# Opposition Brief — Lynch v. Flaherty > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1053%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2002 - **Citation:** 535 U.S. 930 ## Text ~UpTatue Court Uy. “ILER g @ No. 01-1038 i ae TN GT. ae QUESTIONS PRESENTED I. Is a constitutional issue which is not raised in the trial court preserved for review in the United States Supreme Court? II. Is a final judgment of a state court entitled to Full Faith and Credit in the courts of another state? II]. | Where a potential beneficiary receives notice of a state court proceeding and contacts that state court but then intentionally fails to appear in that proceeding, does the Full Faith and Credit clause preciude collateral attack of that court’s decree in another state? IV. Where collateral attack on a judgment is not available in the state rendering the judgment, can the judgment be collaterally attacked in another state? V. Even if the federal constitutional mandate to provide Full Faith and Credit does not require the courts of one state to enforce the judgment of another state, may a state provide a greater degree of Full Faith and Credit than is mandated by the constitution? Alternatively, may the second state enforce the judgment as a matter of comity or under its own local law? VI. Does due process preclude determining an issue solely on papers submitted to a court? Does due process require a court to hc!d a hearing or to issue a written opinion responding to every argument made by a party? VII. Is aclaim to be the administrator of an estate a property right protected by due process? ee ll VIII. Ifthe Petitioner could not possibly prevail, as a matter of law, upon a remand of the case, should this Court grant certiorari? TABLE OF CONTENTS Page QUESTIONS PRESENTED. ..........::cscescessessesscecescosseseescoseoss, i PRELIMINARY STATEMENT .....0...cccccccccccsccsssesccccoseoseose l PROCEDURAL HISTORY, ...cescescessessosscssessessessesvessescesseesess, l The Massachusetts Probate Proceeding .............ce.ceseseese... 2 The New York Surrogate’s SEE 3 The New York Divorce Action..........c.ccccccscescssesssoeeseosessss. 4 COUNTER-STATEMENT OF FACTS. ......ccccccccccccccccocosceee 6 THE MASSACHUSETTS PROCEEDING ........-ccccccccsooees-.. 6 THE NEW YORK SURROGATE’S AND APPELLATE BL RAN ae So a 8 PETITIONER’S POSITION IS A TANGLE OF FACTUAL DEFICIENCIES AND CONTRADICTIONG................. 8 PETITIONER’S CONFLICT OF IN1EPESTS ......00.0.......... 9 POINT I PETITIONER’S CONSTITUTIONAL CLAIMS WERE NOT PRESERVED FOR REVIEW.......--ccccc0s.-.. 11 POINT II THE POSSIBILITY OF BEING AN ESTATE FIDUCIARY IS NOT A PROPERTY INTEREST PROTECTED BY DUE PROCESS ....0.....ccccccscessesseesseee. 12 iv TABLE OF CONTENTS (Continued) Page POINT III PETITIONER CANNOT USE HIS OWN FAILURE TO PROPERLY RAISE HIS ARGUMENTS IN MASSACHUSETTS TO CREATE A DUE PROCESS CLAS neccsrcercocevceseecesesesvepensnassenedenbionsenniinionsinetastaventes 13 POINT IV PETITIONER’S FAILURE TO PURSUE AN APPEAL IN MASSACHUSETTS PRECLUDES HIS COLLATERAL ATTACK IN NEW YORK .................. 14 POINT V DUE PROCESS DOES NOT REQUIRE THAT A COURT HOLD A HEARING OR ISSUE A WRITTEN CI ION cccssnscoveoserssosconsinsasiiniitatninntoeersiiamiavenenmtvmaninineapinitien 15 POINT VI NEW YORK CORRECTLY GRANTED FULL FAITH AND CREDIT TO THE MASSACHUSETTS DETERMINATION; EVEN IF IT WERE INCORRECT IN DOING SO, THE SAME DETERMINATION WOULD BE REACHED UPON COMITY OR INDEPENDENT STATE LAW GROUNDS ALONE... 16 TABLE OF AUTHORITIES Page FEDERAL CASES Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028 (1997) .11 Baker v. General Motors Corporation, 522 U.S. 222, 118 S. Ct. 657, 139 L. Ed. 2d 580 CR Gata So ht, 18 Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 CEP ee ettinencnjiepsecdbiniolabididbiciatTieiidlad c. Secik ica 12 CSTE Sitinccionppnidatishoae gest SOIR A. 14 Greene v. WCI Holdings Corporation, 136 F.3d 313 (2nd Cir. 1998) certiorari denied 525 U.S. 983, 119 S. Ct. 448, 142 ce Se UE CO Gaihincha Galashinitlugstdie al 16 Greenwald v. Whalen, 609 F.2d 665 (2nd Cir. 1979) ......... 13 Grossman v. Axelrod, 646 F.2d 768 (2nd Cir. 1981) .......... 12 Loyd v. Loyd, 731 F.2d 393 (7th Cir. (ROR Ear 14 Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S. Ct. Cad, POE. Oe CE CO a 14 Neto v. Thorner, 718 F. Supp. 1222 (S.D.N.Y. 1989) ........ 16 Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. NIN shiek a a ae a OP 14 Tennessee v. Sizemore, 200 F.3d 373 (Sth Cir. 2000) ..14, 17 vi TABLE OF AUTHORITIES Page Neiman v. City of New York, 133 A.D.2d 743, 520 N.Y.S.2d FB CAG EGG. TSGT) cccovocresccoceseevevsevcepevevceoesevceseoeovencosooses 11 New York CPLR, 5401 ( P.3 ) Will of Brown, 120 Misc. 2d 799, 466 N.Y.S.2d 988 (Surr. Ct. indeticisbdedveimieueclishnitarnimmledvereer 15 Westchester Co. 1983) vii TABLE OF CONTENTS TO APPENDIX mee Page Appendix 1 — Letters From Dean Lynch to Mr. Frank, Dated March 29, 201 and to the Appellate Division, Dated March 29, 2001 ............ la Appendix 2 - Transcript of Proceedings Before Weiner, J., Rockland County Supreme Court, on January 11, 1996 ......cccccccscseccececcesesceseeces, 4a Appendix 3 — Affirmations of Joseph P. McGlinn, Sworm to June 16, 1998 and August 1, 2000 and Preliminary Report of Successor Guardian Ad Litem Orville H. Mann, Jr., Dated September 15, 2000.............cc000-. 28a Appendix 4 — Chronology of Key Events / Documents in the Estate Proceedings...................... 4la Appendix 5 — Letter From Dean Lynch to the Clerk — Middlesex Probate and Family Court, Dated November 16, 1998 ..........cccccccccccceceee. 45a Appendix 6 — Memorandum of Decision of Massachusetts Probate Court, Dated June 15, 1999 and Decree, Dated June 29, 1999........... 47a Appendix 7 — Affidavit of Richard W. Renehan, Sworn to January 14, 2002...........000.000.. 49a ae ecm cad PRELIMINARY STATEMENT Respondents, the executors of the estate of Deborah Lynch, respectfully submit this brief in Opposition to the application for a writ of certiorari by Petitioner, Dean Lynch, an attorney, appearing pro se. The Petition is without merit and, in fact, it is based on significant misstatements of both law and fact. This application for certiorari is founded upon four primary misapprehensions of the law by Petitioner. First, a party cannot create a due process claim by his own deliberate refusal to appear before a court. Second, no one has a “property right” to be the administrator of an estate and, hence, even if the remainder of Petitioner’s claims made any legal sense, there would be no constitutional issue presented because he was not deprived of any property right by the decisions below. Third, domicile is a question of fact, and a state has jurisdiction to oversee the probate of an estate if the decedent was domiciled there at the time of her death, irrespective of the decedent’s marital status, and irrespective of whether or not the state has personal jurisdiction over potentially interested parties. Fourth, a “limited appearance” relates to personal jurisdiction over a party. A potential objectant to a Will is not a party to a probate proceeding, and one who wishes to make a limited appearance must present actual evidence of the jurisdictional defect to the court — something which Petitioner failed to do. PROCEDURAL HISTORY There are two direct!» velewant legal proceedings here and a third of significance for the Court to completely understand Petitioner’s claims and motivations. The Massachusetts Probate Proceeding The first direct proceeding was the admission to probate in Massachusetts of a Will executed there on June 28, 1995 by Deborah Lynch, the decedent. ' At the time of her death, Ms. Lynch had been a domiciliary of Massachusetts for approximately two years. There is no question but that Petitioner received notice of the Massachusetts proceeding as he admits the same throughout his Petition. Petitioner claims to have made a special appearance in Massachusetts but that is a procedural non sequitur. Personal jurisdiction over Petitioner was, and is, irrelevant to whether or not the Will could be probated in Massachusetts. The only issues on a probate proceeding are the domicile of the decedent, and the presence or absence of the customary defenses of “lack of capacity” etc. ? Instead, of raising these arguments in court, Petitioner simply wrote to the Massachusetts court claiming (falsely) that Respondent’s Massachusetts counse] (when presenting the Will for probate) had misrepresented the decedent’s marital status. One presumes that Petitioner’s argument is that decedent (if still married to Petitioner at the date of her death) could not have a different domicile than his. ’ Decedent executed three Wills - December 1, 1993 (in Rhode Island), January 3, 1994 (in New Jersey) and June 28, 1995 (in Massachusetts). It is the third Will which was admitted to probate in Massachusetts. It is irrelevant for that purpose whether Massachusetts had personal jurisdiction in the /nternational Shoe sense overt Petitioner or over decedent’s minor daughter. In fact, New York (which Petitioner claims is the relevant State) allows a wife to have a different domicile than her husband's. 3 However, the decedent’s marital status is irrelevant both to domicile and to the jurisdiction of the probate court. The only relevant issue is where decedent was domiciled when she died. Petitioner does not deny that he received notice of the Massachusetts court’s intention to hold a hearing on the appropriate objections to probate of the decedent’s Will in that state. Nor does he deny that he deliberately failed to appear before that court to make his objections, such as they were.” The Massachusetts probate court, accordingly, admitted the 1995 Will to probate, finding that Petitioner had not made the appropriate objections. Significantly, Petitioner failed to appeal that decision and, under Massachusetts law, he cannot collaterally attack it. See Point IV. The New York Surrogate’s Proceeding Rather than appeal in Massachusetts, Petitioner, instead, requested that the New York Surrogate’s Court (New York’s probate court) find that decedent’s Wills were invalid, and grant him letters of administration over decedent’s estate. This action is a collateral attack on the Massachusetts determination. This is the second directly relevant judicial proceeding in this Court. Landsford v. Landsford, 96 A.D. 2d 832, 456 N.Y.S. 2d 583 (2™ Dept. 1983). See also New York Domestic Relations Law § 231 (McKinney’s 1999). Petitioner engages in numerous attacks on the integrity and competence of the courts in both New York and Massachusetts, e.g. referring to the New York Court of Appeals’ actions in this case as “a mockery of the rule of law”.