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17-P-399                                             Appeals Court

           THOMAS M. BONAPARTE     vs.   MICHELA DEVOTI.


                          No. 17-P-399.

       Barnstable.      January 9, 2018. - July 20, 2018.

            Present:   Trainor, Hanlon, & Singh, JJ.


Divorce and Separation, Relief from judgment. Due Process of
     Law, Fair trial. Evidence, Acceptance or rejection of
     testimony, Unavailable witness. Witness, Unavailability.
     Telephone.



     Complaint for divorce filed in the Barnstable Division of
the Probate and Family Court Department on May 11, 2015.

     The case was heard by Arthur C. Ryley, J., and a motion for
a new trial was considered by him.


    Michael J. Traft for the wife.
    Michael Fray Suarez for the husband.


    SINGH, J.   Michela Devoti, the former wife (wife) of Thomas

M. Bonaparte (husband), appeals from a divorce judgment entered

in the Probate and Family Court.    She also appeals from the

order denying her motion for new trial.    Her primary contention

on appeal is that her motion to testify by telephone or video
                                                                      2


should have been allowed when she was unable to personally

appear at trial due to immigration issues.     We agree and, with

the exception of the portion of the judgment granting the

divorce, we vacate the judgment and remand for further

proceedings consistent with this opinion.

    Background.     The parties were married in Italy on October

2, 2005.     At that time, the husband resided in New Jersey, and

the wife, an Italian citizen, resided in Piacenza, Italy.        In

January of 2006, the wife gave birth to the parties' child in

Italy.     The parties agreed to continue living apart; however,

the husband traveled to Italy periodically to visit the wife and

the child.

    In the summer of 2006, the wife and the child visited the

husband in New Jersey, at which time the parties discussed the

possibility of relocating to Cape Cod.     In March of 2009, the

parties purchased a home located in Sandwich (marital home).

One year later, in March of 2010, the wife and the child moved

into the marital home with the husband.     Shortly thereafter, the

husband was laid off by his employer and he struggled to find

work.

    In 2011, the wife and child returned to Italy, after which

time the husband was responsible for the expenses related to the

marital home.     The wife was responsible for her own and the

child's living expenses, and received little, if any, financial
                                                                        3


support from the husband until March of 2015, when the husband

began sending the wife $100 to $150 per week.

    In May of 2015, the husband filed a complaint for divorce

in the Probate and Family Court.     Following a pretrial

conference on December 9, 2015, a judge of the Probate and

Family Court (pretrial judge) issued an order identifying the

contested issues for trial as "child support" and "an equitable

division of assets, specifically the former marital home."        The

trial was scheduled for May 3, 2016.     Nine days prior to the

trial, the wife filed a motion seeking permission to testify by

telephone or video.   The wife asserted she was unable to re-

enter the United States until her green card status was

"regularized," and travel to this country was further

complicated by the expiration of the child's Italian passport,

which could not be renewed until the husband signed "the

appropriate papers with the Italian Consulate."     The pretrial

judge denied the wife's motion without explanation on April 26,

2016.

    On May 3, 2016, the wife's counsel, the husband, and the

husband's counsel appeared before a different judge (trial

judge) for the first day of trial.     At the start of trial, the

wife's counsel renewed the wife's request to testify by

telephone or video, submitting a supporting affidavit.      The

wife's counsel stated that, during a recent trip to the United
                                                                      4


States in December of 2015, Federal immigration officials

detained the wife for several hours and warned her that, due to

an irregularity with her green card status, she would not be

permitted re-entry unless she surrendered her green card or

obtained a travel document.     The wife's counsel further stated

that, upon returning to Italy, the wife immediately began the

process of obtaining the required travel document; however, it

was presently "stuck in the system."     The trial judge denied the

wife's request, observing that the wife had not sought a

continuance of the trial.     Each party's counsel presented

opening statements, and the husband testified.     A second day of

trial was held on May 18, 2016, after which the parties

submitted proposed judgments.

