Bonaparte v. Devoti , 93 Mass. App. Ct. 603 ( 2018 )

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17-P-399 Appeals Court
THOMAS M. BONAPARTE vs. MICHELA DEVOTI.
No. 17-P-399.
Barnstable. January 9, 2018. - July 20, 2018.
Present: Trainor, Hanlon, & Singh, JJ.
Divorce and Separation, Relief from judgment. Due Process of
Law, Fair trial. Evidence, Acceptance or rejection of
testimony, Unavailable witness. Witness, Unavailability.
Telephone.
Complaint for divorce filed in the Barnstable Division of
the Probate and Family Court Department on May 11, 2015.
The case was heard by Arthur C. Ryley, J., and a motion for
a new trial was considered by him.
Michael J. Traft for the wife.
Michael Fray Suarez for the husband.
SINGH, J. Michela Devoti, the former wife (wife) of Thomas
M. Bonaparte (husband), appeals from a divorce judgment entered
in the Probate and Family Court. She also appeals from the
order denying her motion for new trial. Her primary contention
on appeal is that her motion to testify by telephone or video
2
should have been allowed when she was unable to personally
appear at trial due to immigration issues. We agree and, with
the exception of the portion of the judgment granting the
divorce, we vacate the judgment and remand for further
proceedings consistent with this opinion.
Background. The parties were married in Italy on October
2, 2005. At that time, the husband resided in New Jersey, and
the wife, an Italian citizen, resided in Piacenza, Italy. In
January of 2006, the wife gave birth to the parties' child in
Italy. The parties agreed to continue living apart; however,
the husband traveled to Italy periodically to visit the wife and
the child.
In the summer of 2006, the wife and the child visited the
husband in New Jersey, at which time the parties discussed the
possibility of relocating to Cape Cod. In March of 2009, the
parties purchased a home located in Sandwich (marital home).
One year later, in March of 2010, the wife and the child moved
into the marital home with the husband. Shortly thereafter, the
husband was laid off by his employer and he struggled to find
work.
In 2011, the wife and child returned to Italy, after which
time the husband was responsible for the expenses related to the
marital home. The wife was responsible for her own and the
child's living expenses, and received little, if any, financial
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support from the husband until March of 2015, when the husband
began sending the wife $100 to $150 per week.
In May of 2015, the husband filed a complaint for divorce
in the Probate and Family Court. Following a pretrial
conference on December 9, 2015, a judge of the Probate and
Family Court (pretrial judge) issued an order identifying the
contested issues for trial as "child support" and "an equitable
division of assets, specifically the former marital home." The
trial was scheduled for May 3, 2016. Nine days prior to the
trial, the wife filed a motion seeking permission to testify by
telephone or video. The wife asserted she was unable to re-
enter the United States until her green card status was
"regularized," and travel to this country was further
complicated by the expiration of the child's Italian passport,
which could not be renewed until the husband signed "the
appropriate papers with the Italian Consulate." The pretrial
judge denied the wife's motion without explanation on April 26,
2016.
On May 3, 2016, the wife's counsel, the husband, and the
husband's counsel appeared before a different judge (trial
judge) for the first day of trial. At the start of trial, the
wife's counsel renewed the wife's request to testify by
telephone or video, submitting a supporting affidavit. The
wife's counsel stated that, during a recent trip to the United
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States in December of 2015, Federal immigration officials
detained the wife for several hours and warned her that, due to
an irregularity with her green card status, she would not be
permitted re-entry unless she surrendered her green card or
obtained a travel document. The wife's counsel further stated
that, upon returning to Italy, the wife immediately began the
process of obtaining the required travel document; however, it
was presently "stuck in the system." The trial judge denied the
wife's request, observing that the wife had not sought a
continuance of the trial. Each party's counsel presented
opening statements, and the husband testified. A second day of
trial was held on May 18, 2016, after which the parties
submitted proposed judgments.
