THOMAS M. BONAPARTE
Heard: January 9, 2018.
for divorce filed in the Barnstable Division of the Probate
and Family Court Department on May 11, 2015.
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.
Present: Trainor, Hanlon, & Singh, JJ.
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
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.
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
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.
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 support from the husband until March of 2015, when
the husband began sending the wife $100 to $150 per week.
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 re-enter 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.
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 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 ...