BESTSELLER!: DEFENDANT’S MEMORANDUM OF LAW

COMMONWEALTH of MASSACHUSETTS

PROBATE AND FAMILY COURT

ESSEX, ss DOCKET NO. 04D 1906-DVI

___________________________

Robert Paul Nickse,

Plaintiff

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 (10^th 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