Petition for Writ of Certiorari — Cimini v. Cimini (No. 08-1279)

Supreme Court, U.S.

apy se FILED

\ (y 081279 APR 13 2009

No. 09- __ OF FICE OF THE CLERK

Wilttam K. Suter, Clerk

In the

Supreme Court of the United States

Mark Cimini — Petitioner

VS.

Margaret Cimini - Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE

MASSACHUSETTS

APPEALS COURT FOR THE COMMONWEALTH

PETITION FOR A WRIT OF CERTIORARI

Mark Cimini

12 Maple Road

Westford, MA 01886

978-692-4556

m.cimini@att.net

pro se

Questions Presented:

1. Divorce prior to 1785 was heard by the

Governor and his Council. Between 1785 and

1824 divorce was exclusively heard under the

criminal jurisdiction of the Massachusetts

Supreme Judicial Court. The question for this

court is:

a. Whether the conversion from a criminal

matter to a civil matter should have

preserved the right to a trial by jury

under the Sixth Amendment and Article

XV of the state constitution.

2. Two standing precedents from this court state

that custody can only be adjudicated under

Common Law jurisdiction, that it is a violation

of Due Process to adjudicate in any other

jurisdiction. Massachusetts case law also

shows that custody and_ divorce’ was

determined under Common Law jurisdiction.

Thus the questions for this court are:

a. The contradiction between this court’s

standing precedents regarding

adjudication of custody or parens patric

under Common Law jurisdiction and

modern state case law which prohibits

adjudication under Common Law

jurisdiction?

b. Does the difference between “Best

Interest” hearings under Common Law

jurisdiction versus Equity jurisdiction

violate multiple Constitutional

il

provisions to include the Eighth, Ninth

and Thirteenth Amendment?

3. Under the Common Law, the state or plaintiff

had to show a criminal act occurred to justify

interference in family life. The proven

criminal act was punished in criminal and

civil proceedings, i.e., remedy for injury, not

relative standing based on judicial discretion.

Thus the questions for this court are:

a. Has the shift in the burden of proof and

in burden of persuasion violated Due

Process when changing the jurisdiction

of these matters?

b. Has the Eighth, Ninth, Tenth, and

Thirteenth Amendment been violated in

this change of jurisdiction?

4. Prior to Statutes 1953, c. 505, the Common

Law rule prohibited imposing child support,

criminally or civilly, without showing harm to

a child. Civil disputes regarding child support

always required a trial by jury. Child support

between unmarried couples required a trial by

jury under criminal statutes. Prior to statutes

regarding child support, providing necessities

always required a trial by jury. The questions

for this court are:

a. Has the state unlawfully preempted the

right to a trial by jury in a civil dispute

of child support?

b. Can the state impose the punishment of

child support without any proof of harm

in violation of the Eighth Amendment?

ill

c. Can the state alter the Common Law

protections against unwarranted state

intrusion in violation of the Ninth and

Tenth Amendments?

5. The Massachusetts judiciary role’ in

establishing the child support tormula,

adjudicates child support awards, and derives

an independent revenue stream under Title IV

from the collection of child support. The

question for this court is:

a. Given the judicial involvement in

establishing, adjudicating, and profiting

from child support awards, are people

denied fair and impartial hearings?

6. Given the history of natural right adjudication

of custody, changes to adjudication, and

current historical data which shows that one

gender has been disenfranchised from their

children and subject to punishment without

proven wrongdoing. The question for this

court is:

a. Is there a pattern of Invidious Gender

Discrimination in changes to custody

adjudication?

Parties to the Proceedings:

Mark Cimini, Petitioner, and Margaret Cimini,

Respondent. Respondent was’ represented by

Attorney Gerald Venezia in the state court

proceedings.

iV

Table of Contents

si a sarees ebsbiunucanadivinaayenenee 1

ee eg), a a re lil

Petition for the Writ of Certiorari: ................c.ceceseeeees 1

ais sin atdie dedeisusbesndausaussoonsesiniis 1

Constitution of the Commonwealth of

a eae sca su undbavasenuseuavacexssawedness 5

Ne icc dwihate eusadsioabaien 6

EEE SLE OREO EL OMIT et 6

PR TTIONEE COCR TRIEEG 5a... cov cccsccnseccescecscocessoenceccs 6

I ee GN occ ccnccccccceccsccncowsscnsexesduverwannea 9

Reasons for Granting the Writ: .............cccccceceeeesee eee 10

ai od sw eidutdeenboaneieaeheal 12

ss coon ceavnonid steaseasacnaienieuns 18

I on as dawn pobdnswestioe scckunceninn 23

Ns Os Da cing cnbebacbsncacacesiomenienel 24

aoc ias iaplngebideiueaunareee ao iaubeeee 27

SI MELLIN TIR EEE TY NE 30

EET EMO LET RN ROE ETO EA SS 33

MN i ics eiik icotisWieiinss ditties nana A-1

Supreme Judicial Court for the Commonwealth of

CLE OP SURE TSP ESTEE A-2

PN oo os. 5 -cvaueckidaangniualacocasionpucamncnesaiela’ A-3

The Trial Court Probate and Family Court ....... A-7

ENTER MO te aes A-21

Cases

Alvey v. Hartwig, 106 Md. 254 (1907) .................... 25

Angel v. McLellan, 16 Mass. 28 (1819)............... 24, 26

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ....... 11

Baldwin v. Foster, 188 Mass. 449 (1885) ................. 26

Barber v. Root, 10 MA 260 (1813) ...................... 12, 14

Barry v. Mercein, 46 US 103 (1847) ............. 41, 18, i3

Bigelow v. Bigelow, 120 Mass. 320 (1876)........... 9, 13, 14, 15

Bonham's Case, 8 Reporter 115 (1610) ...............0... 27

Brow v. Brightman, 186 MA 187 (1884) ................... 17

Clarke v. Clarke, Massachusetts Archives Collection,

pK a es § eo Oe ee yb 13

Cocke v. Hannum, 39 Miss. 423 (1860) .................... 20

Commonwealth v. Clark, 2 Mass. 156 (1806) .......... 32

Commonwealth v. Hammond, 27 Mass. 274 (1830) 22

Commonwealth v. Knowlton, 2 Mass. 530 (1807)....26

Commonwealth v. Leach, 1 Mass. 59 (1804)............ 26

Creely v. Creely, 258 Mass. 460 (1925).................008. 24

Crocker v. Justices of the Superior Court, 208 MA

esse csnisssteases 26

Cure & OC artie. 7) NiSss. 530 (1E5S) ............scccceresee 22

Dennis v. Ciark, 66 MA S47 (1848) ..............cccossssecee 17

Department of Revenue v. Ryan R., 62 Mass. App. Ct.

NE i aia ecb niatancsendandtdcdassticesencesios Sunes 27, 28

Doole v. Doole, 144 Mass. 278 (1887) ..................0008 13

Dumain v. Gwynne, 92 Mass. 270 (1865)................. 31

Ex Parte Barry, 43 U.S. 65 (1844) ..............cccccceccceee: 18

Ex parte Winn, 48 Ariz. 529 (19386) ...................ce cece 30

Pinch v. Finch, 22 Conn. 411 (1853) .....................0.. 15

Foss v. Hartwell, 168 Mass. 66 (1897)................ 26, 30

Harvard v. Head, 111 Mass. 209 (1872)..........0.0.0000 12

Hibbette v. Baines, 78 Miss. 695 (1900) ................... 21

Hill v. Wells, 23 Mass 104 (1828) ...........ccccceceeees 16, 32

in ye perry 42 F. 11a (1G44) ........................ 11, 18, 19

In re Burrus, 136 US 586 (1890) ...................... passim

In re Campbell, 130 Cal. 380 (1900)......................... 21

Kennedy v. Mendoza-Martinez, 372 U.S. 144, (1963)

a ae nsiv siniknldamenbeonee 23

Kirby v. Kirby, 338 Mass 263 (1959) .............. ccc eeceee 24

Lucas v. Lucas, 69 Mass. 136 (1854)....................00 10

Marbury v. Madison, 5 US 137 (1808) ...........0000.. 1, 37

v1

Mercein v. Barry, 25 Wend 64 (1840)................. 19, 20

Mercein v. Barry, 46 US 103 (1847) ....................... 2,9

Miller v. Miller, 150 Mass. 111 (1889) ...........000.00.... 10

Phillips v. Blatchford, 137 Mass. 510 (1884)........... 26

Pidge v. Pidge, 44 Mass. 257 (1841)............. 12,13, 14

Purinton v. Jamrock, 195 Mass. 187 (1907)............. 21

Reynolds v. Davidow, 200 Miss. 480 (1946)............. 30

Reynolds v. Sweetser, 81 MA 78 (1860).................... 16

Rotch v. Miles, 2 Conn. 638 (1818) .................2.eeeeeee 30

Sackett v. Sackett, 25 Mass. 309 (1829) ................... 26

State v. Richardson, 40 N.H. 272 (1860).................. 30

Tornroos v. R. H. White Co., 220 Mass. 336 (1915) .31

U.S. v. Green, 26 F. Cas. 30 (3 Mason, 482) (1824) .22

United States v. Halper, 490 U.S. 435, (1989) ......... 24

Wharton v. Wharton, Massachusetts Archives

Collection, Vol. 009, Page 068 (1675)................... 13

Whipple v. Dow, 2 Mass. 415 (1807).......................84 30

Worcester v. Georgia, 31 U.S. 515; (1832) ................ 10

Wright v. Wright, 2 Mass. 109 (1806)....................4 30

Federal Constitutional Issues

TIME AMMONGMCNL.................cccccccssocescosssesensees passim

Ne... covcacsapnscosnecosestseaessene 1, 4, 22

POUrcnent AMIGNGMICNT ..................0...cccccccseccsnececes 1,5

BI PEMIRINNENS cs cescsccctvessveccsoncvcccacsebecesconees 1, 4

ROI WUMINIIIINING fo 5... cncesccscesscccorsnscccsccesessecsons passim

a... cascssesescausdsavesarnecedngenseie 15

SN AN ion... sccnsssersessnsecccessersnssesnens passim

i, csscsevescedvessavecsevsuestarssess passim

Thirteenth Amendment ......................ccccccsesesses 1,5, 16

Federal Statutes

EE Se EID. 5 cs evnucaddsndsscssonenseccnckebieaebas 4,

93 |

Vil

State Constitutional Issues

State Statutes

Pe I ©, 2. Bia sissnsccsscessscessccscvccncsecarss 6,17

RURMMCRNONE BTU, GUMIIOE GOP... cccccccncccssccccccsucasconses 6, 28

statutes 1835, Chanter 76..............c.cccsccccssosessesees 6, 28

SAR, WUE WR in.) cecssaccvovacsonceonssedss 7,13, 14

Statutes 1882, Chapter 146...................sescccsscccosee 7, 28

NE Bg RE a EE Re ee 8, 32

PIRGEIEGR 1G E, ©; GID i ccssesas csconcecncsvsccsccscses 8, 21, 24, 25

Other Authorities

A, UI os ac supuhduaseds igauauedeneaswaidacce 17

Blackstone's Commentaries on the Laws of England,

Book the Third - Chapter the Third : Of Courts in

RI cehaviicd. cussed chadgidateabieks trackhuvek ddan Gulnuains 28

Examining Decision Making in a Family Court: The

Reconstruction of Fatherhood by the Legal System

pee taUU RDI eA Piette ncaa dinate Gduconebbsdiwhaasnst skasanuussuaseusye bes 31

