the GAL fees.30
FN30 “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. . . .” Mass.R.Prof.C. 1.2(d) “When the lawyer’s services have been used by the client to perpetrate a fraud, that is a perversion of the lawyer-client relationship.” Mass.R.Prof.C. 1.6, comment 12A.
(B) The stipulation issue. Given that an order commanding the parties to pay the GAL fees is contrary to the explicit language of the mandatory statute, G.L. c. 215, §56A, Pocahontas and Merrill were asking the court to act outside her authority by allowing the motion. To lure the court into so doing, Merrill represented to the court and opposing counsel that both parties and their respective counsel had signed a written stipulation to pay the GAL fees from the escrow account.On 7 August 2001, Merrill admitted to Judge James McHugh III in the single-justice session [Tr. Exh. 214] that there was no such stipulation. But that stipulation allegedly formed the basis of Judge Gould’s ordering the parties to pay for the GAL’s fees.
Judge Gould wrote, in words for all intents and purposes, that she would not have ordered the parties to pay had their counsel said their clients did not want to pay the fees.
On the other hand, Merrill relied on the Uniform Probate Court Practices Rule XXXII(D) [Tr. Exh. 214, p. 32] and told Judge McHugh:
My recollection of the time that we entered the stipulation as to Barbara Beardsley [sic] was mistaken. I believed that what an oral order had been a written order. And I apologize for making that mistake on the record. However, that is not that unusual, considering the volume of things that have been filed in this case, especially since January. It is also . . . custom and practice that the parties, through their counsel, agreed to the appointment of a guardian ad litem, and to the method of payment. That is the custom and practice. I have practiced in the Probate Court now for eleven years. This is what I do every day. We always agree. Every MCOE [sic] seminar that you go to now about appointing a guardian ad litem says if you don't agree, it's malpractice because the Court has to go to a list of people on a list -- and you can have Joe Blow, the plumber on that list, if he's got the educational background to supposedly be a guardian ad litem.
[Tr. Exh. 214, pp. 35-36].
Johnson found it quite remarkable that MCLE, sponsored by the BBO, under the eyes of the SJC, both advocates acting contrary to a duly enacted statute and asserts that not to go contrary to the statute would result in malpractice. If Merrill was telling the truth, then there are serious problems that are fruits for some inspector general. That this person should be nominated to become a judge. Shocking. The assertion that the entire family bar violated the statute on a daily basis as a matter of accepted custom and practice was even more shocking. That Judge McHugh would buy Merrill’s excuse that her misrepresentation was a mistake caused by the volume of her business . . . ! If I, as a crusader for family court reform, had made such a so-called mistake, the Bar would have sat up and taken instant notice.As a result of Merrill’s misrepresentation and Pocahontas’s implied joining in Merrill’s untruthful statement, Smith incurred fees for appellate legal services that would have been unnecessary but for Merrill’s untruthfulness and her dilatory and lackadaisical conduct. The fees for the single-justice appellate action totaled $19,966.99, inclusive of costs but exclusive of the motion to supplement, the supplementary petition, and the two motions to supplement the appendix to the petition.
(3) The removal of the children to Maine. As an officer of the court, Merrill and Pocahontas were obligated to know not only G.L. c. 215, §56A, the GAL statute, but also G.L. c. 208, §30, the child-removal statute. Nevertheless, Pocahontas, Merrill, and Judge Gould with alacrity (a) violated 208:30, by allowing the removal of the children without Smith's consent or a showing of just cause, and (b) violated the Massachusetts Child Custody Jurisdiction Act ["MCCJA"] by allowing the removal of the Smith children to Maine without a hearing at which he would have the opportunity to cross-examine the GAL who recommended the removal ultra vires and to rebut any materials adverse to him which she might have had.
