The Daily Injustices of 
Justices Catherine Sabaitis, 
Lisa A. Roberts, Edward Donnelly, and Dorothy Gibson
with updated Epilogue
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COMMONWEALTH OF MASSACHUSETTS

PLYMOUTH SS.                        PROBATE & FAMILY COURT
                                                                NO. 00D-0000-DV1

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A. B. Smith
                                   Plaintiff 
v.

C. D. Smith
                                   Defendant 
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___________________________________________________________________

LETTER TO JUSTICES MARGARET MARSHALL,
SEAN M. DUNPHY, CATHERINE SABAITIS, 
LISA A. ROBERTS, EDWARD DONNELLY, AND
DOROTHY GIBSON

Dear Justices:

I am writing and filing this highly unusual letter in three cases:\1/

\FN1/   All three men know each other and of each other’s cases

                   There is no breach of confidentiality. 

Smith v. Smith, Plymouth Probate & Family Court, NO. 00D-0000-DV1
Jones v. Jones, Middlesex Probate & Family Court, NO. 11D-1111DV1
Doe v. Doe, Suffolk Probate & Family Court, NO. 22D-2222-DV1

As you all, I am assuming, know, I am under personal and professional attack by the BBO because I am outspoken regarding the injustice throughout the Probate & Family Court system across the Commonwealth. I am old. I have run out of patience and time. On 1 March 2004, nineteen days from today my proposed findings of fact and rulings of law are due at the BBO.   My days are numbered thereafter until the BBO will recommend, I also assume, disbarment because they and whichever powers are behind the Bar Counsel’s petition for discipline are unhappy with my exercising my constitutional right to political speech and free expression.

Therefore, I have to act fast. The usual fear that strikes most attorneys, to wit, that they shall be reported to the Bar, has no longer any significance in my life.   I have been stripped of fear.   I am dealing with reality.

The Smith case: Yesterday, 10 February 2004, was Day 1 of the Smith divorce trial. Consolidated with the divorce was a trial on a Complaint for Contempt brought by Wife Smith against Husband Smith on 12 December 2003.

On 18 November 2003, Judge Sabaitis had found Husband Smith in contempt of not paying alleged out-of-pocket medical costs of $865. Husband Smith has insisted no bills by medical practitioners were ever presented to him. Wife’s attorney, G H ["H"], simply wrote the amount on the Complaint. That is not evidence. At no time was Husband Smith allowed to cross-examine his accusers; at no time was Wife required to produce evidence that she had expended $865 out of pocket for medical expenses. The December 22nd Complaint for Contempt was based on the November 18th order.

Yesterday, while cross-examining Wife, the first time since 2002 that she had been put on the stand, Judge Sabaitis refused to allow me to ask about what bills and/or expenses comprised the $865. She said the issue had been adjudicated and that it was res judicata. I responded that the first order was unlawful, in that no evidence had been taken to reach the determination of contempt and that an unlawful order is void ab initio, and therefore Husband Smith had no need to comply with it. I offered to supply her a brief. She did not want one.

Further, my attempts to cross-examine Wife on one of her Financial Statements was also aborted by Judge Sabaitis. The cross-examination is far from complete, but given the injudicious rulings of Judge Sabaitis thus far, the prognosis of that examination is not good. Clearly her notions of due process do not comport with those of the highest courts in the Commonwealth and our country.

One of the judge’s colleagues on the bench, Judge Prudence McGregor, recently in Panaro v. Grady, 31 M.L.W. 391, slip op. at 56 (Lawyers Weekly, No. 15-009-02 (88 pages) (Bristol Probate & Family Court) (Docket No. 01D-0186-DV1), gave custody to the father forthwith because the mother lied on her Financial Statements. 

Wife Smith has similarly lied on her Financial Statements. Husband Smith has gathered documentary proof of the prevarications. If he is not entitled to cross-examine on the items in the Financial Statements, there is no sense of the court to make the filing of them mandatory.   Inequitable asininity is both costly to both clients and their counsel, and unacceptable for any system purporting to be a justice system.

Husband Smith seeks a mistrial and the recusal of Judge Sabaitis.

Interlocutory appeal would be futile. Rubber-stamping and summary dismissals are routine.

