COMMONWEALTH
of MASSACHUSETTS
PROBATE
AND FAMILY COURT
ESSEX,
ss DOCKET NO. 04D
1906-DVI
___________________________
Robert
Paul Nickse,
Plaintiff
v.
Jane
C. Daniel,
Defendant
__________________________
DEFENDANT’S
MEMORANDUM OF LAW IN SUPPORT OF AMENDED MOTION to SET ASIDE
SEPARATION AGREEMENT, Pursuant to M.G.L. 60 (b)(6),
and
REQUEST for IMMEDIATE INJUNCTIVE RELIEF
Now
comes the defendant, Jane Daniel, (hereinafter “Daniel”, or
“Wife”) and hereby submits the following Memorandum of Law in
support of her Motion to Set Aside the Separation Agreement Pursuant
to Rule 60 (b)(6), (hereinafter, the “Motion”).
- INTRODUCTION
Pursuant to Rule 60 (b)(6), the
Court should set aside the entry of judgment for divorce, and in
particular that portion of the parties’ Separation Agreement that
provides for a division of the marital estate. In support of her
request for relief, the defendant states that the Agreement was
inherently unconscionable, is the product of a fraud on the court,
was signed under extreme duress and has been brought within a
reasonable period of time.
- STATEMENT OF FACTS AND PROCEDURAL HISTORY
The relevant facts and procedural
history as set forth in defendant’s Motion present exceptional
circumstances sufficient to meet the requirements of 60 (b)(6), in
that the facts and events described in the Defendant’s Motion, as
supported by the accompanying exhibits, the separation agreement is
blatantly unconscionable as to the division of the marital estate and
was procured through egregious misconduct, by officers of the court,
that was directed at the judicial machinery itself.
Through a sentient unconscionable
scheme, the Plaintiff’s attorney and a third party judgment
creditor’s attorney conspired and acted with intention to liquidate
the primary marital asset outside of the overview of the Probate
Court. For a decade the Defendant was the victim of a systematic
campaign of intimidation and duress which included many threats of
imprisonment and two actual periods of incarceration. This calculated
misconduct, which is ongoing to this day, was perpetrated with the
intent to financially benefit the plaintiff and the defendant’s
third party judgment creditor by interfering with the divorce
proceedings.
Despite the fact that more than
one year has elapsed since the Separation Agreement was approved by
this Court, given the ongoing nature of the exceptional circumstances
existing in this case, the request for relief is timely.
STANDARDS
FOR RELIEF PURSUANT TO RULE 60 (B) (6)
Rule 60
(b) (6) permits an independent action …to set aside a judgment for
fraud on the court. “Fraud on the Court” is a term of art with a
stringent definition. It occurs where it can be demonstrated, clearly
and convincingly, that a party has sentiently set in motion some
unconscionable scheme calculated to interfere with the judicial
system’s ability impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the presentation of the
opposing party’s claim or defense.
“Examples
of ‘fraud on the court’ include bribery of judges, employment of
counsel to ‘influence’ the court and involvement of an attorney
(an officer of the court) in the perpetration of fraud.
Fraud upon
the court is fraud which is directed to the judicial machinery itself
and is not fraud between the parties of fraudulent documents, false
statement or perjury… It is where the court or a member is
corrupted or influenced or influence is attempted or where a judge
has not performed his judicial function — thus where the impartial
function of the court have been directly corrupted.” Bulloch
v. United States, 763 F. 2d 1115, 1121 (10th
Cir. 1985).
“The doctrine [of fraud
on the court] embraces ‘only that species of fraud which does, or
attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery can not perform
in the usual manner its impartial task of adjudging cases that are
presented for adjudication.”
Fraud
on the court occurs when the judicial machinery itself has been
tainted, such as when an attorney, who is an officer of the court, is
involved in the perpetration of a fraud or makes material
misrepresentations to the court. Fraud upon the court makes void the
orders and judgments of that court.