Massachusetts Body of Liberties...........................008 13

No-Fault Divorce: Born in the Soviet Union?”,

POUT OE FMI GAO Bins ova cckcdisssonccencsccseceesees 29

Ownership, Oxford Essays in Jurisprudence .......... 22

Petition for the Writ of Certiorari:

Petitioner Mark Cimini respectfully petitions for a

writ of certiorari to review the judgment of the state

courts which contradicts federal laws, including two

standing precedents of this court, brings into

question the impartiality of the state court system,

and bars consideration of any and all federal issues

in Family Law matters.

In direct conflict of the requirements of the

Constitutions of the United States! and two standing

orders from this court?, Massachusetts adjudicates

custody, child support, and divorce under equity

jurisdiction.

The state judiciary’s role in establishing the child

support guidelines, adjudicating child support, and

deriving an independent revenue stream from child

support awards calls into question the impartiality of

the state courts.

Additionally the state imposes harsher

punishment without identified wrongdoing under

‘equity’ jurisdiction that was ever imposed under

Criminal or Common Law jurisdiction for criminal

actions proven in a court of law. As a result the state

courts have deprived the petitioner of at least the

Fourth, Fifth, Sixth, Eighth, Ninth, Tenth,

Thirteenth, and Fourteenth Amendment as well as

Liberty Interest and Happiness.

Opinions Below:

1 Marbury v. Madison, 5 US 137 (1803) “[A] law repugnant to

the Constitution is void, ...”

2 Mercein v. Barry, 46 US 103 (1847) and Jn re Burrus, 136 US

586 (1890)

The trial court opinion of the Middlesex Probate

and Family Court (hereafter P&F Court),

Massachusetts Appeal Court (hereafter Appeals

Court, unpublished case number 73 MA 1112 (2009)),

motion for rehearing denied January 21, 2009, and

the rejection of the request for Further Appellate

Review (hereafter FAR, unpublished case number

453 MA 1104 (2009)) by the Massachusetts Supreme

Judicial Court (hereafter SJC) without comment’.

All of the issues presented herein were presented to

each of the state courts. The P&F Court stated it

only dealt with “the statutory construction of the

laws” and the Appeals Court stated its legislative

construction prohibited it from any rulings contrary

to an SJC ruling. The FAR dismissal was rendered

25 February 2009 leaving this conflict unaddressed

in the Massachusetts courts.

Although the Appeals court noted that the

Plaintiffs challenge was regarding the jurisdiction of

the P&F court, an equity court, to determine these

matters (see Appendix B “His claims challenge

jurisdiction and assert violations of constitutionally

based rights and guarantees, including in particular

a claimed right to trial by jury.”) did not address any

of the changes to Family Law identified in the

petitioner’s pleadings or the contradiction with this

court’s standing rulings; the Appeals Court clearly

stated that it is prohibited from making any

determination contrary to an SJC ruling, regardless

of any apparent conflict with the federal Constitution

or this court’s standing precedents. In particular the

Appeals Court failed to address that this court has

* Complete history available on line at http://www.ma-

appellatecourts.org/display_docket.php?dno=2007-P- 1836

twice ruled that custody determinations require

Common Law jurisdiction, see Mercein v. Barry, 46

US 103 (1847) and Jn re Burrus, 136 US 586 (1890),

whereas adjudicating parens patric being a Due

Process violation in any other jurisdiction.

The state has very cleverly ignored key case law

and changes in statutes to avoid the appearance of

ignoring federal issues in its modern statutory

construction of Family Law, specifically:

Z. The changes in jurisdiction, both the:

a) Contradiction between this court’s two

standing precedents which state that

custody can only be determined under

Common Law jurisdiction and the SJC

stating that custody can be determined

under equity jurisdiction.

b) The implication that divorce was a

criminal matter between 1785 and 1836

with the Sixth Amendment protections

ignored in the state courts.

2. The question regarding fair and impartial

courts given the role of the courts in

determining the child support formula,

adjudicating child support, and deriving an

independent revenue stream based on child

support,

3. Whether the changes identified in family law

since the signing of the federal Constitution

meet strict scrutiny requirements,

4. The effect of shifting the burden of proof and

burden of persuasion in imposing punishment

based on judicial discretion, not identified and

proven harm and the resultant impact on

Constitutional and natural rights.

The Appeals Court clearly stated (See Appendix B -

“from the very earliest decisions we issued and

continuing to this day, we have uniformly and

unequivocally held we have no power to alter,

overrule or decline to follow the holding of cases the

Supreme Judicial Court has decided.”) it is barred

from determining federal issues presented hence

rendering its decision in this matter void.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Fourth Amendment, pertinent part, “The right of

the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures, shall not be violated, and ...”

Fifth Amendment, pertinent part, “No person shall

... be deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.”

Sixth Amendment, pertinent part, “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury ...”

Seventh Amendment, pertinent part, In Suits at

common law, ... the right of trial by jury shall be

preserved, ....

Eighth Amendment, pertinent part, “... nor cruel

and unusual punishments inflicted.”

Ninth Amendment, reads, “The enumeration in the

Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people.”

Tenth Amendment, reads, “The powers not

delegated to the United States by the Constitution,

nor prohibited by it to the states, are reserved to the

states respectively, or to the people.”

Thirteenth Amendment, Section 1, reads “Neither

slavery nor involuntary servitude, except as a

punishment for crime where of the party shall have

been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.”

Fourteenth Amendment, Section 1, pertinent part,

“... nor deny to any person within its jurisdiction the

equal protection of the laws.”

Constitution of the Commonwealth of

Massachusetts:

Declaration of Rights, Article XV, reads, “In all

controversies concerning property, and in all suits

between two or more persons, except in cases in

which it has heretofore been otherways used and

practiced, the parties have a right to a trial by jury;

and this method of procedure shall be held sacred,

unless, in causes arising om the high seas, and such

as relate to mariners' wages, the legislature shall

hereafter find it necessary to alter it.”

Declaration of Rights, Article XXIX, pertinent

part, “It is essential to the preservation of the rights

of every individual, his life, liberty, property, and

character, that there be an impartial interpretation

of the laws, and administration of justice. It is the

right of every citizen to be tried by judges as free,

impartial and independent as the lot of humanity

will admit.”

Statutes Involved:

Federal Statutes

28 U.S.C. §1257(a). Jurisdiction and venue: State

courts; certiorari. Final judgments or decrees

rendered by the highest court of a State in which a

decision could be had, may be reviewed by the

Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute

of any State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or laws

of the United States, or where any title, right.

privilege, or immunity is specially set up or claimed

under the Constitution or the treaties or statutes of,

or any commission held or authority exercised under,

the United States.

Massachusetts Statutes

Statutes 1692-3, Chapter 18: An Act For the

Punishment of Criminal Offenders

Fornication [Sect. 5] [pertinent part]

That if any man commit fornication with any single

woman, upon due conviction thereof they shall be

fined unto their majesties not exceeding the sum of

five pounds, and be corporally punished by whipping,

not exceeding ten stripes apiece, at the discretion of

the sessions of the peace who shall have cognizance

of the offence.

Statutes 1785, Chapter 69, Provided always, That

no decree of divorce for or on the account of adultery

shall bar the issue of such marriage from inheriting,

but the decision of the right of such child or children

to inherit shall be tried and settled upon the

principles of common law, in the:same manner as

though this act had never been made.

Statutes 1835, Chapter 76, Section 20, “A divorce

for the cause of adultery, committed by the wife,

shall not affect the legitimacy of the issue of the

marriage, but the legitimacy of the children, if

questioned, shall be tried and determined according

to the course of common law.”

Statutes 1838, CHAP. CXXVI, An Act relating to

Divorce.

BE it enacted by the Senate and House of

Representatives, in General Court assembled, and by

the authority of the, same, as follows:

SEC. 1. A divorce from the band of matrimony may

be decreed, in favor of either party, whom the other

shall have wilfully and utterly deserted for the term

of five years consecutively, and without the consent

of the party deserted.

SEC. 2. When a divorce is decreed for the cause of

desertion by the husband as aforesaid, the same

proceedings shall be had, touching the estate of the

wife or the alimony to be allowed her, as in the case

of divorce on account of the husband's being

sentenced to confinement to hard labor, or from bed

and board.

Statutes 1860, Chapter 107, Section 13, [pertinent

part] “Libels for divorce shall be heard and

determined in the supreme judicial court held for the

county in which, or for two or more counties in either

of which, the parties or one of them live. When heard

before a single judge, either party may _ take

exceptions in the same manner and with the same

effect as in suits at common law.”

Statutes 1882, Chapter 146, sect. 12. [pertinent

part] When the hbel is filed in vacation in the office

of the clerk of the court, such attachment may be

made upon the summons issued thereon, in the same

manner as attachments are made upon writs in

actions at common law

Statutes 1913, Chap. 563 [pertinent part]

An Act Relative To Illegitimate Children And Their

Maintenance.