The Jones case: Husband Jones and Wife Jones, both lawyers, were divorced several years ago. The Joneses have two children, of whom Wife has physical custody. (One, being physically abused by both his mother and his sister, is quite unhappy in that custody and looks forward to being put in the custody of his father.) And Wife has possession of the once-marital home, worth well over $600,000. Husband Jones is renting a walk-up apartment in a rundown building in ___   Fortunately his artistic talent and taste are impeccable so the interior is inviting, warm, spotless, and comforting to him and those visiting. 

When post-trial financial matters began to consume more time than the original divorce proceedings, I was approached by Husband Jones for representation. Husband Jones is living primarily off of partial disability insurance payments (approximately $38,000), as a result of ____  due to [dangerous virus]. During the marriage, he and Wife were law partners in downtown Boston. Since the divorce, both are solo practitioners. His law practice, now in a home-office, has shrunk to the point where his earnings from it are de minimus (under $_____Wife’s, on the other hand, now located on ___ in ____, has grown to the point where she has grossed approximately $230,000 annually during the last two years. 

Despite the distinctive difference in earning power and income, Husband Jones has been ordered to pay her child support to that extent where he had to use all of his retirement funds to meet the excessive court orders and is in jeopardy of not being able to pay his own rent each month. So dire is his financial existence that he is plagued monthly by late charges and overdraft payments.

Judge Edward Donnelly and with the recent change in assignments, Judge Gibson are currently reviewing the bank statements for Wife’s personal and law-office accounts, which Husband Jones produced a few weeks ago when he was seeking court intervention with Wife’s interference with his disability payments and putting him at the brink of eviction. Wife filed that day a motion to jail him. It was euphemistically a mean-spirited act with no justifiable basis. 

That day, Judge Donnelly, who has quite a pleasant demeanor and appears to listen very well, said he would give us a decision by the end of that week. That decision we have yet to receive. Fortunately, I was able to convince the disability payor to release Husband Jones’s check, which he received only yesterday, and he had been able to convince the landlady to await his rent payment, so tragedy has been avoided this month.

But there is still over his head contempt charges due to grossly inequitable past court orders. That he should be required to pay Wife child support when her income is between 400 and 500 percent greater than his is remarkable and smacks of the invidious gender discrimination against men in the probate and family courts about which I have been so outspoken and the courts have tried so hard to hide.

That he has not been, of course, awarded alimony because of his disability is unconscionable. Were he not male, an award of alimony of at least $2000 a week, given Wife’s proven gross annual income of approximately ¼ million dollars, would have been instantly granted.

Digression: The Chief Justice has published many statements of late regarding the evaluation of judges and of the high quality of their performance. I have correspondence with the SJC person in charge of the survey. As a result of that correspondence and communication with her, I can confidently state that the survey was made of only selected lawyers, those friendly with the court. The anxiety caused Husband Jones is considerable. I seek not only a timely resolution of the matters before Judges Donnelly and Gibson but also a fair one, one taking into consideration the wide disparity between the income of Wife and that of Husband Jones.

The Doe case: I became successor counsel (as I am on the other two cases) when the husband’s case was sinking into the quicksand of the probate and family court in front of Judge Nancy M. Gould.  Between 10 June 2002 and 9 May 2003, 59 days of divorce trial were heard by Judge Lisa A. Roberts.  Numerous posttrial pleadings were due within the first 6 weeks after trial and the proposed findings of fact and rulings of law were due after the next 6 weeks, i.e., by 19 August 2003.   It is now 11 February 2004, six months after the proposed findings and rulings were submitted by the parties and no decision from the court has issued.

The Doe case was fraught with accusations of severe sexual abuse by the mother’s father, to whose out-of-state home the children were allowed to be removed without either the consent of Husband Doe or an evidentiary hearing; with the mother’s repeated dishonesty and highly questionable conduct (the mother is also a lawyer); and with evidence of public corruption.

Presently, the mother is bearing the child of a man not her husband, Doe’s [children] are still suffering; Husband Doe is powerless to come to the aid and rescue of his children; the courts have refused to act in the children’s best interests at any time throughout the entire span of the divorce proceedings.

I fear that the Doe decision will languish until nothing will be salvageable: the children will be forever wounded and Husband Doe will be completely broken. 