In fact, Assistant Register Jack Scully, one assumes doing as ordered by Judge Gould, notified Merrill that the clients were not to be at the so-called evidentiary hearing. [Tr. Exh. 247]. Pocahontas had no need to be there, but Smith certainly did.Judge McHugh suggested that Smith had a possible malpractice case against his former counsel, Connelly. One only can wonder what he would say were he confronted with the Gould/Scully scenario of ordering clients not to be present at a statutorily mandated evidentiary hearing.31
FN31As Johnson has often said in this court, Emotions are appropriate at times. Anger is appropriate at times. Well, Johnson only hopes that this court can absorb and appreciate that “Indignation” is also appropriate at times. This is one of those cases that makes indignation not only appropriate but necessary. Funereal-like so-called professionalism is NOT appropriate in the context of this case. Smith’s and the children’s constitutional rights have been trampled on ever since Pocahontas filed her Complaint for Divorce according to E. Chouteau Merrill’s rules.To guarantee that Smith would not attend, "they" [Merrill?, Gould?, Scully?] moved the original date of the late hearing from August 14th to August 25th, a date on which the Elementary Kindergarten Orientation event was scheduled. Pocahontas knew this and invited Smith to attend. Had it been necessary for Pocahontas to attend the hearing, it is highly likely the hearing would not have been set for August 25th. But the removal had already been allowed, so Pocahontas had no need to attend the hearing. Smith, however, did have the need, but he was not allowed to attend. Judge Gould’s signature was all over it. It is difficult to believe that Assistant Register Scully would have acted on his own.
Unfortunately, Sayeg, DiPiano, Nissenbaum, and McCusker have all followed in Pocahontas’s and Merrill’s footsteps, outside the bounds of acceptable behavior. Their self-righteous myopia has blinded them to the distasteful truth of their unethical actions.(4) The discovery issue. Pocahontas/Merrill had not complied fully with Smith’s discovery requests. To many requests they had responded they "will produce," but they did not. Pocahontas/Merrill moved for the appointment of a Discovery Master. That motion was allowed over Smith’s objection and Nissenbaum was appointed.Nissenbaum’s performance ran the gamut from acting well outside the scope of his appointment to incompetence through negligence through acutely biased for one side and acutely prejudicial for the other. There is not one discovery issue with which Nissenbaum helped the parties to resolve. To do nothing, Nissenbaum has billed around $70,000 for his alleged services: approximately $19,000 billed to Pocahontas and around $50,000 billed to Smith.
Of significance is that (a)Pocahontas never complained about Nissenbaum’s performance or his price, (b)Merrill treated him as if he were not there, and (c)Pocahontas through Merrill always opposed Smith’s motions to curb or vacate Nissenbaum’s appointment, even though she as well as Smith was being outrageously overcharged. The reason: Nissenbaum’s incompetence and bias suited Pocahontas’s personal purpose and Merrill’s purpose of winning for her client notwithstanding ethical and procedural rules.
On 6 and 19 April 2001, Nissenbaum held teleconferences with Merrill and Johnson, set out the requirement that each counsel provide a list of the documents it was producing. [Tr. Exh. 110, GLN’s invoices dated 4/12/01 and 5/3/01.] His stated purpose, with which Johnson agreed, was to assure that the lawyers would not be able to play "games," for example, not produce a document but say she did.
Johnson complied in both regards: she produced documents and provided an itemized list of what she produced. Merrill did so in a dilatory and lackadaisical manner, i.e., she produced only a few documents, provided no itemized list of them, and then professed to having produced documents which she did, indeed, not produce.
On 4 June 2001, Johnson spoke to Nissenbaum regarding the production of documents.
On 7 June 2001, Johnson wrote to both Merrill and Nissenbaum detailing the discovery issues and the sets of documents that remained to be produced by Merrill. [Tr. Exh. 250.] Not only did Nissenbaum do nothing, neither did Merrill. No replies, no documents produced.
According to Nissenbaum’s records, Johnson phoned Nissenbaum on 9 August 2001 to try to get him to act on the many motions Johnson filed, as ordered, with him. [Tr. Exh. 110, GLN’s invoice dated 8/14/01.] But Johnson’s records show that Johnson phoned Nissenbaum on 25 July 2001 to effect another three-way teleconference with him and Merrill for discovery purposes. Nissenbaum told Johnson he would have Patti call Merrill’s office and find out which time on Friday would be possible. Eleven o’clock was the time tentatively scheduled.