(See, e.g. pages 22-23 of the Petition.) The New York Court initially dismissed Petitioner’s application because he had failed to include copies of the prior Wills. He amended his pleading bu’ referred to, and annexed, only two of the three Wills that decedent had executed. The missing one was the 1994 Will which was prepared by Petitioner’s friends and executed in Petitioner’s presence. ° The New York Court learned of the second Will only from Respondents. Ultimately, the New York Surrogate dismissed Petitioner’s claims because of the prior Massachusetts decision and New York’s Appeliate Division affirmed on the basis of Full Faith and Credit. Petitioner then sought reargument from the Appellate Division or, alternatively, leave to appeal to the New York’s highest court, the Court of Appeals. Both motions were denied. The Court of Appeals denied Petitioner’s motion for leave to appeal. This Petition for certiorari ensued. The New York Divorce Action The third proceeding is the divorce action between Petitioner and decedent. That action is still pending in the same Appellate Division in New York. On January 11, 1996, approximately six months after the 1995 Will probated in Massachusetts was executed in that State, a stipulation was 5 Petitioner originally denied knowing of this Will and then recanted when confronted with an audio tape showing his presence during its preparation and at its execution. See Appendix 1. It is this failure to apprise the Court of the 1994 Will’s existence which is the basis of the disciplinary proceeding against Petitioner in New Jersey. (See Petition, page 21) 5 entered into on the record in the New York Supreme Court (the trial court with jurisdiction over divorce matters) in Petitioner’s presence and with his cooperation. (See Appendix 2 for the transcript of this proceeding). In court, that day, decedent testified to the grounds for divorce, without objection from Petitioner, the decedent’s divorce counsel moved for the court to grant the divorce and the motion was granted. ° Certain provisions of the stipulation (relating only to the parties’ child) were contingent upon approval by a guardian ad litem. Ultimately, the first and second guardians both approved those provisions as modified. “ These last events occurred four years after decedent’s death. Nonetheless, despite the fact that the court had held the marital action open for those four years, it ruled that the matrimonial action had abated when decedent died. That determination is currently on appeal to the Appellate Division in New York and was argued on January 29, 2002. Petitioner’s claim that Massachusetts had no jurisdiction is founded primarily on his false and irrelevant claim that Respondents’ counsel misrepresented decedent’s marital status to the Massachusetts court. If the New York Appellate Division finds that Respondent and decedent were divorced, even that spurious claim would fail. If Petitioner truly believes that decedent was incompetent to make the 1995 Will (a claim he has made in every court, including this one), then he committed a fraud on the New York divorce court when he entered into that stipulation. Petitioner refers this Court to the first law guardian’s preliminary report (Petition, p. 20) but fails to mention the later reports by both law guardians which reach a contrary conclusion and are critical of Petitioner's motives. See Appendix 3. COUNTER-STATEMENT OF FACTS The facts of this case are significantly different from those asserted by Petitioner. For the Court’s convenience, @ chronology of key events is attached as Appendix 4. THE MASSACHUSETTS PROCEEDING The decedent was 4 domiciliary of the State of Massachusetts at the time of her death on September 5, 1996. Decedent’s 1995 Will was filed with the Middlesex County Probate and Family Court on July 22, 1997. The nominated executors under the Will, Respondents herein, commenced probate proceedings in that Court and duly served all interested persons--including Petitioner--by November 4, 1998. On November 6, 1998, Petitioner filed a petition for Letters of Administration in Rockland County, New York, alleging the invalidity of only two of decedent’s prior Wills and concealing the existence of the Will executed at his behest. (See footnote 5.) Petitioner wrote to the Massachusetts Court on November 16, 1998 acknowledging that he knew of the commencement of the Massachusetts proceedings and requesting that the Court either recognize that it lacked jurisdiction over him, or, in the alternative, set the matter down for a full hearing. On January 21, 1998, Petitioner filed a Notice of Special Appearance and Affidavit of Objections to Petition in the Massachusetts Court. On June 3, 1999, both the Court and Respondents’ counsel gave notice to Petitioner that the Court would hold a pretrial conference on June 15, 1999. The Court specifically 7 stated that the case might be ordered to immediate trial on that date if it appeared that one party, through a failure to appear at the conference or otherwise, would not present a case. [The Court should note that Petitioner requested a hearing in his November 16, 1998 letter. See Appendix 5). On June 10, 1999, Petitioner wrote a second letter to the Massachusetts Court acknowledging receipt of the Court’s Notice and Order, and objecting that the Court did not have jurisdiction over him. Petitioner stated in his letter that he had made a “special appearance” to contest jurisdiction, and would not attend the conference. On June 14, 1999, Petitioner sent a third letter ® by facsimile to the Massachusetts Court stating that he would not appear on June 15", and requesting that the Court take no action until his Petition for Letters of Administration in New York was resolved. Petitioner failed to appear on June 15, 1999 and Justice Boorstein admitted decedent’s 1995 Will to probate, based on the submissions of Respondents and the fact that no proper or evidentiary objections were interposed. > Judge Boorstein expressly and properly rejected Petitioner’s personal jurisdiction argument by noting that it was irrelevant to whether Massachusetts could probate the 1995 Will. As a lawyer, Petitioner had to know that such letters are not evidentiary, and that even if he were correct that decedent was not domiciled in Massachusetts, the court could not consider or act on them. A review of Petitioner's Appendix F shows that Respondents’ Massachusetts counsel, on that occasion, fairly advised the court of Petitioner’s legal positions. Justice Boorstein further noted that Petitioner had failed to raise the conventional objections as to domicile, undue influence, lack of capacity or improper execution, and specifically found that he would not present a case. (Appendix 6) Petitioner never appealed the Massachusetts Decree and, as noted, it is not subject to collateral attack. Petitioner received notice of the Massachusetts conference date and deliberately failed to appear because he was concerned that a decision on the merits in Massachusetts would have precluded him from proceeding in New York and because he claimed he could not have received a full and fair hearing in Massachusetts. (Petition, p. 19) THE NEW YORK SURROGATE’S AND APPELLATE DETERMINATIONS On September 8, 1999, the New York Surrogates Court dismissed Petitioner’s application and that decision was affirmed by the New York Appellate Division on Full Faith and Credit grounds. That determination is the subject of this Petition. PETITIONER’S POSITION IS A TANGLE OF FACTUAL DEFICIENCIES AND CONTRADICTIONS Petitioner stated that he failed to disclose the January 1994 Will because he “knew” it had been revoked by the subsequent June 1995 Will. This statement, of course, makes no sense, since it is in direct contradiction of Petitioner’s swom contention that the June 1995 Will is invalic. If the June 1995 Will were invalid, then the January 1994 Will would not have been revoked and would, itself, be valid. 9 Petitioner told the New York court that the June 1995 and December 1993 Wills were invalid because the decedent lacked testamentary capacity. '° Nevertheless, in January 1996, about six months after the June 1995 Will was executed, Petitioner appeared before the same New York Judge to whom he later alleged the decedent’s incapacity, entered into a contract with decedent in open court, and allowed her to testify without objection in the divorce proceeding. (See Appendix 2) Petitioner has never offered any credible evidence to establish his incapacity claim. He does not allege specific facts demonstrating an impaired state of mind at the time of the execution of the 1993 and 1995 Wills. His “proof” of this claim is a single entry on an unauthenticated death certificate that was never admitted into evidence by any court. Even if Petitioner had presented this document to a Court it would in no way constitute competent evidence of Petitioner’s claims. Petitioner never presented anything at all “supporting” his claims of undue influence and duress. Petitioner’s Conflict of Interests There is a fundamental problem with granting fiduciary status to Petitioner--the relief he sought from the New York Court. Petitioner has stated his intention to exercise an alleged spousal right of election against decedent’s estate, should it be determined that he was the spouse of the decedent when she died, and to attack the probated Will. (See e.g. Petition, page 21) While Petitioner ™ Of course, the 1994 Will, executed in Petitioner’s presence, was signed after decedent was supposedly incompetent. The internal contradictions in Petitioner's story are many and evident. 