COMMONWEALTH of MASSACHUSETTS
PROBATE AND FAMILY COURT
ESSEX, ss DOCKET NO. 04D 1906-DVI
Robert Paul Nickse,
Jane C. Daniel,
DEFENDANT’S MOTION to SET ASIDE DIVORCE as to SEPARATION AGREEMENT
of the PARTIES and REQUEST for IMMEDIATE INJUNCTIVE RELIEF
The extraordinary case at hand has a ten-year procedural history including an unrelated but relevant collection action ongoing in another court. Rulings in said action were improperly used behind the scenes in the probate court, to influence the outcome of divorce proceedings in order to favor the Husband. A third-party Judgment creditor, Vera Lee (hereinafter “Lee”) held a $22 million Award against the Wife.1 Lee was represented by Frank Frisoli (hereinafter “Frisoli”) whose intent to collect on the Award coincided with the Husband’s intent to maximize his share of the marital assets in the divorce. The two entered into a written Agreement wherein the Husband assigned to the judgment creditor his interest in the marital property. In exchange, the judgment creditor agreed pay the Husband $250,000 upon the sale of the marital property, thereby acting as agent for the Husband in the divorce proceedings. Attorney Frisoli had recently had the Wife incarcerated for failure to make payments, thus he held an extraordinary power to apply extreme duress on the Wife. Together, the Husband and Frisoli planned to sell the marital property during the pendency of the divorce proceedings, outside the oversight of the Probate Court. When that effort failed, using a stayed 20-day prison sentence obtained in the other court, the judgment creditor and the Husband hammered the Wife into accepting a grossly inequitable divorce agreement, against her own free will, that favored both of them.
Jane Daniel (hereinafter the “Wife” or “Daniel”) and Robert Nickse (hereinafter the “Husband” or “Nickse”) were married on December 24,1998. The Husband vacated the marital property in December, 2002. The divorce proceedings began routinely — a brief four-year marriage, with a clear and unequivocal record of the assets/liabilities of the parties.
Nickse filed for divorce on 10/25/04. Within days, the judgment creditor’s attorney stepped into the middle of the divorce proceedings by bringing suit in Middlesex Superior Court. (No. 04-4428) against Daniel and Nickse, (Ex.1) for fraudulent conveyance for the tenancy by the entirety on the marital property. From that point forward the lawful divorce process derailed.
The claim was dismissed with prejudice, but at the end, on 3/1/06, Nickse, his attorney Orestes Brown, (hereinafter “Brown”) and Frisoli signed an Agreement for Judgment. (Ex.3)
This Agreement was the blueprint for an unconscionable scheme to perpetrate a Fraud on the Court by hastily selling the primary marital asset, the marital home, (then under Rule 411) outside the oversight of the probate court. (Ex.4, pg. 69, lines 19-24; 70, lines 1-4) This side agreement was never disclosed by Nickse, a violation of Rule 410, Mandatory Self Disclosure.
Per the Agreement, Nickse disclaimed any interest in the Hovey Street property [a violation of Rule 411] (Ex.3, no. 4, 6, 7). In return, Nickse would receive 30% up to $250,000 from the proceeds of the sale of the Property. Frisoli would handle the sale. (Ex.3, no.3, 9)
Through the execution of this Agreement, Frisoli became Nickse’s agent, a unique asset with extraordinary power to inflict duress on the Wife by obtaining rulings against Daniel in an unrelated case in another court.
Frisoli had begun Supplementary Process proceedings in Gloucester District Court on 7/25/05 and had obtained a monthly Payment Order for $2,000 that Daniel could not afford. (Exhibit 5, pg. 2) In return for his services as “enforcer”, Frisoli received from Nickse a warrantee that he (Nickse) “will not, without the prior consent of Vera Lee (which consent may be granted or withheld in her sole discretion) occupy said property in the future as his primary residence…” (Ex. 3, no.5) thereby contractually closing the door on any reconciliation between the parties and ensuring that Frisoli’s plan to sell the marital property would go forward.