Fraud on the court involves the
most egregious misconduct . . . by parties as well as by their
attorneys. . . The court in Rockdale
[Mgmt. Co. v. Shawmut Bank, N.A., 418
Mass. 596, 638 N.E.2d 29 (Massachusetts Supreme Court 1994)] adopted
the definition of fraud on the court detailed by the United States
Court of Appeals for the First Circuit: A ‘fraud on the court’
occurs where it can be demonstrated, clearly and convincingly, that a
party has sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system's ability
impartially to adjudicate a matter by improperly influencing the
trier or unfairly hampering the presentation of the opposing party's
claim or defense.’ Rockdale
Mgmt. Co. v. Shawmut Bank, N.A.
Only
"unusual and exceptional circumstances" warrant relief from
judgment based upon an independent action. Alperin
& Shubow, Summary of Basic Law § 3.245, at 360 (3d ed. 1996).
EXCEPTIONAL
CIRCUMSTANCES
The
defendant in this action is no stranger to extraordinary and
exceptional circumstances. For more than thirteen years she has been
subject to unrelenting and abusive collection actions in connection
with a Middlesex Superior Court judgment which originally exceeded
$30 million. At the time this judgment issued in favor of two
plaintiffs, it was the third largest in the history of the
Commonwealth.
Even
more incredible, eight years later the Appeals Court found the lower
court trial to be “entirely infected by fraud”. Consequently the
Appeals Court vacated one plaintiff’s award of $22 million, yet
allowed the second plaintiff’s $11 million award, plus interest, to
survive, for the reason that Daniel’s meritorious defense in the
this instance was time-barred. This judgment, totaling $22 million
plus interest, was clearly beyond Daniel’s ability to pay in her
lifetime.
Nevertheless,
Attorney Frank Frisoli, (hereinafter, “Frisoli”) on behalf of
said judgment creditor, inflicted extraordinarily aggressive
collection tactics on Daniel, including two incarcerations at MCI
Framingham. At the time of the first incarceration Daniel was 65
years old, the oldest prisoner ever to serve time there.
Finally,
this case presents evidence that is entirely unique, in that a third
party judgment creditor’s improper involvement “infected” the
entire divorce proceedings and actually determined the outcome of the
divorce. By coercing Daniel into signing a Separation Agreement that
overwhelmingly favored the Husband, the Probate Court was effectively
deprived of its oversight. None of this would have been possible
without the cooperation and collusion of the Husband and his counsel.
For
all of the above reasons, despite the passage of eight years, this
case presents a meritorious and timely claim under Rule 60 (b)(6).
DURESS
Burton’s Legal
Thesaurus defines DURESS as, “an actual or a threatened violence or
restraint of a man’s person, contrary to law, to compel him to
enter into a contract… [e.g.] Duress of imprisonment, where a man
actually loses his liberty. If a man be illegally deprived of his
liberty [italics added], until he sign or seal a bond or
the like, he may allege this duress and avoid the bond. But if a man
be legally imprisoned, and either to procure his discharge or any
other fair account, seal a bond or deed, this is not duress of
imprisonment and he is not at liberty to avoid it. 2 Inst. 482;3
Caines’ R.168; 6 Mass. R. 511; 1 Lev. 69; Hen & Munf. 350;5
Shepl. R. 338.
In looking at the
history of duress, the court stated that at common law duress meant
only duress of a person, that is a threat to life, limb or
liberty [italics added], and the threat must have been of a
nature as to create such fear as would impel a person of ordinary
courage to yield to it.
…[U]nder modern
views, duress is no longer confined to situations involving threats
of personal injury or imprisonment [italics added] and the
standard of whether a man of ordinary courage would yield to the
threat has been supplanted by a test which requires whether the
threat has left the individual bereft of the quality of mind
essential to making of a contract. Thus, any wrongful threat which
actually puts the victim in such fear as to act against his will
constitutes duress… 107 Am. Jur. Proof of Facts, 3d 337.