According to Nissenbaum’s records, he scheduled a discovery teleconference with Merrill for Friday, 10 August 2001, and that a staffer from his office informed Johnson by phone that Merrill refused to participate in the conference because she had been nominated for a judgeship.
According to Johnson’s records, the call from Patti came on Thursday, 26 July 2001. The message was that Merrill was off the case. That was unexpected. Johnson recalls it was the 26th because it was on Friday, the next day, when Merrill’s nomination for a judgeship became public. Her comment then fell into place.
Merrill had not, however, filed a motion to withdraw from her representation of Pocahontas.
After Merrill’s nomination, Nissenbaum again became silent. He himself never contacted Johnson or returned her phonecalls. On 19 September 2001, Johnson left Nissenbaum a voicemail message, for which he charged Smith $50.00 and Pocahontas $50.00 (totaling $100.00) to review but he never responded to it. [Tr. Exh. 110, GLN’s invoice dated 10/16/01.]
Johnson also contacted Merrill’s employer lawfirm to no avail.
(6) Merrill’s withdrawal. On Friday, 17 August 2001, a hearing was scheduled on Smith’s Motion to Recuse Judge Gould. Merrill and DiPiano appeared. Sayeg was alleged to be unavailable. Merrill wanted to argue the motion. Johnson refused to assent because Merrill should not have been able to eat her cake and have it, too: i.e., to use her nomination as an excuse to withdraw from the case and not participate in discovery, but not use her alleged withdrawal as a reason not to oppose Smith’s motion. DiPiano claimed not to have yet read Pocahontas’s casefile
(7)Respondeat superior. Merrill was a partner of BRFG. The fees Merrill earned are paid to the lawfirm, not the lawyer. As to the escrow-account issue in this case, both Merrill and BRFG were directly involved: Merrill wrote the requisitions and BRFG Chairman André Jasse was the signatory on the checks written from the account.
BRFG’s liability is also vicarious, predicated upon a respondeat superior situation. Pytka v. Hannah LLP, 2002 WL 31677458 *4 (Mass.Super. 2002), citing Kansallis Financial Ltd. v. Fern, 421 Mass. 659, 675 (1996).
Clearly, Smith cannot be made to pay Pocahontas’s attorney fees for such unethical and unlawful conduct by Merrill and BRFG. The argument over BRFG’s fees must stay between Pocahontas and BRFG. It shall be her choice whether she pays BRFG or not. If she does, it will, however be a waste of marital assets, money that should flow to the Smith children and not to BRFG. There is a public policy reason behind the concept of vicarious liability that does not depend solely upon concepts of agency and control. Prosser & Keeton, Torts (5th ed.), Sec. 69, pp. 500-01, states it as follows: Pytka v. Hannah LLP, 2002 WL 31677458 *4 (Mass.Super. 2002).
The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of that employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of the employees, and sought to profit by it, it is just that [it], rather than the innocent injured plaintiff should bear them; and because [it] is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.BRFG is vicariously liable for Merrill’s actions in the course of its business as its employee. Id. Smith need not show direction or control by BRFG over Merrill in order to prevail. Id. Smith also need not show that Merrill’s acts were taken–even in part–with an intent to serve or benefit BFRG [Kansallis, 421 Mass. at 667], for BRFG as a partnership may be found vicariously liable for Merrill’s authorized conduct that violated the consumers protection statute even if BRFG was entirely unaware and uninvolved with that conduct. Id. at 672.
In the context of a partnership, the person acting and the persons who might be held liable for his actions usually stand on an equal footing and may be thought of as equally implicated in a joint enterprise.
Kansallis , 421 Mass. at 663, citing Bachand v. Vidal, 328 Mass. 97, 100 (1951).That BRFG is a Massachusetts limited liability, and therefore is not sheltered from liability for Merrill’s actions that arise out of her performance of legal services on BRFG’s behalf. Pytka, at 4, citing the former SJC Rule 3:06.
