Opinion
22-P-610
12-08-2022
In the MATTER OF the ESTATE OF Beatrice FERNANDES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Anthony Fernandes (Anthony) appeals from a decree and order on a petition for formal adjudication, entered by a judge of the Probate and Family Court, after a bench trial. In brief summary, the judge found that Anthony "is unsuitable and unqualified to serve as the [p]ersonal [r]epresentative" of his mother's (Beatrice) estate, and appointed Janice Fernandes (Janice), Beatrice's daughter, and Heidi Lewis (Heidi), Beatrice's granddaughter, as personal representatives. On appeal, Anthony raises various arguments concerning the validity of Heidi appearing in her capacity as attorney-in-fact for her mother, Vivian Lewis (Vivian), challenges the appointment of Janice and Heidi, and contends that the judge should not have continued the trial and demonstrated bias against him. We affirm.
The record does not support Anthony's contention that the judge was biased against him.
Background. We recite the facts as the judge found them, as none have been shown to be clearly erroneous, together with certain uncontroverted facts. See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014), quoting Makrigiannis v. Nintendo of Am., Inc., 442 Mass. 675, 677 (2004) ("[w]e accept the judge's findings of fact in a bench trial unless they are clearly erroneous").
Beatrice executed her last will and testament on September 15, 1998 and died almost twenty years later, on March 22, 2016. Beatrice had three children: Anthony, Janice, and Vivien. The will named Anthony as executor and Janice as substitute executrix. After payment of debts, funeral and administrative expenses and taxes, Beatrice made specific bequests to Heidi (her grandaughter) and to three of her great-grandchildren. The remainder of the estate was bequeathed to Janice and Vivien equally. Neither Anthony, who lives in Germany, nor his descendants were to receive anything under the will.
Before her death, Beatrice lived in a house in Fairhaven with her two daughters, Janice and Vivien, who took care of her until shortly before she died at the age of 104. It appears that Beatrice's estate consisted primarily of the personal items in the house.
After Beatrice's death, Anthony sent an email in which he stated that he did not intend to carry out his duties as executor in strict accordance with the terms of Beatrice's will. Specifically, he wrote that "on my own discretion ... I will allow all of the children, grandchildren, and great grandchildren to select an item belonging to Beatrice ... as a remembrance." The judge found that Anthony's action in this regard "created discord and confusion among family members and delayed the administration of the estate."
A few months later, Anthony again expressed his intention to deviate from the provisions of the will. On June 11, 2016, he wrote:
"I also believe that my mother would not want that her grandchildren Regina and Peter and their children are exempted from having an appropriate remembrance from her.... Therefore ... Peter, Regina and their children [will] also be allowed to choose appropriate and reasonable remembrances for themselves."
The judge found that Anthony had acted contrary to the best interest of the estate, misused court process to cause unnecessary delay in the probate of the estate, and had engaged in self-dealing to further his own interests. On these bases, she found Anthony unsuitable to be the personal representative and appointed Janice and Vivien instead.
Our review of the probate court docket and of the trial transcript leads us to conclude that the judge's assessment of Anthony's conduct regarding the litigation was well grounded in the facts.
Discussion. We note at the outset that Anthony, who is proceeding pro se, has failed to present adequate appellate argument. "Appellate briefs must contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.... Where ... an argument merely asserts error without sufficient legal argument, this standard is not met." Selmark Assocs. v. Ehrlich, 467 Mass. 525, 540 (2014) (quotation omitted). Additionally, "[c]ontentions lacking legal authority or reasoned explanation fall short of argument." Howe v. Tarvezian, 73 Mass. App. Ct. 10, 12 (2008). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Here, Anthony merely asserts bald claims of error and fails to provide proper legal argument or citations. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) ; Lolos v. Berlin, 338 Mass. 10, 14 (1958) ; Morgan v. Laboratory Corp. of Am., 65 Mass. App. Ct. 816, 821 n.6 (2006) ; Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995). We nonetheless have carefully reviewed Anthony's claims and the incomplete record he has presented to assess the merits of his claims to the extent we can understand them.