Be it enacted, etc., as follows:

Courts having jurisdiction of complaints in cases of

maintenance, etc., of illegitimate children.

SECTION 1. Whoever, not being the husband of a

woman, gets her with child shall be guilty of a

misdemeanor.

Statutes (Acts) 1953, Chapter 505

AN ACT RELATIVE TO THE SUPPORT OF MINOR

CHILDREN BY THEIR PARENTS.

Be it enacted, etc., as follows:

Section 8 of chapter 273 of the General Laws, as

appearing in the Tercentenary Edition, is hereby

amended by adding at the end the following

sentence: The legal duty of the parent or

parents to support a minor child shall continue,

notwithstanding the absence of a court decree

ordering them or either of them to pay for the

support of said child shall continue notwithstanding

any court decree granting custody of such child to

another; provided, however, that where decree

stipulates an amount to be paid by them or either of

them for said child's support they shall not be

obligated in excess of that amount.

ee

Statement of the Case:

This petition arises out of the fact that there is a

clear contradiction between rulings from this court

and laws of Massachusetts and that all federal issues

and questioned raised in the Massachusetts state

courts are barred from a full and proper hearing

because of the SJC’s interpretation of Article XV of

the Massachusetts Constitution. The Petitioner

raised several federal Constitutional issues

regarding conflict with this court’s standing rulings

and the substantial changes in the adjudication of

divorce, custody, and child support (hereafter Family

Law) during the lengthy proceedings in the state

court, including the fact that the SJC’s

interpretation of Article XV directly contradicts two

standing precedents from this court which states

that custody must be determined under Common

Law jurisdiction, see Mercein v. Barry, 46 US 103

(1847) and Jn re Burrus, 136 US 586 (1890), and is a

violation of Due Process to adjudicate custody under

any other jurisdiction.

The P&F Courts stated outright that they do not

deal with federal Constitutional issues and limit

themselves to a “statutory construction of the laws.”

The fact that the P&F Court does not deal with

federal issues and all of the federal issues were again

presented to the Appeals Court.

The Appeals Court responded by confusing the

issue with the determination and process of the P&F

Court, not the conflict with this court’s rulings or

jurisdiction issue or federal issues. Additionally the

Appeals Court noted that their construction

precluded ruling contrary to SJC case _ law,

regardless of any apparent contradictory federal

10

issues raised. The SJC, in denying the FAR, allowed

the apparent conflict with federal issues and direct

conflict with this court’s ruling to be disregarded in

favor of state precedents.

The state uses Bigelow v. Bigelow, 120 Mass. 320

(1876) to deny the right to a trial by jury but fails to

address the changes to Family Law since that ruling

or address the separate and distinct issue dealing

with non-abandonment, non-neglect, non-abuse civil

child support which always had the right to a civil

trial by jury. Also, the state has never addressed the

criminal adjudication of Family Law prior to 1836 in

Massachusetts.

Reasons for Granting the Writ:

Fundamentally the state is imposing harsher

punishments currently under equity jurisdiction

than was previously imposed for criminal behavior

under criminal and Common Law jurisdiction. This

change from harm based adjudication under criminal

and Common Law jurisdiction means that innocent

people are subjected to horrific punishments without

Due Process of law’.

Divorce, child support, and custody

determinations were punishments made because of

an injury, a criminal breach of conduct, a violation of

a natural law obligation, NOT state ideology, NOT

judicial discretion, see Lucas v. Lucas, 69 Mass. 136

(1854) (divorce is a “...suit brought by one person

against another to obtain redress for himself for an

4 Worcester v. Georgia, 31 U.S. 515; (1832), “It cannot be less

clear when the judgment affects personal liberty, and inflicts

disgraceful punishment; if punishment could disgrace when

inflicted on innocence.”

11

injury done him.”); Miller _v. Miller, 150 Mass. 111

(1889) (“Because the deserter is a wrongdoer, the law

gives the deserted party a right to a divorce.”).

Some of the major changes to Family Law since

the Governor and his Council adjudicated these

matters include:

1. Conversion from criminal punishment to a civil

dispute,

2. Conversion from a Common Law jurisdiction to

equity,

3. Changing the Common Law rule that forbid

imposing child support or ‘necessities’ under civil

hearings unless harm to the child was proven.

4. Going from harm based adjudication to opinion

based determination and punishment.

5. Punishing innocent people with harsher

sanctions than in criminal and Common Law civil

proceedings.

These changes to Family Law have not met the

strict scrutiny requirements per this court’s rulings

and has devolved into imposing ideology backed with

state police power and imposing punishment without

wrongdoing, thus the claim of peo. iage.

Ankenbrandt_v. Richards, 504 U.S. 689 (1992)

questions the origin of federal abstentions regarding

Family Law. Barry v. Mercein, 46 US 103 (1847); Jn

re Burrus, 136 US 586 (1890), and Jn re Barry, 42 F.

113 (1844) conclusively show that the abstentions

originate in the federal court’s lack of Common Law

jurisdiction, not comity, not federalism, jurisdiction.

Additionally these three cases claim that state courts

are better equipped to handle the subtle variations of

the Common Law in the various states.

First Question

The state claims that since divorce was heard,

prior to 1785, by the Governor and his Council all

federal issues are void. The state has never

addressed the criminal adjudication of these matters

prior to 1838 nor the changes to Family Law with

regard to federal issues.

Between 1785 and 1824 divorce was exclusively

heard under the criminal jurisdiction of the SJC, see

Pidge v. Pidge, 44 Mass. 257 (1841). Thus at the

signing and ratification of the US Constitution

Family Law was a criminal matter, see Barber uv.

Root, 10 MA 260 (1813) (Regulations on the subject

of marriage and divorce are rather parts of the

criminai than of the civil, code; ...”) and Harvard uv.

Head, 111 Mass. 209 (1872), (“Divorce proceedings

are criminal in their nature, and the public is a

party.), and thus is entitled to Sixth Amendment

protections.

Additionally Barber states:

“A divorce, for example, in a case of public scandal

and reproach, is not a vindication of the contract

of marriage, or a remedy to enforce it; but a

species of punishment, which the public have

placed in the hands of the injured party to inflict,

under the sanction, and with the aid, of the

competent tribunal, operating as a redress of the

injury, when, the contract having been violated,

the relation of the parties, and their continuance

in the marriage state, has become intolerable or

vexatious to them, and of evil example to others.”

Arguably the Governor and his Council were

imposing life-long, criminal punishments for criminal

“

13

actions by taking away multiple natural rights.

These natural right included: the right to marry

again, the natural right to have sex (since the right

to have sex was tied to marriage), and the right to

beget legitimate children. Also note that adultery

was a capital offense under the Massachusetts Body

of Liberties (1641). Arguably, given that the matter

was transferred under the criminal jurisdiction of

the SJC in 1785, additional weight to the argument

that the Governor and his Council were in fact

implementing a criminal, not civil, process and hence

the interpretation of Article XV by the state is void.

There is no example in the public records of the

Governor and his Council ever implementing a

change of custody or imposing child support, see

Clarke v. Clarke, Massachusetts Archives Collection,

Vol. 009, Page 221-222 (1737), Wharton v. Wharton,

Massachusetts Archives Collection, Vol. 009, Page

O68 (1675)5. The Governor and his Council only

implemented divorce when presented with a criminal

conviction of adultery or some other crime. Freeing

the innocent party of the constraints imposed on

their personal liberties because of the criminal

conduct of the other party was the object of the

petitions, see Clark and Wharton above.

Even after the Governor and his Council

adjudicated these matters, the courts also were

concerned with freeing the innocent party of

constraints on their personal! liberties, see Doole_v.

Doole, 144 Mass. 278 (1887), (“...praying that the

court would prohibit the husband from imposing any

restraint on her personal liberty, ...”); Bigelow _v.

5 Summaries available on-line at http://www.sec.state.ma.us/

14

Bigelow, 120 Mass. 320 (1876) (“... authorizes this

court to prohibit the husband from restraining the

personal liberty of the wife, ...”).

In Pidge v. Pidge, 44 Mass. 257 (1841), the case

which cites Statutes 1838, c. 126 as “great change is

introduced, and a divorce from the bond of

matrimony may be now decreed without any crime

having been committed by the libellee”, the right to a

trial by jury is clearly stated regarding who, jury or

judge, determines the facts of a divorce:

“It was held by the whole court, in Houliston v.

Smyth, 3 Bing. 127, that where the wife leaves the

husband, under such an apprehension of personal

violence, as a jury shall deem to have been

reasonable, her husband is liable for necessaries

for her support.” [Emphasis added]. Pidge uv.

Pidge, 44 Mass. 257 (1841)

Hence the Common Law matter of divorce did

have a trial by jury over the interpretation of the

facts. This right has been preempted due to the

modern misinterpretation of Article XV.

That means prior to Statutes 1838, c. 126 the SJC

heard Family Law matters under its criminal

jurisdiction, see Barber v. Root, 10 MA 260 (1813)

(“Regulations on the subject of marriage and divorce

are rather parts of the criminal, than of the civil,

code; ...”).

The conversion from a criminal matter to a civil

matter should have 1) preserved the right to a trial

by jury under the Sixth Amendment and 2)

preserved the right to a trial by jury as a ‘new’ civil

matter under Article XV.

15

Bigelow v. Bigelow, 120 Mass. 320 (1876) is a case

of punishment of a father for the criminal

abandonment of his wife and children. This is

separate and distinct from the instant case, and most

cases, since there has never been an accusation

criminal behavior against the petitioner.

The changes since Bigelow include imposing child

support without proving harm to the child and

imposing child support under a purely civil hearing.

Bigelow, was a case of state imposed punishment for

abandonment. Its roots are in the criminal

proceedings between 1785 and 1838. Imposing child

support as a criminal punishment for abandonment

per Bigelow versus imposing child support under an

equity determination of relative parenting ability is a

violation of Due Process because of the shift in the

burden of proof and burden of persuasion.

Furthermore, Bigelow explicitly acknowledges

that the matter is under Common Law jurisdiction.

