Sunday, September 1, 2013

8/15/13 Motion for Reconsideration of Contempt Order April 10, 2013 and Subsequent Orders

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)

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