438 Mass. 1008

December 10, 2002

Relying on G. L. c. 30, ยง 9A, the veterans' tenure act, the plaintiff challenges an order by the defendant demoting him from the rank of major to the rank of captain in the Department of State Police. A judge in the Superior Court allowed the defendant's motion for summary judgment, ruling that the matter became moot when the plaintiff retired before his demotion took effect. The judge rejected the plaintiff's contention that he had been constructively discharged. The Appeals Court affirmed the judgment, but on a different basis. Greaney v. Colonel, Dep't of State Police, 52 Mass. App. Ct. 789 (2001). For reasons explained fully in its opinion, the court held that the veterans' tenure act "does not apply to a demotion of a major in the department." Id. at 795. Given its holding that the statute was inapplicable, the court stated that it "need not reach the question whether there was a constructive discharge." Id. [Note 1]

We granted the plaintiff's application for further appellate review. We agree that the judgment should be affirmed for the reasons stated by the Appeals Court. Therefore, like the Appeals Court, we do not reach the issue of constructive discharge.

Judgment affirmed.

Vida K. Berkowitz for the plaintiff.

Richard S. Weitzel, Assistant Attorney General (Ginny Sinkel, Assistant Attorney General, with him) for the defendant.


[Note 1] In the same opinion, the Appeals Court also decided a companion case brought by William F. Cronin. Shortly after the opinion was issued, a stipulation of dismissal was entered in the Superior Court.

Home JOANNE V. DAVIS vs. THOMAS B. SLAUGHTER, trustee, [Note 1] & others. [Note 2]

438 Mass. 1008

December 10, 2002

Joanne V. Davis, settlor of the Joanne V. Davis Qualified Personal Residence (QPR) Trust, commenced this action in the county court, seeking reformation of the QPR trust. Davis asserts that, unless the trust is reformed by severing it into three trusts that she represents will provide for the same succession of interests of beneficiaries as are provided in the original trust, the trust will suffer unfavorable Federal generation skipping transfer (GST) tax consequences when it terminates by its own terms on December 16, 2002.

Although not cited by Davis, the facts of this case are virtually identical to those in Simches v. Simches, 423 Mass. 683 (1996). Indeed, the relief requested by Davis in this case, severance of the trust into three trusts, is less drastic than that authorized by the Simches court, namely, substitution of beneficiaries. Id. at 688-689. Rather, the requested severance of the trust is more akin to the type of "fine tuning of the administration of the [trust] . . . in order to reduce, if not eliminate, the application of the GST tax," First Agric. Bank v. Coxe, 406 Mass. 879 , 883 n.6 (1990), that we have approved in several cases.

Page 1009

Therefore, for the reasons stated in the Simches case, we remand this case to the county court for entry of a judgment reforming the QPR trust as proposed. [Note 3]

So ordered.

Stephen G. Howard for the plaintiff.


[Note 1] Of the Joanne V. Davis Qualified Personal Residence Trust.

[Note 2] Susan M. Johnson, Caroline Viall Monzani, Courtney Somerville Clough, William Tyler Clough, and the Commissioner of Internal Revenue.

[Note 3] Litigants and attorneys bringing trust reformation cases before the single justice and the full court are reminded of their obligation to provide "a full and proper record and the requisite degree of proof that they are entitled to the relief they seek." Walker v. Walker, 433 Mass. 581 , 582 n.5 (2001).