That Merrill became a judge and is no longer employed by BRFG is also of no significance. If Merrill committed malpractice while in BRFG’s employ, BRFG is automatically vicariously liable. Id.
Further, Merrill’s acts or omissions in connection with the Smith divorce may be imputed to BRFG, under principles of respondeat superior, for purposes of civil or criminal liability. See Phillips-Farr v. Commonwealth, 2001 WL 145594, No. Civ. A. 98-2218-F (Mass.Super. Nov. 16, 2001).
Gerald L. Nissenbaum (Tab 6) Nissenbaum has billed around $70,000 for his alleged services. (The amount changes almost daily. Last week, Nissenbaum sent a bill for an additional $5,714.00.) At absolutely no time did Smith or his counsel ever contemplate that a Discovery Master would create such havoc, be so incompetent that Smith did not receive any document whatsoever as a result of Nissenbaum’s so-called efforts, and abuse so absolutely his court-approved power. Smith incorporates in entirety as if set forth herein by reference the following pleadings:
JOHN SMITH'S OPPOSITION TO DISCOVERY MASTER'S MOTION OF 4 MAY 2003 (a) TO APPROVE EXPENDITURES FROM ESCROW ACCOUNTS AND (b) FOR INSTRUCTIONS ON WHAT TO DO WITH THE REMAINING FUNDS32 (dated 5/19/2002) [Click here to see Drano Series #97] These pleadings set out most of Nissenbaum’s wrongdoings, several falling likely into the quasicriminal if not criminal categories of conduct. Nissenbaum had his own personal agenda: he stood not only to gain immediate personal financial gain by continuously acting outside the scope of his authority but also to gain future financial benefits when and if he had to appear before Merrill once she was sworn in as a justice in Probate & Family Court. As a result, Nissenbaum’s fees are incommensurate with the legal and ethical value of his services.
and
FN32 Nissenbaum is actually moving to amend the order of 27 December 1999 by deleting the mandatory requirement of obtaining court permission before withdrawing funds from the escrow account . . . so as to cover up his wrongdoing. JOHN SMITH, JR.’S MOTION FOR SANCTIONS AGAINST DEFENSE COUNSEL E. CHOUTEAU MERRILL, RAYMOND SAYEG, JOHN DiPIANO, AND DISCOVERY MASTER GERALD L. NISSENBAUM (dated April 2003)
and
JOHN SMITH, JR.’S MOTION TO REPORT JOHN DiPIANO & GERALD L. NISSENBAUM TO THE OFFICE OF BAR COUNSEL (dated April 2003)
JOHN SMITH'S MOTION FOR CREDIT TO BE APPLIED TO THE BILLS BY GERALD NISSENBAUM AND TO END HIS APPOINTMENT AS DISCOVERY MASTER FOR HIS ALLEGED SERVICE IS A WASTE OF TIME AND MONEY AND DEPRIVES SMITH OF HIS CONSTITUTIONAL RIGHT UNDER ARTICLE XI OF THE MASS DECLARATION OF RIGHTS (dated 4/21/2002) and Of significance is that Pocahontas never complained and always opposed Smith’s motions to curb or vacate Nissenbaum’s appointment, even though she as well as Smith was being outrageously overcharged. She apparently has paid Nissenbaum her alleged fees. She wanted the Discovery Master. Let it stay her obligation to pay not only her share but also Smith’s alleged share.
Smith paid Nissenbaum $9042.50 and allegedly owes him another $39,515.78, up since last week from $33,800.78. Nissenbaum must either be ordered by the court to eat this sum and return to Smith the $9042.50 he paid . The alternative is to order Pocahontas pay the $39,515.78 to Nissenbaum, since Nissenbaum is the monster she and her three counsel – Merrill, Sayeg, and DiPiano – wanted and created . . . but the preferred alternative is to rule that Nissenbaum is not entitled to fees. In that way, any residual money that Pocahontas might have in the future would go to the Smith children . . . or also to any other children she might have with her boyfriend Russ.
