Opinion
16-P-784
03-06-2017
Kristen MARSHALL v. Douglas MARSHALL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Douglas Marshall, appeals from an order of the Probate and Family Court dismissing his appeal from an amended judgment of divorce nisi. We reverse and order the appeal reinstated.
Background . The plaintiff, Kristen Marshall, filed a complaint for divorce in 2013, which was tried over four days in January and February of 2015. At the start of the trial, the parties stipulated that "the stenographer's transcript shall serve as the official record o[f] the trial on the merits." On March 20, 2015, Douglas filed his posttrial pleadings which included the transcripts of the four-day trial. A judgment of divorce nisi, findings of fact, conclusions of law and a rationale were issued on May 19, 2015, and docketed on May 27, 2015. Kristen filed a motion to amend the judgment which was allowed prior to Douglas having the opportunity to respond. Douglas filed a motion to vacate the amended judgment. A hearing was held on Douglas's motion on July 16, 2015. No stenographer was present for this hearing. Douglas's motion to vacate was denied on July 28, 2015. Douglas filed a notice of appeal from the amended judgment of divorce on August 26, 2015. Douglas submitted a written request for a copy of the recording of the hearing held on July 16, 2015. Kristen's attorney wrote to Douglas's attorney on September 1, 2015, inquiring as to the status of the recording from the July 16, 2015, hearing. Thereafter, counsel for the parties had a conversation wherein Douglas indicated he did not intend to rely on anything that occurred at the July 16, 2015, hearing. On December 9, 2015, the appellate clerk at the Probate and Family Court notified the parties that no recording was available because of an equipment malfunction in the court room.
As the parties share a surname, we shall use their first names to avoid confusion.
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On March 11, 2016, Kristen filed a motion to dismiss and a motion to strike Douglas's notice of appeal. Kristen argued that Douglas's failure to file the transcripts pursuant to Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999), and 9(c)(2)(i), as amended 437 Mass. 1602 (2002), and his failure to provide a statement of the evidence or proceedings of the July 16, 2015, motion hearing pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1999), signaled that Douglas had abandoned his appeal requiring dismissal pursuant to Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). Kristen's motion was marked for hearing on March 7, 2016. Three days prior to the hearing, on March 4, 2016, Douglas filed a "Statement of Issues and Designation of Transcript" which stated that the trial transcripts had previously been filed and that he did not intend to submit a transcript or statement of the evidence of the July 16, 2015, hearing. Douglas refiled the trial transcripts at that time. The appellate clerk of the Probate and Family Court confirmed that, as of March 4, 2016, Douglas had complied with all of his obligations necessary to assemble the record pursuant to Mass.R.A.P. 9(c)(1). The March 7, 2016, hearing took place before a different judge, the trial judge having retired. The judge allowed Kristen's motion in a margin notation without findings or a memorandum. Douglas filed a timely notice of appeal from the allowance of the motion to dismiss.
Discussion . It is without question that the Rules of Appellate Procedure "put the responsibility for expediting the appeal squarely on the appellant." Mailer v. Mailer , 387 Mass. 401, 407 (1982). See Scheuer v. Mahoney , 80 Mass. App. Ct. 704, 709 (2011). Rule 9(c) outlines a civil appellant's duties in relation to assembly of the record on appeal. Rule 10(c) provides:
"If any appellant in a civil case shall fail to comply with Rule 9(c) or Rule 10(a)(1) or (3), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant's time for taking the required action. If, prior to the lower court's hearing such motion for noncompliance with Rule 9(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely" (emphasis supplied).
See Neuwirth v. Neuwirth , 85 Mass. App. Ct. 248, 256 (2014). Thus, the rules contemplate a situation in which an appellant commits inexcusable neglect, but nevertheless escapes dismissal by virtue of the compulsory language of the cure provision. See ibid . Given the liberality of the cure provision, in Neuwirth we cautioned that, to avoid unnecessary delay, appellees must remain vigilant in "policing the progress of an appeal" and should be willing to "nudge an appellant along" if need be. Id . at 257.
Here, Douglas filed the trial transcripts with his posttrial pleadings and then refiled them after Kristen marked her motion to dismiss. He also put the court and Kristen on notice that as a result of the inability to secure a recording of the July 16, 2015, hearing, he intended to prosecute his appeal without reliance on that proceeding. While Douglas may not have strictly complied with the Rules of Appellate Procedure, his cure prior to a hearing on Kristen's motion is dispositive. The language of the cure provision is strict. Indeed, an appellant's ability to make use of the cure provision is one of the reasons why "excusable neglect" is narrowly construed. See Points E., Inc . v. City Council of Gloucester , 15 Mass. App. Ct. 722, 724-725 (1983).
We also observe that Kristen was not without a remedy. She had the ability to file a motion to dismiss the appeal at an earlier time. She also has made no showing that the delay compromised her position as to the appeal or caused her prejudice. Indeed, Kristen continued to receive alimony and a favorable division of assets, both provisions of which Douglas seeks to appeal. The dismissal of the appeal was an abuse of discretion.
Conclusion . We reverse the order dismissing the appeal, reinstate the notice of appeal, and direct the clerk of the Probate and Family Court to forthwith complete assembly of the record.
So ordered .
Order dismissed and appeal reinstated .