Opinion
13-P-1713
11-21-2014
DEPARTMENT OF REVENUE v. JOHN CASWELL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a judge of the Probate and Family Court denying his motion for relief from a judgment of contempt pursuant to Mass.R.Dom.Rel.P. 60(b). We affirm.
This rule is identical to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). See Mass.R.Dom.Rel.P. 60(b). See also Sahin v. Sahin, 435 Mass. 396, 398 n.4 (2001).
"Resolution of a rule 60(b) motion rests in the discretion of the trial judge, and we 'will show marked deference to the lower court's resolution of such a motion.'" Raheman v. Raheman, 59 Mass. App. Ct. 915, 916 (2003), quoting from Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 (1987), quoting from Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949, 949 (1983). Nothing in the record reveals that the judge abused her discretion in denying the motion for relief. The defendant argues under rule 60(b)(1) that the underlying contempt order was a product of "mistake, inadvertence, surprise or excusable neglect" because he did not understand the monthly amount he was required to pay under the agreement. This argument is unavailing. The defendant, through his attorney, negotiated an agreement to pay the arrearages due on the order of support from Colorado, which the parties agreed would enter as a judgment of contempt. None of the evidence presented by the defendant below or on appeal rises to the level of inadvertence or mistake.
The defendant's 60(b) motion was filed within one year of the judgment and is timely absent unreasonable delay. Gath v. M/A-COM, Inc., 440 Mass. 482, 497 (2003). The record does not indicate whether the judge denied the defendant's motion on the grounds of unreasonable delay. However, because there is support in the record for the denial of the motion on the merits, we need not address this issue.
Next, the defendant argues under rule 60(b)(4) that the judgment of contempt is void because the underlying Colorado support order is void for lack of subject matter jurisdiction. The order was properly registered in Massachusetts according to G. L. c. 209D, § 6-602. The only available defenses are outlined in G. L. c. 209D, § 6-607, which does not include subject matter jurisdiction, and the judge properly concluded that none of the defenses applied to the defendant. Any underlying challenges to the Colorado court's subject matter jurisdiction must be addressed to Colorado courts. The defendant exhausted all of his appeals in Colorado, including an appeal based on subject matter jurisdiction, and they were resolved against the defendant.
The defendant's citation to Peddar v Peddar, 43 Mass. App. Ct. 192 (1997), is inapposite. That case addressed a Massachusetts court's subject matter jurisdiction to modify an out-of-State support order, holding that it did not have jurisdiction to do so. This case does not concern modification; the order was properly registered in Massachusetts and the judgment of contempt addresses the enforcement of that order.
As to the defendant's due process arguments under the rule 60(b)(6) "catchall" provision, his assertions are essentially the same as his argument under rule 60(b)(5). "[T]o prevail under rule 60(b)(6), a party must show that there is a reason to justify the relief, and also that the reason is not within the grounds set forth the in rule 60(b)(1)-(5)." Sahin v. Sahin, 435 Mass. 396, 407 (2001), quoting from Parrell v. Keenan, 389 Mass 809, 814-815 (1983). See Mt. Ivy Press LP v. Defonseca, 78 Mass. App. Ct. 340, 346 (2010). The judge therefore did not abuse her discretion in denying the defendant's motion under rule 60(b)(6).
The defendant makes numerous other arguments on appeal that are not properly before this court., A rule 60(b) motion is not a substitute for a direct appeal. Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994). We therefore do not address them.
On appeal the defendant asks this court to reverse our previous order denying appointment of counsel, to vacate a further order of contempt, to modify the monthly amount due to satisfy the judgment, and alleges that his due process rights have been violated. These are beyond the scope of the order of the Probate and Family Court currently before the court on appeal.
Our decision does not address any rights the defendant may have to seek further relief, including modification of the payment schedule, in Colorado.
To the extent that we do not address the defendant's other rule 60(b) assertions, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying motion for relief from judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 21, 2014.