STANDARDS
FOR PROVING DURESS
Two factors must be
proven to establish “duress” to set aside a Marital Separation
Agreement:
- that the act sought to be set aside, in this case the Wife’s assent to the Separation Agreement, was effected involuntarily and thus not as an exercise of her free choice or will, and
- that this condition of mind was caused by some improper and coercive conduct of the opposite side.
In this instance,
the Wife was under imminent threat of incarceration from the
third-party judgment creditor’s attorney, which was reported to her
by her own counsel, Anthony Porcello (hereinafter “Porcello”). As
set forth in her motion, on the eve of trial, Daniel met with
Porcello in his office. During that meeting, Porcello informed her of
the terms contained in a proposed settlement agreement. He also told
her he had received a phone call from Attorney Frisoli who was
threatening to have her incarcerated if she did not assent to the
proposed Separation Agreement.
Her perception of
this threat as credible was reasonable, based upon her previous
traumatic experience wherein a Gloucester District Court judge had
ordered her to be incarcerated at the request of Frisoli.
At the time that
Daniel was informed of the proposed terms of the settlement
agreement, there was a mittimus in place, obtained by Frisoli just
days earlier, that he chose have stayed until shortly after
the scheduled date of the contested divorce.
In this case
Frisoli’s conduct was improper because the Mittimus under which he
threatened to have her incarcerated was obtained from another court
in another matter, entirely unrelated to the divorce.
Restatement of
Contracts P 492 has defined duress as “(a) any wrongful act by
one person that compels a manifestation of apparent assent by another
in a transaction without his volition, or (b) any wrongful threat of
one person by words or conduct that induces another to enter into a
transaction under the influence of such fear as precludes him from
exercising free will and judgment if the threat was intended or
should reasonably have been expected to operate as an inducement.”
“…Duress that
will provide grounds for avoiding such an agreement is a condition of
mind produced by improper, external pressure or influence that
practically destroys the free agency of a party and causes .. her to
make a contract not of her own volition.”
Duress is the
result of coercion.. to overcome the free will of another person…[i]n
duress, the immediate effect of the wrongful act employed is to
create fear in the victim.”
Courts in recent
cases have…allowed spouses to pursue a post judgment motion for
relief based on duress, even if the spouse was represented by
counsel. Manosh v. Manosh, 160 Vt. 625, 648 A.2d 832 (1993)
(fact that wife was represented by counsel throughout proceedings did
not compel dismissal of her post judgment motion claiming that
agreement was unconscionable).
Notwithstanding the
fact that Daniel was represented by counsel, Daniel’s attorney
Anthony Porcello failed in his ethical duty to report his awareness
of the improper and unethical duress applied by Attorney Frisoli
acting as agent for Nickse and Attorney Brown.
After providing his
client with many months of zealous representation, Porcello did an
abrupt about-face at the eleventh hour and assented to an uncontested
divorce absent his client’s knowledge or consent. On July 24,
2007, a Motion to Convert to an uncontested divorce was filed which
stated that “the parties after extensive negotiations in which both
parties were represented by counsel… have reviewed the separation
agreement with their counsel, understand its provision and understand
that it is fair and reasonable… and an equitable division of the
marital estate.”
Daniel flatly
denies that any such negotiations took place. There is no evidence of
any such meeting ever having taken place.
Furthermore, there
is no evidence of any other agent of change that would cause such an
extreme reversal of the Wife’s position, save the threat of
imprisonment that so terrified her to the extent that she was
deprived of her free will.
THE
COURT MUST CONDUCT AN EVIDENTIARY HEARING
Where the
defendant’s Motion alleges “facts sufficient to raise an issue as
to whether ‘duress’ occurred at the time the separation agreement
was signed, the trial court must [italics added] conduct an
evidentiary hearing to determine if duress had, in fact occurred
during the time the separation agreement was signed. Casto v.
