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Bonaparte v. Devoti

Appeals Court of Massachusetts, Barnstable

July 20, 2018

THOMAS M. BONAPARTE
v.
MICHELA DEVOTI.

          Heard: January 9, 2018.

         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.

          Present: Trainor, Hanlon, & Singh, JJ.

          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 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 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 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.

         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 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 ...


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