    A divorce judgment closely resembling the husband's

proposed judgment entered on June 29, 2016.     The divorce

judgment provided, in relevant part, that (1) the wife shall

retain ownership of her real property located in Italy; (2) the

husband shall retain the marital home and reimburse the wife

$50,000 for "her interest in the [marital] home, after taking

into consideration her sole interest" in the Italian properties

and the husband's expenditures related to the marital home; and

(3) the husband shall pay child support in the amount of $240

per week.   The trial judge declined the wife's request to

deviate upward from the presumptive Child Support Guidelines
                                                                   5


(2013) (Guidelines) amount of $340 per week, instead deviating

downward in consideration of the travel expenses (approximately

$96 per week) the husband would incur to visit with the child.1

The trial judge further declined the wife's request for

restitution for the husband's failure to support the child while

the parties lived apart.   On July 13, 2016, the wife filed a

motion for new trial and relief from judgment pursuant to Mass.

R. Dom. Rel. P. 59 and 60, which was denied on July 21, 2016.

The present appeal by the wife followed.

     Discussion.   The wife claims the denial of her motion to

testify by electronic means was an abuse of discretion and

deprived her of due process.2

     "Due process requires, at minimum, an opportunity to be

heard 'at a meaningful time and in a meaningful manner.'"


     1 At trial, the wife's counsel represented that child
support should be based on the Guidelines.

     2 The wife also claims error in light of a 2016 amendment to
the Uniform Interstate Family Support Act (UIFSA), G. L.
c. 209D, which provides that a judge "shall permit a party or
witness residing outside the commonwealth to be deposed or to
testify under penalty of perjury by telephone, audiovisual
means, or other electronic means . . . ." G. L. c. 209D, § 3-
316(f), inserted by St. 2016, c. 53, § 1 (emphasis supplied).
The wife argues she was entitled to testify by electronic means
because the 2016 amendment went into effect before she filed her
motion in April of 2016. However, even if UIFSA applies to this
case, it appears the 2016 amendment was not in "effect" for
purposes of this case, as the underlying divorce proceedings
were commenced in 2015, and the 2016 amendment only applies to
proceedings "commenced on or after" March 31, 2016. See
St. 2016, c. 53, §§ 2-3.
                                                                     6


Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457

Mass. 172, 187 (2010), quoting from Adoption of Simone, 427

Mass. 34, 39 (1998).    The decision whether to allow a party's

request to testify by electronic means is a matter within the

judge's discretion.    See Mass. R. Dom. Rel. P. 43(a) ("In all

trials the testimony of witnesses shall be taken orally in open

court, or such other place as the judge may in his discretion

determine, unless otherwise provided by these rules").       See also

Adoption of Edmund, 50 Mass. App. Ct. 526, 530 (2000) ("[T]he

precise method of participation should generally be left to the

discretion of the trial judge"); Adoption of Thea, 78 Mass. App.

Ct. 818, 826 (2011) (allowing telephonic testimony is within the

judge's discretion).    "The responsibility for devising a

mechanism for meaningful participation, once requested, rests

with the judge."   Adoption of Whitney, 53 Mass. App. Ct. 832,

836 (2002).

    Here, the wife sought to participate in the divorce trial

by way of telephonic or audiovisual testimony, as her presence

was precluded by her immigration status.    In denying the wife's

request, the trial judge found the wife "had three months to

arrange for an audio visual deposition [pursuant to Mass. R.

Dom. Rel. P. 30A(k)]" but instead "waited until the last minute"

by filing her motion only nine days before the trial.    The judge

found "[t]here [wa]s no reasonable way [the] [h]usband could
                                                                      7


have arranged for, or prepared for an audio visual or telephone

hearing in that short period of time."   It is apparent the judge

viewed the wife's motion to testify by electronic means as

untimely, despite that there is no specific time frame for

filing such a motion, under rule 30A(k) or otherwise.   See Mass.