The plaintiff in Bigelow raised the issue of the

Seventh Amendment right to a trial by jury. The

court dismissed this issue, not by stating it was an

equity matter but by stating, “The seventh article of

amendment of the Constitution of the United States

... does not apply to the state courts.”

The state in using Bigelow in modern ‘no-fault

divorce’ is imposing the punishment once reserved

for criminal behavior. In fact the state is imposing

harsher punishment since under the Common Law

only necessities were allowed®. Instead the state

now requires a percentage of income without the

6 Finch v. Finch, 22 Conn. 411 (1853) provides an example bill

for necessities at the appellate level

16

ability to challenge the _ necessities issue.

Additionally the state’s ability to impute or

determine income means that a person’s choice of

how to earn a hiving is bounded by the state’s

expectations, i.e., imposing restraints on personal

liberty, and hence there is a claim of violating the

Thirteenth Amendment in these non-punishment

proceedings.

Initially there were three separate and distinct

types of child support:

1. Civil proceedings regarding providing

necessities for a child had the right to a trial by jury.

2. Unmarried men were criminally responsible for

providing support and had the right to a trial by jury

(under Bastardly and Begetting statutes).

3.Married men abusing or abandoning their

children, the state contends, never had the right to a

trial by jury.

Point 1 above has already been shown above.

Additionally there are cases such as:

“The court instructed the jury, upon these facts,

that, if he made no suitable support for the child

at home, he was liable for that which its mother

procured to be afforded by the plaintiff.” Reynolds

uv. Sweetser, 81 MA 78 (1860)

Point 2 can be shown with multiple cases such as

Hill v. Wells, 23 Mass 104, 106 (1828):

“One other consideration fully confirms us in this

construction. By St. 1800, c. 44, the Court of

Sessions for the county of Suffolk was deprived of

a jury. If therefore the jurisdiction was not

17

transferred in 1800 to the Municipal Court, but

remained in the Sessions, the latter court was

unable to execute the laws of bastardly, because,

by the act, prosecutions under it were to be tried

by jury; and the legislature had deprived the court

in which alone they had vested the jurisdiction, of

the means of trying the complaints in the only way

in which by law they could be tried.”

Historically, unmarried men did not pay the

mother of the bastard child but instead posted a

bond to the town, see Statutes 1692-3, c. 18, §5.

Regarding Point 3 above, child support as a

punishment is a statutory construction of the laws’;

thus, arguably, prior to the statutory construction of

child support as punishment, the only mechanism for

necessities for a child in cases of abuse or

abandonment was a trial by jury. Thus, following

the state’s logic, once child support as a punishment

became statutory these’ statutes unlawfully

preempted the Common Law method of providing for

necessities, 1.e., trial by jury.

Such proceedings to collect child support could not

be supported in England, see Dennis v. Clark, 56 MA

347 (1848) (doubting “whether such action could be

maintained”, i.e., child support hearings, in English

courts).

Sanctions for abuse or abandonment meets this

court’s definition of punishment but what purpose

does punishing one parent regardless of their

actions? More on punishment versus remedial and

ameliorating actions below.

7 Brow _v. Brightman, 136 MA 187 (1884) and discussion

regarding this case at 18 Cent. L.J. 469, 1884

18

Imposing on one gender, i.e., overwhelmingly men,

an obhgation, once imposed as punishment for

criminal actions, meant to deter and ameliorate

behavior, without the benefit of the reciprocal or

corresponding rights under the Common Law is

clearly a violation of the Eight Amendment.

Additionally, it is part of a pattern of Invidious

Gender Discrimination.

Article XV must be interpreted in conformance to

the Sixth and Eighth Amendments, the right to a

trial by jury for the civil dispute of divorce and child

support, constraints on personal liberties, the Eighth

Amendment, and the Due Process determinations

made by this court. Additionally, this petitioner

claims that there is a Due Process violation that

occurred when converting from Common Law

adjudication where harm had to be proven to one

where there is no harm, only state ideology under

the guise of equity determinations. Adjudicating

once criminal matters under equity without a trial by

jury and without any identified wrongdoing is a

violation of the Sixth Amendment, Due Process, and

the Common Law right to a trial by jury over the

civil dispute of child support.

Second Questions

This court twice stated, relying on Jn_re Barry, 42

F. Cas. 945 (1844), that it is a violation of Due

Process to adjudicate custody under any jurisdiction

but Common Law, see Barry v. Mercein, 46 US 103

(1847); In_re Burrus, 136 US 586 (1890). Both of

these case use Jn r rry’s assertion that parens

partie require Common Law jurisdiction. Another

view of custody jurisdiction supporting this is Ex

Parte Barry, 43 U.S. 65 (1844).

19

Specifically in Burrus:

“Judge Betts, who delivered a very careful and a

very able opinion, which has been furnished to us,

in which he held that his court could not exercise

the common law function of parens patriz, and

therefore had no jurisdiction over the matter, ...”,

In re Burrus, 136 US 586 (1890)

With Judge Betts stating:

“I close this protracted discussion by saying that I

deny the writ of habeas corpus prayed for because

(1) if granted, and a return was made admitting

the facts stated in the petition, I should discharge

the infant on the ground that this court cannot

exercise the common-law function of parens

patric, and has no common-law jurisdiction over

the matter ...”, Jn re Barry, 42 F. 113 (1844)

Note that the Jn re Barry decision was appended

in its entirety to the Jn re Burrus decision.

No other jurisdiction could be found that

permitted the state to interfere as parens patrie

except Common Law jurisdiction, even taking into

account the foreign citizenship of one of the parents,

not even equity jurisdiction.

Mercein v. Barry, 25 Wend 64 (1840) is the New

York state case that leads to Jn_re Barry and Barry v.

Mercein. In it you find nineteen pages of debate

between which Common Law rules should be

followed. The Common Law rules which had been in

place since time immemorial or the new invention

from England, the “Tender Years Doctrine”. A new

set of rules based on a reinterpretation of the laws of

20

nature, not judicial discretion. Just new Common

Law rules:

“The law of nature has given to her an

attachment for her infant offspring which no other

relative will be likely to possess in an equal

degree. And where no sufficient reasons exist for

depriving her of the care and nurture of her child,

it would not be a proper exercise of

discretion in any court to violate the law of

nature in this respect” [Emphasis added],

Mercein v. Barry, 25 Wend 64 (1840)

An equally clear description of this jurisdictional

issue can be found in Cocke v. Hannum, 39 Miss. 423

(1860):

“The legal question presented by the record in this

cause must be examined by the light of the

decisions of the courts of common law, and not by

that of decisions in courts of equity, acting on their

claim to jurisdiction over infants as representing

the parens patriae. Even courts of equity disclaim

any power to deal with the persons of infants or to

contro] their custody, except where they are wards

of court or owners of property. The only ground on

which courts of equity could assume jurisdiction

here would be that the infant was not an orphan

and yet owned property, and then only on the

ground that the jurisdiction of the Court of

Probates in such case to appoint guardians was

conferred by statute only, which did _ not

8 And later noting: “There cannot be a tyranny more grievous

than that which would be wrought by judges, if allowed to

determine the proper custody of a child by running a parallel

between the merits of contending parties.”

21

necessarily affect the jurisdiction in equity. It will

lie found that courts of equity have exercised a

very liberal discretion on this subject in England,

but at the same time it has been admitted that

their jurisdiction could only attach on account of

the ownership of property by the minor. See

Wellesley v. Duke of Beaufort, cited by Talfourd,

J., In re Hakeman, 74 Eng. C. L. R. 222.”

Best Interest under Common Law jurisdiction

never imposed any restrictions on personal liberties®

nor child support (it could not impose CS because of

the point infra regarding Statutes 1953, c. 505).

Also, Common Law Best Interest was never used to

interfere with the natural right to custody. Under

Common Law jurisdiction rescuing a child was the

only valid implementation of parens patrie. Best

Interest under Common Law jurisdiction first had to

address the question of natural right (and right of

property) and if no one retained a natural right, then

and only then could the state act "in the best interest

of the child" !°.

Best Interest under Common Law jurisdiction first

had to address the question of natural right and if no

one retained a natural right. then and only then,

could the state act "in the best interest"!!. “Best

Interest” determinations under Common _ Law

jurisdiction were made to rescue a child who lacked a

legal guardian not the unbounded imposition of

judicial discretion.

®° Hibbette v. Baines, 78 Miss. 695 (1900) analyzing over 40 cases

across the country.

10 Ibid

1! Thid

22

Also note that in cases such as Purinton_uv.

Jamrock, 195 Mass. 187 (1907) and In re Campbell,

130 Cal. 380 (1900) before the state could make any

“Best Interest” determination it not only had to show

that the parent no longer had valid custody rights

but that the ‘right of property’ with regard to the

parent-child relationship was also void. This

Common Law right of property is not the vulgar

concept of possession but a legal concept involving

specific protections!2 the state was instituted to

guard. The state has failed to address how this right

of property, protected under the Fifth Amendment,

can be so easily dissolved in civil cases under equity.

Going from criminal and civil punishments for

criminal behavior, e.g., abuse, abandonment, or

adultery, to judicial discretion based on perception of

relative parental abilities is a violation of Due

Process. This claim of shifting the burden of proof

and burden of persuasion is a violation of Due

Process and must be addressed by this Court.

Children, as young as eleven in Massachusetts,

under Common Law jurisdiction, could express their

preferences to the court regarding custody and under

Common law _ jurisdiction their wishes, see

Commonweaith _v. Hammond, 27 Mass. 274 (1830)

and Curtis v. Curtis, 71 Mass. 535 (1855), and hence

a child’s personal liberties were respected by the

_ Court, as long as the choice was of acceptible people

or persons}, 1.e., no “Best Interest” determination.

'2*QOwnership”, Oxford Essays in Jurisprudence, A.M. Honore,

1961, 1967.

13“... if the infant be of sufficient discretion it will also consult

its personal wishes.”, U.S. v. Green, 26 F. Cas. 30 (3 Mason,

482) (1824).

23

Thus the state, in misusing the term “Best

Interest” under equity jurisdiction, has violated

multiple state and federal Constitutional issues.