1. Motion to waive presence at trial. Anthony argues that the judge erred in allowing Vivien's motion not to appear at trial. Anthony has not included in the appendix all of the pages of the transcript containing the hearing on the motion, and this alone defeats his claim that the judge abused her discretion. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992) (appellant "had an obligation to ... provide the reviewing court with all relevant portions of the record"). Moreover, the limited portion of the transcript shows that Vivien's physician indicated that appearing in court would confuse Vivien and be detrimental to her well-being and health. This, combined with the fact that Vivien's daughter Heidi was a percipient witness ready and able to testify to matters known by Vivien concerning Anthony's administration of the estate, was sufficient basis for the judge to allow the motion for protective order. "A court has inherent powers to issue protective orders to prevent abuses, oppression, and injustices (quotation omitted)." Chadwick v. Duxbury Pub. Sch., 475 Mass. 645, 656 n.18 (2016). "Among those inherent powers is the court's authority to issue protective orders." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 213-214 (2011). A judge is entitled to a "broad measure of discretion" in the issuance of a protective order. Matter of Roche, 381 Mass. 624, 638 (1980).
2. Power of attorney. Anthony raises three arguments premised on the notion that Vivien's interests were inadequately protected by her daughter Heidi, who was Vivien's attorney-in-fact under a durable power of attorney. In essence, Anthony argues that the document should not have been accepted on its face as a valid document.
On June 16, 2019, Vivian signed a broad durable financial power of attorney naming Heidi as her agent. The agreement enumerates many sweeping grants of representative authority, such as the power "[t]o commence, prosecute and defend all actions and other proceedings touching my estate or any part thereof, or touching anything in which I or my estate may be in any way concerned" and "[t]o represent me in any and all matters touching my interests in any equitable estate ... of which I am a beneficiary." There is nothing to suggest any irregularity with the instrument, which was signed by Vivien, countersigned by two witnesses, and notarized. In the circumstances, the judge was entitled to accept the appointment of Heidi as her mother's attorney-in-fact without engaging in collateral inquiry into the validity of the appointment.
3. Continuance of trial date. Anthony argues that the judge abused her discretion in continuing the trial date by approximately three months, from October 14, 2020 to January 20, 2021. "Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case." Commonwealth v. Fernandez, 480 Mass. 334, 340 (2018), quoting Commonwealth v. Pena, 462 Mass. 183, 189 (2012). There was no abuse of discretion here; the relatively short continuance was necessitated by the fact that previous counsel for Janice and Vivien had to withdraw from the case shortly before the initial trial date because she had been nominated to the bench. Although it is true, as Anthony suggests, that the judge could have required the judicial nominee to appear in a case in the court to which she had been nominated, it was well within the judge's discretion to avoid such an appearance of impropriety.
4. Assorted general claims of error. Anthony makes a number of naked assertions of error in the conduct of trial and the judge's reasoning, all ultimately going to his assertion that the judge erred in deciding to appoint Janice and Heidi as personal representative instead of him. However, the appointment of a personal representative, after formal proceedings, see G. L. c. 190B, § 3-414, is a matter largely conferred to the discretionary judgment of the trial judge and, accordingly, will be disturbed only upon a showing of abuse of discretion or other clear error of law. Here, in light of the judge's subsidiary findings concerning Anthony's repeated attempts to misuse his position as executor to deviate from the provisions of his mother's will and his abuse of the judicial process to create delay and inefficiency, we discern no error in her determination that Anthony was unsuitable to be personal representative, or in appointing Janice and Heidi in his stead. See Grossman v. Grossman, 343 Mass. 565, 568 (1962) ; District Attorney for Norfolk Dist. v. Magraw, 34 Mass. App. Ct. 713, 716 (1993), S.C. 417 Mass. 169 (1994).
To the extent that we have not expressly addressed any additional arguments made by Anthony, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). Finally, we deny the requests for appellate fees and costs made by both sides.
Decree and order on petition for formal adjudication affirmed.