R. Dom. Rel. P. 30A(k)(1) (requiring only "notice and an

opportunity to be heard").3   See also Roche v. Massachusetts Bay

Transp. Authy., 400 Mass. 217, 221 (1987) (deeming a motion

filed seven days prior to trial as having provided "proper

notice" for purposes of rule 30A[k]).4

     In focusing on audiovisual depositions pursuant to rule

30A, the judge appeared to overlook other available options to

facilitate the wife's participation in the trial, including live

testimony via telephone or video, as requested by the wife.     See

Adoption of Whitney, 53 Mass. App. Ct. at 836 ("In some cases,"

a party's participation "may best occur through video or

telephone conferencing during trial; in yet others, through




     3 "Upon motion with notice and an opportunity to be heard,
. . . the court may order, in the interest of justice and with
due regard to the importance of presenting the testimony of
witnesses orally in open court, that all or part of the
testimony, and such other evidence as may be appropriate, may be
presented at trial by audiovisual means." Mass. R. Dom. Rel. P.
30A(k)(1) (identical to Mass. R. Civ. P. 30A[k][1], as appearing
in 393 Mass. 1238 [1985]).

     4 See Mass. R. Dom. Rel. P. 30(b) (requiring seven days'
notice prior to the taking of a deposition).
                                                                     8


appropriate documentary submissions, deposition testimony, or

other reasonable means").

    Moreover, the judge did not appear to consider other

relevant factors.   The judge's findings reflect no consideration

of the wife's interest in being able to testify, or the

prejudice to the wife resulting in her inability to do so.    See

Valley Bank & Trust Co. v. Marrewa, 354 Mass. 403, 405 (1968)

("Every party has a right to testify in his own behalf").

    Likewise, there is no indication that the judge, in

declining the wife's request to testify by electronic means,

considered the potential impact on the child's interests.    The

judge's findings contain minimal discussion of the child's

needs, despite those needs being a mandatory factor for the

judge to consider under G. L. c. 208, § 34.    The wife sought to

introduce, through testimony, evidence regarding the child's

needs, including the various expenses she regularly incurs in

connection with the child's developmental and learning

disabilities.

    Given that the husband had only visited with the child a

"few times" since 2011, and that the wife is responsible for the

overwhelming majority of the child's care, it is inconceivable

that the wife's testimony on these matters would have no effect

on the judge's findings.    See Adoption of Whitney, 53 Mass. App.

Ct. at 838.   Instead, the judge focused solely on the
                                                                      9


inconvenience to the husband caused by the wife's "last minute"

motion.

     Even if the wife's motion had been late under a specific

procedural rule, which we do not suggest, "domestic relations

matters have been viewed in certain circumstances as standing on

a different footing than other civil matters."     Houston v.

Houston, 64 Mass. App. Ct. 529, 535 n.10 (2005).    In cases

involving children, a judge's action to ameliorate the harsh

effects of a procedural rule "may be necessary to protect the

child's best interests and to prevent manifest injustice."      Id.

at 536 ("As we have stated, an ameliorating influence may be

essential to avoid a result where form triumphs over

substance").

     Here, the risk that the child may be receiving less support

than necessary due to the wife's inability to testify is too

great to ignore.5   In light of the judge's failure to consider

the interests of the wife and the child, we conclude the denial

     5 Indeed, the judge deviated downward from the presumptive
Guidelines by simply deducting the husband's travel costs from
child support, thereby causing the wife to absorb the entirety
of this expense. While a parent's extraordinary travel expense
is one factor a court may consider, it appears that the judge
did not consider any of the other factors which, in the
circumstances of this case, would have warranted an upward
deviation. See Guidelines § IV (2013) (factors include [1] a
child with special needs, [2] a child with extraordinary medical
or other expenses, [3] a parent with extraordinary travel
expense, [4] a parent absorbing child care cost disproportionate
to income, and [5] a parent providing less than one-third of the
parenting time).
                                                                    10


of the wife's request to testify by electronic means was an

abuse of discretion.    See L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co.,

512 F.3d 9, 15 (1st Cir. 2008) ("[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made 'a clear error of judgment in weighing' the

factors relevant to the decision, such that the decision falls

outside the range of reasonable alternatives").

    As the absence of testimony from the wife affects not only

the amount of child support, but also the property division,

those issues must be remanded for a new trial, and we need not

decide the arguments raised by the wife in connection with the

same.

    Conclusion.     The order denying the motion for new trial is

reversed.     The portion of the divorce judgment granting the

divorce is affirmed.    In all other respects, the divorce

judgment is vacated, and the matter is remanded for further

proceedings consistent with this opinion.     A temporary child

support order shall enter to be in effect during the pendency of

the remand.

                                      So ordered.