Custody determinations under equity jurisdiction are

void and violated Due Process per two of this court’s

standing precedents by unlawfully adjudicating

parens patric under equity.

Third Questions

Whereas, under Common Law and Criminal

jurisdiction, the state needed an underlying criminal

act to impose:

1) restraints on personal liberties (to include

incarceration),

2) impose the punishment of child support, and

3) impose the punishment of divorce,

now all that is required under equity jurisdiction is a

judicial opinion and state police power.

Jail being the state's coercive means in case of

failure to comply with a court order now means that

intrusions into’ personal liberties, including

incarceration, is ultimately based on _ judicial

discretion, not underlying criminal acts. Criminal

punishment based on judicial opinion not proven

criminal act is a fundamental violation of the trust

between the people and =the government.

Punishment based on being considered by the state

to be the lesser of two parents is Unconstitutional.

Going from punishment for criminal behavior to

arbitrary judicial opinion violates Due Process,

imposes arbitrary restrictions on personal lhberties,

imposes punishment without wrongdoing, and a host

of other Constitutional violations. What we have

now is state ideology backed-up with police power

24

versus what was originally conceived as a social

compact to protect individual rights.

This court has said that civil punishments must

have some deterrent and remedial aims, see Kennedy

uv. Mendoza-Martinez, 372 U.S. 144, (1963) (a seven

part test). And also, United States v. Halper, 490

U.S. 435, (1989). But the state P&F courts the goal is

not civil punishment of the _ state created,

disadvantaged class of "non- .cstodial parents" but

civil rewards to those that generate more Title IV-

D money for the judiciary (see the discussion of

Department of Revenue v. Ryan R., infra).

Punishment of innocent people serves no purpose.

If divorced parents have a civil dispute over some

shared expense for a child a trial by jury is the

proper and Constitutional mechanism. Punishment

without proven wrongdoing is a violation of the

Eighth Amendment and Due Process. Changing the

jurisdiction has violated the Ninth and Tenth

Amendments.

Fourth Questions

Statutes 1953, c. 505 changed the Common Law

rule which prohibited imposing child support or

providing necessities to a child without showing

some harm to the child, see Kirby v. Kirby, 338 Mass

263 (1959). Hence, until 1953, child support, civil or

criminal, could only be imposed as a punishment for

a criminal act of abuse or abandonment or as a civil

punishment for neglect. The Common Law

prohibited any type of child support without showing

some harm to the child, see Angel v. McLellan, 16

Mass. 28 (1819), Baldwin v. Foster, 138 Mass. 449

(1885), Creely v. Creely, 258 Mass. 450 (1925).

25

The Petitioner in Kirby asked what happened to

the Common Law rule, “... that a father who is

deprived of the custody of his child by order of court

has no common law duty of support.”'4 Multiple

Massachusetts cases were cited showing this rule’s

effect in Massachusetts law. The answer from the

court was that St.1953, c. 505 changed the Common

Law rule requirement of showing harm to impose

child support.

Arguably all that Statutes 1953, c. 505 did was

allow a civil trial by jury over a civil dispute over

necessities for a child between divorced parents.

Something that would not have been permitted

under the Common Law because of the requirement

of showing harm. But imposing the punishment of

child support, reserved for the criminal] act of abuse,

abandonment, or neglect, without a showing of harm

would violate the Sixth Amendment; however, a trial

by jury would still be permitted.

Hence, until 1953, child support could only be

imposed as a punishment for a criminal act of abuse

or abandonment or civilly where harm was shown. It

is a fundamental violation of Due Process and the

Eighth Amendment to impose what ts historically a

punishment without identified and proven

wrongdoing.

The state uses case after case where a father —

and only the father since mothers could not be held

legally responsible for child support for children born

14 Alvey uv. Hartwig, 106 Md. 254 (1907) (“[T]he right of the

parent to the services of the children and the obligation of

maintenance of the same, devolving upon the parent are

reciprocal rights and obligations.”)

26

of a valid marriage — abandons his child and is

punished with child support without the right to a

trial by jury.

Lest we fail to explicitly show, the Common Law is

clearly incorporated into Massachusetts:

When the Constitution of Massachusetts was

adopted in 1780, c. 6, art. 6, provided that "All the

laws which have heretofore been adopted, used

and approved, in the Province, Colony or State of

Massachusetts Bay, and usually practised on in

the courts of law, shall still remain and be in full

force, until altered or repealed by the Legislature;

such parts only excepted as are repugnant to the

rights and _ hiberties contained in this

Constitution." Crocker v. Justices of the Superior

Court, 208 MA 162 (1911)

Also citing Commonwealth v. Knowlton, 2 Mass. 530

(1807) (“Our ancestors, when they came into this

new world, claimed the common law as their

birthright ...”), and also Sackett v. Sackett, 25 Mass.

309 (1829) Commonwealth_v. Leach, 1 Mass. 59

(1804) Phillips v. Blatchford, 137 Mass. 510 (1884).

Thus the Ninth and Tenth Amendment has been

violated in removing this “birthright” of Common

Law protections from unwarranted state intrusions

into family matters.

Lacking a proximal wrong (i.e., some harm to the

child) a trial by jury over ‘necessities’ was always the

case under Common Law jurisdiction!>. Otherwise

'S Angel v. McLellan, 16 Mass. 28 (1819); Foss v. Hartwell, 168

Mass. 66 (1897) (“There is nothing in the case before us to show

any abandonment of the child by the father. ... If the plaintiff

chose to receive him, he had no right, without communicating

27

the shift in the standard of proof and the burden of

proof, and imposing punishment without proximal

wrongdoing would have violated Due Process, the

Sixth, and the Eight Amendment. Additionally,

removing the Common Law protections has violated

the Ninth and Tenth Amendments.

Fifth Questions

A maximum of law is that you can not be a judge

in one’s own case!®. Given that Title IV monies

provide an independent revenue stream for the

judiciary based on child support ‘awards’ determined

by the judiciary under formula determined by the

judiciary, means that the judiciary cannot lawfully

adjudicate child support cases.

The judiciary sets the child support formula,

adjudicates child support hearings, and is provided

an unregulated revenue stream via the Title IV

monies based on the child support collections. This

violates Article XXIX as well. In the words of

Marbury v. Madison, 5 US 187 (1808) “It is

emphatically the province and duty of the Judicial

Department to say what the law is”, not to make the

laws or derive profit from them.

The case of Department of Revenue v. Ryan R., 62

Mass. App. Ct. 380 (2004) shows a married woman

who has an affair, gets pregnant from her lover,

which results in a divorce proceeding, where the

with the defendant, to look to the father for the boy's support.”);

Baldwin v. Foster, 138 Mass. 449 (1885); Kent’s Commentaries

on American Law, Volume 2, Part IV, Lecture 29, First Edition,

specifically, “It [providing necessities to the child} will always

be a question for a jury, ...”.

16 Bonham’s Case, 8 Reporter 115 (1610)

28

husband has to pay child support even though

everyone, including the court, knows he is not the

father. (The case misrepresents British common law

and ignores MA Statutes from the 1700 and 1800's

provided for a trial by jury to challenge legitimacy,

see Statutes 1785, Chapter 69; Statutes 1835,

Chapter 76, Section 20; Statutes 1860, Chapter 107,

Section 27; Statutes 1882, Chapter 146, sect. 23.)

The state then goes after the biological father for

child support as well. So the crime of adultery is

rewarded by the state with custody and two tax-free

child support checks!’ for the same child. Collateral

damage is an innocent ex-husband who is punished

so that additional Title [V monies are funneled to

judicial coffers.

Probate and Family courts have devolved into

Ecclesiastical Courts by imposing Soviet style

dogma!8 over the natural rights, not identifying an

injury for the court to act on, and rewarding behavior

which increases Title [IV remunerations!9.

Probate and Family Court are no longer a court of

equity. Blackstone's Commentaries on the Laws of

England, Book the Third - Chapter the Third: Of

Courts in General:

"A court is defined to be a place where justice is

judicially administered. ... In every court there

17 Isaiah 5:20 - Woe to those who call evil good, and good evil;

Who put darkness for light, and light for darkness; Who put

bitter for sweet, and sweet for bitter!

18 “No-Fault Divorce: Born in the Soviet Union?’, Journal of

Family Law, University of Louisville School of Law, Volume

Fourteen 1975 Number One.

'9 Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380

(2904)

29

must be at least three constituent parts; the actor,

reus and judex; the actor or plaintiff who

complains of an injury done; the reus or defendant,

who is called upon to make satisfaction for it; and

the judex or judicial power which is to examine the

truth of the fact, to determine the law arising

upon that fact, and if any injury appears to be

done, to ascertain, and by its officers to apply the

remedy."

No injuries are identified for the courts to provide

redress. Instead injuries are disregarded in favor of

the state ideology, ie., equity “Best Interest”

determinations. The courts have taken on the

nature of Admiralty Court in accepting Title IV

monies and taken on the nature of an Ecclesiastical

Court by imposing Soviet style dogma? over the

natural rights and rewarding behavior which

increases Title [V remunerations.

Regarding the similarities of the Soviet style

divorce system and the current rude and foreign

equity variant of divorce proceedings in American

courts, see “No-Fault Divorce: Born in the Soviet

Union?”, Journal of Family Law, University of

Louisville School of Law, Volume Fourteen 1975

Number One. Also note that dictionaries define any

strongly held belief system as a religion.

The recent non-binding referendum on shared

parenting in the Commonwealth — the vote was a

whopping 85% in favor of shared parenting. But the

20 Percentage for child support is exactly the same as in the

Soviet Union disregarding the economic differences between a

Soviet salary and an American salary, e.g., housing costs and

taxes.

30

judiciary opposes any changes, regardless of such

strong public opinion.

Sixth Question

The pattern of Invidious Gender Discrimination

spans over a century of change to Family Law.

Under the Common Law of Massachusetts,

married men had absolute right to their children?!

while married women had absolutely no right to

their children, even when the husband was dead, see

Whipple v. Dow, 2 Mass. 415 (1807). Unmarried

women had absolute right to their children, see

Wright _v. Wright, 2 Mass. 109 (1806) (even if the

mother later married the child’s Father), and

unmarried men had a natural right to their children,

which was secondary only to the unmarried mother’s

rights?2.