Casto, 508 So. 2d330, P. 302[D] Fla. 1987
As evidence in
support of the duress that Daniel suffered, she now submits the
attached letter from her therapist, Tmira Rin, LICSW. The letter
states that Daniel has been diagnosed with PTSD and “continues to
worry about losing her home and being incarcerated.”
DURESS WAS
INFLICTED BY FRISOLI ACTING AS AGENT FOR HUSBAND
“Duress
consists in actual or threatened violence or imprisonment;
the subject of it must be the contracting party himself, or his wife,
parent, or child; and it must be inflicted or threatened by the other
party to the contract, or else by one acting with his knowledge and
for his advantag.”
According to an
Agreement dated March 1, 2006 and signed by Frisoli, Nickse and
Attorney Brown, Nickse was obligated to remove his name from the deed
in order to facilitate the sale of the marital property. In return,
Frisoli would cause the property to be sold, after which he would pay
Nickse $250,000 from the proceeds of the sale. Accordingly, from that
date forward, all of Frisoli’s efforts to sell the property,
including the duress inflicted upon Daniel, was accomplished while
acting as agent for the benefit of both his client, Vera Lee and the
Plaintiff, Robert Nickse. Whether Nickse knew or not that Frisoli was
threatening Daniel with incarceration, this Agreement granted to
Frisoli Nickse’s cooperation “in any action required”. Where
Frisoli was acting as agent for Nickse, all of the threats Frisoli
was making to Daniel were effectively being made by Nickse and all
the duress was being caused by Nickse.
On March 2, 2006,
Frisoli wrote a letter to Daniel (Ex. 8, Motion to Set Aside)
informing her that “pursuant to the Agreement for Judgment reached
by Mr. Nickse and my client” he (Frisoli) would be holding a
Sheriff’s sale of the marital property. Further he threatened
Daniel with “sanctions” in Gloucester District Court. In fact,
two months later he made good on his threat of sanctions by causing
Daniel to be incarcerated at MCI Framingham.
THE
ONGOING NATURE OF INTENTIONAL INFLICTION OF DURESS
With
Daniel’s bankruptcy filing on October 31, 2013 the automatic stay
was imposed, thus causing Frisoli to suspend his efforts. Both Lee
and Nickse were listed as creditors in Daniel’s bankruptcy. Shortly
thereafter, Nickse and Lee both filed Adversary Complaints contesting
dischargeability. Included in Daniel’s response to the Nickse
Complaint, Daniel raised arguments based on the same claims as stated
in her Motion. On June 9, 2015, the Honorable justice William Hillman
of the eastern Division of the Bankruptcy Court issued a decision
ordering this matter to be referred to the probate court for
resolution. Within that decision, Justice Hillman notes with respect
to the Separation Agreement, that Nickse never filed an action to
enforce the Separation Agreement. “To the contrary, the phrase
‘unless the parties mutually agree otherwise’ contemplates, as
the Debtor correctly notes, that the marital residence may not be
sold within one year. Since Nickse never moved to compel the sale of
the marital residence in the almost six years between the divorce
judgment becoming final and the debtor’s bankruptcy petition, I
infer that he and the debtor must have ‘agreed otherwise.’”
(See Decision of Justice Hillman, attached hereto) The defendant
contemplates that the plaintiff will argue that Daniel’s Motion is
untimely and that her allegation of duress and unconscionablity as to
the terms of the Separation Agreement and should have been brought
long before this date. Daniel’s Motion is admittedly only being
brought now due to Nickse’s complaint for contempt seeking
enforcement of settlement Agreement’s requirement for the sale of
the house. It is not Daniel who is tardy in seeking relief, but
rather it is Nickse who has sat on his rights for over six years.
According to Judge Hillman’s position as stated above, Daniel was
reasonable in relying on Nicks’s inaction as a tacit consent to the
delay.
