Borman v. Borman

• Decision Date: 16 August 1979
• Citation: 378 Mass. 775,393 N.E.2d 847
• Parties: Bernard N. BORMAN v. Corinne L. BORMAN (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 847

393 N.E.2d 847

378 Mass. 775

Bernard N. BORMAN v. Corinne L. BORMAN (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 9, 1979.

Decided Aug. 16, 1979.

Bernard N. Borman, pro se.

Douglas P. Woodlock, South Hamilton, for Corinne L. Borman.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The two substantive issues raised by this appeal and cross-appeal arose in the pretrial stage of cross-actions for divorce. The appeals come to us ¹ in advance of a definitive determination of the rights and liabilities in dispute. The husband, Bernard N. Borman, appeals from the order of the Probate Court judge disqualifying as counsel two of his law partners. He argues, in essence, that the judge misapplied S.J.C. Rule 3:22, DR 5-101, DR 5-102, 359 Mass. 796, 814 (1972), the basis for the disqualification order. We agree.

The wife, Corinne L. Borman, appeals from the judge's order that she must answer all questions at depositions, even those that might require self-incriminatory statements, or have her claims for alimony and division of marital property struck. ² Before us she argues that the judge's choice of sanctions to compel her testimony impermissibly penalized her assertion of her right against self-incrimination. ³ Due, however, to the interlocutory nature of the wife's appeal and the absence of a report or certification by the judge below, we do not reach this issue.

The parties to this action, Corinne Borman and Bernard Borman, were married in Boston, Massachusetts, on August 19, 1962. They have two minor children. On September 17, 1976, the wife filed for divorce on the grounds of cruel and abusive treatment. The complaint included claims for custody of the children, alimony, and the conveyance of real estate. During the early part of spring, 1977, the wife's complaint was tried to a master. Before a report issued, the husband, on June 30, 1977, filed a cross-complaint for divorce on the same grounds as alleged by the wife. Thereafter, on July 22, 1977, a judge of the Probate Court revoked the order of reference to the master.

On September 19, 1977, the husband submitted a formal answer to the wife's complaint. ⁴ He denied the allegations of cruel and abusive treatment and, further, he alleged that the wife had been guilty of misconduct with a third person thereby making her ineligible for alimony. On September 23, 1977, the husband commenced a deposition of the wife during which he sought to elicit information pertaining to his allegation of her misconduct. On the advice of counsel, the wife asserted her right against self-incrimination and refused to answer any questions on the subject.

After considerable delay, apparently caused in part by efforts to negotiate a settlement, the husband resumed taking the wife's deposition on August 30 and 31, 1978. As before, the wife asserted her right against self-incrimination. With the aid of new counsel, who were two partners from his law firm (Lane & Altman), the husband, on November 8, 1978, moved to dismiss the wife's claims for alimony and division of property. The grounds stated in this motion were that, by invoking her privilege, the wife had deprived him of the opportunity fairly to present his case or defend against the wife's actions. That same day, the wife filed a motion for leave to take the deposition of the husband's law firm in order to elicit information about the husband's compensation, capital account, retirement benefits and life and health insurance benefits, matters germane to the wife's claim for alimony. In conjunction with this motion, the wife further moved that members of the husband's law firm be disqualified from serving as the husband's counsel on the ground that this representation would violate the ethical precept that an attorney should withdraw as counsel from causes in which he or members of his firm should be called to give testimony. According to the wife, at least two of counsel's partners would give testimony: the husband, as party litigant; and a member of the firm, other than the husband and trial counsel.

After a hearing on November 13, 1978, the judge allowed the wife's motion for leave to take a deposition of Lane & Altman. He allowed the motion to disqualify under DR 5-102(A), finding that none of the enumerated exceptions to the rule applied. At a later date, he issued a memorandum and order conditionally allowing the husband's motion to dismiss the wife's claims for alimony and division of property. ⁵

