Miller v. Miller (Lawyers Weekly No. 10-005-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12298 BENJAMIN H. MILLER vs. JOANNA ISABELLA MILLER. Middlesex. September 6, 2017. – January 12, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Divorce and Separation, Child custody. Minor, Custody. Parent and Child, Custody. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 20, 2013. The case was heard by Patricia A. Gorman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Elaine M. Epstein (Richard M. Novitch also present) for the husband. Matthew P. Barach (Melinda J. Markvan also present) for the wife. CYPHER, J. The husband, Benjamin H. Miller, appeals from a Probate and Family Court judgment permitting the wife, Joanna Isabella Miller, to remove and relocate the parties’ daughter to Germany, the wife’s home country. We have previously held that when deciding whether removal should be permitted, the particular criteria depends on whether physical custody of the child is sole or shared. Where the parent seeking removal has sole physical custody, his or her removal petition is analyzed using what has been called the “real advantage” standard of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where, however, the parents share physical custody, a parent’s removal request is evaluated using the standard articulated in Mason v. Coleman, 447 Mass. 177 (2006), known as the “best interests” standard. In this case, no prior custody order existed to guide the trial judge as to whether the Yannas or Mason analysis should apply. In such circumstances, we hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard.[1] We also take this opportunity to emphasize that the best interests of the child is always the paramount consideration in any question involving removal. We are satisfied that the judge conducted the requisite functional analysis here, and in determining whether removal was in the child’s best interests she afforded considerable weight to the benefits the proposed move to Germany would offer the wife, the child’s primary caregiver. Because we discern no abuse of discretion or error of law from the judge’s consideration of […]
Commonwealth v. Miller (Lawyers Weekly No. 10-129-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10640 COMMONWEALTH vs. DAVID T. MILLER. Bristol. May 6, 2016. – August 17, 2016. Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.[1] Homicide. Firearms. Search and Seizure, Warrant, Expectation of privacy. Constitutional Law, Search and seizure, Standing to question constitutionality, Privacy. Evidence, Firearm, Hearsay, Chain of custody, Immunized witness, Prior misconduct. Privacy. Jury and Jurors. Witness, Immunity. Practice, Criminal, Capital case, Motion to suppress, Warrant, Standing, Waiver, New trial, Jury and jurors, Deliberation of jury, Transcript of testimony before grand jury, Hearsay, Stipulation. Indictments found and returned in the Superior Court Department on December 15, 2006. A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J.; a second pretrial motion to suppress evidence was considered by John P. Connor, Jr., J.; the cases were tried before Barbara A. Dortch-Okara, J., and a motion for a new trial was considered by her. Jennifer H. O’Brien for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. CORDY, J. On the evening of September 25, 2006, James Cadet was shot and killed. The defendant, David T. Miller, who lived in the same apartment complex as the victim, was indicted for the murder three months later after several witnesses, as well as evidence seized during a search of his apartment building, linked him to the crime. The trial began in February, 2009. The defendant was allowed to conduct the trial pro se but standby counsel, who had been appointed to assist him, actively participated throughout the trial proceedings. On February 24, the jury returned verdicts of guilty of murder in the first degree, on a theory of deliberate premeditation, and of the unlawful possession of a firearm. The next day, standby counsel for the defendant was contacted by a juror who stated that she was troubled by the verdict, and eventually submitted a letter to the judge addressing her concerns. The defendant subsequently filed a motion for a new trial based on information set forth in the juror’s letter, arguing that extraneous material had reached the jury room and tainted the jury’s verdict. The motion was denied in November, 2009, and the defendant’s appeal therefrom was consolidated with his direct appeal. On appeal, the defendant claims error in (1) the denial of his motions […]
Apfel, et al. v. Miller (Lawyers Weekly No. 11-065-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑1508 Appeals Court DANIEL J. APFEL & another,[1] trustees,[2] vs. WAYNE A. MILLER. No. 13‑P‑1508. Suffolk. April 10, 2014. ‑ June 13, 2014. Present: Grainger, Rubin, & Hanlon, JJ. Real Property, Registered land, Restrictions. Mistake. Practice, Civil, Summary judgment. Civil action commenced in the Land Court Department on June 4, 2009. The case was heard by Karyn F. Scheier, J., on motions for summary judgment. David J. Apfel (Maren Klawiter with him) for the plaintiffs. Joel Z. Eigerman for the defendant. GRAINGER, J. The plaintiffs, trustees of the Penny Apfel-Rechtschaffen Nominee Trust (trust), brought a declaratory judgment action in the Land Court seeking the application of certain restrictive covenants to a parcel of registered land owned by the defendant Wayne A. Miller.[3] The judge denied the plaintiffs’ motion for partial summary judgment, allowed the defendant’s motion for summary judgment, and entered a declaratory judgment resolving all of the issues in favor of the defendant. See Boston v. Massachusetts Bay Transp. Authy., 373 Mass. 819, 829 (1977). The plaintiffs filed a timely appeal. 1. Background. The facts are undisputed. The parties are abutting landowners. The trust holds title to registered land designated as lot 1 of the Boldwater residential subdivision in Edgartown. Miller owns lot 7 in the subdivision. a. The parties’ chains of title. The trust acquired title to lot 1 as the high bidder at a foreclosure sale conducted by Plymouth Savings Bank (bank). The owner and mortgagor at the time of sale was Thomas C. Wallace, the president of Boldwater, Inc., an entity which had originally held title to the land now comprising the subdivision. Wallace took title to lot 1 when the subdivision was created. Thereafter he also acquired title to what is now denominated lot 7, land that was originally a portion of lot 2 at the time of the creation of the subdivision. To finance these real estate acquisitions, Wallace borrowed money, not only from the bank, but also from the defendant Miller. As collateral Wallace granted Miller a second mortgage on lot 1, subordinate to the bank. Miller also received a third mortgage on lot 7, subordinate to the bank (second position) and subordinate to Clifford Meehan (first position). The proceeds derived from the plaintiffs’ purchase of lot 1 were sufficient […]