437 Mass. 1010

June 26, 2002

Anthony Bloise appeals from the denial, by a single justice of this court, of his "interlocutory motion to compel recusal" of a judge in an underlying case pending in the District Court. The single justice considered Bloise's filing in essence to be a petition pursuant to G. L. c. 211, § 3, and denied it without a hearing. We affirm.

Bloise has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). He has not demonstrated, however, as the rule requires, that review of the underlying District Court order, i.e., the judge's denial of Bloise's recusal request, could not adequately have been obtained in the ordinary course of trial and appeal or by other available means. See Doten v. Plymouth Div. of the Probate & Family Court Dep't, 395 Mass. 1001 (1985) (affirming denial of G. L. c. 211, § 3, petition seeking to compel recusal of judge in trial court). To the extent that Bloise's filing in the county court sought additional relief from the single justice not based on any interlocutory ruling in the District Court, [Note 1] the provisions of Rule 2:21 are inapplicable. We can conclude on the record before us, however, that relief under G. L. c. 211, § 3, as to those matters was correctly denied. It was Bloise's burden to create a record before the single justice demonstrating a substantial claim of violation of a substantive right, and that the violation was not remediable in the ordinary course of trial and appeal, or by other means. Gorod v. Tabachnick, 428 Mass. 1001, cert. denied, 525 U.S. 1003 (1998), and cases cited. He has failed to meet his burden. See Doten v. Plymouth Div. of the Probate & Family Court Dep't, supra, and cases cited. The single justice did not err in denying the petition in these circumstances.

We do not consider any other issues, arguments, and claims raised by Bloise on appeal that were not raised before the single justice. See Milton v. Boston, 427 Mass. 1016, 1017 (1998), and cases cited.

The judgment of the single justice denying Bloise's "interlocutory motion to compel recusal" is therefore affirmed.

So ordered.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Anthony Bloise, pro se.


[Note 1] Bloise sought vacation of an order issued against him in the District Court pursuant to G. L. c. 209A. The order was final and appealable as a matter of right. Zullo v. Goguen, 423 Mass. 679, 681 (1996). See Parekh v. Parekh, 421 Mass. 1009 (1996).

Bloise also requested that the single justice enter an order compelling the District Court judge to recuse herself in all future cases in which he may be involved, and an order compelling certain other parties to return documents that they allegedly stole from Boise.

Home FLEET NATIONAL BANK, trustee, [Note 1] vs. GORDON E. MARQUIS & others. [Note 2]

437 Mass. 1010

June 28, 2002

Fleet National Bank, sole trustee of the Martha Ely Marquis Trust, commenced this action in the Probate and Family Court, seeking declaratory relief and reformation of a trust instrument. Fleet seeks to divide the entire trust into two separate but identical subtrusts as a means of minimizing Federal generation-skipping transfer (GST) taxes. The defendants, beneficiaries of the trust, have assented to the relief sought. [Note 3] The relevant facts are not in dispute. A judge in the Probate Court reported the case to the Appeals Court. We granted Fleet's application for direct appellate review.

The amended trust agreement states that, following Martha's death, the trust corpus is to continue as a single trust until the death of her son, Gordon E. Marquis. During his lifetime, the net income of the trust -- but not the principal -- is to be paid to Gordon and to the surviving issue of his deceased sister. Upon Gordon's death, the trust estate is to be distributed in equal shares to Martha's grandchildren (including those who had been receiving income during Gordon's lifetime). If any of these grandchildren predecease Gordon, then their issue are to take their parents' share by right of representation.

The parties agree that the trust is subject to the Federal GST tax. [Note 4] To take full advantage of the $1 million personal GST tax exemption, they propose dividing the trust into two separate, but identical, subtrusts. One of the subtrusts would be funded with trust assets equal in value to the maximum available exemption. The other subtrust would be funded with the balance of the trust's assets. Future distributions that would otherwise be subject to the GST tax could then be made from the exempt subtrust, and distributions that would not be subject to the tax could be made from the nonexempt subtrust. The parties claim that such a division would conserve trust assets for the beneficiaries and would simplify future administration of the trust. The parties also represent that such a division "will neither alter the dispositive terms of the trust nor affect the interests of the trust beneficiaries."

Here, the circumstances warrant the proposed division. "We have regularly recognized the appropriateness of granting declaratory relief to fiduciaries seeking instructions [in circumstances such as this]." Fleet Nat'l Bank v. Mackey, 433 Mass. 1009, 1009 n.4 (2001), quoting First Agric. Bank v. Coxe, 406 Mass. 879, 882 (1990). Although the parties cite no language in the trust agreement expressly authorizing a division of the trust, there is no language forbidding it. Such a division is minimal compared to what has been approved in other cases. It is merely the "fine tuning of the administration of the trust [] . . . in order to reduce, if not eliminate, the application of the GST tax." BankBoston v. Marlow, 428 Mass. 283, 286 (1998), quoting First Agric. Bank v. Coxe, supra at 883 n.6. See Riley v. Riley, 434 Mass. 1021, 1021 (2001).

A judgment shall be entered in the Probate Court authorizing Fleet to divide and administer the trust as proposed. The court shall also enter such further

Page 1012

provisions in the judgment as may be appropriate to fulfil the purposes of the division.

So ordered.

The case was submitted on briefs.

Asa E. Phillips, III, & Lauren K.H. Dillon for the plaintiff.


[Note 1] Under a trust agreement between Martha Ely Marquis and Old Colony Trust Company.

[Note 2] William B. Marquis, Second; Victoria Marquis; Ronald M. Stevenson; Cynthia Stevenson; Jason Stevenson; Jennifer Ramsey; Jessica Ramsey; William Ramsey; Matthew Rock; Melissa Rock; and Shana Rock.

[Note 3] Fleet did not name the Internal Revenue Service as a defendant in the action, but did provide it with a copy of the complaint.

[Note 4] The parties also agree that the last amendment of the trust took place before Congress enacted the current GST tax in 1986.