Opposition Brief — Behrman v. Behrman

Supreme Couri. U.S

oeon - 7)

MAY 28 1997

No. 86-1731.

JOSEPH F

In the a

Supreme Court of the United States.

OCTOBER TERM, 1986.

BRADLEY W. BEHRMAN,

PETITIONER,

VERONICA L. BEHRMAN,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

Respondent’s Brief in Opposition.

Paut D. MAGGIONI,

395 Washington Street,

Dedham, Massachusetts 02026.

(617) 326-9448

Counsel of Record

BATEMAN & SLADE. INC BOSTON, MASSACHUSETTS

L.)

Za)

Questions Presented.

Is there a deprivation of due process

when a defendant in a divorce action,

represented by Counsel in the Trial Court,

in response to a Motion for Costs filed in

accordance with Massachusetts General Law

Chapter 208, section 38, after being granted

one week to file a response did in fact

respond with a Memorandum in Opposition and

Cross-Motion for Counsel Fees nineteen (19)

days after the original Motion was filed?

Is there an unconstitutional

deprivation of due process when the Court

awards counsel fees on account of the

husband's numerous, duplicative and

non-meritorious pleadings?

Table of Contents

Opinions Below, Prior Orders of this

Court and Jurisdiction

Opinions and Judgments delivered in

Courts Below

Constitutional, Statutory and By-Law

Provisions

Statement of the case

Argument

I. No constitutional question was

raised by the Appellant in the

Courts below

II. The issues of fact determined

by the courts below foreclose

the petitioner's arguments

III. This Court has denied certiorari

cases raising the issues con-

cained in this petition

Conclusion

Addendum

12

15

17

19

ii.

Table of Authorities Cited

Cases

Caldwell v. Caldwell, 17 Mass. App. Ct.

1032 (1984) 10

Clifford v. Clifford, 354 Mass. 545

(1968) 5,9

Cummings v. National Shawmut Bank

of Boston, 284 Mass. 563 (1933) 7,10

Hayden v. Hayden, 326 Mass. 587

(1950) 9

Hyde v. Van Wormer, U.S. , 106

S. Ct. 403, 88 L.Ed.2d 355 (1985) 16

Meghreblian v. Meghreblian, 13 Mass.

App. Ct. 1021 (1982) 10

Pemberton v. Pemberton, 9 Mass. App.

Ct. 9 (1983) ' 10

Ross v. Ross, 385 Mass. 30 (1982) 10

State v. Ralph Williams' Northwest

Chrysler Plymouth, Inc., 553 P.2d

423, 87 Wash. 2d 298, cert. denied,

430 U.S. 952, 97 S. Ct. 1594, 51

L.Ed.2d 801 (1976) 16

iii.

Toepfer v. Department of Transportation,

FAA, 792 F.2d 1102 (Fed. Cir. 1986) 15

Statutes

Massachusetts General Laws

ec. 206, § 38 8,19

o. dass | OF 8

Court Rules

Massachusetts Appeals Court

Rule 1:28 20

Rules of Appellate Procedure

Rule 27 21

Rule 27.1 24

SUPREME COURT OF THE UNITED STATES

7

October Term, 1986

No. 86-1731

BRADLEY W. BEHRMAN,

Petitioner,

V.

VERONICA L. BEHRMAN,

Respondent,

On Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

BRIEF FOR RESPONDENT IN OPPOSITION

2.

Opinions Below, Prior Order of this Court

and Jurisdiction

These matters are set forth in the Petition.

Opinions and Judgments delivered in Courts

Below

The decision of the Appeals Court dated

November 28, 1986 affirming the judgment of

the Trial Court was reported in 23 Mass.

App. Ct. 1104 (1986).

The decision of the Supreme Judicial Court

dated January 28, 1987 denying Further

Appellate Review was reported in 399 Mass.

1101 (1987).

Constitutional, Statutory and By-Law

Provisions

The relevant constitutional, statutory and

rules of -ourt provisions are set out in the

addendum.