Raymond Sayeg, Jr. (Denner & Sayeg invoices) (Tab 4) Raymond Sayeg participated in the cover-up of the FSI appraisal, which was one of the central pieces of evidence of attempted fraud by Pocahontas and Merrill. Pocahontas unwittingly gave him up during her deposition of 13 May 2002, when she deposed that she had seen the FSI appraisal in Sayeg’s office. [Tr. Exh. 248]. Sayeg vouched (by signing) for the data on Pocahontas’s Financial Statement of March 2002 [Tr. Exh. 44], on which she reduced her estimate of "fair market value" from $500,000 to $300,000, a sum $112,000 greater than the FMV on the FSI appraisal. Sayeg participated in the cover-up of the unlawful withdrawals of the money from the escrow account.
Given that "[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. . . ." [Mass.R.Prof.C. 1.2(d)], Sayeg is not entitled to be paid. Moreover, "[w]hen the lawyer’s services have been used by the client to perpetrate a fraud, that is a perversion of the lawyer-client relationship." Mass.R.Prof.C. 1.6, comment ¶12A.
Sayeg’s fee charges are incommensurate with the legal and ethical value of his services.
Pocahontas was Sayeg’s principle and he did her bidding. Payment to him, if to be made at all, is her responsibility and must be only her responsibility.
Barbara O’Brien Beardslee/Massachusetts General Hospital (Tab 7) Pocahontas moved to appoint Beardslee. Beardslee’s principle -- whether Massachusetts General Hospital or Children & the Law or Law & Psychiatry Service33,34 -- has been paid all moneys due and – at least so it appears – far more than the moneys due it. The principle has billed for alleged tasks performed when there was no active appointment.35 And both Merrill and Nissenbaum, with Pocahontas’s consent, appear to have paid the principle’s bills for those alleged services when there was no active appointment. In fact, on 20 February 2002, DiPiano sent one of those bills to Nissenbaum for payment with funds from the escrow account. [Pocahontas and DiPiano’s motion for fees at Tab 7, page bearing "page 15" on FAX line].
FN33 The payees of the checks have been Children & the Law and Law & Psychiatry Services.Several checks allegedly sent by Merrill and/or her principle(s) have not been acknowledged as having been received by Beardslee or her principle(s).FN34 These entities comprise a muddled troika of corporations and/or subcorporations and/or franchises and/or “other.” The relationships between these entities is as-yet unknown to Smith’s counsel.
FN35 In fact, the bills from MGH are, Smith contends, unfair and deceptive. Because MGH knew that the order required the parties to share the cost of the fees, MGH sent bills to each of the parties for all the fees during a given period. However, because the bills were addressed ONLY to Pocahontas and ONLY to Smith, they gave the appearance that they were HALF the bill. In this manner, MGH appears to have been double-dipping, which may account for the unintelligible bills. They are so obviously deficient, it is with surprise that neither Pocahontas nor Merrill nor Nissenbaum nor DiPiano questioned the accuracy of those bills, which look to have been prepared by someone who could not have passed Accounting 101 at Babson Institute. Then again, the bills might have intentionally been misleading, to cover up some nefarious purpose. That, of course, would be a question for a venue other than Probate & Family Court.
At all times, Smith has not consented to paying the GAL from the escrow account.
At all times, all four lawyers, Pocahontas, Merrill, Nissenbaum, and DiPiano, (a)knew that there was no written stipulation between the parties to pay the GAL or her principle(s) from the escrow account, (b) should have known that G.L. c. 215, §56A, requires the Commonwealth to pay the GAL’s fees, (c) knew that they did not have Smith’s consent, (d)knew that the court had not given permission for those funds to be used for paying the GAL’s fees, and (e)knew that the court had not given permission for such withdrawals, and in so doing, (f) intentionally violated the court order of 27 December 1999.