10 claims to be waging this litigation for the sake of his daughter (Petition, pages 20-22 and 27) the fact is that the Will leaves virtually everything to that daughter. Where is the advantage for her in Petitioner’s proposed attack on the probated Will? Thus, Petitioner’s interests are in direct opposition to those of his daughter. Under New York law, that alone disqualifies Petitioner from being appointed the administrator even if New York had not properly dismissed the application in light of the Massachusetts decree. Both guardians ad litem in New York recognized that fact. Petitioner misstates the guardians’ position to this Court. (Petition. p. 20) In fact, neither guardian agreed with Petitioner and both questioned his motives. (Appendix 3) Petitioner also fails to explain why his claims could not have been protected in Massachusetts if he produced evidence that decedent was not a Massachusetts domiciliary or that she was incompentent when she executed the 1995 Will, or by asserting ‘his elective share and the daughter’s rights in that State. In Appendix J of his Petition (a 1994 newspaper article), Petitioner claims that a 1992 New York law permits him to attack certain trusts if he is the widower. (Petition p. 21) Petitioner only reveals his lack of understanding of the law. Prior to 1992 a decedent in New York could “defeat” his spouse’s elective share by providing in his Will a trust with a corpus equal to 1/3 of the estate. It is that rule which was abrogated. After that change, a trust created by the decedent will not defeat the right of election. Where Petitioner loses his way is in his confusion of the difference between a trust created by the decedent and those created by third-parties - which is the case with the trusts here. Third-party created trusts, under New York law, are simply not part of the decedent’s estate and therefore are not 11 subject to the surviving spouse’s elective share, and, thus, New York law would not avail Petitioner. POINT | PETITIONER’S CONSTITUTIONAL CLAIMS WERE NOT PRESERVED FOR REVIEW At page 10 of the Petition, Petitioner states that his claim of a denial of due process “was raised to the Appellate Division”. By his own admission, Petitioner’s due process claims were not presented to the New York Surrogate’s Court. Neither of the two New York appellate courts made any reference to Petitioner’s due process claims. Under those circumstances this Court assumes that the constitutional issue was not properly presented. Adams v. Robertson, 520 U.S. 83, 86, 117 S. Ct. 1028, 1029 (1997). New York appellate courts will not entertain issues not raised at trial. Neiman v. City of New York, 133 A.D. 2d 743, 520 N.Y.S. 2d 31 (2 Dept. 1987); Martin Mechanical Corporation v. P. J. Carlin Construction Co., 132 A.D. 2d 688, 518 N.Y.S. 2d 166 (2™ Dept. 1987). Accordingly, Petitioner’s constitutional claims were not preserved for review in this Court and the Petition must be denied. 12 POINT Il THE POSSIBILITY OF BEING AN ESTATE FIDUCIARY IS NOT A PROPERTY INTEREST PROTECTED BY DUE PROCESS When reduced to its essence, Petitioner’s complaint is that he is not the person who has the fiduciary responsibility for administering decedent’s estate. It is that fiduciary status that Petitioner seeks to parlay into financial gain for himself by attacking the Will and the trusts created for decedent’s benefit by her family. (Petition, p. 21) However, there is no necessity that Petitioner be decedent’s administrator before raising any or all of his claims as to the validity of the Wills, or the propriety of administration of the estate, or the marshalling of the estate’s assets, or his or decedent’s daughter’s claims against the estate under the Will, in intestacy, or as surviving spouse or guardian of the child. Even if the estate were administered in New York, it is only the underlying claims that might constitute property rights, and Petitioner would still have had to prove his entitlement thereto. It is only the possibility of being decedent’s administrator that Petitioner has conceivably lost. That contingency cannot possibly rise to the level of “property” or of a property right protected by the Due Process clause. Property is defined by looking to underlying state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972); Grossman v. Axelrod, 646 F. 2d 768, 770-71 (2" Cir. 1981). In New York far more concrete claims such as “prospective [Medicaid] reimbursement payments” and an “interest in [maintaining] a particular rate of reimbursement” have been held not to be “property”. Hurlbut v. Whalen, 58 13 A.D. 2d 311, 317, 396 N.Y.S. 2d 518 (4" Dept. 1977); Greenwald v. Whalen, 609 F. 2d 665, 668 (2™ Cir. 1979). POINT III PETITIONER CANNOT USE HIS OWN FAILURE TO PROPERLY RAISE HIS ARGUMENTS IN MASSACHUSETTS TO CREATE A DUE PROCESS CLAIM Petitioner’s objection to Massachusetts’s exercise of jurisdiction is twofold: (1) there was a “fraud” '' on the Massachusetts court and (2) there was no personal jurisdiction over him. Petitioner admits that he did not raise either claim at the Massachusetts hearing. Rather he wrote letters and filed documents making his claims, but deliberately failed to appear at the hearing (of which he had ample notice), and offered no evidentiary proof whatsoever of any of his claims. It has consistently been held, in these circumstances, that any claimed due process issue has been waived. In Loyd v. Loyd, 731 F. 2d 393 (7 Cir. 1984), also involving a collateral attack on a determination made in another state’s probate court, the widow was given notice of the proceeding The Court will have noted that the document to which Petitioner refers at page 6 of the Petition (his Appendix F) quite simply has nothing whatsoever to do with Petitioner’s claims of fraud. At this juncture we must respectfully assert a point of personal privilege. Petitioner falsely accuses Respondents’ counsel, Richard W. Renehan, of having “admitted” to lying to the Massachusetts Court (Petition. p. 6) Attorney Renehan’s affidavit (attached hereto as Appendix 7) states that he (1) made no misrepresentations to the Massachusetts Court, and (2) has never told that court that his statements to it were untrue. 14 and she chose not to place her proof before the court. Under those circumstances, functionally identical to those here, the Seventh Circuit held that there was no denial of due process. The Court noted that due process requires only notice reasonably calculated to apprise the interested parties of the pendency of the action and that those parties have an opportunity to present their objections. Loyd, ibid. at 400; Mullane v. Central Hanover Bank, 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950). See Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948), [“If respondent failed to take advantage of the opportunities afforded him, the responsibility is his own [it will not] provide a basis for subsequent attack in the courts of a sister State ...”]; Underwriters National Assurance Company v. North Carolina Life and Accident and Health Insurance Guaranty Association, 455 U.S. 691, 709-10, 102 S. Ct. 1357, 1369, 71 L. Ed. 2d 558 (1982); Wozniak v. Conry, 236 F. 3d 888, 890 (7" Cir. 2001) certiorari denied 121 S.Ct. 2243, 150 L.Ed.2d 231 (U.S. June 11, 2001) [“one who has spurned an invitation to explain himself can’t complain that he has been deprived of an opportunity to be heard.” (emphasis in original)] and Tennessee v. Sizemore, 200 F. 3d 373, 381 (5" Cir. 2000). POINT IV PETITIONER’S FAILURE TO PURSUE AN APPEAL IN MASSACHUSETTS PRECLUDES HIS COLLATERAL ATTACK IN NEW YORK Petitioner chose not to appeal the Massachusetts decision in that state. Thus, that determination was no longer subject to collateral attack in Massachusetts (Bloom v. Bloom, 337 Mass. 480, 482, 150 N.E. 2d 24, 26 (1958)). Therefore, Petitioner has no right to attack the determination collaterally either in New York or in this Court. Coe v. Coe, 334 U.S. 15 378, 384, 68 S. Ct. 1094, 1096, 92 L. Ed. 1451 (1948); Sherrer v. Sherrer, above. Even if the New York courts had applied New York law, as Petitioner wishes, they would have reached the same conclusion. In Massachusetts mere publication of notice of a probate proceeding is considered valid notice to the world. This is so even where fraud is alleged. Farquhar v. New England Trust Co., 261 Mass. 209, 212, 158 N.E. 836, 838 (1927). That rule dovetails completely with the decision of New York’s highest court in Matter of Horton, 217 N.Y. 363, 367, 111 N.E. 1066 (1916). See also see Will of Brown, 120 Misc. 2d 799, 802, 466 N.Y.S. 2d 988, 991 (Surr. Ct. Westchester Co. 1983). As Petitioner had actual notice of the Massachusetts proceeding and indeed communicated with the court about it, a priori, he has no standing to bring a collateral attack on the Massachusetts decree in New York. POINT V DUE PROCESS DOES NOT REQUIRE THAT A COURT HOLD A HEARING OR ISSUE A WRITTEN OPINION Petitioner’s claims were dismissed by the New York courts on papers and without holding a formal adversarial hearing on his claims that due process obligated the courts to hold a hearing on his claims as to the “fraud” on the court in Massachusetts and to write a formal opinion rejecting his arguments. '? However, a court has no due process obligation to hold a hearing. The only requirement is notice and an Ironically, at page 8 of his Petition he claims that Justice Weiner had extensive “personal knowledge of the facts and circumstances”. 16 Opportunity to be heard. As Petitioner was the claimant in New York, obviously, he had notice. In this Court he fails to recognize the distinction between an opportunity “to be heard” and a hearing. All that due process requires is the opportunity to raise one’s arguments to the court, which petitioner had. Greene v. WCI Holdings Corporation, 136 F. 3d 313, 315-16 (2™ Cir. 1998) certiorari denied 525 U.S. 983, 119 S. Ct. 448, 142 L. Ed.2d 402 (1998) held that the dismissal of a proceeding (as occurred here) without an oral hearing did not violate due process. “The opportunity to be heard orally on questions of law is not an inherent element of procedural due process, even when substantial questions of law are involved.” See also Wozniak v. Conry, 236 F. 3d 888, 890 (7"" Cir. 2001) holding that “due process does not require that a formal, adversarial hearing precede every decision affecting property.” POINT VI NEW YORK CORRECTLY GRANTED FULL FAITH AND CREDIT TO THE MASSACHUSETTS DETERMINATION; EVEN IF IT WERE INCORRECT IN DOING SO, THE SAME DETERMINATION WOULD BE REACHED UPON COMITY OR INDEPENDENT STATE LAW GROUNDS ALONE It is settled law, which Petitioner does not dispute, that a court’s jurisdiction to administer an estate is solely dependent upon the decedent’s domicile on the date of death. Section 3-5.1 (b) (2) of the Estates, Powers and Trusts Law (EPTL) of the State of New York provides that the law of the decedent’s domicile at his death controls both the testamentary and intestate disposition of the decedent’s estate. Neto v. Thorner, 718 F. Supp. 1222, 1224 (S.D.N.Y. 1989). It is the rendering State, not the forum state, whose law is used to determine if Full Faith and Credit should be accorded ae a judgment. Tennessee v. Sizemore, 200 F. 3d 373, 378 (5" Cir. 2000). In Matter of Horton, 217 N.Y. 363, 367, 111 N_E. 1066 (1916) the court held that a probate proceeding in another state was “conclusive” if it could not