This motion was filed on August 15, 2013 in Brockton Family Court. To this date, I have not received a response on to whether this motion will be heard as there is a gateway required in my case. It is now Sept 1, 2013 and I have yet to receive a response as to approval or denial of this motion. So far to date 100% of my motions requiring a gateway have been denied and 100% of the motions filed by Father and his lawyer have been approved.
COMMONWEALTH
OF MASSACHUSETTS
THE
TRIAL COURT
PROBATE
AND FAMILY COURT DEPARTMENT
Plymouth Division Docket
No.: PL06D-0566-DV1
______________________________
M. John Joseph, )
Plaintiff )
)
) MOTION FOR RECONSIDERATION
v. ) On
CONTEMPT ORDER DATED APRIL
) 10, 2013, MAY 22, 2013 ORDER, AND
) SUBSEQUENT FURTHER ORDERS ON
Laura Bonetzky-Joseph, ) CONTEMPT OF JUNE 28, 2013 AND
Defendant ) JULY 12, 2013
______________________________)
Now comes, Laura
Bonetzky-Joseph, defendant in the above action hereby respectfully requests the
Court reconsider the April 10, 2013 Partial Judgment, May 22, 2013 Order, June
28, 2013 Order (following Partial Judgment), and July 12, 2013 Further Order, for
denial of due process from inability to comply with the terms of the
above-entitled orders with the imposition of a prison sentence of up to (6)
months if Mother does not comply.
1. On February 26, 2013 Father (Plaintiff)
filed a motion for Contempt against Mother. On April 10, 2013 the court held
Mother in contempt and ordered her to do the following, inter alia:
A.
That
Mother transfer $578.88 from child’s IRA account to Father.
B.
Provide Father with signed release
from her therapist.
C.
That
Mother pay legal sanctions to Father’s Attorney a sum of $1,500 and $50 in
court costs on or before October 10, 2013.
D.
That Mother transfer her IRA account
of $2,384 to Father.
E.
That Mother perform eight (8) hours of community
service per week until Mother has provided
documentation confirming full compliance with the terms of the order.
F.
That Mother be held in criminal contempt and
incarcerated for thirty (30) days or until she fulfills the payment of $344 due
for child support.
2. On May 22, 2013, pursuant to noncompliance
with April 10, 2013 Partial Judgment, the Court revoked Mother’s suspension of
sentence, and ordered her incarcerated for 30 days in the Plymouth County Jail
or until she pays the sum of $480 which counteracts said April 10, 2013 order
to pay $344. However, mother was not actually sent to Plymouth County Jail as per
order, but imprisoned at Framingham State Prison which appear to arbitrary and
capricious.
3. On June 28, 2013, pursuant to a June
26, 2013 hearing the Court entered an Order, which required Defendant to, inter
alia,
a.
Perform eight (8) hours per week of community
service
b.
Participate in the Job Search Program by
reporting at least 10 employers… with proof of having actually applied for
work.
c.
Provide a release to her therapist
d.
Pay current weekly child support and make weekly
payments toward child support arrears
e.
Provide father with updated financial statements
f.
Pay legal costs and fees to Father’s attorney
g.
All provided in the Partial Judgment dated April
10, 2013
4. Mother was unable to fully comply with April
10, 2013 Order and subsequent orders by no fault of her own due to the
following circumstances
a.
Financial hardship and indigency
b.
Disability
c.
Hospitalization
d.
Illness
e.
Repeated stalking, threats and harassment by
Father and his attorney, Attorney Raymond Arabasz, outside the courtroom which
was reported to the Courts and other officials as witnessed by numerous
individuals and Brockton Police Department with no relief
f.
Repeated Identity theft by Father and his
lawyer, Attorney Raymond Arabasz, with
no relief
g.
And the fact that the Probation Department did
not receive and process the order until May 29th. The departmental
error ultimately prevented Mother from fully complying with the order. Therefore,
the order of subsequent community service is punitive and serves no redial
benefit to the plaintiff or the courts.
h.
Repeated charges filed by Father for Mother
stealing her own mortgage money for the 4th time on a house that legally
belonged to her with NO RELIEF from the repeated abuse. Next Court date for
Mother to defend herself of said charges is September 19, 2013.
i.