It
was only with the filing of Nickse’s Complaint that Daniel once
again became a victim of the threats of incarceration and was in fear
of losing her home. (Ex. 19, Motion to Set Aside) For the above
stated facts, under the circumstances, this Motion has been brought
within a “reasonable”period of time under Rule 60 (b)(6).
On
October 27, 2015,
permits "an
independent action . . . to
set aside a
judgment for fraud upon the court." In our jurisprudence, "fraud
on the Court"
is a term of art with a stringent definition. Matter of the
Trusts Under the
Will of Crabtree, 449 Mass. 128
<http://masscases.com/cases/sjc/449/449mass128.html>
, 148 (2007). "A
'fraud on the
court' occurs where it can be demonstrated, clearly and
convincingly,
that a party has sentiently set in motion some unconscionable
scheme calculated
to interfere with the judicial system's ability
impartially to
adjudicate a matter by improperly influencing the trier or
unfairly
hampering the presentation of the opposing party's claim or
defense."
Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596
<http://masscases.com/cases/sjc/418/418mass596.html>
, 598 (1994), quoting
from Aoude v.
Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).
"Examples of
'fraud on the Court' include 'bribery of judges, employment of
counsel to
"influence" the court, [and] involvement of an attorney (an
officer of the
court) in the perpetration of fraud.' " Will of Crabtree,
supra at 149,
quoting from MacDonald v. MacDonald, 407 Mass. 196
<http://masscases.com/cases/sjc/407/407mass196.html>
, 202 (1990). "A
party's
nondisclosure to an adverse party . . . or to the court . . . of
facts pertinent
to a controversy before the court, without more, does not
amount to 'fraud
on the court' for purposes of vacating a judgment under
rule 60(b)."
Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces
'only that
species of fraud which does, or attempts to, defile the court
itself, or is a
fraud perpetrated by officers of the court so that the
judicial
machinery can not perform in the usual manner its impartial task of
adjudging cases
that are presented for adjudication.' " Id. at 35-36,
quoting from Pina
v. McGill Dev. Corp., 388 Mass. 159
<http://masscases.com/cases/sjc/388/388mass159.html>
, 165 (1983).
ii. Fraud on the
court. Rule 60(b) permits "an independent action . . . to
set aside a
judgment for fraud upon the court." In our jurisprudence, "fraud
on the Court"
is a term of art with a stringent definition. Matter of the
Trusts Under the
Will of Crabtree, 449 Mass. 128
<http://masscases.com/cases/sjc/449/449mass128.html>
, 148 (2007). "A
'fraud on the
court' occurs where it can be demonstrated, clearly and
convincingly,
that a party has sentiently set in motion some unconscionable
scheme calculated
to interfere with the judicial system's ability
impartially to
adjudicate a matter by improperly influencing the trier or
unfairly
hampering the presentation of the opposing party's claim or
defense."
Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596
<http://masscases.com/cases/sjc/418/418mass596.html>
, 598 (1994), quoting
from Aoude v.
Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).
"Examples of
'fraud on the Court' include 'bribery of judges, employment of
counsel to
"influence" the court, [and] involvement of an attorney (an
officer of the
court) in the perpetration of fraud.' " Will of Crabtree,
supra at 149,
quoting from MacDonald v. MacDonald, 407 Mass. 196
<http://masscases.com/cases/sjc/407/407mass196.html>
, 202 (1990). "A
party's
nondisclosure to an adverse party . . . or to the court . . . of
facts pertinent
to a controversy before the court, without more, does not
amount to 'fraud
on the court' for purposes of vacating a judgment under
rule 60(b)."
Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces
'only that
species of fraud which does, or attempts to, defile the court
itself, or is a
fraud perpetrated by officers of the court so that the
judicial
machinery can not perform in the usual manner its impartial task of
adjudging cases
that are presented for adjudication.' " Id. at 35-36,
quoting from Pina
v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).
