Opinion
16-P-500
04-18-2017
Warren L. PARÉ v. Cindy L. PARÉ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this divorce action, the husband appeals both the judgment of divorce and an order denying his motion for a new trial. We conclude that the appeal from the judgment is not properly before us and must be dismissed, and we affirm the order denying the motion for a new trial.
After a thirty-three year marriage, the husband filed a complaint for divorce in 2011. A judge held a one-day trial, and issued a judgment of divorce dated November 24, 2015. The husband filed motions for a new trial and for relief from judgment on December 3 and 4, 2015, respectively, thus tolling the time for appeal. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).
The husband nevertheless filed a notice of appeal from the judgment on December 21, 2015. This notice was not effective to take an appeal. See Mass.R.A.P. 4(a) ("A notice of appeal filed before the disposition of ... motions [for a new trial or for relief from judgment] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion ...").
Both motions were denied by orders docketed on December 23, 2015. The husband then filed, on January 20, 2016, a notice of appeal of the order denying the motion for a new trial. This notice, having been filed within thirty days of the order, was timely under Mass.R.A.P. 4(a) and brings before us the order denying the motion for a new trial. It was not until January 29, 2016, that the husband filed a new notice of appeal of the underlying judgment. That notice, having been filed more than thirty days after the denial of his posttrial motions, was untimely and thus ineffective to bring the correctness of that judgment before us.
The husband has not included the motion for a new trial, or the order denying it, in the record he has filed with us. Nor does he make in his brief any argument as to how the judge abused her discretion in denying that motion. In these circumstances, the order denying the motion must be affirmed.
Although we must dismiss the appeal of the underlying divorce judgment as untimely, the husband would fare no better if we reached the merits of his appeal. Despite the questions he raises in his brief about various findings of fact the judge made in support of the judgment, we have carefully reviewed the limited record before us and cannot say that any of the findings were clearly erroneous. That is, we are not "left with the definite and firm conviction that a mistake has been committed." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015), quoting from Custody of Eleanor, 414 Mass. 795, 799 (1993).
Moreover, some of the findings the husband discusses are not actually challenged as clearly erroneous, but concern issues on which the husband merely wishes to offer further explanation. Other findings, although challenged, concern subsidiary or collateral issues, such that, even if those findings were clearly erroneous, the husband has not explained, and we are unable to discern, how they materially undermine the bases for the judgment or require that it be modified or reconsidered. Still other challenged findings depend entirely on the judge's credibility determinations, to which we owe deference. See Schechter, 88 Mass. App. Ct. at 245.
These include finding 45 concerning a recommendation that the husband receive physical therapy; finding 55 concerning the wife's motivation for working during the marriage; finding 56 concerning the wife's activities as a dog breeder; and finding 64 regarding the wife's failure to convey her interest in certain real property to herself and the husband as joint tenants.
These include finding 43 concerning how the husband was transported to a hospital after an incident of partial paralysis in 2012; finding 61 concerning whether the husband had any current expectation of receiving a significant inheritance from his family; and finding 68 concerning whether the husband owns a vehicle worth $1,500.
These include findings 75 and 98 concerning the husband's weekly expenses; finding 86 concerning whether the wife had converted or dissipated marital assets; and finding 88 concerning whether the wife had engaged in an extramarital affair.
The husband's specific requests for relief focus on a parcel of real property to which the wife took sole title when her grandmother died in 1994. The judgment of divorce required the wife to place the property on the market and share the net proceeds equally with the husband (subject to an offset for any alimony payments due from the husband to the wife). The judge made this determination after considering the factors set forth in G. L. c. 208, § 34, and concluding that it would be inequitable to allow the wife to keep all or even a greater percentage of the net sales proceeds. The husband now asks us to order a disposition more favorable to him: that he be granted sole ownership of the property, with responsibility for all outstanding property tax and utility bills; under this arrangement the wife would regain ownership only if she survives him, and any income from the property would be divided equally with the wife. Whatever the virtues of this proposal, even if the appeal of the judgment were properly before us, we would not be persuaded that the judge's determination that the property should instead be sold and the net proceeds divided equally was an abuse of discretion. That is, we could not conclude that "the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision." Schechter, 88 Mass. App. Ct. at 245, quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
We note that the husband's motion for a stay pending appeal of the requirement that the wife sell the property was denied by a single justice of this court on December 27, 2016. The husband filed a notice of appeal from the order of the single justice, and was sent notice of the assembly of the record for that appeal in January, 2017, but has never docketed the appeal, despite the requirement that he do so within ten days of receipt of the notice. See Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001).
In making this determination the judge gave "particular weight to the equal contributions both parties[ ] made to the marital estate, the parties' equally poor health, and the parties' equally poor prospects for future income or assets."
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Conclusion. The order denying the husband's motion for a new trial is affirmed. The husband's appeal of the judgment of divorce is dismissed.
So ordered.
Affirmed in part; dismissed in part.