COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT PROBATE AND FAMILY COURT DEPARTMENT Norfolk Division Docket No. 97 P 0288- E1/E2 Jean F. O’Meara, as she is a beneficiary under the Will of Lawrence F. Kickham, Petitioner v. Charles J. Kickham, as he is Executor of the Will of Lawrence F. Kickham, Respondent ee) MEMORANDUM OF DECISION and JUDGMEN’ on PETITIONER’S PETITION TO REVOKE JUDGMENT OF FIRST AND FINAL ACCOUNTING OF THE EXECUTOR Filed January 17, 2002 This matter came before the Court (Carey, J) on the Petitioner's Petition to revoke judgment and approval of the first and final accounting of the estate of Lawrence F. Kickham on October 16, 2002. After hearing, for reasons set forth below, the Petition is hereby DISMISSED WITH PREJUDICE. PROCEDURAL HISTORY 1 On February 5, 1997, Charles J. Kickham, Jr. filed a Petition to Probate the Will of Lawrence Kickham, who died on December 15, 1996. 2. The Petitioner, Jean F. O’Meara, is the decedent's niece (hereinafter 0’ Meara), 3. By decree of the Court (Harms, J.) on March 20, 1997, Charles J Kickham, Jr. was appointed Executor (hereinafter Executor) without objection. 4. On July 17, 1997, the Executor filed an Inventory with the Court, Page | of 4W 12. 13. 14. ‘The Executor filed a First and Final Accounting on December 24, 1997, On February 12, 1998, the Court (Kopelman, J) entered Judgment approving the First and Final Account of the Executor. O'Meara received a one-twelfth (1/12th) interest in the residue of the Estate, or $10,707.59. On January 17, 2002, O’Meara filed a Petition seeking to have the Judgment revoked and the Executor discharged and replaced with David R. Amos, her husband (hereinafter Amos) or another suitable person. On February 8, 2002, the Executor filed an Answer in which he sought to have O’Meara’s Complaint dismissed on the grounds that O’Meara failed to timely pursue relief under the provisions of Mass.R.Civ.P. 60; failed to state a claim upon which relief may be granted; claim is barred by the statute of limitations; is barred from relief by the doctrine of laches; is estopped from asserting her claim; claims are wholly insubstantial, frivolous and not advanced in good faith; and is owed nothing further from the estate beyond that which was received as a final distribution on January 9, 1998. On May 16, 2002, this Court (Carey, J) held a Pre-Trial Conference and scheduled this case for trial on October 16, 2002, and October 17, 2002, at 9:00 a.m. The disputed issues to be adjudicated were; whether the Petition was timely, and if timely, should the judgment be vacated and the executor discharged and replaced with Amos. ‘On May 23, 2002, Amos filed a Notice of Appearance as attorney for O’Meara. Amos attached a copy of a General Power of Attorney, dated May 20, 2002, where O’Meara granted Amos her Power of Attorney. ‘The Executor filed a Motion to Strike the Appearance of David A. Amos as Attomey of Record for the Plaintiff on June 18, 2002. On June 20, 2002, this Court (Carey, J) struck the appearance of Amos, issuing a Memorandum of Decision and Order. ‘On June 24, 2002, Amos filed a Motion of the Plaintiff, Jean F, O’Meara for Associate Justice Paula M. Carey and Associate Justice Robert W. Langlois to Disqualify ‘Themselves in the Proceedings in the Matters of the Estate of Lawrence F. Kickham. 0’ Meara did not appear in Court to argue her Motion for Recusal on June 28, 2002, so the Court did not hear the Motion, providing that she may remark the Motion for presentation by either O’Meara or counsel on her behalf. On July 24, 2002, this Court (Carey, J) denied the Executor’s Motion to Dismiss O’Meara’s Petition and issued a detailed memorandum and order Page 2 of 4DISCUSSION ‘The Petitioner appeared before this Court, on October 16, 2002, without an attomey, despite nine months to retain one. Amos appeared to represent the Petitioner and speak on her behalf. Amos was not allowed to present O’Meara’s case. This Court had previously stricken Amos” appearance on June 14, 2002, and issued a detailed memorandum and order as to why Amos could not appear on behalf of his wife and represent her interests. The Petitioner was not under a guardianship at the time of trial. A Petition for Conservatorship was filed by Amos on August 7, 2002. On September 18, 2002, said Petition was denied by this Court (Harms, 1) ‘The Petitioner, O’Meara, filed a renewed Motion for Associate Justice Paula Carey and Robert Langlois to recuse themselves from the case and the motion was scheduled for the date of trial. After hearing, the Court denied the Motion as to Judge Carey. Thereafter, the Court requested that the Petitioner identify her witnesses and begin the presentation of her case. O’Meara bore the burden of presenting her case. O’Meara failed to present her case, failed to present any witnesses or testimony and did not meet her burden of going forward. She indicated that she was not capable of presenting her case and wished to have her husband do so. Proceeding pro se does not relieve one of the duty to comply with the rules of procedure. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985); Commonwealth v, Jackson, 419 Mass. 717, 721 (1995); Solimine v. Davidian, 422 Mass. 1002 (1996); Tabachnick, 425 Mass, 1010 (1997), rescript. In Jackson, a defendant in a criminal case decided to present his case pro se. Commonwealth v. Jackson, 419 Mass. 717 (1995). After his conviction, the defendant appealed, based on the trial court’s refusal to allow him to ask certain questions and that the judge impaired his ability to adequately present his case. Id. at 718. The Supreme Judicial Court denied these grounds as a reason to reverse, reiterating that even though pro se litigants generally have no legal training, “pro se litigants are held to the same standards as practicing members of the bar.” Id. at 719. The trial judge properly prevented the defendant from asking argumentative and repetitive questions. Id. at 722. Additionally, the interruptions by the judge were to guide the defendant as to how to ask questions that would demonstrate any inconsistencies regarding the witness’s prior testimony. Id, The court does not have to exhibit lenience toward a pro se defendant, nor must the court protect the pro se defendant from his lack of legal training, Id. at 721. Inthe present case the petitioner failed to present a witness or ask a question The burden of going forward with the evidence rests with the party alleging a particular fact or set of facts to be true. R. W. Bishop, Prima Facie Case-Proof and Defense 4" § 58.3 (1997 & Supp. 2002). “A party making a claim under a statute usually bears the burden of proving that he comes within the terms of the statute.” Edmund & Co. v. Rosen, 412 Mass. 572, 285 (1985). The Plaintiff must present evidence that would be sufficient to persuade the fact- finder that the fact alleged exists to have the case submitted to the fact-finder. R. W. Bishop, Prima Facie Case-Proof and Defense 4" § 58.3 (1997 & Supp. 2002). Page 3 of 4