be collaterally attacked in that other state. (217 N.Y. at 367). See also Will of Brown and Point IV, above. Petitioner also fails to appreciate the fact that there are two purely non-constitutional bases upon which the New York courts could have chosen to follow and give precedence to the Massachusetts decision. Petitioner makes two separate legal errors. First, Petitioner assumes that a court cannot grant Full Faith and Credit to any determination which is not strictly entitled to it. However, Full Faith and Credit is only a minimum requirement of our republican form of government. No constitutional bar precludes a state court from applying Full Faith and Credit more broadly than it is required to do by the Constitution. In Underwriters National Assurance Company above this Court said that a court “may” inquire into jurisdiction before giving Full Faith and Credit to a judgment. (455 U.S. at 705, 102 S. Ct. at 1357). This Court did not say that the court “must” do so. Thus, even if Petitioner were correct in his assertion that the Massachusetts determination was not strictly entitled to Full Faith and Credit, there was no constitutional error when the New York courts chose to afford full faith recognition to that determination. '° Petitioner’s partial quotation from New York CPLR 540] (p. 3) is misleading and the statute does not comport with his claims. In fact, that section is merely a definition of a “foreign judgment” and says nothing about whether a judgment not precisely fitting ~~ that definition can have preclusive affect in New York. lec 18 Second, even if Full Faith and Credit did not apply and it was improper to afford such recognition to the Massachusetts decree, nonetheless, the New York courts could have honored the Massachusetts determination on the basis of comity. Ehrlich-Bober & Co. v. University of Houston, 49 N.Y. 2d 574, 427 N.Y.S. 2d 604, 404 N.E. 2d 726 (1980); Will of Brown, above. Simply put, no constitutional issue arises. '“ Petitioner’s arguments based upon alleged New York public policy are also misplaced. In Baker v. General Motors Corporation, §22 U.S. 222, 233, 118 S. Ct. 657, 663-64, 139 L. Ed.2d 580 (1998) this Court noted that its “decisions support no roving ‘public policy exception’ to the Full Faith and Credit due judgments.” (emphasis in original) WHEREFORE, the Petition for Certiorari should be denied. Respectfully submitted, Blank Rome Tenzer Greenblatt LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 (212) 885-5000 — Birbrower, Montalbano, Condon & Frank, P.C. 67 North Main Street P.O. Box 1070 New City, New York 10956 (845) 634-7010 Co-counsel for Plaintiff-Appellants Of Counsel: Sheila Ginsberg Riese Leonard G. Florescue Donald Frank William Frank Stephen McSweeney L9 a a oatlienla No. 01-1038 In The Supreme Gourt of the United States October Term, 2001 ADMINISTRATION PROCEEDING ESTATE OF DEBRA LYNCH a/k/a Debra L. Lynch & Debra Franchi, Deceased. DEAN LYNCH, , Petitioner, — against — PATRICIA FLAHERTY, LINDA A. KACEWICZ. AND MICHAEL P. FRANCHI, Respondents. On- Petition for a Writ of Certiorari to The New York Court of Appeals. APPENDIX Appendix 1 la Dean Lynch Letters [Pages la— 3a] Dean Lynch Attorney at Law 3-29-2001 Dear Mr. Frank: In light of Mr. Uscher's “refreshed” recollection and that being the case, I believe I owe you an apology for my comment to you after the oral argument of 11-17-2000. It appears under the facts and circumstances of those years, | was “that stupid” in January, 1994. Please accept my apology. Very truly yours, 2a Appendix 1 Dean Lynch Letters 3-29-2001 Appellate Division, Supreme Court Second Judicial Department State of New York 45 Monroe Place Brooklyn, NY 11201 Att: James Edward Pelzer, Clerk of the Court Re: Estate of Debra Lynch Docket No. 1999-09132 Dear Mr. Pelzer: There is currently pending a Motion for Reargument which was returnable March 2, 2001. Included with my response was an Affidavit from Arthur Uscher, Esq. dated March 1, 2001. I was advised today that Mr. Uscher's Affidavit at Par. 7 is in error as to his recollection. Therefore, I enclose for filing an Amended Affidavit from Mr. Uscher dated March 29, 2001. It is noted that Mr. Uscher states that “ I reviewed the tape. again and find I was mistaken in my recollection that Dean Lynch arrived '...shortly after the execution....' The tape shows that Dean arrived before the Will was executed.” I would point up to this Court that Mr. Uscher's original “recollection” was mine as well. The tape saying otherwise, would demonstrate that my recollection of the events of that day, January 3, 1994, may have been in error as well. I continue to believe the 1994 alleged will is and has always been a “red herring” and has absolutely no bearing on the Appendix | 3a Dean L>-~h Letters If this Court disagrees that the issue of the 1994 alleged will is a “red herring”, I would respectfully request that the motion be held in abeyance until a Copy and transcript of said tape can be obtained and reviewed by the Parties and the Court. Thank you for your attention to this matter. Respectfully submitted, Dean Lynch Pro Se cc: William Frank, Esq. Arthur Uscher, Esq. wo/enc. da Appendix 2 Transcript of Proceedings on January 11, 1996 [Pages 4a — 27a] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ORIGINAL DEBRA LYNCH, Plaintiff, -against- Index No. 1109/95 DEAN LYNCH, Defendant. Rockland County Courthouse New City, New York Thursday, January 11, 1996 BEFORE: THE HON. ALFRED J. WEINER, Justice of the Supreme Court. -APPEARANCES: SHAYS, KEMPER Attorneys for Plaintiff 276 Fifth Avenue - Suite 306 New York, New York 10001-4509 BY: KENNETH D. KEMPER, ESQ., -and- STANLEY D. HEISLER, ESQ., Of Counsel DEAN LYNCH, ESQ., Defendant Appearing Pro Se ; 1 Kalisa Way - Suite 202 Appendix 2 Sa Transcript of Proceedings on January 11, 1996 Paramus, New Jersey 07653-0159 BURKE & McGLINN, ESQS.. Guardian Ad Litem 100 Washington-Avenue Suffern, New York 10901 BY: JOSEPH P. McGLINN, ESQ., Of Counsel Ellen L. Guardiano, C.S.R., Senior Court Reporter. 6a Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- THE.COURT OFFICER: Remain seated, please; come to order. THE COURT: This matter has been scheduled for trial for -- I believe it was scheduled two days ago and there have been continuing discussions between the parties, both in chambers and out of chambers and the Court has been advised by counsel for the Plaintiff that the parties wish to place a stipulation on the record at this time. Counsel may proceed. MR. KEMPER: First, I would like to thank your Honor for your Honor’s assistance in helping us resolve what has been a very difficult matter. And I'd also like to thank your Honor for bringing in, a guardian who also made very constructive suggestions in helping us to dispose of this. I would like you, Debra and Mr. Lynch to listen to this very carefully. CONN UN hh WN — \O en el el ee NSOUVMIAAWEWNKO 22 It is stipulated and agreed between the 23 parties as follows: The Defendant withdraws 24 his answer to the verified complaint and the 25 Plaintiff withdraws her second cause of action ae — ©& ~ t © ON A nm BB Ww Ne © bo — bh NM bh to Mm & W bo Appendix 2 7a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- and agrees to proceed on her first cause of action for constvuctive abandonment. The juégsment of divorce to be entered herein will not be entered until confirmation of the stipulation of settlement which is .as follows: 1. The Plaintiff agrees to transfer her interest in the marital residence located at 101 Greenbush Road, Tappan, New York to the Defendant by deed and the Defendant agrees to transfer his interest in the Worcester condominium owned by the parties to the Plaintiff. 2. The Plaintiff waives her interest in equitable distribution and for a distributive award with respect to the residence and Defendant's law practice and any other assets of the Defendant. The Defendant waives his interest in equitable distribution or ty way of distributive award with respect to Plaintiff's separate property and any appreciation thereto. 3. The Defendant will receive and own all of the contents of the marital residence 8a l 2 3 4 5 6 7 8 9 — et —_— © NN eK eR eee eS —OOoOMmAnNAUNfWWN Nm nN NY > WwW WN 25 Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- at 101 Greenbush Road, Tappan except for the agreed-upon list of property as follows, which shall be the possession of the Plaintiff and may be removed on 20 day's notice: Those items are paintings by the Plaintiff, an antique painting at the front door, her mother's jewelry, Christmas dishes, Madeline's Christmas dress, linen closet, Madeline's baby book, photo albums, a jewelry box, a Lladro ballerina statue, sculptures made by steel or in good shape, garden winter sweater and a heart sweater and the pictures to be retained, to be excluded, by the Plaintiff, are pictures of boats and water scenes, a portrait of the, husband and a self-portrait of the Plaintiff which has been given to her daughter. Also remaining is a handmade paper artwork and a plexiglass display case which was in the marital residence and will go to the parties’ daughter. 