A divorce judgment closely resembling the husband's
proposed judgment entered on June 29, 2016. The divorce
judgment provided, in relevant part, that (1) the wife shall
retain ownership of her real property located in Italy; (2) the
husband shall retain the marital home and reimburse the wife
$50,000 for "her interest in the [marital] home, after taking
into consideration her sole interest" in the Italian properties
and the husband's expenditures related to the marital home; and
(3) the husband shall pay child support in the amount of $240
per week. The trial judge declined the wife's request to
deviate upward from the presumptive Child Support Guidelines
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(2013) (Guidelines) amount of $340 per week, instead deviating
downward in consideration of the travel expenses (approximately
$96 per week) the husband would incur to visit with the child.1
The trial judge further declined the wife's request for
restitution for the husband's failure to support the child while
the parties lived apart. On July 13, 2016, the wife filed a
motion for new trial and relief from judgment pursuant to Mass.
R. Dom. Rel. P. 59 and 60, which was denied on July 21, 2016.
The present appeal by the wife followed.
Discussion. The wife claims the denial of her motion to
testify by electronic means was an abuse of discretion and
deprived her of due process.2
"Due process requires, at minimum, an opportunity to be
heard 'at a meaningful time and in a meaningful manner.'"
1 At trial, the wife's counsel represented that child
support should be based on the Guidelines.
2 The wife also claims error in light of a 2016 amendment to
the Uniform Interstate Family Support Act (UIFSA), G. L.
c. 209D, which provides that a judge "shall permit a party or
witness residing outside the commonwealth to be deposed or to
testify under penalty of perjury by telephone, audiovisual
means, or other electronic means . . . ." G. L. c. 209D, § 3-
316(f), inserted by St. 2016, c. 53, § 1 (emphasis supplied).
The wife argues she was entitled to testify by electronic means
because the 2016 amendment went into effect before she filed her
motion in April of 2016. However, even if UIFSA applies to this
case, it appears the 2016 amendment was not in "effect" for
purposes of this case, as the underlying divorce proceedings
were commenced in 2015, and the 2016 amendment only applies to
proceedings "commenced on or after" March 31, 2016. See
St. 2016, c. 53, §§ 2-3.
6
Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457
Mass. 172, 187 (2010), quoting from Adoption of Simone, 427
Mass. 34, 39 (1998). The decision whether to allow a party's
request to testify by electronic means is a matter within the
judge's discretion. See Mass. R. Dom. Rel. P. 43(a) ("In all
trials the testimony of witnesses shall be taken orally in open
court, or such other place as the judge may in his discretion
determine, unless otherwise provided by these rules"). See also
Adoption of Edmund, 50 Mass. App. Ct. 526, 530 (2000) ("[T]he
precise method of participation should generally be left to the
discretion of the trial judge"); Adoption of Thea, 78 Mass. App.
Ct. 818, 826 (2011) (allowing telephonic testimony is within the
judge's discretion). "The responsibility for devising a
mechanism for meaningful participation, once requested, rests
with the judge." Adoption of Whitney, 53 Mass. App. Ct. 832,
836 (2002).
Here, the wife sought to participate in the divorce trial
by way of telephonic or audiovisual testimony, as her presence
was precluded by her immigration status. In denying the wife's
request, the trial judge found the wife "had three months to
arrange for an audio visual deposition [pursuant to Mass. R.
Dom. Rel. P. 30A(k)]" but instead "waited until the last minute"
by filing her motion only nine days before the trial. The judge
found "[t]here [wa]s no reasonable way [the] [h]usband could
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have arranged for, or prepared for an audio visual or telephone
hearing in that short period of time." It is apparent the judge
viewed the wife's motion to testify by electronic means as
untimely, despite that there is no specific time frame for
filing such a motion, under rule 30A(k) or otherwise. See Mass.
R. Dom. Rel. P. 30A(k)(1) (requiring only "notice and an
opportunity to be heard").3 See also Roche v. Massachusetts Bay
Transp. Authy., 400 Mass. 217, 221 (1987) (deeming a motion
filed seven days prior to trial as having provided "proper
notice" for purposes of rule 30A[k]).4
In focusing on audiovisual depositions pursuant to rule
30A, the judge appeared to overlook other available options to
facilitate the wife's participation in the trial, including live
testimony via telephone or video, as requested by the wife. See
Adoption of Whitney, 53 Mass. App. Ct. at 836 ("In some cases,"
a party's participation "may best occur through video or
telephone conferencing during trial; in yet others, through
3 "Upon motion with notice and an opportunity to be heard,
. . . the court may order, in the interest of justice and with
due regard to the importance of presenting the testimony of
witnesses orally in open court, that all or part of the
testimony, and such other evidence as may be appropriate, may be
presented at trial by audiovisual means." Mass. R. Dom. Rel. P.
