Clark v. Clark

716 N.E.2d 144, 47 Mass. App. Ct. 737, 1999 Mass. App. LEXIS 1082
CourtMassachusetts Appeals Court
DecidedSeptember 16, 1999
DocketNo. 97-P-2257
StatusPublished
Cited by19 cases

This text of 716 N.E.2d 144 (Clark v. Clark) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Clark, 716 N.E.2d 144, 47 Mass. App. Ct. 737, 1999 Mass. App. LEXIS 1082 (Mass. Ct. App. 1999).

Opinion

Porada, J.

This action arises out of an acrimonious dispute among siblings culminating in the filing of a petition by one of the siblings, Lincoln Clark (Lincoln), to remove his brother and sister, Duncan Clark and Louisa Burbank (guardians), as the guardians of their mother, Elizabeth Clark. A Probate Court judge denied the petition. The same judge also allowed a petition of the guardians to compromise a debt due their mother from the Bolivian government arising out of her ownership of 300 bonds issued by that government. Lincoln appeals from both judgments and an order assessing costs against him. His attorney, Shirley M. Kerman, appeals from the judge’s order imposing sanctions against her for her conduct during the trial. We affirm the judgments and the order imposing costs upon Lincoln but vacate the assessment of attorney fees and costs against his attorney and remand that matter to the Probate Court for further proceedings.

With respect to the issues raised by Lincoln, we address only those claims of error that are adequately presented — i.e., with the reasons therefor and citations to authorities and parts of the record relied upon in compliance with Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).3

1. The petition for removal. Lincoln argues that the decree dismissing his petition must be vacated because the ward did not receive notice of the petition; the judge failed to appoint counsel for the ward; the judge should have recused himself because of bias; and the judge’s findings were not supported by the evidence and were clearly erroneous. There is no merit to Lincoln’s contention that the ward did not receive notice of the proceeding. The obligation to give notice to the ward was [739]*739imposed upon Lincoln as the petitioner under G. L. c. 201, § 33, and the record discloses his attorney did serve notice upon the ward. There is also no reason to vacate the decree because counsel was not appointed for the ward. Although the judge had the discretion to do so, there was no need where the judge had appointed a guardian ad litem to investigate the merits of the petition and Lincoln waited until the first day of trial to make the request even though the petition had been pending for sixteen months.

We also reject Lincoln’s contention that the judge erred in denying his motion for recusal. The motion was filed on May 7, 1997, and questioned the judge’s impartiality based upon the judge’s rushing the case to trial; the denial of Lincoln’s motion for removal of the guardians’ attorney; the denial of Lincoln’s requested appointment of a disinterested guardian ad litem; and the failure to afford Lincoln’s attorney a full hearing on motions for the removal of the guardians’ attorney and appointment of a guardian ad litem. Whether a judge should recuse himself when his impartiality has been questioned, is left to the sound discretion of the judge. Demoulas v. Demoulas Super Markets, Inc., 428 Mass. 543, 546 & n.5 (1998). The mere fact that a party suffers adverse rulings during litigation does not establish lack of judicial impartiality. Foley v. Foley, 27 Mass. App. Ct. 221, 222 (1989). Here, there is nothing in the record to demonstrate an abuse of discretion by the judge in his denial of the motion. Indeed a judge should resist such motions when there is no other apparent reason therefor. Police Commr. of Boston v. Municipal Ct. of the W. Roxbury Dist., 368 Mass. 501, 508 (1975).

Lincoln next argues that the judge’s findings are not supported by the weight of the evidence and that certain of his findings are clearly erroneous. Lincoln overlooks that the weight and credibility of the evidence lie within the province of the trial judge. Our task on appeal is limited solely to determining whether the judge’s findings were plainly wrong. Heinrich v. Silvemail, 23 Mass. App. Ct. 218, 223 (1986).

Lincoln’s case rested on allegations that the guardians had used the ward’s money for their own personal benefit, had failed to pursue other assets belonging to their ward (namely additional Bolivian bonds in the possession of their brother Wayne Clark), and had incurred needless legal expenses. The judge found that the guardians had not acted unreasonably in not pursuing [740]*740recovery of other Bolivian bonds in the light of evidence that those bonds had been given to their brother Wayne by their mother,4 that the guardians had not abused their trust in paying a guardian ad litem’s bills and hiring counsel, and that there was no evidence that they had not acted in their mother’s best interests. Lincoln also challenged certain specific findings made by the judge. Based upon our review of the evidence, we conclude that those specific findings and ultimate conclusions reached by the judge are not plainly wrong.

2. Petition to compromise. The guardians brought a petition seeking authorization to compromise their demand for payment of 300 Bolivian bonds by opting into a class action suit against the Bolivian government brought by other owners of Bolivian bonds in the United States District Court for the District of Columbia. In that suit the parties had agreed to settle their claim against the Bolivian government for one-third of the face value of the bonds. The guardians had until July 3, 1997, to file their claim in that action or they would have to proceed separately against the Bolivian government. Lincoln opposed the petition on the grounds that the ward had not received notice of the petition, the judge had refused to appoint independent counsel for the ward, and the Probate Court lacked jurisdiction to compromise the debt under G. L. c. 204, § 14.

There is no merit to Lincoln’s claim that the petition had to be dismissed based on Lincoln’s claim that the ward had not received notice of the petition or the judge’s failure to appoint independent counsel. Because Lincoln did not argue lack of notice to the ward in the Probate Court, we deem that issue waived. Cf. Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977). In any event, the guardians were proceeding under the provisions of G. L. c. 204, § 13, and there is nothing in that section requiring notice to the ward. The claim that independent counsel should have been appointed for the ward also fails because the appointment lay within the discretion of the judge, see Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 4), 424 Mass. 476, 478-479 (1997), who had already appointed a guardian ad litem for purposes of investigating whether the ward owned other Bolivian bonds other than the 300 bonds listed in the guardians’ inventory.

[741]*741We also reject Lincoln’s claim that the Probate Court lacked jurisdiction over the petition. Lincoln argues that the compromise of the debt due from the Bolivian government by the guardians is governed by the procedures set forth in G. L. c. 204, § 14, which Lincoln contends requires an agreement in writing among all interested parties. Section 14 reads in pertinent part as follows:

“[T]he probate court may authorize [a] . . . guardian . . . to adjust by arbitration or compromise any controversy or question as to the administration ... of the estate in his possession, or as to his accounting therefor, or as to any matter relating to said estate ... to which arbitration or compromise, in the form of an agreement in writing, such . . . guardian . . .

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Bluebook (online)
716 N.E.2d 144, 47 Mass. App. Ct. 737, 1999 Mass. App. LEXIS 1082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-massappct-1999.