4. The Court, on consent, will appoint Joseph McGlinn of Burke & McGlinn as guardian for the property of the child, Madeline Susan Appendix 2 9a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- Lynch, age eight. Mr. McGlinn will undertake an investigation to ascertain the value of all remainder interests in -- THE COURT: Excuse me, ’ hate to . interrupt, but just for one second, maybe you should indicate that he's appointed as guardian ad litem. He's not been appointed guardian of the property. MR. KEMPER: Fine. THE COURT: .If the parties wish to subsequently -- MR. KEMPER: Fine, Judge. THE COURT: -- the parties may consent to him being appointed as guardian of the property. MR. KEMPER: Being appointed as-guardian ad litem in this proceeding Mr. McGlinn will undertake an investigation to ascertain the value of all remainder interests in inalienable trusts of Debra Lynch and the 1/4 of 1% interest in the Sea Breeze property owned by Madeline Lynch, all whether held directly or indirectly. The guardian ad litem shall have authority to obtain information, 10a l 2 3 4 5 6 7 8 vy) — pod — ©- NWN DN Ne ee eS eS ee ee SBRORSSCOIANAWDHN Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- review and hire experts to determine the value of the interest. The guardian shall report to the Court with recommendations as to the proposed stipulation of settlement renouncing Madeline's remainder interests in the inalienable trusts and her 1/4 of 1% interest in Sea Breeze as to whether the child's best interests are being served by the renunciation of her rights. If approved by the Court, a judgment shall issue respecting the renunciation of those rights. The proposed settlement in exchange for the renunciation as as follows: A $1,000,000 irrevocable trust will be created for the sole benefit of Madeline Lynch with the income only payable to Debra Lynch as hereinafter set forth. This trust to be funded with an initial payment of $400,000 to be paid within 60 days of approval by this Court of the. settlement with the remaining funds to be contributed at the rate of at least $100,000 per annum to be guaranteed by letter of credit from a reputable banking institution. The trustee of the trust shall be the U.S. Trust Appendix 2 lla Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- Company in New York which shall also manage the portfolio of the trust COrpus. The fee of Joseph McGlinn, Esquire as guardian ad litem shall be paid as ultimately determined by this Court. All income from the trust shall be paid during her life to Debra Lynch for her Support and maintenance. If the necessary and appropriate expenses of Debra Lynch exceed the annual income of the trust the trustee shall advance future trust income to meet those expenses and then accumulate income thereafter to make up for any expenses advanced so that ultimately the principal amount of $1,000,000 remains inviolate. ! The trust shall have the right, upon application, to pay for the college and graduate school expenses of the child Madeline. The trust shall accumulate all other income except the income from the trust shall be payable to Madeline Lynch after her. 21st birthday. Principal distributions along with accumulated income from the trust shall be paid to Madeline at the rate of 25% at age 12a Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- 21, 25% at age 25, 25% at age 30 and 25% at age 35. If Madeline dies with issue, prior to completion of payments, .any unpaid payments shall go equally to said issue and if Madeline dies without issue any unpaid payments shall go to a foundation for the benefit of children : such as Hale House or other similar charity. The current custody order in effect shall be entered as a final order along with the visitation orders now .in existence, provided, however, that the visitation bond order by Justice Kenneth Rudolph on May 25, 1995 shall be vacated forthwith and the bond that has been posted shall’ be returned. Given the financial and other personal circumstances of the parties each of the parties waives maintenance and Defendant waives receipt of child support to the fullest extent permitted by law and agrees to accept what is provided in the Child Support Standards Act as the minimum payment payable, which is the amount of $25 monthly, as and for child support. The New Jersey action pending, between the parties shall be withdrawn along on AUN hWN — = \O — © NNN NN NN NS eR Re eS ES ee Un BWN KH OO CONAN HW NN COMI AAMBPWNHOK OS NM N bho WwW NO — No No Nn & Appendix 2 13a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- with the appeal and the current order with respect to the opening and access to the safe deposit box of the Plaintiff shall be dismissed. Your Honor, that completes the stipulation of the parties. THE COURT: Off the record. (There was a discussion held off the record) MR. KEMPER: . It has been agreed by the parties that in the event the report of the guardian ad litem approves the renunciation of Madeline's residuary rights { the parties agree that there will be commenced in the Surrogate's Court in this County a proceeding seeking to have Mr. McGlinn appointed as guardian of the property of the child for further approval by the Surrogate’s Court of the settlement and renunciation of rights. THE COURT: Off the record. (There was a discussion held off the record) MR. KEMPER: I'll call Debra Lynch to the witness stand. . l4a l 2 3 4 5 “© 3 8 9 Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- THE COURT: If it's easier for her( she can sit nght there. It's not necessary for her to step up. DEBRA LYNCH the Plaintiff herein, having been first duly sworn, was examined and testified as follows: THE COURT: Please state your name and address. MS. LYNCH: Debra Lynch, 16 Westcliff Road, Weston( Massachusetts. THE COURT: Thank you very much. MR. KEMPER: Mrs. Lynch, you are the Plaintiff in this proceeding; is that correct? MS. LYNCH: Yes. MR. KEMPER: And were you and Mr. Lynch married in a religious ceremony on the Ist day of August, 1981 in Weston, Middlesex County, Commonwealth of Massachusetts? MS. LYNCH: Yes. MR. KEMPER: And ever since you and he have been husband and wife; is that correct? MS. LYNCH: Yes MR. KEMPER: And for more than two years prior to the commencement of this action CUMAIDMAWHK OS ~ t N ho WW NO No NO na Appendix 2 15a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- continuously was Mr. Lynch a resident of the State of New York? MS. LYNCH: Yes. MR. KEMPER: And did you and Mr. Lynch live within the State of New York as husband and wife? MS. LYNCH: Yes. MR. KEMPER: Is there one child of your marriage, a daughter, Madeline, born August 31, 1987? MS. LYNCH: Yes. MR. KEMPER: And is it true that no decree of divorce, annulment or separation has been obtained by you against Mr. Lynch or by him against you in any Court of competent jurisdiction of this state or any other state, territory or dependency of the United States or in any foreign country? MS. LYNCH: Yes. MR. KEMPER: And is it true, to the best of your knowledge, that no other action is now pending between you and Mr. Lynch for a divorce, annullment or separation in the Courts of New York or in any other state or l6a CONN hWN \O ee ee ee NN NY Ww WN — © Nm N Un & Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- 12 territory or dependency of the united States or in any foreign country? MS. LYNCH: Yes. MR. KEMPER: And were both you and Mr. Lynch over the age of 18 at the time that this divorce action was commenced? MS. LYNCH: Yes. MR. KEMPER: And will you take all steps within your sole power, prior to entry of a judgement of divorce, to remove any barriers to Mr. Lynch's re-marriage? MS. LYNCH: Yes. MR. KEMPER: Now commencing in or about the fall of 1992 and continuing to the present time did Mr. Lynch wilfully refuse to engage in marital relations with you despite your requests that he engage in marital relations? MS. LYNCH: Yes. MR. KEMPER: And was his refusal to engage in marital relations by you not caused by any physical impediment on his behalf? MS. LYNCH: Yes. MR. KEMPER: And was his action in that regard unjustified in all respects? Ce Le ON Oe ee roe 7 ™ OCO~IYNADMA BwWPh Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- MS. LYNCH: Yes. MR. KEMPER: And has that abandonment of you continued for more than a year prior to the commencement of this action? MS. LYNCH: Yes. MR. KEMPER: And do you ask that this Court grant you a Judgement of divorce and further provide you with the relief agreed to in the stipulation that we placed upon the record settling this proceeding? MS. LYNCH: Yes. MR. KEMPER: Now you've had a chance to hear me read the Stipulation and agreement; is that correct? MS. LYNCH: Yes. MR. KEMPER: And you've had an opportunity to review it with me and with Mr. Heisler? MS. LYNCH: Yes. MR. KEMPER: And you've also had an opportunity over the last several days to discuss it with your. father who is present? MS. LYNCH: Yes. MR. KEMPER: And with your sister Linda 17a 18a OMmOrnIaANfhWN — pet = © MW WN WN A ot we oe ee ee ee OMA BWNHNK OW WANA UNS WWN Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch-, who is present? MS. LYNCH: Yes. MR. KEMPER: And your sister Patty? MS. LYNCH: Yes. MR. KEMPER: And you rely on their advice and wisdom and counsel in assisting you to make these determinations? MS. LYNCH: Yes. MR. KEMPER: And did you make this agreement of your own free wil 1? MS. LYNCH: Yes. MR. KEMPER: And no one forced you to do anything? MS. LYNCH: Yes. MR. KEMPER: Or made you any promises to make you enter into this if you did not want to; is that correct? MS. LYNCH: Yes. MR. KEMPER: And you're satisfied that this takes adequate care of your daughter? MS. LYNCH: Yes. MR. KEMPER: Now you have not taken today any alcohol or medication which would impair your judgment; is that correct? 20 Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- MS. LYNCH: Yes. MR. KEMPER: And you're doing this of your own free will? MS. LYNCH: Yes. MR. KEMPER: I have no further questions of the witness, your Honor. THE COURT: Mr. Lynch, do you have any questions? MR. LYNCH: I have no questions. THE COURT: I'd just like to ask you, Ms. Lynch do you have any questions of the Court at this time? MS. LYNCH: No. THE COURT: Are you satisfied with the stipulation that has been entered into? MS. LYNCH: Yes. MR. KEMPER: Do you want me to do voir dire of Mr. Lynch or do you want to do it? Why don't you do it? He can be sworn from his seat. DEAN LYNCH, the Defendant herein, having been first duly sworn, was examined and testified as follows: 19a 20a Appendix 2 Transcript of Proceedings on January 11, 1996 l -Lynch v Lynch- 2 THE COURT: please state your name and 3 address for the record. 4 MS. LYNCH: Dean Lynch, 101 Greenbush 5 Road, Tappan, New York. 6 MR. KEMPER: Mr. Lynch, you've heard the 7 stipulation entered into on the record today? 8 MR. LYNCH: Yes. 9 MR. KEMPER: And you've had an 10 opportunity to consu!t with your own 11 independent counsel with respect thereto? 12 MR. LYNCH: Yes. 13 MR. KEMPER: And. :you are an attorney; 14 are you not, sir? 15 MR. LYNCH: In the State of New Jersey, 16 yes. 17 MR. KEMPER: And you've had a chance to 18 reflect upon the various terms which we've 19 negotiated over the course of the last three 20 days, I believe? 21 MR. LYNCH: Yes. 22 MR. KEMPER: And are you satisfied with 23 the terms of that agreement? 