30A(k)(1) (identical to Mass. R. Civ. P. 30A[k][1], as appearing
in 393 Mass. 1238 [1985]).
4 See Mass. R. Dom. Rel. P. 30(b) (requiring seven days'
notice prior to the taking of a deposition).
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appropriate documentary submissions, deposition testimony, or
other reasonable means").
Moreover, the judge did not appear to consider other
relevant factors. The judge's findings reflect no consideration
of the wife's interest in being able to testify, or the
prejudice to the wife resulting in her inability to do so. See
Valley Bank & Trust Co. v. Marrewa, 354 Mass. 403, 405 (1968)
("Every party has a right to testify in his own behalf").
Likewise, there is no indication that the judge, in
declining the wife's request to testify by electronic means,
considered the potential impact on the child's interests. The
judge's findings contain minimal discussion of the child's
needs, despite those needs being a mandatory factor for the
judge to consider under G. L. c. 208, § 34. The wife sought to
introduce, through testimony, evidence regarding the child's
needs, including the various expenses she regularly incurs in
connection with the child's developmental and learning
disabilities.
Given that the husband had only visited with the child a
"few times" since 2011, and that the wife is responsible for the
overwhelming majority of the child's care, it is inconceivable
that the wife's testimony on these matters would have no effect
on the judge's findings. See Adoption of Whitney, 53 Mass. App.
Ct. at 838. Instead, the judge focused solely on the
9
inconvenience to the husband caused by the wife's "last minute"
motion.
Even if the wife's motion had been late under a specific
procedural rule, which we do not suggest, "domestic relations
matters have been viewed in certain circumstances as standing on
a different footing than other civil matters." Houston v.
Houston, 64 Mass. App. Ct. 529, 535 n.10 (2005). In cases
involving children, a judge's action to ameliorate the harsh
effects of a procedural rule "may be necessary to protect the
child's best interests and to prevent manifest injustice." Id.
at 536 ("As we have stated, an ameliorating influence may be
essential to avoid a result where form triumphs over
substance").
Here, the risk that the child may be receiving less support
than necessary due to the wife's inability to testify is too
great to ignore.5 In light of the judge's failure to consider
the interests of the wife and the child, we conclude the denial
5 Indeed, the judge deviated downward from the presumptive
Guidelines by simply deducting the husband's travel costs from
child support, thereby causing the wife to absorb the entirety
of this expense. While a parent's extraordinary travel expense
is one factor a court may consider, it appears that the judge
did not consider any of the other factors which, in the
circumstances of this case, would have warranted an upward
deviation. See Guidelines § IV (2013) (factors include [1] a
child with special needs, [2] a child with extraordinary medical
or other expenses, [3] a parent with extraordinary travel
expense, [4] a parent absorbing child care cost disproportionate
to income, and [5] a parent providing less than one-third of the
parenting time).
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of the wife's request to testify by electronic means was an
abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co.,
512 F.3d 9, 15 (1st Cir. 2008) ("[A] judge's discretionary
decision constitutes an abuse of discretion where we conclude
the judge made 'a clear error of judgment in weighing' the
factors relevant to the decision, such that the decision falls
outside the range of reasonable alternatives").
As the absence of testimony from the wife affects not only
the amount of child support, but also the property division,
those issues must be remanded for a new trial, and we need not
decide the arguments raised by the wife in connection with the
same.
Conclusion. The order denying the motion for new trial is
reversed. The portion of the divorce judgment granting the
divorce is affirmed. In all other respects, the divorce
judgment is vacated, and the matter is remanded for further
proceedings consistent with this opinion. A temporary child
support order shall enter to be in effect during the pendency of
the remand.
So ordered.