Custody was determined according to strict rules

of natural right under the Common Law. The rights

of custody were reciprocal to obligations?%’. This

21 Ex parte Winn, 48 Ariz. 529 (1936); Commonwealth v. Briggs,

33 Mass. 203 (1834); State v. Richardson, 40 N.H. 272 (1860),

“It is a well settled doctrine of the common law, that the father

is entitled to the custody of his minor children, as against the

mother and every body else; that he is bound for their

maintenance and nurture, and has the corresponding right to

their obedience and their services. 2 Story's Eq., secs. 1343-

1350; 2 Kent's Com. 193; 1 Bl. Com. 453; Jenness v. Emerson,

15 N.H. 486; Huntoon v. Hazelton, 20 N.H. 388.”

22Reynolds vu. Davidow, 200 Miss. 480 (1946); "The putative

father of an illegitimate child is entitled to the custody of the

child, as against all persons but the mother; ... Pote's Appeal,

51 Am. Rep., 540; Commonwealth v. Anderson, 1 Ash., 55;

Richards v. Hodges, 2 Saund., 83; ...”

23 Foss _v. Hartwell, 168 MA 66 (1897) “If there is a legal

obligation, it must rest upon the ground that he is entitled to

31

relationship was backed-up with criminal penalties

in Massachusetts (unlike in England which only had

Elizabethan Poor Laws) if the party failed to uphold

their natural law obligation?‘.

The only way the state could interfere with

Common Law rules for custody under Common Law

jurisdiction, even during a divorce proceeding, was to

save the child. The Common Law rules were

designed to keep the state out of family matters

except to rescue the child. No other intrusion into

this sacred, natural right to custody was allowed

under Common Law jurisdiction except to rescue the

child.

The “Tender Years” doctrine provided statutory

rights to custody for married women, but not the

corresponding responsibilities. Despite the statutory

construction of married women’s right to custody

they were not burdened with the reciprocal, criminal

obligations, see Tornroos v. R. H. White Co., 220

Mass. 336 (1915); Dumain v. Gwynne, 92 Mass. 270

(1865).

Now under equity the raw data from the SJC’s

1989 custody study and Dr. McNabb's study25 show

that the state takes custody of the children more

often than Fathers. Thus the claim of Invidious

the custody, the society, and the services of the child. He must

also have the right to determine where his child shall live.”

Rotch v, Miles, 2 Conn. 638 (1818) “The court charged the jury,

that if they should find, that the defendant deserted his wife

and children, ...”

24 Tornroos v. R. H, White Co,, 220 Mass. 336 (1915)

25 Examining Decision Making in a Family Court: The

Reconstruction of Fatherhood by the Legal System, June 1998

by Dr. Joseph W. McNabb

32

Gender Discrimination regarding the erosion of one

gender’s natural right to custody is part of a pattern.

Unmarried couple were both punished under

Bastardly and Begetting?® until Statutes 1913, c.

563, when the state made it a misdemeanor for the

unwed-father, not for the unwed-mother. Another

example of Invidious Gender Discrimination by

punishing only one gender for a consensual act

requiring two people.

When the state changed the criminal punishment

of posting a bond to indemnify the town from

expenses associated with the bastard to paying the

unmarried women directly it again violated the

Common Law by breaking the reciprocal relationship

between rights and obligations. This also created a

situation where one gender has a_ reciprocal

relationship, i.e., married men, where as the other

gender’s, 1.e., unmarried mother’s, obligation was

relaxed due to support money received. Another

example of gender imbalance in the law, 1.e., the

alleged pattern of Invidious Gender Discrimination.

Unmarried men also had a right to a trial by jury

which they have lost, see Commonwealth v. Clark, 2

Mass. 156 (1806) ("The statute of March 15, 1786,

which gives to the mother of the bastard child this

remedy, expressly provides that the party charged be

adjudged the putative father, unless the jury find

him not guilty.").

All of these losses of rights by men _ have

26 In Hill v. Wells, 23 Mass 104 (1828) “In 1692 the provincial

legislature, in revising the colonial laws, include provisions in

relation to bastardy, in “an act for the punishing of criminal

offenders,” ...”

33

corresponded to increased rights for women,

regardless of marriage state. The pattern of

Invidious Discrimination is clear.

Conclusion:

The imbalance in custody ‘awards’ are in fact

unlawful loss of custody rights. Equity

determinations have unconstitutionally separated

the Common Law. defined obligations from

corresponding reciprocal rights, preempted the right

to a trial by jury, and inflicted punishments without

wrongdoing and hence have no valid remedial

justification. The change in jurisdiction violates two

standing precedents from this court. The changes

made to Family Law have not met the strict scrutiny

requirements. Instead the state imposes

punishment based on ideology and derives an

independent revenue stream.

For the foregoing reasons, petitioner prays that

this Court grant a writ of certiorari to review the

validity of the judgments and the proceedings of the

state courts including the dismissal from the

Massachusetts Supreme Judicial Court issued on 25

February 2009.

Respectfully submitted,

Mark Cimini, Pro Se

12 Maple Road

Westford, MA 01886

978-692-4556

m.cimini@att.nct

April 13, 2009

Appendix

Appendix - |]

Appendix

Appendix A — Supreme Judicial Court FAR denial

Appendix B — Massachusetts Appeals Court Opinion

Appendix C — Probate and Family Court Opinion

Appendix D — Massachusetts Appeals Court

Rehearing Denial

Appendix A

Appendix - 2

Supreme Judicial Court for the Commonwealth

of Massachusetts

John Adams Courthouse

One Pemberton Square, Suite 1400, Boston,

Massachusetts 02108-1724 Telephone 617-557-1020,

Fax 617-557-1145

Mark Cimini

12 Maple Road

Westford, MA 01886

RE: Docket No. FAR-174_94

MARK CIMINI

vs.

MARGARET CIMINI

Middlesex Probate & Fam No. 97D4115-DV1

A.C. No. 2007-P-1836

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on February 25, 2009, the

above-captioned Application for Further Appellate

Review was denied.

Susan Mellen, Clerk

Dated: April 2, 2009

To: Mark Cimini

Gerald Venezia, Esquire

Appendix B

Appendix - 3

Appeals Court of Massachusetts.

Mark K. CIMINI

v

Margaret R. CIMINI.

No. 07-P-1836.

Dec. 26, 2008.

By the Court

(DUFFLY, KATZMANN & VUONO, JJ.).

MEMORANDUM AND ORDER PURSUANT TO

RULE 1:28

*] Mark K. Cimini (father) appeals from

judgments entered in the Probate & Family Court on

December 29, 2006.24) We affirm.

FN1. The father's notice of appeal does not

specifically identify the judgments appealed from,

but our review of the docket contained in the record

(R.A. 10-11) supports the conclusion that the appeal

within is from the December 29, 2006, judgments on

his April 15, 2004, complaint for modification; his

August 3, 2006, complaint for contempt; and the

November 8, 2005, complaint for contempt filed by

Margaret R. Cimini.

We note that the father has failed to include in his

record appendix copies of the complaint for

modification, the complaints for contempt, and the

judgments on those complaints. He also did not

provide us with the transcript of the hearing on these

complaints; but he has not challenged the evidence

Appendix B

Appendix - 4

nor the findings of fact, and tihe failure thus is not

fatal to his claims. Indeed, the sole reference to the

facts of the case in the father's brief concerns the

claim that his son should have a say in the custody

matter. See discussion, infra. See also Mass.R.A.P.

16(a)(4), as amended, 367 Mass. 921 (1975);

Mass.R.A.P. 18(a), as amended, 425 Mass. 1602

(1997); Cameron v. Carelli, 39 Mass.App.Ct. 81, 83-

86, 653 N.E.2d 595 (1995).

The trial judge's memorandum sets forth the

procedural history, findings of fact, and conclusions

of law. (R.A. 24-34). In his detailed and well-

reasoned memorandum, the judge concluded that

there has not been a material and substantial change

in circumstances that would justify the modification

of the 2000 divorce judgment. See G.L. c. 208, § 28;

Rosenthal v. Maney, 51 Mass.App.Ct. 257, 261-262,

745 N.E.2d 350 (2001). In reaching his decision, the

judge considered evidence including the thirteen year

old son's expressed preference to reside primarily

with the father, correctly noting that this preference

was not controlling. See Bak v. Bak, 24 Mass.App.Ct.

608. 617, 511 N.E.2d 625 (1987). See also Custody of

Vaughn, 422 Mass. 590, 599 n. 11, 664 N.E.2d 434

(1996). As to the father's child support obligation, the

judge calculated the arrearage based on the father's

past failure to pay the amount due and properly

concluded that the father's child support obligation

could not be reduced where the father refused to

provide a financial statement and to answer

questions about his income.

On appeal, the father does not challenge the

judge's findings of fact. His claims challenge

jurisdiction and assert violations of constitutionally

Appendix B

Appendix - 5

based rights and guarantees, including in particular

a claimed right to trial] by jury.

Discussion. Statutory enactments, explained by

decisional law, combine to govern divorce, child

custody, and support matters. See generally G.L. c.

208, § 1 et seq. See also, e.g., L.W.K. v. E.R.C., 432

Mass. 438, 443, 735 N.E.2d 359 (2000). The father's

arguments ignore statutory enactments governing

the questions raised and decisional law explaining

those enactments.

Regarding the father's arguments that we ought to

alter the current law, as we said in Commonwealth v.

Dube, 59 Mass.App.Ct. 476, 485, 796 N.E.2d 859

(2003), “from the very earliest decisions we issued

and continuing to this day, we have uniformly and

unequivocally held we have no power to alter,

overrule or decline to foliow the holding of cases the

Supreme Judicial Court has_ decided.” See

Commonwealth v. Dominico, 1 Mass.App.Ct. 693,

710, 306 N.E.2d 835 (1974) (settled practice must be

changed by the Supreme Judicial Court or the

Legislature); Gerber_v. Worcester, 1 Mass.App.Ct.

811, 812, 294 N.E.2d 451 (1973) (unless overruled by

the Legislature or the Supreme Judicial Court,

Appeals Court is bound by existing doctrine).

