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Dunne v. Dunne

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Nov 21, 2014
13-P-826 (Mass. App. Ct. Nov. 21, 2014)

Opinion

13-P-826

11-21-2014

JOAN DUNNE v. THOMAS DUNNE.


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

Thomas Dunne, the former husband (husband) of Joan Dunne, the former wife (wife), appeals from a judgment of divorce entered in the Probate and Family Court, which among other things, (1) awarded legal and physical custody of the couple's two minor children to the wife; (2) allowed the wife to remain in the marital home until the youngest child graduates from high school, at which time the home would be sold and the net proceeds divided equally; (3) awarded the husband his tools and trade implements; (4) awarded child support of $194 per week to be paid to the wife; (5) allowed the parties to retain the bank accounts standing in their names, while the retirement accounts were to be equalized between them; and (6) permitted the husband to claim one of the children as a tax exemption as long as he was current on his child support payments. The judge did not provide for an alimony award.

Although the husband discusses various other orders in his brief, the only appeal that is currently before us is his appeal from the provisions of the judgment of divorce identified in his notice of appeal.

On appeal, the husband argues that the judge did not adequately consider the best interests of the children and made findings with respect to custody and certain property matters that are clearly erroneous. We affirm.

Our review of the husband's claims is severely limited by the husband's failure to provide an adequate record appendix or reasoned appellate argument supported by relevant legal authorities. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-86 (1995). Furthermore, the husband has included materials in his record appendix that were not part of the record below and, therefore, are not part of the record on appeal. See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 204 n.9 (2003). Despite these violations of the applicable rules of appellate procedure, we have reviewed the husband's arguments to the extent permitted by the record before us and discern no basis for disturbing the judgment.

For example, we have not been provided with a complete transcript of the trial and none of the tax returns or financial statements that were listed as exhibits have been provided to us. The husband has not included the child support guideline worksheets that were filed below or the parties' statement of uncontested facts.

The husband's status as a pro se litigant does not excuse these failures because pro se litigants are held to the same standard as those represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006 (1996).

Essentially, the husband argues that the judge should have accepted his factual assertions rather than those presented by the wife. This argument ignores the well-settled principle that the determination of the witnesses' credibility and the weight to be given to their testimony is peculiarly within the province of the trial judge. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004). Here, the judge did not credit the husband's testimony, particularly with respect to financial matters. In light of this assessment, we see no grounds for concluding that the judge erred with regard to the division of assets or the amount of child support awarded to the wife.

For example, with respect to husband's claim that he provided the down payment for the house and paid the costs associated with the purchase, the judge noted that the husband failed to provide any evidence to support this claim. The judge did not credit the husband's claim that large sums of cash at the marital home were sent by his family members for investment purposes. In response to the wife's claim that he hid his car while he was inside the marital home at the time the court order provided the wife with exclusive use and occupancy of the home, the husband asserted that he did not park his car in the driveway because he did not want it to leak oil on the driveway -- the judge disbelieved this assertion. The judge gave other examples of the husband's actions that raised concerns about his credibility: the husband engaged in employment while utilizing a second Social Security number not assigned to him and voted in local elections even though he was not a citizen.

As to legal custody of the parties' children, the judge concluded that joint legal custody was not appropriate because of the couple's inability to communicate and because of the husband's rejection of the children's clinical diagnosis. The children, both boys, suffer from significant behavioral and psychiatric problems. The judge found that the husband generally disagrees that the children have significant special needs. The wife has always been the primary caretaker and has arranged her work schedule flexibly to be able to deal with unexpected matters. Given these findings, we see nothing inappropriate about the judge's decision to award legal custody to the wife.

Finally, the wife requests an award of double costs and appellate attorney's fees pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We conclude that the husband's appeal is frivolous and therefore the wife is entitled to an award of appellate attorney's fees and single costs. The wife should file, within fourteen days of the date of the rescript, her request for fees and costs with supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The husband then will have fourteen days to respond. Ibid.

The judgment is affirmed.

So ordered.

By the Court (Kantrowitz, Vuono & Sullivan, JJ.),

Panel members appear in order of seniority.
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Clerk Entered: November 21, 2014.


Summaries of

Dunne v. Dunne

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Nov 21, 2014
13-P-826 (Mass. App. Ct. Nov. 21, 2014)
Case details for

Dunne v. Dunne

Case Details

Full title:JOAN DUNNE v. THOMAS DUNNE.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Nov 21, 2014

Citations

13-P-826 (Mass. App. Ct. Nov. 21, 2014)