3.

Statement of the case

On May 9, 1983 the Respondent commenced

this action for Divorce. On October 3, 1985

Judgment Nisi incorporating agreements dated

August 12, 1985 and August 14, 1985 was

entered together with the further order

allowing the Respondent's Motion for Counsel

Fees. On October 23, 1985 the Petitioner

filed his notice of appeal of the award of

Attorneys fees to the Massachusetts Appeals

Court.

The Respondent at the trial filed her

Motion for Counsel Fees, Affidavit of

Counsel as to time and charges and

Memorandum in Support of Motion for Counsel

Fees. Following receipt of Petitioner's

Memorandum dated September 4, 1985, the

Respondent filed a further statement in

response to the Petitioner's Memorandum,

4.

This case involves the exercise by the

Trial Court Judge of a statutory power to

award counsel fees. The statute General

Laws Chapter 208, section 38 gives the Judge

discretion to award costs and expenses to

either party or his or her counsel whether

the marital relationship has been terminated

Or not.

The statute is silent on the requirements

for notice, formality of hearing and form of

judgment.

The standard of review in the State

Appellate Court has evolved into well

defined criteria and procedures of which the

petitioner's counsel in the Court below was

well aware and followed.

The respondent's Motion for Counsel Fees

was presented to the Court following two

days of negotiated settlement prior to

tciel.

5.

Counsel for the petitioner was afforded

one week to file any desired response to the

Motion for Counsel Fees and did in fact

Submit a thirteen (13) page Memorandum in

Opposition to respondent's Motion together

with a cross-motion for counsel fees which

was not allowed.

Review of the decision of the Probate

Court by the Appeals Court is limited to

questions of law and the trial court's award

ordinarily must stand unless incommensurate

with an objective evaluation of the services

performed. Clifford v. Clifford, 354 Mass.

545, 548 (1968).

The petitioner while represented by

counsel made no motion, effort or attempt to

request a hearing on the issue of counsel

fees.

6.

The Trial Judge who presided at most of

the pre-trial motions in this case was

uniquely qualified to evaluate the quality

and quantity of the petitioner's motions,

The petitioner's statement (B.4-5)

supports the statement that petitioner some

twenty (20) days after the respondent's

motion was filed through his counsel filed

both his Memorandum and Motion for Counsel

Fees.

The determination of the Trial Judge

was made after presentation to him of

Affidavits of Counsel documenting legal

costs and expenses in excess of $9,600. The

award by the Judge was $1,425. The

petitioner's Motion for Counsel Fees

requested the Court to award a total of

$21,807.65 for the petitioner's counsel

fees.

ce

ARGUMENT

I. NO CONSTITUTIONAL QUESTION WAS RAISED BY

THE APPELLANT IN THE COURTS BELOW.

In the Trial Court, recognizing the

difficulty both Counsel and the Trial Court

have in addressing the issue of counsel

fees, the Massachusetts Courts many years

ago established certain ground rules for

determining counsel fees; and by statute it

has been left to the Trial Judges'

discretion whether or not to award such

fees.

The case of Cummings v National Shawmut

Bank, 284 Mass. 563, 569 (1933) was cited to

the Trial Judge by counsel for the

Respondent in a Memorandum supporting the

Motion for Counsel Fees.

The same case was cited by the Appeals

Court in the Memorandum accompanying its

summary dismissal.

8.

The case addresses the criteria to be

addressed by the Trial Judge.

The statutes G.L. C.208, s.38 Award of

Costs and G.L. C.23l, s.6F Costs for

Insubstantial or Frivolous Defenses set the

authority for the Trial Judge in his

discretion to make such award.

Here the Trial Judge certainly did

determine in very definite language his

reason for his award stating (A. 7-8):

"These fees are awarded primarily, but

not exclusively, on account of the

husband's numerous, duplicative, ‘and

non-meritorious pleadings. . ."

