July 8th, 2009
Perhaps the despotic judiciary have come down to the level where the rest of us walk and occasionally step in stuff and move on… In Mandel v. Mandel, the Court of Appeals stated it was appropriate for the Probate Judge to consider whether the cost of college was out of the reach for (in this case) the father and that “other important equitable factors” can be considered.
In this case the parties’ 1996 Separation Agreement stated that each parent pay 50% of the children’s college education expenses. The Judge ruled that the father would be limited to paying 50% of in-state public college expenses - not the out-of-state tuition which, in this case, was $34,000 for Roger Williams University … (Give me a break).
Sorry to all the Harvard and Yalees wanta-bees - looks like UMass will be the starting point for the ‘average Joe’ parent’s (’middle-class’) contribution to college.
Posted in Family Law: Rules & Case Law | No Comments »
June 16th, 2009
Would you believe the same probate courthouse (as in the same building) can have different rulings on procedure and therefore a different outcome from one judge to the next? Does that sound arbitrary and capricious? Well it is and it is reality.
However, again, there is accountability. Know thy laws. Look up case law and procedures. Most of which can be accessed for free on the Internet or at a local Mass. Trial Court Law Library where you have access to free Westlaw and Lexis/Nexis and the Internet.
If you have a concern with inconsistencies - respectfully hold the judge to it. Cite the law/procedure and/or case law. The Mass. Rules of Domestic Relations Procedure is virtually identical to the civil rules of procedure. Same applies to evidence. Just because most lawyers (and judges) ignore them - doesn’t mean it’s right or that you shouldn’t expect to have consistency in the law - and its application to your case.
Posted in Debunking the Myths of Court | No Comments »
May 29th, 2009
Yes - Probate & Family court judges have a lot of discretion (too much in most cases). Yes a judge can arbitrarily say that your child support should be ‘x’ because the judge “doesn’t believe you.” However, that doesn’t make it right!
Judges, like everyone else (even in Massachusetts) are beholden to laws, rules and ethics - and most inportantly the Massachusetts Commission on Judicial Conduct. Ask former Judge Livingstone of Plymouth County if judges can do anything they want and get away with it.
What can you do? Sorry the best answer is to hire a lawyer. Right, wrong or indifferent, judges do not take kindly to ‘pro se’ litigants. I would hazard a guess that a judge would be much less likely to arbitrarily state I don’t believe you - as it relates to your income if you are represented by an advocate that can immediately respond - indicating that is not the standard by which Child Support is determined. In fact, IRONICALLY - there is a presumption that the Child Support Guidelines apply and the oppositing party carries the burden of proof to establish why the guidelines do not apply. “I don’t believe you” - is NOT an appropriate response under any circumstances.
Even though every day I think I have seen and heard it all - I keep reminding myself to never be amazed at what goes on in Probate & Family Court. Here is hoping that some day the rules, laws, and procedure as written by our elected legislature shall be enforced and upheld to the letter of the law.
Posted in Debunking the Myths of Court | No Comments »
May 11th, 2009
Recently I was faced with a Summary Judgment under Rule 56(a) for a Complaint for Modification of Child Custody. I immediately began researching the previous case law regarding such rulings and how to make an opposing argument. After hours of research, reading, writing - it occurred to me - that I should re-read the Rule and make sure I was on the right track.
Both to my excitement and frustration for spending so much time on the issue - I realized that the Rule 56(a) has changed effective May 1, 2009. Upon reading it - an opposing party is PRECLUDED from Summary Judgment based upon the clear reading of the new law which states inter alia, “… a party may move for summary judgment subsequent to the commencement of any proceeding under these rules EXCEPT in actions of divorce OR in actions for CUSTODY or VISITATION!”
Back to the basics… Read the rules. Divorce law is not rocket science (trust me I have seen the participants involved impart their “wisdom” - including those in black robes!).
Posted in Family Law: Rules & Case Law | No Comments »
May 7th, 2009
Just found out this week a Probate Court judge is contemplating sanctions against a lawyer for not corresponding in a timely manner to opposing counsel - when said lawyer was in the hospital sick!!!
Where do judges get the nerve to make such rulings?!?
They too are accountable and its called the Massachusetts Commission on Judicial Conduct. Look at Plymouth County Probate Judge Judge Michael Livingstone who ‘agreed’ to resign less than a year ago for blatant judicial misconduct (June 2008). Mr. Livingstone was engaging in a real estate practice and threatening tenants while serving on the bench and earning well over $100,000 on the taxpayers. What a ROYAL @SS!
I practice in Probate Court and I am amazed at the lack of regard for the law from EVERYBODY - clients, lawyers, judges, clerks, alike!
Posted in Debunking the Myths of Court | No Comments »
April 24th, 2009
This may seem like I am repeating myself (and I wish I was) - but alas, I am not. I went to Probate & Family court today to ‘argue’ an assented to motion and I got ping-ponged back and forth because THEY lost the file! If I was not assertive on the issue (namely I literally was sent back and forth to the same exact people) - then I could have been in court all day. I had to say - someone here has to make a decision on whether my motion will be heard based on the fact that the file will not be located! Not rocket science…
The ’coup des grace’ - I get a lecture from the judge for not wearing a tie! The judge asked if I typically come to court without a tie? I would have asked him if court typically wastes my client’s time by losing a file - but I already know the answer.
If you are waiting for substantive commentary - so am I!!! Until then - it will the inane - as that is what it is…
Posted in Debunking the Myths of Court | No Comments »
April 23rd, 2009
Probate Court: Four hours in court, endless paperwork, ping-ponged from department to department - for a 30 second hearing. Sound too familiar? Welcome to Probate & Family Court.
This is not an unusual scenario - but rather the norm. It is my opinion (but other attorneys probably would agree) that Probate & Family court is 98% procedure, paperwork and ping-ponging between departments. About 2% of the time the merits of the case are actually heard.
And then when you finally get your opportunity to be heard - oftentimes the “facts” of the case seem to be wildly divergent coupled wtih unscrupulous opposing counsel.
Why do we allow such a system to exist you might ask? That is how it is in Massachusetts - very antiquated. However, there continues to be legislation and standing orders passed to make improvements. But those seem to be overshadowed by the reality that the Probate and Family law in Massachusetts is much worse than the Department of Motor Vehichles!
Posted in Debunking the Myths of Court, Procedure | No Comments »
April 20th, 2009
Welcome to Law Office of Ed Greene special Family Law section. Please check in frequently as I intend to post often and post just about everything I experience in Probate & Family Law courts and dealings.
Ask questions - you are very likely to get an answer!
Check the Boston Globe article published on 4/13/09 - regarding my comments along with Judge Blake of Salem Probate & Family court regarding Child Support Guidelines.
Posted in Uncategorized | No Comments »