Mother asked the court to reconsider said
release of her therapist information to Father for the fact that the therapist
has unsuccessfully been able to verify that Father has the children seeing a
therapist per court order which was later verified by the children that they in
fact have not nor ever seen a therapist as required by court order. The Court
erred in judgment by not ordering Father to provide proof of said appointments
to therapist and proper contact information for Mother’s therapist to contact
the children’s therapist.
5. On July 12, 2013, The Court entered a Further
Order, stating the following, inter alia:
a.
That Mother shall pay $758.77 IRA balance due to
Father. These funds as proven in court were taken out in taxes, fees and
penalties which mother had no control.
b.
That Mother “amend her 2009 and 2010 tax returns
to delete her claim of dependency exceptions for the… children.”
c.
That Mother perform the fifty-two (52) hours
required pursuant to the June 28, 2013 Order in addition to the previously
ordered eight (8) hours per week of community service. She was to “perform these fifty two (52) past due hours
at the rate of four (4) hours per week for nine (9) weeks… in addition to the
previously ordered (8) hours per week.”
6. The court rendered said order in error
without respect of mother’s ability to comply.
The court acknowledged mother is financially indigent and has been
notified on numerous occasions of mother’s disabilities and repeated pleas for
assistance and help to comply with order. To order mother to community service
of (8) hours a week with additional (4) hours a week or three days a week
unless said funds were paid to father with the imposition of a (6) six month
prison sentence if she does not fully comply is punitive and serves no remedial
benefit to the court or father and places mother at AUTOMATED risk of contempt by
no fault of her own based on how the order is written due to mother’s financial
indigency status and disability.
Mother has NO
income and has received NO unemployment and has received no income since May
15, 2013. She has NO money to pay for transportation to and from said community
service. Her lack of financial resources places Mother at increased health risk
as well as contempt of current order unless it is amended. The Court has
already been provided with medical documentation of the increased health issues
since the April 10, 2013 order.
7. Mother states that through the April
10, 2013 Partial Judgment, May 22, 2013 incarceration, and subsequent June 28,
2013 and July 12, 2013 orders, the Court erred in its judgment to hold her
criminally contempt for noncompliance, as the orders were punitive and
ineffective, and that they infringed upon her right to due process of law nd
rights protected under the American Disabilities Act.
8. The July 12, 2013 Further Order to
complete fifty-two (52) past hours of community service per week was punitive
in nature. Mother was never able to comply with the Judgment and Orders because
she was and is financially indigent. "At the hearing of a complaint for
civil contempt,
the defendant shall have the burden of proving his or her inability
to comply with the pre-existing order or judgment of which the complaint
alleges violation." Mass. Gen. Laws
ch. 215, §34 (2012).
9.
Furthermore, "An essential element of civil contempt is the defendant's ability
to comply with the court's order or judgment, and therefore inability to comply
is a defense." Sodones v. Sodones N.E.2d 906 (Mass. 1974). The
Court failed to acknowledge Mother’s indigence as a defense, despite multiple
attempts to receive legal assistance and medical assistance under the ADA. For
example, Mother has been unable to pay the $758.77 in paragraph “10”, which the
court acknowledged in the Order by requiring that she continue to perform
community service until she has paid the amount in full.
10. Civil contempt orders are “‘remedial and
coercive,’ intended to achieve compliance with the court’s orders for the
benefit of the complainant.” Furtado v.
Furtado 402 N.E.2d 1024, 1031 (Mass. 1980) (citing Cherry v. Cherry 148 N.E. 570, 571 (Mass. 1925)). Furthermore, “[i]n
determining the amount of a fine imposed as a means of securing future
compliance, a judge should take into account the character and magnitude of
threatened harm, probable effectiveness of the sanction, the defendant’s
financial resources, and the seriousness of the burden on the defendant. A
coercive fine may not be punitive.” Labor
Relations Com. V. Fall River Educators’ Asso., 416 N.E.2d 1340, 1350 (Mass.
1981)
11. Here,
the July 12, 2013 order serves no remedial purpose for the complainant and has
only served as punishment for the defendant. It is not effective. “…[S]upport of children and other aspects
of domestic relations… has never been regarded as partaking of criminal
features.” Blankenburg v.
Commonwealth 157 N.E. 693, 696 (Mass. 1927). Furthermore, “[a] person judged in civil contempt may
not be sentenced to prison for failure to pay a compensatory sum of money if he
shows that he is unable to comply. To do so would be a denial of due process of
law.” Salvesen v. Salvesen, 351
N.E.2d 499, 501. (Mass. 1976) (citing Sodones
v. Sodones 314 N.E.2d 906, 912- 913 (Mass. 1974)).