1. Appropriateness of Review.

We are met at the outset with the question whether the orders disqualifying the husband's counsel and setting forth the consequences of the wife's continued assertion of her right against self-incrimination are properly before us. Under G.L. c. 215, § 9, a party may claim an appeal from decisions of the Probate Court. ⁶ Under this provision, a party may claim an appeal from interlocutory orders as well as final judgments, but absent a report from the trial judge, G.L. c. 215, § 13, an appeal from an interlocutory order will not be heard by an appellate court until a final judgment has been entered. ⁷ Lynde v. Vose, 326 Mass. 621, 622, 96 N.E.2d 172 (1951). See LaRaia v. LaRaia, 329 Mass. 92, 93, 105 N.E.2d 537 (1952); Vincent v. Plecker, 319 Mass. 560, 564, 67 N.E.2d 145 (1946). See also G.L. c. 215, § 22. Whether either order appealed from is properly before us depends on whether, at a minimum, the particular order is "final." ⁸ While the meaning of the word "final" may not always be clear, see Vincent v. Plecker, supra at 563, 67 N.E.2d 145, the policy underlying this requirement is "that a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant." Id. at n. 1, 67 N.E.2d at 147.

Vincent also noted by way of dictum the developed doctrine that certain decrees which leave a portion of the controversy undetermined may yet be immediately appealable. "Though part of a single controversy remains undetermined, if the decree is to be executed presently, so that appeal would be futile unless the decree could be vacated by the prompt entry of an appeal in the full court, the decree is a final one." Id. 319 Mass. at 564 n. 2, 67 N.E.2d at 148 n. 3, and cases cited. Under this rule, we have labelled as final the appointment (Albre v. Sinclair Constr. Co., 345 Mass. 712, 713, 189 N.E. 563 (1963), Wax v. Monks, 327 Mass. 1, 2-3, 96 N.E.2d 704 (1951)), and continuation (New England Theatres, Inc. v. Olympia Theatres, Inc., 287 Mass. 485, 490, 192 N.E. 93 (1934), cert. denied sub nom. E. M. Loew's, Inc. v. New England Theatres, Inc., 294 U.S. 713, 55 S.Ct. 509, 79 L.Ed. 1247 (1935)) of a receiver in a creditor's action; the allowance of a motion to vacate the appearance of contestants in probate matters (Marcus v. Pearce Woolen Mills, Inc., 353 Mass. 483, 484-485, 233 N.E.2d 29 (1968)); the appointment of a guardian ad litem in estate settlement proceedings (Lynde v. Vose, 326 Mass. 621, 622, 96 N.E.2d 172 (1951)); and the dissolution of a partnership in an action for an accounting (Ferrick v. Barry, 320 Mass. 217, 68 N.E.2d 690 (1946)).

We are of the opinion that the disqualification order is similar in effect to the orders and decrees listed under the doctrine of present execution. We further note that under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), a doctrine closely analogous to our rule of present execution, ⁹ disqualification orders are conclusive of a party's right to counsel of his choice and are effectively unreviewable on appeal from judgment. ¹⁰ We conclude that the husband's appeal from the order disqualifying his partners as counsel is properly before us for determination.

In contrast, the wife's appeal is not yet ripe for appellate review. What the wife seeks to have us determine is whether the Probate Court judge may strike her claim for alimony if she refuses to provide allegedly self-incriminating information at depositions. Basically, she contests the judge's choice of discovery sanctions. On the question of ripeness, it matters little whether the issue on appeal is the propriety of a witness's invocation of a privilege or the propriety of the judge's imposition of a particular sanction on the witness's refusal to disclose. In either case, we must determine whether the order challenged is final.

The striking of a claim might be among those discovery sanctions that is final and appealable because it disposes of one or more claims for relief. See 4 Moore's, Federal Practice par. 26.83(7), at 26-601 (2d ed. 1979). The order from which the wife seeks relief does not, however, strike her claim. Rather it warns that unless she answers all questions at future depositions, her claim Will be Struck. The distinction is significant given that the judge might yet decide not to impose that sanction. Indeed, even if he should impose it, he is free to modify any outstanding order at any time before entry of judgment. Massachusetts Rules of Domestic Relations Procedure 54(b) (1975). Cf. Dellums v. Powell, 184 U.S.App.D.C. 339, 342, 566 F.2d 231, 234 (D.C.Cir. 1977); Cromaglass Corp v. Ferm, 500 F.2d 601, 605 (3d Cir. 1974) (en banc). ¹¹ In essence then, the challenged portion of the judge's order is an order to disclose, which does no more than transform discovery from a process involving only the parties to one in which the court has a stake in compliance. As such it does not dispose of one or more claims such that it would be appealable. Massachusetts Rules of Domestic Relations Procedure 54(b) (1975).

Furthermore, the wife's appeal does not fit within the doctrine of present execution. Unless and until the husband resumes taking the wife's deposition, the order...