A decision must forthcome soon. The court is playing cruelly with the lives of the children and Husband Doe. The mother frankly is quite happy with her new boyfriend and has jumped the gun in creating her new family. Her law practice in ____ is flourishing. She, like Wife Jones, is grossing well over $200,000.

Conclusion: Each of the women in the three above cases has repeatedly filed fraudulent Financial Statements and each of the women in the above cases has falsely charged her husband with abuse,\2/ making the immediate award of child custody to the fathers appropriate, as in Panaro v. Grady, a wise and measured decision.

\FN2/   The women have falsely complained to the police, sought and got restraining orders, and brought criminal charges a minimum of a dozen times between them.  Fortunately all charges against the men were ultimately dismissed. 

These three cases are only at the current top of my repertoire of anecdotes of the discriminatory actions in probate and family court. Because of my activism, I have heard of 100s more, almost, as, and more severe than these.

Something must be done. Platitudes are not enough. Musical chairs of incestual political appointments from committee to committee must be stopped. New voices, if you will, must be allowed into the arena to be heard.

                                                       Respectfully submitted,
                                                       The defendants,
                                                       By their attorney,

11 February 2004                           ________________________
                                                      Barbara C. Johnson, Esq.
                                                      6 Appletree Lane
                                                      Andover, MA 01810-4102 
                                                      978-474-0833

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 11 February 2004, I emailed and on 12 February 2004, I caused to be served by first-class mail a copy of this document on opposing counsel and the above-named judges.

11 February 2004                           ________________________
                                                      Barbara C. Johnson, Esq.

 
EPILOGUE

Case 1 --The Smith Case:  Judge Sabaitis called a mistrial on Day 3 of the trial, recused herself, and ordered that Johnson be removed as defense counsel.  When Johnson originally wrote the Epilogue, the trial had not yet resumed and Johnson still represented her client.    Therefore Judge Roberts, assigned as a replacement judge, recused herself from the case at the request of Johnson's client.  Negotiations -- on and off -- were still underway.   Now, in 2008, Johnson has no knowledge of what has occurred in Case 1.

Case 2 -- The Jones Case:   Gibson (1) vacated -- without notice to Johnson -- the mortgage Jones gave Johnson for her fees and (2) allowed to the Wife a $250,000 ex parte attachment on Jones's interest in the marital property.  Johnson jumped up and down and Gibson reduced it to $25,000.  Amazingly the attachment was for FUTURE arrearages the Husband might incur.   Johnson reported Gibson to the Commission on Judicial Conduct.  The complaint was dismissed.  Whether there was an investigation is unknown for SECRECY is the invisible middle name of the commission.

And Donnelly, calling Jones's disability "wages," assigned half of the them to the Wife, leaving her with over a QUARTER MILLION DOLLARS ANNUAL INCOME and Jones with $19,200 BEFORE taxes.  Jones reported Donnelly to the Commission on Judicial Conduct.  The complaint was dismissed.  Whether there was an investigation is unknown because of the SECRECY.

Meanwhile, the couple's son wanted to live with his father.  His mother's behavior was reprehensible.  We worked on strategy for a while . . . and she relented. 

Lots of delightful happenings arranged by Jones a few summers ago for his son.  The son then went to live with Jones and began school (an excellent one) around the corner.  He made friends immediately, had play dates, and the little girls in his class gave him their phone numbers! 

The morning of the first night Mom was to have the son, she called Jones and said she wanted him to take the son.  Apparently she had a date that night which was more important.  Jones did not ask for a modification of child support, believing that Mom would nix the plan, since she really wants the money more thn she wants the son. 

Jones said, "Hey, the child support is ransom.  It's actually costing me more because I'm naturally buying him food and supplies and so on.   But my son is worth it!!  I'm not going to let money stand in my way of getting his mother to go along with our plan." 
 

Case 3 -- The Doe Case:   Premature for Barb to say anything on this website at this time.  After the trial but before the divorce became final, the mother gave birth to her boyfriend's child and bought a new home. 

We still would love to see Judge Roberts removed from the bench.  She acted criminally, by using her office to aid and abet the conversion of thousands upon thousands of Doe's dollars in an escrow account by Attorney Gerald L. Nissenbaum, E. Chouteau Merrill (who became a judge in the middle of all this), and Doe's wife. 

It has been problematic in getting authorities to move against her for criminal conduct.  We shall not stop