With respect to Counsel Fees the

Appellate Courts have so often defined the

rule, it is repeated here only as the

standard for analysis of the Trial Court

action.

9.

",..(T)he court now undoubtedly has power

to award costs and expenses, which may

include counsel fees and may order them

to be paid to counsel for the opposing

party."

Hayden v. Hayden, 326 Mass. 587, 594

(1950)

The amount awarded as counsel fees is

within the discretion of the court.

Clifford v. Clifford, 354 Mass. 545, 548

(1968)

"As long as the amount awarded is not

incommensurate with an objective

evaluation of the services performed, and

Our inspection of the record shows it was

not, ~(t)he award...may be presimed to be

right and ordinarily ought not to be

disturbed." (citations omitted)

10.

Ross v. Ross, 385 Mass. 30, 38-39 (1982)

"The award, of course, is not to be

changed unless an abuse of discretion on

the Judge's part is evident from a

demonstration that the amount set is

clearly incommensurate with an objective

evaluation of the services performed."

Pemberton v. Pemberton, 9 Mass. App. Ct.

9, 16 (1983)

The criteria to be applied have been

enunciated in the case of Cummings v.

National Shawmut Bank of Boston, 284 Mass.

563, 569 (1933) and repeated in Pemberton.

Because the decision of the probate Judge

involves an exercise of judgment,in the

application of variables, it will be

entitled to a large measure of respect on

review."

Pemberton, supra at P. 17

Meghreblian v. Meghreblian, 13 Mass. App.

Ct. 1021, 1023-1024 (1982).

Caldwell v. Caldwell, 17 Mass. App. Ct.

1632, 1035 (1984).

ll.

The record in the Appeals Court indicated

that the Trial Judge allowed as chargeable

counsel fees an amount equivalent to

approximately 15% of the Plaintiff's actual

counsel fees and stated that the award was _

made because of numerous, duplicative and

non-meritorious pleadings which included

repeated motions to take the child out of a

parochial school and place the child ina

public school (which Judge Kopelman denied),

repeated motions to reduce child support,

terminate child support, establish criteria

for custody and the like which were, with

few exceptions, all previously addressed by

the same Trial Judge.

_Addressing solely the issue of costs, the

Trial Court followed every standard

prescribed by the Appellate Courts of

Massachusetts.

2.

With all due respect to the Appellant's

desire to prolong the litigation, the

Appeals Court determined that there was no

error of law and accordingly there was no

basis for appellate review and the Supreme

Judicial Court agreed.

II. THE ISSUES OF FACT DETERMINED BY THE

COURTS BELOW FORECLOSE THE PETITIONER'S

ARGUMENTS.

The Petitioner-Appellant attempts to

raise an issue of due process by claiming

denial of a hearing.

The Appeals’ Court decision stated simply

"We note also that in such cases as this,

the Judge is not required to hold an

evidentiary hearing."

13.

The cases cited by the Appeals Court

refer to circumstances similar to this case

where the Trial Judge was at least as

familiar with the facts of the case as were

counsel and also the parties.

In truth, the Petitioner on the Motion

for Counsel Fees was represented by counsel

and so stated in his brief (B-4).

"On September 4, 1985, Defendant

responded with a Motion of Defendant for

Counsel Fees accompanied by a Memorandum

in opposition to Plaintiff's Motion and

in support of his motion."

Not only was Petitioner represented by

Counsel who took twenty (20) days to respond

to the Motion for Counsel Fees when the

Trial Judge suggested one week; but he also

submitted a Motion for Petitioner-Husband's

counsel fees which were more than double the

Respondent-Wife's Motion for Counsel Fees,

14.

Because of the arguments raised by the

Petitioner's opposition brief, Counsel for

the Respondent-Wife was allowed to file a

reply brief; and only after both parties no

longer requested further hearings, did the

Trial Judge rule on the Motion. The Ruling,

dated October 3, 1985, indicates that

twenty-nine days elapsed from the time

Petitioner's counsel filed his brief and

forty-nine days elapsed from the time the

original Motion for Costs was submitted.