The father made a claim for a jury trial and

argues on appeal that his jury trial right is

mandated }y art. 15 of the Massachusetts

Declaration of Rights. Article 15 “preserves ‘the

common law trial by jury in its indispensable

characteristics as established and known at the time

the Constitution was adopted’ in 1780.” Departme*t

of Rev. v. Jarvenpaa, 404 Mass. 177, 185-186, 554

N.E.2d 286 (1989), quoting from Opinion of the

Appendix B

Appendix - 6

Justices, 237 Mass. 591, 596, 130 N.E. 685 (1921).

“{I]n probate and divorce courts there was no such

trial [by jury].” Parker _v. Simpson, 180 Mass. 334,

346, 351, 62 N.E. 401 (1902) (providing historical

discussion of jury trial provision in art. 15 and

judicial history of colonial and provincial periods).

See Bucknam_v. Bucknam, 176 Mass. 229, 230, 57

N.E. 343 (1900) ( “Under the provisions of law prior

to the adoption of the Constitution, all cases of

marriage, divorce, and alimony were heard by the

Governor and Council, and of course without a trial

by jury”). See also Bigelow v. Bigelow, 120 Mass. 320,

322 (1876) (in separate support action, “the husband

has no constitutional right to a trial by jury’).

*2 Other claims asserted by the father are rejected

as without basis and require no discussion.

Conclusion. It follows from what we have said that

the December 29, 2006, judgments on the April 15,

2004, complaint for modification; the November 8,

2005, complaint for contempt; and the August 3,

2006, complaint for contempt are affirmed.

So ordered.

Mass.App.Ct.,2008.

Cimini v. Cimini

73 Mass.App.Ct. 1112, 898 N.E.2d 13 (Table), 2008

WL 5282054 (Mass.App.Ct.)

Unpublished Disposition

Appendix C

Appendix - 7

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT PROBATE AND FAMILY

COURT DEPARTMENT

Middlesex, ss. Docket No. 97D4115

Mark K. Cimini, Plaintiff

Vs.

Margaret R. Cimini, Defendant

MEMORANDUM of DECISION

The above-captioned matter came before the court

for a trial on the merits of the complaint for

modification filed by Mark K. Cimini (hereinafter the

plaintiff) on April 15, 2004.

At trial, the plaintiff appeared pro se. Margaret R.

Cimini (hereinafter "the defendant") was represented

by Gerald Venezia, Esq.

The following witnesses testified at the trial:

Steven Chapin, Jonathan Cimini and the plaintiff

were called to the stand by the plaitiff. The

defendant was called to the stand by her attorney.

After considering the testimony of the witnesses,

the documents admitted into evidence, reviewing the

post-trial submissions and considering the credibility

of the witnesses, this Memorandum of Decision is

entered.

The parties to this action were married on March

5, 1993, at Westford, Massachusetts. The marriage

was the first for the plaintiff and the second for the

defendant.

The parties are the parents of one child: Jonathan

[F]. Cimini. Jonathan was born on April 5, 1993. He

is 13 years of age.

The defendant filed a complaint for divorce on the

Appendix C

Appendix - 8

grounds of irretrievable breakdown of the marriage

on November 4, 1997.

The parties were divorced by Judgment Nisi

(Ginsburg, J.), which entered on January 3, 2000.

The judgment incorporated the parties’ Separation

Agreement, executed the same day, and provided

that the Agreement survive the entry of the

judgment as an independent contract, with the

exception of the provisions of the agreement relating

to the child, which provisions merged in the

judgment.

The Separation Agreement provides, in pertinent

part, that “The Husband shall pay to the Wife for the

support and maintenance of the Child the sum of

Three Hundred and Twenty Dollars ($365.00) per

week (the "obligation"),"!

The Separation Agreement further provides, "The

Husband and the Wife shall have joint legal custody

of the Child with the Child's primary residence to be

with the Wife."

The Separation Agreement sets forth a parenting

plan which, after February 1, 2000, provided

visitation for the plaintiff from Sunday at 10:00 a.m.

until Tuesday at 7:30 p.m. and on alternate

weekends from Saturday at 10:00 a.m. until Tuesday

at 7:30 p.m.

In addition to the schedule set forth above there is

a provision "should Father desire an occasional

Friday overnight" for advance notice. In addition

there are provisions for summers, vacations, and

holidays, including four weeks of vacation time in the

summer.

The defendant answered the pending modification

Appendix C

Appendix - 9

complaint, pro se, on April 26, 2004.

On September 22, 2004, the plaintiff filed a

Petition for a Writ of Habeas Corpus, wherein he

sought an order that Jonathan be placed in his

father's custody.

The petition was dismissed by decree which

entered on September 23, 2004 (Donnelly, J.).

The plaintiff appealed the dismissal of the petition

for writ of habeas corpus on October 22, 2004. On

November 24 2004, the Supreme Judicial Court

(Ireland, J.) entered a judgment denying the

plaintiffs petition to appeal the dismissal of the

Petition for Writ of Habeas Corpus. On December 15,

2004, the SJC (Ireland, J.) denied the plaintiffs

request for reconsideration.

'The discrepancy is duly noted. The wage

assignment which issued on January 3, 2000, was for

$365.00, which appears to reflect the agreement of

the parties, with the $365.00 being a handwritten

change, which is circled.

On January 4, 2005, the plaintiff filed a pleading

entitled "Complaint in the Nature of a Petition for

Writ of Mandamus and to Invoke the General

Superintendence of the Court" in the United States

District Court for the District of Massachusetts,

naming the defendant, Justice Ireland, and me as

defendants.

Hon. William G. Young issued a sua sponte

Memorandum and Order directing dismissal of the

complaint on January 11, 2005. The plaintiff did not

appeal.

On January 20, 2005, the plaintiff removed the

Appendix C

Appendix - 10

action which was pending in this Court to the United

States District Court. On July 18, 2005, Judge Young

issued a Memorandum and Order for Remand,

returning the complaint to this Court.

On August 9, 2005, the plaintiff filed a Demand

for a Trial by Jury. The plaintiff scheduled the

Demand for a Trial by Jury for hearing on October 4,

2005. By Memorandum and Order dated October

27,2005, (Donnelly, J.) the demand for a trial by jury

was denied on the ground that a jury trial is not

available in a domestic relations case such as the

pending complaint for modification of the existing

custody judgment.

The defendant filed another answer to the

modification complaint, through counsel, on

November 8, 2005.

. On November 8, 2005, the defendant filed a

complaint for contempt. On December 6, 2005 an

order entered which consolidated the contempt and

the modification compiaint.

On February 1, 2006, a pretrial conference was

held on the pending complaints. After the conference

an order was entered compelling answers to

interrogatories within 60 days and that "a current

and complete financial statement shall be filed

within 60 days." The matter was set down for a

status conference on April 26,2006.

The plaintiff filed documents entitled

"Jurisdictional Challenge" (dated March 27, 2006),

"Jurisdictional Challenge Regarding Child Support"

{dated April 29, 2006) and "Jurisdictional Challenge

Regarding child Support Amendment" (dated May 4,

2006) and "Jurisdictional Challenge Amendment"

Appendix C

Appendix - ||

{dated May 24,2006).

On May 5, 2006, the plaintiff filed "Motion for

Recusal" and "Motion for Stay of Order and

Reconsideration Pending Appeal." Those motions

were denied on June 6, 2006.

Custody

1. The plaintiff lives in Westford. He has

remarried and has a daughter, [Taisya], who was

born on November 26, 2001.

2. The defendant also lives in Westford with her

three children: Justin, age 18 and a student at

UMass-Amherst, Lindsay, age 16, and Jonathan.

3. The plaintiff testified that he wants Jonathan

to have flexibility in his life, and that some of the

plaintiffs 40 hour work week can take place at home,

giving him a flexible schedule.

4. The plaintiff has been actively involved in

Jonathan's extracurricular activities, attending his

sports events, supporting his piano lessons (with

which the defendant reports she had no involvement)

and facilitating Jonathan's involvement with Cub

Scouts. In addition the plaintiff testified that he says

on top of Jonathan's school work.

5. The plaintiff further testified that the

defendant shows no _ interest in Jonathan's

extracurricular activities. According to the plaintiff,

Jonathan missed half of his Cub Scout activities

because the defendant would not .take him during

her parenting time.

6. Jonathan is active in sports (including soccer

and basketball) and music. Normally, for his sports

he has practice twice per week and one game per

Appendix C

Appendix - 12

week on Saturday.

7. Jonathan is in the 8 grade. He is a good

student, receiving one B and the balance all A's on

his report card last year.

8. The plaintiff stopped coaching Jonathan in one

of his extracurricular sports, at Jonathan's request.

9. Jonathan is doing well in sports, doing well

socially, doing well in music and doing well with

family interaction. He is in good health.

10. During the summer of 2006, the plaintiff had

additional time with Jonathan at least in part to

accommodate wok schedules.

11. Jonathan and Lindsay have teenage spats.

Jonathan and Justin get along "pretty good."

Jonathan has lived with Justin and Lindsey his

entire life.

12. On July 21, 2004, there was an incident

involving Jonathan and the defendant's boyfriend's

son, Dustin, when Dustin slapped Jonathan. The

plaintiff was telephoned by Jonathan and in turn

called Westford Police, who responded. No charges

were filed.

13. The visitation set forth in the Separation

Agreement has been strictly followed. The defendant

is unwilling to give Jonathan greater flexibility.

The plaintiff raised, as issues, the following: the

defendant showering with Jonathan. This was

acknowledged by the defendant as an issue which

the Guardian Ad Litem (in the divorce action)

addressed and which has not recurred since.

An issue in which a Spanish teacher said

Appendix C

Appendix - 13

Jonathan was a trouble maker. While the plaintiff

addressed the issue, the defendant was unaware of

the issue and consequently could not address it.

The defendant's lesser involvement with

extracurricular activities. The defendant testified

that she attends the events that she can, but that

she works two jobs part-time and is a single parent,

both of which restrict her available time. She brings

Jonathan to school for his 7:00 a.m. music lessons.

