Petition 34: the Shepard Petition

Additional commentary by Timothy Horrigan

(member of the House Petitions & Redress Committee)

Dan Shepard got a no-fault divorce on grounds of irreconcilable differences back in 2006. He has moved on with his life and remarried. But, he still has some unsettled grievances. He submitted voluminous documentation, all nicely arranged on a CD. I was tempted to put it all on my website because it tells an interesting story with a colorful cast of characters, but for various reasons, I don't think it belongs here. The biggest of these reasons is that 98% of it is about his exwife, who (technically) is not a party to this petition (and who herself has moved on with her life.) Mr. Shepard's basic complaints are that the settlement was overly favorable to the exwife, and that her lawyers cheated him. Her divorce lawyer Keri J. Marshall faces public censure as a result of a complaint which Mr. Shepard filed in 2009.

This petition was introduced twice under two different numbers. Petition 29 was pulled after Mr. Shepard's exwife belatedly realized that her name was mentioned in it. Petition 34 is the same petition, only with no mention of his wife. It, like Petition 29, does mention one very familiar name: Marital Master Philip Cross.


PETITION 34 – AS INTRODUCED

12-3074 09/01

PETITION 34

PETITION FOR REDRESS OF GRIEVANCE

TO: The Honorable House of Representatives
FROM: Petitioner Representative Patrick Abrami, Rock. 13
DATE: March 16, 2012
SUBJECT: Grievance of Daniel Shepard

Your Petitioner, Representative Abrami, on behalf of Daniel Shepard of North Hampton, hereinafter presents the following summary of his grievance against the State of New Hampshire, Marital Master Philip Cross, Judge Sharon N. DeVries, and Attorney Keri J. Marshall and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 of the New Hampshire Constitution to bring about redress:

Grievance involving repeated violations of Daniel Shepard's due process rights, violations of the standards of evidence, violations of the New Hampshire support RSAs and precedents (e.g., contradiction of the New Hampshire supreme court ruling in Noddin v. Noddin, 123 N.H. 73 (1983)), abuses of discretion and power, and an unsustainable exercise of discretion regarding evidence.

Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:

  1. Introduce legislation to:

    1. Amend family court RSAs on modifications of alimony to eliminate increases in and extensions of alimony awarded pursuant to a final decree, particularly when the receiving party has provided testimony or evidence containing material falsehoods or when there has been a finding of adultery or any other of the causes for divorce against the receiving party; and

    2. Amend family court RSAs to allow appeals to the superior court on questions of admissibility of evidence.

    3. Require the supreme court to establish rules of evidence for the family court which are in conformance with the superior court rules of evidence.

  2. Continue the investigation for impeachment of Marital Master Philip Cross and Judge Sharon N. DeVries pursuant to HR 7.

Respectfully submitted by Petitioner Representative Abrami on behalf of Daniel Shepard.



In July 17, 2012, the committee took a  vote and Mr. Shepard won 9-3, on (if I recall correctly) party lines.  We few, we proud Democrats had a very hard time getting a report approved by the Speaker. Mr. Shepard was denied the unanimous verdict he was hoping for, and he was incensed even by the bland final draft of the minority report:

PETITION #34
grievance of Daniel Shepard. 

(Report filed 8/8/12)

MAJORITY
Grievance Founded with Recommendations.
Committee Findings:
The Redress of Grievances Committee listened to a petition involving Marital Master Philip Cross in a series of divorce hearings which alleges numerous violations of the Petitioner's rights by Cross both under the law and our constitutions in a series of arbitrary and capricious decisions (suggesting outcomes being predetermined and) that caused unnecessary, extreme, and wrongful financial and familial hardships.  Having reviewed the allegations and supporting documents and having received no response from those named, the Committee finds that in his case before Marital Master Philip Cross (and by extension, Judge Sharon DeVries) Petitioner Shepard did indeed suffer from each of the alleged wrongs by an individual against whom more and more New Hampshire citizens continue to raise their voices including:

  1. Violation of his due process rights including randomly changing a decision without hearing new information;

  2. Violation of New Hampshire's support RSA 458:19 IV(e) which disallows the inclusion of a subsequent spouse's income in modifying alimony;

  3. Blatant abuses of discretion and power including ignoring RSA 458 19:I(a), (b) and (c) in determining additional alimony;

  4. Contradiction of clear Supreme Court rulings in Noddin v. Noddin, 123 N.H. 73;

  5. Unsustainable exercises of discretion regarding evidence involving calculation of spousal resources (combined with an ancillary disability or unwillingness to do basic math);

  6. Failure to report or otherwise act in the face of clear and confessed first-person evidence of unlawful acts both in his courtroom and without;

  7. Failure to prosecute perjury (and/or false swearing) by an officer of the court; and 8. Failure to protect the dignity of the court.  

Recommendations
It is the belief of this Committee that although there is no guarantee of outcome in our courts there should be a guarantee of a fair trial. While there are procedures and rules in place, clearly, in this case, they were not followed. For that reason the Committee recommends that the General Court introduce legislation:

  1. Requiring the head of the Family Division of the Courts in his administrative duties to investigate any individuals under his supervision at the request of the General Court and present the results of his findings to it in written form;

  2. To put in place limits to the discretion of Marital Masters and any others operating in such a role in the courts disallowing any abuse of due process such as what would be provided in any other courtrooms or rightfully expected by the general public in our country;

  3. To make appeals to the Superior Court mandatory on questions of admissibility of evidence;

  4. To eliminate increases in or extensions of alimony pursuant to a final decree and when the receiving party has falsified evidence;

  5. To make punishment mandatory in cases of false swearing and perjury by officers of the court in the Family Division,

  6. To issue a House Joint Resolution requiring the attorney general to investigate Attorney Keri Marshall for perjury or false swearing as appropriate; and

  7. To make all supervising judges directly culpable and therefore impeachable for failures of marital masters regarding due process and unlawful acts committed in any courtroom under their supervision when they have been brought to their attention. 

Vote 9-3.

Rep. Kevin Avard for the Majority of the Committee

MINORITY
Grievance Unfounded.
Committee Minority Findings:

The Minority finds no evidence from the material supplied that there are any changes to laws or procedures that would govern this divorce case that would or should change the outcome.  Not unexpectedly, this case is very contentious and parts are still before the courts.  We do believe the Petitioner got his day(s) in court.  During the course of this divorce, he was represented by no less than four attorneys.  The laws are set up to give one a fair hearing.  However, there is no guarantee one will be happy with the outcome. 

    1. The Petitioner is unhappy with the Statutes governing alimony and modifications.  The amount is set by the court after submission of data.  There is an opportunity to file objections.  In this case the Petitioner attempted to get introduced the value of a tiny piece of property that was tied up in bankruptcy court. The court ordered alimony for 3 years after the decree, not out of line in a case where the wife had been mostly at home through 15 plus years.  The Petitioner was unable to prove his position to the court, particularly when he included health expenses for the new wife;

    2. Often parties to a case offer up material to the court which the court does not allow to be presented as evidence in that case.  That is obviously a judgment call.  Adequate safeguards are in place through one's attorney to challenge a decision; and

    3. The Petitioner thinks that the rules of evidence need to be reviewed for the Family Court for inconsistencies.  The Minority was never given specific evidence of the problem.  Although there are various standards the court has established, the most obviously being beyond a reasonable doubt, for criminal actions. 

  1. It is not likely that the House will impeach members of the Family Court, either as a result of this or other known petitioners at this time.  Also, there will be no more Marital Masters appointed. Divorce and custody will be assigned to judges. When one enters the court system there is no guarantee of the outcome. In place are procedures that allow one to present a case and appeal decisions, etc.  But, the system must be orderly and one must follow the rules and, frankly, have the best evidence for the best results.