12. Here, Mother is not a defendant who willfully
ignored her duty to comply with the terms of the contempt order. Mother is
unable to comply because she suffers from intensifying effects of Post
Traumatic Stress Disorder, anxiety and domestic abuse as testified by her and
other experts and as evidenced as a direct result of repeated domestic abuse,
domestic abuse by proxy, and legal abuse by proxy. She is financially destitute
and indigent, which the Court acknowledged with its approval of her indigence
in June 2013. Yet rendered said orders
to pay monies without any means or assets with the imposition of a prison sentence
of (6) six months for failure to comply.
As a result of her circumstances documented above, it is impossible for
her to comply. Diver v. Diver, 524
N.E.2d 378 (Mass. 1988).
13. Defendant’s financial resources also show
her inability to comply with the orders. Defendant has not received any income
since May 15th, 2013, just days before she was incarcerated pursuant
to the May 22, 2013 order to revoke the Suspension of Sentence. Even prior to
her incarceration, Mother was not in a financial position to pay child support
or the arrears. She did not own her own home, and the value of all of her
property added up to approximately $1000. State
ex rel. Mallet v. Shannon, 64 P.2d 87 (Or. 1937). Mother was incarcerated
without being able to adequately prove her inability to comply, even when she
provided written requests for assistance. M.M.
v. D.A., 79 Mass. App. Ct. 197, 207 (2011); Collins v. Collins 158 So. 914 (Miss. 1935). Additionally, Mother
also notified the Court that the DOR was handling all payments due to Father
committing identity theft. However, the Court refused to accept this as a
defense.
14. Had the court allowed Mother’s multiple
requests for counsel and medical assistance and applied the same standards to
Father, she may have been able to keep her job, provide a defense to her
inability to comply with court orders, and prevent accruing additional hours of
community service and debts.
15. Mother has suffered serious hardships in
her attempts to comply with the orders, which caused her to file for disability,
which the Court is aware. Mother has attempted to show courts medical letters
documenting her inabilities to comply per court requests on May 22, 2013, prior
to incarceration. However the Court has denied these medical letters and medical
attention. Mother always acted in good
faith.
16. Currently, the twelve (12) instead of
eight (8) hours per week community service requirement has affected Mother’s
ability to find and secure a job, which in turn has affected her ability to pay
for child support, medical care compliance, and transportation to job
interviews and medical appointments. Mother
has had to complete community service on specific days and within specific time
periods, and as a result, there is not enough time set aside for her job
search. The way the current order is written, Mother cannot be genuinely sick
without being held in contempt. No matter how much Mother tries to comply with
the orders, she falls into contempt.
17. Since the Court has thwarted Mother’s
attempts to secure legal and medical assistance, she is now at risk of being
imprisoned for six (6) months for criminal contempt. Incarceration will destroy
any prospect she may have of securing a job and steady income, living free of a
lifetime of debt and incarceration, and of reuniting with and playing a
positive role in her daughters’ lives. State
ex re. Cash v. District Court, 252 P 388 (Mont. 1927) The June 28, 2013
Order, July 12th, 2013 Further Order as it stands are punitive, as
the Court has willfully acknowledged Mother’s financial indigence. The Court’s
orders have added additional financial burdens, and have deliberately placed
Mother in contempt due to her inability to comply by no fault of her own.
18. Furthermore,
these orders also prevent Mother from her right to due process in continuing
her appeal on which the April 10, 2013 order was based. Continuation of these
actions place Mother at risk of violation of her rights under the law.
It
shall be noted that Father has repeatedly testified in court of his blatant
refusal to comply with his portion of the orders with NO sanctions and NO
penalties. As testified at trial, if
Father does not
agree with the orders he will not comply. The same standards that have been applied
to Mother, have not been applied to Father, and Mother asks for the same
standards to apply without discrimination.
WHEREFORE, Movant
respectfully requests this Honorable Court vacate the April 10, 2013 Partial
Judgment, May 22, 2013, June 28, 2013 Order, and July 12, 2013 Further Order based
on the February 26, 2013 Motion for Complaint, in so far as they cause more
harm than good, impede job search, ability to maintain health, and place
additional burdens on an indigent person.
RESPECTFULLY SUBMITED
Signed under pains and penalty of
perjury,
BY: __________________________
Laura Bonetzky-Joseph
(address)