24 MR. LYNCH: Yes, I am. 25 MR. KEMPER: Are you entering into this CONIA MW A Wp 13 14 15 16 17 ) 18 19 20 21 22 23 24 25 Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- agreement of your own free wil]? MR. LYNCH: Yes. MR. KEMPER: .And is it true that no promises have been made to you other than the agreements made in the stipulation which has been placed on the record? MR. LYNCH: Just the agreement here. MR. KEMPER: And you have not taken today any drugs or alcohol which would affect your judgment or prevent you from entering 12 freely into this agreement; is that correct? MS. LYNCH: No. MR. KEMPER: Your Honor, I would move for a judgement of divorce in the Plaintiff's favor -- THE COURT: I just want to -- MR. KEMPER: -- incorporating-- THE COURT: Off the record. (There was a. discussion held off the record) MR. KEMPER: I would move at this time for a judgement of divorce incorporating by reference the terms of the stipulation that we placed upon the record and providing for that 21a 22a ] 2 3 4 5 6 7 8 9 —) J — t NNN NN WN ND = et eS ee ee A RWNHNK OW WON AMN & WwW Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- to survive. I would ask that the Court retain continuing, jurisdiction of this matter and leave this matter further open awaiting the report of Mr. McGlinn with respect to the matters that have been assigned to him so that we can finally conclude this proceeding. I would also ask that your Honor sign forthwith an order directing the County Clerk to release the bond which is now held by the Rockland County Clerk. THE COURT: Mr. Lynch, did you understand the. application that was just made? MR. LYNCH: Yes. As to the release of the visitation bond. THE COURT: Well, no. That was the second part of the application. It was a two-part application. | MR. LYNCH: The first part, yes, concerning Mr. Lynch awaiting the outcome as to the settlement of the guardian ad litem; otherwise, the divorce is final as to those issues. THE COURT: Would the Reporter read back the application, please? ahah eek ah ee a aR iter COMDIDMNARWNHHK OS NM NN HN bo On BWNH — Appendix 2 23a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- (Record read) THE COURT: o you understand the application that's been made? MR. LYNCH: Your Honor, what I understood is what we have in the stipulation, that the judgement of divorce will not be entered until the confirmation that we've agreed to. If the incorporation of that -- THE COURT: Just go a little slower. MR. LYNCH: If the incorporation that we're entering, the divorce, enters that language, which is the second paragraph of the stipulation, the judgement of divorce will not be entered until confirmation of the stipulation of settlement, which is follows: So as-far as the issue that your Honor -- we discussed in chambers, the issue of fault, that issue has been resolved as to the divorce going forward but the issues that. need to be confirmed are the application of the settlement is my understanding of the facts. And as to the second issue, as to the release of the visitation bond, I have no objection. 24a Omornantbwwnrd — — © Ns a Owownznan & WW WN NNN N WN UM & WN = Appendix 2 : Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- THE COURT: Based upon your understanding is there any opposition to the application? MR. LYNCH: There is -- THE COURT: Both parts of the application. MR. LYNCH:' The part of the application that the judgment will not be entered itself? THE COURT: Right. MR. LYNCH: Until confirmation is completed? THE COURT: That is the understanding of the Court. MR. LYNCH: And that, I confirm, is what my understanding is as well. THE COURT:-- You have no opposition? MR. LYNCH: I have no opposition- to that. THE COURT: And you have no opposition to the bond being released? MR. LYNCH: No, your Honor. THE COURT: Or vacated? MR. LYNCH: No, your Honor. THE COURT: Is there anything further? Sak Oe: Rice oe ANE Y Oe SCUOMNIADWNARWH HOS NM NM NH bh bo aA BWh — Appendix 2 25a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- MR. KEMPER: No, Judge. THE COURT: I just want to mention -- MR. KEMPER: I would like your Honor, on the record, to grant the application for the divorce so we've got that done. THE COURT: The application is granted. I just wanted to mention, Mr. Lynch, that you have Spent a great deal of time before this Court in chambers with. counsel, alone and you are an attorney who practices in the State of New Jersey, you're not being presently represented by counsel, I did recommend to you this morning that you seek. to consult with an attorney acquaintance of yours -- who is that, please? ~ MR. LYNCH: I had spoken with a. Mr. Ciganek; I didn't get ahold of him. THE COURT: You attempted to call up Mr. Ciganek this morning. I also recommended to you that you -- | certainly recommended to you this morning that you get an attorney to represent you, that you Should not represent yourself in this matter: is that correct? 26a Appendix 2 Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- MR, LYNCH: That's -- absolutely, THE COURT: And you've chosen to speak to someone on the telephone --. MR. LYNCH: Yes, your Honor. THE COURT: -- you attempted to reach another attorney but you did decide of your own volition to proceed unrepresented this morning by another attorney; 1s that correct? MR. LYNCH: Yes, your Honor. If your Honor would like me to state what my understanding is and have Mr. Kemper confirm it, I'd.be happy to. THE COURT: I don't think that's necessary. I don't think it's necessary. All right. That will conclude the proceedings —today. The court reporter shal! prepare a transcript of the stipulation; the costs shall be borne equally by the parties. The Court shall be provided with a copy of same and a copy shall be provided for Mr. McGlinn, who is acting as guardian ad litem and the case will be adjourned for 30 days for calendar purposes only so that Mr. McGlinn can commence and ee A _— deinen ee en ae iS ii ech IIe (oe ea 3 ene tina ti ati a. CES Gi gS ERE ae SAI age ee wed ‘ m WIG ETA ERR yee ys BRST RN Ni Sea TET AA Pk ERR Du Wk MODE Dips Se ake —— ” TERN PRAGA AIRE SE IA IR i SURG aie ‘Veins Appendix 2 “27a Transcript of Proceedings on January 11, 1996 -Lynch v Lynch- complete his investigation and file his report with the Court. If the report is filed prior to 30 days the Court will bring the matter in for a conference as well as a Statement by the guardian ad litem. If for some reason’ there's some delay, then Mr. McGlinn wil] advise the Court as to the circumstances of the delay and the Court will determine whether or not the matter should come in within the thirty-day period or not. Off the record. (After an off-the-record discussion the proceedings were adjourned) l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 THIS IS TO CERTIFY THAT THE FOREGOING IS 19 A TRUE AND CORRECT TRANSCRIPT OF THE WITHIN 20 PROCEEDINGS. 21 22 23 ELLEN L. GUARDIANO, C.S.R.. R.P.R. 24 25 Dated: January 12, 1996 28a Appendix 3 McGlinn Affirmations [Pages 28a — 35a] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND --------- | X DEBRA LYNCH, Plaintiff, -against- AFFIRMATION IN RESPONSE TO CROSS MOTION | Index No. 1109/95 DEAN LYNCH, Defendant. --- X Joseph P. McGlinn attorney duly admitted to practice law in.the State of New York hereby affirms that the following statements are true under the penalty of perjury. I am the Guardian ad Litem for Madeline Lynch in the above captioned action and make this affirmation in response (not necessarily in opposition) to the cross motion submitted by affidavit of William Frank, Esq. To paraphase my last resort as Guardian ad Litem I do not oppose the procedure of establishing a trust fund for my ward in exchange for a renunciation of her interest in the various trusts—I do not recommend that the trust be established in the sum of $1 million. It is my opinion that the one-fifth interest in the trust now owned by Madeline Lynch has a value far in excess of $1 million. The simple problem today is the mechanics of establishing the value of Madeline Lynch's interest and the procedure for payment of the expenses in connection with the valuation. Appendix 3 29a McGlinn Affirmations If the opinion of the court on these various motions is that the actions have abated then no further Steps will be taken in connection with the trusts and Madeline Lynch will continue to have a 20% interest therein. If it is the opinion of the court that the actions have not abated then the valuation of the trusts for- Proposed figure o Settlement trust no tablishment of the procedure will have to be established for the valuation of the various trusts for the Purpose of placing a settlement figure that hopefully will be acceptable to the undersigned as well as the court. » wale " awe - 43 MUS GUE SS! steed gar aad” Me eA a RR ae ws ng Re sai EP tte Se AE LN LOG alla PLEAS GAUSS Se ok ee ” 30a Appendix 3 McGlinn Affirmations Independent auditors/accountants will be required to review the books and records of the various properties of each trust in order to determine their value. This will more than likely require the appraiser to inspect the books and records and the various properties themselves in New England, all at a considerable expense. Interestingly, of all the papers submitted on the recent motions, none of the motions contain any suggestion as to the source of the funds to cover the expenses in placing value on the various trusts. In the last two and one half years your deponent has spent more than 100 hours in this litigation and has expended the sum of $1,300 for one accountant’s opinion, which formed the basis of my recommendation to disprove the $1 million settlement trust. If negotiations are to continue on behalf of Madeline Lynch with the Franchi family members (the other remainderpersons of the trusts), then a method has to be determined as to the source of the funds to pay the expenses of an appraiser. It is my suggestion that the trusts themselves be the source of these funds. Assuming an appraiser determines that figure in excess of $1 million is an inappropriate sum for Madeline Lynch to renounce her remainder interest, there is no assurance that this sum will be acceptable to the “plaintiff” or the plaintiff's estate--assuming there is one. This brings up the next question as to who is the spokesperson for the deceased plaintiff and who is (are) the true party (parties) in interest in the litigation. Clearly William Frank does not represent Debra Lynch -- she is deceased. At the present time, upon information and belief, no fiduciary has been appointed for Debra Lynch and there has been no indication as to the value of the estate of Debra Lynch. Any resolution of this litigation by way of the. establishment of a settlement trust for Madeline Lynch will Appendix 3 3la McGlinn Affirmations In reality what is Proposed by way of settlement of the divorce action is a purchase of Madeline’s interest in the trusts by or on behalf of the other remainderpersons. (1) An appraiser/accountant/financial analyst be designated (preferably upon consent of all parties). (2) That fees be advanced (presumably from the trusts themselves) to pay all fees and disbursements incurred by your deponent to date. (3) That funds be set aside and