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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 reenter 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.