IV. ANALYSIS OF
RULE 60(B) Rule 60(b) strikes a balance between finality of judgments
and fairness in the proceedings.92 It implicates the court’s
institutional integrity and enables the court to manage its own
affairs. As a result, a court can raise it sua sponte. As discussed
in section A(iii), protecting against fraud is an inherent power of
the court.93 Consequently, it is grounds for relief from judgment
under both 60(b)(3) and 60(b)(6).94 Rule 60(b)(3) codifies an
“‘historic power of equity to set aside fraudulently begotten
judgments’. . . . [which] is necessary to [uphold] the integrity of
the courts . . . .”95 Protecting against fraud under this rule is
the same as the court’s ability to impose sanctions through its
Rule 11-like power.96 If courts can exercise their inherent powers
sua sponte, and these powers are codified matters capable of judicial
determination. Its enforcement is essential to the maintenance of
social order; for, the aid of judicial tribunals would not be invoked
for the vindication of rights of person and property, if, as between
parties and their privies, conclusiveness did not attend the
judgments of such tribunals in respect of all matters properly put in
issue and actually determined by them. 91 See FED. R. CIV. P. 12(h).
92 R.C. by Ala. Disabilities Advocacy Program v. Nachman, 969 F.
Supp. 682, 690 (M.D. Ala. 1997); see also Drake v. Dennis, 209 B.R.
20, 28 (S.D. Ga. 1996). 93 Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
238 (1944)); see also United States v. Buck, 281 F.3d 1336, 1339
(10th Cir. 2002); Abdur’Rahman v. Bell (In re Abdur’Rahman), 392
F.3d 174, 193 (6th Cir. 2004) (Siler, J., dissenting). 94
Fraud upon the
court is extended to officers of the court, and when an attorney
exerts improper influence on the court “the integrity of the court
and its ability to function impartially is directly impinged.” R.C.
by Ala. Disabilities Advocacy Program, 969 F. Supp. at 691 (citing
Broyhill Furniture Indus., Inc. v. Craftmaster Furniture Corp., 12
F.3d 1080, 1085-86 (Fed. Cir. 1993)).
In addition,
although 60(b)(3) seems to cover fraud, it only concerns fraud of an
adverse party. See FED. R. CIV. P. 60. Rule 60(b)(6), on the other
hand, has very broad language: “any other reason justifying relief
from the operation of the judgment.” FED. R. CIV. P. 60. However,
there are some limitations. A motion under this subsection cannot be
based on any other clauses under section (b). Drake, 209 B.R. at 27.
Therefore, fraud of an adverse party is not actionable under
60(b)(6). A sub-species of 60(b)(6), fraud upon the court, is
subsumed in the broad language of 60(b)(6). 95 Chambers, 501 U.S. at
44 (quoting Hazel-Atlas Glass Co., 322 U.S. at 238). 96 See R.C. by
Ala. Disabilities Advocacy Program, 969 F. Supp. at 690. The fraud
dealt with in Rule 11, in the inherent power to sanction discussed in
Section III(iii), and in 60(b), is the same type of fraud; thus, the
same issues of institutional integrity.
UNDISCLOSED SIDE
AGREEMENT
Where a lawyer is
aware that the parties have entered into an undisclosed side
agreement, it would constitute unethical conduct to present to the
court a separation agreement containing a provision that no other
agreements or promises exist or that no oral statement or written
matter extrinsic to the agreement will have any force or effect. Such
conduct would violate the duty of candor owed to the court under
Mass. R. Prof. C. 3.3(a)
Comment [2] to
this rule provides that there are circumstances where failure to make
a disclosure can be the equivalent of an affirmative
misrepresentation. In such a situation, the lawyer should attempt to
persuade the client to reveal the existence of the side agreement. If
the client refuses, the lawyer must refuse to present the separation
agreement with the false representation to the court. See Mass. R.
Prof. C. 3.3(a)(4)