Not only was Petitione: represented by

counsel, not only did counsel raise every

issue Petitioner now contends he should have

had the opportunity to raise, but almost

seven (7) weeks transpired during this

period of time Petitioner contends he was

not allowed to contest the Motion,

15.

The fact that was obvious to the Trial

Judge, the Appeals Court, the Supreme

Judicial Court and virtually everyone save

the Petitioner was that he did contest the

Motion and having taken his best shot he

still lost.

III. THIS COURT HAS DENIED CERTIORARI TO

CASES RAISING THE ISSUES CONTAINED

IN THIS PETITION.

Lower Courts have routinely determined

that there is no denial of due process where

there is no hearing on the issues of costs.

Toepfer v. Department of

Transportation FAA, 792 F2d 11902,

1103 (Fed. Cir. 1986)

16.

"To require a Hearing for the

assessment of such damages and

costs would impose on the opposing

party and on the Court an even

greater burden in dealing with a

frivolous appeal and defeat the

purpose of Rule 38. See e.g.,

Hyde v. Van Wormer, i

106 S. Ct. 403, 88 L.Ed.2d 355

(1985). (Supreme Court awarded

damages under its Rule 49.2 without

a hearing)."

Very few of such cases rise to the

certiorari level. One such case which

did and in which certiorari was denied

is:

State v. Ralph Williams' Northwest

Chrysler Plymouth, Inc., 553 P.2d

423, 87 Wash. 2d 298, cert. denied,

430 U.S. 952, 97 S.Ct. 1594, 51

L.Ed.2d 809 (1976).

17.

Conclusion

For the foregoing reasons, this Petition

for a Writ of Certiorari should be denied.

Respectfully submitted,

PAUL D. MAGGIONI

Counsel of Record

395 Washington Street

P.O. Box 505

Dedham, Massachusetts 02026

(617) 326-9448

19.

ADDENDUM

Massachusetts General Laws

Chapter 208

208.38. Costs.

Section 38. In any proceeding under this

chapter, whether original or subsidiary, the

court may, in its discretion, award costs

and expenses, or either, to either party,

whether or not the marital relation has

terminated. In any case wherein costs and

expenses, or either, may be awarded

hereunder to a party, they may be awarded to

his or her counsel, or may be apportioned

between them,

20.

COURT RULES

APPEALS COURT RULES

Rule 1:28. Summary Disposition.

At any time following the filing of the

appendix (or the filing of the original

record) and the briefs of the parties on any

appeal in accordance with the applicable

provisions of Rules 14(b), 18 and 19 of the

Massachusetts Rules of Appellate Procedure,

a panel of the justices of this suit may

determined that no substantial question of

law is presented by the appeal or that some

clear error of law has been committed which

has injuriously affected the substantial

rights of an appellant and may, by its

written order, affirm, modify or reverse the

action of the court below.

2i.

The panel will provide an opportunity for

Oral argument before disposing of criminal

cases under this rule but need not do so in

civil cases. Any order entered under this

rule shall be subject to the provisions of

Rules 27 and 27.1 of the Massachusetts Rules

of Appellate Procedure.

RULES OF APPELLATE PROCEDURE

Rule 27. Petition for Rehearing.

(a) Time for Filing; Content; Answer;

Action by Court if Granted. A petition for

rehearing should be filed with the clerk of

the appellate court within fourteen days

after the date of the rescript unless the

time is shortened or enlarged by order. It

shall state with particularity the points of

law or fact which it is.contended the court

has overlooked or misapprehended and shall

contain such argument in support of the

petition as the petitioner desires to

22.

present. Oral argument in support of a

petition will not be permitted, except by

order of the court.