Smith contends that all four attorneys must be held accountable for their unlawful acts, to wit, be held in contempt and be sanctioned. Certainly, it would be an abuse of discretion to saddle Smith with having to pay Pocahontas the money she gave willingly to Beardslee. Pocahontas brought the burden of paying that money upon herself. She must bear the responsibility for the GAL’s fees, and must repay Smith 100 percent of the moneys withdrawn from the escrow account to pay the GAL and/or her principle(s). It was Smith’s money that was used, not Pocahontas’s.
Of significance is that Pocahontas never complained and always opposed Smith’s motions to curb or vacate Beardslee’s appointment and strike her reports.
Additionally, Smith incorporates in entirety as if set forth herein by reference the following pleading, which traces each and every payment from the escrow account to Beardslee and/or her principle(s) and identifies which checks from the escrow account were acknowledged as having been received by MGH:
JOHN SMITH'S OPPOSITION TO DISCOVERY MASTER'S MOTION OF 4 MAY 2003 (a) TO APPROVE EXPENDITURES FROM ESCROW ACCOUNTS AND (b) FOR INSTRUCTIONS ON THAT TO DO WITH THE REMAINING FUNDS (dated 5/19/2002)
James J. McCusker (Tab 8) McCusker’s service was a hoax. His alleged services – and those of his hired gun, Martha Rush O’Mara, who was not appointed – were nothing but an outrageous waste of more than $10,000 of marital assets. McCusker’s and O’Mara’s fees were incommensurate with their services. Their alleged services were also unnecessary,36 as was proven, ironically, by the court when it issued the Order of Referral to the Family Service Office, which assigned Asst. Chief FSO Daley to go to Maine and get the medical and school records of the children and to interview the children, which is exactly what Smith had wanted for the last two years and had been refused by the court. What Smith cannot resist asking is, What on Earth made anyone involved in this case believe that McCusker would be more competent interviewing those children, whom he did not know and who did not know him, than the parties’ counsel?
FN36 Given that Nissenbaum had on 26 April 2001, an entire year earlier, already recommended to the former court (Gould, J.) that the children should be brought to court so that counsel could question them, Smith through his counsel objected firmly to the appointment. To duplicate what had already been decided seemed foolish and a waste of marital assets. By that time, Nissenbaum had already been corrupted and recommended McCusker to retaliate against Smith’s counsel’s criticism of Nissenbaum’s (non)performance.Trite though it might sound, the proof is in the pudding. McCusker and/or O’Mara failed miserably in questioning the children. Either that or McCusker and O’Mara did not report the truth of what the children told them. Neither McCusker nor O’Mara reported that Pocahontas had a live-in boy-friend, although FSO Daley did orally [Day 57] and in his report [Tr. Exh. 254].37 Neither McCusker nor O’Mara reported the emotional, psychological, and physical difficulties the children were having in school, such as Jimmy’s encopresis [Tr. Exh. 259], Jimmy’s upsetness/frustration/depression/anger when his mother, Pocahontas, volunteered at the children’s school [Tr. Exh. 259], the children’s resistance to making eye contact with other people [Tr. Exh. 259].38 Neither McCusker nor O’Mara reported the regression of the children’s academic performance. Compare the children’s evaluations at [their previous school], while they were in Smith’s care. [Tr. Ex. 91(A-F)].FN37 Neither McCusker nor O’Mara reported the true condition of the apartment in which Pocahontas lived with the children. In contrast, Daley reported that the apartment was cluttered with many boxes and that there was an appliance in the middle of the living room.O’Mara’s efforts were spent talking to many of the people from whom Smith’s counsel was not allowed to get records or to depose. This is, in the vernacular, sinful, piling hearsay upon hearsay. If Johnson had been aware that McCusker was not the person who had done the interviewing of those people and was not the person who wrote the report, she would have jumped up and down upon the submission of the "McCusker" report.FN38 Making eye contact with people was never a problem when the children were in Smith’s care. And the children’s academic performance was wonderful. [Tr. Ex. 91(A-F)].