In furtherance of the scheme to hastily sell the marital property, on 3/2/06, a Quit Claim was filed, signed by Nickse, notarized by his attorney Orestes Brown and stamped for return to Frank Frisoli. (Ex. 6) Daniel filed a Disclaimer. For months Frisoli initiated a series of maneuvers in an attempt to remove Nickse’s name from the deed in order to ready the Property for a quick sale, as detailed the Complaint in Equity. (Ex.7)
The Complaint in Equity filed on 6/7/06 by Daniel’s attorney, Anthony Porcello, (hereinafter “Porcello”) challenged the Agreement for Judgment and stated, “The purpose of the transfer by [Nickse] was to circumvent the divorce process and permit [Nickse] to obtain assets out of the marriage that he would not otherwise obtain under M.G.L. c. 208, s. 34. (Exhibit7, pg.2, no.12)
On 3/2/06 Frisoli wrote Daniel that she was behind in her payments, threatened to seek “sanctions”, and stated he would be holding a Sheriff’s sale on the marital property in two weeks [a violation of Rule 411] if she didn’t “resolve the matter of the balance of approximately $23 million which is owed on the execution.”(Ex. 8,bottom pg.1)
On 5/5/06 Frisoli made good on his threatened “sanctions” by procuring a Contempt Order from Gloucester District Court (Ex.5). Daniel was sentenced to serve 10 days in MCI Framingham, a traumatic experience that left her particularly vulnerable to further threats of imprisonment. (Ex. 9)
More than two years into the divorce process, substantial discovery had been completed and the divorce remained contested with respect to the appropriate division of the marital estate. The relative financial positions of the parties had undergone a drastic change.
At the time of the marriage, the Husband had income consisting solely of a monthly $600 SSDI check. In his deposition, he characterized himself as a “kept man.”(Ex. 10, p. 25, line 21)
In contrast, the Wife owned a home (hereinafter the “Hovey Street property”) which she purchased for $500,000, with a $200,000 down payment and subsequently paid, from her own funds, all the principal, interest, taxes, insurance, most of the household operating expenses, plus approximately $100,000 in renovations.
At the time of the divorce, however, the relative financial positions of the parties had completely reversed. The Husband had minimal liabilities and had recently inherited assets with a value in excess of ¾ million dollars. (Ex. 11)
The Wife, conversely, was insolvent, subject to a $33 million-plus-interest adverse Judgment. Her publishing business was in ruins from the lawsuit and she was relying on income from renting rooms in her home and monthly Social Security payments of approximately $550. Her sole asset was her yet-to-be-determined share of the marital home.
Porcello filed “Defendant’s 2nd Pre-Trial Memorandum” on 2/26/07, which states, “Defendant contests that she should be required to share any of her assets with the [Husband].” (Ex. 12)
On 12/20/06 the Probate Court ruled that Daniel’s Complaint in Equity 06E 0061-GC1 would be consolidated for trial with 04D 1906-DV1, assuring that the improper Agreement for Judgment would be scrutinized by the Probate Court. (Ex. 13) A trial, which Nickse, Brown and Frisoli ultimately thwarted, would have provided Daniel the opportunity to present her meritorious case in court. Conversely, the fact that this improper agreement was scheduled to be reviewed by the Court, provided good reason for the parties to the agreement to avoid a Trial.
Frisoli’s attempt to sell the marital property before the Court had a chance to order an equitable distribution was running out of time. On 3/28/07, the divorce was set for Trial on July 24, 2007 and all Sec. 34 issues remained contested. (Exhibit 14)
On 7/19/07, five days before the scheduled contested Trial, Frisoli obtained another Mittimus against Daniel, from Gloucester District Court, this time for 20 days incarceration. Frisoli requested a stay until 8/16/07, three weeks after the divorce Trial date. (Ex. 5)
On the eve of Trial, Daniel went to her lawyer’s office to prepare for what she had expected would be a contested divorce and learned that there was a proposed Settlement Agreement, engineered by Nickse and Frisoli without Daniel’s participation, that would require the Wife to give her husband 30% of the proceeds from the sale of her home, up to $250,000. This was the same formula for division of the marital property as in the Nickse/Frisoli Agreement for Judgment.
Moreover, Porcello told her, he had received a phone call from Frisoli stating that he would use his Mittimus to have her incarcerated if she refused to assent to the proposed terms of the Separation Agreement.
Daniel asked Porcello, “Do you think this is a bluff?”
Porcello responded, “I think if you don’t sign, you’re going to jail.”