No answer to a petition for rehearing

will be received unless requested by the

appellate court but a petition for rehearing

will ordinarily not be granted in the

absence of such a request. If a petition

for rehearing is granted the appellate court

may make a final disposition of the cause

without reargument or may restore it to the

calendar for reargument or resubmission or

may make such other orders as are deemed

appropriate under the circumstances of the

particular case. Action upon a petition is

wholly in the discretion of the full court;

and the court may award costs, including a

reasonable attorney's fee to the prevailing

party.

23.

(b) Form of Petition; Length. The

petition shall be in a form of a letter to

the chief justice of the Appellate Court

with seven clear and legible copies, and

additional copies shall be mailed by first

class mail or delivered to all other

counsels. Except by permission of the

court, a petition for rehearing shall not

exceed ten pages of standard typewritten

material.

(c) Revision of Decision. Upon

consideration of a petition for rehearing, a

Majority of the justices of the appellate

court may in writing order a decision of the

court (or a panel thereof) to be reviewed

and revised by a majority of the justices of

the court.

24.

Rule 27.1. Further Appellate Review.

(a) Application; When Filed; Grounds.

Within twenty days after the date of the

rescript of the Appeals Court any party to

the appeal may file an application for leave

to obtain further appellate review of the

case by the full Supreme Judicial Court.

Such application shall be founded upon

Substantial reasons affecting the public

interest or the interests of justice. Oral

argument in support of an application shall

not be permitted except by order of the

court.

(b) Contents of Application; Form. The

application for leave to obtain further

appellate review shall contain, in the

following order:

25.

(1) a request for leave to obtain further

appellate review; (2) a statement of prior

proceedings in the case; (3) a short

statement of facts relevant to the appeal

(but facts correctly stated in the opinion,

if any, of the Appeals Court shall not be

restated); (4) a statement of the points

with respect to which further appellate

review of the decision of the appeals court

is sought; and (5) a brief statement

(covering not more than ten pages of

typing), including appropriate authorities,

indicating why further appellate review is

appropriate. A copy of the rescript and

opinion, if any, if the Appeals Court shall

be appended to the application. The

application shall comply with the

requirement of Rule 20.

26.

(c) Opposition; Form. Within ten days

after the filing of the application, any

other party to the appeal may, but need not,

file and serve an opposition thereto

(covering not more than ten pages of typing)

setting forth reasons why the application

should not be granted. The opposition shall

not restate matters described in subdivision

(b) (2) and (3) of this rule unless the

opposing party is dissatisfied with the

statement thereof contained in the

application. An application shall comply

with the requirements of Rule 290.

(d) Filing; Service. One copy of the

application and one copy of each opposition

shall be filed in the office of the clerk of

the Appeals Court. Fourteen copies of the

application, and fourteen copies of each

a7.

Opposition shall be filed in the office of

the Clerk of the full Supreme Judicial

Court.

Filing and service of the application

and of any opposition shall comply with

Rule 13.

(e) Order of Further Appellate Review;

Certification. If any three justices of the

Supreme Judicial Court shall sign an order

for further sui cae review for substantial

reasons affecting the public interests of

justice, or if a majority of the justices of

the Appeals Court or a majority of the

justices of the Appeals Court deciding the

case shall certify that the public interest

or the interests of justice make desirable a

further appellate review, the order or

certificate, as the case may be, shall be

transmitted to the Clerk of the Appeals

Court; upon receipt, further appellate

review shall be deemed granted.

28.

The clerk shall forthwith transmit to the

clerk of the full Supreme Judicial Court all

papers theretofore filed in the case and

shall notify the clerk of the lower court

that leave to obtain further appellate

review has been granted.

(f) Any party may apply to the Supreme |

Judicial Court within ten days of the |

granting of further appellate review for

permission to file a separate or

supplemental brief in the Supreme Judicial

Court. If the application is send the

court may impose terms as to the length and

Filing of such brief and any response

thereto. If such permission is denied or

not sought, cases in which further appellate

review has been granted shall be argued on

the briefs and appendix filed in the Appeals

Court.