Segregated for the payment of Professional fees in connection with the appraisal. (4) If your deponent and representatives of the plaintiff can agree on a settlement trust figure, that the Settlement figure be delivered in escrow to William Frank, Esq. I point out that in the event the action has abated, Madeline Lynch continues with her 20% interest in the trust and/ or in the event the parties cannot agree on a trust 32a Appendix 3 McGlinn Affirmations settlement figure, Madeline Lynch would continue to be a 20% owner of the various trusts. Her interest in the trusts could be enforced by the appointment of a guardian of her property in the State of Massachusetts—presumably her father, Dean Lynch. s/ Joseph P. McGlinn Sworn to before me this 16" day of June 1998 Dated: June 16, 1998 s/ Patricia K. Meehan Notary Public, State of New York No. 01ME5063427 Qualified in Rockland County Commission Expires July 22, 1998 Appendix 3 33a McGlinn Affirmations SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND PATRICIA F LAHERTY, LINDA A. KACEWICZ, and MICHAEL P. FRANCHI, as Executors of the Estate of DEBRA LYNCH, Index No. 1109/95 Plaintiffs, -against- DEAN LYNCH, Defendant, AFFIDAVIT OF GUARD AD LITEM IN OPPOSITION TO RELIEF REQUESTED IN ORDER TO SHOW CAUSE STATE OF NEW YORK ) COUNTY OF ROCKLAND) ss.: Joseph P. McGlinn, being duly sworm deposes and says; I am the Guardian ad Litem for Madeline Lynch in the above captioned matrimonial action. This affidavit is made in response to the relief requested in the Order to Show Cause to the relief requested in the Order to Show Cause signed by Hon. William E. Sherwood, JSC and dated August 1, 2000. In my capacity as Guardian ad Litem for Madeline Lynch | oppose the relief requested in the Order to Show Cause. The court rendered a decision/order dated, July 17, 2000 granting the plaintiffs motion for the entry of a judgment of divorce nunc pro tunc upon the condition that the 34a Appendix 3 McGlinn Affirmations trust for the benefit of Madeline Lynch has been established and funded. I am in agreement with that decision. Whether or not the defendant agreed or did not agree "with plaintiff's request" is not the issue. The issue is whether or not the plaintiff is entitled to a judgment of divorce nunc pro tunc. The so called “modifications to the stipulation” are all for the benefit of Madeline Lynch and are otherwise simply necessary draftsmanship issues to have the trust established. Obviously 100% of the terms of the trust were not dictated when the action was: settled on January 11, 1996. The proposed trust has undergone various language revisions over the past several years. To clarify the record, Paragraph 4 of defendants — affidavit submitted in support of the order to show cause incorrectly quotes me. The substance of my conversation with Mr. Lynch on July 20,2000 was that. if he believed the court to be in error that he first attempt to proceed by letter and not by order to show cause. Clearly the defendant consented to the entry of a judgment of divorce in open court on January 11,1996 (see settlement stipulation). Since my ward is not renouncing any interest in the various Franchi family trusts there is no reason, at this stage, to ascertain values. Whatever interests Madeline Lynch has in the trusts, she continues to retain. Whatever interest she may have in her mother’s estate she continues to retain. Appendix 3 35a McGlinn Affirmations WHEREFORE, it is respectfully requested that the relief requested in the order to show cause dated August 1, 2000 be denied. s/ ~ Joseph P. McGlinn Sworn to before me this 1* day of August, 2000 s/ Patricia K. Meehan Notary Public, State of New York No. 01ME5063427 Qualified in Rockland County Commission Expires July 22, 2001 36a Appendix 3 Report of Orville H. Mann, Jr. [Pages 36a — 40] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND PATRICIA FLAHERTY, LINDA A. KACEWICZ and MICHAEL P. FRANCHI as Executors of the Estate of DEBRA LYNCH, Plaintiff, -against- PRELIMINARY REPORT OF SUCCESSOR GUARDIAN AD LITEM Index No. 1109/95 DEAN LYNCH, Defendant, pro se. I was appointed Successor Guardian ad litem in the above entitled divorce action to represent the interests of Madeline Lynch pursuant to Order of this Court dated August 16, 2000. A Motion for an Order directing entry of a Judgment of Divorce in the above action was brought on by the Plaintiffs by Notice of Motion dated January 13", 2000. By virtue of this Court’s Order dated August 22", 2000 vacating an earlier Order of the Court dated July 17", 2000, the Plaintiffs’ Motion is still pending and is returnable September Ya 2000. Since my appointment as Successor Guardian | have reviewed a tremendous number of documents pertaining to this case. It has been a daunting task to assimilate all of the facts and issues set out in the pleadings, motions, affidavits, reports and other documents filed in this case and as of this Appendix 3 37a Report of Orville H. Mann, Jr. date I am not completely satisfied that | have all the information I need to properly represent the interests of my ward. I have not yet reviewed, for example, the Federal Estate Tax Return filed in the Estate of Debra Lynch, (although the contents of the return were summarized for me into my possession and reviewed Mr. McGlinn’s files, notes and memoranda on this case. There may be some thoughts and insights set down by Mr. McGlinn in those records which would be helpful to me. | do feel, however, that I have assimilated enough of the facts of the €ase to represent the interests of my ward in connection with the pending motion. In this connection, I would like to thank Dean Lynch, Esq. and Wiliam Frank, Esq. for their help in familiarizing me with the facts in this case and providing me with copies of some of the documents pertaining to the case. I would also like to thank Robert Berliner, Esq. for assembling all the files for me and providing a quiet space at the Courthouse for me to review those files. It is my position that the Plaintiff's motion for entry of a Judgement of Divorce Should be granted. But for the unilateral modification of the Stipulation of Settlement waiving the requirement that the infant renounce her interest in various family Trusts, it seems clear from the cases cited by Plaintiffs that Debra Lynch is entitled to a Judgment of Divorce. The transcript of the Stipulation of Settlement at page 21. shows that the application for the divorce was granted wit the consent of Mr. And Mrs. Lynch subject to approval by the then Guardian ad litem. Although the then Guardian ad litem initially disapproved of the settlement, after the Plaintiffs waived the requirement that the infant renounce her interest in the family Trusts, the Guardian 38a Appendix 3 Report of Orville H. Mann, Jr. changed his position and submitted an Affidavit to the Court swom to August 1, 2000 supporting the granting of the Plaintiff's Motion for entry of a Judgment of Divorce nunc pro tunc. Mr. McGlinn makes the point in his Affidavit that the modification to the Stipulation was for the benefit of Madeline Lynch. Not only is that true, but it also appears to me that the waiver by the Plaintiffs clearly benefits Dean Lynch, Esq. or at least does not harm or prejudice him. Mr. Lynch currently has the sole legal obligation for his daughter’s support. Waiver of the renunciation improves his daughter’s financial position, thereby indirectly benefiting Mr. Lynch. Mr. Frank in his Affirmation dated August 10", 2000 summarizes the arguments as to why the modification should not defeat the plaintiffs mght to entry of a Judgment of Divorce and the arguments seem persuasive to me. To argue that a modification in the Stipulation that not only does not harm the Defendant, but actually benefits him, should be the basis for denying the Plaintiff the divorce which both parties had previously stipulated to and had been granted by the Court, elevates form over substance. Assuming this Court grants the Plaintiffs’ Motion, there are difficult issues remaining which need to be resolved pertaining to the funding of the Million ($1,000,000.00) Dollar settlement. I disagree with Mr. Frank that the source of the funds comprising the Million ($1,000,000.00) Dollar Trust are irrelevant. Mr. McGlinn makes the point in his Affidavit of January 19", 2000 that he opposes the procedure for the establishment of the Trust because it was not clear to him where the money would come from to fund Trust. The fact that the source of the funds used to fund the Trust is relevant as far as the infant is concerned can be demonstrated by the following examples: Appendix 3 39a Report of Orville H. Mann, Jr. Assume that the Estate of the deceases was Seven Hundred and Fifty Thousand ($750,000.00) Dollars at the time of her death on September 5", 1996. Estate have appreciated so that the total value of the Estate at the present time is One Million funded only with the One Million ($1,000,000.00) Dollars from the Estate, Madeline benefits only to the extent of Seven Hundred and Fifty Thousand ($750,00.00) Dollars or fo put it another way, Madeline is funding the Trust with Two Hundred and Fifty Thousand ($250,000.00) Dollars of her own Assume for the moment that the money or part of the money to fund the Trust comes from family Trusts of which Madeline is a potential discretionary beneficiary. If the Trustees of those Trusts contribute funds to make up the One Million ($1,000,000.00) Dollars for Madeline, they might be disinclined to consider Madeline for further discretionary distributions from the Trusts. Again, Madeline is in effect funding her own Trust to the extent that she loses out on possible future discretionary distributions from the Trusts. 40a Appendix 3 Report of Orviile H. Mann, Jr. Although I agree with the establishment of the Trust for my ward as part of the settlement, I would like to understand where the money is coming from which will be used to fund the Trust or, alternately, where the money is not coming from, and whether the source of the funding of the Trust is in the best interests of my ward. Dated: September 15, 2000 Respectfully submitted s/ Orville H. Mann, Jr., Successor Guardian ad litem Appendix 4 4la Chronology of Key Events/Documents [Pages 41a -— 44a] ADMINISTRATION PROCEEDING ESTATE OF DEBRA LYNCH CHRONOLOGY OF KEY EVENTS/DOCUMENTS 9/5/96 Debra Lynch died, domiciliary of Massachusetts 7/22/97 Last Will and Testament dated June 28, 1995 filed in Middlesex County Probate and Family Court 10/20/98 Massachusetts counsel 80€s to above Probate Court to commence Probate proceedings, for appointment of Temporary Executors - court clerk assigns date of appearance for appointment of Temporary executors: November 24, 1998 10/20/98 Patricia Flaherty executes affidavit as petitioner for appointment as Temporary executrix 11/4/98 Executors serve all interested _parties (including Dean Lynch) with Notice of Motion for appointment of Temporary executors 11/6/98 Dean Lynch files Petition for Letters of Administration in Rockland County Surrogates Court. - alleges that the decedent's 2 prior wills of Dec. 1993 and June 1995 are invalid. 