Further, the case law is well-settled that a GAL and the people interviewed by a GAL may be examined. That was made impossible in this case. (1) Smith was not given releases to conduct discovery of Doctors McCandless or Brush. (2) In any event, McCusker could not have answered the questions since he was not the person who interviewed those people. (3) Smith and his counsel did not have access to the report so had no knowledge of what McCusker or O’Mara were doing. (4) Smith and his counsel were not given detailed bills from McCusker. They only had notice of payment by Nissenbaum to McCusker. Johnson saw the McCusker bills for the first time at trial. (5) O’Mara was not made available as a witness.
Further, although payment from the escrow account to James McCusker was approved by the court, over Smith’s objection, the transcript of 12/17/01 will show that McCusker was NEVER identified as a guardian ad litem. Smith and his counsel always believed that McCusker was appointed only to determine the issue of whether the children were competent to consent to being audiotaped by their father. Nothing more, nothing less.
Had Smith’s counsel been aware that McCusker was to be appointed as a guardian ad litem pursuant to G.L. c. 215, §56A, she would have insisted that the Commonwealth pay McCusker’s fees. After all, she had both sued in Federal district court on that very issue and appealed the order that Smith had to pay Beardslee fees as an "expert" were his counsel to depose her.
The fees charged by McCusker for his and O’Mara’s services have totaled $12,777.21.39 He billed the Smiths for 29.75 hours40 of O’Mara’s time at $250 per hour, totaling $7,437.50, but he then took $4,250.00, or 57 percent, of O’Mara’s alleged fees for himself and paid O’Mara $3187.50. [Tr. Exh. 252.]41 (At trial, McCusker testified that the split was 60-40.) McCusker also billed for 21 hours of his own time at $250 per hour, totaling $5,250.00.42
FN39 Nissenbaum had neither court permission nor Smith’s consent to substitute O’Mara for McCusker, or to pay O’Mara, who was neither appointed by the court nor employed by McCusker’s office.Guardians ad litem are not to be appointed secretly or retained by secret informal referrals by pretenders to that function.FN40 Additionally, O’Mara claimed to have spoken to Johnson on 3/25/02, Smith’s counsel. Johnson has absolutely no memory of ever having a 15-minute phone call on any date with O’Mara. In fact, not only does Johnson have absolutely no record of ever having such a phone call or even any record of working on the Smith case on 3/25/02, Johnson also never knew of the existence of Martha Rush O’Mara. Johnson had no clue as to who the woman was in court in June 2002, at the start of trial.
FN41 In her years of practice, Smith’s counsel has never experienced or heard of any lawyer giving a 57–60 percent referral fee. Circumstantially, one can conclude that Nissenbaum received a 30 percent cut of O’Mara’s fees, for his referral of McCusker to this court.
FN42 Nissenbaum violated 19 of the court order of 17 December 2001, by paying McCusker for more than 20 hours. That time should not have been exceeded without court permission. Court permission was not obtained.
Given the gross deception surrounding the entire McCusker/O’Mara/Nissenbaum relationship, McCusker’s testimony must be given no weight and the appointment vacated nunc pro tunc.
As with Beardslee/MGH’s bills, it would be an abuse of discretion to saddle Smith with having to pay Pocahontas the money she gave willingly to McCusker and O’Mara. Pocahontas brought the burden of paying that money upon herself. She must bear the responsibility for McCusker’s and O’Mara’s fees, and must repay Smith 100 percent of the moneys withdrawn from the escrow account to pay them. It was Smith’s money that was used, not Pocahontas’s.
Conclusion The trial court must deny Pocahontas counsel fees, expenses, and the costs she incurred prior to, during, and post trial.
WHEREFORE, Smith prays Pocahontas’s motion for fees, expenses, and costs be DENIED.
John Smith,
By his attorney,
4 June 2003 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
B.B.O. #549972CERTIFICATE OF SERVICE
I hereby certify that on 5 June 2003 I caused to be served in hand/by first-class mail a copy of the within pleading on John DiPiano, 180 Canal Street, Suite 400, Boston, MA 02114, and Gerald L. Nissenbaum, 160 Federal Street, 24th floor, Boston, MA 02110.
5 June 2003 Barbara C. Johnson
Barbara C. Johnson, Esq.