On the day of the Trial, Daniel with her lawyer, and Nickse with his, sat at a table in the Clerk’s office. Daniel was shown for the first time the final version of the Separation Agreement she was to sign, giving her husband 30% of the proceeds from the sale of the house, up to $250,000, with the house to be sold within one year. Daniel could lose both her home and her livelihood within the next twelve months. (Ex. 15)
Daniel entered the courtroom frozen with fear. When the judge asked her if she had signed the Separation Agreement of her own free will, to avoid imprisonment, she replied the only way she could. She answered, “Yes.”
Years later, while preparing for this action, Daniel saw for the first time the joint “Motion to Convert Divorce Proceedings to a Joint Petition Pursuant to M.G.L. 208 Sec 1A” filed on July 24, 2007. (Ex. 16) It states, [after] “extensive negotiations by the parties represented by counsel, the parties have reviewed the Separation Agreement and are satisfied it is fair and reasonable… [and] an equitable division of the marital estate.” It is signed by Porcello and Brown. This pivotal document contained intentional misrepresentations directed at the Court to mislead the Court into believing that the Separation Agreement of the parties had been accepted by both parties after being fully and fairly negotiated. It was perpetrated for the sole purpose of avoiding a trial on the merits.
The barrage of threats from Frisoli did not end with the divorce. The real estate bubble burst in 2007, just as Frisoli was attempting to sell the Hovey Street property at the grossly inflated price of $1.8 million. Frisoli’s threats of imprisonment continued unabated in dozens of letters and emails to Daniel as he struggled to sell the overpriced Property in a collapsed marketplace.
On 4/17/2012, in Gloucester District Court, Daniel was sentenced to 20 days at MCI Framingham. (Ex. 17) She served the entire sentence.
Daniel’s Settlement Agreement with Vera Lee, dated 8/16/07, contained a provision that Daniel could not file bankruptcy. (Ex. 18,line 1) Daniel relied on that prohibition until she met Bankruptcy attorney Peter Kaplan and learned that the provision was unenforceable.
Daniel’s Bankruptcy filing on 10/31/13, with its automatic restraint on creditors’ collection actions, halted Frisoli’s threats and freed Daniel, for the first time since the divorce, from the fear of incarceration. The Bankruptcy action sought to discharge both Nickse and Lee. The Nickse matter was referred to the Probate Court for resolution. The Lee matter is pending.
Brown’s firm, Metaxas Brown, picked up where Frisoli left off at the time of the Bankruptcy filing. Metaxas Brown has filed a Contempt action and sought an Order for the sale of the Hovey Street property, the control of which was acquired by fraud. Metaxas Brown has continued the threats to the present time. (Ex. 19)
The Hovey Street property has been placed in the hands of a Special Master and, on information and belief, there is currently an offer to purchase.
This case rises to a very high level of egregiousness in that it involved not one, but two, Officers of the Court who colluded with the Husband to perpetrate an elaborately orchestrated Fraud on the Court. The improper activities comprised not one or two events, or even a month of reprehensible conduct, but rather a decade of knowing and intentional misconduct, buttressed by a decade of knowing and intentional infliction of duress on the Wife, in order to secure her submission to their wrongful purposes.
Fraud on the Court carries no statue of limitations, however an action seeking relief must be brought in a timely manner. Given the extraordinary circumstance surrounding this case and the ongoing nature of the misconduct, this action is filed in a timely manner.
Allowing the Settlement Agreement to stand would constitute a grave miscarriage of justice.
The Wife, Jane Daniel, and her tiny publishing company, were sued by co-authors of a Holocaust memoire, Misha Defonseca and Vera Lee, for alleged breach of contract. In August, 2001, at the conclusion of an 11-day jury trial, the Court issued two awards, $22 million to the purported Holocaust survivor, $11 million to ghostwriter Vera Lee, totaling more than $33 million plus interest, the third largest award in the history of the Commonwealth. In 2008, Daniel exposed Defoseca’s tragic Holocaust tale as a hoax. Defonseca’s $22 million award was subsequently vacated by a Mass Appeals Court, which ruled that Defonseca had perpetrated “an extraordinary Fraud upon the Court.” (Ex. 2) Despite the Court’s finding that “the entire trial was infected by fraud,” the $11 million award to Vera Lee was allowed to stand; in her case the one-year statute of limitations under 60(b) (2) and (3) which might have granted relief, had expired before the hoax was discovered.