11/16/98 Dean Lynch writes to Clerk of Massachusetts Probate Court. Acknowledges commencement of Probate Proceedings therein, and requests 42a 11/19/98 11/23/98 11/24/98 11/25/98 1/21/99 02/22/99 3/1/99 3/8/99 Appendix 4 Chronology of Key Events/Documents Court to recognize its lack of jurisdiction, set the matter down for a full hearing. Petition (NEW YORK) dismissed for failure to annex wills. Dean Lynch files Amended Petition for Letters of Administration, annexing copy of above 2 wills, and swearing to existence of no other wills after conducting due, diligent search. Temporary Executors appointed in Massachusetts Probate Court Original certificate of appointment of temporary executors by Massachusetts Probate Court filed' with Rockland County Surrogate Dean Lynch files Notice of Special Appearance and Affidavit of Objections to Petition in Massachusetts Probate Court Motion to extend appointment of tem executors granted by Massachusetts Probate Court Copy of extension of appointment as temporary executors in Massachusetts filed with Rockland County Surrogate Motion to extend appointment of temporary executors granted by Massachusetts Probate Court Appendix 4 43a Chronology of Key Events/Documents 3/23/99 Copy of extension Of appointment as temporary executors in Massachusetts filed with Rockland County Surrogate 3/29/99 Dean Lynch files Second Amended Petition for Letters of Administration /8/99 Temporary Executors of Estate of Debra Lynch move in Rockland County Surrogates Court to intervene and to dismiss Amended Petition and Second Amended Petition for Letters of Administration 5/17/99 Motion to extend appointment of temporary executors filed with Massachusetts Probate Court; service of same on Dean Lynch /3/99 Letter by Massachusetts counsel to Dean Lynch advising him that the Massachusetts Probate Court has ordered a pretrial conference for June 15, 1999 and that Court will be sending notice to all parties 6/3/99 PreTrial Notice & Order issued by Massachusetts Probate Court and sent to Dean Lynch. - Notice & Order Stated that the case might be ordered to immediate trial on the date | of the Pre-Trial. 6/10/99 Dean Lynch writes to Massachusetts Probate Court. stating: “I am in receipt of the Pre-Trial Notice & Order dated June 3, 1999 as to the above captioned matter.” In said letter, Mr. Lynch advises Court that it has no jurisdiction over him or his daughter, and that he had made Appendix 4 Chronology of Key Events/Documents Asks Court to 6/14/99 6/15/99 9/8/99 a “special appearance” to contest jurisdiction. He state that he would not attend any such conference due to his "special appearance.” take no action until issues are litigated in New York. Dean Lynch writes again to Massachusetts Probate Court (sent by Fax)- advises Trial Dept. that he will not be appearing on June 15, 1999; that the Rockland County Surrogates Court has not yet made a decision as to his Petition for Letters of Administration, and that based on principles of conflict of laws, the Estate process, having been commenced earlier in time in NEW YORK must be resolved first in NEW YORK. Requests that Court take no action until then, and advised that he means no disrespect by his failure to appear. Massachusetts Probate Court. admits Will to Probate and grants appointment of Executors of the Estate NEW YORK Proceeding for Letters of Administration dismissed for lack of jurisdiction as Will admitted to Probate and executors have been appointed. Appendix 5 45a Dean Lynch Letter to Probate Court [Pages 45a — 46a] 11-16-98 Clerk of the Court Middlesex Probate and Family Court 208 Cambridge Street East Cambridge, Massachusetts 02 141 Re: Estate of Debra Lynch Docket No. 97P3465 Dear Clerk: I am the husband of Debra Lynch and father of Debra's daughter Madeline, who is 11 years old. I understand from the enclosed copies of letters from Mr. McGlinn dated 11-9-98 and Mr. Frank dated 11-13-98 that my in-laws have retained the firm of Lourie & Cutler to probate an alleged “Wil]” of my wife. I have not been served with any papers as to any action in your Court either as surviving spouse or guardian of Madeline. I also enclose copy of letter sent to you on 9-13-96 from David Howe, Esq. as to this matter which it appears you have chosen to disregard. I can only assume that the false death certificate with the misrepresentations of Mrs. Flaherty dated 9-9-96 was used to file in your Court. Not only was Debra not “divorced” but she was not a resident of “Weston, Middlesex. Mass.” Your Court has no jurisdiction over this matter and any acts are and will be ultra virus. I enclose for your review copy of my Petition for Letters of Administration which has been filed in Rockland County, 46a Appendix 5 Dean Lynch Letter to Probate Court New York. In order to give you a clear picture of the facts and circumstances of the situation I also enclose copies of letters to the Appellate Division-Second Judicial Department, and Surrogate where jurisdiction is properly placed. In addition, | enclose the “Statement of Facts” from the Appellate Brief to give you a point of reference as to the facts in time starting in 1981. It is respectfully requested that your Honorable Court recognize it's lack of jurisdiction, or in the alternative set the matter down for a full hearing as to the issue of jurisdiction including the factual findings as to competency and residency. I would point up that in light of the fact I have not been served that any action by your Honorable Court is in violation of the due process clause of the United States Constitution. Please act accordingly. Respectfully submitted, Dean Lynch Husband of Debra Lynch, pro se cc wo/enc.; Appellate Division-Second Judicial Department Hon. Alfred J. Weiner Lourie & Cutler William Frank, Esq. Shays, Kemper Joseph McGlinn, Esq. Appendix 6 47a Decision and Decree of Massachusetts Probate Court [Pages 47a — 48a} COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT PROBATE AND FAMILY COURT DEPARTMENT MIDDLESEX DIVISION DOCKET NO. 97P3465 IN RE: ESTATE OF DEBRA LYNCH MEMORANDUM OF DECISION Respondent, Dean Lynch, the objecting party having failed to appear for pre trial on June 15, 1999: and Respondent having sent a letter to the Trial Department of this Court dated June 10, 1999 in which he. a lawyer by profession, raises the issue of the jurisdiction of this court when the issue, if any, whether or not the court has jurisdiction over Respondent; and The pre trial notice having specifically stated that the case may be ordered to immediate trial on the date of pre trial if it appears to the court that one party, through a failure to appear at the Pre Trial Conference or otherwise will not present a case; the respondent not having raised the conventional objections, viz the issue of domicile or invalidity of the will due to undue influence, lack of Capacity or improper execution, the court finds that he will not present a case and thus orders that the Will be allowed and the executors be appointed. 6/15/1999 s/ acs: Date Beverly Weinger Boorstein Judge of Probate and Family Court 48a Appendix 6 Decree "5, “GMNOD SRVEOUE XASTTAGIN JO - parsIoay ONTISY NIGUVD “Vv aI Pa , ar 2 2 eHPTIMTED.uT “RQAoNNYeeseH JO WA FMeAVOUNNOD ey JO 4XNOD BAeqGoIg BY JO TRee pue puoy sw 44 ‘seeugTn a2207 TInz wu sup rwez, quewquTodde PTVs AeyQ pve ALT oy kq peatnbe2 se . pucgq usaTd evry age gg pres qeya fAarvezponpTz ey 70 quewquTodde jo ee2Dep ey 70 Adoo oTYderBojoNd vo st hutobez0z ey Q0Yy9 A4JT9700 zeyqanz y pue ‘32an0> Pres Zo ePpz0de1 SYA Jo Apoqans Bary F802 Yons _«geuq ‘xeseTpptH 30 AQunoD, eYya UT AI7NOD Ayjureg pure egqeqozg ey Jo Joqsthey oy}. we T YQ AITL UI 2aman peubyszspun oz ‘T tee ° - ODLVO 666l 6 S NAT = was) ca AUNOD A etd 1 I 7 ae Gt tee “e129 SPT OTT OPTI (eeuc ed pies ve. f a a de oq (8 U} PIES WL Peosd0p 9} 1 ‘CyereW epew SDUEP:0008 LU} Payjj0u VeeEq BuABY pelsesa}u; SUCSIED Hy 3348930 ‘ ‘fT, r) ’ ‘ Bujeq suoniseigo ou pue peivesse Guracy 20 me] Oy) WIM PP math . 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Appendix 7 Renehan Affidavit [Pages 49a — 50a] IN THE SUPREME COURT OF THE UNITED STATES ADMINISTRATION PROCEEDING ESTATE OF DEBRA LYNCH a/k/a Debra L. Lynch & Debra Franchi, Deceased Dean Lynch Petitioner Patricia Flaherty, Linda A. Kacewicz, and Michael P. Franchi, Respondents el AFFIDAVIT OF RICHARD W. RENEHAN 1. I am an attorney licensed to practice in the Commonwealth of Massachusetts, and a shareholder in the Boston Jaw firm of Hill & Barlow, located at One _ International Place, Boston, MA 02110. Z. I am also a member of the Bar of the United States District Court for the District of Massachusetts, for the Court of Appeals for the First Circuit, and of the Supreme Court of the United States (admitted as of 1971). 3. This affidavit is submitted in response to the untrue allegations made at pages six and seven of the Petition for Writ of Certiorari filed by Petitioner Dean Lynch, an attorney who is proceeding pro se. In that affidavit Mr. Lynch imaccurately states that I made a “misrepresentation...that Petitioner was the ‘ex-husband’ and that Decedent had been living in Massachusetts for ‘two years Appendix 7 Renehan Affidavit after the divorce’”; and he also inaccurately states that | admitted to the Court that these statements were untrue. 4. First, my statement to the Court that Petitioner was the ex-husband of the Decedent was accurate as of the date made because as of that date the Surrogate Court in New York (in open court) had issued a decree of divorce based on the parties’ Agreement for Divorce. The divorce decree was not entered due to the death of the Decedent. Second, the Decedent had been living in Massachusetts for one year, eight months and a week, or approximately two years prior to her death on September 5, 1996. I never stated to the Court that my statements were untrue. Signed under the pains and penalties of perjury this 14th day of January, 2002. s/ Richard W. Renehan --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1053%3A2. Public record. Not legal advice.