Rep. Sandra B. Keans for the Minority of the Committee

This page gets a fair number of search-engine hits on the name "Keri Marshall." Mr. Shepard claims, correctly, that Attorney Keri J. Marshall is being investigated by the Attorney Discipline System. He was the person who filed the charges against her in March 2009. His initial complaint letter contained (to use a phrase from the final report on the charges) "myriad claims": it contained eight pages of assorted accusations.

The hearings focussed on the simplest and least dramatic of Mr. Shepard's myriad claims. This claim stemmed from a dispute (one of many) over the scheduling of a hearing (one of many.) This hearing was initially scheduled for August 20, 2008, and ended up being postponed till September 8, 2008. One of Attorney Marshall's paralegals initially claimed she telephoned Mr. Shepard and obtained his consent to a postponement (or "continuance" to use the exact legal term) on or around July 24, 2008, which would have been a month in advance of the originally scheduled date. However, more likely than not, the necessary phone call never happened. Neither Mr. Shepard nor Attorney Marshall have a record of this call, even though they both kept detailed records. (Attorney Marshall's records turned out to be somewhat disorganized, however.)

Mr. Shepard filed his own continuance motion and he and one or more lawyers showed up on September 8, 2008 as scheduled— but that wouldn't excuse any wrongdoing on Attorney Marshall's part.

The Professional Conduct Committee's final report summarized the basic charge as follows:

About three weeks into the lengthy hearing process, Shepard's exwife filed an March 2009 affidavit where she stated (point #24 out of 29) that her exhusband had given his assent over the telephone:

  1. Regarding the Assented to Motion to Continue, a staff member of Marshall Law Office, Kathy Parlatore indicates that she telephoned Mr. Shepard and secured his assent. There is nothing further to add regarding that matter. Clearly there is no reason to misrepresent his assent. If Mr. Shepard did not assent, it was incumbent upon him to notify the Court. Regardless, the staff member indicates that he did assent.

This affidavit was not preceded with one or more pages of gassy Whereases and Wherefores, but it was still an affidavit of truth. Bullet point #24 was eventually deemed to be unfounded by the Professional Conduct Committee, but at the time the exwife believed everything in her affidavit to be true— and her 29 bullet points were never rebutted to her satisfaction. Theoretically, everything in her affidavit, including point #24, could have been been established as "Truth in Commerce." This shows the problem with relying too much on "Affidavits of Truth" like those filed by petitioners David Johnson. Josh Youssef and Gus Breton. But I digress...

Hearings were held in March 2012, a report was written in April 2012, and more hearings were held in May 2012.. During an August 2012 interview with Rep. Kevin Avard, Mr. Shepard says something about how the committee had been considering censuring Attorney Marshall, which he evidently considered an insufficient punishment. (We now know that the Professional Conduct Committee's assistant counsel wanted to suspend her law license, but the committee opted for a lesser punishment.)

On October 16, 2012, another hearing was held, and on November 27, 2012, a ""Public Censure with Conditions" order was issued. It was not posted on the official Attorney Discipline website NHAttyReg.org until January 2, 2013. In between November 16 & January 2, I ran into Mr. Shepard at a New Hampshire House Rules Committee meeting and actually had a fairly amicable conversation with him. He said he was pleased with the outcome, especially the fact that Attorney Marshall was going to take a massive financial hit. According to the official report, she "has voluntarily agreed to pay all costs associated with the investigation and prosecution of this matter." She got in trouble more for managing her law practice badly than for any malpractice per se— which is actually true for many lawyers who fall afoul of the attorney discipline system.

The sanctions were as follows:

Attorney Marshall's name also turns up in Petition #14, the Jeannette Dionne petition: in that case, she was one of multiple attorneys who represented the petitioner over the years. The petitioner did indicate that she had fired Ms. Marshall, but we never found out why.



Other 2012 Petitions:



See Also:


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