Beninati v. Beninati
| Decision Date | 12 September 1984 |
| Citation | 468 N.E.2d 644,18 Mass.App.Ct. 529 |
| Parties | Philip BENINATI v. Theresa BENINATI. |
| Court | Appeals Court of Massachusetts |
Gerald D. McLellan, Boston (Ellen S. Zack, Boston, with him), for defendant.
David H. Lee, Boston, for plaintiff.
Before ARMSTRONG, KASS and WARNER, JJ.
Although the full flavor of the lawyer-judge confrontation which provoked this appeal is best savored from the unabridged record of the proceedings below, a proper concern for concision moves us to summarize.
The libretto begins with a complaint for divorce filed March 23, 1983, by Theresa Beninati (the wife) alleging irretrievable breakdown of the marriage and requesting a divorce in accordance with G.L. c. 208, § 1B. There followed a temporary order for support of the wife, a request for production of documents by the wife, her motion for leave to file in excess of thirty interrogatories, her notice of deposition, and her request for admission of certain facts. On June 8, 1983, Philip Beninati (the husband), represented as of that date by new counsel, filed a cross-action alleging cruel and abusive treatment. Shortly thereafter, on June 13th, the husband made his first response to the request for production of documents.
There were further maneuvers. The husband moved to modify a temporary order of support and marked that motion for hearing in Concord on June 15, 1983. The wife augmented her resistance to that motion with a motion for the allowance of counsel fees and also marked that for hearing on June 15th. Upon conclusion of the June 15th hearing, the probate judge issued a "Pre-trial Notice and Order" which was mailed to counsel and received by counsel for the wife on June 17, 1983. For purposes of what follows, and the principal issue in this case, the third from the last paragraph is significant, and we quote it in its entirety: "At the conclusion of such pre-trial conference, an appropriate order will be entered reflecting the action taken at such conference; and the case is subject to immediate trial on that day (emphasis original)."
According to counsel for the wife, the three months between the pretrial order and the date set for pretrial proceedings or trial were an exercise in frustration. The husband failed to make available diverse documents sought from him for discovery. On August 10, 1983, the wife served notice on the husband that his deposition was to be taken on September 15, 1983, only twenty-four hours prior to the date scheduled for pretrial proceedings and possible trial. On September 13th, the wife moved for sanctions against the husband because of his failure to comply with an order of court dated August 10, 1983, for the production of documents.
When the parties appeared before the probate judge on September 16th, the first order of business on the record was the wife's motion for sanctions. 1 Counsel for the parties had completed a round of argument on that matter when the collision mentioned at the outset of this opinion occurred. It is a fair summary of the events of that day that the probate judge formed an opinion that the discovery wrangles constituted fencing between counsel and that if the case went forward for trial on the merits, he could form a better view whether the husband was holding back useful documents and in other respects "stonewalling", as the wife's counsel charged. The judge said that he would weigh the issues of inadequate discovery raised by the motion for sanctions as the evidence developed and would protect the rights of the wife in that regard. "What time do you suggest for trial your Honor," wife's counsel asked. The judge replied, "We'll start now, Mr. McClellan." There ensued the following dialogue.
Counsel for the husband then indicated his readiness to proceed with the husband's action.
Counsel for the husband then placed in evidence the husband's case for divorce on grounds of cruel and abusive treatment, including financial information.
At the conclusion of the husband's case, the probate judge afforded the wife's counsel an opportunity to cross-examine the husband, which he declined. It was a Friday. At that juncture the judge adjourned the session to the following Monday and invited the wife and her counsel to reconsider their position.
At the reconvened session, Mr. McClellan stated for the record, upon the judge's invitation so to do, that in view of the inadequate (as he viewed it) response of the husband to discovery, he could not adequately represent his client and that he could not conscientiously participate in the trial with the case in that posture and that state of unpreparedness.
By the following Wednesday, the judge had become aware that the wife's action under G.L. c. 208, § 1B, had not been ripe for trial because, under the statute, there could be no hearing earlier than twelve months after the filing of the complaint. Accordingly, the judge said that he would not, as he had earlier indicated, dismiss the wife's action. The judge did, however, enter a judgment of divorce nisi in the husband's action which provided for custody of the minor children, visitation, unallocated alimony of $400 per week to the wife, and made other property dispositions, including a lump sum payment of $30,000 to the wife. The wife's appeal followed.
1. The insistence on an immediate trial. It is the wife's position that the judge abused his discretion in ordering to trial, in accordance with the judge's prearranged schedule, a case in which the wife had not been able to complete discovery to which she was entitled. The trial judge, the wife argues in her brief, "has far exceeded his authority," acted dictatorially, and "in a fit of pique."
Although "a show of evanescent irritation--a modicum of quick temper ... must be allowed even judges," Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11 (1954), it is the duty of a judge to "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity ...." Canon 3(A)(3) of the Code of Judicial Conduct, S.J.C. Rule 3:09, as amended, 382 Mass. 809 (1981). Judicial discretion implies the "absence of arbitrary determination, capricious disposition, or whimsical thinking." Davis v. Boston Elev. Ry., 235 Mass. 482, 496, 126 N.E. 841 (1920). The phrase imports "the exercise of discriminating judgment within the bounds of reason." Ibid.
One might wish that the judge had afforded wife's counsel more opportunity to spell out what was missing in the way of documents sought and why they were important. In the same spirit of criticism we observe that a curt "no" to a request by counsel to be heard is seldom justified. Counsel has the right and the duty to state for the record the nature of an objection or the reason for a position and, unless counsel has been verbose or contumacious, ought not to be summarily silenced. 2 Not just the dictates of Canon 3, but common sense, suggest the virtue of a willing ear; the judge, after all, may learn something. Listening is an important aspect of a judge's job. Wife's counsel had not been prolix and was not rehashing old ground. Although counsel was somewhat impertinent in the manner in which, at the outset, he flatly refused to start trial, his demeanor--so far as we may glean it from the written record--was not contumacious and a measure of patience on the part of the tribunal about hearing counsel's reasons would have been the wiser course.
Those reflections aside, we are firmly of opinion that the judge did not abuse his discretion. He did not act arbitrarily or whimsically. His mind was very much at work. He saw the discovery controversy as posturing for bargaining purposes and a morass from which trial might extricate the parties. He gave evidence of an intent, if he were wrong on that score, to suspend trial, and let further discovery proceed. The judge is not without experience and his management of the discovery issues is entitled to weight. Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16, 129 N.E. 669 (1921). Mowat v. DeLuca, 330 Mass. 711, 712, 116 N.E.2d 322 (1953). Bishop v. Klein, 380 Mass. 285, 288, 402 N.E.2d 1365 (1980). 8 Wright & Miller, Federal Practice and Procedure § 2205 (1970).
Above all, the salient fact is that the parties were advised on June 17th that the case was subject to immediate trial on September 16th. By scheduling an appointment to examine the husband's documents on September 9th and taking his deposition on September 15th, wife's counsel contributed to his own disability and the judge could take that into consideration. At the least there was an obligation to inform the court by a timely motion for a continuance that...
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