Jonathan's exposure to pornography. Apparently

his brother, on one occasion, exposed Jonathan to

pornography either on line or in a magazine.

Assistance with homework. The plaintiff implies

that his superior educational attainment renders

him better able to assist Jonathan with his

homework. There is no evidence that Jonathan

experiences difficulty at school. Additionally, the

defendant assists Jonathan to the best of her ability

and she has significant artistic ability and an affinity

for English literature.

Jonathan's psychologist, Steven Chapin, was

called to testify by the plaintiff.

Mr. Chapin first saw Jonathan in January 2001.

He has seen Jonathan alone, with his father, with

his | mother, with Lindsay and with Nina (Mr.

Cimini's wife).

Mr. Chapin testified that Jonathan feels caught in

the middle of the conflict between his parents.

Jonathan told Mr. Chapin that he would prefer to

live with his father, and visit with his mother

because he would have greater flexibility going back

and forth. In the past, Jonathan has_ been

Appendix C

Appendix - 14

uncomfortable with the defendant's home due to

tensions with his older siblings.

In the past Jonathan has reported being hit or

teased by his siblings.

Of late, Jonathan has reported being much more

comfortable in his mother's home with his siblings

than in the past and being more comfortable in

general as Jonathan's relationship with his siblings

has improved.

Mr. Chapin has discussed this issue with the

defendant. He reported that she sometimes responds

and that sometimes she minimizes the problem.

Mr. Chapin reports that Jonathan wants to

protect his mother. Jonathan has also lied to please

people.

When meeting with Mr. Chapin, the plaintiff has

been cooperative. He expresses significant anger

towards the defendant for incidents when Jonathan

was 6,7, and 8, and anger about the past. The

plaintiffs anger 1s more contained when Jonathan is

present. |

Jonathan wants greater flexibility and more time

with his friends, most of whom reside closer to the

plaintiffs residence than the defendant's residence.

Jonathan tries to please both parents, saying

things in therapy that the parent present would like

to hear.

Most, if not all, of the most serious issues raised

by the plaintiff in the therapy took place when

Jonathan was 6 or 7. Because the incidents predated

his involvement, Mr. Chapin did not consider filing a

5la.

Appendix C

Appendix - 15

Jonathan Cimini, at age 13, was subpoenaed to

testify at the trial by his father. While the plaintiff

stated that the subpoena was necessary because

Jonathan was in his mother's custody on that date of

trial, his insistence on calling a child of Jonathan's

age to testify in litigation between his parents raises

serious concerns with the court. I| reluctantly

permitted Jonathan to testify because he was

waiting in the lobby and knew why he was at the

Courthouse.

Jonathan testified that he did well in school. He

had a problem with his Spanish teacher last year,

which his father resolved.

Jonathan testified to tension in his mother's home

in the past due to issues with his siblings.

The plaintiff does not strictly enforce the visitation

schedule. The defendant strictly enforces the

visitation schedule.

Child Support and Arrears

The plaintiffs complaint alleges that, as of April

15, 2004, he was unemployed.

The plaintiff refused to file a financial statement

as required by Supplemental Probate Court Rule

401.

On cross examination by the defendant's attorney,

the plaintiff refused to answer when asked how

much he earned.

Between May, 2004, and January, 2005, the

plaintiff failed to make 34 payments of $365.00 per

week, resulting in an arrearage of $12,410.00.

When payments resumed in January, 2005, an

Appendix C

Appendix - 16

additional $91.25 (25% of the underlying order) was

garnished from the plaintiffs wages on account of the

arrearage. A total of $2,372.50 was paid against the

arrears, leaving a balance due of $10,037.50.

The amount of $6,200.00 was levied from the

plaintiffs bank account by the Department of

Revenue. The defendant has never received that sum

from DOR.

Discussion

This Court is authorized by G.L.c.208 §28 to

modify a divorce judgment "as to the care and

custody of the minor children of the parties provided

that the court find that a material and substantial

change in the circumstances of the parties has

occurred and the judgment of modification is

necessary in the best interests of the children."

As set forth in Re; Custody of Kali, 792 NE 2d 635,

439 Mass. 34 (2003), at 840-841, "In custody matters,

the touchstone inquiry of what is "best for the child"

is firmly rooted in American history, dating back to

the Nineteenth Century, [citation omitted]. This

legal principle replaced the notion that children were

the property of their parents, and instructed courts

to view children as individuals with interests

independent of their parents, [citation omitted]. The

"best interests" standard appeared in our case law at

least as early as 1865, in Wardwell v. Wardwell, 91

Mass. 518,9 Alien 518,522 (1865) in which the court

held that a judge should not follow a father's wish

regarding the guardianship of his son if custody by

the proposed guardian would not be in the child's

"best interests." It has been adhered to ever since.

The Supreme Judicial Court in Custody of Kali [at

Appendix C

Appendix - |7

843] held, "If the parenting arrangements in which a

child has lived is satisfactory and is reasonably

capable of preservation, it is ordinarily in the child's

best interests to maintain that arrangement, and

contrary to the child's best interests to disrupt it.

Stability is itself of enormous benefit to a child, and

any unnecessary tampering with the status quo

simply increases the risk of harm to the child;"

The Court goes on to hold, at 844, "In most cases,

however, if the child has been living with one parent

for some time, the child's needs are being adequately

met under that parent's care, and that parent is

capable of continuing to care for the child, it is not in

the child's best interests to disrupt that successful

arrangement. Rather, it is in the child's best

interests to preserve it. Belief that the other parent

might be a little better in some areas ought not

suffice to disrupt a child's satisfactory home life with

the caretaker parent."

In this case the parties have considerable

difficulty with communication. The plaintiff harbors

a bitterness and anger towards the defendant for

reasons which are unknown to the Court. It is

possible that the defendant harbors such feelings for

the plaintiff and is merely better able to disguise her

feelings.

Communication difficulties and animosity aside,

the parties agreed to a parenting plan in 2000. Some

seven years later, the plan remains in place and

continues to guide Jonathan's schedule.

I note that the plaintiffs proposed judgment

requests that his parenting time continue until

Wednesday each week, rather than ending on

Appendix C

Appendix - 18

Tuesday. The balance of the current parenting plan

would remain largely as at present under this

proposal.

Issues which Jonathan kas with his siblings are

long standing. Clearly they predate Mr. Chapin's

involvement as Jonathan's therapist (which began in

2001). It is reasonable to infer from the prohibition

against the siblings acting as care givers contained

in the Separation Agreement, that there was an

issue prior to the entry of the Judgment Nisi.

I acknowledge Jonathan's testimony that he

preferred to maintain his primary residence with his

father. At age 13, and with the maturity and state of

development of an average 13 year old, his opinion is

entitled to consideration. His stated preference is not

controlling, however.

The area of concern raised by ‘he plaintiff which is

of most significant concern tc t)* Court is the

problematic relationship which Jonathan had with

his siblings, especially his sister. However, based

primarily upon the testimony of Mr. Chapin, a

witness called by the plaintiff, . find that the most

serious problems occurred prier to Mr. Chapin's

involvement began in 2001, and that Jonathan's

relationship with his siblings is_ significantly

improved. I find that Jonathan is doing well in

school, well in his peer relatienships, well in his

extracurricular activities and well in his familial

relationships.

I find that the parenting ar’angement in which

the child has lived is satisfactory-

I find that Jonathan has been living with the

defendant "for some time" and t)at Jonathan's needs

Appendix C

Appendix - 19

are being adequately met.

Accordingly, I conclude that there has not been a

material and substantial change of circumstances

and that it is not in Jonathan's best interests to

disrupt this arrangement.

The plaintiff alleges in several of his pleadings

that he was denied the opportunity to present his

child support modification in April 2004, by the

Register's office. It is unclear to the Court what form

the alleged denial of access to the Court took. A

review of the file does not reveal an attempt to bring

the matter before the Court by motion, nor does it

reveal a request for a pretrial conference. Assuming,

arguendo, that the plaintiff's access to the Court was

frustrated, G.L.c.119A §13 clearly authorizes

modificat’ on retroactive to the date notice was given.

The issue remains that the plaintiff has quite

simply refused to provide a financial statement in

violation of Supplemental Rule 401 and a written

order from this Court.

Rule 401 authorizes sanctions in accordance with

M R Dom Ret Pro 37 for failure to comply with an

order to produce a financial statement.

In addition to his refusal to produce and file a

financial statement, the plaintiff refused to answer

questions about his tncome posed by the defendant's

attorney during cross examination.

The plaintiffs refusal to produce the financial

statement and to answer proper questions warrants

an order "that the matters regarding which the order

was made or any other designated facts shall be

taken as established for the purpose of the action in

accordance with claim of the party obtaining the

Appendix C

Appendix - 20

order." M R Dom Rel Pro 37(b)(2)(A),

The plaintiff had the burden of proof on his

request to reduce child support. In addition to his

refusal to provide financial information”, he provided

no evidence on the subject other than the fact that he

was unemployed.

The refusal to file a financial statement or to

answer questions regarding income is deemed a

waiver of a defense of inability to pay on the

defendant's contempt complaint for nonpayment of

court ordered child support.

A judgment of dismissal with prejudice shall enter

herewith on the’ modification complaint in

accordance with the finding herein that there has not

been a change of circumstances and_ that

modification of the current parenting plan is not in

Jonathan's best interest.

Appropriate Judgments shall enter on _ the

contempt complaints. The issue of the $6,200.00

which the plaintiff asserts was levied from his bank

21 note that income is not the only financial factor

to be considered by the Court in an action to modify

child support.

Account and which the defendant denies receiving

is not addressed in the judgment. That issue must be

addressed through administrative process with the

Department of Revenue, which is not a party to these

actions.

December 29, 2006

Edward F. Donnelly, Jr.

Justice of the Probate and

Family Court

Appendix D

Appendix - 21

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

07-P-1836

MARK K. CIMINI

vs.

MARGARET R. CIMINI.

ORDER

The petition for rehearing filed by the appellant

having been considered, it is ordered that the said

petition be, and the same hereby is, denied.

By the Court (Duffly, Katzmann

& Vuono, JJ.),

Clerk [signed Ashley Ahearn]

Entered: January 21, 2009.